IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs April 3, 2018

STATE OF TENNESSEE v. VICTOR MARTIN

Appeal from the Criminal Court for Shelby County

No. 16-02262 Chris B. Craft, Judge

No. W2017-01610-CCA-R3-CD

The Defendant, Victor Martin, was convicted by a jury of especially aggravated robbery, 

attempted especially aggravated kidnapping, and setting fire to personal property, for 

which he received an effective sentence of forty-seven years’ incarceration. On appeal, 

the Defendant argues (1) that the evidence was insufficient to support his convictions, 

contending that the State failed to establish use of deadly weapon, serious bodily injury, 

confinement that exceeded the accompanying felony, or his identity; (2) that the State 

committed a Ferguson violation by failing to preserve both a second photographic lineup 

and a single photograph shown to the victim on an iPad, thereby violating his due process 

rights requiring dismissal of the indictment or, alternatively, a limiting instruction; (3) 

that admission of the victim’s medical records was improper given that the affidavit from 

the hospital’s custodian of records was insufficient violating Tennessee Rule of Evidence 

902(11); and (4) that the trial court erred by giving the jury an instruction on flight 

because it was not supported by the proof. Following our review, we affirm the 

judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which ROBERT L.

HOLLOWAY, JR., and J. ROSS DYER, JJ., joined.

Stephen C. Bush, District Public Defender; and Barry W. Kuhn (on appeal) and Jennifer 

H. Case (at trial), Assistant District Public Defenders, for the appellant, Victor Martin.

Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant 

Attorney General; Amy P. Weirich, District Attorney General; and Jose Francisco Leon 

and Abby Wallace, Assistant District Attorneys General, for the appellee, State of 

Tennessee.

09/28/2018
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OPINION

FACTUAL BACKGROUND

This case arises out of a November 4, 2015 robbery of the seventy-one-year-old 

victim John Blose (“the victim”) at a Memphis gas station. Thereafter, the Shelby 

County Grand Jury returned a six-count indictment against the Defendant, charging him 

with especially aggravated robbery, especially aggravated kidnapping, employing a 

firearm during the commission of a dangerous felony, to wit: commission of or attempt to 

commit especially aggravated kidnapping, two counts of being a convicted felon in 

possession of a firearm, and setting fire to personal property. See Tenn. Code Ann. §§

39-13-305, -13-403, -14-303, -17-1307, -17-1324.

A. Pretrial Motions. Prior to trial, the Defendant filed a motion for dismissal of 

the indictment pursuant to State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999). In discovery, 

the Defendant had been provided with one unlabeled photographic lineup and an advice 

form reflecting that the victim had picked the individual in position one as the 

perpetrator. In the Defendant’s Ferguson motion, he claimed that the State failed to 

preserve a second photographic lineup labeled “A” in which the victim identified the 

individual in position “A3” as the perpetrator, as well as its corresponding “Advice to 

Witness Viewing Photographic Display” form. A hearing was held on the motion on 

February 24, 2017.1 

At the hearing, Memphis Police Department (“MPD”) Detective Billy Byrd 

testified that he assisted with a November 4, 2015 “carjacking case” that occurred around 

7:00 a.m. at a Marathon gas station located on South Parkway. According to Detective 

Byrd, the Defendant was developed as a suspect later that day after they received a 

“Crime Stoppers tip.” So, Detective Byrd prepared a photographic lineup that included 

the Defendant’s picture and went to the hospital that evening to show the lineup to the 

victim. After Detective Byrd read the “Advice to Witness Viewing Photographic 

Display” form to the victim, Detective Byrd showed the photographic lineup to the 

victim, and the victim “picked out the [D]efendant” in position one. Detective Byrd 

testified that the victim identified the Defendant without any assistance. The victim then 

circled the photograph of the Defendant, wrote a comment at the bottom stating that he 

had identified the person who had robbed him, and signed and dated the photographic 

lineup at 9:37 p.m. The victim also completed the advice form, initialing that he made a 

positive identification and placing the number “1” in the blank for the position of the 

individual he recognized. 

 

1

This motion was heard in conjunction with the Defendant’s motion to suppress the evidence found 

during the search of the apartment in which he was living. 
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Detective Byrd acknowledged that there was no alphabetical label on the lineup. 

Detective Byrd explained:

Generally, the way we identify photographic lineups is by the alphabet, A, 

B, C, D, E, F, if there was just one created it would ha[ve] been generally 

for our office purposes one. Now if we’d of had to show multiple lineups 

we would [have] actually labeled them as A, B, C, D, and so forth to 

distinguish what was what. But this being the only one that was ever 

created, this was by default A. 

According to Detective Byrd, he never prepared a second photographic lineup because 

there “was no need” due to the victim’s positive identification. Detective Byrd asserted 

that the victim never identified anyone at position number three. In addition, Detective 

Byrd said that he turned over the lineup he prepared and the advice form completed by 

the victim to the lead investigator in this case. 

After the victim was released from the hospital, he came to the police station and 

spoke with MPD Detective April Leatherwood on November 7, 2015. He was 

accompanied by his niece, Dawn Collier, who was present for the interview that began at 

8:28 a.m. In the typed-written statement, the following questions were asked and 

answered:

Q. Prior to giving this statement, on November 4, 2015[,] were you shown 

a form titled “Advice of Witness Viewing Photographic Display”?

A. Yes.

Q. Were you then shown a photographic lineup labeled “A”?

A. Yes.

Q. In regards to photographic lineup “A”, did you identify anyone?

A. Yes.

Q. In regards to photographic lineup “A”, what block was the suspect in?

A. A3.

Q. Are you positive the person you identified in the lineup is the same 

person responsible for robbing and assaulting you?

A. Yes. 

According to Detective Leatherwood, the victim looked at the statement after it was 

completed and his niece also reviewed it with him. The statement was signed at 9:21 

a.m. by the victim, his niece, and Detective Leatherwood. There were no other officers 

present during the interview. 

Detective Leatherwood was asked to explain the discrepancy between A3 in the 

statement and position one circled in the photographic lineup. She claimed that “it was a 
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typo.” According to Detective Leatherwood, the November 4, 2015 advice form and 

photographic lineup were “in front” of the victim when she took his statement. Detective 

Leatherwood affirmed that she did not show the victim a second photographic lineup 

during the interview nor did she have the victim complete another advice form. 

In addition, Detective Leatherwood maintained that the victim “had to respond A1 

because he” was looking at the completed November 4, 2015 lineup when he answered 

the question. However, she did not distinctly remember the victim’s answer. Detective 

Leatherwood agreed that she was “making every effort to type exactly what [the victim] 

said in response to [her] questions” because it was “important” to have an accurate 

statement. She did not believe that there were any other mistakes in the statement. When 

asked why she called the lineup “A,” Detective Leatherwood explained that, although the 

lineup may not have been marked with an “A,” it “was the very first lineup [the victim] 

saw, so it’s A.” She continued, “That’s how we mark them A, B, C, D, or however many 

there are, so it’s A.” 

The victim testified at the hearing and confirmed that he identified the individual 

in position one in the photographic lineup shown to him by Detective Byrd at the 

hospital. The victim averred that he was never presented with any other lineup. 

However, the victim testified that, about twenty minutes after completing the lineup, he 

was shown a single photograph on an iPad by a detective named “Mike.” The victim 

maintained that he had already been presented with the photographic lineup and had 

identified the individual therein before being shown the photograph on the iPad.

MPD Detective Keith Phillips testified that he was the lead investigator in this 

case, and as part of those responsibilities, he collected the evidence and “put it in a 

packet[.]” Detective Phillips confirmed that there was only one photographic lineup and 

advice form used in the investigation. Detective Phillips also confirmed that an officer 

named Michael Gibbs was involved in this case.2 

At the conclusion of the hearing, defense counsel amended the motion to include 

the iPad photograph. The defense then requested dismissal of the indictment or sanctions 

on the State due to their failure to preserve (1) the photographic lineup labeled “A” in 

which the victim identified the individual in “A3” and (2) the iPad photograph. The trial 

court took the matter under advisement and filed a written order on May 1, 2017, denying 

the Defendant’s Ferguson motion. 

In March 2017, the Defendant filed a motion to suppress the “out-of-court 

identification evidence” and any “in-court identification testimony,” arguing that the 

victim’s identification of the Defendant was unduly suggestive. A hearing was held on 

 

2 Detective Gibbs testified at this hearing but only in relation to the consent to search issue.
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this motion on May 22, 2017. At this hearing, Detectives Byrd, Gibbs, and Phillips and 

Officer Keyon Love testified. 

Detective Byrd testified, after the victim identified the Defendant in the 

photographic lineup, he relayed this information to the other officers working on the case. 

Detective Byrd relayed that he was accompanied by Detective Phillips to the hospital that 

evening when he went to show the victim the photographic lineup and that they left the 

hospital together. Detective Byrd confirmed that the photographic lineup he used was 

“A” although it was not labeled as such, explaining that “[t]he letter indication is for 

[official] purposes only.” Detective Byrd reiterated, that to his knowledge, no other 

lineup was ever created in this case “because [they] had [their] suspect.” Detective Byrd 

also stated that he was not issued an iPad and never showed the victim any picture on an 

iPad. He was also not aware of any other officer ever showing the victim a photograph 

on the iPad. Detective Byrd explained, “No officers in the [MPD] except for the higher 

rankings are issued iPads. So no patrol level or investigative level officers that I’m aware 

of are issued iPads.” 

MPD Detective Michael Gibbs Jr. testified that he also assisted in the

investigation. According to Detective Gibbs, he and Detective Phillips went to the 

hospital on the morning of November 4, 2015, to meet with the victim shortly after the 

incident occurred. Detective Gibbs said that the victim “wasn’t really talking,” so he 

photographed the victim’s injuries and left. According to Detective Gibbs, there were no 

photographs to show the victim at this time. Detective Gibbs said that he returned to the 

hospital on November 6, 2015, to obtain a DNA sample from the victim. By the time of 

his second visit, the Defendant had already been apprehended. In addition, Detective 

Gibbs said that he was not issued an iPad, but he used a “PDA,” which was a device he 

used to take reports, pictures, etc. Detective Gibbs asserted that he did not have his PDA 

with him on either occasion he spoke to the victim at the hospital but admitted that he did 

have his cellphone. Detective Gibbs maintained that he never showed the victim a 

photograph on any electronic device. Furthermore, he could not recall anyone else, 

including the victim’s niece, showing the victim a picture on any electronic device. 

Detective Phillips also maintained that he did not show the victim any photograph 

on an iPad when he went with Detective Gibbs to visit in the hospital shortly after the 

incident took place. Furthermore, he did not recall Detective Gibbs’s doing anything of

the sort. Detective Phillips confirmed that, at the time of the first visit, they did not have 

a suspect. Detective Phillips additionally relayed that he accompanied Detective Byrd to 

the hospital that evening to show the victim the photographic lineup and stated that, after 

the victim’s identification, they left the hospital together. Detective Phillips confirmed 

that only one photographic lineup was prepared. 
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MPD Officer Keyon Love responded to the gas station and spoke with the victim 

in an effort to obtain information. After the victim was transported to the hospital by 

ambulance, Officer Love went to see him, and during this time, Detectives Phillips and 

Gibbs arrived. Officer Love said that he left prior to the detectives’ leaving. Officer 

Love also testified that he never showed the victim a picture on any electronic device nor 

saw any other officers do so. Moreover, he likewise testified that they were “not issued 

iPads in patrol.” 

The Defendant’s motion to suppress the identification evidence as unduly 

suggestive was denied. He proceeded to a jury trial held May 23rd through 26th of 2017.

B. Trial. At trial, the victim testified that, on November 4, 2015, he was travelling 

from his home in Pennsylvania to visit a relative in Arkansas and to attend his sister’s 

wedding in Houston, Texas. While driving through Memphis in his Ford Explorer, he 

stopped at a Marathon gas station at 6:47 a.m.3to get some coffee and smoke a cigarette. 

Upon his arrival at the gas station, he engaged in casual conversation with the Defendant

and another man, who were both standing outside in the parking lot. The men spoke “for 

a couple of minutes,” and the victim asked for directions. The other man left, and the 

victim offered to buy the Defendant a cup of coffee. Although the Defendant declined 

the offer of coffee, the Defendant followed the victim inside the Marathon gas station at 

6:51 a.m. Once inside, the victim went to the back of the gas station to get a cup of 

coffee, and the Defendant followed. They continued to converse. The victim waited at 

the door of until the victim paid for his coffee, and they exited the gas station together at 

6:54 a.m. 

Once outside, the two spoke a while longer and then said their goodbyes, and the 

victim headed towards his vehicle. The victim opened the door to his Explorer at 7:00 

a.m. The victim testified that, upon returning to his automobile, he noticed that the 

Defendant was following him. According to the victim, the Defendant pointed a gun at 

him and ordered him to “scoot over.” The Defendant, who was approximately “[a] foot 

and a half, two feet” away, exclaimed, “I’ll shoot you. I mean it. I mean it.” The victim 

said that he complied because he knew the Defendant “meant business.” 

The Defendant continued to “hold[] the gun on” the victim once they were inside 

the vehicle, and the Defendant “started to drive out” of the gas station at 7:01 a.m. When 

the Defendant took his hand off the wheel, the victim “grabbed the barrel of the gun,” and 

a short struggle ensued. The Explorer stopped in the middle of the street. According to 

the victim, the Defendant “smashed [him] up side his face,” “smashed [his] glasses and 

everything,” and “drove” his hearing aid “into [his] ear[.]” The victim testified that 

 

3

The time on the surveillance video footage is provided in Eastern Time. However, the events of this 

case occurred in the Central Time Zone.
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“blood just flew” and that he was “in physical pain” and “hurting bad.” In addition, the 

victim said that his eye was cut open and that his “ear was all cut.” 

During the struggle, the victim managed to disarm the Defendant and throw the 

gun out of the passenger-side window of the vehicle. When the Defendant got out of the 

automobile to pick up the gun, the victim exited and went towards the gas station. The 

victim said that “[he] was taking blood so bad [he] knew [he] had to get out of there one 

way or the other.” The victim further averred, “I knew I had to get some place to get the 

bleeding to stop because I take blood thinners from my doctor.” As the victim headed 

towards the gas station, the Defendant drove away with his car at 7:03 a.m. Although the 

victim testified that he did not lose consciousness, he said that he was “really dazed” and 

almost passed out. 

In addition, the victim testified that he did not want to leave the gas station with 

the Defendant and that he did not give the Defendant permission to take the vehicle or 

any of his property that was inside. The victim valued his Ford Explorer at $5,000. 

The victim was asked to describe the Defendant’s gun. He said, “It was a nickel 

plate and what I know about a revolver I would say it was a 7 or 9 millimeter nickel plate 

rifle gun. I don’t know. I’m not familiar with handguns.” The victim’s typed-written 

statement was also introduced as an exhibit. In addition to the questions and answers set 

forth above, the statement provided that the Defendant was armed with a silver handgun 

during the robbery. 

The victim suffered several lacerations to his face that required stitches and a 

fractured nose from the beating. The jury was able to view the photographs of the 

victim’s injuries, which were admitted into evidence. The victim’s medical records, 

which were also entered into evidence, indicated that the victim described his pain upon 

admission to the hospital as an eight out of ten, which was accompanied by the following 

explanation: “Pain began suddenly. Is continuous[ly] [c]omplain[ing] of pain in left side 

of forehead, left eye, left zygomatic area, right temporal area and right side of 

forehead[.]” The victim described his pain as “aching [and] throbbing” and was “[n]oted 

to be grimacing.” In fact, the victim was unable to sign certain admission documents 

because of his medical condition. The victim’s pain did not decrease until he was given 

morphine intravenously, and he was administered additional pain medication, such as 

hydromorphone and oxycodone, in the days that followed to manage his pain. The 

victim’s medical records indicated that he reported “acute pain” on several occasions

during his hospital stay. Moreover, his broken nose required surgery to repair. The 

victim was discharged from the hospital three days later on November 7, 2015. 
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Finally, the victim testified that, at times, he still suffered from his injuries having 

pain in his face where he was hit. When asked if his “hearing [had] been affected as a 

consequence of this,” the victim replied that his hearing had “really changed.”

The State showed surveillance video from the Marathon that captured multiple 

angles of the incident both inside and outside the gas station. The victim narrated the 

events for the jury as they were happening. 

Officer Love testified at trial that he responded to the gas station at approximately 

7:10 a.m. on the morning of November 4, 2015, after receiving a report of a carjacking. 

Upon arriving, Officer Love spoke with the victim who “had blood all over his face” and 

was “a little disheveled.” Although the victim “was complaining of his injuries,” the 

victim was able to provide Officer Love with a description of the assailant and the 

property inside his vehicle that was taken. Officer Love called for an ambulance. 

MPD Officer David Payment testified that an arson call of a vehicle on fire was 

reported at approximately 7:15 a.m. and that he arrived on the scene of the fire at 7:50 

a.m. Upon arrival, he “observed an SUV completely burnt beyond recognition in the 

backyard” of a house. Officer Payment stated that he smelled “an odor of some 

accelerant, like . . . kerosene or something[.]” Officer Payment photographed the 

vehicle, and the victim was able to identify the vehicle as his. Officer Payment testified 

that the distance between the gas station and the location of the burnt vehicle was less 

than two miles. 

In addition, after the ambulance took the victim away, Officer Love was notified 

that a vehicle was on fire. Officer Love testified that he left the gas station and proceeded 

to travel “two blocks over” where he found that the victim’s automobile had been set on 

fire. 

Detective Gibbs testified at trial that the Defendant was developed as a suspect 

later that day after they received a “Crime Stoppers tip.” Based upon the information 

provided in the tip, they were able to ascertain the Defendant’s whereabouts, and the 

Defendant was arrested. When Detective Gibbs arrived at that location, the Defendant 

was already in custody. Detective Gibbs found out that the Defendant was staying in an 

apartment nearby with his girlfriend, who was present while the Defendant was being 

arrested. Detective Gibbs spoke with the girlfriend, who gave written consent to search 

the apartment at 7:35 p.m. Several bullets and the Defendant’s mail were found inside a 

bedroom dresser. A bullet was also found under the bed. The Defendant’s girlfriend said 

that the bullets did not belong to her. Outside, below a staircase “in front to the 

apartment,” Detective Gibbs observed a number of items shoved underneath, including 

clothing the Defendant wore during the robbery and a number of items the victim had 
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been carrying in his vehicle. Detective Gibbs confirmed that they never found any 

firearm connected with the Defendant. 

Moreover, Detective Gibbs stated that, between the apartment complex where the 

Defendant was staying and the backyard where the victim’s vehicle was found, there was 

a “cut through the fence . . . behind the apartment complex.” He also described that the 

locations of the gas station, the Defendant’s arrest, the victim’s burnt vehicle, and the 

Defendant’s apartment were all “within walking distance” of one other. 

 The Defendant was photographed following his arrest. From these photographs, the

victim identified the jacket that the Defendant was wearing at the time of arrest as 

belonging to him. The victim also identified the clothes found underneath the staircase as 

those the Defendant was wearing at the time of the robbery—a different jacket, a baseball 

hat, and a pair shoes. Subsequent forensic testing determined that the victim’s blood was 

on the jacket the Defendant was wearing at the time of the offense and seen in the 

surveillance footage. 

 At trial, the victim testified that he was shown a photographic lineup and 

identified the Defendant therein. The paperwork accompanying his identification was 

entered into evidence. Detective Phillips testified again at trial that the victim was only 

shown one lineup, and Detective Leatherwood testified about the mistake in the victim’s 

typed-written statement regarding the lineup. In addition, the victim was cross-examined 

about the discrepancies in his police statement. He was also questioned about the iPad 

photograph. Detective Gibbs testified that he was not in possession of an iPad when he 

visited the victim and that he never showed the victim any photograph on an iPad. 

C. Verdict, Sentence, and Appeal. Following the conclusion of proof, the jury 

found the Defendant guilty as charged of especially aggravated robbery and setting fire to 

personal property and of the lesser-included offense of attempted especially aggravated 

kidnapping. Following a bifurcated proceeding, the Defendant was found not guilty of 

employing a firearm during the commission of a dangerous felony and of being a 

convicted felon in possession of a firearm. For his convictions, the Defendant received

an effective sentence of forty-seven years’ incarceration. The Defendant’s timely motion 

for new trial was denied, and he now appeals to this court.

ANALYSIS

On appeal, the Defendant argues (1) that the evidence was insufficient to support 

his convictions, contending that the State failed to establish use of deadly weapon, 

serious bodily injury, confinement that exceeded the accompanying felony, or his 

identity; (2) that the State committed a Ferguson violation by failing to preserve a second 

photographic lineup and a single photograph shown to the victim on an iPad, thereby 
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violating his due process rights requiring dismissal of the indictment or, alternatively, a 

limiting instruction; (3) that admission of the victim’s medical records was improper 

given that the affidavit from the hospital’s custodian of records was insufficient violating 

Tennessee Rule of Evidence 902(11); and (4) that the trial court erred by giving the jury 

an instruction on flight because it was not supported by the proof. We will address each 

in turn. 

I. Sufficiency of the Evidence

The Defendant contends that the evidence was insufficient to sustain his 

convictions. Regarding the proof supporting his especially aggravated robbery 

conviction, the Defendant submits that the State failed to prove that the victim was 

assaulted with a deadly weapon or that the victim suffered serious bodily injury. The 

Defendant challenges the sufficiency of the convicting evidence supporting his attempted 

especially aggravated kidnapping conviction, maintaining that there was insufficient 

proof of serious bodily injury and of his “intent to substantially interfere with the liberty 

of [the victim] independent of an intent to take the [victim’s] automobile.” Finally, the 

Defendant argues that the evidence was insufficient to support his conviction for setting 

fire to personal property because the State failed to establish his identity as the 

perpetrator of that offense. The State counters that the evidence was sufficient in all 

respects. 

An appellate court’s standard of review when a defendant questions the 

sufficiency of the evidence on appeal is “whether, after viewing the evidence in the light 

most favorable to the prosecution, any rational trier of fact could have found the essential 

elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 

319 (1979). This court does not reweigh the evidence; rather, it presumes that the jury 

has resolved all conflicts in the testimony and drawn all reasonable inferences from the 

evidence in favor of the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); 

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness 

credibility, conflicts in testimony, and the weight and value to be given to evidence were 

resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

A guilty verdict “removes the presumption of innocence and replaces it with a 

presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the 

evidence is insufficient to support the jury’s verdict.” Id.; see State v. Tuggle, 639

S.W.2d 913, 914 (Tenn. 1982). The standard of proof is the same whether the evidence 

is direct or circumstantial. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011). 

Likewise, appellate review of the convicting evidence “is the same whether the 

conviction is based upon direct or circumstantial evidence.” Id. (quoting State v. Hanson, 

279 S.W.3d 265, 275 (Tenn. 2009)). The duty of this court “on appeal of a conviction is 

not to contemplate all plausible inferences in the [d]efendant’s favor, but to draw all 
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reasonable inferences from the evidence in favor of the State.” State v. Sisk, 343 S.W.3d 

60, 67 (Tenn. 2011).

The Defendant was convicted of especially aggravated robbery, attempted 

especially aggravated kidnapping, and setting fire to personal property. Especially 

aggravated robbery is “the intentional or knowing theft of property from the person of 

another by violence or putting the person in fear,” accomplished with a deadly weapon, 

and where “the victim suffers serious bodily injury.” Tenn. Code Ann. §§ 39-13-401(a), 

-403(a). As relevant here, especially aggravated kidnapping occurs when a person 

“knowingly removes or confines another unlawfully so as to interfere substantially with 

the other’s liberty,” and where the victim suffers serious bodily injury. Tenn. Code Ann. 

§§ 39-13-302, -305(a)(1). In addition, criminal attempt requires proof that a person 

“[a]cts with intent to complete a course of action or cause a result that would constitute 

the offense, under the circumstances surrounding the conduct as the person believes them 

to be, and the conduct constitutes a substantial step toward the commission of the 

offense.” Tenn. Code Ann. § 39-12-101(a)(3). “Conduct does not constitute a 

substantial step . . . unless the person’s entire course of action is corroborative of the 

intent to commit the offense.” Tenn. Code Ann. § 39-12-101(b). Finally, to obtain the 

Defendant’s setting fire to personal property conviction, the State was required to prove 

that the Defendant knowingly damaged personal property by means of a fire or explosion 

and that he did so “[w]ithout the consent of all persons who ha[d] a possessory or 

proprietary interest therein[.]” Tenn. Code Ann. § 39-14-303(a)(1).

A. Deadly Weapon. First, the Defendant argues that “[a] reasonable juror could 

not be certain about what it was that [the victim] saw” because the victim stated that he 

was not familiar with handguns. The Defendant notes that the police did not find a 

weapon in the clothes underneath the staircase or during the search of the apartment. The 

State replies that there was sufficient proof as to the presence of a deadly weapon, noting 

that the jury accredited the victim’s testimony that the Defendant had a gun at the time of 

the robbery despite the victim’s confusion as to the caliber of the weapon. 

The victim testified that, upon returning to his vehicle, he was followed by the 

Defendant, who pointed a gun at him and ordered him to “scoot over.” According to the 

victim, the Defendant, who was approximately “[a] foot and a half, two feet” away, 

exclaimed, “I’ll shoot you. I mean it. I mean it.” The victim explained that the 

Defendant continued to “hold[] the gun on” him once they were inside the vehicle and 

that he began to drive away from the gas station. When the Defendant took his hand off 

the wheel, the victim grabbed the barrel of the gun, and after a short struggle, the victim 

managed to disarm the Defendant. After the victim threw the gun out the passenger-side 

window of the vehicle, the Defendant got out to pick up the gun, and the victim exited 

and went towards the gas station. The video corroborated the victim’s story that 
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something was tossed out of the passenger-side window and that the Defendant went to 

retrieve it. In addition, the victim described the gun for the jury: “It was a nickel plate 

and what I know about a revolver I would say it was a 7 or 9 millimeter nickel plate rifle 

gun. I don’t know. I’m not familiar with handguns.” 

Furthermore, several bullets, along with the Defendant’s mail, were found inside a 

bedroom dresser in the apartment where the Defendant was staying. A bullet was also 

found under the bed. The Defendant’s girlfriend said that the bullets did not belong to 

her. In addition, the victim said in his police statement that the Defendant was armed 

with a silver handgun. The victim never wavered that the Defendant employed a 

handgun during these events but merely stated that he was not an expert on handguns. 

The victim’s familiarity with firearms, or lack thereof, does not entitle the Defendant to 

relief. Moreover, nothing requires that the weapon used during the robbery ever be 

recovered. Finally, although the jury returned not guilty verdicts on the firearm offenses, 

“inconsistent jury verdicts are not a basis for relief.” State v. Davis, 466 S.W.3d 49, 77 

(Tenn. 2015). There was sufficient evidence for a reasonable juror to conclude that the 

Defendant accomplished the robbery by using a deadly weapon. 

B. Serious Bodily Injury. The Defendant claims that the proof was insufficient to 

show that the victim suffered serious bodily injury because “[n]one of the injuries 

described by [the victim] or those described in the medical records fit within” the 

statutory definition. The State responds that the evidence was sufficient for the jury to 

find serious bodily injury based upon a finding of extreme physical pain or protracted 

loss or substantial impairment of a function of a bodily member, organ, or mental faculty.

“Serious bodily injury” is 

bodily injury that involves: (A) [a] substantial risk of death; (B) 

[p]rotracted unconsciousness; (C) [e]xtreme physical pain; (D) [p]rotracted 

or obvious disfigurement; (E) [p]rotracted loss or substantial impairment of 

a function of a bodily member, organ or mental faculty; or (F) [a] broken 

bone of a child who is twelve (12) years of age or less[.]

Tenn. Code Ann. § 39-11-106(34). “Bodily injury” is defined to include “a cut, abrasion, 

bruise, burn or disfigurement, and physical pain or temporary illness or impairment of the 

function of a bodily member, organ, or mental faculty.” Tenn. Code Ann. § 39-11-

106(a)(2). This court has stated the following about the term “serious bodily injury” in 

the context of assault:

While the phrase “serious bodily injury” . . . is not susceptible to precise 

legal definition, it must describe an injury of a greater and more serious 

character than that involved in a simple assault. The distinction between 
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“bodily injury” and “serious bodily injury” is generally a question of fact 

for the jury and not one of law.

State v. Barnes, 954 S.W.2d 760, 765-66 (Tenn. Crim. App. 1997).

In State v. Farmer, our supreme court discussed the necessary proof for 

establishing serious bodily injury. 380 S.W.3d 96 (Tenn. 2012). The victim in Farmer

suffered a gunshot wound to the leg while fleeing the scene of a robbery. Id. at 99. The 

evidence at the trial established that the victim did not know immediately that he had 

been shot and discovered the gunshot wound after fleeing and noticing a hole in his pants. 

Id. at 101. The victim described the gunshot wound as “a straight shot, you know, just 

tore straight through” and said he initially did not feel any pain because of the adrenaline. 

Id. At the hospital, a doctor cleaned the wound and took x-rays but did not stitch it, and

he was discharged “within an hour or so” with pain medication. Id. The victim’s 

hospital records indicated that he described his pain as mild to moderate. Id. The victim 

had no complications, and the injury had healed fully by the time of the trial. Id.

The Farmer court concluded that the evidence did not support a finding that the 

victim suffered serious bodily injury. In so holding, our supreme court reasoned as 

follows:

. . . Factor (C) was not shown because there was no proof that [the 

victim] suffered extreme physical pain. Admitting to the difficulty of 

quantifying physical pain in State v. Sims, 909 S.W.2d 46, 49 (Tenn. Crim. 

App. 1995)[,] our Court of Criminal Appeals applied the ejusdem generis

canon of statutory construction, stating that “the enumerated portions of the 

definition of serious bodily injury should be read as coming from the same 

class of injuries.” The Sims court concluded that the pain associated with 

the injury suffered by the victim in that case—a broken nose—is not 

extreme enough to be included in a class of injury that involves a 

substantial risk of death, protracted unconsciousness, permanent 

disfigurement or protracted loss, or substantial impairment of a function of 

a bodily member, organ, or mental faculty. Likewise, in the instant case, 

the evidence does not support a finding that [the victim’s] injury involved a 

degree of pain that would warrant its inclusion among the other enumerated 

portions of the definition of “serious bodily injury.” . . . This brings us to 

the remaining factor, factor (A), which provides that a bodily “injury that 

involves . . . a substantial risk of death” also qualifies as a serious bodily 

injury. Tenn. Code Ann. § 39-11-106(a)(34).

The Court of Criminal Appeals in a two-to-one decision ruled that 

the State presented evidence that would allow a rational jury to find that 
-14-

[the victim’s] injury involved a substantial risk of death, reasoning that 

although there was no actual serious bodily injury, the bullet 

could easily have punctured or severed the victim’s femoral 

artery or vein, causing the victim to bleed to death. The fact 

that the bullet somehow traveled entirely through the victim’s 

thigh while missing all of the vital blood vessels contained 

therein is a serendipitous turn of events for the victim, not the 

defendants.

[State v. Michael] Farmer [and Anthony Clark], [Nos. W2009-02281-CCAR3-CD, W2009-02283-CCA-R3-CD,] 2011 WL 2672008, at *5 [(Tenn. 

Crim. App. July 8, 2011), vacated in part, 380 S.W.3d 96 (Tenn. 2012)].

We respectfully disagree with this analysis. The statute provides 

that a serious bodily injury is an “injury that involves . . . substantial risk of 

death.” Tenn. Code Ann. § 39-11-106(a)(34)(A) (emphasis added). By the 

plain meaning of this language, we hold that in determining whether there 

was a “serious bodily injury” based on a “substantial risk of death,” we 

must look to the injury that occurred rather than the injury that could have 

occurred or the manner in which it occurred.

380 S.W.3d at 101-102 (footnote omitted).

In Sims, mentioned in the Farmer decision, the victim was struck in the face one 

time with a pistol. 909 S.W.2d at 48. As a result, she had a broken and swollen nose, a 

bruised cheekbone, two black eyes, and a cut across the bridge of her nose. Id. She 

testified that she experienced extreme physical pain on her face and nose. Id. During a 

hospital visit that lasted approximately two hours, a doctor treated the victim with a 

surgical band-aid to close the laceration, and she was not prescribed pain medication. Id.

at 49. The victim also testified that she consulted a plastic surgeon about the cut on her 

face, but she did not undergo plastic surgery. Id. at 48. She missed five weeks of work 

because of her injuries. Id. We concluded that the evidence was insufficient to support 

the element of serious bodily injury based on extreme physical pain or protracted or 

obvious disfigurement. Id. at 49-50.

Recently, in State v. Martavious D. Brooks and Brittany G. Lee, this court 

addressed a factual scenario where the victim suffered similar injuries as the Sims’ 

victim, but the panel reached a different conclusion. See No. M2017-00505-CCA-R3-

CD, 2018 WL 3108882 (Tenn. Crim. App. June 25, 2018), perm. app. filed (Tenn. Aug. 

23, 2018). The ninety-year-old victim in Brooks lived in an assisted living facility when 

someone came into her room, repeatedly struck her in the face, smothered her with a 
-15-

pillow, and ripped her diamond ring off of her finger. 2018 WL 3108882, at *1-9. The 

victim was on multiple medications, including blood thinners, for multiple ailments at 

that time. This court determined that the victim’s injuries, which included facial bruising,

swelling, a fracture of the orbital bone, and intracranial bleeding, involved a substantial 

risk of death, extreme physical pain, and protracted or obvious disfigurement. In so 

holding, the Brooks panel reasoned as follows: 

The treating physician testified that the victim suffered a fracture to her 

orbital floor and her orbital bone was depressed almost a centimeter.

We conclude that this disfigurement constitutes an obvious 

disfigurement within the meaning of the statute. There was also sufficient 

evidence of the victim[’s] being in extreme physical pain. The victim, 

elderly, and bleeding from her face called for help and expressed her pain at 

the time of the attack. The treating physician testified that the victim was 

“very bruised,” had “a lot of facial trauma,” and was “very uncomfortable 

and in pain.” The repeated blows to the victim’s face clearly caused her 

extreme physical pain.

We also conclude that a reasonable jury could have found that the 

victim’s injuries here involved a substantial risk of death. The victim was 

on multiple medications at the time of the assault, including two 

medications that thinned her blood to prevent blood clotting. Following the 

assault, the victim’s doctor admitted her into the hospital to monitor for 

intracranial bleeding, which the doctor testified was a possibility given the 

victim’s medical history and age. Her doctor also admitted the victim into 

the hospital to repeat a CT scan to check for delayed brain bleeding, a 

potentially fatal condition.

. . . As a result of her injuries, the treating physician admitted the 

victim into the hospital because the physician feared that the victim might 

suffer a fatal injury as a result of delayed brain bleeding. The physical 

injury to the victim’s eye, which included a fracture of the orbital bone, 

involved a substantial risk of death from cranial bleeding.

Id. at *12-13. The panel in Brooks differentiated the facts from those presented in 

Farmer and Sims, reasoning as follows:

In both Sims and Farmer the victims were treated at the hospital 

briefly and then released. In both Sims and Farmer the victims were 

relatively young and otherwise healthy. In both of those cases a doctor did 

not testify that the victims were admitted to be monitored for a potentially 
-16-

fatal resulting injury. We distinguish the injuries of the Sims and Farmer

victims from the injuries to the victim in this case and conclude that a 

reasonable jury could have found that the victim’s injuries here involved a 

substantial risk of death from cranial bleeding. 

Id. at *13.

We now turn to our analysis of the various subsections defining serious bodily 

injury provided in Tennessee Code Annotated section 39-11-106(a)(34). Subsection F, 

involving a broken bone of a child, is clearly not applicable because the victim was over 

twelve years of age. 

Relative to whether the injury involved a substantial risk of death (subsection A), 

our supreme court in Farmer stated that, “in many cases[,] a layperson does not have the 

necessary medical knowledge to determine whether a particular injury involves a 

substantial risk of death” and that “expert medical testimony is frequently of critical 

importance in establishing that fact.” 380 S.W.3d at 102. Although the victim stated that 

he was taking “blood thinners,” no medical professional testified that the victim’s injuries 

involved a substantial risk of death, and the medical records do not reflect that the victim 

was in danger of dying. Moreover, this is not a case “in which a juror’s ‘common-sense 

understanding’” would have been sufficient to determine whether the victim’s injury 

involved a substantial risk of death. Id. at 104 (Koch, J., concurring) (footnote omitted) 

(noting that expert testimony is often helpful “except for injuries that are either so serious 

or so trivial that a lay person will understand that they either do or do not involve a 

substantial risk of death”). Neither a broken nose nor surgery to repair that break 

inherently, without more, involve a substantial risk of death. 

Regarding any protracted unconsciousness (subsection B), the victim testified that 

he never lost consciousness following the attack, much less suffered from protracted

unconsciousness. The medical records do not indicate that the victim was unconscious 

except during surgery. 

Relative to whether the victim suffered a protracted loss or substantial impairment 

of a function of a bodily member, organ, or mental faculty (subsection E), the victim was 

asked if his “hearing [had] been affected as a consequence of” the Defendant’s actions, 

and the victim responded that his hearing had “really changed.” However, there was 

evidence that the Defendant had a hearing impairment prior to the incident and wore a 

hearing aid. The Defendant did not elaborate regarding how his hearing had “changed”

or been further impaired due to the beating. Accordingly, subsections (A), (B), (E), and 

(F) are not satisfied. 
-17-

Turning to subsections (C), extreme physical pain, and (D) protracted or obvious 

disfigurement, we note that the victim here was seventy-one years old at the time of the 

attack and was required to stay in the hospital for three days following the incident. The 

victim testified that the Defendant “smashed [him] up side his face” and that “blood just 

flew.” The victim’s nose was broken. His eye was cut open. His “ear was all cut.” His 

hearing aid was driven into his ear from the beating. He required stitches. The victim 

described that, as a result of the attack, he was in physical pain and “hurting bad.” The 

victim further averred, “I knew I had to get some place to get the bleeding to stop because 

I take blood thinners from my doctor.” Although the victim testified that he did not lose 

consciousness, he said that he was “really dazed” and almost passed out. The jury was 

also able to view the photographs of the victim’s injuries. 

Officer Love testified that he arrived at the gas station and spoke with the victim. 

According to Officer Love, the victim “had blood all over his face,” was “a little 

disheveled,” and “was complaining of his injuries.” Officer Love called for an 

ambulance. 

The Defendant asserts that the victim’s medical records “indicate[d] that the pain 

was mild or none at all.” However, the medical records reflected that the victim 

described his pain upon admission to the hospital as an eight out of ten and that he was 

unable to sign admission documents due to his medical condition. Upon admission, it 

was noted, “Pain began suddenly. Is continuous[ly] [c]omplain[ing] of pain in left side of 

forehead, left eye, left zygomatic area, right temporal area and right side of forehead[.]” 

The victim also described his pain as “aching [and] throbbing” and was “[n]oted to be 

grimacing.” Moreover, the victim’s pain did not decrease until he was given morphine 

intravenously, and he was administered additional pain medication in the days that 

followed. The victim’s medical records indicated that he reported “acute pain” on several 

occasions during his hospital stay. Moreover, his broken nose required surgery to repair. 

Finally, the victim said at trial that, at times, he still suffered from pain in his face where 

he was hit. This is more than merely “pain commonly associated with a broken nose.” 

See Sims, 909 S.W.2d at 48.

We find ourselves faced with a set of facts more akin to those presented in Brooks

and distinguishable from Sims and Farmer. Accordingly, we conclude that a rational 

juror could have found beyond a reasonable doubt that the Defendant caused injuries to 

the victim that resulted in the victim’s experiencing extreme physical pain and suffering 

protracted or obvious disfigurement. Thus, the evidence was sufficient to establish 

serious bodily injury pursuant to both subsections (C) and (D) of Tennessee Code 

Annotated 39-11-106(a)(34) . 

C. Accompanying Felony. The Defendant submits that any removal or 

confinement of the victim was incidental to the taking of the automobile and that, 
-18-

therefore, there was insufficient evidence of a separate and distinct kidnapping. The 

State notes that the Defendant was convicted of attempted especially aggravated robbery 

and asserts that “the evidence presented at trial . . . was more than sufficient to allow the 

jury to find that the [D]efendant intended to and took a substantial step towards driving 

off with [the victim] in addition to [taking] his vehicle and property.” 

Tennessee courts have long recognized that a conviction for kidnapping that 

accompanies another felony may not stand if the kidnapping is essentially incidental to 

the other felony. See State v. Anthony, 817 S.W.2d 299, 306 (Tenn. 1991). In State v.

White, the Tennessee Supreme Court concluded that the legislature intended “to punish 

as kidnapping only those instances in which the removal or confinement has criminal 

significance above and beyond that necessary to consummate some underlying offense, 

such as robbery or rape.” 362 S.W.3d 559, 577 (Tenn. 2012). Accordingly, the court 

held that whether the evidence is sufficient to support every element of kidnapping is a 

jury question. Id.

The White court replaced the prior due process test articulated in Anthony with a 

sufficiency analysis. 362 S.W.3d at 578. The White court determined that “trial courts 

must ensure that juries return kidnapping convictions only in those instances in which the 

victim’s removal or confinement exceeds that which is necessary to accomplish the 

accompanying felony.” Id. Put another way, “trial courts should specifically require a

determination of whether the removal or confinement is, in essence, incidental to the 

accompanying felony or, in the alternative, is significant enough, standing alone, to 

support a conviction.” Id. In order to provide guidance to trial courts, our supreme court 

set forth the following instruction for courts to use when instructing on kidnapping 

offenses:

To establish whether the defendant’s removal or confinement of the victim 

constituted a substantial interference with his or her liberty, the State must 

prove that the removal or confinement was to a greater degree than that 

necessary to commit the offense of [insert offense], which is the other 

offense charged in this case. In making this determination, you may 

consider all the relevant facts and circumstances of this case, including, but 

not limited to, the following factors:

• the nature and duration of the victim’s removal or confinement by the 

defendant;

• whether the removal or confinement occurred during the commission of 

the separate offense;
-19-

• whether the interference with the victim’s liberty was inherent in the 

nature of the separate offense;

• whether the removal or confinement prevented the victim from 

summoning assistance, although the defendant need not have succeeded in 

preventing the victim from doing so;

• whether the removal or confinement reduced the defendant’s risk of 

detection, although the defendant need not have succeeded in this objective; 

and

• whether the removal or confinement created a significant danger or 

increased the victim’s risk of harm independent of that posed by the 

separate offense.

362 S.W.3d at 580-81.

In this case, the Defendant does not dispute that the jury was properly instructed 

according to the pattern instruction adopted after White. Nevertheless, the Defendant 

contends that the jury erred by finding sufficient proof to satisfy a conviction for 

attempted especially aggravated kidnapping independent of his conviction for especially 

aggravated robbery. We disagree.

Viewed in the light most favorable to the State, the proof at trial showed that the 

Defendant ordered the victim to “scoot over” at gunpoint and said, “I’ll shoot you. I

mean it. I mean it.” The victim said that he complied because he knew the Defendant 

“meant business.” The Defendant began driving away with the victim in the car in an 

attempt to flee, prevent the victim from summoning for help, and avoid detection. While 

the victim managed to free himself from the vehicle fairly quickly, he was only able to do 

so after fighting with the Defendant and securing the weapon. Certainly holding the 

victim at gunpoint and the struggle that took place inside the automobile created a 

significant danger and increased the victim’s risk of harm. Once the victim threw the 

weapon out of the passenger-side window, the Defendant got out to retrieve the handgun, 

and the victim, despite his injuries, was able to exit the vehicle and head towards the gas 

station. The video corroborated the victim’s version of events. The Defendant could 

have stolen the automobile without keeping the victim inside at gunpoint; accordingly, 

the Defendant’s entire course of action was corroborative of his intent to commit 

kidnapping. See Tenn. Code Ann. § 39-12-101(b). Because the Defendant’s conduct 

constituted a substantial step towards driving off with the victim in addition to taking the 

automobile, we conclude that the evidence was sufficient to establish that the attempted 

kidnapping was distinct from the robbery. 
-20-

D. Identity. Finally, the Defendant claims that there was insufficient proof 

establishing his identity as the person who set fire to the victim’s vehicle because no one 

was “able to say who set it on fire.” The State counters that, “although there was no 

direct testimony that the [D]efendant burned the truck,” there was sufficient 

circumstantial evidence for a reasonable juror to infer that the Defendant was the 

individual who set fire to the vehicle. 

“The identity of the perpetrator is an essential element of any crime.” State v 

Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (citing State v. Thompson, 519 S.W.2d 789, 793 

(Tenn. 1975)). The State has the burden of proving the identity of the defendant as the 

perpetrator beyond a reasonable doubt. State v. Cribbs, 967 S.W.2d 773, 779 (Tenn. 

1998). Identity may be established by direct evidence, circumstantial evidence, or a 

combination of the two. Thompson, 519 S.W.2d at 793. The identification of the 

defendant as the perpetrator is a question of fact for the jury after considering all the 

relevant proof. State v. Thomas, 158 S.W.3d 361, 388 (Tenn. 2005) (citing State v.

Strickland, 885 S.W.2d 85, 87 (Tenn. Crim. App. 1993)).

Officer Love testified that he responded to the gas station at approximately 7:10 

a.m. on the morning of November 4, 2015, after receiving a report of a carjacking. After 

the ambulance took the victim away, Officer Love left the gas station and proceeded to 

travel two blocks away where he found that the victim’s automobile had been set on fire. 

Officer Payment testified that he responded to an arson call of a vehicle on fire at 

approximately 7:15 a.m. When Officer Payment arrived on the scene, he saw that the 

automobile had been “completely burnt,” and he smelled the odor of an accelerant. 

In addition, the victim was able to observe the Defendant for a significant amount 

of time before the robbery conversing with him for several minutes both inside and 

outside the gas station. The victim consistently identified the Defendant as the 

perpetrator, and the surveillance video, which captured multiple angles of the incident,

was played from the jury. In addition, the victim’s belongings were discovered 

underneath the staircase outside of the apartment where the Defendant was living, and the 

victim’s blood was found on the Defendant’s jacket that he wore when he committed the 

robbery. 

The vehicle was found less than two miles away from the gas station and within 

minutes of the robbery. The jury could reasonably deduce that the Defendant burned the 

vehicle in an effort to secret evidence. We agree with the State that the Defendant’s 

identity was shown by sufficient circumstantial evidence. 
-21-

II. Alleged Ferguson Violation

The Defendant claims that the trial court erred in denying his motion to dismiss 

based upon the State’s alleged failure to preserve evidence in violation of the due process 

standards set forth in State v. Ferguson, 2 S.W.3d at 915-16. Specifically, the Defendant 

maintains that the State failed to preserve a second photographic lineup labeled “A” in 

which the victim identified the individual in “A3” and a single photograph on an iPad 

shown to the victim while he was in the hospital. The Defendant submits that the 

evidence was discoverable under Tennessee Rule of Criminal Procedure 16; that “at least 

ordinary negligence [was] involved”; that “[t]he significance of the evidence [was] 

obvious” because it would “bring [the victim’s] identification of the [D]efendant into 

question”; and “[t]he significance of the other evidence used at trial . . . [was] insufficient 

without the identification.” Alternatively, the Defendant argues that the trial court erred 

by declining to impose sanctions and give to the jury Tennessee Pattern Jury Instruction 

42.234regarding the State’s duty to preserve evidence. The State responds that the trial 

court correctly ruled that it did not have a duty to preserve the evidence and, even if it 

did, that the Defendant received a fair trial without the limiting instruction. 

In Ferguson, our supreme court “explained that the loss or destruction of 

potentially exculpatory evidence may violate a defendant’s right to a fair trial.” State v.

Merriman, 410 S.W.3d 779, 784 (Tenn. 2013) (citing Ferguson, 2 S.W.3d at 915-16). 

The court rejected a “bad faith” analysis in favor of “a balancing approach in which bad 

faith is but one of the factors to be considered in determining whether the lost or 

destroyed evidence will deprive a defendant of a fundamentally fair trial.” Id. at 785. 

Our supreme court “observed that fundamental fairness, as an element of due process, 

requires a review of the entire record to evaluate the effect of the State’s failure to 

preserve evidence.” Id. at 784-85 (citing Ferguson, 2 S.W.3d at 914, 917).

 

4

Tennessee Pattern Jury Instruction 42.23 provides as follows:

The State has a duty to gather, preserve, and produce at trial evidence which may possess 

exculpatory value. Such evidence must be of such a nature that the defendant would be unable to obtain 

comparable evidence through reasonably available means. The State has no duty to gather or indefinitely 

preserve evidence considered by a qualified person to have no exculpatory value, so that an as yet 

unknown defendant may later examine the evidence.

If, after considering all of the proof, you find that the State failed to gather or preserve evidence, 

the contents or qualities of which are an issue and the production of which would more probably than not 

be of benefit to the defendant, you may infer that the absent evidence would be favorable to the 

defendant.

Tenn. Prac. Pattern Jury Instr. T.P.I.--Crim. 42.23 (16th ed.).
-22-

To facilitate this “balancing approach,” our supreme court ruled that the trial court 

must first “determine whether the State had a duty to preserve the evidence” and 

observed that the State’s duty to preserve was “limited to constitutionally material 

evidence.” Merriman, 410 S.W.3d at 785. The court held that to be “constitutionally 

material,” the evidence “must potentially possess exculpatory value and be of such a 

nature that the defendant would be unable to obtain comparable evidence by other 

reasonably available means.” Id. (citing Ferguson, 2 S.W.3d at 915, 918). “If the trial 

court determines that the State had a duty to preserve the evidence, the court must 

determine if the State failed in its duty.” Id. (citing Ferguson, 2 S.W.3d at 917). If the 

trial court concludes that the State lost or destroyed evidence that it had a duty to 

preserve, the trial court must then consider three factors to determine the appropriate 

remedy for the State’s failure: “(1) [t]he degree of negligence involved; (2) [t]he 

significance of the destroyed evidence, considered in light of the probative value and 

reliability of secondary or substitute evidence that remains available; and (3) [t]he 

sufficiency of the other evidence used at trial to support the conviction.” Id. (quoting 

Ferguson, 2 S.W.3d at 917). “If the trial court concludes that a trial would be 

fundamentally unfair without the missing evidence, the trial court may then impose an 

appropriate remedy to protect the defendant’s right to a fair trial, including, but not 

limited to, dismissing the charges or providing a jury instruction.” Id. at 785-86. 

Here, the trial court denied the Defendant’s motion to dismiss or request for 

sanctions, which included the Defendant’s request for a jury instruction on the State’s 

duty to preserve evidence. In concluding that the State was under no duty to preserve a 

second lineup, the trial court determined (1) “that there ha[d] been no showing that there 

was ever any photographic lineup shown to the alleged victim other than the one 

produced at the hearing”; (2) “that there was only the original lineup shown”; (3) “that 

the number 3 in the victim’s statement was typographical error”; and (4) “that no second 

lineup ever existed.” Regarding the iPad photograph, the trial court likewise determined 

that the State was under no duty to preserve such evidence, reasoning that (1) “there ha[d] 

been no showing that the photograph possessed exculpatory value”; and (2) “[i]t did not 

affect the identification procedure, as it occurred after the photo lineup was shown.” A 

trial court’s application of the Ferguson factors involves a constitutional issue, and 

therefore, the proper standard of review on appeal concerning the fundamental fairness of 

a trial is de novo with no presumption of correctness. Merriman, 410 S.W.3d at 791, 797.

The trial court concluded that Ferguson was not applicable because the second 

photographic lineup did not exist. In State v. Randall S. Sparks, this court held that the 

State had no duty to preserve recordings of drug transactions because the recordings did 

not exist. No. M2005-02436-CCA-R3-CD, 2006 WL 2242236, at *5 (Tenn. Crim. App. 

Aug. 4, 2006). The Sparks court reasoned, “[W]e can find no case law in this state that 

indicates that Ferguson applies to evidence that never existed. On the contrary, this court 
-23-

has repeatedly refused to grant Ferguson relief when there was no proof that the alleged 

evidence existed.” Id. (citing State v. Timothy D. Prince, No. M2004-01262-CCA-R3-

CD, 2005 WL 1025774, at *4 (Tenn. Crim. App. May 3, 2005); State v. Linda H. 

Overholt, No. E2003-01881-CCA-R3-CD, 2005 WL 123483, at *6 (Tenn. Crim. App. 

Jan. 21, 2005); State v. George R. Croft, No. W2001-00134-CCA-R3-CD, 2002 WL 

31625047, at *6-7 (Tenn. Crim. App. Nov. 20, 2002)). See also State v. Kenneth Clay 

Davis, No. E2006-01459-CCA-R3-CD, 2007 WL 1259206, at *4 (Tenn. Crim. App. Apr. 

30, 2007) (holding, with regard to the absence of a recording of the traffic stop, that the 

“State cannot destroy evidence that does not exist”); John Darryl Williams-Bey v. State, 

No. M2005-00709-CCA-R3-PC, 2006 WL 2242263, at *7 (Tenn. Crim. App. Aug. 4, 

2006) (affirming post-conviction court’s finding that counsel was not ineffective for 

failing to seek non-existent fingerprint evidence or curative jury instruction therefor).

We agree with the trial court that the Defendant failed to prove that a second a 

lineup ever existed. All of the officers testified that only one photographic lineup was 

used in this case. The victim confirmed that he was only shown one lineup and that he 

never identified anyone in position three. Detective Leatherwood explained the “A3” 

reference in the victim’s subsequent police statement as a typographical error. Detectives 

Byrd and Leatherwood also clarified that, because there was only one lineup used, it was 

by default “A” even though it was not officially labeled as such. Thus, the Defendant’s 

Ferguson argument regarding the second photographic lineup is unavailing.

The existence of the iPad photograph is somewhat more troublesome, given that 

the victim stated he was shown such a picture despite all of the officers’ testimony to the 

contrary. Even if the photograph existed, in order for the Ferguson rule to apply, the 

evidence must “possess an exculpatory value that was apparent before the evidence was 

destroyed.” Ferguson, 2 S.W.3d at 917. The victim testified that he was shown a single 

photograph on an iPad by a detective named “Mike” about twenty minutes after 

completing the lineup with Detective Byrd. The victim confirmed that he identified the 

individual in the photographic lineup before being shown the photograph on the iPad. 

The trial court aptly noted that showing the victim this photograph “did not affect the 

identification procedure, as it occurred after the photo lineup was shown.” We conclude 

that the State’s duty to preserve the photograph did not attach because the evidence did 

not possess an exculpatory value that was apparent before it was lost or was destroyed.

Finally, “[a]s a general rule, . . . a trial lacks fundamental fairness where there are 

errors which call into question the reliability of the outcome.” Ferguson, 2 S.W.3d at 914 

n.3 (citing Betts v. Brady, 316 U.S. 455, 462 (1942); Watkins v. State, 393 S.W.2d 141, 

144 (Tenn. 1965); Lofton v. State, 898 S.W.2d 246, 248 (Tenn. Crim. App. 1994)). As 

noted above, the victim was able to observe the Defendant for several minutes before the 

robbery because the two engaged in conversation. The victim consistently identified the 
-24-

Defendant as the perpetrator, and the surveillance footage was played from the jury while 

the victim narrated. Moreover, the victim’s belongings were discovered underneath the 

staircase outside of the apartment where the Defendant was living, and the victim’s blood 

was found on the Defendant’s jacket that he wore when he committed the robbery. The 

victim’s automobile was found within minutes of the robbery “completely burnt.” Even 

if we assumed for the sake of argument that the State had a duty to preserve the 

complained of evidence, the significance of the lost or destroyed evidence is slight, 

paling in comparison to the “other evidence used at trial to support the conviction.” See

Merriman, 410 S.W.3d at 785 (quoting Ferguson, 2 S.W.3d at 917). Thus, the trial court 

did not err by denying a due process remedy in the form of dismissing the indictment or 

issuing a jury instruction.

III. Victim’s Medical Records

The Defendant contends that the trial court erred when it admitted into evidence

the victim’s medical records because the affidavit certifying them was deficient. The 

affidavit, he contends, was admitted into the record in error because it was hearsay, and 

the affiant did not state therein “that the person providing the information had firsthand 

knowledge of the events or facts; that the person providing the information had a business 

duty to record or transmit the information; [and] that the business had a regular practice 

of making such documents[.]” According to the Defendant, “the manner in which the 

information was provided or the document was prepared” indicates a lack of 

trustworthiness. The Defendant further submits that the trial court erred by taking 

“judicial notice of the fact that Regional One Health is a hospital and that their business is 

treating people” because there is no evidence that these were “facts gained by personal 

knowledge.” Moreover, the Defendant avers that these facts have “nothing to do with the 

manner in which records are kept by the hospital or the qualifications of the affiant.” The 

State responds that the affidavit was properly admitted pursuant to Tennessee Rule of 

Evidence 902(11) because it can be reasonably inferred from the affidavit “that the

individuals who created the records had knowledge of the events as well as a business 

duty to create the record”; that “the records were kept by the hospital during” the 

timeframe stated therein; and that “they were kept as a part of regularly conducted 

activity[.]” The State maintains that there has been substantial compliance with the Rule.

The Tennessee Rules of Evidence define hearsay as “a statement, other than one 

made by the declarant while testifying at the trial or hearing, offered in evidence to prove 

the truth of the matter asserted.” Tenn. R. Evid. 801(c). “Hearsay [evidence] is not 

admissible except as provided by [the Tennessee Rules of Evidence] or otherwise by 

law.” Tenn. R. Evid. 802. Tennessee Rules of Evidence 803 and 804 list the exceptions 

to this general rule of inadmissibility. One such exception is for business records. Tenn. 

R. Evid. 803(6). 
-25-

Rule 803(6) defines the prerequisites for admission of business records as follows:

A memorandum, report, record, or data compilation, in any form, of 

acts, events, conditions, opinions, or diagnoses made at or near the time by 

or from information transmitted by a person with knowledge and a business 

duty to record or transmit if kept in the course of a regularly conducted 

business activity and if it was the regular practice of that business activity 

to make the memorandum, report, record or data compilation, all as shown 

by the testimony of the custodian or other qualified witness or by

certification that complies with Rule 902(11) or a statute permitting 

certification, unless the source of information or the method or 

circumstances of preparation indicate lack of trustworthiness. The term 

“business” as used in this paragraph includes business, institution, 

profession, occupation, and calling of every kind, whether or not conducted 

for profit.

“The foregoing exception ‘rests on the premise that records regularly kept in the normal 

course of business are inherently trustworthy and reliable.’” Arias v. Duro Standard 

Products Co., 303 S.W.3d 256, 262 (Tenn. 2010) (quoting Alexander v. Inman, 903 

S.W.2d 686, 700 (Tenn. Ct. App. 1995)). Tennessee Rule of Evidence 803(6) includes 

the following five criteria that must be satisfied for a document to be admissible under 

the business records exception:

1. The document must be made at or near the time of the event recorded;

2. The person providing the information in the document must have 

firsthand knowledge of the recorded events or facts;

3. The person providing the information in the document must be under a 

business duty to record or transmit the information;

4. The business involved must have a regular practice of making such 

documents; and

5. The manner in which the information was provided or the document was 

prepared must not indicate that the document lacks trustworthiness.

Arias, 303 S.W.3d at 263 (quoting Alexander, 903 S.W.2d at 700).

Moreover, Tennessee Rule of Evidence 902(11) eliminates the need to call the 

custodian of records as a trial witness. Tenn. R. Evid. 803(6), Advisory Comm’n Cmts. 

Rule 902(11) provides as follows:
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The original or a duplicate of a domestic record of regularly 

conducted activity that would be admissible under Rule 803(6) if 

accompanied by an affidavit of its custodian or other qualified person 

certifying that the record—

(A) was made at or near the time of the occurrence of the matters set 

forth by, or from information transmitted by, a person with knowledge of 

and a business duty to record or transmit those matters;

(B) was kept in the course of the regularly conducted activity; and

(C) was made by the regularly conducted activity as a regular 

practice.

A party intending to offer a record into evidence under this 

paragraph must provide written notice of that intention to all adverse 

parties, and must make the record and declaration available for inspection 

sufficiently in advance of their offer into evidence to provide an adverse 

party with a fair opportunity to challenge them.

“The standard of review for rulings on hearsay evidence has multiple layers.” 

Kendrick v. State, 454 S.W.3d 450, 479 (Tenn. 2015). The “factual and credibility 

findings” made by the trial court when considering whether a statement is hearsay, “are 

binding on a reviewing court unless the evidence in the record preponderates against 

them.” Id. (citing State v. Gilley, 297 S.W.3d 739, 759-61 (Tenn. Crim. App. 2008)). 

“Once the trial court has made its factual findings, the next questions—whether the facts 

prove that the statement (1) was hearsay and (2) fits under one the exceptions to the 

hearsay rule—are questions of law subject to de novo review.” Id. at 479 (citations 

omitted).

On April 27, 2017, prior to trial, the State filed a notice of its intent to rely on 

certified copies of the victim’s medical records at trial. The defense was clearly on notice 

that the State sought to introduce the victim’s medical records as business records under 

Rule 803(6) and that the documents were intended to qualify as self-authenticating under 

Rule 902(11). In point of fact, the rule requires written notice. See Tenn. R. Evid. 

902(11).

 At trial, the defense objected to introduction of the victim’s medical records, 

arguing that the custodian did not certify “that the record was kept in the course of 

regularly conducted activity” or that records contained therein were made by “a person 

with knowledge of and a business duty to record or transmit” those matters. Attached to 
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the victim’s medical records was a March 9, 2017 affidavit from “Joanne Hunter, RHIA.” 

In it, she certified the following:

1. That I am the duly authorized Custodian of the medical records of 

Regional One Health and have the authority to certify said medical records 

totaling 127 pages.

2. That the copy of the medical records of John Blose attached to the 

affidavit is a true copy of all the records described in the subpoena duces 

tecum, and 

3. That the records were prepared by the personnel of Regional One Health, 

staff physicians, or person acting under the control or either in the ordinary 

course of hospital business at or near the time of the act, condition, or event 

reported therein. 

Defense counsel acquiesced that that third statement of Ms. Hunter might permit an 

inference that the medical records were made by “a person with knowledge of and a 

business duty to record or transmit those matters.” However, the defense continued to 

maintain that the requirement that the affidavit state that the record “was kept in the 

course of the regularly conducted activity” was absent. The trial court took judicial 

notice of the fact that Regional One Health was “a hospital, and their business [was] 

treating people in the hospital.” The trial court then ruled that the records were 

admissible as an exception to the hearsay rule. 

While the affidavit could certainly be more artfully drafted to comply with Rule

902(11), we must agree that the affidavit satisfies the Rule’s requirements. Initially, we 

note that the affidavit itself uses the language “medical records” and “ordinary course of 

hospital business”; thus, there was no need for the trial court to take judicial notice of the 

fact that Regional One Health was a hospital in the business of treating people. 

Moreover, the third sentence of the affidavit provides that the victim’s medical records 

were prepared by hospital personnel or staff physicians at or near the time of the 

occurrence of the matters set forth therein and that those individuals were acting under 

the control of the hospital or in the ordinary course of hospital business. It can be 

reasonably inferred from the affidavit that the individuals who created or prepared the 

records had knowledge of the events, as well as a business duty to create or transmit the 

record, and that the records were kept in the course of the regularly conducted activity of 

the hospital as a regular practice. This is sufficient to show that the documents were a 

business record, inherent of trustworthiness. See Alexander, 903 S.W.2d at 700. As 

such, we conclude that the victim’s medical records were properly admitted under the 

business records exception pursuant to Rule 803(6) and that Ms. Hunter’s sworn affidavit 

complied with Rule 902(11). The Defendant is not entitled to relief from this issue. 
-28-

IV. Flight Instruction

Finally, the Defendant argues that the trial court erred by giving the jury an 

instruction on flight where the proof did not support the instruction. The State insists that 

the facts at trial supported the instruction.

A defendant in a criminal case “has a right to a correct and complete charge of the 

law, so that each issue of fact raised by the evidence will be submitted to the jury on 

proper instructions.” State v. Garrison, 40 S.W.3d 426, 432 (Tenn. 2000); see State v.

Leath, 461 S.W.3d 73, 105 (Tenn. Crim. App. 2013). When reviewing jury instructions 

on appeal to determine whether they are erroneous, this court must “review the charge in 

its entirety and read it as a whole.” State v. Hodges, 944 S.W.2d 346, 352 (Tenn. 1997).

A jury instruction is considered “prejudicially erroneous,” only “if it fails to fairly submit 

the legal issues or if it misleads the jury as to the applicable law.” Id. Because the 

propriety of jury instructions is a mixed question of law and fact, the standard of review 

is de novo with no presumption of correctness. Carpenter v. State, 126 S.W.3d 879, 892 

(Tenn. 2004). 

In the present case, the trial court provided the jury with the following jury 

instruction on flight:

The flight of a person accused of a crime is a circumstance which,

when considered with all the facts of the case, may justify an inference of 

guilt. Flight is the voluntary withdrawal of oneself for the purpose of 

evading arrest or prosecution for the crime charged. Whether the evidence 

presented proves beyond a reasonable doubt that the Defendant fled is a 

question for your determination.

The law makes no precise distinction as to the manner or method of 

flight; it may be open, or it may be a hurried or concealed departure, or it 

may be a concealment within the jurisdiction. However, it takes both a 

leaving the scene of the difficulty and a subsequent hiding out, evasion, or 

concealment in the community, or a leaving the community for parts 

unknown, to constitute flight.

If flight is proved, the fact of flight alone does not allow you to find 

that the [D]efendant is guilty of the crime alleged. However, since flight by 

a [d]efendant may be caused by a consciousness of guilt, you may consider 

the fact of flight, if flight is so proven, together with all the other evidence 

when you decide the guilt or innocence of the [D]efendant. On the other 

hand, an entirely innocent person may take flight and such flight may be 

explained by proof offered, or by the facts and circumstances of the case.
-29-

Whether there was flight by the Defendant, the reasons for it, and the 

weight to be given to it, are questions for you to determine.

See Tenn. Prac. Pattern Jury Instr. T.P.I.--Crim. 42.18 (16th ed.).

“In order for a trial court to charge the jury on flight as an inference of guilt, there 

must be sufficient evidence to support such instruction.” State v. Berry, 141 S.W.3d 549, 

588 (Tenn. 2004). Sufficient evidence exists supporting a jury instruction on flight where 

there is evidence of both a leaving the scene of the crime and subsequently hiding in the 

community. State v. Burns, 979 S.W.2d 276, 289-90 (Tenn. 1998) (quoting State v.

Payton, 782 S.W.2d 490, 498 (Tenn. Crim. App. 1989)). The State may satisfy the 

subsequent hiding requirement by presenting proof from which a jury might infer that the 

defendant committed this act. State v. Terrance Wilks, No. W1999-00279-CCA-R3-CD, 

1999 WL 1097832, at *4 (Tenn. Crim. App. Nov. 22, 1999). Even a brief evasion of 

authorities can support the giving of the flight instruction. Payton, 782 S.W.2d at 498.

The Defendant argues that there was insufficient evidence that he “hid or 

concealed himself from the police, or that he left the community in order to evade the 

police.” He notes that he was apprehended near his girlfriend’s apartment where he was 

living and that the location of the burnt vehicle, the gas station, and the apartment are 

“within walking distance of one another.” However, no specific distance is required. 

The victim testified that the Defendant drove away in his automobile and that he did not 

give the Defendant permission to do so. The surveillance video showed the Defendant’s 

driving away from the gas station. The Defendant set fire to the victim’s vehicle within 

minutes of leaving the scene. The Defendant was only apprehended several hours later 

following a “Crime Stoppers tip.” In this case, there is ample evidence that the 

Defendant left the scene after stealing the victim’s vehicle and that he subsequently hid

out in the community to evade arrest. We conclude that the trial court properly instructed 

the jury as to flight. 

CONCLUSION

Upon consideration of the foregoing and the record as a whole, the judgments of 

the trial court are affirmed.

_________________________________ 

D. KELLY THOMAS, JR., JUDGE