IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

August 20, 2013 Session

STATE OF TENNESSEE v. TERRELL B. JOHNSON

Appeal from the Criminal Court for Knox County

No. 95006 Mary Beth Leibowitz, Judge

No. E2012-01946-CCA-R3-CD - Filed December 3, 2013

The Defendant, Terrell B. Johnson, was found guilty by a Knox County Criminal Court jury

of possession with the intent to sell one-half gram or more of cocaine in a drug-free zone and

possession with the intent to deliver one-half gram or more of cocaine in a drug-free zone,

Class B felonies. See T.C.A. § 39-17-417(a)(4), (c)(1) (possession with the intent to sell

Schedule II narcotics) (2010). The convictions were merged, and the Defendant, a Range

I, standard offender, was sentenced to twelve years, with a minimum of eight years to be

served. See id. § 39-17-432 (2010) (enhanced penalties for offenses committed in drug-free

zones). The sentence wasimposed consecutively to the Defendant’ssentencesin other cases.

On appeal, he contends that (1) the evidence is insufficient to support his conviction and (2)

the trial court erred in denying his motion to dismiss the indictment due to lost and destroyed

evidence pursuant to State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999). We affirm the judgment

of the trial court.

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

JOSEPH M. TIPTON, P.J., delivered the opinion of the court, in which ALAN E. GLENN and

ROGER A. PAGE, JJ., joined.

A. Philip Lomonaco, Knoxville, Tennessee, for the appellant, Terrell B. Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant

Attorney General; and Randall E. Nichols, District Attorney General; Jennifer H. Welch and

Sean McDermott, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION

At the trial, Knoxville Police Department Officer Philip Jinks testified as an expert

in drug investigation. He said that on July 19, 2006, he was conducting surveillance of a gas

station where multiple drug arrests had occurred and about which complaints of drug traffic

had been made. He said that Investigator Maupin and Sergeant Jason Hill were with him and

that they were parked in an AutoZone parking lot looking across the street at the gas station.

He said a car pulled into the parking lot and parked away from them, facing the store. He

said that neither person inside the car came out and that moments later, a second car pulled

partially into a space next to the first car and parked at a forty-five degree angle. He said the

Defendant, the driver of the second car, walked to the driver’s side of the other car. He said

the Defendant had a cell phone in his right hand and what appeared to be a plastic bag

sticking out of the top of his left fist.

Officer Jinks testified that based upon his experience, he thought he was about to

witness a drug transaction. He said that the Defendant leaned inside the driver’s window of

the other car and that he saw an exchange or hand gestures between the Defendant and the

driver. He said he saw their hands meet briefly but could not see what was exchanged. He

said the Defendant and the driver spoke briefly. He said the Defendant turned and walked

toward the open door of the Defendant’s car, at which point he and the other officers got out

to approach the Defendant. He stated that he announced they were police officers and that

the Defendant began moving more quickly toward the driver’s side of his car. He said that

he was at the front passenger seat of the Defendant’s car, that he told the front passenger he

was a police officer, and that the passenger reached under the seat. He thought the passenger

might be reaching for a weapon, and he told everyone to show their hands and drew his

weapon. He said another passenger was on the backseat of the Defendant’s car.

Officer Jinks testified that in his experience, the weight of drugs was always less with

laboratory testing than field testing. He said that in the field, drugs were weighed with the

packaging but that in a laboratory, they were not. He said that over time, crack cocaine lost

water weight from dehydration. He said the field weight of the drugs in this case was 2.5

grams and that the laboratory weight was 1.7 grams. He said that a street-level crack cocaine

transaction involved one-tenth to two-tenths gram of cocaine sold for $20 to $60. He said

that 1.7 grams would provide about seventeen rocks for an average crack cocaine user. He

said that 2.5 grams or 1.7 grams would be a large amount for “street level crack smokers.”

Officer Jinks testified that “ping tinging” referred to crushing a small amount of crack

cocaine, mixing it with marijuana, and smoking it in a cigarette or cigar. He said the typical

amount for ping tinging was one-tenth to three-tenths gram, not 2.5 grams or one-half gram.

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Officer Jinks testified that he confiscated a $20 crack cocaine rock from the

unidentified driver of the other car and packaged it with the drugs from the Defendant’s car.

He said that due to budget constraints, misdemeanor amounts of drugs were not tested unless

the case went to trial but that felony amounts of drugs were sent to the TBI Laboratory after

they were confiscated. He said he thought that the drugs confiscated from the unidentified

person had come from the Defendant. He said that the amount of drugs confiscated from the

Defendant’s car was consistent with possession for resale and that the amount confiscated

from the unidentified person was consistent with personal use. He said the rock confiscated

from the unidentified person was consistent with a $20 amount and estimated its weight at

one-tenth to three-tenths gram. He said he would not have approached the Defendant and

drawn his gun if the Defendant had left his car and gone into AutoZone.

On cross-examination, Officer Jinks testified that four-tenths gram of marijuana was

confiscated and sent to the TBI Laboratory. He acknowledged this was a small amount. He

acknowledged he did not record the unidentified person’s name when he combined the crack

cocaine confiscated from the person and the Defendant’s car. He said he was not the officer

who wrote the unidentified person’s citation and acknowledged he did not have a copy of the

citation. He agreed he and the other officers had been conducting surveillance for about four

hours before the Defendant arrived and said they had been watching activity across the street

but had not made any arrests. He said he noticed the car that arrived first because no one got

out and it had a Sevier County license plate. He agreed that three young, black males were

in the Defendant’s car and that the driver of the other car was black. He agreed that crack

cocaine was very addictive, that users might purchase a $20 rock and then purchase another

$20 rock an hour later, and that they might use eight to ten $20 rocks a day. He agreed three

people who smoked crack cocaine with cigarettes for an evening might use 1.7 or 2.5 grams

but said the crack cocaine that was confiscated was a large rock and a couple of smaller

rocks. He agreed the quantity of drugs was not so much that three people could not have

consumed it in one night. He said, though, it was unusual for crack cocaine users to plan

ahead and purchase the quantity they might use for an evening. He said that although he saw

the Defendant involved in the transaction, he went to the passenger side of the Defendant’s

car because he was closer and another officer went to the driver’s side. He agreed that

nothing was under the passenger seat.

Officer Jinks agreed he needed reasonable suspicion to stop the Defendant and said

it was provided by his seeing the Defendant’s hand-to-hand transaction. He said that it was

typical for drug dealers to keep drugs in plastic bags but that people who bought one or two

rocks typically did not carry it in plastic bags. He did not know the weight of a plastic

sandwich bag. He said that an “eight ball” was one-eighth of one ounce. He said that this

was about three and one-half grams but that an eight ball “on the street” typically weighed

2 to 2.5 grams. He said that typically, an eight ball was purchased by a street-level dealer to

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be sold in $20 amounts. He said it was not typical for users to buy an eight ball but agreed

it was possible for a user to consume several grams in twenty-four hours. He said the amount

found in the Defendant’s car was “a little less” than an eight ball. He thought Investigator

Maupin recovered the drugs from the unidentified person and gave them to Sergeant Hill.

He did not know who put the drugs in the bag with the drugs from the Defendant’s car. He

acknowledged that it was important to preserve evidence as it was found and said he would

not package drugs from two sources together. He did not know whether the bag was

weighed before or after the rock from the unidentified person was added. He acknowledged

that he did not know if the laboratory tested all the bag’s contents or only a portion. He did

not know why the citation for the unidentified person could not be found.

Officer Jinks testified that when the front passenger left the Defendant’s car, a halfsmoked marijuana cigarette fell from his lap. He agreed that he wanted everyone out of the

car but denied the officers focused on the car’s occupants because it was a “slow night.” He

said the backseat occupant of the Defendant’s car was not arrested because he did not have

any drugs. He agreed the cigarette was tested and contained marijuana. He said he did not

request that it be tested to determine if it contained cocaine.

On redirect examination, Officer Jinks testified that since the date of the Defendant’s

arrest, he had learned he could request limited testing of substances in misdemeanor cases.

He said the small quantity of marijuana was tested because it was sent to the laboratory with

the other drugs. He said that he had reasonable suspicion when he saw what he thought was

a drug transaction and that he had probable cause when he saw the drugs.

On recross-examination, Officer Jinks acknowledged that he did not have the Sevier

County license plate number of the unidentified person’s car, the person’s name, or the

citation the person received. He said that at the time, he was told he could not send a single

rock to the laboratory if it was a misdemeanor quantity. He acknowledged that the marijuana

belonging to the Defendant’sfrontseat passenger was a misdemeanor quantity butsaid it was

associated with the felony quantity of crack cocaine the Defendant had. On further redirect

examination, he identified the TBI Laboratory report, which stated that the crack cocaine

weighed 1.7 grams.

Knoxville Police Sergeant Jason Hill testified that in his employment, he had seen

drugs hundreds of times, including drugs for personal use and drugs for resale. Regarding

July 19, 2006, he said that he had been conducting surveillance of a Chevron gas station, an

AutoZone store, and alleys with Officer Jinks and Investigator Maupin for about four hours.

He said they were parked in the AutoZone parking lot. He said that around 8:00 p.m.,

Officer Jinks directed his attention to a car with a Sevier County license plate that pulled into

the AutoZone parking lot. He said a beige Chevrolet pulled in later. He said their focus

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shifted to the cars. He said that Officer Jinks was on the backseat of their van, that he was

in the driver’s seat, and that he saw the Defendant walk to the other car and have a

“handshake type of action.” He stated that he could not see it himself but that Officer Jinks

said he saw a cell phone in one of the Defendant’s hands and a plastic bag in the other. He

said the Defendant walked back to the driver’s side of the beige Chevrolet and did not go to

AutoZone’s door. He said the cars were “pretty much across the parking lot” from each

other. He stated that he went to the Sevier County car and that the other officers went to the

beige Chevrolet. He said that after he heard Officer Jinks tell someone to put up the person’s

hands and saw Officer Jinks draw his weapon, he went to the beige Chevrolet because he

thought danger existed. He said he drew his weapon and went to the driver’s side of the

Chevrolet where the Defendant was on the ground. He said Investigator Maupin was nearby.

He said he stepped toward the driver’s door of the Defendant’s car and saw a bag of eight

to ten rocks of an off-white substance that appeared to be crack cocaine in a “dug out” part

of the door near the handle. He said the packaging was consistent with the typical packaging

of crack cocaine. He did not recall if the Defendant made a statement that night. After his

recollection was refreshed with his affidavit, he said the Defendant said he “does that to get

by,” referring to the bag containing the rocks.

Sergeant Hill testified that typically, the police would not make arrests for open-air

drug sales when they were conducting surveillance. He said they tried to develop an

informant by following a person and conducting a traffic stop. He said that they confiscated

crack cocaine from the person in the Sevier County car and that the cocaine was packaged

in the Defendant’s bag. He said packaging the drugs together was an error that would no

longer happen. He said the rocks from both sources appeared to be of consistent color. He

said the gross weight of the bag and the drugs was 2.5 grams. He described the bag’s

contents as one large and several smaller rocks. He said the person in the Sevier County car

had one of the smaller rocks. He said that based upon his training and experience, it was his

opinion that the large rock weighed more than one-half gram. The bag of crack cocaine was

received as an exhibit. He said one of the other officers confiscated a marijuana cigarette,

which “was being stuffed” under the passenger-side seat. He agreed the Defendant did not

have the marijuana.

On cross-examination, Sergeant Hill testified that he did not see anything in the

Defendant’s hands. He acknowledged it could be difficult to carry the confiscated bag with

an inch or two of plastic sticking out of a person’s hand. He drew a diagram of the scene,

which was received as an exhibit. Sergeant Hill said that he was at the Sevier County car for

twenty to thirty seconds and had the driver put his hands on the steering wheel but that his

attention went to the Defendant’s car when he heard Officer Jinks yelling. He took the keys

from the Sevier County car and went to the Defendant’s car. He disagreed that his prior

testimony reflected that he went straight to the Defendant’s car and said counsel redirected

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his testimony when he began explaining. He said the officers had been in various locations

around the Chevron station since 4:00 p.m. He agreed he had testified incorrectly at a prior

hearing when he said the officers were backed into a parking place and that the Sevier

County car and the Defendant’s car pulled in one immediately after the other. He

acknowledged that at a previous hearing, he testified that the Defendant arrived before the

people in the other car. He acknowledged he did not get the Sevier County car’s driver’s

name or license plate number. He thought Investigator Maupin collected the drugs. He said

he probably put the drugs in the plastic bag because he was the person who “bagged” the

evidence. He acknowledged he did not have a copy of a citation given to the Sevier County

car’s driver, although citations had a carbon copy for an officer.

Sergeant Hill testified that a rock of crack cocaine could be as large as the vessel in

which it was cooked. He said that the amount of baking soda used to make crack cocaine and

the concentration of cocaine might vary and that the purity level of the drugs in this case was

not tested. He said smoking in a crack pipe or marijuana cigarette was the most common

method of ingesting crack cocaine. He said a $20 rock typically weighed about two-tenths

gram and agreed a crack user could use one gram or more per day. He said that according

to drug-addicted people he had interviewed, the effect of smoking a rock of crack cocaine

lasted thirty minutes to one hour, after which they sought more drugs. Regarding a cigar

received as an exhibit, he agreed it had a flat portion. He said that although he had spoken

with Officer Jinks, they did not talk about Officer Jinks’s testimony. He acknowledged that

his testimony at the suppression hearing was that when he and the other officers decided to

approach the Defendant’s car, he approached the Defendant and that the other officers went

to the Sevier County car. He conceded that his trial testimony was different.

On redirect examination, Sergeant Hill testified that he was confused about which car

arrived first, which car he approached first, and which way the officers’ van was pointed

because he had been in the AutoZone parking lot and other parking lots many times. He

agreed that he had never testified that no crack cocaine was in the Defendant’s car door or

that the amount of the drugs was not an amount that would be possessed for resale. He said

he had never testified that anyone other than the Defendant claimed ownership of the crack

cocaine in the Defendant’s car door. He identified an aerial photograph depicting AutoZone

and Chilhowee Park.

Knoxville Police Investigator Jeremy Maupin testified that he was a narcotics

investigator and member of the Drug Enforcement Agency (DEA) Task Force. He said he

had seen crack cocaine thousands of times. He said he and other officers were doing

surveillance of a Chevron station about which there had been numerous complaints of drug

activity. He said that he did not have a good view but that Officer Jinks narrated what he

saw. He said that after Officer Jinks gave them a “green light,” they went to the Defendant’s

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car and the Sevier County car. He said he went toward the driver’s side of the Defendant’s

car but heard Officer Jinks yelling at the passenger. He said that he thought there was a gun

in the car based on how the passenger acted and that he went to help Officer Jinks remove

and handcuff the passenger. He said that although he did not see it immediately, he

eventually saw a bag of an off-white rock-like substance in the “door handle part of the

driver’s door.”

Investigator Maupin testified that he went to the Sevier County car. He said that a

person in the car voluntarily produced a rock of crack cocaine and that it probably had a

value of $20. He did not recall the person’s name but said the person was cited for

misdemeanor drug possession. He said he attempted to locate the person’s name but was

unable to find it in the police’s system. He said that everyone from both cars was detained

because they did not know what had been shoved under the seat.

Investigator Maupin testified that in his experience, people addicted to crack cocaine

typically bought $20 to $50 amounts, used the drugs immediately, and sought more money

to buy additional drugs. He said that drug dealers typically kept their supply in a large rock

because they did not know the amount their next customer might want.

On cross-examination, Investigator Maupin testified that he did not recall the amount

of money the Defendant possessed. He agreed that police procedure was to seize the money

and record the amount. He did not recall seizing the Defendant’s car. He did not recall if

he wrote the citation for the person in the Sevier County car. He acknowledged the police

had not found a carbon copy of the citation. He did not remember getting the license of the

driver of the Sevier County car. He did not remember if he bagged the crack cocaine and

said the bag was given to Sergeant Hill. He agreed the amount the Defendant possessed was

less than an eight ball. He said that when an eight ball was purchased, it was usually

purchased by three or four people.

TBI Laboratory Forensic Scientist Supervisor Celeste White, an expert in forensic

chemistry, testified thatshe tested the evidence collected in this case. Without the packaging,

the white substance weighed 1.7 grams and tested positive for cocaine base. She said the

laboratory did not test the substance for its purity. The plant material tested positive for

marijuana.

On cross-examination, Ms. White testified that without the large rock of crack

cocaine, the remaining amount was about two-tenths gram. She described the crack cocaine

as a large rock, two small rocks, and some chips. Regarding the marijuana, she did not

separate it from the cigar. She said that the cigar did not appear to have much marijuana

inside and that cigars containing marijuana were sometimes rolled loosely, allowing the

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marijuana to fall out. On redirect examination, she said she did not see any crack cocaine

with the marijuana.

Knox County Director of Public Assembly Facilities Bob Polk testified that he

managed Chilhowee Park, a Knox County public park. He identified the park on a map. On

cross-examination, Mr. Polk identified the entrance to a day care facility on the map.

Trevor McMurray, an analyst with Knoxville’s Geographic Information System,

testified that he prepared a map for use in this case, which he identified. He said the map

depicted a 1000' buffer around 3100 East Magnolia Avenue, the address identified by other

evidence as AutoZone. He said the address was 907.4' from Chilhowee Park. He said the

measurement was accurate within 1'. On cross-examination, he said the measurement was

from the edge of the parcel at 3100 East Magnolia Avenue, not the center of the parking lot

or a particular parking space. On redirect examination, he agreed the distance between 3100

East Magnolia Avenue and Chilhowee Park was two city blocks.

Azikewe Awolowo, the Defendant’s cousin, testified for the defense that he was with

the Defendant on July 19, 2006, when they were stopped by the police. He said he was

fourteen years old at the time. He said the Defendant was taking him home when they

stopped at an auto parts store due to mechanical problems with the Defendant’s car. He said

he had a basketball tournament. He said that as the Defendant got out of the car, a van

“arrived on the set . . . pulled out their guns and told us to freeze.” He said he did not see the

Defendant get out of the car and sell drugs.

On cross-examination, Mr. Awolowo testified that he thought the Defendant was

going to go into the store for water or a car part, although he said he was unsure due to the

passage of time. He was unsure but thought they had been at his uncle’s house earlier. He

did not recall if the van pulled in as the Defendant was getting out of the car or if it was

already there, but he remembered four or five armed men getting out of it. He said they told

them to put up their hands or the men would shoot. He said that he was on the backseat and

that Dwight Schooler was on the front seat. He denied that the Defendant got out of the car

previously and said he and Mr. Schooler did nothing other than sit in the car. He did not see

Mr. Schooler reach under the front seat but heard someone say that if Mr. Schooler did not

keep his hands raised, the men would shoot. He denied that he used drugs that day, that they

planned to smoke marijuana and crack cocaine later, and that he had ever smoked marijuana

laced with crack cocaine. He said that he knew the Defendant smoked marijuana laced with

crack cocaine previously but that he did not see or know marijuana or crack cocaine was in

the car that day. He denied that the drugs were his. He stated that an officer said he would

shoot them in the head but could not identify the officer. He said smoke was coming from

the engine as they pulled into the parking lot.

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The jury found the Defendant guilty of possession with the intent to sell more than

one-half gram of cocaine within 1000' of a public park and possession with intent to deliver

more than one-half gram of cocaine within 1000' of a public park, and the trial court merged

the convictions. This appeal followed.

I

The Defendant contends that the evidence is insufficient to support his conviction.

The State counters that the evidence is sufficient. We agree with the State.

Our standard of review when the sufficiency of the evidence is questioned 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). We do not reweigh the

evidence but presume that the trier of fact 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 about witness credibility are resolved by the jury. See State v.

Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

“It is an offense for a defendant to knowingly . . . [p]ossess a controlled substance

with intent to manufacture, deliver or sell the controlled substance.” T.C.A. § 39-17-

417(a)(4). The Drug Free School Zone Act states that when an offense involving a

controlled substance, in violation of T.C.A. § 39-17-417,

occurs on the grounds or facilities of any school or within one

thousand feet (1,000') of the real property that comprises a

public or private elementary school, middle school, secondary

school, preschool, child care agency, or public library,

recreational center or park shall be punished one (1)

classification higher than is provided in § 39-17-417(b)-(i) for

such violation.

Id. § 39-17-432.

The Defendant argues that the State presented evidence that the edge of theAutoZone

property was 907.4' from Chilhowee Park but not that he was within 1000' of Chilhowee

Park. Although he does not contest that he possessed cocaine, he contends it was for his

personal use. He argues that because the police combined the drugs they confiscated from

his car and the driver of the Sevier County car, the evidence does not establish that he

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possessed a sufficient amount to be guilty of possession with the intent to sell. He also

argues that the Drug Free School Zone Act should not apply because the “application of the

statute was inconsistent with the stated purpose of the act.” He argues that Chilhowee Park

does not have a playground and was closing around the time of the cocaine transaction. 

In the light most favorable to the State, the evidence reflects that the Defendant

possessed 1.7 grams of cocaine. Although he contests the sufficiency of the proof of the

weight of the cocaine, the evidence reflects that even without the small rock confiscated from

the driver of the Sevier County car, the Defendant’s cocaine weighed one-half gram or more.

The weight and the large rock in the bag confiscated from the Defendant’s car were

consistent with the amount and form of cocaine possessed by a drug dealer, rather than a drug

user. Although the Defendant was not charged with selling cocaine, the proof of his

transaction with the unidentified person is evidence that he possessed the cocaine in his car

for sale or delivery.

Regarding the question whether the drug transaction took place within a Drug Free

School Zone, the Defendant argues that the State established the distance from the boundary

of the park to the boundary of the AutoZone property, not the distance from the place the

transaction took place to the boundary of the park. The State presented proof that the

boundary of the AutoZone property was 907.4' from the boundary of Chilhowee Park. The

trial court received as an exhibit an aerial photograph showing the 1000' periphery from the

edge of the AutoZone property, which extended beyond the border of the park into the park.

The court also received as an exhibit a diagram of the AutoZone parking lot showing the

locations of the Defendant’s car and the Sevier County car. In the hand-drawn diagram, the

Seiver County car is shown in a parking place in front of the front corner of AutoZone

furthest from Chilhowee Park. The Defendant’s car was parked at an angle in front of the

next two parking places closer to Chilhowee Park, near the center of the storefront. The

aerial map depicted the AutoZone building and the parking places in front of it. Cars were

visible in the parking places, which assists the viewer in determining the location of the

spaces.

The jury also heard evidence of the Defendant’s location within the parking lot.

Although the 907.4' measurement is from the edge of the AutoZone parking lot to the

Chilhowee Park border, the map depicts the full extent of the 1000' boundary, and the map

contains a scale that can be used to determine the distance beyond the edge of the 907.4'

measurement to the location where the Defendant possessed the drugs. From the evidence,

a rational jury could conclude beyond a reasonable doubt that the Defendant possessed drugs

with the intent to sell or deliver them when he was within 1000' of Chilhowee Park.

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Regarding the Defendant’s argument that the Drug Free School Zone Act should not

apply, we note that the Act’s plain language contains no limitation on its applicability to

opening hours of the facilities listed or the presence of a playground that might draw

children. See id. § 39-17-432; State v. Smith, 48 S.W.3d 159, 169 (Tenn. Crim. App. 2000)

(“The language of the Act unambiguously imposes enhanced criminal penalties for drug

offenses occurring inside the school zone regardless of the timing of the drug offense.”).

We note, as well, that the Defendant argues facts–the hours the park is open and whether it

has a playground–that were not received as evidence at the trial or the motion for a new trial.

Because the evidence is sufficient to support the conviction and the Defendant has not

established that the Drug Free School Zone Act did not apply, he is not entitled to relief.

II

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

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

unable to provide the citation given to driver of the Sevier County car in order to identify the

person and the rock of crack cocaine seized from the person. The State responds that the trial

court did not abuse its discretion in denying the motion to dismiss the indictment. We agree

with the State.

The Due Process Clause of the Fourteenth Amendment to the United States

Constitution and article I, section 8 of the Tennessee Constitution affords every criminal

defendant the right to a fair trial. See Johnson v. State, 38 S.W.3d 52, 55 (Tenn. 2001).

Accordingly, the State has a constitutional duty to furnish a defendant with exculpatory

evidence pertaining to the defendant’s guilt or innocence or to the potential punishment faced

by a defendant. See Brady v. Maryland, 373 U.S. 83, 87 (1963). Our supreme court has said,

“[T]he 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.” State v. Angela M. Merriman, --- S.W.3d ---, slip op. at 5 (Tenn. Aug. 16, 2013)

(citing Ferguson, 2 S.W.3d at 915-16).

In the jurisprudence that preceded Merriman, the question of the extent of the State’s

duty to preserve evidence was addressed with varying results. Merriman’s touchstone was

Ferguson. In Ferguson, our supreme court looked to Arizona v. Youngblood, 488 U.S. 51

(1988), as the “leading federal case regarding the loss or destruction of evidence.”

Ferguson, 2 S.W.3d at 915. Both Ferguson and Youngblood dealt with the loss or

destruction of potentially exculpatory evidence, not evidence that had an exculpatory value

that was apparent at the time it was lost or destroyed. The Court in Youngblood concluded

that “unless a criminal defendant can show bad faith on the part of the police, failure to

preserve potentially useful evidence does not constitute a denial of due process of law.” 488

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U.S. at 58. In Ferguson, our supreme court rejected the bad faith requirement and the

Youngblood analysis in its pure form because “proving bad faith on the part of the police

would be, in the least, extremely difficult,” and “the Youngblood analysis apparently permits

no consideration of the materiality of the missing evidence or its effect on the defendant’s

case.” Ferguson, 2 S.W.3d at 916. Instead, the court adopted a balancing approach and

stated that the critical inquiry in determining the consequences that flow from the State’s loss

or destruction of evidence which the accused contends would be exculpatory is whether “a

trial, conducted without the destroyed evidence, would be fundamentally fair[.]” Id. at 914.

The Ferguson court noted that the difficulty in determining the extent of the duty to

preserve evidence was recognized in California v. Trombetta, 467 U.S. 479 (1984). In

Trombetta, the United States Supreme Court said that the State’s duty extended only to

“evidence that might be expected to play a significant role in the suspect’s defense.”

Trombetta, 467 U.S. at 488. Trombetta said that in order for evidence to meet a

constitutional materiality standard, it “must both possess an exculpatory value that was

apparent before the evidence was destroyed, and be of such a nature that the defendant would

be unable to obtain comparable evidence by other reasonably available means.” Id. at 488-

89. Notwithstanding its consideration of Trombetta, the Ferguson court did not adopt its

standard for constitutional materiality. Ferguson, 2 S.W.3d at 918. Rather, Ferguson

imposed the duty on the State to preserve “potentially exculpatory evidence.” Noting that

the evidence in question “was probably of marginal exculpatory value,” the court

nevertheless said “it was at least ‘material to the preparation of the defendant’s defense’ and

might have led the jury to entertain a reasonable doubt about [the defendant’s] guilt.” Id.

The court said that the State breached its duty to preserve the evidence and conducted the

balancing analysis using the three factors we have noted above. See id. at 917.

Following Ferguson, this court looked on occasion to the Trombetta standard in

determining if the State had a duty to preserve evidence which the accused contended was

exculpatory, despite noting that the court in Ferguson only “seemingly cited with approval”

the standard for constitutional materiality stated in Trombetta. See State v. Coulter, 67

S.W.3d 3, 54-55 (Tenn. Crim. App. 2001) (determining that the State had no duty to preserve

the missing evidence because drawing a conclusion that it had any exculpatory value would

be “an exercise in pure speculation”); see also State v. Ronnie D. Sims, No. M2004-02491-

CCA-R3-CD, slip op. at 9 (Tenn. Crim. App. Nov. 22, 2005) (“The mere possibility of

exculpatory content does not trigger a finding that the State failed in its general duty to

preserve evidence under Ferguson.”), perm. app. denied (Tenn. Mar. 30, 2006). In other

cases, however, this court has said that the State had a duty to preserve evidence without

finding that the evidence had apparent exculpatory value. See State v. Jeremy Keeton, No.

M2009-01928-CCA-R3-CD (Tenn. Crim. App. June 26, 2012) (citing other unpublished

decisions that considered the State’s duty to preserve evidence without determining that the

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evidence had apparent exculpatory value); See State v. Lonnie T. Lawrence and Patrick D.

Pickett, No. E2007-00114-CCA-R9-CD, slip op. at 13 (Tenn. Crim. App. Mar. 17, 2008)

(holding that although itemsseized from a methamphetamine laboratory may or may not have

revealed fingerprints, the State had a duty to preserve the evidence that was not tainted or

dangerous to collect and preserve because the evidence was “at least, material to the

preparation of their defense”); State v. Sheri Lynn Cox, No. E2005-00240-CCA-R3-CD, slip

op. at 4 (Tenn. Crim. App. Dec. 12, 2005) (“While the exact nature of the evidence, whether

exculpatory or inculpatory, is unclear, the receipt books were, at the very least, material to

the preparation of the appellee’s defense. . . . Therefore, the State had the duty to preserve

the evidence.”); State v. Thomas W. Cothran, No. M2005-00559-CCA-R3-CD, slip op. at 11

(Tenn. Crim. App. Nov. 29, 2005) (holding that the State had a duty to preserve a beer carton

and beer cans found at the scene of a traffic accident involving an intoxicated driver, despite

stating that the defendant failed to address adequately how the evidence would have been

exculpatory), perm. app. denied (Tenn. May 1, 2006); see also State v. Benjamin Hernandez,

III, No. M2000-00225-CCA-R3-CD, slip op. at 7-9 (Tenn. Crim. App. Nov. 21, 2001)

(stating that the State has a duty to preserve all evidence subject to discovery and inspection

under Tennessee Criminal Procedure Rule 16 and citing Ferguson but omitting any reference

to Trombetta or a need for the evidence to have an apparent exculpatory value before a duty

to preserve the evidence arises).

The unpublished decisions notwithstanding, this court was, until the Merriman

decision, bound by Coulter, a published case. See Coulter, 67 S.W.3d at 54-55. Coulter

relied on Ferguson to conclude that in providing the Defendant with a constitutionally

fundamentally fair trial, the State had no duty to preserve evidence that lacked apparent

exculpatory value before the evidence was destroyed and for which no comparable evidence

could be obtained by a defendant through reasonably available means. Id. at 54 (citing

Ferguson, 2 S.W.3d at 917). Though Merriman did not explicitly address this court’s

Coulter decision, Merriman rejects the principle for which Coulter stands. As we have

stated, Merriman provides that the State has a duty to preserve evidence with potential

exculpatory value and for which comparable evidence is not available through reasonably

available means. Angela M. Merriman, --- S.W.3d at ---, slip op. at 14. We conclude that

this court’s opinion in Coulter is no longer good law on this point, and we will consider the

extent of the State’s duty to preserve evidence in accord with Merriman.

Turning to the present case, we begin with determining whether the State had a duty

to preserve the evidence. Id., --- S.W.3d at ---, slip op. at 14; Ferguson, 2 S.W.3d at 917.

If the State had a duty to preserve the evidence and failed in that duty, the court should

consider the following factors in determining the consequences of that error: (1) the degree

of negligence involved, (2) the significance of the lost or destroyed evidence, considered in

light of the probative value and reliability of secondary or substitute evidence that remains

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available, and (3) the sufficiency of the other evidence used at the trial to support the

conviction. Ferguson, 2 S.W.3d at 917. If the trial court determines that a trial without the

missing evidence would not be fundamentally fair, then the trial court may dismiss the

charges or craft such orders as may be appropriate to protect the defendant’s right to a fair

trial. Id. Review of a trial court’s ruling on the fundamental fairness of a trial without the

missing evidence is de novo. Angela M. Merriman, --- S.W.3d at ---, slip op. at 18. Review

of the appropriateness of the remedy provided by the trial court is for abuse of discretion.

Id.

A. Duty to Preserve the Citation Containing the Identity of the Unknown Person

We note that the Defendant was charged with possession with the intent to sell and

possession with the intent to deliver cocaine. He admitted that the drugs found in his car

were his, but he contested that he sold drugs to the unidentified person. The identity of the

person cited was material to the defense because the person allegedly was involved in a drug

transaction with the Defendant and the Defendant’s engaging in a sale was relevant to show

his intent to sell or deliver drugs. See State v. Steven O. Hughes-Mabry, No. E2011-02255-

CCA-R3-CD, slip op. at 23 (Tenn. Crim. App. May 16, 2013) (concluding that the State had

a duty to preserve the identity of a participant in an attempted drug transaction with the

defendant and noting that the evidence obtained during a search of the person was used

against the defendant at the trial), perm. app. denied (Tenn. Oct. 16, 2013). Given that the

Defendant’s proof was that he never approached the Sevier County car, we conclude that the

Defendant had no way of identifying the person other than through the citation. The

Defendant was unable to obtain comparable evidence through other reasonably available

means.

B. Duty to Preserve the Drugs from the Unidentified Person

Regarding the Defendant’s allegation that the State failed to preserve the drugs

confiscated from the unidentified person, we note that although there technically was no

failure to preserve the drugs, the drugs were not individually preserved in a manner that

separately identified them and would permit testing of the quantity and content of the

individual rock from the unknown person. Had the rock from the unidentified person been

separately preserved and determined upon testing not to be crack cocaine, this evidence

would have supported the defense that the Defendant’s drugs were for personal use, not sale

or delivery. We note that there was no comparable evidence from another source.

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C. Analysis of the Ferguson Factors

We conclude that because the evidence possibly might have helped show that the

Defendant possessed the drugs for personal use, not sale and delivery, the State had a duty

to preserve the evidence. Regarding the remaining Ferguson factors, negligence is presumed

from lost evidence. Ferguson, 2 S.W.3d at 917 n.10. The record does not indicate otherwise.

Considering the significance of the evidence, we again note that had the evidence been

preserved, it might have shown that the Defendant possessed crack cocaine for his personal

use. We acknowledge, though, that the Defendant had a large quantity of crack cocaine in

addition to the amount he allegedly sold to the unidentified person and the evidence that most

of the cocaine was a single large rock and was packaged consistently with how drug dealers

kept drugs. We conclude that the missing evidence had some significance. Finally,

considering the sufficiency of the remaining evidence, we conclude that the evidence of the

Defendant’s guilt was strong. We also note that the Defendant offered proof from one of his

passengers that the Defendant did not approach the Sevier County car, but the jury rejected

this evidence. Upon balance, we conclude that the evidence implicated the Defendant’s right

to a fundamentally fair trial.

The question becomes one of the proper remedy to preserve the Defendant’s right to

a fundamentally fair trial. In that regard, we conclude that the trial court did not abuse its

discretion in denying the Defendant’s motion to dismiss the indictment. To the extent that

the unknown person’s rock might have been available, if preserved separately, to show that

it was a substance other than crack cocaine, we note that a portion of the drugs in the package

containing both the Defendant’s drugs and the unknown person’s rock was tested and

determined to be cocaine. In view of the Defendant’s other evidence that he possessed the

cocaine for personal use and the testimony of the officers about the Defendant’s actions and

the quantity, form, and packaging of the drugs found in the Defendant’s car, dismissal was

not required in order to protect the Defendant’s right to a fundamentally fair trial.

The Defendant argues briefly that the trial court should have, at a minimum, given a

jury instruction regarding the State’s failure to preserve the evidence. As the court noted in

Merriman, Tennessee Pattern Jury Instructions–Criminal section 42.23 provides the

following instruction:

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

may possess exculpatory value. Such evidence must be of 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.

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If, after considering all 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.

See Angela M. Merriman, --- S.W.3d ---, slip op. at 18 n.12, Ferguson, 2 S.W.3d 917 n.11.

Although we have concluded that fundamental fairness does not mandate a dismissal,

we believe that the absent evidence instruction was an appropriate intermediate remedy to

ensure the Defendant received a fair trial despite the State’s failure to preserve the citation,

the identity of the driver of the Sevier County car, and the rock confiscated from the

unknown person. We conclude, though, that the lack of a Ferguson instruction was harmless

in view of the strength of the State’s case. We note that in addition to the proof of the

amount, form, and packaging of the drugs the Defendant possessed, the State offered

eyewitness testimony from Officer Jinks that he saw the Defendant approach and speak to

the driver of the Sevier County car and engage in an exchange or hand gestures that appeared

to be a drug transaction. See T.R.A.P. 36(b).

In consideration of the foregoing and the record as a whole, the judgment of the trial

court is affirmed.

___________________________________

JOSEPH M. TIPTON, PRESIDING JUDGE

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