IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs March 24, 2010

STATE OF TENNESSEE v. WILLIAM ROBERT WILSON

Appeal from the Criminal Court for Putnam County

No. 08-0464 Leon Burns, Judge

No. M2009-01146-CCA-R3-CD - Filed July 26, 2010

Appellant William Robert Wilson, was arrested for driving under the influence (“DUI”) after

being observed driving erratically by a deputy with the Putnam County Sheriff’s Office. The

Putnam County Grand Jury indicted Appellant for one count of DUI; one count of DUI, third

offense; one count of driving on a revoked license; and one count of violation of the implied

consent law. Following a jury trial and his waiver of proof regarding DUI, third offense,

Appellant was convicted of DUI and driving on a revoked license and entered a plea to DUI,

third offense. The trial court sentenced Appellant to eleven months and twenty-nine days

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for DUI, third offense and five months and twenty-nine daysfor driving on a revoked license.

These sentences were ordered to be served concurrently with service of 130 days in

confinement and the remainder in a community-based alternative program. Appellant

appeals arguing that: (1) the evidence was insufficient to support his conviction for DUI; (2)

the trial court erred in denying Appellant’s motion to dismiss his case because the officer did

not have reasonable suspicion to support the traffic stop; (3) the trial court erred in denying

Appellant’s motion for continuance; and (4) the trial court erred in denying Appellant’s

request for a jury instruction on the State’s duty to preserve evidence. We have reviewed the

record on appeal and have found no basis for reversal. Therefore, we affirm the judgments

of the trial court.

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

Affirmed.

JERRY L. SMITH, J., delivered the opinion of the court, in which THOMAS T. WOODALL and

ROBERT W. WEDEMEYER, JJ., joined.

David N. Brady, District Public Defender and Allison M. Rasbury, Assistant Public

Defender, Cookeville, Tennessee, for the appellant, William Robert Wilson.

It appears from the transcript that the implied consent charge was not submitted to the jury.

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Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney

General; Bill Gibson, District Attorney General, and Marty Savage, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

Factual Background

On October 7, 2007, Deputy Brandon Masters with the Putnam County Sheriff’s

Department was traveling on Nashville Highway. It was about 7:50 in the evening. As

Deputy Masters reached a straight stretch of road, he observed an oncoming vehicle that was

traveling towards him in his lane. Deputy Masters swerved to the side of the road and almost

went into a ditch. Deputy Masters immediately turned around and began to follow the

vehicle. As he turned around, he noticed the vehicle swerve across the center line then back

into its own lane.

He followed the vehicle for a mile and a half to two miles. During that time, Deputy

Masters observed the vehicle swerve back and forth within its own lane. The deputy

activated his lights and pulled the vehicle over in the parking lot of the PFS Market. As

Deputy Masters approached the vehicle, he noticed an “overwhelming smell of alcohol”

coming from Appellant and the vehicle. When he asked Appellant if he had been drinking,

Appellant replied that he had consumed three beers and one mixed drink. Deputy Masters

also noticed that Appellant’s speech was slightly slurred and that Appellant’s eyes were red.

Deputy Masters asked Appellant for his driver’s license, proof of insurance and proof

of registration. Appellant was unable to produce a driver’s license and instead provided an

identification card. Deputy Masters later determined that Appellant’s license had been

revoked. At this point Deputy Masters asked Appellant to get out of the vehicle because he

wanted Appellant to perform some field sobriety tests. Appellant informed the deputy that

he had back trouble and a bad knee. When Deputy Masters asked Appellant what he did for

a living, Appellant informed the deputy that he worked in construction.

Deputy Masters administered three field sobriety tests. He first administered the

“alphabet test.” In this test, Deputy Masters asked Appellant to recite the alphabet from the

letter “C” to the letter “T.” Appellant made more than one attempt. Appellant was unable

to remember the letter “H” the first few times he attempted to recite the alphabet. When he

got past the letter “H,” Appellant skipped several letters leading up to the letter “T.” The

second test was the “finger dexterity test.” In this test, Deputy Masters asked Appellant to

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touch each finger and count “one, two, three, four, four, three, two, one.” Deputy Masters

demonstrated the test and asked Appellant to complete the sequence three times. While

attempting the test, Appellant missed the counts and even missed touching his fingers.

Appellant was not able to perform the test in a satisfactory manner. The third test was the

nine-step walk and turn test. For this test, the individual is to take nine heel-to-toe steps in

a straight line, turn around, and return to the starting point. The individual is to keep their

arms at their sides throughout the test. While attempting this test, Appellant’s heel and toe

touched only one time, Appellant’s feet were out of line, and at one point, Appellant lost his

balance. Appellant did have to raise his arms to maintain his balance.

After the completion of the field sobriety tests, Deputy Masters determined that

Appellant was impaired. Appellant was placed under arrest for DUI. Deputy Masters

explained the implied consent law. Appellant initially agreed to a blood alcohol test.

However, on the way to the hospital to have blood drawn, Appellant changed his mind and

stated that he wanted to have a breath test instead. Deputy Masters proceeded to the jail

where there was a breathalyzer machine. When they arrived at the jail, Appellant refused to

participate in either test. Appellant signed an implied consent form stating that he refused

to take a blood alcohol test.

Deputy Masters’s patrol car was outfitted with a video recorder. The video recorder

automatically activates when the patrol car’s blue lights are activated. The video recorder

can also be activated manually. When Deputy Masters turned to follow Appellant, he

activated the video recorder. The deputy believed that the video recorder was working

throughout the traffic stop. However, he later learned that a portion of the traffic stop was

not recorded. He specifically stated that he neither stopped the recorder nor erased the video

tape of the stop.

Appellant testified on his own behalf. Throughout histestimony, he contradicted most

of Deputy Masters’s testimony. Appellant denied swerving into the on-coming lane of

traffic. He stated that he never saw a police car traveling in the opposite lane. In addition,

Appellant maintained that if Deputy Masters had swerved to avoid Appellant’s oncoming

vehicle, Deputy Masters would have ended up in the ditch because the ditch began where the

white line was on the road. Appellant also stated that the amount of time that Deputy

Masters claimed to have followed Appellant was not sufficient to catch up to him at the PFS

Market parking lot. Appellant testified that he was driving to the PFS Market and that he did

not see Deputy Masters until he pulled into the parking lot.

Appellant asserted that he had given Deputy Masters his driver’s license and that

Deputy Masters returned it to him. Appellant stated that he did not know at the time of the

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traffic stop that his license had been revoked. Appellant also denied that he told Deputy

Masters he had consumed three beers and a mixed drink.

Appellant admitted that he agreed to perform the field sobriety tests. He stated that

he informed Deputy Masters that he had injured his knee and would have difficulty

performing the tests. Appellant stated at trial that he injured his knee and his back while in

the army in the early 1990’s. Appellant stated that he had reinjured his back about six

months before the traffic stop in question. Appellant admitted that his knee and back injury

would not affect his ability to perform the alphabet test or the finger dexterity test.

Appellant testified that there were reasons for his poor performance on the field

sobriety tests. Appellant stated that he performed poorly on the alphabet test because he was

tired after a long day at work and nervous about the traffic stop. On the walk and turn test,

Appellant asserted that he reinjured his knee during the test, but he admitted he did not tell

Deputy Masters about reinjuring his knee. Appellantstated that Deputy Masters’sinstruction

regarding the finger dexterity test were vague and that he performed the test three times even

though Deputy Masters told him to complete the sequence “a number of times.”

Appellant testified at trial that his knee and back injuries do not interfere with his job

in construction because he is mainly a supervisor and mostly avoids any heavy lifting. He

also stated that he wears a brace on his knee while on the job.

With regard to the implied consent form, Appellant admitted that he had signed the

form. He asserted that he refused to take the breathalzyer test because he was concerned

about the accuracy of the test. He also stated that he did not trust Deputy Masters, so he

refused to take either test.

In June 2008, the Putnam County Grand Jury indicted Appellant for one count of DUI;

one count of DUI, third offense; one count of driving on a revoked license; and one count

of violation of the implied consent law. On January 21, 2009, Appellant filed a motion to

dismiss the case. In his motion, he alleged that the traffic stop was illegal and, therefore, all

evidence obtained as a result of the stop was inadmissible. The trial court held a hearing on

the motion on April 6, 2009. At the conclusion of the hearing, the trial court denied

Appellant’s motion to dismiss.

A jury trial was held on April 9, 2009. The jury found Appellant guilty of DUI and

driving on a revoked license. Appellant waived further proof concerning the DUI, third

offense and entered a plea to DUI, third offense. The trial court held a separate sentencing

hearing on May 4, 2009. The trial court sentenced Appellant to eleven months and twentynine days for DUI, third offense and five months and twenty-nine days for driving on a

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revoked license. These sentences were ordered to be served concurrently with service of 130

days in confinement and the remainder in a community-based alternative program.

Appellant filed a timely notice of appeal.

ANALYSIS

Sufficiency of the Evidence

Appellant argues that the evidence was insufficient to convict him of DUI because the

State failed to prove that he was under the influence of an intoxicant. Appellant does not

challenge the use of two prior DUI convictions to support a conviction of DUI, third offense.

The State argues that the evidence was sufficient to support his conviction.

When a defendant challenges the sufficiency of the evidence, this Court is obliged to

review that claim according to certain well-settled principles. A verdict of guilty, rendered

by a jury and “approved by the trial judge, accredits the testimony of the” State’s witnesses

and resolves all conflicts in the testimony in favor of the state. State v. Cazes, 875 S.W.2d

253, 259 (Tenn. 1994); State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, although the

accused is originally cloaked with a presumption of innocence, the jury verdict of guilty

removes this presumption “and replaces it with one of guilt.” State v. Tuggle, 639 S.W.2d

913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with the defendant to

demonstrate the insufficiency of the convicting evidence. Id. The relevant question the

reviewing court must answer is whether any rational trier of fact could have found the

accused guilty of every element of the offense beyond a reasonable doubt. See Tenn. R. App.

P. 13(e); Harris, 839 S.W.2d at 75. In making this decision, we are to accord the State “the

strongest legitimate view of the evidence as well as all reasonable and legitimate inferences

that may be drawn therefrom.” See Tuggle, 639 S.W.2d at 914. As such, this Court is

precluded from re-weighing or reconsidering the evidence when evaluating the convicting

proof. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews,

805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Moreover, we may not substitute our own

“inferences for those drawn by the trier of fact from circumstantial evidence.” Matthews,

805 S.W.2d at 779. Further, questions concerning the credibility of the witnesses and the

weight and value to be given to evidence, as well as all factual issues raised by such

evidence, are resolved by the trier of fact and not the appellate courts. State v. Pruett, 788

S.W.2d 559, 561 (Tenn. 1990).

Tennessee Code Annotated section 55-10-401(a)(1) states, “It is unlawful for any

person to drive or to be in physical control of any automobile or other motor driven vehicle

on any public roads . . . while: (1) Under the influence of any intoxicant . . . .” On appeal,

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Appellant argues that the evidence, consisting of Deputy Masters testimony and Appellant’s

testimony, was insufficient to meet the requirements of this statute. However, as stated

above, the trier of fact makes the final determination as to the credibility of the witnesses and

the weight and value to be given to evidence. Pruett, 788 S.W.2d at 561. Clearly, the jury

determined the officer’s testimony to be more credible and have more weight than that of

Appellant’s testimony.

When viewing the evidence in a light most favorable to the State, Deputy Masters saw

Appellant crossing the center line as he was driving toward the deputy. As Deputy Masters

followed Appellant, he saw Appellant swerve within his own lane. After pulling Appellant

over, Deputy Masters smelled alcohol on Appellant. He administered the alphabet test, the

finger dexterity test, and the walk-and-turn. Appellant was unable to successfully perform

any of the three tests. This is adequate evidence for a reasonable trier of fact to conclude that

Appellant was under the influence of an intoxicant.

Therefore, this issue is without merit.

Motion to Dismiss

Appellant argues that the trial court erred in denying his motion to dismiss the case

against him because Deputy Masters did not have reasonable suspicion that a traffic violation

had taken place and, therefore, the traffic stop was illegal. The State argues that Appellant’s

erratic driving was a sufficient basis upon which Deputy Masters would have reasonable

suspicion to initiate the traffic stop.

Appellant filed a motion to dismiss his case because the stop was illegal and all

evidence obtained as a result of the stop is inadmissible. The trial court held a hearing on

Appellant’s motion. At the hearing on the motion, Deputy Masters testified that Appellant

crossed the center line as he was approaching Deputy Masters. Deputy Masters testified that

he actually had to swerve to avoid being hit by Appellant because Appellant was a quarter

to a third in Deputy Masters’s lane. In addition, Deputy Masters testified that while he was

backing out of a driveway to turn around, he saw Appellant swerve into the lane of oncoming

traffic a second time. Furthermore, Deputy Masters testified that as he followed Appellant

he saw Appellant swerve back and forth within the lane. Deputy Masters’s testimony was

the sole evidence presented at the hearing. It appears from the transcript the video recording

of Appellant’s driving was not submitted into evidence at the hearing. The trial court denied

the motion immediately following the hearing, finding that Deputy Masters had reasonable

suspicion to stop Appellant.

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Appellant’s “motion to dismiss” is for all intents and purposes a motion to suppress.

For this reason, we will review the motion as a motion to suppress. This Court will uphold

a trial court’s findings of fact in a suppression hearing unless the evidence preponderates

otherwise. State v. Hayes, 188 S.W.3d 505, 510 (Tenn. 2006) (citing State v. Odom, 928

S.W.2d 18, 23 (Tenn. 1996)). “[A]n appellate court’s review of the trial court’s ruling is not

limited to the record of the suppression hearing but extends to the entire record of

proceedings . . . .” State v. McCrary, 45 S.W.3d 36, 41 (Tenn. Crim. App. 2000) (citing State

v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998)). On appeal, “[t]he prevailing party in the

trial court is afforded the ‘strongest legitimate view of the evidence and all reasonable and

legitimate inferences that may be drawn from that evidence.’” State v. Carter, 16 S.W.3d

762, 765 (Tenn. 2000) (quoting State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998)).

“Questions of credibility of the witnesses, the weight and value of the evidence, and

resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of

fact.” Odom, 928 S.W.2d at 23. Our review of a trial court’s application of law to the facts

is de novo, with no presumption of correctness. State v. Walton, 41 S.W.3d 75, 81 (Tenn.

2001) (citing State v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999); State v. Yeargan, 958

S.W.2d 626, 629 (Tenn. 1997)). When the trial court’s findings of fact are based entirely on

evidence that does not involve issues of witness credibility, however, appellate courts are as

capable as trial courts of reviewing the evidence and drawing conclusions, and the trial

court’s findings of fact are subject to de novo review. State v. Binette, 33 S.W.3d 215, 217

(Tenn. 2000).

Both the Fourth Amendment to the United States Constitution and article I, section

7 of the Tennessee Constitution protect individuals against unreasonable searches and

seizures by government agents. See U.S. Const. amend. IV; Tenn. Const. art. I, § 7. “These

constitutional provisions are designed to ‘safeguard the privacy and security of individuals

against arbitrary invasions of government officials.’” Keith, 978 S.W.2d at 865 (quoting

Camara v. Municipal Court, 387 U.S. 523, 528, 87 S. Ct. 1727 (1967)). The Tennessee

Supreme Court has noted previously that “[a]rticle I, [section] 7 [of the Tennessee

Constitution] is identical in intent and purpose with the Fourth Amendment [of the United

States Constitution],” and that federal cases applying the Fourth Amendment should be

regarded as “particularly persuasive.” Sneed v. State, 423 S.W.2d 857, 860 (Tenn. 1968).

Under both constitutions, “a warrantless search or seizure is presumed unreasonable,

and evidence discovered as a result thereof is subject to suppression unless the State

demonstrates that the search or seizure was conducted pursuant to one of the narrowly

defined exceptions to the warrant requirement.” Yeargan, 958 S.W.2d at 629 (citing

Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S. Ct. 2022 (1971)); see also State

v. Garcia, 123 S.W.3d 335, 343 (Tenn. 2003). A police officer’s stop of an automobile

constitutes a seizure under both the United States and Tennessee Constitutions. See Whren

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v. United States, 517 U.S. 806, 809-10, 116 S. Ct. 1769 (1996); Michigan Dep’t of State

Police v. Sitz, 496 U.S. 444, 450, 110 S. Ct. 2481 (1990); Delaware v. Prouse, 440 U.S. 648,

653, 99 S. Ct. 1391 (1979); State v. Vineyard, 958 S.W.2d 730, 734 (Tenn. 1997). Further,

our supreme court has stated that “[w]hen an officer turns on his blue lights, he or she has

clearly initiated a stop” and the vehicle’s driver is “seized” within the meaning of the Terry

v. Ohio, 342 U.S. 1, 72 S. Ct. 1 (1968) decision. State v. Pulley, 863 S.W.2d 29, 30 (Tenn.

1993). Therefore, to be considered “reasonable,” a warrantless stop of a driver must fall

under an exception to the warrant requirement.

One of these narrow exceptions occurs when a law enforcement officer stops an

automobile based on probable cause or reasonable suspicion that a traffic violation has

occurred. Whren, 517 U.S. at 810; State v. Randolph, 74 S.W.3d 330, 334 (Tenn. 2002);

Vineyard, 958 S.W.2d at 734. If the officer has probable cause to believe that a traffic

violation has occurred, any seizure will be upheld even if the stop is a pretext for the officer’s

subjective motivations in making the stop. See Whren, 517 U.S. at 813-15; Vineyard, 958

S.W.2d at 734-35. Another such exception occurs when a law enforcement officer initiates

an investigatory stop based upon specific and articulable facts that the defendant has either

committed a criminal offense or is about to commit a criminal offense. Terry, 392 U.S. at

20-21; Binette, 33 S.W.3d at 218. This narrow exception has been extended to the

investigatory stop of vehicles. See United States v. Brignoni-Ponce, 422 U.S. 873, 881, 95

S. Ct. 2574 (1975); State v. Watkins, 827 S.W.2d 293, 294 (Tenn. 1992). In evaluating

whether the law enforcement officer had reasonable suspicion to justify an investigatory stop,

this Court must consider the totality of the circumstances, which includes the personal

observations and rational inferences and deductions of the trained law enforcement officer

making the stop. See Terry, 392 U.S. at 21; Binette, 33 S.W.3d at 218; Watkins, 827 S.W.2d

at 294. Objective standards apply, rather than the subjective beliefs of the officer making the

stop. State v. Day, 263 S.W.3d 891, 903 (Tenn. 2008); State v. Norword, 938 S.W.2d 23, 25

(Tenn. Crim. App. 1996). “An officer making an investigatory stop must be able to articulate

something more than an ‘inchoate and unparticularized suspicion or ‘‘hunch.’’” Day, 263

S.W.3d at 902 (quoting Terry, 392 U.S. at 27). This includes, but is not limited to, objective

observations, information obtained from other police officers or agencies, information

obtained from citizens, and the pattern of operation of certain offenders. Id.; Watkins, 827

S.W.2d at 294 (citing United States v. Cortez, 449 U.S. 411, 418, 101 S. Ct. 690(1981)). A

court must also consider the rational inferences and deductions that a trained police officer

may draw from the facts and circumstances known to him. Terry, 392 U.S. at 21.

In the case herein, it is clear that Appellant was “seized” within the meaning of the

state and federal Constitutions. Deputy Masters testified that he initiated a traffic stop of

Appellant’s vehicle. Thus, in order for the stop to be constitutionally valid, Deputy Masters

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must have at least had reasonable suspicion, supported by articulable facts, that Appellant

had committed, or was about to commit an offense.

Appellant relies upon State v. Binette, 33 S.W.3d 215 (Tenn. 2000), and State v. Frank

Edward Davidson, No. E2007-02841-CCA-R3-CD, 2008 Tenn. Crim. App. LEXIS 737

(Tenn. Crim. App., at Knoxville, Sept. 10, 2008) (no Westlaw cite available). In Binette, a

police officer stopped the defendant after following him for several minutes while

videotaping the defendant’s driving. 33 S.W.3d at 216. The trial court held a hearing on the

defendant’s motion to suppress based upon whether the officer had reasonable suspicion to

stop the defendant. Id. At the hearing, the officer did not testify, and the videotape made

immediately before the stop was the only evidence introduced. Id. The defendant later pled

guilty to DUI but reserved a certified question of law as to whether the officer had reasonable

suspicion to support the stop. Id. On appeal, our supreme court held that the videotape did

not show erratic driving on the part of the defendant and, therefore, the officer did not have

a reasonable suspicion to stop the defendant. Id.

Frank Edward Davidson also concerns the investigatory stop of a motorist and a

recording of the defendant driving immediately prior to the stop. See 2008 Tenn. Crim. App.

LEXIS 737. In this case, a witness called the police to report that a possibly intoxicated

individual had gotten into a maroon or red car. Id. at *2. An officer saw a car fitting the

description nearby. The officer began to follow the car and saw that the driver failed to

signal when changing lanes and crossed the center line four times. Id. at *3. The officer

stopped the driver and arrested the defendant for DUI. The defendant subsequently filed a

motion to suppress. Id. at *2. At the hearing, the officer testified, and the trial court viewed

the video recording. The trial court granted the motion to suppress stating in its findings that

it did not appear that the defendant crossed the yellow line. Id. at *3. On appeal, this Court

held that the trial court’s decision should be reversed. Id. at *15. This Court stated that after

viewing the videotape it found that the defendant did actually veer over the yellow line. This

evidence in conjunction with the officer’s testimony and the information reported to the

police dispatcher were enough to find reasonable suspicion to support the stop. Id. at *14-15.

Appellant argues that these cases support his argument because the video recording

of his driving “does not show any bad driving at all.” He states that the officer relied upon

his driving to initiate the stop. The fact that the video recording shows that he was not

driving poorly means that the officer did not have reasonable suspicion to stop Appellant.

The video recording was not presented at the hearing on the motion but was

introduced at trial. However, as stated above, this Court is not limited to the record of the

suppression hearing when reviewing the trial court’s decision. Therefore, we are able to

view the video recording in our review.

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We have reviewed the video recording and conclude that it depicts Appellant weaving

slightly within the lane. However, at the hearing, Deputy Masters testified that he personally

saw Appellant cross the center line on two occasions in addition to weaving within his lane

of traffic. Although these events are not visible on the video they are part of the totality of

the circumstances relevant to our decision as to the validity of the traffic stop.

This Court has previously held that an officer’s observation of a defendant crossing

over the center line in addition to weaving within his own lane is sufficient reasonable

suspicion to support an investigatory stop and cause the denial of a motion to suppress. State

v. Jody Glen Loy, No. E2006-02206-CCA-R3-CD, 2008 WL 2229259, at *5 (Tenn. Crim.

App., at Knoxville, May 30, 2008).

We conclude that the video recording and the testimony of Deputy Masters

demonstrate that there was reasonable articulable suspicion to justify a traffic stop. There

is no basis upon which to reverse the trial court’s denial of Appellant’s motion.

Therefore, this issue is without merit.

Motion for Continuance

Appellant’s next issue is that the trial court erred in denying his motion for

continuance. Appellant argues that he was denied a fair trial because trial counsel was

unable to gather information to cross-examine Deputy Masters. The State disagrees.

The granting of a continuance rests within the sound discretion of the trial court. State

v. Odom, 137 S.W.3d 572, 589 (Tenn. 2004). We will reverse the denial of a continuance

only if the trial court abused its discretion and the defendant was prejudiced by the denial.

State v. Hines, 919 S.W.2d 573, 579 (Tenn. 1995). In order to show prejudice, the defendant

must demonstrate that a different result might reasonably have been reached if the trial court

had granted the continuance or that the denial of the continuance denied the defendant a fair

trial. Id. Moreover, a defendant who asserts that the denial of a continuance constitutes a

denial of due process or the right to counsel must establish actual prejudice. Odom, 137

S.W.3d at 589.

Appellant’s motion for continuance was made orally the morning of the trial.

Appellant’s counsel informed the court that Appellant had not been transported to the jail

early enough for trial counsel to speak with him. Appellant believed that trial counsel needed

more information regarding the road upon which he was stopped. According to Appellant,

he disputed some details regarding where Deputy Masters pulled him over and where Deputy

Masters turned around to follow Appellant. The trial court denied the motion based on the

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fact that the case had been pending from indictment by the grand jury in June 2008 to the trial

on April 9, 2009. The trial court also stated that the officer could be cross-examined

regarding the disputed details.

Appellant argues that had the continuance been granted “his defense might have

included more evidence about the location of the stop of the vehicle and the plausibility of

the deputy’s version of how the stop occurred.” Appellant has not demonstrated that a

different result would have reasonably been reached if the continuance had been granted.

Appellant was allowed to cross-examine Deputy Masters regarding the various locations

involved in the stop. In addition, Appellant testified on his own behalf and was allowed to

present his own version of the facts to the jury.

We find no abuse of discretion by the trial court and that Appellant has not shown that

he was prejudiced by the denial of his motion. Therefore, this issue is without merit.

Jury Instruction

Appellant’s final argument is that the trial court erred in failing to instruct the jury on

the State’s duty to preserve evidence. Appellant’s request was due to the fact that two of the

three field sobriety tests performed by Appellant were not included on the video recording

of the stop. Appellant bases his argument on the State’s duty to preserve evidence based on

State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999). The State argues that due to a mechanical

malfunction, the last part of the stop was not recorded and, therefore, the State did not have

a duty to preserve the evidence because it never existed.

A trial court has a “duty to give a complete charge of the law applicable to the facts

of the case.” State v. Harris, 839 S.W.2d 54, 73 (Tenn. 1992). Anything short of a complete

charge denies a defendant his constitutional right to trial by a jury. State v. McAfee, 737

S.W.2d 304, 308 (Tenn. Crim. App. 1987). However, Tennessee law does not mandate that

any particular jury instructions be given so long as the trial court gives a complete charge on

the applicable law. See State v. West, 844 S.W.2d 144, 151 (Tenn. 1992). A charge is

prejudicial error “if it fails to fairly submit the legal issues or if it misleads the jury as to the

applicable law.” State v. Hodges, 944 S.W.2d 346, 352 (Tenn. 1997) (citing State v. Forbes,

918 S.W.2d 431, 447 (Tenn. Crim. App. 1995); Graham v. State, 547 S.W.2d 531 (Tenn.

1977)). In determining whether jury instructions are erroneous, this Court must review the

charge in its entirety and invalidate the charge only if, when read as a whole, it fails to fairly

submit the legal issues or misleads the jury as to the applicable law. State v. Vann, 976

S.W.2d 93, 101 (Tenn. 1998).

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

Constitution provides every defendant the right to a fair trial. To facilitate this right, a

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defendant has a constitutionally protected privilege to request and obtain from the

prosecution evidence that is either material to guilt or relevant to punishment. Brady v.

Maryland, 373 U.S. 83, 87 (1963). Further, the prosecution has a duty to turn over

exculpatory evidence that would raise a reasonable doubt about a defendant’s guilt. United

States v. Agurs, 427 U.S. 97, 110-11 (1976).

In Ferguson, the defendant was arrested for DUI. The videotape of various sobriety

tests performed by the defendant was inadvertently taped over before his trial. Ferguson, 2

S.W.3d at 914. The defendant appealed arguing that the State violated his Due Process rights

by failing to preserve the videotape. In its review of defendant’s issue, our state supreme

court adopted a test for courts to use in determining whether the loss or destruction of

evidence has deprived a defendant of a fair trial. Id. at 917. The initial analytical step in this

test for determining whether there was any duty to preserve evidence was described as

follows:

Whatever duty the Constitution imposes on the States to preserve

evidence, that duty must be limited to evidence that might be expected to play

a significant role in the suspect’s defense. To meet this standard of

constitutional materiality, evidence 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. (quoting California v. Trombetta, 467 U.S. 479, 488-89 (1984)). The Court explained

that if the proof demonstrates the existence of a duty to preserve the evidence and

demonstrates that the State failed in that duty, “the analysis moves to considerations of

several factors which guide the decision regarding the consequences of the breach.” Id.

Accordingly, those factors include: “(1) The degree of negligence involved; (2) The

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

reliability of secondary or substitute evidence that remains available; and (3) The sufficiency

of the other evidence used at trial to support the conviction.” Id. at 917. “If, after

considering all the factors, the trial judge concludes that a trial without the missing evidence

“As a general rule, . . . a trial lacks fundamental fairness where there are errors which call into

2

question the reliability of the outcome.” Ferguson, 2 S.W.3d at 914 n.3 (citing Betts v. Brady, 316 U.S. 455

(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)).

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would not be fundamentally fair, then the trial court may dismiss the charges.” Id. However,

dismissal is but one of the trial judge’s options. Id.

The case at hand is distinguishable from that of Ferguson by the fact that the missing

field sobriety tests were not taped over, but instead were never recorded because of a

mechanical malfunction. This Court has held on more than one occasion that when a

malfunction occurs and recordings are not made of the facts in question, the State does not

have a duty to preserve the evidence pursuant to Ferguson. See State v. Kenneth Clay Davis,

No. E2006-01459-CCA-R3-CD, 2007 WL 1259206, at *3 (Tenn. Crim. App., at Knoxville,

Apr. 30, 2007), perm. app. denied (Tenn. Aug. 13, 2007) (holding that malfunction of video

recorder in officer’s car is not equivalent to the State destroying evidence and, therefore,

there is no duty to preserve evidence); State v. Randall S. Sparks, No. M2005-02436-CCAR3-CD, 2006 WL 2242236 (Tenn. Crim. App., at Nashville, Aug. 4, 2006) (holding that

failure to record drug transactions due to user error does not create duty to preserve evidence,

when there is no evidence to preserve).

As in the cases cited above, Deputy Masters believed that the video recorder was

recording the traffic stop of Appellant. The fact that the video recorder malfunctioned and

only recorded a portion of the stop does not create duty on the State to preserve evidence

which does not exist. Ferguson does not create a duty to preserve evidence under the facts

at hand. Therefore, the trial court did not err in not instructing the jury on the State’s duty

to preserve evidence.

CONCLUSION

For the foregoing reasons, the judgments of the trial court are affirmed.

___________________________________

JERRY L. SMITH, JUDGE

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