IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

June 17, 2014 Session

STATE OF TENNESSEE v. CRAIG PATRICK HEBERT

Appeal from the Criminal Court for Davidson County

No. 2011C2451 J. Randall Wyatt, Jr., Judge

No. M2012-02299-CCA-R3-CD - Filed December 22, 2014

A Davidson County jury convicted the defendant, Craig Patrick Hebert, of assault, and the

trial court sentenced him to six months, which was suspended and ordered to be served on

probation. On appeal, the defendant contends that (1) the trial court erred in failing to charge

the jury in accordance with Tennessee Pattern Jury Instruction – Criminal No. 42.23 (Duty

to Preserve Evidence); and (2) that the evidence was insufficient to support his conviction.

Following the denial of the motion for new trial, the defendant filed a petition for writ of

error coram nobis, which was heard and denied. This court consolidated the appeal of the

denial of his petition with the original appeal as of right in this cause. Upon review, we

affirm the judgment of the trial court.

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

J. ROBERT CARTER, JR., SP. J., delivered the opinion of the court, in which NORMA MCGEE

OGLE and ROGER A. PAGE, JJ., joined.

David A. Collins (on appeal) and Jeffrey Thomas Daigle (at trial), Nashville, Tennessee, for

the appellant, Craig Patrick Hebert.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel;

Victor S. Johnson, III, District Attorney General; and Brian Ewald, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION
I. FACTUAL BACKGROUND

The defendant was indicted for a single count of aggravated assault arising out of an

incident at Southern Thrift Store in Nashville, Tennessee on March 14, 2011.

At trial, the victim, Sandra Dodson, testified that she was the assistant manager at the

store on the day in question. Ms. Dodson testified that store policy dictated that the doors

be locked at closing time, which in this case was 6:30 p.m. She further testified that the

defendant entered the store at closing time or shortly thereafter. Another store employee,

Tyrese Buggs, told the defendant that the store was closed, to which the defendant responded,

“not by my clock.” After being repeatedly told that the store was closed, the defendant

became angry and demanded that the employees call their district manager. Ms. Dodson

testified that while she was on the telephone with her district manager, the defendant began

circling her, cursing her, and threatening to sue the store. Upon a recommendation from her

manager, she activated a silent alarm that summoned the police.

Ms. Dodson described feeling threatened by the defendant as a result of his continued

yelling and cursing. The defendant left the store but returned and threatened Mr. Buggs with

violence. After finally leaving the store, the defendant got into a pick-up truck to leave. Ms.

Dodson testified that she went to the parking lot and attempted to write down the license

number of the vehicle. She testified that at this time, the defendant told her that he would

run over her if she attempted to obtain the tag number. The defendant began backing his

truck toward Ms. Dodson, and she had to run out into a lane of traffic to avoid being struck

by the defendant’s truck. Ms. Dodson testified that she was scared because she was almost

hit by a car traveling down the road.

Ms. Dodson testified that the events inside the store were captured by a surveillance

camera but that it did not record sound. The events in the parking lot were not covered in the

security video.

Tyrese Buggs testified that he was present when the defendant came in the store and

would not leave. Mr. Buggs described the defendant as irate and testified that the defendant

kept trying to goad him into coming into the parking lot to fight. Mr. Buggs observed Ms.

Dodson’s attempt to get the license number from the defendant’s vehicle and witnessed the

defendant backing up toward her in the truck. He testified that Ms. Dodson ran all the way

into traffic in an effort to avoid the defendant’s truck.

Detective Adam Weeks testified that approximately a week after the incident, he

reviewed the security video with Ms. Dodson. He testified that it contained no sound and

showed only the events inside the store. His understanding was that the offense in question

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occurred in the parking lot. He spoke with the defendant at some point, who described being

upset as a result of what he considered the “early closing” of the store and agreed everything

began to escalate after that initial encounter. Detective Weeks testified that he did not obtain

a copy of the video but thought that the store retained a copy. Following the testimony of

Detective Weeks, the State rested.

The defendant testified that he arrived at the store and was told that it was closed. He

agreed that there was an argument that escalated into shouting. The defendant testified that

he left the store and that Ms. Dodson followed him out and went toward the rear of his

vehicle. He denied that she was ever directly behind his truck or that he in any way forced

her into the road. He generally disagreed with the accounts given by Mr. Buggs and Ms.

Dodson.

The jury convicted the defendant of the lesser-included offense of misdemeanor

assault, and the trial court sentenced the defendant to a six-month suspended sentence. This

appeal followed.

In June 2012, new counsel was appointed to represent the defendant in his direct

appeal. During the pendency of the direct appeal, counsel filed a petition for a writ of error

coram nobis, alleging that following the defendant’s trial, he learned that the foreman of the

grand jury that issued the indictment against the defendant was a convicted felon, violating

the defendant’s constitutional right to a “qualified and lawful grand jury.” The trial court

denied the petition, and the appeal of that denial was consolidated with the direct appeal from

the trial.

On appeal, the defendant contends that (1) “the evidence was insufficient to support

his conviction,” (2) “the trial court committed reversible error in failing to charge the jury

pursuant to Tennessee Pattern Jury Instruction 42.23,” and (3) “that the trial court erred in

failing to grant the petition for writ of error coram nobis.”

II. ANALYSIS

A. SUFFICIENCY OF THE EVIDENCE

The defendant contends that the evidence is insufficient to support his conviction for

assault because of discrepancies between the testimonies of two of the State’s witnesses, Ms.

Dodson and Mr. Buggs. He maintains that these differences suggest that their testimony was

fabricated. The State argues that the jury’s verdict resolved any conflicts and that the

evidence was sufficient to support a guilty verdict. We agree with the State.

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When a defendant challenges the sufficiency of the evidence, the standard for review

by an appellate court 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); see also Tenn.

R. App. P. 13(e). It is well settled that the State is entitled to the strongest legitimate view

of the evidence and all reasonable or legitimate inferences which may be drawn therefrom.

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

An assault occurs when one “intentionally or knowingly causes another to reasonably

fear imminent bodily injury.” T.C.A. § 39-13-101 (a)(2). The proof at the trial, viewed in

the light most favorable to the State, showed that when Ms. Dodson went behind the

defendant’s truck to write down his tag number, the defendant began backing his truck

toward her, forcing her to run out into a lane of traffic. Ms. Dodson testified that she was

afraid. Her account was substantiated by the testimony of Mr. Buggs.

The defendant argues that inconsistencies between these two witnesses were of such

a degree as to negate the testimony. Questions concerning the credibility of witnesses and

the weight and value to be afforded to the evidence, as well as all factual issues raised by the

evidence, are resolved by the trier of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

The jury accredited the testimony of the State’s witnesses. This court will not reweigh or

reevaluate the evidence, nor will it substitute its inferences for those drawn by the jury. Id.

The burden is on the defendant to demonstrate that the evidence was insufficient. The

evidence in this case is clearly sufficient to sustain the defendant’s conviction for assault.

B. FAILURE TO CHARGE PATTERN INSTRUCTION 42.23

The defendant claims that the trial court erred in failing to charge Pattern Criminal

Instruction 42.23 which reads as follows:

T.P.I – CRIM. 42.23 Duty to preserve evidence

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.

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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.

The defendant asserts that such a charge was required because the proof at trial

established that neither the police nor the store maintained a copy of the security video from

inside the store. The State argues that the issue is waived as a result of the failure of the

defense to request the charge at the trial. Tenn. R. App. P. (36)(b). The defendant urges this

court to review this issue as plain error.

This court may address an issue as plain error only if each of the five specific factors

are met:

(1) the record clearly establishes what occurred in the trial court, (2) a

clear and unequivocal rule of law was breached, (3) a substantial right of

the accused was adversely affected, (4) the accused did not waive the

issue for tactical reasons, and (5) consideration of the error is necessary

to do substantial justice.

State v. Hester, 324 S.W.3d 1, 56 (Tenn. 2010). The asserted “plain error must have been

of such a great magnitude that it probably changed the outcome of the trial.” State v.

Adkisson, 899 S.W. 2d 626, 642 (Tenn. Crim. App. 1994).

The first step in the analysis would be to determine whether or not the State had a duty

to preserve the evidence. Generally, the State should preserve all evidence discoverable

under Tennessee Rule of Criminal Procedure 16. The difficulty in defining what must be

maintained has been recognized by our supreme court and the United States Supreme Court:

“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 possess both 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.”

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State v. Ferguson 2 S.W.3d 912, 917 (Tenn. 1999) (quoting California v. Trombetta, 467

U.S. 479, 488-89 (1984)).

The trial court found that the recording was not relevant, noting that the camera

recorded only what transpired inside the store and that the offense occurred in the parking

lot. We agree. Accordingly, we conclude that it was not plain error to fail to charge Pattern

Instruction 42.23.

C. ERROR CORAM NOBIS

Finally, we will address the defendant’s challenge to the trial court’s denial of his

petition for writ of error coram nobis. The writ of error coram nobis, which is an

“extraordinary procedural remedy” that fills only a “slight gap into which few cases fall,” is

available to criminal defendants by statute in Tennessee. State v. Mixon, 983 S.W.2d 661,

662 (Tenn. 1999); T.C.A. § 40-26-101, et seq. It is known more for its denial than its

approval. Mixon, 983 S.W.2d at 666.

The defendant complains that the indictment is void on its face because the grand jury

foreman was a convicted felon and thus ineligible to serve on the grand jury. T.C.A. § 22-1-

102. The State responds that the defendant waived the issue by not raising it prior to trial.

Tennessee Rule of Criminal Procedure 12(b)(2) requires that any objection to a defect

in the indictment must be filed prior to trial but that “at any time while the case is pending,

the court may hear a claim that the indictment, presentment, or information fails to show

jurisdiction in the court or to charge an offense.” See also State v. Lopez, 440 S.W.3d 601,

610 (Tenn. Crim. App. 2014). The constitutional requirements of an indictment are: (1) to

give notice to the accused of the offense charged, (2) to provide the court with an adequate

ground upon which a proper judgment may be entered; and (3) to provide the defendant with

protection against double jeopardy. State v. Lindsey, 208 S.W.3d 432, 438 (Tenn. Crim.

App. 2006).

The defendant does not contend that the indictment failed to provide notice, charge

an offense, or protect him from double jeopardy. Lopez, 440 S.W.3d at 610. Instead, he

questions whether the indictment, which was signed by a person who was statutorily

ineligible to serve as grand jury foreperson, was “‘so defective as to deprive the court of

jurisdiction.’” Kenneth DeWayne Johnson v. State, No. M2013-02491-CCA-R3-PC, 2014

WL 3696268, at *3 (Tenn. Crim. App. at Nashville, July 24, 2014) (quoting Dykes v.

Compton, 978 S.W.2d 528, 529 (Tenn. 1998)). This court has recently examined this issue

and held that “[t]he status of the grand jury foreman as a convicted felon does not relate to

the power of the court to hear and decide a case.” Lopez, 440 S.W.3d at 610; see Johnson,

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No. M2013-02491-CCA-R3-PC, 2014 WL 3696268, at *3. Based upon the foregoing, the

defendant has failed to establish that the court was without jurisdiction to hear the case.

Lopez, 440 S.W.3d at 610. Therefore, he waived his challenge to the grand jury foreman by

failing to raise the issue prior to trial. Id.

Moreover, “the historic doctrine of aider by verdict stands for the proposition that any

defects in the indictment are cured if the jury reaches a verdict.” Id. The jury in the instant

case heard the evidence and returned a verdict, thereby curing any defects in the indictment.

Lopez, 440 S.W.3d at 610. Thus, the trial court properly denied the petition for writ of error

coram nobis.

III. CONCLUSION

After a review of the record and the applicable law, we affirm the judgment of the

trial court.

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J. ROBERT CARTER, JR., SPECIAL JUDGE

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