         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                    November 7, 2006 Session

                STATE OF TENNESSEE v. JEFFREY LEE FIELDS

                        Appeal from the Circuit Court for Carroll County
                           No. 05CR14     C. Creed McGinley, Judge



                      No. W2005-02128-CCA-R3-CD - Filed April 5, 2007


A Carroll County Circuit Court jury convicted the defendant of driving under the influence of an
intoxicant (DUI), third offense, see T.C.A. § 55-10-401 (2006), possession of a handgun while under
the influence of an intoxicant, see id. § 39-17-1321(a) (2006), and possession of marijuana, see id.
§ 39-17-418(a), all Class A misdemeanors. The jury acquitted the defendant of unlawful possession
of drug paraphernalia, rolling papers, see id. § 39-17-425(a)(1) (2006), and unlawful possession of
a prohibited weapon, a throwing star, see id. § 39-17-1302(a)(8) (2006). The court sentenced the
defendant for the DUI conviction to 11 months and 29 days suspended after serving 120 days. For
the possession of a handgun charge he received 11 months and 29 days suspended after serving 30
days. Likewise, he received 11 months and 29 days suspended after 30 days for the possession of
marijuana conviction. All sentences were to run concurrently. The defendant filed a timely notice
of appeal and complains, only in regards to his DUI conviction, that (1) the trial “was fundamentally
unfair due to the State’s failure to preserve the video tape of the field sobriety tests . . ., which . . .
would have been exculpatory in nature,” and (2) “the verdict . . . was unreliable based upon [the
deputy’s] erroneous testimony . . . concerning the Breathalyzer Machine and the test he gave and the
manner in which he gave it.” After review of the record and the briefs submitted by the parties, we
affirm the judgment of the trial court.

                Tenn. R. App. P. 3; Judgment of the Circuit Court is Affirmed.

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which JERRY L. SMITH and
ROBERT W. WEDEMEYER , J.J., joined.

Victoria L. DiBonaventura, Buchanan, Tennessee, for the Appellant, Jeffrey Lee Fields.

Robert E. Cooper, Jr., Attorney General & Reporter; David H. Findley, Assistant Attorney General;
Hansel Jay McCadams, District Attorney General; and Stephen D. Jackson, Assistant District
Attorney General, for the Appellee, State of Tennessee.
                                             OPINION

                The evidence supporting the convictions showed that Carroll County Sheriff’s Deputy
Michael Darnell testified that, on Setember 5, 2004, at approximately 2:00 p.m., he was traveling
west in his patrol car on Highway 70, responding to a 9-1-1 call. He testified that he was traveling
at about 65 to 70 miles per hour in a 55 mile-per-hour zone, and he neither had his sirens sounding
nor his blue lights activated. As he approached the Hebron Church Road intersection, he saw the
defendant’s vehicle, a 1990 gray Ford F-150, pull from Hebron Church Road partially into his travel
lane. Deputy Darnell testified that he took “evasive action and went left of the roadway, went off
into a lady’s yard, came back around, drove up around to where [the defendant] was, got out[,] and
made contact with [the defendant].”

               Deputy Darnell testified that, while he checked the defendant’s driver’s license, he
detected alcohol on the defendant’s breath. He then asked the defendant to exit his truck and
perform field sobriety tests. Deputy Darnell testified that the defendant informed him of a leg injury,
so Deputy Darnell asked him to perform the “finger to nose and five-finger count” tests. He testified
that the defendant performed poorly on both tests, missing his nose, being unsteady on his feet, and
getting confused when counting.

               Deputy Darnell further testified that his patrol car video camera recorded the
defendant’s performance. However, he did not have the tape at trial because “[he] was asked to
record [his] VHS-C tape onto another tape for other parties[, and w]hen [he] did that, the tape was
damaged.” He also testified that, after the defendant performed poorly on the tests, he arrested the
defendant and placed him in his patrol car.

                Deputy Darnell then contacted another deputy to drive the passenger of the
defendant’s vehicle home and a wrecker to tow the defendant’s vehicle. Subsequently to the arrest,
he searched the vehicle and recovered a bag of marijuana, a throwing star, and rolling papers from
the driver’s side door; a .380 semi-automatic pistol from underneath the driver’s side seat; an empty
Busch beer can from behind the truck seat; beer cans in the truck bed; and a 24-pack of beer about
“three-quarters full.”

               Deputy Darnell testified that, after he made photographs and a list of the evidence,
he informed the dispatcher that he was in route transporting the defendant to the Carroll County Jail,
which he stated was approximately three miles from the Highway 70-Hebron Church Road
intersection.

                Upon arriving at the jail, Deputy Darnell took the defendant to the “breathalyzer
room,” where he read him the implied consent form. He testified that the defendant marked that he
would submit to the test and signed the form. Deputy Darnell then typed information into the
Intoxilyzer EXC-IR. He testified that he was certified in using the machine and that the machine had
been certified by the appropriate Tennessee Bureau of Investigation (TBI) agent.



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                 Deputy Darnell testified that he followed the TBI standards and procedures in
administering the test. He testified that he observed the defendant for 20 minutes prior to having him
take the test. During this time, Deputy Darnell testified that he was “[j]ust sitting there watching [the
defendant,]” and the defendant did not burp, regurgitate, or put anything into his mouth. Deputy
Darnell further testified that the machine “will only let you do certain things.” He manually entered
the start time of 15:00, 3:00 p.m. from his personal watch; the machine ran a blank test at 15:22, 3:22
p.m., showing that it was clear of any substance; and at 15:23, 3:23 p.m., the machine printed out
a report, which he identified at trial, stating that the defendant’s blood alcohol content was 0.09
percent. Deputy Darnell testified, we discern, that after manually entering the time from his watch,
he used the “machine status” as his timing device to calculate the 20-minute waiting period. He also
testified that his watch was not synchronized with the dispatcher’s clock, but regardless of different
time clocks, he observed the defendant for 20 minutes before the defendant took the test.

                On cross-examination, Deputy Darnell testified that he only found one open beer can
in the truck’s cab, and he did not remember “black stuff” being on the can when he found it.

                 Deputy Darnell also testified that, upon entering the Carroll County Jail, the defendant
did not sit at the “jailer’s booth,” but he took the defendant to the room holding the Intoxilyzer after
the defendant emptied his pockets at the jailer’s booth counter. Deputy Darnell testified that he filled
out the implied consent report, writing 15:00 on the form while in the Intoxilyzer room. He testified
that he read the defendant the implied consent form before he calibrated the machine. Deputy
Darnell also testified somewhat confusingly that he then watched the defendant for twenty minutes
before typing information into the machine. He testified that he had to enter the time, 15:00, into
the machine and that the machine did not know the time. Then he “let the machine do its thing.”

                Deputy Darnell also testified that the dispatcher has a “CAD machine” and uses it to
track deputies’ activities. He testified that deputies converse with the dispatcher via radios. Deputy
Darnell testified that it was 15:00 when he wrote 15:00 on the consent form, and according to the
dispatcher’s log using a separate timing devise, the defendant was arrested at 2:27 p.m. The log also
showed that Deputy Darnell was in route to the jail with the defendant at 3:04 p.m., and at 3:09:53,
he arrived at the jail with the defendant.

               Deputy Darnell clarified that at 15:00 he entered the information into the Intoxilyzer,
at 15:20 the machine started calibrating, at 15:22 the defendant provided the breath sample, and at
15:23 the machine printed the results.

                On redirect examination, Deputy Darnell testified that he typed in 15:00, we discern
from his personal watch, waited 20 minutes using the Intoxilyzer’s time piece, and then pushed start.
He testified that if he had entered 8:00, then 20 minutes later the machine would show 8:20.

               After Deputy Darnell’s testimony, the State rested its case, and the defendant recalled
Deputy Darnell. He testified that he remembered testifying at the preliminary hearing that he used
his personal watch to time the 20-minute observation period, that his watch had nothing to do with


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the “breathalyzer clock,” and that his watch, the “breathalyzer clock,” and the dispatcher’s clock
were not synchronized.

               The defendant then called James Hughes DeJarnette, the defendant’s stepbrother and
passenger on September 5, 2004, as a witness. He testified that earlier that day, he and the defendant
had been target practicing. After they ate lunch in different places, they drove together to get
cigarettes. He had no apprehension about riding with the defendant, and he testified that the
defendant did not seem intoxicated.

                Mr. DeJarnette testified that the defendant stopped at the Highway 70-Hebron Church
Road intersection and then “eased up a couple of feet to make sure the right side was clear” because
his view was obstructed by a sign. He testified that when he looked left, “a car was sliding about a
hundred feet from [them], and it slid right by [them].” He stated that only after the vehicle passed
him, did he notice that it was a patrol car. Mr. DeJarnette further testified that the deputy regained
control after “about a quarter of [one] mile down the road.”

                Mr. DeJarnette testified that he observed the defendant take the field sobriety tests,
and he did not notice the defendant do anything wrong. In his opinion, the defendant passed the
tests. Also, he testified that the beer found in the truck had been there the day before.

               On cross-examination, Mr. DeJarnette did not remember telling the deputy who took
him home that he and the defendant had been drinking while target practicing. He also stated that
he was sitting in the truck when the defendant performed one field sobriety test. He saw the
defendant counting four or five times.

                 The defendant testified on his own behalf that he had been target practicing earlier
in the day on September 5. He testified that he left his handgun in his truck after practicing. He also
testified that he had two beers at lunch. After lunch, he drove Mr. DeJarnette to buy cigarettes at
“Mack’s store.” Before reaching the store, he stopped at the Highway 70-Hebron Church Road
intersection and had to pull past the stop sign because a sign obstructed his view. After looking left,
he saw a car go by his vehicle, and once it was past him, he noticed it was a patrol car.

                The defendant testified that Deputy Darnell gave him two sobriety tests. He stated,
“I didn’t do the nose test, either. I just did the finger test.”

                The defendant further testified that at the jail, he sat down at the corner of the jailer’s
cage, not in the room with the Intoxilyzer. He could not see the officer doing things to the machine
because he could not see around the corner. The defendant testified that he sat there for
approximately 10 minutes before going into the room with the Intoxilyzer, where Deputy Darnell
showed him the implied consent form and said, “This here is you’re consenting to take the blow
test.” The defendant signed the form in the “blow room.” He stated that he did not remember how
long he stayed in the room before taking the test.



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                On cross-examination, the defendant stated that he sat in the Intoxilyzer room
“forever.”

               The State called Deputy Jonathon McDowell as a rebuttal witness, and Deputy
McDowell testified that he drove Mr. DeJarnette home. Deputy McDowell testified that Mr.
DeJarnette said that he and the defendant “had been driving around and had had some [beer] to drink
and had been target practicing.”

                 The jury found the defendant guilty of driving under the influence as well as other
charges, but on appeal, he only raises issues concerning his DUI conviction. He argues, in essence,
that his trial was fundamentally unfair because of the State’s failure to preserve alleged exculpatory
evidence, Deputy Darnell’s videotape of the field sobriety tests, and that the guilty verdict was
unreliable due to Deputy Darnell’s erroneous testimony regarding the Intoxilyzer and its results.

                 We initially address the State’s contention that the defendant waived both issues by
(1) failing “ to object to the proof regarding the field sobriety test . . . , or that the defendant failed
to request a missing evidence charge,” and (2) failing to “raise[] a Sensing challenge prior or during
the trial,” see State v. Sensing, 843 S.W.2d 412 (Tenn. 1992) (establishing foundation factors for
admissibility of intoximeter test results). Tennessee Rule of Appellate Procedure 36(a) states that
appellate relief is generally not available when a party has “failed to take whatever action was
reasonably available to prevent or nullify the harmful effect of any error.” Tenn. R. App. P. 36(a);
see State v. Sims, 45 S.W.3d 1, 16 (Tenn. 2001). The failure to make a contemporaneous objection
to the admission of evidence constitutes a waiver of the issue on appeal. See Tenn. R. Evid.
103(a)(1) (“Error may not be predicated upon a ruling which admits or excludes evidence unless a
substantial right of the party is affected, and . . . [i]n case the ruling is one admitting evidence, a
timely objection or motion to strike appears of record.”); State v. Cook, 9 S.W.3d 98, 103 (Tenn.
1999) (holding “that a defendant is not required to challenge a breath-alcohol test by filing a pretrial
motion pursuant to Tenn. R. Crim. P. 12(b)(3), but rather, may make a timely objection at trial if the
prosecution has failed to establish the Sensing requirements”). In the present case, the defendant did
not object to the testimony during trial, and nothing in the record indicates that the defendant raised
the Sensing issue prior to or during trial. Therefore, the defendant has waived both issues. However,
in the interest of justice, we opt to consider the issues on the merits.

                First, we address whether the defendant’s trial was fundamentally unfair because the
State failed to preserve the videotape of the field sobriety tests. The defendant relies substantially
upon State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999). In Ferguson, officers videotaped the
defendant’s performance on field sobriety tests administered as part of a driving under the influence
investigation; however, the taped tests were inadvertently “taped over” before they were viewed by
anyone. Id. at 914-15. Our supreme court determined that, for purposes of applying the Tennessee
Constitution’s “law of the land” clause to issues of the State’s losing, damaging, or destroying
potentially exculpatory evidence, a balancing test should be utilized. First, the court should
“determine whether the State had a duty to preserve the evidence.” Id. at 916. If the State failed to
discharge a duty to preserve evidence, the court then determines


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                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.

                In the present case, the ruling in Ferguson obligates the State to preserve the evidence.
See id. at 918; see also State v. Nathaniel Robinson, Jr., No. E2004-02191-CCA-R3-CD, slip op.
at 5 (Tenn. Crim. App., Knoxville, Sept. 19, 2005) (stating that State had a duty, based on Ferguson,
to preserve videotape evidence of the defendant taken at the jail that recorded the defendant’s
booking process).

                 That said, we reject the claim that the destruction of the videotape deprived the
defendant of a fair trial. There is no evidence in the record that Deputy Darnell’s unintentional
destruction of the tape was due to gross negligence. Although the probative value of the videotape
is high, the sufficiency of the other evidence supports the jury’s verdict. Deputy Darnell testified that
he smelled alcohol on the defendant’s breath, he was unsteady on his feet, opened and unopened beer
was found in his truck, and his blood alcohol content was 0.09 percent. The factors weigh in favor
of the State, and we hold that the defendant received a fair trial even without the videotape.

               Second, the defendant claims that the guilty verdict was unreliable due to Deputy
Darnell’s erroneous testimony regarding the Intoxilyzer and its results.

               In State v. Sensing, 843 S.W.2d 412 (Tenn. 1992), the supreme court held that as a
foundation for admissibility of intoximeter test results, a testing officer must be able to address the
following six points:

                . . . (1) that the tests were performed in accordance with the standards
                and operating procedure promulgated by the forensic services
                division of the Tennessee Bureau of Investigation, (2) that he was
                properly certified in accordance with those standards, (3) that the
                evidentiary breath testing instrument used was certified by the
                forensic services division, was tested regularly for accuracy and was
                working properly when the breath test was performed, (4) that the
                motorist was observed for the requisite 20 minutes prior to the test,
                and during this period, he did not have foreign matter in his mouth,
                did not consume any alcoholic beverage, smoke, or regurgitate, (5)
                evidence that he followed the prescribed operational procedure, (6)


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               identify the printout record offered in evidence as the result of the test
               given to the person tested.

Id. at 416.; see State v. Kimberly M. Larson, No. M1999-00507-CCA-R3-CD, slip op. at 7-9 (Tenn.
Crim. App., Nashville, Aug. 4, 2000) (holding that the breath test results from an intoxilyzer were
admissible because the Sensing factors were met, namely that the machine had been properly
calibrated and certified, that the proper testing procedures were followed, and that the officer
properly observed the defendant and checked her mouth prior to the test).

                The defendant argues that factor four concerning the 20-minute observation period
was not satisfied. He bases his argument on a comparison of the time on the printout to the time
shown in the dispatcher’s log. Although Deputy Darnell’s testimony is somewhat confusing at times
regarding this issue, we surmise from the record, that he entered the start time from his personal
watch that was neither synchronized with dispatcher’s clock nor the Intoxilyzer’s clock, and then he
waited 20 minutes before administering the test as shown by the Intoxilyzer’s printout. In addition,
at the motion for new trial hearing, the trial court credited Deputy Darnell’s trial testimony that he
observed the defendant for 20 minutes before administering the test, and the court found that the
Sensing factors were met. We do not second-guess the trial court’s credibility determinations. See
State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001) (stating questions regarding witness credibility and
resolution of conflicts in the evidence are matters entrusted to the trial judge).

                We hold that the Sensing factors were met and that the jury verdict is reliable. See
State v. Kenneth Wayne Ball, No. E2004-00501-CCA-R3-CD, slip op. at 8-9 (Tenn. Crim. App.,
Knoxville, Apr. 6, 2005) (holding that the trial court did not err in admitting the results of the
intoximeter test where the time on the implied consent form varied from the machine’s printout time
but the officer testified that he observed the defendant for 20 minutes).

               For the foregoing reasons, the judgment of the trial court is upheld.


                                                        ___________________________________
                                                        JAMES CURWOOD WITT, JR., JUDGE




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