           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.1 The trial court sentenced Appellant to eleven months and twenty-nine days
for DUI, third offense and five months and twenty-nine days for 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.

J ERRY L. S MITH, J., delivered the opinion of the court, in which T HOMAS T. W OODALL and
R OBERT W. W EDEMEYER, JJ., joined.

David N. Brady, District Public Defender and Allison M. Rasbury, Assistant Public
Defender, Cookeville, Tennessee, for the appellant, William Robert Wilson.

       1
           It appears from the transcript that the implied consent charge was not submitted to the jury.
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

                                             -2-
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 his testimony, 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



                                              -3-
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. Appellant stated that Deputy Masters’s instruction
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 twenty-
nine days for DUI, third offense and five months and twenty-nine days for driving on a

                                               -4-
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,

                                             -5-
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.




                                               -6-
        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

                                              -7-
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



                                               -8-
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.

                                               -9-
        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

                                              -10-
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).




                                                -11-
       The Due Process Clause of the Fourteenth Amendment to the United States
Constitution provides every defendant the right to a fair trial.2 To facilitate this right, a
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


        2
          “As a general rule, . . . a trial lacks fundamental fairness where there are errors which call into
question the reliability of the outcome.” Ferguson, 2 S.W.3d at 914 n.3 (citing Betts v. Brady, 316 U.S. 455
(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)).

                                                    -12-
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-CCA-
R3-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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