                                                                                                        05/29/2018
         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                   December 19, 2017 Session

            STATE OF TENNESSEE v. RONALD WAYNE GILBERT

                    Appeal from the Criminal Court for Sevier County
                       No. 20805-II Robert E. Lee Davies, Judge


                                 No. E2017-00396-CCA-R3-CD


The defendant, Ronald Wayne Gilbert, appeals his Sevier County Criminal Court jury
convictions of especially aggravated kidnapping and aggravated assault, challenging both
the trial court’s denial of his motion to strike the victim’s testimony and his motion to
dismiss based upon the failure to preserve certain evidence. We affirm the convictions
and sentence but remand for correction of a clerical error in the judgment.

     Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed; Remanded

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Alexandra Deas McMahan and Aaron M. Kimsey, Assistant District Public Defenders,
for the appellant, Ronald Wayne Gilbert.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Assistant
Attorney General; James B. Dunn, District Attorney General; and Ronald C. Newcomb,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                              OPINION

            In September 2015, the Sevier County Grand Jury charged the defendant
with two counts of especially aggravated kidnapping, two counts of attempted first
degree murder, two counts of aggravated assault,1 and one count of violating an order of

1
         The presentment in this case indicates charges of aggravated domestic assault, citing to Code
sections 39-13-102 and -111, and the judgment indicates a conviction offense of aggravated domestic
assault, citing to Code section -102. We note, however, that no such offense is proscribed by our criminal
code. Code section 39-13-111 refers to domestic assault with reference to the simple assault statute
proscribed in Code section 39-13-101. There is no corresponding proscription relative to the aggravated
assault of a household or family member. Thus, the presentment and conviction reflect, in effect, a
protection. One year later, the trial court entered an agreed order severing the first three
counts of the presentment from the remaining counts. After the defendant waived his
right to a jury trial, the trial court conducted a bench trial in November 2016 on one count
each of especially aggravated kidnapping, attempted first degree murder, and aggravated
assault.

              The State’s proof at trial showed that the defendant and the victim, Brandi
Gilbert, married in 1993 and had three children together. By early March 2015, the
family had relocated from California to Cosby, Tennessee. While the family was still
residing in California, the defendant struck the victim and one of their sons, and, in 2010,
the defendant engaged in the first of several suicide attempts by trying to hang himself in
front of the victim. The victim explained that the defendant suffered from progressive
multiple sclerosis.

              During the first five weeks in which the family had resided in Cosby, the
defendant remained secluded in the master bedroom of the family’s residence. During
the rare occasions that the defendant emerged from the bedroom, he was “really, really
vicious and verbally abusive.” On the morning of April 18, 2015, the defendant awoke
uncharacteristically early and began packing to leave the house. When the victim asked
him what he was doing, the defendant told her that he was planning to purchase an
airplane ticket to fly to California and “kill [their] son’s girlfriend.” The victim was
alarmed, and the couple argued. The argument escalated to a point that the defendant
was “so out of control” with “yelling and cussing” that the victim contacted the local
domestic violence hotline. The defendant grabbed the telephone and disconnected the
call. The hotline called the victim back, and eventually, the victim called 9-1-1, reporting
to the operator that the defendant was suicidal and was threatening to kill other people.

              After calling 9-1-1, the victim was standing in a doorway of the residence
when the defendant “swept [her] feet out from under [her] and dropped down to sit on
[her] chest.” The defendant placed a knife blade against the victim’s throat and said, “I’ll
cut your f[***]ing throat, and then he ripped [the victim’s] shirt up and put the blade to
[her] stomach and said, I’ll f[***]ing gut you.” The victim remained very still and quiet
because she “saw [her] death on his face,” and she believed that the defendant intended to
kill her. While the defendant was holding the knife against the victim’s abdomen, he
punctured her skin, drawing blood and leaving a small cut.

             The defendant then “leaned back” on his heels and started to stand, at
which point the couple’s 11-year-old son threw himself between the defendant and the



charge of aggravated assault with a deadly weapon of a victim as defined by Code section 39-13-111(a).
                                                 -2-
victim. The victim screamed for her son to run, and as the victim stood up, she saw the
defendant fleeing through the front door and escaping on a bicycle.

               Sevier County Sheriff’s Department (“SCSD”) Deputy Jayson Parton was
dispatched to the defendant’s residence on April 18, 2015, in response to a domestic
situation; Deputy Parton recalled that the call came in “through the domestic hotline” and
that the situation involved the suspect’s holding the victim at knifepoint. When Deputy
Parton arrived at the scene, the victim and her minor son were present, along with
Pittman Center Police Department (“PCPD”) Officer Todd Myers. Deputy Parton
observed that the victim appeared to be upset and scared. While Deputy Parton was
interviewing the victim, SCSD Corporal Clint Parton arrived at the scene, and both
Deputy Parton and Corporal Parton searched for the defendant, who had reportedly fled
into the woods near his residence. Deputy Parton eventually took the victim to the
residence of nearby neighbors. Before leaving the victim, Deputy Parton photographed
the injuries to the victim’s right hand and neck. Deputy Parton was equipped with a body
camera during his interactions with the victim, and through Deputy Parton’s testimony,
the State introduced into evidence the video recording taken at the scene. The recording
showed, among other things, the victim’s intermittent writing of a statement.

             Corporal Parton later located the defendant in a nearby barn. The defendant
“had a dog collar or dog chain around his neck” and was “threatening to hang himself.”
The defendant was taken into custody without incident. Officers did not recover a knife
from the defendant.

              With this evidence, the State rested. Following the trial court’s denial of
the defendant’s motion for judgments of acquittal, the defendant elected not to testify and
chose to present no proof. Based on this evidence, the trial court convicted the defendant
as charged of both especially aggravated kidnapping and aggravated assault, and the
court found the defendant not guilty of attempted first degree murder. Following a
sentencing hearing, the trial court sentenced the defendant as a mitigated offender to a
term of 13 and one-half years’ incarceration for the especially aggravated kidnapping
conviction, to be served at 100 percent by operation of law and to be served concurrently
with the defendant’s mitigated sentence of 2.7 years for the aggravated assault
conviction.

               Following the denial of his motion for new trial, the defendant filed a
timely notice of appeal. In this appeal, the defendant contends that the trial court erred by
failing to strike the victim’s testimony based on the State’s inability to produce the
victim’s written statement and that the State’s failure to preserve a video recording from
an officer’s body camera violated his due process rights. We will address each issue in
turn.
                                            -3-
                                      I. Lost Statement

                The defendant first contends that the trial court erred by failing to strike the
victim’s testimony on the basis that the State could not produce the victim’s written
statement purusant to Tennessee Rule of Criminal Procedure 26.2. The State responds
that the trial court acted within its discretion in denying the defendant’s motion.

              During the trial, Deputy Parton, who was the first witness to testify, stated
that the victim provided a written statement at the scene, and when asked by the
prosecutor to produce a copy of the statement from his investigative file, Deputy Parton
discovered that the statement was missing. He informed the prosecutor that the statement
“would be on file at the [SCSD],” and he agreed to return to the SCSD following his
testimony to retrieve the statement prior to the victim’s trial testimony. After Deputy
Parton returned to court a short time later, defense counsel informed the trial court that
the deputy had been unable to locate the victim’s statement. Defense counsel then moved
the court, pursuant to Tennessee Rule of Evidence 613, to dismiss the case on the basis
that the statement had not been provided to the defendant through his discovery request
and that the missing statement deprived him of the right to “potentially impeach” the
victim. The prosecutor responded that the statement had not been provided through the
discovery process because the State “never had possession of it”; that disappearance of
the statement was “not an intentional act by the State”; and that the State had no ability to
provide something that it did not have. The prosecutor informed the trial court that
defense counsel had the recordings of the victim’s 9-1-1 calls, the victim’s oral
statements on Deputy Parton’s body camera in which the victim could be seen working
on her written statement, and the victim’s preliminary hearing testimony, and that under
the circumstances, dismissal of the case would be an extreme sanction.

              Defense counsel then responded that dismissal was required under State v.
Merriman, 410 S.W.3d 779 (Tenn. 2013), based on the “destruction of potentially
excuplatory evidence” which could lead to a prior inconsistent statement. The prosecutor
countered that nothing in the record indicated that the victim’s written statement was
exculpatory. The trial court then declined to dismiss the case at that time, noting that
there was “a whole lot of other evidence and avenues available for [defense counsel] to
confont the [victim] whenever she does take the stand.”

              Following the victim’s direct examination, the trial court readdressed the
defendant’s motion, confirming that the motion was based on a combination of the
“Jencks Act on producing exculpatory statements combined with our [s]upreme [c]ourt’s
ruling in [State v.] Ferguson[, 2 S.W.3d 912 (Tenn. 1999)] and Merriman.” At the
court’s request, Deputy Parton returned to testify. Deputy Parton explained that it was
                                              -4-
his usual practice to make a photocopy of a statement and place the photocopy in his
investigative file while giving the original statement to the SCSD records department.
When he learned for the first time during his earlier testimony that the victim’s statement
was not in his file, he realized that he must have failed to photocopy it. During the break
in his testimony, he proceeded to the SCSD records department and “asked the girls to
pull” the original statement, but the department employees were unable to find it. Deputy
Parton recalled placing the original statement in the appropriate records collection box,
and he was unaware of any instances in which statements or other records had been
misfiled by the records department. Deputy Parton testified that he recalled reading the
victim’s statement, but when the trial court asked him if he could remember the content
of the victim’s statement, Deputy Parton conceded that he could not.

               Following argument by the parties, the trial court ruled that the State had a
duty to preserve the victim’s statement and was negligent in its failure to do so. With
respect to the potentially exculpatory nature of the statement, the court observed that it
had “no idea whether it would be potentially exculpatory,” although the court
acknowledged that it “could be” if the victim had written something “inconsistent with
her testimony here today.” The court found that there was “not much negligence on the
part of” Deputy Parton and stated that it was unsure of the significance of the statement in
light of the contemporaneous video and audio recording of the victim’s explaining to
Deputy Parton what had transpired, in addition to the 9-1-1 recordings and the victim’s
preliminary hearing testimony. Finally, the court stated that the case would “rise or fall”
solely on the victim’s testimony and encouraged defense counsel to use the missing
statement in its argument to the court concerning the victim’s credibility. Ultimately, the
trial court concluded that dismissal of the case was unwarranted.

              During the victim’s cross-examination, she testified that she did not recall
writing a statement because it was such a “nightmarish” time. The victim agreed that if
an officer had asked her to write a statement, she would have complied, and she agreed
that she was seen on the video holding a piece of paper and conceded that she was
interrupted several times on the video while purportedly writing that statement. The
victim denied having a copy of the statement or ever seeing it after she had signed it. She
acknowledged that anything contained in the written statement would have been
consistent with the oral statements she was seen and heard making to the officers on the
video recording.

             At the hearing on the motion for new trial, the defendant abandoned his
argument under Ferguson and Merriman and instead relied exclusively on Tennessee
Rule of Criminal Procedure 26.2 for the proposition that the victim’s statements should
have been suppressed and that, without those statements, the defendant would be entitled

                                            -5-
to a new trial. The trial court took the motion under advisement and later issued an order
denying the defendant’s motion and finding as follows:

             In this case, there is no doubt of the existence of the written
             statement since the video of Deputy Parton with the [SCSD]
             clearly showed the [victim] sitting down at a table writing out
             her statement after she was interviewed on video by the
             deputy. However, for reasons that cannot be explained, no
             one could locate the statement of [the victim] at trial. The
             [c]ourt even took a recess to allow law enforcement to go
             back through their files to search for the statement.
             Defendant has not argued and there appears to be no evidence
             of any bad faith on the part of any officer involved in this
             case. Pursuant to Rule 26 of the Tennessee Rules of Criminal
             Procedure, the State has conceded that it had a duty to
             preserve the written statement. Deputy Parton testified that
             he thought he had made a copy of the original statement and
             put the copy in his working file. He indicated that the
             original statement should have been filed with the Records
             Division of the [SCSD]. After not being able to find a copy
             in his file, Deputy Parton went to the Records Division of the
             [SCSD] and asked for the original statement. The Records
             Department was unable to locate it.

                    The most important factor in the [c]ourt’s analysis in
             this case is the significance of the lost or destroyed statement
             of the witness in light of the probative value and reliability of
             secondary evidence. Here, there was a video and audio
             recording of the victim giving her version of the facts to the
             investigating deputy on the scene.             Counsel for the
             [d]efendant testified she had reviewed this video for at least
             twelve hours and had made extensive notes. In addition, the
             defense had the two 911 calls made by the victim. Finally,
             the victim testified at the preliminary hearing where she was
             subject to cross examination, and the defense had the
             transcript of that testimony. The [c]ourt concludes that the
             statement of the [victim] would merely be cumulative in this
             case and resulted in no prejudice to the [d]efendant.

                   The [c]ourt’s verdict in this case was based primarily
             on the testimony of the victim. The [c]ourt allowed the
                                           -6-
              [d]efendant wide latitude in cross examination of the victim,
              and the [d]efendant was able to bring out certain potential
              bias[es] or inconsistencies in the victim’s testimony.
              However, considering the victim’s testimony as a whole, the
              [c]ourt concluded that [the victim] was credible and that the
              assault which she described by the [d]efendant happened as
              she described it.

              On appeal, the defendant posits that the trial court erred, first, in its
application of the Ferguson and Merriman standards to the victim’s missing statement
and, second, in failing to strike the victim’s testimony pursuant to Rule 26.2.

                Rule 26.2 of the Tennessee Rules of Criminal Procedure had its genesis in
the United States Supreme Court holding in Jencks v. United States, 353 U.S. 657 (1957),
wherein the Court ruled that a criminal defendant had the right to inspect prior statements
or reports by government witnesses following direct examination for use in cross-
examination. See State v. Caughron, 855 S.W.2d 526, 535 (Tenn. 1993). The rule
provides that, following the direct trial testimony of a witness other than the defendant
and on motion of, in this case, defense counsel, the court “shall order the attorney for the
[S]tate . . . to produce, for the examination and use of the moving party, any statement of
the witness that is in their possession and that relates to the subject matter of the witness’s
testimony.” Tenn. R. Crim. P. 26.2(a). A “statement” includes either a written statement
made and signed, or otherwise adopted by, the witness, or “[a] substantially verbatim,
contemporaneously recorded recital of the witness’s oral statement that is contained in a
stenographic, mechanical, electrical, or other recording or a transcription of such a
statement.” Tenn. R. Crim. P. 26.2(f). “If the party who called the witness disobeys an
order to deliver a statement, the court shall strike the witness’s statement from the record
and order the trial to proceed,” and if the prosecutor disobeys the order, the court “shall
declare a mistrial if required in the interest of justice.” Tenn. R. Crim. P. 26.2(d).

               The defendant’s reliance on Rule 26.2 is misplaced. First, the rule requires
that the State possess the statement sought by the defendant. Tenn. R. Crim. P. 26.2(a).
In the instant case, nothing indicates that the State ever possessed the victim’s written
statement, either through actual or constructive possession. Second, the sanctions
prescribed by the rule are only applicable when the State disobeys a court order to deliver
the statement. Tenn. R. Crim. P. 26.2(d); see also State v. Barry Singleton, No. W2006-
02476-CCA-R3-CD, slip op. at 6 (Tenn. Crim. App., Jackson, Apr. 29, 2009); State v.
Joseph Angel Silva, III, No. M2003-03063-CCA-R3-CD, slip op. at 11-12 (Tenn. Crim.
App., Nashville, May 25, 2005). Here, the court never ordered the State to turn over the
witness’s statement to the defense because the statement had been unintentionally lost.

                                             -7-
              Interestingly, both parties quote State v. Jim Inman, No. 03C01-9201-CR-
00020 (Tenn. Crim. App., Knoxville, Nov. 23, 1993), for the proposition that Rule 26.2
sanctions are not dependent upon a showing of bad faith and that even the “unintentional”
withholding or destruction of a statement can constitute a violation of Rule 26.2. In Jim
Inman, however, this court stated that the “[i]ntentional withholding or destruction of
statements, regardless of motive, may be viewed as a violation of Rule 26.2 for which
appropriate sanctions may be applied.” Id., slip op. at 23 (admonishing the Tennessee
Bureau of Investigation for its practice of “routinely eras[ing]” tape-recorded witness
statements). It appears that this statement regarding “intentional withholding” was
originally misquoted as “unintentional withholding” in State v. Timmy Fulton, No.
02C01-9706-CC-00223, slip op. at 8 (Tenn. Crim. App., Jackson, Apr. 21, 1998), and
was again misquoted in State v. Susan Jo Walls, No. M2014-01972-CCA-R3-CD, slip op.
at 36 (Tenn. Crim. App., Nashville, Apr. 7, 2016), a case on which both parties appear to
have relied extensively in addressing the legal portion of this issue in their briefs before
this court.

             In any event, Rule 26.2 does not cover the unintentional loss of a witness’s
statement. If it did, it would eliminate the need for the application of Ferguson and
Merriman to lost or destroyed statements and would lead to an absurdity.

               This issue is appropriately analyzed, as it was initially by the trial court,
under the rubric of Ferguson and Merriman. In Ferguson, our supreme court “explained
that the loss or destruction of potentially exculpatory evidence may violate a defendant’s
right to a fair trial.” Merriman, 410 S.W.3d at 784 (citing Ferguson, 2 S.W.3d at 915-
16). The court observed that “the due process required under the Tennessee Constitution
was broader than the due process required under the United States Constitution” and
rejected the “bad faith” analysis espoused by the United States Supreme Court,
Merriman, 410 S.W.3d at 784-85 (quoting Arizona v. Youngblood, 488 U.S. 51, 58
(1988) (holding “that unless a criminal defendant can show bad faith on the part of the
police, failure to preserve potentially useful evidence does not constitute a denial of due
process of law”)), in favor of “a balancing approach in which bad faith is but one of the
factors to be considered in determining whether the lost or destroyed evidence will
deprive a defendant of a fundamentally fair trial,” Merriman, 410 S.W.3d at 785. The
supreme court “observed that fundamental fairness, as an element of due process,
requires a review of the entire record to evaluate the effect of the State’s failure to
preserve evidence.” Id. at 784-85 (citing Ferguson, 2 S.W.3d at 914, 917).

              To facilitate this “balancing approach,” our supreme court ruled that the
trial court must first “determine whether the State had a duty to preserve the evidence,”
Merriman, 410 S.W.3d at 785, and observed that the State’s duty to preserve was
“limited to constitutionally material evidence,” id. The court held that to be
                                            -8-
“constitutionally material,” the evidence “must potentially possess exculpatory value and
be of such a nature that the defendant would be unable to obtain comparable evidence by
other reasonably available means.” Id. (citing Ferguson, 2 S.W.3d at 915, 918). “If the
trial court determines that the State had a duty to preserve the evidence, the court must
determine if the State failed in its duty.” Merriman, 410 S.W.3d at 785 (citing Ferguson,
2 S.W.3d at 917). If the trial court concludes that the State lost or destroyed evidence
that it had a duty to preserve, the trial court must then consider three factors to determine
the appropriate remedy for the State’s failure:

              “(1) [t]he degree of negligence involved;
              (2) [t]he significance of the destroyed evidence, considered in
              light of the probative value and reliability of secondary or
              substitute evidence that remains available; and
              (3) [t]he sufficiency of the other evidence used at trial to
              support the conviction.”

Merriman, 410 S.W.3d at 785 (quoting Ferguson, 2 S.W.3d at 917). “If the trial court
concludes that a trial would be fundamentally unfair without the missing evidence, the
trial court may then impose an appropriate remedy to protect the defendant’s right to a
fair trial, including, but not limited to, dismissing the charges or providing a jury
instruction.” Merriman, 410 S.W.3d at 785-86.

               We review the trial court’s decision concerning the fundamental fairness of
a trial conducted without the missing evidence under a de novo standard of review. Id. at
791 (“Because the application of Ferguson . . . presents a constitutional issue, we will
apply a de novo standard of review to the trial court’s decision concerning the
fundamental fairness of the trial.”). The trial court’s choice of remedy, however, will not
be overturned on appeal absent a showing that the trial court abused its discretion. Id. at
792 (“Thus, when the chosen remedy is consistent with the findings made by the trial
court utilizing the Ferguson considerations, we will not overrule that choice on appeal.”).

              In the instant case, we begin by concluding that, contrary to the defendant’s
assertion, the trial court committed no error in its application of the Ferguson and
Merriman standards. Indeed, the trial court, after determining that the State had failed in
its duty to preserve the victim’s statement, thoroughly considered all relevant factors
before determining that the dismissal of the case was unwarranted. The trial court went
on to say that, as the trier of fact, it would “take into consideration the fact that there was
a statement and now it’s missing or lost, for [defense counsel] to make whatever
argument you want to make out of that to [the court] concerning credibility” and that the
court intended to take its “cues from the live testimony that [it] hear[s] today and what
[the court has] seen on the video that’s been played by the victim and what [the court has]
                                             -9-
heard the victim say on the date that this incident allegedly occurred.” Given the
additional evidence of the victim’s statements through the 9-1-1 recordings, the body
camera footage, and the preliminary hearing testimony, we cannot say that the absence of
the victim’s written statement resulted in a proceeding that was fundamentally unfair, and
we find no abuse of discretion in the lower court’s denial of the defendant’s motion to
dismiss.

                             II. Failure to Collect Evidence

              The defendant contends that the trial court erred by failing to find that the
defendant’s due process rights had been violated by the loss or destruction of a video
recorded at the crime scene by Officer Myers. The State responds that the trial court
properly determined that the video recording did not exist.

                When it came to light at trial that the victim’s written statement was
missing, the trial court asked the parties if there was any additional video footage from a
different officer’s body camera, and the State responded that it had requested “all videos”
and that the only videos it was aware of were those of SCSD Deputy Parton. Defense
counsel stated that Deputy Parton, during his testimony, had referenced the body camera
worn by PCPD Officer Myers and that “though the State has no duty to produce evidence
that doesn’t exist or have a duty to create evidence,” the possible existence of a video
taken from Officer Myers’ body camera could provide potentially excuplatory material.
The trial court ruled that there was “no evidence whether the video exists” and suggested
that the defense would need “to explore that with” Officer Myers. Officer Myers was not
called as a trial witness by either party.

             When the trial court readdressed the defendant’s motion to dismiss based
on the victim’s missing statement at the conclusion of the victim’s direct examination,
defense counsel mentioned that the motion was also based on “the potentially missing
video.” The court responded that if counsel was basing the motion “on a potentially
missing video, there is no proof that the video even existed” and without such proof, the
court must deny the motion.

             At the hearing on the motion for new trial, the State presented the testimony
of PCPD Officer Myers, who stated that he was equipped with a body camera when he
responded to the victim’s 9-1-1 call on April 18 but that he did not recall activating the
camera during his interactions with the victim. Officer Myers explained that his camera
could be activated by either pushing a button or by using a voice-activated or “VOX”
option that would initiate recording upon detecting the sound of someone’s voice.
Officer Myers testified that he did not use the VOX option on April 18. When he later
located the defendant hiding in a barn, Officer Myers pushed the button to activate his
                                           - 10 -
camera and recorded the defendant “standing on a chair” with “two dog leashes around
his throat and around the rafter of the barn.” Officer Myers recalled reviewing the video
footage to ensure that his camera had been operational.

             The State also called PCPD Chief Michael Voncannon, who testified that
he had examined the department’s computers on four separate occasions and found no
videos from Officer Myers. Chief Voncannon stated that the department no longer used
body cameras and that he had no way of determining whether any videos from Officer
Myers had ever been loaded onto the department’s computers or if any videos had been
deleted. Chief Voncannon stated that, at the time of victim’s assault, the PCPD
employed a total of four officers.

               At the conclusion of Chief Voncannon’s testimony, the defendant argued
that he had “established that there was a video” on the basis that Officer Myers had
activated his body camera during his encounter with the defendant and that it followed
that the officer must have recorded his earlier interactions with the victim. In denying the
defendant’s motion for new trial, the trial court concluded that there was “no proof that
Officer Myers actually had a video of his initial encounter with” the victim.

               We begin our analysis of this issue by observing that Ferguson requires the
initial step of determining whether law enforcement officers had a duty to preserve the
evidence at issue. Ferguson, 2 S.W.3d at 917. At trial, neither party called Officer
Myers as a witness, and no proof was presented to show that a video recorded by Officer
Myers ever existed. Thus, the trial court’s denial of the defendant’s motion to dismiss on
this basis should have ended the inquiry. However, in response to the defendant’s
revisting the issue in his motion for new trial, the State presented the testimony of both
Officer Myers, who stated that he had not recorded his interactions with the victim, and
Chief Voncannon, who testified that no video created by Officer Myers existed. “[T]his
court has repeatedly refused to grant Ferguson relief when there was no proof that the
alleged evidence existed.” State v. Angela K. Pendergrass, No. E2013-01409-CCA-R3-
CD, slip op. at 9 (Tenn. Crim. App., Knoxville, Mar. 25, 2014); State v. Randall S.
Sparks, No. M2005-02436-CCA-R3-CD, slip op. at 6 (Tenn. Crim. App., Nashville, Aug.
4, 2006) (citing State v. Timothy D. Prince, No. M2004-01262-CCA-R3-CD, slip op. at 5
(Tenn. Crim. App., Nashville, May 3, 2005); State v. Linda H. Overholt, No. E2003-
01881-CCA-R3-CD, slip op. at 7 (Tenn. Crim. App., Knoxville, Jan. 21, 2005); State v.
George R. Croft, No. W2001-00134-CCA-R3-CD, slip op. at 7 (Tenn. Crim. App.,
Jackson, Nov. 20, 2002)). Because a video recording by Officer Myers never existed, the
defendant is not entitled to relief.




                                           - 11 -
                            III. Correction of Clerical Error

               Although not raised by either party, we detect an error that requires
correction in the defendant’s judgment for aggravated assault. Based on the transcript of
the sentencing hearing, the defendant was sentenced as a mitigated offender, and on the
judgment form in count 3, the trial court correctly checked the box for “Mitigated” in the
offender status section. In the release eligibility section, however, the trial court
erroneously checked the box for “Standard 30%.” On remand, the trial court should
amend the judgment to reflect the proper mitigated release eligibility percentage.

                                       Conclusion

             Based upon the foregoing analysis, we affirm the judgments of the trial
court but remand for correction of the aggravated assault judgment as outlined in this
opinion.

                                                    _________________________________
                                                   JAMES CURWOOD WITT, JR., JUDGE




                                          - 12 -
