        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs April 14, 2015

                 STATE OF TENNESSEE v. MICHAEL SMITH

                  Appeal from the Criminal Court for Shelby County
                   No. 09-04071      James M. Lammey, Jr., Judge


              No. W2014-00900-CCA-R3-CD - Filed October 21, 2015


The defendant, Michael Smith, was convicted of aggravated burglary and sentenced as a
Range II, multiple offender to ten years, the sentence to be served consecutively to a
sentence previously imposed in another matter. On appeal, he argues that the evidence is
insufficient to support his conviction and that the trial court erred by the following
rulings: (1) instructing as to flight; (2) concluding that the defendant could be impeached
with prior convictions for rape and attempted rape; (3) engaging in an ex parte
communication with the jury; (4) refusing to grant a mistrial; (5) concluding the
defendant could receive a fair trial even though the State had lost or destroyed recordings
of telephone calls and jail visits; and (6) not allowing the defendant to present certain
proof to impeach one of the State‟s witnesses. Following our review, we conclude that
the issues raised on appeal are without merit and affirm the judgment of the trial court.

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

THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and NORMA MCGEE OGLE, JJ., joined.

Lance R. Chism, Memphis, Tennessee (on appeal); Michael Smith, Pro Se (at trial), for
the appellant, Michael Smith.

Herbert H. Slatery III, Attorney General and Reporter; Rachel E. Willis, Senior Counsel;
Amy P. Weirich, District Attorney General; and Paul Goodman, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                        OPINION

       The relationship between the defendant and his former girlfriend, Kimberly
Chrestman, who testified at both trials of this matter, has a history in the court system. In
State v. Michael Smith, No. W2011-01630-CCA-R3-CD, 2013 WL 3702369, at *1
(Tenn. Crim. App. July 12, 2013), the first trial regarding the events, the defendant was
convicted of aggravated burglary, a Class C felony, and assault, a Class A misdemeanor,
and sentenced to an effective term of seven years. Next, in State v. Michael Smith, No.
W2013-01190-CCA-R3-CD, 2014 WL 3954062, at *1 (Tenn. Crim. App. Aug. 13,
2014), perm. app. granted (Tenn. Dec. 18, 2014), he was convicted of aggravated assault
of Ms. Chrestman for violating an order of protection and evading arrest and sentenced to
ten years and eleven months, twenty-nine days, respectively. Finding that the defendant
was a “dangerous offender,” the trial court ordered that the sentences be served
consecutively. Additionally, in Michael W. Smith v. Kimberly Chrestman, No. W2013-
02478-COA-R3-CV, 2014 WL 1510420, at *1 (Tenn. Ct. App. Apr. 16, 2014), acting pro
se, the defendant sued Ms. Chrestman for, allegedly, exposing him to Hepatitis C and
stealing items from him. The trial court dismissed the complaint for lack of prosecution.
We now proceed with our review of this matter.

                                        FACTS

       This appeal is from the second time the defendant has been convicted of
aggravated burglary, based upon the same set of facts. His first conviction was reversed
by this court and remanded for a new trial after this court concluded that the trial court
had erred by constructively amending the indictment in its charge to the jury. Michael
Smith, 2013 WL 3702369, at *1. At the second trial, the defendant proceeded pro se and,
again, was convicted.

       Matthew Ronning testified that, at the time of the incident resulting in the
indictment in this matter, he was living in a two-bedroom apartment, and a female
acquaintance, Marris Orange, lived in the second bedroom. On February 9, 2009, Ms.
Chrestman came to his apartment and said she wanted to stay “until it was light out and
she could leave again.” Ms. Orange also was present. In the early morning hours of the
following day, Ms. Chrestman said she wanted to go to her mother‟s house in
Mississippi, and Mr. Ronning agreed to drive her there. As they left the apartment
together and went to his car, Mr. Ronning heard a scream and felt his “knee give out.”
He looked and saw the defendant as he kicked Mr. Ronning in the side of his knee, where
two months earlier, he had knee replacement surgery. The defendant was aware of the
knee replacement surgery. He then stabbed Mr. Ronning in the back with a screwdriver
and tried to do so again, as Mr. Ronning held onto the defendant‟s hand grasping the
screwdriver. He rolled under the car and tried to use his cell phone, which the defendant
kicked. Mr. Ronning was able to call 911 and report that he was being attacked. Seeing
that the defendant no longer was by the car, Mr. Ronning noticed his car keys, including
the key to his apartment, were missing, and he then approached other apartments seeking
help. He said he did not give the defendant permission to enter his apartment.

                                            2
        Gregory Hilliard testified that he was a detective in the Organized Crime Unit
Project Safe Neighborhoods, of the Memphis Police Department. On February 10, 2009,
he responded to an assault and burglary call at a location near Madison Avenue and
Evergreen Street, near Zinnie‟s Restaurant. At the scene, they found Mr. Ronning
bleeding from his head. Inside the apartment were two women, and officers saw that a
bedroom door had been kicked in, and a bathroom window broken. While officers were
at the scene, an ambulance arrived and transported the victim to the hospital.

       Officer Michael Garner testified that he had been employed by the Memphis
Police Department for nine years, and in February 2009 he was a detective assigned to
the Investigative Support Unit. He said that on February 17 of that year, he and other
officers went to an apartment at 1050 North Parkway in Memphis to transport the
defendant to the Robbery Bureau. The defendant‟s father was in the apartment, and
Officer Garner noticed the access to the attic was open. Officer Garner drew his pistol,
looked into the attic, and saw the entrance to the next-door apartment was open. He then
looked down into the second apartment, heard a door close, and dropped down into that
apartment. The defendant was there and was handcuffed by another officer.

       Kimberly Chrestman testified that the defendant was her former boyfriend. She
said that, on February 9, 2009, after she and the defendant had argued at their apartment,
she left to go to the apartment of Matthew Ronning. She saw the defendant “pop[] up in
the window” of Mr. Ronning‟s apartment. The following morning, she was watching as
Mr. Ronning, whom she called “Sonny,” walked to his car, and he was attacked from
behind by the defendant. She described the attack:

      I know that Sonny tried to get away from him by crawling underneath the
      car even. At one point [the defendant] got in the car and me and Mimi
      [Marris Orange] were standing back. And we see him doing this and of
      course he had something silver and shiny in his hand. We didn‟t know
      what it was. We thought he was killing him right there. We thought he
      was dead.

        She saw Mr. Ronning screaming and banging on windows for help, as the
defendant continued “beating on him.” Soon, the defendant entered into the apartment,
kicked open the door of the room she was in, and jerked her out by the hair. He then
began beating and cursing her but ran away at the same time that Ms. Chrestman heard
sirens.

      The defendant presented one witness in his defense. Charles Beasley testified that
he was acquainted with Matthew Ronning, Kimberly Chrestman, and the defendant. On
February 9, 2009, he and “Shannon” went to Mr. Ronning‟s residence “to mak[e] sure
                                            3
that [the defendant] wasn‟t around.” Mr. Beasley did not see the defendant there. He
said that Mr. Ronning, Ms. Chrestman, and Ms. Orange were smoking crack in the
apartment. Following this testimony, the defendant rested his case.

                                       ANALYSIS

       We will review the issues raised by the defendant on appeal.

                             I. Sufficiency of the Evidence

       The defendant argues that the evidence at trial is insufficient to sustain his
conviction for aggravated burglary, asserting, specifically, that “no reasonable juror could
have accredited the testimony given by Mr. Ronning and Ms. Chrestman since neither
was a believable witness.”

       When an appellant challenges the sufficiency of the convicting evidence, the
standard for review by an appellate court is “whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443
U.S. 307, 319 (1979); Tenn. R. App. P. 13(e). The State is entitled to the strongest
legitimate view of the evidence and all reasonable or legitimate inferences which may be
drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions
concerning the credibility of witnesses and the weight and value to be afforded the
evidence, as well as all factual issues raised by the evidence, are resolved by the trier of
fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This court will not reweigh or
reevaluate the evidence, nor will this court substitute its inferences drawn from the
circumstantial evidence for those inferences drawn by the jury. Id. Because a jury
conviction removes the presumption of innocence with which a defendant is initially
cloaked at trial and replaces it on appeal with one of guilt, a convicted defendant has the
burden of demonstrating to this court that the evidence is insufficient. State v. Tuggle,
639 S.W.2d 913, 914 (Tenn. 1982).

       A guilty verdict can be based upon direct evidence, circumstantial evidence, or a
combination of direct and circumstantial evidence. State v. Hall, 976 S.W.2d 121, 140
(Tenn. 1998). “The jury decides the weight to be given to circumstantial evidence, and
„[t]he inferences to be drawn from such evidence, and the extent to which the
circumstances are consistent with guilt and inconsistent with innocence, are questions
primarily for the jury.‟” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting State
v. Marable, 203 Tenn. 440, 313 S.W.2d 451, 457 (Tenn. 1958)). “The standard of review
„is the same whether the conviction is based upon direct or circumstantial evidence.‟”

                                             4
State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279
S.W.3d 265, 275 (Tenn. 2009)).

       Aggravated burglary is defined as “burglary of a habitation.” Tenn. Code Ann. §
39-14-403(a). As instructed to the jury, “[a] person commits burglary who, without the
effective consent of the property owner . . . [e]nters a building and commits . . . a . . .
assault.” Tenn. Code Ann. § 39-14-402(a)(3). “Habitation” means “any structure,
including buildings, module units, mobile homes, trailers, and tents, which is designed or
adapted for the overnight accommodation of persons.” Tenn. Code Ann. § 39-14-
401(1)(A). “„Habitation‟ also includes garages and other outbuildings that are „separately
secured and occupied portions‟ of a habitation.” Tenn. Code Ann. § 39-14-403,
Sentencing Comm‟n Cmts.

        On appeal, the defendant points out a number of alleged discrepancies in the
testimony of the State‟s witnesses at this trial, as well as their testimony during the first
trial of this matter. As we have set out, it is for the jury to resolve any inconsistencies in
the testimony of witnesses; and, we have no basis to reweigh or reevaluate the evidence
in this matter. As for the defendant‟s assault upon Ms. Chrestman, the State‟s proof
showed that, without permission, he entered the apartment through a locked door, broke
through a bedroom door, grabbed Ms. Chrestman by the hair, and beat her as he pulled
her toward the door. From this evidence, we conclude that a reasonable jury could have
determined that the defendant illegally entered the apartment with the intent of assaulting
Ms. Chrestman.

       This assignment is without merit.

                         II. Jury Instruction Regarding Flight

       The defendant argues that the evidence did not warrant the trial court‟s instructing
the jury as to flight. The State responds that the defendant‟s flight was circumstantial
evidence of his guilt.

       Accordingly, trial courts have the duty to give “a complete charge of the law
applicable to the facts of the case.” State v. Davenport, 973 S.W.2d 283, 287 (Tenn.
Crim. App. 1998) (citing State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986)). An
instruction will be considered prejudicially erroneous only if it fails to submit the legal
issues fairly or misleads the jury as to the applicable law. State v. Faulkner, 154 S.W.3d
48, 58 (Tenn. 2005) (citing State v. Vann, 976 S.W.2d 93, 101 (Tenn. 1998)).

       A flight instruction is warranted when “proof of „both a leaving the scene of the
difficulty and a subsequent hiding out, evasion, or concealment in the community, or a
                                              5
leaving of the community for parts unknown‟” has been presented at trial. State v. Burns,
979 S.W.2d 276, 289-90 (Tenn. 1998) (quoting State v. Payton, 782 S.W.2d 490, 498
(Tenn. Crim. App. 1989)). The State can satisfy the subsequent hiding out, evasion, or
concealment requirement by introducing evidence from which a jury might infer such
action. State v. Terrance Wilks, No. W1999-00279-CCA-R3-CD, 1999 WL 1097832, at
*4 (Tenn. Crim. App. Nov. 22, 1999) (citing Payton, 782 S.W.2d at 490; Rogers v. State,
2 Tenn. Crim. App. 491, 455 S.W.2d 182, 186-87 (Tenn. Crim. App. 1970)). “Any
contradictory evidence that serves to rebut the [S]tate‟s proof merely raises a question for
the jury to resolve.” Id. (citing Hall v. State, 584 S.W.2d 819, 821 (Tenn. Crim. App.
1979)).

       The trial court instructed the jury as follows regarding flight:

              The flight of a person accused of a crime is a circumstance which,
       when considered with all the facts of the case, may justify an inference of
       guilt. Flight is the voluntary withdrawal of oneself for the purpose of
       evading arrest or prosecution for the crime charged. Whether the evidence
       presented proves beyond a reasonable doubt that the defendant fled is a
       question for your determination.

               The law makes no precise distinction as to the manner or method of
       flight; it may be open, or it may be a hurried or concealed departure, or it
       may be a concealment within the jurisdiction. However, it takes both a
       leaving the scene of the difficulty and a subsequent hiding out, evasion, or
       concealment in the community, or a leaving of the community for parts
       unknown, to constitute flight.

               If flight is proved, the fact of flight alone does not allow you to find
       that the defendant is guilty of the crime alleged. However, since flight by a
       defendant may be caused by a consciousness of guilt, you may consider the
       fact of flight, if flight is so proven, together with all of the other evidence
       when you decide the guilt or innocence of the defendant. On the other
       hand, an entirely innocent person may take flight and such flight may be
       explained by proof offered, or by the facts and circumstances of the case.

             Whether there was flight by the defendant, the reasons for it, and the
       weight to be given to it, are questions for you to determine.

       According to the State‟s evidence, the defendant twice fled – first, he stopped
beating Ms. Chrestman and fled the apartment when police sirens could be heard and,
second, several days later, when an attempt was made to arrest him. On the second
                                              6
occasion, officers found in the defendant‟s father‟s apartment a ladder into an open attic
door and a corresponding open attic door in the next-door apartment, where the defendant
was found. We conclude that a reasonable jury could have determined that the defendant
had twice fled.

       In any event, even if it was error for the trial court to give the flight instruction,
such error was harmless beyond a reasonable doubt. As noted by our supreme court in
State v. Smith, 893 S.W.2d 908 (Tenn. 1994):

               Even if an instruction on flight should not have been given, any error
       is not reversible. The Court instructed the jury that whether the Defendant
       fled was a question solely for their decision, that they need not infer flight,
       and that flight alone was insufficient to prove guilt. This, coupled with the
       overwhelming proof of Defendant‟s guilt, renders any error as to the flight
       instruction harmless.

Id. at 918.

       Just as in Smith, the trial court instructed the jury that whether the defendant fled
was a question for its determination and that flight alone was not sufficient to find the
defendant guilty. The instruction, read as a whole, and in light of the facts of this case,
renders any error in giving the flight instruction harmless.

              III. Impeachment with Defendant’s Prior Rape Convictions

       The defendant argues that the trial court erred by ruling that he could be
impeached with his prior convictions for rape and attempted rape. The State disputes this
and responds that the opinion of this court regarding the defendant‟s first conviction for
this offense concludes that the trial court, in that case, correctly determined that these
convictions were admissible. Thus, in the State‟s view, the law of the case applies.

       Following consideration of the State‟s motion to impeach the defendant with his
prior felony convictions, applying Tennessee Rule of Evidence 609, the trial court
explained why the defendant could be questioned regarding two of his prior felony
convictions:

               The two prior rapes, however, they are felonies and within the ten
       years. I believe in the interest of justice that if the defendant were to testify,
       . . . the State should be allowed to ask him about these. It meets the
       requirements under the law. It‟s not the same charge that‟s on trial here.

                                               7
      So for those reasons I‟m going to allow it. So those are the only two
      convictions, State, that you can ask about.

        In two previous proceedings, this court concluded that, should the defendant
testify, he could be impeached with these two convictions. In Michael Smith, 2013 WL
3702369, at *13, a panel of this court concluded that they were admissible because “they
were probative of the defendant‟s credibility and not similar to the offenses for which he
was on trial.” Likewise, in Michael Smith, 2014 WL 3954062, at *15, a different panel
of this court, reviewing the defendant‟s convictions for aggravated assault and evading
arrest, concluded that, should he testify in that trial, he could be cross-examined
regarding these same two prior convictions, as well as a 2011 conviction for aggravated
burglary, saying that the trial court had not abused its discretion in determining that the
defendant could be impeached with the convictions.

       The “law of the case” doctrine applies to issues that were actually before the
appellate court in the appeal and to issues that were necessarily decided by implication.
See State v. Jefferson, 31 S.W.3d 558, 560-61 (Tenn. 2000) (citing Memphis Publ'g Co.
v. Tennessee Petroleum Underground Storage Tank Bd., 975 S.W.2d 303, 306 (Tenn.
1998)). When an initial appeal results in a remand to the trial court, the decision of the
appellate court establishes the law of the case which generally must be followed upon
remand by the trial court, and by an appellate court if a second appeal is taken from the
judgment of the trial court after remand. Id. The “law of the case” doctrine prohibits
reconsideration of issues that have already been decided in a prior appeal of the same
case. Id.

      Accordingly, applying this doctrine with the holding of this court in the
defendant‟s first trial of this matter, we conclude that the trial court did not err in
determining that the defendant could be impeached with evidence of these two prior
convictions.

                           IV. Ex Parte Communication with Jury

       While the jury was deliberating, the jurors sent to the judge a note, which said,
“What happens if the jury is undecided about a charge?” On that note, the judge
responded: “Keep working and do your best to come to an agreement. Re-read page 11.”
Later that day, the jury sent a second note, in which the phrase, “Assault – Bodily injury
– do we have,” was written and crossed out, followed by the question, “If we throw out
the credibility of the witness, do we have a case?” To this, the trial judge responded in
writing on the jurors‟ note, “I cannot comment on the credibility of witnesses. That is
your job as a jury collectively and unanimously.”

                                            8
       These communications later were discussed in court as the defendant, himself,
argued that the trial court should recuse itself from the proceeding partly because of these
ex parte questions and responses. The trial court declined the recusal request. On appeal,
the defendant argues that, had he been brought into the courtroom before the court
responded to the questions, the parties “would have been able to grasp the true meaning
of the jury‟s question regarding the credibility of the witness,” and he “would have been
able to offer some helpful suggestions as to how best to handle the jury‟s question
regarding the credibility of the witness.”

       The State responds that, while the trial court did not follow the proper procedure
in responding to the jury questions, the defendant cannot show that he was prejudiced as
a result.

       We agree with the defendant that the jury‟s questions should have been addressed
in open court in the presence of the parties. State v. Tune, 872 S.W.2d 922, 929 (Tenn.
Crim. App. 1993). However, the failure to follow this procedure is subject to a harmless
error analysis. Id. Reversal is normally not required unless the defendant has been
prejudiced by an inappropriate response. Id.

       In this matter, as to the first jury question, the trial court restated to the jurors their
responsibility and directed that they reread page 11 of the charge. As to the second
question, the court declined comment and, again, restated the responsibility of the jury.
Given the nature of these questions, and the specific responses by the trial court, we
cannot conclude that the defendant was prejudiced by the fact the judge responded to the
questions out of the presence of the parties. Accordingly, this assignment is without
merit.

                             V. Denial of Request for Mistrial

      On appeal, the defendant argues that the trial court should have granted a mistrial
because of certain responses given by the witness, Kimberly Chrestman, as the defendant
was cross-examining her. The State disagrees, as do we.

       The defendant‟s first conviction resulting from this episode was reversed because
of an error by the trial court. The other convictions resulted from his committing an
aggravated assault upon Ms. Chrestman. Given all of this, it is not surprising that Ms.
Chrestman was other than cooperative when being cross-examined by the defendant
himself. During his cross-examination, the defendant was directed by the trial court not
to stand so close to Ms. Chrestman, and, on another occasion, the State asked that he not
do so. His cross-examination was long, tedious, and argumentative. The State made
numerous objections to the form and relevance of the defendant‟s questions; and the
                                                9
court, likewise, found a number of the questions irrelevant and instructed the defendant
not to ask another question while the State still was objecting to his previous question.
For instance, the defendant asked Ms. Chrestman why she did not tell the officers
responding to the 911 call that he had assaulted her in the bedroom, and her answer, in
part, was “[b]ecause this was an everyday occurrence with me and you.” The defendant
then objected to this answer, but the trial court agreed with the State that it was invited by
his question. He asked if she had not posted bond for him after he was arrested and then
objected to her response, “Michael, I‟ve helped you post bond several times like a
dummy.” He asked if she had not talked with his previous lawyer, Javier Bailey, out of
the defendant‟s presence and then objected to her explanation, “You were in prison.”

        Following other back and forth questions between the defendant and the witness,
the trial court, out of the presence of the jury, assisted by the State, advised the witness to
maintain her composure. At this point, the defendant asked for a mistrial based upon the
responses of Ms. Chrestman, which the court denied, saying, “You can‟t cause a mistrial
and then ask for one.”

        The decision of whether or not to declare a mistrial lies within the sound discretion
of the trial court. State v. Land, 34 S.W.3d 516, 527 (Tenn. Crim. App. 2000). A
mistrial should be declared in a criminal case only when something has occurred that
would prevent an impartial verdict, thereby resulting in a miscarriage of justice if a
mistrial is not declared. See Id.; State v. Jones, 15 S.W.3d 880, 893 (Tenn. Crim. App.
1999); Arnold v. State, 563 S.W.2d 792, 794 (Tenn. Crim. App. 1977). “Generally a
mistrial will be declared in a criminal case only when there is a „manifest necessity‟
requiring such action by the trial judge.” State v. Millbrooks, 819 S.W.2d 441, 443
(Tenn. Crim. App. 1991) (quoting Arnold, 563 S.W.2d at 794). A manifest necessity
exists when there is “no feasible alternative to halting the proceedings.” State v. Knight,
616 S.W.2d 593, 596 (Tenn. 1981). The burden to show the necessity for a mistrial falls
upon the party seeking the mistrial. Land, 34 S.W.3d at 527. This court will not disturb
the trial court‟s decision unless there is an abuse of discretion. Id.

       While the witness volunteered additional and sometimes non-responsive
comments to the defendant‟s questioning, his irrelevant, confusing, and aggressive
questions invited much of the information and opinions he objected to. We conclude that
the trial court did not abuse its discretion in denying the defendant‟s request for a
mistrial.




                                              10
                           VI. Lost or Destroyed Jail Records

       The defendant complains the office of the Shelby Country District Attorney had a
duty to require that the jail preserve recordings of the defendant‟s jail visits and telephone
calls.

       This matter appears to have first arisen following the defendant‟s previous
counsel‟s filing, on January 21, 2014, a motion to dismiss based upon violation of due
process and spoliation of evidence. These records were not sought until the eve of the
defendant‟s second trial in this matter. According to the motion, “the State lost or failed
to preserve audio/video recordings of jail visits and jail phone calls between [the
defendant] and Kimberly Chrestman.” On January 31, 2014, the trial court conducted a
lengthy hearing on the motion. Witnesses testifying were Javier Bailey, a former
attorney who represented the defendant at the first trial of this matter; Michaele Byers,
the keeper of records for the Shelby County Jail; Juaquatta Harris, one of the keeper of
records for telephone calls by inmates of the Shelby County Jail; and the defendant. The
hearing proceeded on the defendant‟s claim that the charges should be dismissed because
of the violation of his right to due process by the Shelby County Jail and the Shelby
County District Attorney.

       Following the hearing, the trial court made oral findings of facts and conclusions
of law:

              There was nothing the state did to cause these records to be
       destroyed. They were never requested – the state was never requested to
       preserve this evidence. The state was not aware of this evidence until such
       time as defense counsel, on or about a week or so before trial, let it be
       known that he wanted these records. That‟s the first mention of any phone
       records.

              ....

               It‟s just like with the jail visitation. They would be glad to record
       the conversations, and, I suppose, the video of the visit, if they were
       specifically asked to do so beforehand. But here we have a situation where
       this was not discovery; this was never specifically asked for by the state –
       this is not Brady evidence. I mean, there‟s an allegation that it‟s Brady
       evidence. If, for instance – let‟s say the state had requested these the day
       that he went into jail; and then, lo and behold, there was all sorts of
       conversation where the victim said, “You know, I‟m just going to lie on
       you – I‟m going to go in there, and I‟m just going to lie on you because I
                                             11
      want you to go to jail even though you‟re innocent;” and then they turned
      around and destroyed it. That‟s what this rule is for. That‟s what this
      evidence is for. That‟s what all this Ferguson analysis – that‟s what it‟s for
      – where they purposely destroy evidence – or they had exculpatory
      evidence and they willingly and maliciously allowed it to be destroyed.
      And that‟s not the case here. Here, defense counsel, based on his own
      initiative, didn‟t want to tip the state off to the fact that he was getting these
      records, so he waited until a week before trial; and a week before trial, he
      says they didn‟t have it; but he never subpoenaed them that I can see.
      There‟s no subpoena in the records that I can see. But I will say that these
      records are rather voluminous but I have flipped through them numerous
      times on all sorts of occasions for all sorts of reasons dealing with [the
      defendant], and I‟ve never seen a subpoena for these records.

             So, I don‟t think the state failed in its duty in any respect. In fact, as
      far as . . . I can tell from this – glean from this proof, whatever was
      contained in those phone records may have been more helpful to the state
      than not.

              And furthermore, you know, it‟s just – I mean, he was enjoined from
      contacting the victim, and here he got under oath that on numerous
      occasions he called the victim from the jail. Holy mackerel. So, . . . each
      one of those is a violation of the court order – “Stay away and not have any
      contact” – each one. I don‟t remember any evidence that the restraining
      order was lifted. So, that‟s the danger, Mr. Smith, of insisting upon running
      your own show and insisting upon doing the things your way. I see nothing
      in what the state did to be faulty in this whatsoever. I think this was a
      mistake, perhaps, on behalf of the defense counsel, but the evidence is not
      there. You have the evidence the phone calls were made; and, I suppose,
      that‟s about as good as it‟s going to get. But I‟m not going to dismiss this
      case based on Ferguson or based on any violation of discovery or Brady or
      for keeping exculpatory evidence away from the defense. I find it‟s just the
      opposite. So, I‟m going to deny the motion to suppress.

        In State v. Ferguson, 2 S.W.3d 912, 914 (Tenn. 1999), the Tennessee Supreme
Court addressed the issue as to what factors guide the determination of the consequences
that flow from the State‟s loss or destruction of evidence which the accused contends
would be exculpatory. The supreme court answered that the critical inquiry was whether
a trial, conducted without the destroyed evidence, would be fundamentally fair. Id. In
reaching its decision, the Ferguson court noted that its inquiry was distinct from one
under Brady v. Maryland, 373 U.S. 83, 87 (1963), and United States v. Agurs, 427 U.S.
                                             12
97, 110-11 (1976), because those two cases addressed “plainly exculpatory” evidence,
while Ferguson addressed a situation “wherein the existence of the destroyed videotape
was known to the defense but where its true nature (exculpatory, inculpatory, or neutral)
can never be determined.” 2 S.W.3d at 915.

       The court went on to explain that the first step in the analysis is determining
whether the State had a duty to “preserve” the evidence. Id. at 917. “Generally speaking,
the State has a duty to preserve all evidence subject to discovery and inspection under
Tenn. R. Crim. P. 16, or other applicable law.” Id. (footnote omitted). However,

       “[w]hatever 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)). Only if the proof
demonstrates the existence of a duty to preserve and further shows that the State has
failed in that duty must a court turn to a balancing analysis involving consideration of the
following factors: “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. (footnote omitted).

       We note that the defendant did not request the jail telephone records or visitation
records until two years after the incident, the eve of the first trial of this matter. Further,
in the appeal which followed that trial, the defendant, then representing himself, did not
raise as an issue the absence of these records. Only off-handedly in his cross-
examination of Ms. Chrestman did the defendant question her about telephone calls,
asking, after numerous questions which brought about in great detail his breaking into the
apartment and beating her, that if her testimony were true, “Why would you be talking to
me on the phone after this happened?” As the defendant continued with similar
questions, the trial court advised the defendant that he was opening the door to proof that,
while in jail after the assault, and in violation of a restraining order, he had made
telephone calls to Ms. Chrestman.

       Applying the considerations of Ferguson, we cannot conclude that the trial court
erred in finding that the non-availability of these records prejudiced the defendant. As
did this court in Brown, we note that, since the defendant waited until two years after the
                                              13
offense to request the records, the State did not have a duty to retain them. As during the
evidentiary hearing in that case, the defendant here did not testify as to the contents of the
conversations or how they would have helped him. Further, the proof against the
defendant was strong. Accordingly, we conclude that this assignment is without merit.

                           VII. Excluding Defense Testimony

       The defendant argues that the trial court undermined his defense by excluding
certain witness testimony. In his brief, he places the testimony into two categories:
excluding proof of how “Ms. Chrestman acts while under the influence” and that “Mr.
Ronning sold drugs to Ms. Chrestman on February 9, 2009.” As to the first category, he
argues that the court erred in excluding witness testimony that, when under the influence
of drugs and/or alcohol, Ms. Chrestman acted “crazy” and like a “whackadoo,” a term
which remains undefined. Another excluded witness would have testified that, when
under the influence, Ms. Chrestman was loud, belligerent, and erratic.

       As to this testimony, the trial court ruled that it was inadmissible, explaining that
“there‟s been no allegation that she was the aggressor here and that she attacked you and
you were defending yourself. There‟s no evidence of that. So self-defense, her violent
behavior is totally irrelevant. And none of these witnesses that I can see can testify to her
truthfulness or untruthfulness.” As for the defendant‟s proffer, the court further said,
“[The State] has not gone into any other instances involving you two. But the door has
already been opened. I‟m surprised the State has not gone through it but it‟s been
opened.”

              And also, these witnesses would not have added anything. You had
       already got it in that she was a crack head thief. So her putting them on for
       purposes of asking them about her reputation for truth and veracity and also
       violent, I think it would have added nothing to the case and it would have
       opened the door to countless things and so I think under the circumstances,
       I had to get that on the record to show my reasoning for not allowing those
       two other witnesses to testify.

        On appeal, the defendant presents a new theory as to why the trial court erred by
not allowing his witnesses to testify regarding how Kimberly Chrestman “acts while
under the influence.” He acknowledges that he has changed his evidentiary theory since
the trial regarding why this evidence was admissible, “Defendant recognizes that he
framed this issue in a manner that focuses on the necessity defense. The more
appropriate argument, however, is that [the witnesses‟] testimony could have been used
to further establish Ms. Chrestman‟s level of impairment in February 9-10, 2009.” Since
the defendant did not argue this evidentiary theory at trial, it is waived. Anticipating this
                                             14
ruling, he next argues that we should review this issue as “plain error.” We decline to do
so, for such a review is not appropriate simply to enable a defendant to change
evidentiary theories.

       As his final argument, the defendant asserts that the trial court erred in not
allowing the testimony of Charles Beasley “as to the fact that Matthew Ronning was
providing the „crack‟ cocaine to Ms. Chrestman, Defendant‟s girlfriend at the time,
knowing she had cancer.” In his pro se motion for new trial, the defendant did, in fact,
make this argument. However, we have reviewed his jury-out questioning of Mr.
Beasley, and the defendant neglected to ask the witness any questions in this regard.
Thus, he is seeking an advisory opinion as to what he expects the trial court would have
ruled on an issue that did not arise. This issue is without merit.

                                    CONCLUSION

        Based upon the foregoing authorities and reasoning, we affirm the judgment of the
trial court.


                                  ____________________________________________
                                  THOMAS T. WOODALL, PRESIDING JUDGE




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