         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                    February 2001 Session

               STATE OF TENNESSEE v. AMMON B. ANDERSON

                     Appeal from the Circuit Court for Cheatham County
                             No. 13489    Allen Wallace, Judge



                     No. M2000-01183-CCA-R3-CD - Filed April 12, 2001


The defendant was indicted for aggravated sexual battery for engaging in sexual contact with a ten-
year-old girl with Down’s Syndrome. He filed a motion to dismiss the indictment, based on the loss
of the tape recording of his interview with a Department of Children’s Services caseworker and a
police officer, and a motion to suppress his one paragraph statement of admission, consisting of the
officer’s summary of the interview. Following the trial court’s denial of the motions, the defendant
entered a plea of nolo contendere to attempt to commit aggravated sexual battery, reserving as a
certified question of law, pursuant to Rule 37(b)(2)(i) of the Tennessee Rules of Criminal Procedure,
whether the trial court erred in denying his motion to dismiss based on the loss of the tape recording
of the interview. Arguing that the statement of admission is subject to misinterpretation when taken
out of the context of the entire interview, the defendant contends that his right to a fair trial was
compromised by the loss or destruction of the tape recording. After a thorough review of the record
and of applicable law, we conclude that the loss of the tape recording did not unfairly prejudice the
defendant’s case. Accordingly, we affirm the defendant’s conviction of attempt to commit
aggravated sexual battery.


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

ALAN E. GLENN, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and ROBERT
W. WEDEMEYER , J., joined.

John B. Nisbet, III, Cookeville, Tennessee; William B. Lockert, III, District Public Defender; and
Steve Stack, Assistant District Public Defender, for the appellant, Ammon B. Anderson.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
Dan Mitchum Alsobrooks, District Attorney General; and Robert S. Wilson, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                             OPINION
       The defendant, indicted for aggravated sexual battery of a ten-year-old child, entered a nolo
contendere plea of guilty to attempt to commit aggravated sexual battery, reserving as a certified
question of law whether the case against him should have been dismissed because the State lost or
destroyed the tape recording of his interview with social workers and a police investigator. After
a thorough review of the record, we conclude that the loss of the tape recording did not unfairly
prejudice the defendant’s case. Accordingly, we affirm the defendant’s conviction.

                                                          FACTS

        The victim in this case, C.B.,1 is a mentally handicapped child.2 In August 1999, the ten-
year-old victim, along with her brothers and her mother, resided in the same Cheatham County
household as the defendant, fifty-six-year-old Ammon B. Anderson. According to the State, the
“very sexually aggressive” victim had a habit of masturbating by performing what the district
attorney general described as a “hump and bump” on the defendant’s leg, with the defendant doing
nothing to stop her. The defendant acknowledged sexual contact with the victim in a September 22,
1999, interview at the Cheatham County Department of Children’s Services (“DCS”) with
caseworker Susan Roberts and Cheatham County Sheriff’s Deputy Sergeant Floyd Duncan.
Although Roberts tape-recorded the interview, the tape was later lost. At the conclusion of the
interview, however, Sergeant Duncan summarized the defendant’s admissions into the following
written statement, signed by the defendant: “I remember 5 or 6 times sexual contact with [C.B.],
most all of it was her riding on top of me and touching my penis. I should have reported this
behavior and gotten help.”

       On December 7, 1999, the Cheatham County Grand Jury indicted the defendant with
aggravated sexual battery of a child under the age of thirteen, a Class B felony, for his sexual contact
with the victim.3

         The defendant filed motions to dismiss the indictment, and to suppress the written statement,
based on the loss of the tape recording of his interview at DCS. The trial court held a hearing on
both motions on April 14, 2000. Patty Oldham, team leader at the Cheatham County Department
of Children’s Services, testified that former DCS caseworker Susan Roberts, Cheatham County
Sheriff’s Deputy Sergeant Floyd Duncan, and a student, Deborah Pickett, had been present at the
interview with the defendant. After the interview, Roberts had told Oldham that they had been able
to get a confession in the case. Although Roberts had tape-recorded the interview, Oldham had not
been able to locate the tape, and could not explain what had happened to it. Roberts had given


        1
            It is the policy of this court to identify minor victims of sexual offenses by initials only.

        2
            The victim has Down’s Syndrome.

        3
         Aggravated sexual ba ttery is defined in Tennessee Code Annotated Section 39-13-504(a) (1997) as “unlawful
sexual contact with a victim by the defendant or the defendant by a victim accompanied by any of the following
circumstances: . . . (4) The victim is less than thirteen (13) years of age.”

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Oldham the case file when she left the department in December 1999, but Oldham had not
inventoried the file and did not know whether the tape had been included with other interview tapes
she had received.

         The defendant testified that he had been “under real extreme nervous condition” when he
gave the approximately fifteen to twenty minute interview at DCS, explaining that he was “on quite
a bit of medication for depression and anxiety.” He remembered signing the one paragraph
statement written by Sergeant Duncan, but said that he had not read it, and that Duncan had not read
it to him. Although he acknowledged that the statement was “pretty close,” the defendant indicated
that it did not completely reflect what had been said in the interview, in that it did not reveal that
the “5 or 6 times sexual contact” had all been initiated by the victim, in which she had “sneak[ed]
into [his] bed and [got] up and straddle[d] [him] and start[ed] rubbing . . . .” He said that when he
made the statement, “I should have reported this behavior and gotten help,” he had been referring
to getting help for the victim, rather than himself.

        The State called Sergeant Floyd Duncan, Jr., who stated that he had taken a statement from
the defendant at the conclusion of the defendant’s interview at DCS. 4 He said that he had read the
defendant his rights before the interview, and the defendant indicated that he understood those rights.
Duncan testified that DCS had tape-recorded the session for their purposes, and that he had not been
given the tape. At the end of the session, he had reduced the essence of the defendant’s admissions
during the interview into the one paragraph statement, which he had then read to the defendant. The
defendant indicated that he understood what had been read, made no objection to the way the
statement had been worded, and signed the statement. On cross-examination, Sergeant Duncan
acknowledged that they had been aware that the victim was an “aggressive sexual child” with a prior
history of sexual abuse, and that that fact had been discussed with the defendant during the
interview.

        At the conclusion of the hearing, the trial court denied the defendant’s motions, ruling that
the statement was admissible, and that how much weight, if any, it should carry would be a matter
for the jury to determine. Following the denial of his motions, on April 17, 2000, the defendant
entered a plea of nolo contendere to attempt to commit aggravated sexual battery. He was sentenced
to three years, suspended, and placed on three years’ probation. The defendant reserved the
following certified question of law:

                 Whether the introduction into evidence of the Defendant’s signed
                 statement written out by state investigators when the State had lost or
                 destroyed the original tape recording of the interview thereby
                 preventing Defendant from introducing the exact contents of his



        4
           It is unclear from the record whether Sergeant Duncan merely sat as a silent ob server w hile Rob erts
interview ed the de fendan t, or wheth er he took an active ro le in questio ning.

                                                      -3-
                statement violates Defendant’s right to a fundamentally fair trial by
                due process standards.


        The defendant timely appealed to this court.

                                             ANALYSIS

        Before we may address the issue presented for review, we must first consider whether we
have jurisdiction to hear this appeal. See State v. Preston, 759 S.W.2d 647, 651 (Tenn. 1988). In
Preston, our supreme court set forth the requirements that must be met for an issue to be properly
certified for appeal. Under Rule 37(b)(2)(i), an appeal lies from a guilty plea if the final order or
judgment contains a statement of the dispositive certified question of law reserved by the defendant,
which clearly identifies the scope and limits of the legal issue reserved. See id. at 650; see also State
v. Pendergrass, 937 S.W.2d 834, 836-37 (Tenn. 1996). The order or judgment must state that the
certified question was expressly reserved as part of a plea agreement. It must further state that the
trial court and the State consent to the agreement, and agree that the issue is dispositive of the case.
Preston, 759 S.W.2d at 650. However, if the appellate court does not agree that the question is
dispositive, appellate review must be denied. Id.

        The final judgment in this case complies with the requirements set forth in Preston, stating
the exact question of law that the defendant reserved, that the State and the trial judge consented to
the plea, and that both the State and the trial judge agreed that the question was dispositive of the
case. An issue is dispositive if, based on the resolution of the issue, this court must either affirm the
conviction, or reverse and dismiss. State v. Wilkes, 684 S.W.2d 663, 667 (Tenn. Crim. App. 1984).
“That is to say that, if we should find the appellant’s position correct, there would be no case to
prosecute as there would be no proof to convict.” State v. George Milton Brooks, No. 02C01-9804-
CC-00116, 1998 WL 775649, at *3 (Tenn. Crim. App. Nov. 6, 1998), perm. to appeal denied (Tenn.
1999). The record in this case reflects that the State acknowledged at the guilty plea hearing that
without the statement of admission, it would have no evidence to present against the defendant,
because the victim would be unable to testify. We therefore conclude that we have jurisdiction to
consider the issue on appeal.

        The defendant contends that the trial court erred by denying his motion to dismiss the
indictment. He argues that the loss of the tape recording deprived him of evidence that was essential
to his defense, preventing him from receiving a fair trial. The State disagrees, arguing that the
defendant has failed to demonstrate that his right to a fair trial was impeded by the loss of the tape
recording.

        In State v. Ferguson, 2 S.W.3d 912, 917 (Tenn. 1999), our supreme court adopted a balancing
approach for courts to use to determine when the loss or destruction of evidence has deprived a
defendant of his fundamental right to a fair trial. Id. at 917. Under this approach, the first step is
to determine whether the State had a duty to preserve the evidence. As a general rule, “the State has

                                                  -4-
a duty to preserve all evidence subject to discovery and inspection under Tenn. R. Crim. P. 16, or
other applicable law.” Id. If the proof shows that the State had a duty to preserve the evidence, and
that the State failed in its duty, the court must then consider the following factors which bear upon
the consequences of the State’s breach of its duty: (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 to support the conviction. Id. If the court concludes, after consideration of all the factors, that
a trial without the missing evidence would not be fundamentally fair, the court has the option of
dismissing the charges against the defendant. Id.

        Under Ferguson, therefore, we must first determine whether the State had a duty to preserve
the tape recording. The defendant argues that it did, asserting that the recording would have been
discoverable, under Tennessee Rule of Criminal Procedure 16(a)(1)(A), as a statement of the
defendant. The State disagrees, arguing that no duty exists because the defendant failed to show that
the tape recording was “materially exculpatory.” The State argues that the tape contained nothing
that would have cleared the defendant of guilt.

         In Ferguson, a DWI case, the missing evidence was a videotape recording of the defendant’s
field sobriety tests. The defendant argued that the videotape would have provided support for his
claim that he had been experiencing a migraine, which affected his vision and coordination, at the
time of his arrest. To determine the boundaries of the State’s duty to preserve evidence, the
Ferguson court looked for guidance to a 1984 United States Supreme Court decision, quoting from
it 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 possess an
               exculpatory value that was apparent before the evidence was
               destroyed, and be of such 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, 104 S. Ct. 2528, 2533-34, 81 L. Ed. 2d
413 (1984)). The Ferguson court found that the exculpatory value of the videotape was “ tenuous.”
2 S.W.3d at 918. Nonetheless, it concluded that the State had a duty to preserve it, writing:

               Though the videotape was probably of marginal exculpatory value,
               it was at least “material to the preparation of the defendant’s defense”
               and might have led the jury to entertain a reasonable doubt about
               Ferguson’s guilt. Because the videotape may have shed light on his
               appearance and condition on the morning in question, the State had
               a duty to preserve the videotape as potentially exculpatory evidence.


                                                  -5-
Id.

        The tape recording in this case, similar to the videotape in Ferguson, may have “shed light”
on the defendant’s condition and the circumstances surrounding his statement of admission, by
providing details and nuances that Sergeant Duncan may have omitted. At the suppression hearing,
the defendant testified that in his interview, he had told Roberts and Duncan that when the victim
would climb on top of him, he would “throw her off and tell her go on,” a fact which was not
included in the written statement of admission. Furthermore, the recording was clearly discoverable
under Rule 16(a)(1)(A) of the Tennessee Rules of Criminal Procedure, as a relevant recorded
statement of the defendant within the control of the State. Therefore, we believe that the State had
a duty to preserve the tape recording, and that it breached that duty by allowing the tape to be
destroyed or lost.

         Next, we must determine the consequences of the State’s breach of its duty to preserve the
tape recording. The first factor to be considered is the degree of negligence involved. In this regard,
we note that Sergeant Duncan testified that he had not taken custody of the tape, and that DCS
supervisor Patty Oldham made it clear that the district attorney general had never received the tape
from DCS. Oldham stated that she had not realized that the tape was missing until the case neared
trial and the district attorney general asked her for the case file. When she gathered the file, she had
been unable to locate the tape among the materials that Susan Roberts had turned over to her when
she left the department. Although the defendant suggests that DCS may have intentionally destroyed
the tape in an effort to prejudice his case, there is no proof in the record that the tape’s loss was the
result of anything other than simple negligence.

        The second factor to consider is the significance of the missing evidence, “in light of the
probative value and reliability of secondary or substitute evidence.” According to the defendant, the
missing tape contained both inculpatory and exculpatory or self-serving statements. Purely self-
serving declarations by a defendant are generally not admissible. State v. King, 694 S.W.2d 941,
945 (Tenn. 1985); Moon v. State, 146 Tenn. 319, 372, 242 S.W.2d 39, 54 (1921); State v. Belser,
945 S.W.2d 776, 784 (Tenn. Crim. App. 1996); State v. Wiseman, 643 S.W.2d 354, 366 (Tenn.
Crim. App. 1982). When a defendant’s statement consists of both exculpatory and inculpatory
portions, however, and the prosecution introduces a part of it into evidence, the defendant is then
entitled to introduce the entire statement, including any exculpatory or self-serving portions that the
statement may include. State v. Keough, 18 S.W.3d 175, 182 (Tenn.), cert. denied, ___ U.S. ___,
121 S. Ct. 205, 148 L. Ed. 2d 144 (2000) (citing Espitia v. State, 199 Tenn. 696, 288 S.W.2d 731,
733 (Tenn. 1956)); State v. Robinson, 622 S.W.2d 62, 71 (Tenn. Crim. App. 1980). Thus, it is clear
that the defendant would have been entitled to introduce the whole of the tape recording, including
any exculpatory statements that he may have made, upon the State’s introduction of any portion of
the tape.

        What is not quite as clear is whether the defendant would have been entitled to introduce the
tape recording upon the State’s introduction of his statement of admission alone. Rule 106 of the
Tennessee Rules of Evidence states:

                                                  -6-
                When a writing or recorded statement or part thereof is introduced by
                a party, an adverse party may require the introduction at that time of
                any other part or any other writing or recorded statement which ought
                in fairness to be considered contemporaneously with it.

In Keough, the defendant gave oral and written statements of admission. 18 S.W.3d at 181. His first
statement, which was oral, contained no exculpatory material. When the police detective who was
interviewing him was called away, the defendant then gave a written statement, containing both
exculpatory and inculpatory portions, to different detectives. Id. At trial, the State presented the first
detective, who testified regarding the defendant’s oral statement. The State did not introduce the
written statement, and the trial court refused to allow defense counsel to cross-examine the detective
regarding the written statement. Id. at 182. On appeal, our supreme court concluded that Rule 106
did not require that the written statement be introduced because the defendant had, in essence, given
two separate statements, one oral and one written. Id. The court noted that a Miranda warning had
been given before each statement, and that different detectives had conducted the two interviews.
Id.

        The situation in the case at bar differs from that of Keough. Although it is unclear from the
record whether Sergeant Duncan actively participated in the DCS interview of the defendant, or
merely sat as a silent observer, it is undisputed that he was present throughout the entire interview,
and that he gave only one Miranda warning, at the beginning of the process. Presumably, therefore,
the defendant would have been allowed to introduce the tape recording upon the State’s introduction
of the written statement of admission, on the premise that the statement of admission, written out
by Sergeant Duncan as an attempt to summarize the defendant’s admissions during the interview,
was merely a continuation or culmination of the tape recorded interview.

         Regardless, we conclude that the tape recording was not that significant to the defendant’s
case. Unlike the videotape in Ferguson, which showed Ferguson’s condition at the time of his DWI
arrest, the evidence here was not irreplaceable. As the State points out in its brief, the defendant
would have had the opportunity at trial to cross-examine Sergeant Duncan, and could have called
Susan Roberts or Deborah Pickett, both witnesses to the interview, to testify as to what had been
said. See State v. Caldwell, 696 S.W.2d 541, 542 (Tenn. Crim. App. 1985) (concluding that fact that
police officer did not record everything defendant told him, including some exculpatory statements,
did not render recorded portion inadmissable, because defendant had been able to elicit exculpatory
material during cross-examination of police officer). In our view, the loss of the tape did not
seriously hamper the defendant in presenting his claim that the victim had initiated the contact.

        The third factor to be considered is the sufficiency of the convicting evidence. In this case,
the defendant signed a written statement in which he admitted “5 or 6 ” occasions of sexual contact,
in which the victim had “ridden” him and touched his penis. In the suppression hearing, he testified
that the victim would “get up and straddle me and start rubbing and I’d have to throw her off and tell
her go on, [C.B.], before you get us in some kind of trouble.” The defendant further testified that


                                                   -7-
the victim used to wake him by playing with his penis. The evidence presented was sufficient as a
matter of law to support the defendant’s conviction of attempt to commit aggravated sexual battery.

                                           CONCLUSION

        After considering the above factors, we conclude that the loss of the tape recording did not
unfairly prejudice the defendant’s case, such as to deprive him of his fundamental right to a fair trial.
Accordingly, the defendant’s conviction of attempt to commit aggravated sexual battery is affirmed.




                                                        _______________________________________
                                                        ALAN E. GLENN, JUDGE




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