        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                  Assigned on Briefs October 13, 2015 at Knoxville

       STATE OF TENNESSEE v. THEODORE LEBRON JOHNSON

                Appeal from the Criminal Court for Davidson County
                     No. 2013-A-428    Monte Watkins, Judge


               No. M2014-02046-CCA-R3-CD – Filed October 14, 2015


The defendant, Theodore Lebron Johnson, appeals his Davidson County Criminal Court
jury conviction of aggravated robbery, claiming that the evidence is insufficient to
support the conviction and that the trial court erred by declining to instruct the jury
regarding the loss or destruction of evidence. We discern no flaw in the conviction and
affirm the trial court‟s judgment.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which ROBERT H.
MONTGOMERY, JR., and TIMOTHY L. EASTER, JJ., joined.

Richard C. Strong, Nashville, Tennessee (on appeal); and Daphne Davis, Nashville,
Tennessee (at trial), for the appellant, Theodore Lebron Johnson.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; Victor S. Johnson III, District Attorney General; and Deborah Housel
and Nathan McGregor, Assistant District Attorneys General, for the appellee, State of
Tennessee.

                                       OPINION

               The jury convicted the defendant of the April 27, 2011 aggravated robbery
of Gregg P. Hanson, the victim. The trial court sentenced the defendant as a career
offender to serve 30 years in the penitentiary and overruled the defendant‟s timely motion
for new trial. The defendant then filed a timely notice of appeal.

             At trial, the victim testified that in 2011 he managed a Precision Tune Auto
Care center on Gallatin Pike in Davidson County. A week prior to the robbery, the
defendant came into the store just before closing and said he was waiting on his girlfriend
to bring in her car for an oil change. On this occasion, the defendant wore a white
hardhat and a reflective vest. The store was busy with customers at that time; at some
point, the defendant left the store. On April 27, 2011, the defendant came into the store
again and told the victim that he was waiting on his girlfriend to bring in her car for an oil
change. The defendant sat in a chair in the store lobby. After the sole remaining
customer left the store and as the victim was speaking on the telephone, the defendant
grabbed the phone and placed a gun against the victim‟s abdomen. The victim testified
that the defendant walked him to the cash register and said, “„Put the money – open the
register and put the money on the counter.‟” The victim testified that he was scared and
that he complied. The defendant “scooped . . . up” the money, $380, and then told the
victim to open the safe. Again, the victim complied, and when the defendant saw the safe
was empty, he left, leaving behind a black “beanie” cap. The victim locked the doors and
called the police. The victim said that the defendant “very much” put him in fear.

               When the police came, the victim described the robber as a six-foot male,
slender, “fit and clean cut,” “[l]ight dark,” with a bald head. The defendant wore dark
clothing including a black “hoodie.” The victim pointed out the chair the defendant had
used and the telephone as possible sites for obtaining fingerprints. The victim testified
that in May 2011 he viewed various photographic arrays presented to him by the police.
In one array, he recognized a customer of Precision Tune, John Newell, who drove a
silver Pontiac automobile. From a photographic array presented to him a few days later,
he identified the defendant as the man who robbed him.

               On cross-examination, the victim said that police officers dusted for
fingerprints inside the store and that they took the beanie cap with them.

                Patricia Young testified that she lived on Curtwood Boulevard, that
Curtwood intersects with Gallatin Road, and that the Precision Tune store sits in a corner
of the intersection. She was on her front porch on April 27, 2011, when she saw “a black
male, who wearing [sic], kind of, like a bubble jacket, and his hand, like, inside his
jacket, . . . running down our street . . . from Gallatin Road.” She said that the man got
into a silver Pontiac that then left hurriedly, headed away from Gallatin Road.

            On cross-examination, Ms. Young testified that a “bubble jacket” is not a
“hoodie.” Ms. Young did not see the face of the man wearing the bubble jacket.

               Metropolitan Nashville Police Department (“Metro”) Officer Nate Ward
testified that in 2011 he was assigned to the Crime Scene Unit. He was called to the
Precision Tune store on Gallatin Road late in the afternoon on April 27, 2011. “[A] black
stocking cap on the floor” was pointed out to Officer Ward as something the robber had
left behind. The officer collected the cap, placed it in a sealed bag, and gave it to the
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“property section.” He identified the bag containing the cap in court. He said the cap
had been tested at the Tennessee Bureau of Investigation (“TBI”) crime laboratory.

              Officer Ward also dusted for fingerprints at the Precision Tune store. He
dusted “at the point of entry” and a chair “that the victim pointed out where the suspect
was sitting for a time.”

              On cross-examination, Officer Ward acknowledged that the prints he
obtained from the entry door were not useable and that prints obtained from the underside
of the armrest of the chair in which the robber sat were useable but did not match the
defendant‟s fingerprints.

              Metro Investigator Lynette Mace testified that she was assigned to the
department‟s “ID Unit” in April 2011. On May 3, 2011, she was called to go to the
Precision Tune store on Gallatin Road to retrieve “a piece of telephone that had come
apart from the business phone during a struggle with the defendant.” The piece was the
battery cover off a wireless telephone. She testified that she lifted no prints from this
object. She left the object at the store.

              Metro Detective Michael Windsor testified that he spoke with the victim of
the Precision Tune robbery and with Patricia Young. Based upon descriptions provided
by them, Detective Windsor organized photographic arrays. The detective said that the
victim recognized John Newell in one of the first arrays shown to the victim, and the
detective was able to discern a connection between Mr. Newell and the defendant. The
detective included the defendant‟s picture in an array later shown to the victim, and the
victim identified him as the robber. At some point, the police searched Mr. Newell‟s
silver Pontiac and found a white hat and a reflective vest.

               The detective testified that, although deoxyribonucleic acid (“DNA”) was
found on the black beanie cap, it was too degraded to compare to any known DNA, such
as the defendant‟s. Testing for DNA comparison on the hardhat and the reflective vest
yielded the same result, except that the TBI laboratory was “able to get an allele.” He
said that, although 26 “alleles” were needed to form a complete DNA profile, the one
allele found on the reflective vest was adequate to exclude the defendant as the
contributor.

             On cross-examination, Detective Windsor testified that the TBI received
the black beanie cap for testing on February 7, 2014. The TBI issued its report on March
13, 2014.

             The State rested its case, and following a Momon hearing, see Momon v.
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State, 18 S.W.3d 152, 161-62 (Tenn.1999), the defendant elected not to testify. The
defendant moved the court to instruct the jury regarding the State‟s duty to preserve the
DNA evidence. Defense counsel specifically proposed the use of pattern jury instruction
42.23. Upon review, the trial court declined to give the instruction.

             In his first issue, the defendant challenges the sufficiency of the evidence
convicting him of aggravated robbery.

              We review the defendant‟s claim of insufficient evidence mindful that our
standard of review is whether, after considering 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. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S.
307, 319 (1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This
standard applies to findings of guilt based upon direct evidence, circumstantial evidence,
or a combination of direct and circumstantial evidence. State v. Dorantes, 331 S.W.3d
370, 379 (Tenn. 2011).

               When examining the sufficiency of the evidence, this court should neither
re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id.
Questions concerning the credibility of the witnesses, the weight and value of the
evidence, as well as all factual issues raised by the evidence are resolved by the trier of
fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must
afford the State the strongest legitimate view of the evidence contained in the record as
well as all reasonable and legitimate inferences which may be drawn from the evidence.
Id.

               As charged in this case, aggravated robbery is robbery “[a]ccomplished
with a deadly weapon or by display of any article used or fashioned to lead the victim to
reasonably believe it to be a deadly weapon.” T.C.A. § 39-13-402(a)(1). “Robbery is the
intentional or knowing theft of property from the person of another by violence or putting
the person in fear.” Id. § 39-13-401(a).

             In the present case, the defendant argues that the State failed to establish
beyond a reasonable doubt that he was the person who robbed the victim on April 27,
2011. He points out that only the victim claimed to have identified the defendant, and
Ms. Young‟s description of the robber‟s clothing “radically” differed from the victim‟s
description. The defendant also stresses that a reflective vest and white hardhat were
found in Mr. Newell‟s car and that the defendant‟s DNA was not found on these items.

              In our legal system, however, a trial by jury is the crucible in which
conflicting claims of fact are boiled down to dregs of truth. As pointed out above, when
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the State presents sufficient evidence that the accused is guilty beyond a reasonable
doubt, an appellate court is obliged to affirm the conviction despite the emergence at trial
of conflicting or counter-weighing evidence. Here, the State presented the victim who
testified to the elements of aggravated robbery and who identified the defendant as the
person who committed it. That testimony alone satisfies the burden of proof, and
assuming that the trier of fact believed this testimony, the presentation of conflicting
evidence has no bearing upon appellate review. Accordingly, we hold that the evidence
in this case sufficiently supports the verdict.

               In his other issue, the defendant claims that the trial court erred by
declining to give to the jury Tennessee Pattern Jury Instruction 42.23. He argues that,
after collecting items of evidentiary value, the State waited three years before seeking
DNA analysis and that the DNA itself was destroyed in the interim, resulting in a finding
that the genetic material found on the items was too degraded for use.

              Tennessee Pattern Jury Instruction 42.23 provides as follows:

              The State has a duty to gather, preserve, and produce at trial
              evidence which may possess exculpatory value. Such
              evidence must be of such a nature that the defendant would be
              unable to obtain comparable evidence through reasonably
              available means. The State has no duty to gather or
              indefinitely preserve evidence considered by a qualified
              person to have no exculpatory value, so that an as yet
              unknown defendant may later examine the evidence.

              If, after considering all of the proof, you find that the State
              failed to gather or preserve evidence, the contents or qualities
              of which are an issue and the production of which would
              more probably than not be of benefit to the defendant, you
              may infer that the absent evidence would be favorable to the
              defendant.

Tenn. Prac. Pattern Jury Instr. T.P.I.-Crim. 42.23 (16th ed.).

              The pattern jury instruction regarding the State‟s duty to preserve evidence
had its genesis in principles of due process as espoused in State v. Ferguson. In that case,
our supreme court “explained that the loss or destruction of potentially exculpatory
evidence may violate a defendant‟s right to a fair trial.” State v. Merriman, 410 S.W.3d
779, 784 (Tenn. 2013) (citing State v. Ferguson, 2 S.W.3d 912, 915-16 (1999)). The
court rejected a “bad faith” analysis in favor of “a balancing approach in which bad faith
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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
“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.

               In the present case, the defendant asserts that he should have had the benefit
of pattern jury instruction 42.23. The gravamen of the defendant‟s Ferguson claim is that
“if the State had tested the evidence sooner, it could have definitely been shown that his
DNA was not present on the items.” We hold that the trial court did not err by declining
to give the instruction.

              The evidence showed that the scant amount of genetic material on the vest
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or hardhat was sufficient to exclude the defendant as a contributor. Thus, the expert
testimony showed that only the beanie cap contained genetic material too degraded to
analyze. Several factors undercut the defendant‟s claim to a due process remedy for the
State‟s not testing the cap sooner. First, the relationship of the cap to the perpetrator of
the robbery is dubious; although the cap was “left behind” after the perpetrator left the
store, no one testified that the perpetrator wore the cap. Second, the DNA testing
performed by the TBI did not result in a finding that the defendant‟s DNA was found on
the cap; due to the degraded nature of the material, the result was, in effect, neutral.
Third, even an affirmative determination that the defendant‟s genetic material was not on
the cap barely advances the defendant‟s case; such a determination would only deny the
State an additional inference of fact which, as pointed out above, it was denied anyway.
Finally, the defendant did not cite authority that imposes a duty on the State to have ever
performed the DNA analysis. The cap itself was neither lost nor destroyed, and we point
out that, upon the defendant‟s request, the State was obliged to allow him “to inspect and
copy or photograph . . . tangible objects . . ., if the item is within the state‟s possession,
custody, or control and . . . the item was obtained from or belongs to the defendant.”
Tenn. R. Crim. P. 16 (a)(1)(F)(iii). In addition to inspecting the object, the defendant
could have applied to the trial court for leave to conduct an independent analysis. See id.
16(d)(1) (“At any time, for good cause shown, the court may deny, restrict, or defer
discovery or inspection, or grant other appropriate relief.”).

              At bottom, even if we assumed for the sake of argument that the State had a
duty to preserve any genetic material that existed on its collected items of evidence, the
significance of the destroyed evidence is slight, paling in comparison to the “other
evidence used at trial to support the conviction.” See Merriman, 410 S.W.3d at 785
(quoting Ferguson, 2 S.W.3d at 917). Thus, the trial court did not err by denying a due
process remedy in the form of a jury instruction.

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

                                           ________________________________
                                           JAMES CURWOOD WITT, JR., JUDGE




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