        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs June 3, 2014

        STATE OF TENNESSEE v. BOBBY CHARLES FARLEY, JR.

                 Appeal from the Criminal Court for Madison County
                         No. 13-21 Donald H. Allen, Judge


                 No. W2013-02055-CCA-R3-CD - Filed July 29, 2014


A jury convicted the Defendant, Bobby Charles Farley, Jr., of driving under the influence
(“DUI”); unlawful carrying of a weapon; violating the financial responsibility law; and
violating the seatbelt law. After a hearing, the trial court imposed an effective sentence of
eleven months, twenty-nine days, to be served in the county jail. In this direct appeal, the
Defendant challenges the sufficiency of the evidence underlying his DUI offense and the trial
court’s instructions to the jury. Upon our thorough review of the record and applicable law,
we affirm the trial court’s judgments.

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

J EFFREY S. B IVINS, S P. J., delivered the opinion of the Court, in which A LAN E. G LENN and
C AMILLE R. M CM ULLEN, JJ., joined.

Gregory D. Gookin, Assistant Public Defender, Jackson, Tennessee, for the appellant, Bobby
Charles Farley, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Jerry Woodall, District Attorney General; and Matthew Floyd, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                          Factual and Procedural Background

       The Defendant was charged with DUI with prior DUI convictions; two weapons
offenses; violating the financial responsibility law; and violating the seatbelt law. At the
Defendant’s jury trial, the following proof was adduced:
       Tim Armstrong testified that, in September 2011, he was “a six-year trooper with the
Tennessee Highway Patrol” (“THP”). On September 28, 2011, while off-duty, he left his
house driving a pickup truck. As he pulled out of his driveway, he saw a red pickup being
driven down the wrong side of the road. Armstrong began to follow the red pickup, and
because the driver continued to drive down the wrong side of the road, Armstrong called
THP dispatch. Armstrong continued to follow the red pickup until it was intercepted by
Trooper Ganaway. The red pickup traveled in the wrong lane over the course of five miles,
weaving across both lanes. Armstrong witnessed the red pickup avoid two near-collisions.

           Trooper Ganaway pulled the red pickup over, and the driver stopped in the parking
lot of a gas station. Armstrong followed and got out of his vehicle to observe the interaction
between Trooper Ganaway and the driver of the red pickup, whom Armstrong identified as
the Defendant. Armstrong testified about the Defendant’s demeanor: “When [the
Defendant] spoke, his speech was very slurred. [The Defendant’s] eyes were droopy, they
were watery, bloodshot. He somewhat stumbled, staggered as he walked. He was not very
steady on his feet, leaning . . . against the back of the truck once he was gotten out.”
Armstrong stated that, in his professional opinion as a Trooper, the Defendant “was not safe
to drive a motor vehicle.” Armstrong also “form[ed] the opinion that the [Defendant] was
under the influence of an intoxicant at that time.”

       On cross-examination, Armstrong stated that Trooper Kevin Brown arrived at the
scene as back-up two to three minutes after the Defendant had been pulled over.

       Trooper Kenny Ganaway of the THP testified that the red pickup pulled over
“immediately” after he turned on his blue lights. He identified the Defendant as the driver.
As Trooper Ganaway approached the red pickup, he noticed that the Defendant was not
wearing his seatbelt. He asked the Defendant to step out of the pickup, and the Defendant
complied. Trooper Ganaway then asked the Defendant for his driver’s license and proof of
insurance, and the Defendant told him that he did not have either item.

        Trooper Ganaway noticed the Defendant stumble as he got out of his truck, and he
stated that the Defendant “had to hold onto the side of the pickup truck” for balance. When
Trooper Ganaway asked the Defendant if he had been drinking, the Defendant replied that
he had not but that he had taken some Oxycontin. Trooper Ganaway then asked the
Defendant to perform some field sobriety tests, specifically the “walk-and-turn” and the
“one-leg stand.” According to Trooper Ganaway, the Defendant was not able to complete
the walk-and-turn test because he was stumbling “just all over the place,” unable to keep his
balance. The Defendant also was unable to perform the one-leg stand test. The Defendant’s
failure to complete either of these field sobriety tests indicated to Trooper Ganaway that the
Defendant was under the influence of an intoxicant. Accordingly, Trooper Ganaway arrested


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the Defendant. During the ensuing search of the Defendant’s truck, a loaded .38 handgun
was found.

       The Defendant consented to a blood draw, during which Trooper Ganaway was
present. The blood sample was sent to the Tennessee Bureau of Investigation (“TBI”) for
testing.

        On cross-examination, Trooper Ganaway acknowledged that the Defendant’s pickup
was driving in the correct lane when he saw it. The Defendant pulled over and parked
without hitting anything. He pulled the Defendant over at 1:48 p.m. The Defendant told him
that he had taken the Oxycontin earlier that morning. The Defendant was cooperative during
the stop.

        Trooper Ganaway stated that his patrol car had a functional video camera at the time
of the stop. However, he did not have a video of the stop because “they had installed a new
satellite there at headquarters” and deleted the recording. Trooper Ganaway did not view the
video recording before it was deleted. He acknowledged that other videotapes were also
deleted by the new system.

       Trooper Kevin Brown testified that he assisted Trooper Ganaway during the traffic
stop of the Defendant. He described the Defendant’s demeanor: “He was – really slurred
speech, dry cotton mouth, thick tongue, would brace hisself [sic] as he’d lean up against the
vehicle and talk with me, just more or less in a stupor-type – just – I could tell he was under
the influence.” Trooper Brown observed the Defendant as he tried to perform the field
sobriety tests. He testified that, in his opinion, the Defendant “was definitely under the
influence while he was operating this vehicle.” He also opined that the Defendant had been
unable to operate a motor vehicle safely.

       Trooper Brown searched the Defendant’s truck and found the loaded handgun under
the driver’s seat.

       Dr. Tonya Horton testified that she was a forensic scientist with the TBI crime
laboratory in Memphis, and she testified as an expert witness in the field of toxicology. She
tested the Defendant’s blood sample and determined that it contained a level of 0.08
micrograms per milliliter of the opiate hydrocodone. She explained that the therapeutic range
for that drug was 0.03 to 0.25 micrograms per milliliter. She stated that the primary effect
of hydrocodone was pain relief and that the possible side effects included sedation, lethargy,
poor muscle coordination, and confused thoughts. She added that these possible side effects
could result in erratic driving, slurred speech, and loss of balance.




                                              -3-
      Because her initial testing was inconclusive as to the presence of other drugs, Dr.
Horton sent the Defendant’s blood sample to another laboratory for further testing.

        Special Agent John Harrison testified that he was a “special agent forensic scientist
at the TBI Crime Laboratory” in Nashville. He testified as an expert in forensic toxicology.
Special Agent Harrison tested the Defendant’s blood sample after it was forwarded from the
Memphis laboratory. His testing revealed the presence of three benzodiazepines: 7-amino
clonazepam, clonazepam, and alprazolam. He explained that alprazolam was “prescribed as
a drug called Zanax” and that clonazepam was “prescribed as a drug called Klonopin.” The
level of the alprazolam in the Defendant’s blood was in the low end of the therapeutic range
and the level of the clonazepam in the Defendant’s blood was in the high end of the
therapeutic range. Special Agent Harrison testified that he “didn’t have a range for the 7-
amino clomazepan” but asserted that that drug was “active also.” He described all three of
these substances as “central nervous system depressants.”

        Special Agent Harrison added, “because of the sedative effect of the drug, they are
prescribed with the warning that they may affect your ability to operate the motor vehicle or
safely handle any kind of heavy equipment.” He stated that these drugs cause a loss of
alertness and a reduction in focus, and he testified that, “in a driving situation, that would be
an adverse effect because a person may not be as focused or attentive as they should be to
operate the vehicle safely.” He agreed that these drugs could cause a person to experience
a loss of balance and slurred speech and could explain erratic driving. As to the combined
effect of the four drugs found in the Defendant’s blood sample, Special Agent Harrison
testified that each of the drugs was a central nervous system depressant and, when combined,
would have an additive effect.

       On cross-examination, Special Agent Harrison acknowledged that the drugs affected
individuals differently.

       The State rested its case-in-chief after Special Agent Harrison’s testimony and the
defense presented no witnesses. The jury found the Defendant guilty of driving under the
influence; unlawful carrying of a weapon; violating the financial responsibility law; and
violating the seatbelt law. The State dismissed the other weapons charge, and the Defendant
pleaded guilty to third offense DUI. After a sentencing hearing, the trial court sentenced the
Defendant to an effective term of eleven months, twenty-nine days in the county jail. In this
direct appeal, the Defendant challenges the sufficiency of the proof underlying his DUI
conviction. He also alleges reversible error in light of the trial court’s refusal to give a jury
instruction about the State’s loss of the video-recording of the Defendant’s traffic stop.




                                               -4-
                                           Analysis

                                 Sufficiency of the Evidence

       The Defendant argues that the evidence was not sufficient to support his conviction
of driving under the influence. The State disagrees.

       Our standard of review regarding sufficiency of the evidence 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); see also Tenn. R. App. P. 13(e). After a jury finds a
defendant guilty, the presumption of innocence is removed and replaced with a presumption
of guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Consequently, the defendant
has the burden on appeal of demonstrating why the evidence was insufficient to support the
jury’s verdict. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

       The appellate court does not weigh the evidence anew; rather, “a jury verdict,
approved by the trial judge, accredits the testimony of the witnesses for the State and resolves
all conflicts” in the testimony and all reasonably drawn inferences in favor of the State. State
v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, “the State is entitled to the strongest
legitimate view of the evidence and all reasonable or legitimate inferences which may be
drawn therefrom.” Id. (citation omitted). This standard of review applies to guilty verdicts
based upon direct or circumstantial evidence. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn.
2011) (citing State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). In Dorantes, our
Supreme Court adopted the United States Supreme Court standard that “direct and
circumstantial evidence should be treated the same when weighing the sufficiency of such
evidence.” Id. at 381. Accordingly, the evidence need not exclude every other reasonable
hypothesis except that of the defendant’s guilt, provided the defendant’s guilt is established
beyond a reasonable doubt. Id.

        “Questions concerning the credibility of witnesses, the weight and value to be given
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). Furthermore, it is not the role of
this Court to reevaluate the evidence or substitute its own inferences for those drawn by the
jury. State v. Winters, 137 S.W.3d 641, 655 (Tenn. Crim. App. 2003) (citations omitted).

       Our criminal code provides as follows:

             It is unlawful for any person to drive or to be in physical control of any
       automobile or other motor driven vehicle on any of the public roads and
       highways of the state, or on any streets or alleys, or while on the premises of

                                              -5-
       any shopping center, trailer park or any apartment house complex, or any other
       premises that is generally frequented by the public at large, while . . . [u]nder
       the influence of any intoxicant, . . . drug, substance affecting the central
       nervous system or combination thereof that impairs the driver’s ability to
       safely operate a motor vehicle by depriving the driver of the clearness of mind
       and control of himself which he would otherwise possess[.]

Tenn. Code Ann. § 55-10-401(a)(1) (Supp. 2011).

        In this case, the State adduced proof that the Defendant drove erratically over the
course of five miles; that, after being pulled over, he admitted to having taken Oxycontin
earlier in the day; that he was unable to perform two field sobriety tests; that he was unsteady
on his feet and slurred his speech; and that his blood sample revealed four drugs, all of which
have a depressive effect on the central nervous system and could cause the Defendant’s poor
driving and other behavior. This proof was more than sufficient to support the Defendant’s
DUI conviction. Accordingly, the Defendant is entitled to no relief on this basis.

                                       Jury Instructions

       Prior to trial, the defense filed a motion to dismiss the indictment charging the
Defendant with the instant offenses on the basis that the State had failed to preserve the
videotape of the Defendant’s traffic stop and that, as a result, the Defendant’s trial would be
fundamentally unfair. In the State’s written response, it admitted that “it had a duty to
preserve the videotape evidence.” The trial court conducted an evidentiary hearing on the
Defendant’s motion to dismiss, and the following proof was adduced:

        Trooper Kenny Ganaway testified that there was a videotape made with the equipment
in his squad car of his stop of, and interactions with, the Defendant on September 28, 2011.
The equipment in his squad car began taping the stop when Trooper Ganaway turned on his
blue lights. The recording would have reflected the Defendant’s performance of the field
sobriety tests that he was asked to perform. However, before Trooper Ganaway had an
opportunity to view the videotape, the videotape “was deleted by [their] new satellite system
that was installed.” The deletion occurred when Trooper Ganaway drove his patrol car
within range of headquarters. Trooper Ganaway testified that the deletion was unintentional.

       The trial court denied the motion to dismiss after finding that the State’s failure to
preserve the videotape “may have been simple negligence” but involved no “willful intent
to destroy any evidence.” The trial court also considered the other evidence the State
asserted that it planned to offer at trial, including the testimony of the three THP Troopers
who had been present at the traffic stop and the testimony of two experts about the


                                              -6-
substances detected in the Defendant’s blood sample. The Defendant has not challenged the
trial court’s denial of his motion to dismiss.

       The Defendant’s trial ensued and, based on the State’s loss of the video-recording of
the Defendant’s traffic stop, the defense requested, in writing, the following jury instruction:

               The State has a duty to gather, preserve, and produce at trial evidence
        which may possess exculpatory value. Such evidence must be of 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 the proof, you find that the State failed to gather
        or preserve evidence, the contents or qualities of which are in 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.

Although the prosecutor stated that he was not opposed to this jury instruction, the trial court
refused to administer this charge on the basis that the defense had failed to demonstrate that
the video, had it been preserved, would have been exculpatory.1 By so ruling, the trial court
determined that the Defendant’s trial without the videotape and without the instruction was
fundamentally fair. See State v. Ferguson, 2 S.W.3d 912, 914 (Tenn. 1999) (setting forth the
critical inquiry in cases involving lost or destroyed evidence as “[w]hether a trial, conducted
without the destroyed evidence, would be fundamentally fair?”) (footnote omitted). We
review the trial court’s ruling de novo with no presumption of correctness. State v.
Merriman, 410 S.W.3d 779, 790, 797 (Tenn. 2013).

       In Ferguson, our high court addressed the due process concerns inherent in the
defendant’s trial for DUI after the State lost its videotape of several of the defendant’s
sobriety tests. 2 S.W.3d at 914-15. Adopting a balancing test for the determination of
whether the defendant’s ensuing jury trial was fundamentally fair under the Tennessee
Constitution, the supreme court explained that the first step of the inquiry was “to determine
whether the State had a duty to preserve the evidence.” Id. at 917. Then,



        1
         The trial court also stated that the videotape “never existed” and that “apparently they were trying
to record it but it just simply didn’t work.” However, the uncontroverted testimony established that the
video-recording was made automatically and then unintentionally deleted from the system by the new
computer program before it could be viewed.

                                                    -7-
             If the proof demonstrates the existence of a duty to preserve and further
       shows that the State has failed in that duty, the analysis moves to a
       consideration of several factors which should guide the decision regarding the
       consequences of the breach. Those factors include:

              1. The degree of negligence involved;

              2. The significance of the destroyed evidence, considered in light of the
       probative value and reliability of secondary or substitute evidence that remains
       available; and

             3. The sufficiency of the other evidence used at trial to support the
       conviction.

Id. (footnote omitted). Our high court continued:

              Of course, as previously stated, the central objective is to protect the
       defendant’s right to a fundamentally fair trial. If, after considering all the
       factors, the trial judge concludes that a trial without the missing evidence
       would not be fundamentally fair, then the trial court may dismiss the charges.
       Dismissal is, however, but one of the trial judge’s options. The trial judge may
       craft such orders as may be appropriate to protect the defendant’s fair trial
       rights. As an example, the trial judge may determine, under the facts and
       circumstances of the case, that the defendant’s rights would best be protected
       by a jury instruction.

Id. The supreme court provided an example of such a jury instruction that is virtually
identical to the instruction requested in the instant case (“the Ferguson instruction”). Id. at
917 n.11.

        Applying this calculus to the facts before it, the supreme court in Ferguson first
concluded that, because the videotape of the defendant’s performance of sobriety tests “may
have shed light” on the defendant’s appearance and condition at the time, “the State had a
duty to preserve the videotape as potentially exculpatory evidence.” Id. at 918. We agree
with the prosecutor in this case that the same conclusion is called for here. We also
conclude, as did the supreme court in Ferguson, that, “[i]n erasing the tape before the
defendant had an opportunity to view it, the State breached this duty.” Id.; see also
Merriman, 410 S.W.3d at 793 (recognizing that, “when potentially exculpatory evidence is
lost or destroyed, negligence by the State is presumed”).




                                              -8-
       Accordingly, we must consider the degree of negligence involved. The trial court
determined that the State’s failure to preserve the videotape of the Defendant’s traffic stop
was simple negligence, at most. The record supports this conclusion. Apparently, new
technology caused an inadvertent erasure of the video-recording, and this “glitch” was not
discovered until after other video-recordings also were inadvertently deleted. Therefore, we
conclude that the destruction of the evidence was the result of simple negligence. See State
v. Thomas Lee Hutchison, No. E2012-02671-CCA-R3-CD, 2014 WL 1423240, at *24 (Tenn.
Crim. App. Apr. 11, 2014) (opining, “because the evidence was destroyed accidentally, we
agree with the trial court that the destruction was due to simple negligence”); cf. State v.
Dustin Wayne Capps, No. E2007-02734-CCA-R3-CD, 2009 WL 690685, at *5 (Tenn. Crim.
App. Mar. 13, 2009) (State’s loss of evidence was gross negligence when officer took
videotape out of the confiscation holds department of the police department and then
returned the videotape to the originating store; return of videotape was not in keeping with
police department procedure and originating store taped over the recorded evidence),
abrogated on other grounds by Merriman, 410 S.W.3d at 791.

        Next, we consider the significance of the lost tape. As it was in Merriman, “[t]he lost
evidence was significant because it recorded [the defendant’s] conduct, which provided the
factual basis for [the] charges.” 410 S.W.3d at 795. The recording would have permitted
the jury to see for itself the Defendant’s posture after he got out of his truck and his attempts
to perform the field sobriety tests. It also may have recorded his voice, allowing the jury to
determine for itself whether the Defendant was slurring his words.2 Therefore, the videotape
may have had a negative impact on the credibility of Trooper Ganaway’s, Trooper Brown’s,
and ex-Trooper Armstrong’s testimony. We also recognize that the videotape was unique
evidence with no equivalent proof available. See Merriman, 410 S.W.3d at 792-93 (“A video
recording from a patrol vehicle is unique by its very nature. No evidence comparable to this
video recording could have been obtained through other means.”). Finally, we consider the
sufficiency of the evidence used to convict the Defendant, which we have set forth above.

        Based on this analysis, we hold that the trial court erred when it refused to give the
Ferguson instruction because the loss of the videotape implicated the Defendant’s due
process right to a fundamentally fair trial. The trial court relied on the Defendant’s failure
to establish that the lost videotape was exculpatory as the basis for denying the requested jury
instruction. This reliance was misplaced. As our supreme court explained in Merriman, it
is sufficient if the lost evidence “potentially possess[ed] exculpatory value and [was] of such
a nature that the defendant would be unable to obtain comparable evidence by other
reasonably available means.” 410 S.W.3d at 785 (citing Ferguson, 2 S.W.3d at 915, 918)
(emphasis added). Clearly, a videotape of the Defendant’s traffic stop may have revealed


       2
           Trooper Ganaway testified at trial that the video equipment also recorded audio.

                                                    -9-
details that, at least arguably, conflicted with the arresting troopers’ and Armstrong’s
recollection of the Defendant’s behavior. Thus, the trial court erred in its ruling.

        We turn then to the effect of the trial court’s error. Because the Ferguson instruction
is intended to protect a defendant’s due process right to a fundamentally fair trial, see
Ferguson, 2. S.W.3d at 917, a trial court’s erroneous failure to provide a Ferguson instruction
is subject to constitutional harmless error analysis. See, e.g., State v. Cecil, 409 S.W.3d 599,
610 (Tenn. 2013) (recognizing that a trial court’s failure to instruct the jury on a material
element of a charged offense is a constitutional error subject to constitutional harmless error
analysis) (citations omitted); Manning v. State, 500 S.W.2d 913, 916 (Tenn. 1973) (trial
court’s erroneous failure to give alibi instruction was harmless where it was “clear beyond
a reasonable doubt that had the instruction been given the outcome of the case would have
been the same”). That is, the Defendant is entitled to relief unless the record demonstrates,
beyond a reasonable doubt, that the trial court’s error was harmless. See State v. Allen, 69
S.W.3d 181, 190 (Tenn. 2002) (in reviewing whether instructional error is harmless,
appellate court must ask “whether it appears beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained”) (citation and internal quotation
marks omitted); see also State v. Rodriguez, 254 S.W.3d 361, 371 (Tenn. 2008) (“The
existence of a non-structural constitutional error requires reversal unless the State
demonstrates beyond a reasonable doubt that the error is harmless.”).

        We hold that the trial court’s erroneous refusal to give the Ferguson instruction in this
case was harmless beyond a reasonable doubt in light of the strength of the State’s proof. At
most, the missing videotape would have impeached the testimony of Troopers Ganaway and
Brown and ex-Trooper Armstrong. However, the Defendant himself admitted to having
taken Oxycontin on the morning he was pulled over. His blood sample revealed the presence
of not only Oxycontin but also three other sedative drugs. Expert testimony established that
these drugs acting in concert would have an adverse impact on a person’s ability to drive and
could cause the Defendant’s reported behavior. Finally, ex-Trooper Armstrong testified that
he witnessed the Defendant driving erratically for five miles before being pulled over. In
light of this extensive proof of the Defendant’s driving while under the influence of an
intoxicant, we are convinced beyond a reasonable doubt that the jury would have convicted
the Defendant even if the videotape had depicted him performing better on the field sobriety
tests than described by Troopers Ganaway and Brown. Accordingly, we hold that the
Defendant is not entitled to relief on the basis that the trial court erroneously refused to give
the requested instruction about the missing videotape. See State v. Terrell B. Johnson, No.
E2012-01946-CCA-R3-CD, 2013 WL 6237090, at *14 (Tenn. Crim. App. Dec. 3, 2013)
(holding that trial court should have provided the Ferguson instruction but that the lack of
the instruction “was harmless in view of the strength of the State’s case”).




                                              -10-
                                Conclusion

For the reasons set forth above, we affirm the Defendant’s convictions.


                                           _________________________________
                                           JEFFREY S. BIVINS, SPECIAL JUDGE




                                    -11-
