                                                                                       06/07/2017




       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                           Assigned on Briefs May 2, 2017

                STATE OF TENNESSEE v. MARIO HUBBARD

                 Appeal from the Criminal Court for Shelby County
                      No. 15-01036       Chris Craft, Judge
                     ___________________________________

                          No. W2016-01521-CCA-R3-CD
                      ___________________________________


A Shelby County jury found the defendant, Mario Hubbard, guilty of burglary of a motor
vehicle and sentenced him to six years, as a career offender, in the county workhouse.
On appeal, the defendant argues the trial court erred when allowing the jury to hear a
statement he gave to the arresting officer prior to receiving Miranda warnings and when
denying his request for a jury instruction on the destruction of evidence. The defendant
further argues the jury’s verdict was against the weight of the evidence and instead
supported by his uncorroborated statement only. Based on our review of the record and
pertinent authorities, we agree the trial court erred when denying the defendant’s motion
to suppress, but given the otherwise overwhelming evidence presented at trial, this error
was harmless. For the same reason, the jury’s verdict was not against the weight of the
evidence. Finally, the evidence submitted at trial did not warrant a jury instruction on
spoliation, so the trial court did not err when denying the defendant’s request for the
same. We affirm the judgment of the trial court.

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

J. ROSS DYER, J., delivered the opinion of the court, in which ALAN E. GLENN and
ROBERT L. HOLLOWAY, JR., JJ., joined.

John R. Holton, Memphis, Tennessee, for the appellant, Mario Hubbard.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan J. Wardle, Assistant
Attorney General; Amy Weirich, District Attorney General; and Carla Taylor, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                             Facts and Procedural History
       On December 29, 2013, Corey Hentz, an officer with the Memphis Police
Department (MPD), went to Chuck Hutton Chevrolet in Memphis, Tennessee to shop for
a new truck. The dealership was closed at the time, and all the vehicles on the lot were
locked. The dealership had not given permission for visitors to the lot to access the
interior of the locked vehicles, but it was possible to walk through the closed lot and
inspect the vehicles from the exterior. As Mr. Hentz did so, he observed “some legs
hanging out of a truck” and approached the vehicle. The defendant was in the truck
“doing something to the passenger side door panel in the mirror area.” The defendant
asked Mr. Hentz the price of the truck, and Mr. Hentz told him to check the sticker on the
car window. As Mr. Hentz walked around the truck, he noticed some of the car paneling
had been removed and there were bolts on the ground. Mr. Hentz then walked to an area
of the parking lot where he could not be seen by the defendant and called MPD dispatch
to report the suspicious activity. Mr. Hentz also gave a complete description of the
defendant and the license plate number of a car parked close to the locked gate of the car
lot.

       Officer Kenneth Walcott, also with the MPD, responded to the call regarding a
suspicious looking person in the parking lot of Chuck Hutton Chevrolet. Officer Walcott
was driving past the car dealership at the time he received the call and responded in
approximately fifteen seconds. He pulled into the parking lot as the defendant got into
his car, noted a silver socket wrench in his hand, and asked the defendant to step out of
the vehicle. When the defendant refused, Officer Walcott drew his weapon and again
commanded the defendant to step out of the vehicle. Once the defendant complied,
Officer Walcott detained him, placed him in the back of the vehicle, and said, “[T]hat
was pretty bold what you did because of the fact there’s [sic] cameras out here. I don’t
know if you know it, but it was an off duty police officer that saw you doing what you
were doing and he made the phone call.” The defendant responded, “I was just getting it
for a friend of mine.” Officer Walcott understood “it” to mean the side mirror to a
maroon Chevrolet truck. He did not ask any follow-up questions because the defendant
had not yet been Mirandized, and it was not his job to ask questions. The detectives
would do so later.

       Officer Walcott then contacted Kerry Melson, the general manager of Chuck
Hutton Chevrolet, regarding the break-in. He and Mr. Melson discussed the video
surveillance in the parking lot, and Mr. Melson was unsure it was working at the time.
Mr. Melson did not follow-up with the dealership to obtain the video surveillance and,
instead, assumed the detectives would obtain any existing video footage.

       Officer Katie Patrick, also with the MPD, came to the scene and viewed the
vehicle. The side mirrors had been taken off the body of the vehicle, and the car was
                                          -2-
disassembled on the passenger side. There were rubber gloves in the front pocket of the
defendant’s hooded sweatshirt, and there was a silver socket wrench sitting inside his
vehicle. She was informed there was video surveillance in the parking lot and noted in
her report that “video surveillance of the incident is available and manger will retrieve it
at a later date.” She does not know what happened to the surveillance video.

       At trial, the State called Kerry Melson, Corey Hentz, Officer Kenneth Walcott,
and Officer Katie Patrick to testify and introduced photos of the damaged vehicle into
evidence. Prior to calling Officer Walcott as a trial witness, the trial court held a hearing
outside the jury’s presence on the defendant’s oral motion to suppress his statement that
he was “just getting it for a friend.” During the jury-out hearing, Officer Walcott offered
testimony consistent with the above narrative indicating he initiated contact with the
defendant after responding to a call regarding a suspected break-in on the lot, and after
getting the defendant’s personal information and placing him in the back of the squad car,
he commented on the intelligence of the defendant’s actions. The trial court then denied
the motion to suppress, finding that while the defendant was in custody at the time he
spoke to Officer Walcott, he was not subject to interrogation. Officer Walcott then
proceeded to offer similar testimony in front of the jury.

        After the State rested, the defendant then moved for judgment of acquittal, arguing
in part that Mr. Hubbard’s statement should not have been allowed into evidence because
he was not Mirandized prior to giving it, and there was not a corroborating statement.
The trial court denied the motion. The defendant declined to present any evidence on his
behalf.

       At the subsequent jury charge conference, the defendant requested Tennessee
Pattern Jury Instruction 42.23 on destruction of evidence, arguing the State had a duty to
preserve the dealership’s video surveillance footage and failed to do so. The trial court
denied the request, finding neither party presented proof at trial that the security camera
footage would have been exculpatory, and the State was never in possession of the
footage. After being charged, the jury found the defendant guilty of burglary of a motor
vehicle, and the trial court imposed a six-year sentence to be served at sixty percent as a
career offender.

       The defendant filed a timely motion for a new trial, arguing the trial court erred
when admitting the defendant’s statement into evidence because it was the result of a
custodial interrogation, and the defendant did not receive Miranda warnings prior to
speaking with the arresting officer. The defendant further argued it was prejudicial error
not to instruct the jury on the issue of spoliation of evidence despite proof the
surveillance video from the car lot had not been preserved. Finally, the defendant argued
his conviction was based on his statement alone, and the State did not introduce
                                            -3-
additional evidence to corroborate his statement. The trial court denied the motion and
adopted the jury’s verdict. This timely appeal followed.

                                         Analysis

       On appeal, the defendant again argues the trial court erred when admitting the
defendant’s statement into evidence and denying the defendant’s request for a jury
instruction on spoliation. The defendant further argues the jury’s guilty verdict was
against the weight of the evidence because it was based on the defendant’s
uncorroborated statement alone. Following our review of the submissions of the parties,
record, and pertinent authorities, we conclude the trial court erred when denying the
defendant’s suppression motion, but this error was harmless. We further conclude the
evidence presented at trial did not warrant a spoliation jury instruction, and the State
presented more than sufficient evidence to support the jury’s verdict. We affirm the
judgment of the trial court.

I.     Admissibility of the Defendant’s Statement

       On appeal, the defendant first argues the trial court erred by not suppressing his
statement made to Officer Walcott. The State contends the defendant was not subject to
interrogation at the time the defendant announced he was “just getting [the side view
mirror] for a friend,” so the trial court properly denied the defendant’s motion to
suppress. Based on our review of the record and applicable law, we agree the trial court
erred when denying the suppression motion. However, this error was harmless. The
State presented abundant evidence of the defendant’s guilt, including an eyewitness to the
burglary, so we affirm the judgment of the trial.

        When reviewing the trial court’s decision on a motion to suppress, we review the
trial court’s legal conclusions de novo. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001).
When conducting this analysis, we defer to the trial court’s findings of fact unless the
evidence preponderates against those findings. State v. Ross, 49 S.W.3d 833, 839 (Tenn.
2001). “[C]redibility of the witnesses, the weight and value of the evidence, and
resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier
of fact.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The party prevailing in the
trial court is afforded the “strongest legitimate view of the evidence and all reasonable
and legitimate inferences that may be drawn from that evidence.” State v. Keith, 978
S.W.2d 861, 864 (Tenn. 1998).

      The United States and Tennessee Constitutions protect a suspect from “being
compelled to give evidence against himself.” State v. Berry, 141 S.W.3d 549, 576 (Tenn.
2004) (citing U.S. Const. amend. V; Tenn. Const. art. I, § 9). If a suspect is in custody
                                            -4-
and under interrogation, or its functional equivalent, the police must first inform him of
his Fifth Amendment rights in order for his confession to later be admissible as
substantive evidence in the trial of the matter. Miranda v. Arizona, 384 U.S. 436, 524
(1966). Miranda warnings are not required in the absence of custodial interrogation.
State v. Northern, 262 S.W.3d 741, 749 (Tenn. 2008) (citing Miranda, 384 U.S. at 478).
In Miranda, the Court defined “custodial interrogation” as “questioning initiated by law
enforcement officers after a person has been taken into custody or otherwise deprived of
his freedom of action in any significant way.” Miranda, 384 U.S. at 444. In Rhode
Island v. Innis, the United States Supreme Court expounded on the term “interrogation,”
providing this additional guidance for use by trial courts when determining whether the
actions of a police officer constitute an interrogation or its functional equivalent:

      [T]he term “interrogation” under Miranda refers not only to express
      questioning, but also to any words or actions on the part of the police (other
      than those normally attendant to arrest and custody) that the police should
      know are reasonably likely to elicit an incriminating response from the
      suspect. The latter portion of this definition focuses primarily upon the
      perceptions of the suspect, rather than the intent of the police. This focus
      reflects the fact that the Miranda safeguards were designed to vest a suspect
      in custody with an added measure of protection against coercive police
      practices, without regard to objective proof of the underlying intent of the
      police. A practice that the police should know is reasonably likely to evoke
      an incriminating response from a suspect thus amounts to interrogation.
      But, since the police surely cannot be held accountable for the
      unforeseeable results of their words or actions, the definition of
      interrogation can extend only to words or actions on the part of police
      officers that they should have known were reasonably likely to elicit an
      incriminating response.

Innis, 446 U.S. at 301-02 (emphasis added) (footnote call numbers omitted).

       Here, the defendant asserts Officer Walcott conducted a custodial interrogation or
its functional equivalent without first giving Miranda warnings, so the trial court should
have excluded his statement from evidence at trial. The defendant was undisputedly in
custody at the time he spoke with Officer Walcott, and Miranda warnings were not given.
Accordingly, we need only address whether Officer Walcott’s words and actions
comprised an interrogation, its functional equivalent, or questioning that falls under an
exception to Miranda.

      In response to the defendant’s contention Officer Walcott should have provided
Miranda warnings prior to commenting on the defendant’s suspected malfeasance, the
                                          -5-
State contends Officer Walcott did not ask any direct questions, so he did not engage the
defendant in a custodial interrogation or its functional equivalent. In support of this
argument, the State relies on State v. March, 395 S.W.3d 738 (Tenn. Crim. App. 2011).
The facts of this case, however, are factually distinct from March. In March, the
defendant, Mr. March, was arrested in Los Angeles, California and transported to
Nashville, Tennessee. Id. at 762. During the flight, Mr. March began to question the
detective accompanying him regarding his case. Id. The detective told Mr. March he
knew he was represented by counsel and cautioned he did not have to speak to the police
officers if he chose not to do so. Id. Despite this warning, over the course of a two-hour
timespan, Mr. March persistently asked the detective questions about his case, stopping
only to nap, read a magazine, and eat a snack. Id. at 463. The detective only offered
responses and did not ask questions himself. Id.

       This Court found Mr. March was unquestionably in custody at the time he
conversed with the detective. Id. at 766. However, he was not subject to interrogation
because it was Mr. March who continually initiated conversations with the detective. Id.
When doing so, Mr. March focused on his own agenda of learning as much about his case
as possible and later indicated that he and the detective were “‘just two men having a
conversation.’” Id. Noting the primary focus when determining whether an officer’s
words or actions were reasonably likely to invoke an incriminating response rests on
“‘the accused’s perception rather than on the police officer’s intent,’” this Court found
the record did not support the defendant’s contention he felt subject to interrogation
during the flight. Id. (quoting State v. Sawyer, 156 S.W.3d 351, 354 (Tenn. 2005)).

       The State’s reliance on March is misplaced. Based on the testimony rendered by
Officer Walcott during the suppression hearing, the officer initiated the conversation with
the defendant. During their encounter, the defendant merely inquired into the reason for
his arrest. After advising the defendant that he was “under suspicion of having broken
into a vehicle on the lot,” Officer Walcott put the defendant in the back of his squad car
and offered this unprovoked commentary: “[T]hat was pretty bold what you did because
of the fact there’s cameras out here. I don’t know if you know it, but it was an off duty
police officer that saw you doing what you were doing and he made the phone call.” The
defendant responded, “I was just getting it for a friend of mine.” Unlike the defendant in
March, the defendant in this case did not engage the officer in conversation regarding his
case; the officer engaged the defendant in conversation, and this conversation went
beyond simply asking for the personal information needed to facilitate the arrest.

        This matter is, instead, analogous to State v. Thomas William Brown, No. M2013-
02327-CCA-R3-CD, 2015 WL 445542 (Tenn. Crim. App. Feb. 3, 2015), no perm. app.
filed. In Thomas William Brown, this Court considered whether the words and actions of
an arresting officer constituted the functional equivalent of a custodial interrogation. Id.
                                           -6-
at *1. The matter arose as the result of two attempted aggravated burglaries of an
apartment. Id. While responding to a call regarding the second attempted burglary, the
police apprehended a suspect, Mr. Brown, in nearby woods. Id. at *2. After handcuffing
him, the arresting officer asked for Mr. Brown’s name and inquired into his reason for
being in the woods. Id. In response, Mr. Brown said he had been looking at apartments
in the nearby complex. Id. The arresting officer “‘asked him why then was he in the
woods because there was [sic] obviously no apartments in the wood line.” Id. Mr.
Brown stated “‘that he saw some people with some flashlights and he became scared, so
he got into the wood line to . . . hide from them.’” Id.

      Mr. Brown later moved to suppress these statements from being introduced into
evidence at trial, but the trial court denied the motion, finding the statements were not
made in response to a custodial interrogation. Id. at *10. This Court disagreed, finding:

      In this case, [the arresting officer] handcuffed [Mr. Brown] and then asked
      him who he was and why he was at the apartment complex. Even if we
      could say that asking for [Mr. Brown’s] identity amounted to words
      normally attendant to arrest, asking a suspect why he was at a particular
      location when investigating an attempted aggravated burglary is a question
      that a police officer should have known was reasonably likely to elicit an
      incriminating response. Therefore, the questioning constituted custodial
      interrogation and should have been preceded by Miranda warnings.
      Because Miranda warnings were not given, the statements should have
      been excluded from the State’s case-in-chief. See State v. Climber, 400
      S.W.3d 537, 567 (Tenn. 2013) (noting that “exclusion of the statements
      elicited during custodial interrogation ‘is a complete and sufficient remedy
      for any perceived Miranda violation.’”) (quoting United States v. Patane,
      542 U.S. 630, 641-42 (2004) (plurality opinion)).

Id. at *12. We found this error to be harmless beyond a reasonable doubt because Mr.
Brown later gave similar statements to detectives after receiving Miranda warnings. Id.
Moreover, “[t]here was nothing particularly inculpatory” about the statements, so while
they should have been suppressed, in light of the evidence as a whole, the error did not
contribute to the guilty verdict. Id.

        Again, like the arresting officer in Thomas William Brown, Officer Walcott
initiated contact with the defendant by asking him to step out of the vehicle. Once the
defendant exited his car, Officer Walcott asked for the defendant’s name and personal
information. The defendant asked why he was being detained, and Officer Walcott
answered his question. After arresting the defendant and placing him in the back of the
squad car, where he was undisputedly detained, Officer Walcott offered his unsolicited
                                          -7-
statement regarding the defendant’s actions. This statement went a step further than
asking the defendant why he was in the location of the burglary; he informed the
defendant that he had been seen on the car lot breaking into a vehicle, and his actions had
been captured on film. We acknowledge previously finding “[t]he disclosure of
incriminating evidence to a suspect . . . does not necessarily constitute interrogation
within the meaning of Innis.” State v. Maraschiello, 88 S.W.3d 586, 603 (Tenn. Crim.
App. 2000) (internal citations omitted). However, considering the circumstances as a
whole, Officer Walcott should have known this statement was reasonably likely to elicit
an incriminating response from the defendant. Moreover, by essentially admitting to the
burglary in response, the defendant clearly perceived this statement as one requiring an
incriminating response. The trial court erred when denying the defendant’s motion to
suppress his statement that he was “just getting it for a friend.”

       Considering the evidence presented at trial as a whole and the overwhelming
evidence against the defendant, the trial court’s error was harmless, as it did not “more
probably than not [affect] the judgment or . . . result in prejudice to the judicial process.”
Tenn. R. App. P. 36(b). The jury found the defendant guilty of burglary of a motor
vehicle. Pursuant to Tennessee Code Annotated section 39-14-402, “[a] person commits
burglary who, without the effective consent of the property owner . . . “[e]nters any
freight or passenger car, automobile, truck, trailer, boat or other motor vehicle with intent
to commit a felony, theft or assault or commits or attempts to commit a felony, theft or
assault.” Tenn. Code Ann. § 39-14-402(a)(4). Even in the absence of the defendant’s
statement that he was “just getting it for a friend,” the State introduced ample evidence of
the defendant’s guilt at trial.

        In support of its case-in-chief, the State called four witnesses and exhibited
photographs of the damaged vehicle. Mr. Melson testified that the dealership was closed
on Sunday, December 29, 2013, so all the vehicles on the lot would have been locked.
While the dealership was closed, nobody, including the defendant, had permission to
unlock and get inside the vehicles on the lot. Mr. Hentz then testified that while walking
through the closed car lot on December 29, 2013, he observed the defendant inside a
truck, tampering with its side paneling. As Mr. Hentz got closer to the truck, he noticed
the side paneling had been removed and was strewn across the seats of the vehicle. In
addition, there were bolts on the ground near the truck. Officer Walcott responded to Mr.
Hentz’s call for help, and witnessed the defendant attempting to leave the dealership with
a silver socket wrench in the front passenger seat of his car. Officer Patrick arrived at the
scene after the defendant had already been arrested and, as part of her investigation,
found the silver socket wrench and rubber gloves in the defendant’s car. This evidence
was more than sufficient to support the jury’s verdict. The defendant is not entitled to
relief on this issue.

                                            -8-
II.    Spoliation

       Next, the defendant asserts the trial court failed to give proper jury instructions.
Specifically, he asserts the trial court should have included Tennessee Pattern Jury
Instruction 42.23 regarding the loss or destruction of evidence because the State failed to
request and retain the video footage from the car dealership’s security cameras, which
potentially documented the break-in occurring December 29, 2013. The State contends it
did not have a duty to preserve the car dealership’s security footage, so the jury
instruction was unwarranted. We agree with the State.

        “It is well-settled in Tennessee that a defendant has a right to a correct and
complete charge of the law so that each issue of fact raised by the evidence will be
submitted to the jury on proper instructions.” State v. Farner, 66 S.W.3d 188, 204 (Tenn.
2001) (citing State v. Garrison, 40 S.W.3d 426, 432 (Tenn. 2000); State v. Teel, 793
S.W.2d 236, 249 (Tenn. 1990)). 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 only be considered prejudicially erroneous 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)).

       The defendant requested the trial court to include Tennessee Pattern Jury
Instruction 42.23 in its instructions to the jury, which states:

       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.




                                             -9-
7 Tenn. Prac. Pattern Jury Instr. TPI – Crim. 42.23 (footnote omitted). This instruction
is based on the holding of State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999), where our
Supreme Court held the loss or destruction of potentially exculpatory evidence may
violate a defendant’s right to a fair trial. Id. at 915-16. In Ferguson, the Tennessee
Supreme Court adopted “a balancing approach in which bad faith is but one of the factors
to be considered in determining whether the lost or destroyed evidence will deprive a
defendant of a fundamentally fair trial.” State v. Merriman, 410 S.W.3d 779, 785 (Tenn.
2013). The 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).

       When applying this balancing test, the trial court must first decide whether the
State had a duty to preserve the evidence. Ferguson, 2 S.W.3d at 917. Only
constitutionally material evidence must be preserved, and 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 917). If the State did have a duty to preserve
the evidence, and breached that duty, the trial court must next determine whether a trial
without the evidence would be fundamentally fair. Ferguson, 2 S.W.3d at 917. When
doing so, the trial court must apply these three factors to the case:

       (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. We review the trial court’s decision regarding the fundamental fairness of the trial
under a de novo standard. Merriman, 410 S.W.3d at 790.

       If, after considering these three factors, the trial court determines the trial was or
would be fundamentally unfair in the absence of the unpreserved evidence, it may impose
an appropriate remedy. Merriman, 410 S.W.3d at 785-86. Appropriate remedies include,
but are not limited to, the dismissal of the charges or providing Tennessee Pattern Jury
Instruction 42.23. Id. We review the appropriateness of the remedy imposed by the trial
court under an abuse of discretion standard. Id.



                                           - 10 -
       This Court previously considered the State’s duty to preserve video surveillance
footage in State v. Yevette Somerville, No. W2001-00902-CCA-R3-CD, 2002 WL
1482730 (Tenn. Crim. App. Feb. 11, 2002). When doing so, we noted:

       Previously, this [C]ourt has held that “[t]he prosecution is not required to
       disclose information that the accused already possesses or is able to
       obtain.” State v. Marshall, 845 S.W.2d 228, 233 (Tenn. Crim. App. 1992)
       (citing State v. Caldwell, 656 S.W.2d 894, 897 (Tenn. Crim. App. 1983);
       Banks v. State, 556 S.W.2d 88, 90 (Tenn. Crim. App. 1977)). Additionally,
       the court held that the prosecution is not required to disclose “information
       which is not possessed by or under the control of the prosecution or another
       governmental agency.” Id. (citing Banks, 556 S.W.2d at 90). Ultimately,
       the Marshall court held that the defendant “‘must bear the responsibility of
       [his] failure to seek its discovery’ “if the evidence is accessible to both the
       prosecutor and the defendant. Id. (quoting United States v. McKenzie, 768
       F.2d 602, 608 (5th Cir. 1985), cert. denied., 474 U.S. 1086, 106 S.Ct. 861,
       88 L.Ed.2d 900 (1986).

Id. at *4. Based on these authorities, we held the State did not have a duty to obtain and
preserve surveillance video footage from WalMart prior to its destruction because it was
equally accessible to the defendant, and the video footage was never in the State’s
possession or control. Id. Because we found the State did not have a duty to preserve the
video surveillance footage at issue, it was unnecessary for us to apply the three Ferguson
factors and determine the fundamental fairness of the trial in the absence of the evidence.
Id. at *5.

       In the present matter, we likewise conclude the State did not have a duty to
preserve the video surveillance footage from December 29, 2013. The surveillance
video, if it ever existed, was never in the possession of the State or another governmental
agency, and both parties had an equal ability to obtain the video. Mr. Melson testified
that he does not know what happened to the surveillance video from that date, but
typically the footage is only kept forty-eight hours. Mr. Melson did not know whether
the dealership made an attempt to save the footage, but as of the date of trial, he did not
have it. Officer Patrick testified that following the break-in, she spoke with Mr. Melson
regarding the video cameras on the lot and learned they may not have been working, so
the incident may not have been captured on film. She assumed the detectives would
follow up in an effort to obtain the video evidence, if it existed, and never spoke with Mr.
Melson again regarding the security cameras.

      Moreover, the parties did not present evidence at trial indicating the surveillance
video had any exculpatory value. Instead, Mr. Hentz and Officer Walcott both testified
                                           - 11 -
they witnessed the defendant on the car lot the day in question, and Mr. Hentz observed
the defendant breaking into one of the vehicles on the car lot. Both Mr. Hentz and
Officer Walcott identified the defendant in the courtroom. For these reasons, the trial
court properly denied the defendant’s request for the inclusion of Tennessee Pattern Jury
Instruction 42.23.

       Because we hold the State did not have a duty to preserve the video surveillance
footage from December 29, 2013, it is not necessary for us to determine the fundamental
fairness of the trial in the absence of the evidence by applying the three Ferguson factors.
The defendant is not entitled to relief on this issue.

III.   Corroboration of the Defendant’s Statement

       Finally, the defendant asserts the guilty verdict is against the weight of the
evidence because it is supported solely by his own incriminating statement and no other
corroborating evidence. The State disagrees and points to the overwhelming evidence
against the defendant, including the testimony of the officers and photographs of the
damaged vehicle. We agree with the State.

       When a defendant has been charged with a crime resulting in a tangible injury, “a
defendant’s extrajudicial confession is sufficient to support a conviction only if the State
introduces independent proof of facts and circumstances which strengthen or bolster the
confession and tend to generate a belief in its trustworthiness, plus independent proof of
loss or injury.” State v. Bishop, 413 S.W.3d 22, 58 (Tenn. 2014) (citations and internal
quotation marks omitted). Our Supreme Court has offered this explanation for the
corroboration rule:

       When a defendant challenges the admission of his extrajudicial confession
       on lack-of-corroboration grounds, the trial court should begin by asking
       whether the charged offense is one that involves a tangible injury. If the
       answer is yes, then the State must provide substantial independent evidence
       tending to show that the defendant’s statement is trustworthy, plus
       independent prima facie evidence that the injury actually occurred. If the
       answer is no, then the State must provide substantial independent evidence
       tending to show that the defendant’s statement is trustworthy, and the
       evidence must link the defendant to the crime.

Id. at 60. “Prima facie” evidence is “‘[e]vidence that will establish a fact or sustain a
judgment unless contradictory evidence is produced.’” State v. Clark, 452 S.W.3d 268,
280 (Tenn. 2014) (quoting Black’s Law Dictionary 638-39 (9th ed. 2009)). “‘Substantial
evidence’” is “‘[e]vidence that a reasonable mind could accept as adequate to support a
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conclusion; evidence beyond a scintilla.’” Clark, 452 S.W.3d at 280. The threshold of
proof necessary to meet the corroboration requirement is low, even lower than the
“preponderance of the evidence” standard, as its purpose is merely to exclude the
possibility of a false confession. Id.

      The question of whether an extrajudicial confession is adequately corroborated is a
mixed question of law and fact, and we review it under a de novo standard. Bishop, 431
S.W.3d at 60. If the corroboration challenge is based on disputed facts, this Court should
presume the trial court’s resolution of the factual dispute is correct unless the evidence
preponderates against those findings. Id.

       We have already concluded the trial court erred when denying the defendant’s
motion to suppress, but given the otherwise overwhelming proof against the defendant,
this error was harmless. As explained in Section I supra, even in the absence of the
defendant’s statement that he was “just getting it for a friend,” the State introduced ample
evidence of the defendant’s guilt at trial. Because the State offered more than sufficient
corroboration of the defendant’s admission, the defendant is not entitled to relief on this
issue.

                                       Conclusion

     In accordance with the aforementioned reasoning and authorities, we affirm the
judgment of the trial court.



                                              ____________________________________
                                              J. ROSS DYER, JUDGE




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