                                                                                        05/08/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                          Assigned on Briefs March 5, 2019

            STATE OF TENNESSEE v. JARED WORTHINGTON

                 Appeal from the Criminal Court for Shelby County
                  No. 17-00687       J. Robert Carter, Jr., Judge
                     ___________________________________

                           No. W2018-01040-CCA-R3-CD
                       ___________________________________


The Defendant, Jared Worthington, was convicted by a Shelby County Criminal Court
jury of DUI per se, a Class A misdemeanor, and reckless driving, a Class B
misdemeanor, after the State dismissed his DUI by impairment charge. He was
sentenced by the trial court to concurrent terms of one day for the reckless driving
conviction and 11 months, 29 days for the DUI conviction, suspended to probation after
service of ten days in the county jail. On appeal, the Defendant raises the following
issues: (1) Whether the trial court erred in its rulings regarding the admission and
publication of the dashboard camera video of the Defendant’s arrest; (2) Whether the trial
court violated the Tennessee constitution by disparaging the evidence, which took the
form of instructing the jury that much of the video was irrelevant; (3) Whether the trial
court erred by not allowing defense counsel to question officers about the potential bias
created by the fact that the Tennessee Bureau of Investigation (“TBI”) blood alcohol or
drug concentration test fee (“BADT”) was collected only in those cases in which a
defendant is convicted; and (4) Whether the trial court “shifted the burden of proof,”
thereby violating the Defendant’s constitutional due process rights, by asking defense
counsel in the presence of the jury whether the Defendant intended to put on any proof.
Following our review, we affirm the judgments of the trial court.

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

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

Benjamin Michael Israel, Memphis, Tennessee (on appeal); and John McNeil, Memphis,
Tennessee (at trial), for the appellant, Jared Worthington.
Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Sam Winning and
Kenya Smith, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                         OPINION

                                          FACTS

        On the morning of July 31, 2016, Memphis Police Officer Brian Pirtle responded
to the scene of a one-vehicle crash caused by the Defendant’s running his pickup truck
into a utility pole. The Defendant claimed he swerved to avoid a car that had pulled in
front of him but Officer Pirtle was unable to find any skid marks or other evidence to
corroborate that claim. In addition, he detected the odor of alcohol on the Defendant’s
person and observed that the Defendant’s eyes appeared bloodshot. A DUI officer who
responded to the scene conducted a series of field sobriety tests, on which the Defendant
performed well but not perfectly, and administered a Breathalyzer test, which showed
that the Defendant had a blood alcohol concentration (“BAC”) of .141 percent.1

       The Defendant was subsequently indicted by the Shelby County Grand Jury for
DUI by impairment, DUI per se, and reckless driving. The Defendant was tried on all
three charges before a Shelby County Criminal Court jury, which was unable to reach a
unanimous verdict, resulting in a mistrial. Before the start of the Defendant’s March 12-
14, 2018 retrial, the State dismissed the DUI by impairment count of the indictment,
leaving the Defendant to be tried before a second Shelby County Criminal Court jury
only on the charges of DUI per se and reckless endangerment.

       At trial, the State presented three witnesses in addition to Officer Pirtle. Memphis
Police Officer Lawrence Marcrum, the DUI officer who conducted the field sobriety and
Breathalyzer tests, described his training as a DUI officer, the Defendant’s performance
on the field sobriety and Breathalyzer tests, and the Defendant’s initial failure to blow
with sufficient force to generate a reading on the instrument. Memphis Police Officer
Robert Galison, the keeper of the records for the DUI unit, identified the Defendant’s
Breathalyzer results and testified that Officer Marcrum had been certified on the
instrument, an “Alco-Sensor 5,” on August 22, 2013. Finally, TBI Special Agent
Forensic Scientist Robert Marshall, the keeper of the records related to the Breathalyzer
instruments, testified that he runs a calibration check on each instrument every 90 days

       1
          The DUI officer testified that he obtained two readings of the Defendant’s BAC from
tests taken twenty minutes apart. The first time, the Defendant’s BAC registered .146 percent
and the second time it registered .141 percent. Consistent with protocol, the lower of the two
results was used for charging purposes.
                                            -2-
and tests each instrument for accuracy once a month. He stated that he performed a
calibration check on the instrument involved in the Defendant’s case on May 18, 2016,
and again on August 10, 2016. Both times, the instrument was operating properly. The
trial court declined to allow defense counsel to cross-examine the police officers and TBI
agent about the potential bias created by the fact that the $250 BADT fee was only paid
to the TBI in cases in which the defendant was convicted.

       The Defendant opted not to testify and presented no evidence in his defense.

      At the conclusion of the trial, the jury convicted the Defendant of the two
remaining indicted offenses.

                                       ANALYSIS

       I. Trial Court’s Rulings with respect to the Dashboard Camera Video

       The Defendant first contends that the trial court abused its discretion in its rulings
with respect to the admission and publication to the jury of the DUI officer’s dashboard
camera video recording of the Defendant’s arrest. The Defendant argues that the trial
court erred by initially ruling that the video was irrelevant to the DUI per se charge and
prohibiting defense counsel from mentioning the video during opening statements; by
ruling that the entire video could not be admitted because it contained self-serving
hearsay statements by the Defendant; and by ultimately admitting the entire video for the
jury to view in an unorthodox manner. The State responds by arguing, inter alia: that the
trial court properly excluded the video until it became relevant; that the trial court
properly declined to permit any reference to the video until its relevance was established;
and that the Defendant waived any objections to the manner in which the trial court
admitted the video by not raising a contemporaneous objection at trial, by not including
an adequate record on review, and by not raising the issue in his motion for new trial.
We agree with the State.

        As a general rule, “[a]dmission of evidence is entrusted to the sound discretion of
the trial court, and a trial court’s ruling on evidence will be disturbed only upon a clear
showing of abuse of discretion.” State v. Robinson, 146 S.W.3d 469, 490 (Tenn. 2004).
Trial courts also “have wide discretion in controlling arguments of counsel, including
opening statements, and a trial court’s ruling concerning the arguments of counsel will
not be reversed absent an abuse of discretion.” State v. Stacy Johnson, No. W2004-
00464-CCA-R3-CD, 2005 WL 645165, at *14 (Tenn. Crim. App. Mar. 15, 2005) (citing
State v. Sutton, 562 S.W.2d 820, 823 (Tenn.1978)). We review this issue, therefore,
under an abuse of discretion standard.

                                            -3-
        To understand the context in which the trial court made its rulings, we must
review in some detail the somewhat lengthy discussion/argument that counsel had with
the court about the video. The initial discussion occurred before jury selection on the
first day of trial after the prosecutor announced that the State was going to dismiss the
DUI by impairment count of the indictment. The trial court asked whether the prosecutor
intended to play the entire video, as he had during the first trial. The prosecutor
responded that he thought he needed to show at least part of the video and believed if that
were the case defense counsel “would have the right to play the whole video[,] including
the field sobriety test.”

        The trial court expressed doubt about whether the field sobriety tests were relevant
to the DUI per se charge and also noted that much of the video consisted of the
Defendant’s “self-serving hearsay” about his educational background and his “hopes and
plans for the future.” Defense counsel, citing the rule of completeness, argued that the
entire video should be played in fairness to the Defendant. The court replied that it might
allow the defense to play a portion of the video if counsel could show a valid reason, such
as to impeach the officer’s testimony, but did not believe the rule of completeness
justified the introduction of the entire video.

        The following day, the prosecutor announced that the State had decided not to
introduce the video into evidence in its case-in-chief and made a motion in limine that the
defense be prohibited from mentioning any part of the video that was not reasonably
likely to come into evidence in the case. Defense counsel responded that he intended to
mention the video. When asked what part of the video he intended to introduce, defense
counsel said that he thought he needed at least parts of the video to satisfy the Sensing
requirements. See State v. Sensing, 843 S.W.2d 412 (Tenn. 1992). The trial court
replied that Sensing motions should have long since been heard and that there were other
ways to meet the Sensing requirements. The trial court agreed, however, that parts of the
video might be relevant, depending on other evidence introduced at trial, and suggested
that it would be better if defense counsel refrained from mentioning the video during
opening statements and instead waited until the court could determine which parts were
relevant as the issue arose during trial.

       As the discussion continued, defense counsel again expressed his belief that the
entire video was relevant and argued that the portion showing the field sobriety tests, at a
minimum, was relevant to rebut the inference that the Defendant was under the influence.
The State responded by arguing that the rebuttable presumption was not part of the DUI
per se statute.

       After reviewing the statute, the trial court agreed with the prosecutor. The court
again ruled, however, that although the field sobriety tests were “really not relevant” to
                                           -4-
the charge of DUI per se, the court might admit them depending on the other proof
introduced. The court also specifically ruled that defense counsel was not to mention the
video during his opening statement:

       I do think, however, the . . . defense would be allowed to show, . . . or the
       State, the Field Sobriety Testing, and here’s my rationale on this. It’s [sic]
       relevance, and it’s really not relevant to the issue of .08, specifically, but if
       -- and this again, I’m not putting words . . . in anyone’s mouth, but . . . the
       defense in this case more or less last time was the instrument has to be out
       of whack. It couldn’t have registered that high. I mean, . . . that was in
       essence the defense. And to the extent . . . if that’s how the proof is
       articulated, I don’t -- I don’t know.

              Again, I’m not going to charge the jury that . . . you know, they have
       to find per se. They have to make any -- I mean, I’m going to charge them.
       If they find he’s in possession of the motor vehicle, and his breath was .08,
       those are the elements.

                But I do think that if the defense wants to or the State wants to -- to
       show the Field Sobriety Testing position, I really don’t see that it’s
       relevant, but I also think it will run the risk of hampering a -- a defense to
       put on would -- would be a risk that, I -- I could see under certain
       circumstances. So I think my- - my sort of proviso is probably going to be,
       that I will probably allow that depending on how the cross-examination and
       . . . everything shapes up.

               But I’m going to tell you, I am still ruling, don’t mention it in
       opening statements, because it will have to be subject to how the -- the
       situation goes. But . . . I think that that portion of it would be admissible if
       -- if you chose . . . to demonstrate that portion.

         Defense counsel agreed that he would not mention the video in opening statements
but asked if he could mention the fact that field sobriety tests were administered. When
the trial court repeated that the field sobriety testing was irrelevant to the charge of DUI
per se, defense counsel persisted by arguing that he intended to “put on the Field Sobriety
Test” and “expect[ed] the jury [was] going to see that.” At that point, the trial court
responded that defense counsel had “pushed [the court] into a corner” and that it was
therefore ruling that the field sobriety testing was not going to be admissible and counsel
should not mention it. The court added that it could envision a situation in which the
field sobriety testing might become relevant, but if defense counsel insisted on “bringing
it into the opening,” the trial court would “take care of it.”
                                             -5-
       The first mention of the video before the jury occurred during defense counsel’s
cross-examination of Officer Pirtle. Defense counsel asked if the officers had moved the
Defendant from Officer Pirtle’s vehicle to Officer Marcrum’s, and Officer Pirtle
responded that he believed he had “for video reasons.” Defense counsel then asked why
the Defendant could not take the Breathalyzer test in Officer Pirtle’s vehicle, to which
Officer Pirtle responded that the DUI vehicles had “specialized equipment in there and
specialized video equipment for that purpose.”

        At the conclusion of Officer Pirtle’s testimony, the prosecutor informed the court
that based on the officer’s cross-examination testimony, he intended to introduce the
video but had no intention of publishing it to the jury. The court agreed and reiterated
that it did not intend to allow any of the video to be shown unless counsel could articulate
its relevance. Defense counsel then renewed his objection to anything less than the entire
video being played if any portion were shown.

      During Officer Marcrum’s direct examination testimony, the State elicited that the
“whole procedure” had been captured on the officer’s dashboard camera. After Officer
Marcrum identified the CD of the encounter, the State moved to admit it into evidence
without any objection raised by the defense.

        When asked on cross-examination which portions of the field sobriety tests the
Defendant had failed, Officer Marcrum, consulting his “DUI Field Sobriety Report,”
testified that the Defendant had failed to step “heel to toe” and had turned in the wrong
direction after completing the initial nine steps of the heel to toe test. At that point,
defense counsel moved that the field sobriety report be marked as the next exhibit. The
State made no objection, and the trial court therefore admitted the report into evidence. 2

       After the officer explained what he meant by marking that the Defendant had
started the test too soon, defense counsel requested that the video be published “for
impeachment.” The trial court denied the request, ruling that there had not been a
foundation laid for impeachment and that counsel could not “just publish the whole
thing.” Defense then continued questioning the officer in detail about the portions of the
field sobriety tests that the officer had marked the Defendant as failing and whether the
video would corroborate the officer’s report. Twice during his cross-examination,
defense counsel received permission from the court to have the officer’s memory
refreshed by playing portions of the video outside the jury’s presence. The first time this

       2
          The trial court later stated that it purposefully waited to give the State a chance to
object before it admitted the report as an exhibit. The prosecutor explained that he did not object
because he thought the court had already ruled that the field sobriety tests were irrelevant and
inadmissible.
                                               -6-
occurred, the trial court ruled that defense counsel had laid a sufficient foundation for
impeachment to show the jury the field sobriety test portion of the video.

       Before the jury returned to the courtroom after the second jury-out showing of the
video, the prosecutor informed the trial court that he had overheard one of the jurors say
that she wanted to see the videotape. In light of that comment, the prosecutor requested
that the court instruct the jurors that they could watch the entire video during
deliberations. After further discussion of the issue, during which the court repeated that it
thought most of the video was irrelevant, the trial court agreed to instruct the jury that it
would be allowed to watch the entire video. The court first, however, received the
assurances of the lead prosecutor and defense counsel that each wanted the entire video
made available to the jury.

       When the jury returned to the courtroom, the trial court, without objection by the
defense, instructed the jurors that the video had been marked into evidence and that the
jurors were free to watch it in its entirety during deliberations if they chose, although
some of it was “not really relevant to this case one way or another[.]”

       The only other mention of the video occurred during the Defendant’s Momon
hearing when he stated that he had intended to testify if the video were not shown but no
longer felt the need to, and the next day when the prosecutor said that he had brought a
computer for the jury to use to watch the video during deliberations.

      We can find no abuse of discretion in the trial court’s handling of the evidence.
Tennessee Code Annotated section 55-10-401, the DUI statute, provides in pertinent part
that

       [i]t is unlawful for any person to drive or be in physical control of any . . .
       motor driven vehicle . . . while:

              (1) under the influence of any intoxicant . . . that impairs the driver’s
              ability to safely operate a motor vehicle by depriving the driver of
              the clearness of mind and control of oneself that the driver would
              otherwise possess; [or]

              (2) [t]he alcohol concentration in the person’s blood or breath is
              eight-hundredths of one percent (0.08%) or more[.]

Tenn. Code Ann. § 55-10-401(1), (2).



                                            -7-
       The trial court properly found that the rebuttable presumption is not applicable to
the DUI per se charge, the elements of which are listed in subsection (2) of the statute,
and, thus, that the video of the field sobriety tests and the field sobriety report were not
automatically relevant. See State v. Conway, 77 S.W.3d 213, 220 (Tenn. Crim. App.
2001) (holding that rebuttable presumption statute “has no application to a prosecution
for DUI per se”); State v. Synder, 835 S.W.2d 30, 32 (Tenn. Crim. App. 1992) (“Neither
the need to prove impairment nor the rebuttable presumption . . . applies in [DUI per se]
cases.”); State v. Akan Terry Stein, No. M2016-01345-CCA-R3-CD, 2017 WL 4640485,
at *3 (Tenn. Crim. App. Apr. 19, 2017) (concluding that jury instruction on rebuttable
inference of intoxication created by the fact that defendant had a blood alcohol level of
.08% or greater “could not properly be given with the charge for DUI per se because it
does not properly state the law for the offense.”).

       The trial court also properly found that the rule of completeness did not justify the
introduction of the entire video, much of which contained the Defendant’s self-serving
statements about his recent graduation as a chiropractor, his having never before been in
trouble,3 and his fear that a DUI conviction would ruin his life and his opportunities for
employment in his profession.

        Tennessee Rule of Evidence 106 provides that “[w]hen 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.” Tenn. R. Evid.
106. “Rule 106, often referred to as the rule of completeness, reflects a concern for
fairness and is designed to let the jury assess related information at the same time rather
than piecemeal.” Neil P. Cohen et al., Tennessee Law of Evidence § 1.06(2)(a) (6th ed.
2011). “Rule 106 applies a rule of completeness when fairness so requires.” Id. § 1.06
(2)(b). The trial court is granted broad discretion to determine whether the rule of
completeness should result in the admission of evidence, and this court therefore reviews
the trial court’s decisions in this matter under an abuse of discretion. Id.; see also State v.
Torres, 82 S.W.3d 236, 252 (Tenn. 2002); State v. Keough, 18 S.W.3d 175, 183 (Tenn.
2000).

       We have reviewed the entire video and agree with the trial court that fairness did
not require that it be admitted in its entirety. Indeed, we are somewhat perplexed as to
why defense counsel wanted so badly for the entire video to be shown rather than just the
field sobriety test portion, in which the Defendant appeared to have performed
remarkably well. A good portion of the video covers the conversation between the

       3
          The Defendant’s claim of never before having been in trouble is contradicted by his
presentence report, which shows a June 6, 2016 arrest for domestic assault in Arnold, Missouri.
                                             -8-
Defendant and the officer during the initial twenty-minute wait before the Defendant first
unsuccessfully attempted the Breathalyzer test and the subsequent twenty-minute wait
before he could attempt it again. During that time, the Defendant talked about having
just graduated as “a doctor,” which he later clarified as having completed a doctor of
chiropractic program, expressed his belief that he had passed the field sobriety tests,
agonized over whether to take the Breathalyzer test, and implored the officer to allow
him to postpone his decision about taking the Breathalyzer test until after he had an
opportunity to consult with a lawyer or at least with his stepfather, who had apparently
responded to the crash site. Also during that conversation is the officer’s mention of an
eyewitness’s report that the Defendant had been swerving over the roadway before the
crash occurred.

       Although the Defendant came across as quite likeable during the beginning
portions of the video, he became less so toward the end. For example, the Defendant
asked multiple times if there was any way the officer could help him out should his
Breathalyzer test results show that his blood alcohol level was over the legal limit,
responded to the officer’s comment that he was an intelligent man by stating that he was
very intelligent, and appeared to be attempting to delay the Breathalyzer test results by
purposefully blowing with insufficient force during his first two attempts with the
instrument.

        The Defendant argues that the trial court prejudiced his defense by prohibiting
defense counsel from mentioning the video during opening statements, by not allowing
counsel to have the exhibit admitted and shown in its entirety to the jury in a normal
manner during the course of the trial, and by admitting it “late in the trial with the caveat
that it should be ignored.” We, however, agree with the State that the Defendant has
waived these issues by his failing to include an adequate record for review, by not only
failing to object but appearing to approve of the manner in which the trial court admitted
the video, and by not including as an issue in his motion for new trial any complaint
about the manner in which the trial court admitted the video.

        The Defendant did not include the transcripts of opening statements or closing
arguments in the record on appeal. The Defendant, as the appellant, bore the burden to
prepare an adequate record for appellate review, see State v. Ballard, 855 S.W.2d 557,
560 (Tenn. 1993), and, in the absence of an adequate record, this court must presume the
trial court’s ruling was correct. See State v. Richardson, 875 S.W.2d 671, 674 (Tenn.
Crim. App. 1993). The Defendant also failed to raise a contemporaneous objection to the
manner in which the trial court admitted the video, or to raise any complaints about the
“unorthodox” admission of the video as an issue in his motion for new trial. As such, we
agree with the State that these issues are waived. See Tenn. R. App. P. 36(a) (providing
that the failure to make a contemporaneous objection waives the issue on appeal); Tenn.
                                            -9-
R. App. P. 3(e) (providing for waiver of issues not specifically stated in a motion for new
trial).

        The Defendant asserts that the trial court exercised a double standard by allowing
the State to “bolster the credibility of the Breathalyzer test with the officers’ testimony
that [the Defendant] appeared to be intoxicated” while “effectively forbid[ing]” the
Defendant from introducing evidence that would contradict the officers’ testimony. He
also asserts that “[t]he trial judge prevented the jury from viewing the video during the
entire trial[,]” which put the Defendant at a “tremendous disadvantage.”

       Our review of the record, however, shows that the Defendant is mischaracterizing
the court’s rulings. The trial court repeatedly stated that it would in all likelihood allow
defense counsel to introduce portions of the video upon a showing of relevance.
Furthermore, the trial court specifically ruled during Officer Marcrum’s cross-
examination testimony that defense counsel had established a sufficient foundation to
impeach the officer’s testimony by showing the field sobriety portion of the video. It was
defense counsel’s choice not to request that the field sobriety portion of the video be
published to the jury during Officer Marcrum’s cross-examination.

       We, therefore, conclude that the Defendant is not entitled to relief on the basis of
any of his claims surrounding the trial court’s rulings about the dashboard camera video.

            II. Trial Court’s Instruction to the Jury Regarding the Video

       The Defendant next contends that the trial court violated the Tennessee
Constitution by impermissibly commenting on the evidence during his instruction to the
jury about the video. After defense counsel assured the trial court he wanted the entire
video made available for the jury’s viewing, the trial court issued the following
instruction to the jury:

              All right. Ladies and gentlemen, before we resume, let me, if I can,
       human nature being what it is, it’s the elephant in the room. We’ve been
       talking about a video and this witness has been asked about a video and --
       and other witnesses may be asked about it. I have marked that video into
       evidence, and I have made rulings that not all of it pertains to this case.

              In other words, I’ve ruled that some [o]f it’s not really relevant to
       this case one way or another, but I have marked it as evidence. And what
       that means is, when you go to deliberate, along with all of these other
       photographs, pieces of paper, and everything that you have, you will have
       that. And if you choose to watch -- you know, watch every minute of it
                                           - 10 -
       over and over again or parts of it or whatever you choose to do, that will be
       in your, you know, custody to -- to look at or rely upon.

               So, I just want to tell you that by -- by way of saying, we do still
       have to do some things that, you know, aren’t -- that don’t really apply to
       your position. So we still occasionally may be asking you to step out. But
       as far as looking at that, you’ll be able to see it if you want to. And that --
       that’s the -- the short answer to the question. So it’ll be there for you. It’s
       in evidence.

       The Defendant argues that by instructing the jury that much of the video was
irrelevant, the trial court “disparaged the evidence” in violation of Article VI, Section 9
of the Tennessee Constitution, which forbids judges from charging “juries with respect to
matters of fact.” More specifically, the Defendant asserts that the trial court “violated
this constitutional protection when [it] gave the jury confusing and erroneous instructions
to discount the probative value of the dashboard camera video.” The State responds that
the Defendant has waived this issue for his failure to raise it at trial or in the motion for
new trial. The State further argues that the trial court’s comments were not improper.
We agree with the State.

       First, as the State points out, the Defendant neither raised a contemporaneous
objection at trial nor raised the issue in his motion for new trial and, thus, has waived the
issue for appellate review. Second, we agree with the State that, notwithstanding waiver,
there is nothing in the trial court’s remarks that constitutes an impermissible comment
upon the facts. It is clear from the record that the trial court did not instruct the jury to
discount the video or direct the jury to particular parts that the court found to be
irrelevant. Instead, by way of explanation for the fact that the jury had been repeatedly
excused from the courtroom, the trial court merely informed the jury that it had found
parts of the video irrelevant, but the jury was free to watch the entire video while
deliberating if it wished.

        We conclude, therefore, that the Defendant is not entitled to relief on the basis of
this claim.

                            III. Cross-examination for Bias

       The Defendant next contends that the trial court violated his constitutional right to
confront the witnesses against him by forbidding defense counsel from cross-examining
the police officers and TBI agent about the potential bias created by the fact that the



                                           - 11 -
BADT fee was only paid to the TBI in cases in which the defendant was convicted.4 The
State argues that the Defendant waived this issue by failing to provide an adequate record
for review and by failing to make an offer of proof, despite the trial court affording him
the opportunity to do so. The State further argues that, regardless of waiver, the trial
court acted within its discretion in prohibiting defense counsel from cross-examining
witnesses about the BADT fee. We, once again, agree with the State.

       As the State points out in its brief, the Defendant relies for this issue on our court’s
decision in State v. Rosemary Decosimo, No. E2017-00696-CCA-R3-CD, 2018 WL
733218 (Tenn. Crim. App. Feb. 6, 2018), reversed by State v. Decosimo, 555 S.W.3d 494
(Tenn. 2018), in which we found unconstitutional the statutory fee system under which
the TBI was paid a drug testing fee of $250 in cases that resulted in a conviction. Based
on that case, which was released after the Defendant’s first trial, the Defendant filed a
motion to suppress the results of the Defendant’s Breathalyzer tests in his second trial.
The trial court apparently discussed the Defendant’s motion in a hearing held the week
before the Defendant’s second trial started. Although the transcript of that hearing is not
included in the record before this court, the trial transcript reveals that the court noted that
the case was pending appeal at the time of the Defendant’s trial and was not binding on
the court. The court expressed its disagreement with the holding of the case but granted
the State’s request that the court enter an order prohibiting the TBI from collecting the
$250 fee in the event that the Defendant’s trial resulted in a conviction.5 At the same
time, the trial court granted the State’s oral motion in limine that defense counsel be
prohibited from cross-examining the witnesses with respect to the fee structure.

       Defense counsel responded to the State’s motion in limine prohibiting cross-
examination about the BADT fee by stating that he intended to ask a few questions about
the fee schedule to “preserve the right for appeal.” The trial court ruled that defense
counsel could not cross-examine the witnesses about the fee schedule in front of the jury
but could make a proffer outside the jury’s presence after the witnesses completed their
testimony. Although defense counsel agreed and expressed his intention of making a
“five-minute proffer,” he did not bring the issue up again. Accordingly, we agree with
the State that the Defendant has waived this issue.




       4
          The statute has since been amended. See Tenn. Code Ann. §55-10-413(f).
       5
         After our supreme court’s reversal of the case, the State filed a Motion to Reconsider in
which it formally withdrew its request “for the Court to order the funds from the court costs not
be dispersed to [the] TBI.” [R, 51] There is nothing in the record to indicate the court’s response
to that motion.

                                              - 12 -
        We further agree with the State that, regardless of waiver, the Defendant cannot
show that the trial court erred in limiting the cross-examination of the officers about the
fee structure. As previously mentioned, our supreme court reversed our decision that the
fee statute was unconstitutional, holding that the statute did not deprive “the defendant of
due process guaranteed by both the federal and state constitutions.” Decosimo, 555
S.W.3d at 516. The court specifically concluded that the “fee statute does not provide
TBI forensic scientists with either a direct, personal, substantial pecuniary interest or a
sufficiently substantial institutional financial incentive that qualifies as a possible
temptation to any reasonable forensic scientist to falsify or alter test results to produce
more convictions[.]” Id. at 516. Further, “a TBI forensic scientist’s continued
employment depends much more heavily on the forensic scientist’s accurate, objective
job performance than on any institutional financial incentive to produce test results that
increase convictions and generate BADT fees that may or may not be allocated to the
forensic services division.” Id. at 513.

        We conclude, therefore, that the Defendant is not entitled to relief on the basis of
this claim.

                                IV. Shifting of Burden of Proof

       Lastly, the Defendant contends that the trial court impermissibly shifted the
burden of proof by asking defense counsel in the jury’s presence whether the Defendant
intended to put on any proof. The record reveals that the trial court first asked the
question after the State rested its case and the jury had been excused from the courtroom.
Defense counsel requested a brief recess before making the final decision. When he
returned, he announced that he did not intend to put on any proof. Thereafter, the court
held the Momon hearing, and the Defendant made a motion for judgment of acquittal.
The trial court overruled the motion and, as the jury was re-entering the courtroom, asked
defense counsel again if the Defendant intended to put on any proof. When defense
counsel replied that they were going to submit the case on the proof, the court instructed
the jury that it had seen “all the testimony and all of the evidence” it was going to hear in
the case and that the court would instruct the jury on the law when it returned to the
courtroom the following day.

       The Defendant argues that the trial court should have asked defense counsel the
question before the jurors returned to the courtroom and should have reminded the jurors
that the Defendant was still protected by the presumption of innocence when it informed
them that the defense was not going to put on any evidence in the case. He acknowledges
that he failed to object at trial but asserts that the trial court’s actions constituted a
constitutional error that affected his substantial rights. We respectfully disagree.

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        As the State points out, the Defendant did not raise any objection at trial or in the
motion for new trial. Moreover, he has submitted no authority for his proposition that the
trial court was required to instruct the jury on the presumption of innocence at the same
time that it informed the jury that the defense was not going to put on any proof, or that
the trial court “carelessly disregarded its duty to protect the presumption of innocence”
by asking the question of defense counsel in the jury’s presence. We, therefore, conclude
that the Defendant is not entitled to relief on the basis of this claim.

                                     CONCLUSION

        Based on the foregoing authorities and reasoning, we affirm the judgments of the
trial court.


                                              ____________________________________
                                              ALAN E. GLENN, JUDGE




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