        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs April 25, 2012

          STATE OF TENNESSEE v. STEVEN O. HUGHES-MABRY

                  Appeal from the Circuit Court for Sullivan County
                         No. S54919 R. Jerry Beck, Judge


                   No. E2011-02255-CCA-R3-CD Filed May 16, 2013


The Defendant, Steven O. Hughes-Mabry, was convicted by a Sullivan County jury of
possession of .5 grams or more of cocaine with intent to sell or deliver within 1000 feet of
a school zone, introduction of contraband into a penal institution, and driving on a suspended
license. He was sentenced to concurrent terms of fifteen years, three years, and six months,
respectively. In this direct appeal, the Defendant challenges (1) the denial of his motion to
suppress, arguing that the officers lacked reasonable suspicion for an investigatory stop; (2)
the sufficiency of the evidence establishing that the possession offense occurred within 1000
feet of a school zone; and (3) the trial court’s refusal to impose sanctions against the State
for failing to preserve the identity of a witness. After a thorough review of the record and
the applicable authorities, we affirm the judgments of the trial court.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which J ERRY L. S MITH and
R OBERT W. W EDEMEYER, JJ., joined.

Paul A. Harr, Blountville, Tennessee, for the appellant, Steven O. Hughes-Mabry.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; Barry P. Staubus, District Attorney General; and Joseph Eugene Perrin, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                     OPINION
                               FACTUAL BACKGROUND

       This case arises from two undercover officers conducting surveillance at a gas station
in Kingsport on October 30, 2007. On April 9, 2008, a Sullivan County grand jury indicted
the Defendant for possession of .5 grams or more of cocaine with intent to sell or deliver
within 1000 feet of a school zone, a Class A felony; introduction of contraband into a penal
institution, a Class C felony; and driving on a suspended license, a Class B misdemeanor.
See Tenn. Code Ann. §§ 39-16-201, 39-17-417, 39-17-432, 55-50-504.

       Thereafter, the Defendant filed a motion to suppress “all evidence obtained, arising
from, and incident to the stop, arrest and search conducted by agents of the Kingsport Police
Department and/or the Sullivan County Sheriff’s Department.” As grounds for suppression,
the Defendant argued that he “did not engage in a consensual encounter with law
enforcement officials, nor was there a reasonable basis or probable cause for an investigatory
stop or probable cause for a seizure.” Following the denial of the Defendant’s motion, the
case proceeded to trial.

       The evidence presented at trial revealed the following facts. Officers Steve Summey
and Tim Crawford of the Kingsport Police Department were at the Sunoco gas station around
9:00 p.m. on October 30, 2007. The gas station was located on Lynn Garden Drive, which,
in 2007, was in the vicinity of Tri-Cities Christian Elementary School.

       The two officers were wearing “plain clothes” and were sitting in an unmarked police
car, which was parked facing the front of the store “on the far right parking space.” While
they were observing the area, a gray Pontiac Grand Am entered the gas station parking lot
and parked on the south side of the building, which was “directly in front of” their police car.
The driver of that vehicle, a white male, exited the car and stood beside it for a short while.
He then opened the car’s hood, but never looked inside at the engine compartment. Neither
officer observed any mechanical problems with the vehicle when it entered the gas station
parking lot.

        Officer Summey opined that the man appeared to be “waiting for someone,” looking
in the direction of the “other parking spaces.” Thereafter, a purple BMW, driven by the
Defendant, entered the gas station’s parking lot and parked in front of the station, next to the
unmarked police car. Both officers testified that, after the Defendant exited his vehicle, he
made eye contact with the driver of the Grand Am. The two men then proceeded inside the
store together.

        Sgt. Crawford followed the men inside the gas station. At some point, Sgt. Crawford
witnessed the two men having a conversation in the back of the store. According to Sgt.
Crawford, both men glanced at him and then separated. Sgt. Crawford thereafter returned
to his vehicle and told Officer Summey that he believed a drug deal was about to take place.
As Sgt. Crawford was heading back inside the store, the two men exited the gas station. It
did not appear to the officers that either man had made a purchase while inside the store.
Officer Summey confronted the white male, and Sgt. Crawford stopped the Defendant.

                                              -2-
        Officer Summey testified that he identified himself as a police officer to the white
male and requested consent to search his person. According to Officer Summey, the white
male “was very nervous” and “shaking,” looking “toward the direction of [the Defendant].”
After obtaining consent from the white male, a search of his person did not reveal any drugs,
only some cash in “one pocket” and a twenty-dollar bill in the pocket of his jacket. Officer
Summey explained that keeping money in separate pockets was indicative of a drug
transaction; according to Officer Summey, a person about to purchase drugs engages in this
behavior to keep their money separate and not “draw attention to all their money.” Officer
Summey, having no further cause to detain this individual at that time, released him and went
to assist Sgt. Crawford with the Defendant. According to Officer Summey, his encounter
with the white male was “very quick,” lasting “[a] minute or less.”

       In the meantime, Sgt. Crawford had likewise approached the Defendant and identified
himself as a police officer. He asked to speak with the Defendant, and Sgt. Crawford
maintained that the ensuing conversation was consensual. Sgt. Crawford asked the
Defendant if had any identification, but the Defendant was unable to produce a driver’s
license. The Defendant gave Sgt. Crawford his personal information and told Sgt. Crawford
that he lived in Michigan. The Defendant further informed Sgt. Crawford that he had lost
his driver’s license, so Sgt. Crawford attempted to confirm through dispatch whether the
Defendant had a valid license. According to Sgt. Crawford, the Defendant became
“increasingly nervous” and “real fidgety.” Believing that the Defendant was going to run,
Sgt. Crawford handcuffed the Defendant “temporarily until [they] determined what his
license status was.”

         A records check in both Michigan and Tennessee revealed no valid license for the
Defendant. The Defendant then told Sgt. Crawford that, although he lived in Michigan, he
had a Georgia driver’s license. Dispatch confirmed that the Defendant’s Georgia license was
suspended. At that time, Sgt. Crawford advised the Defendant that he was under arrest for
driving on a suspended license, but did not inform the Defendant of his Miranda rights. At
trial, the parties stipulated that the Defendant’s license was in fact suspended.

        Officer Summey informed the Defendant that he was going to be transported to the
county jail. The officers attempted to search the Defendant’s person there at the gas station,
but the Defendant refused to spread his legs. Officer Summey asked the Defendant if he had
drugs hidden on his person, and the Defendant replied that he did not. Officer Summey
explained to the Defendant that if he brought drugs or weapons into the jail, he could face
additional charges.

       Once inside the jail, a more thorough search of the Defendant’s person was conducted.
Thirty-two “rocks” were found in the Defendant’s buttocks and one “rock” was found in the

                                             -3-
brim of the Defendant’s hat. The thirty-two “rocks” were all individually packaged. Officer
Summey opined that the “rock” found in the Defendant’s hat was easily accessible to the
Defendant and worth approximately twenty dollars. Several of the “rocks” were later tested
by the Tennessee Bureau of Investigation, revealing .12 grams of cocaine in the package in
the Defendant’s hat and .62 grams of cocaine in four of the thirty-two “rocks” from the
Defendant’s buttocks. Based on the established weight, it was determined that further testing
of the remaining “rocks” was not needed.

      Also, the Defendant was interviewed once in custody. After receiving Miranda
warnings, the Defendant confessed to selling drugs.

       Following the presentation of proof, the jury found the Defendant guilty as charged.
A sentencing hearing was held, and the trial sentenced the Defendant as a Range I, standard
offender to fifteen years at 100 percent for the cocaine possession in a school zone
conviction; three years for the introduction of contraband into a penal institution conviction;
and six months for the driving on a suspended license conviction. The court ordered
concurrent service of all three sentences, resulting in an effective fifteen-year sentence in the
Department of Correction. This appeal followed.

                                               ANALYSIS

        On appeal, the Defendant challenges (1) the denial of his motion to suppress, arguing
that the officers lacked reasonable suspicion for an investigatory stop; (2) the sufficiency of
the evidence establishing that the possession offense occurred within 1000 feet of a school
zone; and (3) the trial court’s refusal to impose sanctions against the State for failing to
preserve the identity of a witness.1 We address each in turn.

                                    I. Motion to Suppress
       When the parties first briefed the suppression issue, the appellate record did not
include an order from the trial court denying the motion to suppress or a transcript from the
hearing.2 This court, sua sponte, ordered the record on appeal to be supplemented with a
transcript of the motion to suppress hearing and any written order on the motion, if one was



1
  For the purpose of clarity, we have reordered and combined several of the issues as presented by the
Defendant in his brief.
2
  Originally, the State contended that, because the appellate record was incomplete, the Defendant had
waived appellate review of the issue. The State went on to argue that, waiver notwithstanding, the trial court
properly denied the Defendant’s motion to suppress.


                                                     -4-
entered. Once the record was supplemented, we allowed the parties time to rebrief the issue
addressing arguments raised by the evidence presented in the transcript.3

        In his initial brief, the Defendant argued that his suppression motion was improperly
denied, specifically that the evidence “was obtained without a reasonable suspicion for an
investigatory stop and therefore without probable cause for a search” in violation of his
Fourth Amendment rights. In his supplemental brief, the Defendant frames the issue as
“[t]he trial court erred in denying the Defendant’s motion to suppress because the officer[’]s
actions were not within a community caretaker function and there was not a consensual
conversation. The officers lacked a sufficient basis for an investigatory stop of the
Defendant.” The State again submits that the trial court properly denied the Defendant’s
motion to suppress “because the arresting officer developed probable cause to arrest the
Defendant after he engaged him in a consensual conversation.”

        On appellate review of suppression issues, the prevailing party “is entitled to the
strongest legitimate view of the evidence adduced at the suppression hearing as well as all
reasonable and legitimate inferences that may be drawn from that evidence.” State v. Talley,
307 S.W.3d 723, 729 (Tenn. 2010) (quoting State v. Odom, 928 S.W.2d 18, 23 (Tenn.
1996)). Questions about “the assessment of witness credibility, the weight and value of
evidence, and the resolution of evidentiary conflicts are entrusted to the trial court” as the
trier of fact. State v. Meeks, 262 S.W.3d 710, 722 (Tenn. 2008). When the trial court
“makes findings of fact in the course of ruling upon a motion to suppress, those findings are
binding on appeal unless the evidence in the record preponderates against them.” Id.
Additionally, a trial court’s conclusions of law along with its application of the law to the
facts are reviewed de novo without any presumption of correctness. Id. Both proof
presented at the suppression hearing and proof presented at trial may be considered by an
appellate court in deciding the propriety of the trial court’s ruling on a motion to suppress.
State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998); State v. Perry, 13 S.W.3d 724, 737
(Tenn. Crim. App. 1999).

        Here, the trial court determined the initial conversation was consensual. On this point,
the trial court made the following findings of fact and conclusions of law:

               The officers see the Defendant . . . pull into the parking lot from a
        public road. It was either Lynn Garden Drive or Walker Street. It’s on the
        corner. Automobile winds up there. So the officers saw a misdemeanor —
        eventually determined to be a misdemeanor committed in their presence. . . .


3
  The trial court ruled orally from the bench; thus, it appears that no written order of denial was ever entered,
as none was transmitted to this court in accordance with our order.

                                                      -5-
       The officers see other activity going on which would be consistent with a
       potential crime being committed. May not be. Certainly wouldn’t arise to
       probable cause.

               But anyway, the officers see this. And one of the officers, as the
       Defendant leaves the store, just says, “Can I talk to you?” Question, “Can I
       talk to you?”

              And his recollection is, Defendant: “Oh, sure.”

              And the officer asked, “Do you have a driver’s license?” I guess he
       could have easily said, “Do you have identification?”

              Fellow says, “No. I’m from Michigan,” or something of that nature.
       Later, after they’d talked, the officer evidently did some kind of . . .

             At that point he might have been detained. I don’t know. I doubt it,
       from what I’ve heard. The . . .

             But in any case, the police officer found out he’s from Georgia. He’s
       given two different places to live. The officer[s] saw a misdemeanor
       committed in their presence, once they found out he was not licensed.

The trial court then referenced Tennessee Code Annotated § 40-7-118, the ‘cite and release’
statute, which generally requires an officer to issue a citation for a misdemeanor offense;
however, under some circumstances, an officer may arrest an individual. The trial court
found the following extenuating circumstances in this case warranting an arrest: when the
driver cannot provide satisfactory evidence of identification; the prosecution might otherwise
be jeopardized; or there is a reasonable likelihood the person may fail to appear. See Tenn.
Code. Ann. § 40-7-118(c)(3), (4), (5). The trial court reasoned, “[The Defendant] had given
the wrong state where he lived. He had stated Michigan, or where he was from as
Michigan.”

        Alternatively, the trial court determined that, even if the encounter rose to the level
of an investigatory stop under Terry v. Ohio, 342 U.S. 1 (1968), based on the totality of the
circumstances, the stop was proper. The trial court ruled on the issue as follows:

       [T]he officers had information in that area of the convenience store . . . that
       dope deals were going down in that area. Very similar to Terry.



                                              -6-
             The officers could stop a person temporarily to see what they’re doing
      there. “What’s your business here?”

              I think in Terry wasn’t it outside a — in a high crime area and it was
      late at night or something like that?

             And the officer goes up and tells, “Who are you?”

             Now, in the Terry case, of course, it went on to a frisk, [be]cause the .
      . . U.S. Supreme Court indicated it was of the public interest, great public
      interest make sure the officers approached don’t get shot, so they can do a frisk
      for weapons only. Not for evidence, but for weapons.

             ....

             So assume it was a Terry stop. That means you can go up and talk to
      somebody. I guess I could go up and talk to somebody. “Will you talk to
      me?” I guess any citizen in the United States could, as long as it wasn’t a
      breach of the peace, harassment, or stalking, or something like that.

             And asked — just a simple question, “Have you got any identification?”

             Defendant says, “No, but I’m from Michigan.” Under Terry, upon
      suspicion that any person may be armed . . .

The trial court then read excerpts from the cases of Katz v. United States, 389 U.S. 347
(1967), and Terry v. Ohio. After reading, the trial court continued:

             Under the totality of the circumstances, the officers’ actions at this
      Sunoco gas station, I think the police acted properly and reasonably. It was not
      an unreasonable stop. I guess it could be argued that maybe once he got him
      stopped . . .

              But it was no more than going up to say, “Have you got any
      identification?” you know, or something of that nature.

             Even if it turned into a Terry v. Ohio stop, which I’m not even
      convinced we got a Terry v. Ohio stop, and even if the Defendant could prevail
      that he was prevented by leaving a short period of time by the officer, then it
      would be — still be permissible under Terry v. Ohio.

                                             -7-
        The initial question posited for this court is whether the officer was justified in
approaching this Defendant and asking for some sort of identification or his driver’s license
after the Defendant agreed to speak with the officer. Both the federal and state constitutions
offer protection from unreasonable searches and seizures with the general rule being “that
a warrantless search or seizure is presumed unreasonable and any evidence discovered
subject to suppression.” Talley, 307 S.W.3d at 729 (citing U.S. Const. amend. IV; Tenn.
Const. art. I, § 7). However, these constitutional principles do not limit all contact between
the police and private citizens. Instead, “these constitutional protections are implicated only
when a police officer’s interaction with a citizen impermissibly intrudes upon the privacy or
personal security of the citizen.” State v. Daniel, 12 S.W.3d 420, 424 (Tenn. 2000). As
such, courts have recognized three different types of police-citizen interactions: “1) a full
scale arrest which must be supported by probable cause; 2) a brief investigatory stop which
must be supported by reasonable suspicion; and 3) a brief police-citizen encounter which
requires no objective justification.” State v. Nicholson, 188 S.W.3d 649, 656 (Tenn. 2006).

       It is only “when the officer, by means of physical force or show of authority, has in
some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.”
Terry, 392 U.S. at 19 n.16. It has repeatedly been held that “even when police have no basis
for suspecting that an individual has committed or is about to commit a crime, the officer
may approach an individual in a public place and ask questions without implicating
constitutional protections.” Daniel, 12 S.W.3d at 425. To that end, “courts have consistently
held that the Fourth Amendment is not implicated and no seizure occurs when police
approach an individual, in a public place, or in a parked car” and ask the individual questions
or request to search, “so long as police do not convey a message that compliance with their
request is required.” Id. at 426. The rule has been further explained as follows:

       [L]aw enforcement officers do not violate the Fourth Amendment by merely
       approaching an individual on the street or in another public place, by asking
       him if he is willing to answer some questions, by putting questions to him if
       the person is willing to listen, or by offering in evidence in a criminal
       prosecution his voluntary answers to such questions. Nor would the fact that
       the officer identifies himself as a police officer, without more, convert the
       encounter into a seizure requiring some level of objective justification. The
       person approached, however, need not answer any question put to him; indeed,
       he may decline to listen to the questions at all and may go on his way. He may
       not be detained even momentarily without reasonable, objective grounds for
       doing so; and his refusal to listen or answer does not, without more, furnish
       those grounds.




                                              -8-
Id. at 425 (citing Florida v. Royer, 460 U.S. 491, 497 (1983) (plurality opinion); see also
Florida v. Bostick, 501 U.S. 429, 434 (1991); INS v. Delgado, 466 U.S. 210, 216-17 (1984);
Brown v. Texas, 443 U.S. 47, 50-53 (1979); State v. Moore, 776 S.W.2d 933, 938 (Tenn.
1989)).

        Accordingly, a “seizure” implicating constitutional concerns occurs only if, in view
of all the circumstances surrounding the incident, a reasonable person would have believed
that he or she was not free to leave. See Bostick, 501 U.S. at 437. To determine whether a
police encounter amounts to a seizure, courts consider all of the circumstances surrounding
the encounter and determine whether the conduct of the police would have communicated
to a reasonable person that he or she was not free to decline the officer’s request or otherwise
terminate the encounter. Id. at 434-35; see also Florida v. Rodriguez, 469 U.S. 1, 5-6 (1984).
Some of the factors which are relevant and should be considered by courts when applying
this totality of the circumstances test include the time, place and purpose of the encounter;
the words used by the officer; the officer’s tone of voice and general demeanor; the officer’s
statements to others who were present during the encounter; the threatening presence of
several officers; the display of a weapon by an officer; and the physical touching of the
person of the citizen. See generally Michigan v. Chesternut, 486 U.S. 567, 575 (1998);
United States v. Mendenhall, 446 U.S. 544, 554 (1980); Wayne R. LaFave, Search and
Seizure, § 5.1(a).

        Under this analysis, police-citizen encounters do not become “seizures” simply
because citizens may feel an inherent social pressure to cooperate with police. Daniel, 12
S.W.3d at 425. “While most citizens will respond to a police request, the fact that people do
so, and do so without being told they are free not to respond, hardly eliminates the consensual
nature of the response.” Delgado, 466 U.S. at 216. Courts have typically held that an
encounter becomes a “seizure” if an officer: (1) pursues an individual who has attempted to
terminate the contact by departing; (2) continues to interrogate a person who has clearly
expressed a desire not to cooperate; (3) renews interrogation of a person who has earlier
responded fully to police inquiries; (4) verbally orders a citizen to stop and answer questions;
(5) retains a citizen’s identification or other property; (6) physically restrains a citizen or
blocks the citizen’s path; (7) displays a weapon during the encounter. Daniel, 12 S.W.3d at
425 (citing LaFave § 9.3(a) (collecting cases)).

        In Daniel, our supreme court cited with approval the case of State v. Butler, 795
S.W.2d 680, 685 (Tenn. Crim. App. 1990); a case which is factually similar to the
circumstances presented here. There, defendants Butler and Riggins were parked in the lot
of a video store for several hours. The proprietor of the store became suspicious and had a
friend call the police. Several officers arrived at the scene, one of whom approached the
driver’s side of the car, which was occupied by Riggins. The officer asked for Riggins’s

                                              -9-
driver’s license; Riggins replied that he did not have a license or any other form of
identification. After checking the vehicle’s registration, the officer told defendant Butler,
who did have a license, to move the car. As Butler opened the door and began to get out of
the passenger’s side, the officer observed a gun in the rear floorboard. Both defendants were
arrested for carrying a firearm and, thereafter, linked to an earlier burglary. Butler, 795
S.W.2d at 684.

        Like the Defendant in this case, the defendants in Butler argued that the trial court
should have suppressed the evidence as the product of an unlawful stop and seizure. After
stating the rule that police officers may legitimately approach a vehicle in a public place, this
court said, in part, as follows:

       The officer only detained Riggins when she learned that he was not in
       possession of a valid driver’s license. Because a person must have a driver’s
       license in his possession when operating a vehicle, the officer acted within her
       authority by refusing to let Riggins drive the vehicle away.

              From then until the point of arrest, the officers’ conduct was reasonable.
       When the officer discovered that Butler had a valid operator’s license, he was
       given permission to drive the vehicle off the lot. When the police saw a pistol
       within Butler’s reach, they had a reasonable basis to search the car’s passenger
       compartment.

             Because the officers had probable cause to arrest both defendants for
       possession of a weapon with intent to go armed, the search of the passenger
       compartment may also be upheld as a search incident to arrest.

Id. at 685 (internal citations omitted).

        Butler controls this case. The officers observed the Defendant drive his vehicle into
the Sunoco parking lot, park, exit, and go inside the gas station. After exiting the gas station,
Sgt. Crawford, dressed in plain clothes, approached the Defendant, identified himself as a
police officer, and asked to speak with the Defendant. Sgt. Crawford testified that the
Defendant agreed to speak with him. At the suppression hearing, Sgt. Crawford stated that,
initially, the Defendant was free to leave and was not blocked in any way from walking away.
During the ensuing conversation, Sgt. Crawford asked the Defendant where he lived, and the
Defendant replied that he lived in Michigan. Sgt. Crawford then asked the Defendant if had
any identification, but the Defendant was unable to produce any, including a valid driver’s
license. The Defendant gave Sgt. Crawford his personal information and informed Sgt.



                                              -10-
Crawford that he had lost his driver’s license. Sgt. Crawford attempted to confirm through
dispatch whether the Defendant had a valid license.

        In Butler, we held that “an officer may legitimately approach a vehicle parked n a
public place and make a request for identification of the driver.” 795 S.W.2d at 685. In this
case, the officers had actually seen the Defendant driving the vehicle before walking up to
him in a public place and requesting identification. The Defendant consented to speak with
Sgt. Crawford, and upon questioning, he could not provide a valid driver’s license. As relied
upon by the State in their argument, Tennessee Code Annotated section 55-50-351(a)
provides, in pertinent part, as follows:

                Every licensee shall have such licensee’s license in immediate
        possession at all times when operating a motor vehicle and shall display it
        upon demand of any officer or agent of the department or any police officer of
        the state, county or municipality. . . . [A]ny other law enforcement officer . .
        . has the right to demand the exhibition of the license of any operator of a
        motor-driven cycle as described in § 55-8-101, and effect the arrest of any
        person so found to be in violation of this section.

Tenn. Code Ann. § 55-50-351(a) (emphasis added). Sgt. Crawford acted within his authority
to detain the Defendant when the Defendant could not produce a driver’s license upon
demand in an effort to determine the status of that license. At the motion to suppress
hearing, Sgt. Crawford confirmed that after the Defendant could not produce a valid driver’s
license, he was no longer free to leave and was placed in handcuffs when he began acting
“nervous” and “fidgety.” Sgt. Crawford thereafter determined that the Defendant’s license
was suspended and properly arrested him for that violation.4 After the officer’s lawful


4
  Probable cause to arrest need not be “predicated upon the offense invoked by the arresting officer, or even
upon an offense ‘closely related’ to the offense invoked by the arresting officer.” Jaegly v. Couch, 439 F.3d
149, 153 (2d Cir. 2006). Additionally, probable cause need only exist for some criminal offense; it does not
matter that an officer believed he was arresting a suspect for a different offense. Knight v. Jacobson, 300
F.3d 1272, 1275 n.2 (11th Cir. 2002); Lee v. Ferraro, 284 F.3d 1188, 1196 (11th Cir. 2002) (“[W]hen an
officer makes an arrest, which is properly supported by probable cause to arrest for a certain offense, neither
his subjective reliance on an offense for which no probable cause exists nor his verbal announcement of the
wrong offense vitiates the arrest.” (citation omitted)). See also United States v. Lester, 647 F.2d 869, 873
(8th Cir. 1981) (holding that the “the validity of the arrest should be judged by whether the arresting officers
actually had probable cause for the arrest, rather than by whether the officers gave the arrested person the
right reason for the arrest”); LaFave § 1.4(d) (observing that the exclusion of evidence solely due to an
officer’s mistaken statement of the grounds for an arrest is unjustified “because such situations are often
attributable to complicated legal distinctions between offenses or an officer’s failure to record all the bases
or the strongest basis upon which the arrest was made”); cf. Royer, 460 U.S. at 507 (observing that “the fact
                                                                                                  (continued...)

                                                     -11-
approach and subsequent lawful detention of the Defendant to determine the status of his
license, the events which unfolded gave rise to probable cause for the Defendant’s arrest for
driving on a suspended license. Butler, 795 S.W.2d at 685; see also State v. Ronnie Harrison
Gibbs, No. 03C01-9404-CR-001, 1995 WL 455941, at *5 (Tenn. Crim. App. Aug. 2, 1995).

       Sgt. Crawford approached the Defendant in a public place after seeing the Defendant
drive a vehicle, requested a driver’s license after the Defendant agreed to speak with him,
and thereafter detained the Defendant when he could not produce one. This Sgt. Crawford
could legitimately do, notwithstanding the fact that the officers were motivated by their
desire to investigate a possible drug transaction. See Butler, 795 S.W.2d at 685; State v.
Smith, 787 S.W.2d 34, 35 (Tenn. Crim. App. 1989) (“Even though the officer was primarily
motivated by the radio report, if his actions were reasonable on other grounds, even if the
reasons are not articulated by the officer, the stop would be legal.”). The drugs discovered
following the Defendant’s lawful arrest were properly admitted at his subsequent trial. The
Defendant’s suppression issue is without merit.

                               II. Sufficiency of the Evidence
       The Defendant has challenged the sufficiency of the evidence supporting his
conviction for possession of .5 grams or more of cocaine with intent to sell or deliver within
1000 feet of a school zone. Specifically, he argues that the State failed to prove that the
offense occurred in a school zone. According to the Defendant, “The [S]tate’s evidence as
to the distance from the school property to the point of arrest was . . . insufficient as
established by the testimony of Jake White regarding the manner of calculation of that
distance.” The Defendant lodges no complaint to the other elements of the offense nor to his
other convictions. The State responds that the evidence established that the gas station where
the Defendant was arrested was located within 1000 feet of Tri-Cities Christian Elementary
School.

        An appellate court’s standard of review when a defendant questions the sufficiency
of the evidence on appeal 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). This
court does not reweigh the evidence; rather, it presumes that the jury has resolved all
conflicts in the testimony and drawn all reasonable inferences from the evidence in favor of
the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness credibility, conflicts in


4
 (...continued)
that the officers did not believe there was probable cause and proceeded on a consensual or Terry-stop
rationale would not foreclose the State from justifying [defendant’s] custody by proving probable cause”).

                                                  -12-
testimony, and the weight and value to be given to evidence were resolved by the jury. See
State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). A guilty verdict “removes the
presumption of innocence and replaces it with a presumption of guilt, and [on appeal] the
defendant has the burden of illustrating why the evidence is insufficient to support the jury’s
verdict.” Id.; State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

        Our supreme court recently clarified that circumstantial evidence is as probative as
direct evidence. State v. Dorantes, 331 S.W.3d 370, 379-81 (Tenn. 2011). In doing so, the
supreme court rejected the previous standard which “required the State to prove facts and
circumstances so strong and cogent as to exclude every other reasonable hypothesis save the
guilt of the defendant, and that beyond a reasonable doubt.” Id. at 380 (quoting State v.
Crawford, 470 S.W.2d 610, 612 (Tenn. 1971)) (quotation marks omitted). Instead, “direct
and circumstantial evidence should be treated the same when weighing the sufficiency of
such evidence.” Id. at 381. The reason for this is because with both direct and circumstantial
evidence, “a jury is asked to weigh the chances that the evidence correctly points to guilt
against the possibility of inaccuracy or ambiguous inference[, . . . and i]f the jury is
convinced beyond a reasonable doubt, we can require no more.” Id. at 380 (quoting Holland
v. United States, 348 U.S. 121, 140 (1954)). To that end, the duty of this court “on appeal
of a conviction is not to contemplate all plausible inferences in [a d]efendant’s favor, but to
draw all reasonable inferences from the evidence in favor of the State.” State v. Sisk, 343
S.W.3d 60, 67 (Tenn. 2011).

       “It is an offense for a defendant to knowingly . . . [p]ossess a controlled substance
with intent to manufacture, deliver or sell the controlled substance.” Tenn. Code Ann. §
39-17-417(a)(4). Furthermore, “[a] violation of subsection (a) . . . is a Class B felony if the
amount involved is point five (.5) grams or more of any substance congaing cocaine . . . .”
Tenn. Code Ann. § 39-17-417(c)(1). Additionally, where the State establishes that the
violation of subsection 417 “occurs on the grounds or facilities of any school or within one
thousand feet (1,000') of the real property that comprises a public or private elementary
school,” the defendant is subjected to a higher offense classification, a greater fine, and a
minimum mandatory sentence. See Tenn. Code Ann. § 39-17-432.

        In this case, as proof that the sale occurred in a drug-free school zone, the State
presented the testimony of Pat Yelton, the administrator of Tri-Cities Christian Schools. She
testified that she had worked for Tri-Cities Christian Schools for thirty-four years and was
familiar with the various school campuses. Ms. Yelton testified that, on October 30, 2007,
Tri-Cities Christian School was operating a private elementary school in the Lynn Garden
area of Kingsport. She reviewed the map of the area that had been prepared for trial and
agreed that it showed the proper location of the school. Ms. Yelton confirmed that Tri-Cities
Christian School owned all of the property surrounding the building and that at no time was

                                             -13-
any part of the property leased to a third party. However, according to Ms. Yelton, Tri-Cities
Christian School did not own “the field across the road” from the school, but they did use the
field “for the physical fitness or educational part of [their] program.”

       The State also presented the testimony of Jake White, who had been employed for
over fourteen years with the City of Kingsport in the Geographic Information Systems
Department (“GIS”). In this case, Mr. White created a map of the area using aerial
photographs and property line data from the GIS Department’s database. On this map, the
Tri-Cities Christian Elementary School’s property was outlined in red, which included “a
track or an athletic field of some sort,” and the 1,000 feet “buffer” was shaded in blue. 5
According to Mr. White, “[t]ypically the property boundary lines come from the property
assessor’s officer,” and they also used “address information” maintained by the GIS
Department. Mr. White explained, “once the property’s boundary identified,” the computer
system “generate[s] a buffer so many feet or miles or any distance from the identified piece
of property.” Based upon his calculations, Mr. White opined that, on October 30, 2007, the
Sunoco gas station was within 1000 feet of Tri-Cities Christian Elementary School’s
property.

        Additionally, Officer Summey verified the accuracy of the map, confirming street
names and the location of the gas station and the school on the map. Sgt. Crawford testified
that signs to the school were visible from Lynn Garden Drive. In fact, Sgt. Crawford stated
that the school itself could be seen from Lynn Garden Drive.

       The Defendant’s sole argument is that the State did not prove that the offense occurred
within 1000 feet of school property. He challenges Mr. White’s “manner of calculation.”
The Defendant noted that Mr. White testified that the map included the football field, which
Ms. Yelton stated was not school property. He further asserted that the records of the county
property assessor had not been reviewed and verified for accuracy and that “[n]o independent
calculation of the one-thousand (1,000) foot protected zone had been calculated.”

        Here, Mr. White created the map using the GIS Department’s database and aerial
photographs. He testified that the offense took place within 1000 feet of Tri-Cities Christian
Elementary School. We cannot review the specifics of the map because it is not included in
the record on appeal. There is no indication from the record before this court that inclusion
of the field played any significant role in Mr. White’s calculation. Mr. White was thoroughly


5
  The large aerial map was retained by the trial court clerk’s office and not transmitted to this court on appeal
due to the “bulky” nature of the exhibit. Apparently, the large aerial map was a “photograph of the relevant
area upon which were superimposed property lines and color coding indicating the property comprising the
school and the one thousand foot (1,000) area radiating from that property.”

                                                      -14-
cross-examined about the information he utilized in preparing the map. Moreover, Ms.
Yelton testified as to the accuracy of the map, and Sgt. Crawford said that the school and
school signs were visible from Lynn Garden Drive. The jury was allowed to use common
sense in evaluating the information and witness’s testimony in determining whether the gas
station was within 1000 feet of the buffer area of the school. See State v. Calvin Eugene
Bryant, Jr., No. M2009-01718-CCA-R3-CD, 2010 WL 432487, at *11-13 (Tenn. Crim. App.
Nov. 1, 2010), perm. app. denied, (Tenn. Apr. 13, 2011); see also State v. Lindsey, 208
S.W.3d 432, 444 (Tenn. Crim. App. 2006); State v. Greg Harris, No. E2003-02834-CCA-R3-
CD, 2005 WL 419082, at *8-9 (Tenn. Crim. App. Feb. 23, 2005). We conclude that the
evidence was sufficient to establish that the offense occurred within 1000 feet of school
property.

                        III. Sanctions for Failure to Preserve Evidence
        The Defendant asserts that the trial court erred by denying his request for sanctions
against the State for failure to preserve the identity of the individual seen with the Defendant
at the Sunoco gas station. Specifically, the Defendant contends the trial court should have
issued the instruction outlined in State v. Ferguson, 2 S.W.3d 912 (Tenn. 2010). Often times
throughout the Defendant’s brief, he refers to the white male as the “missing witness” and
notes that he “moved for the ‘missing witness’ rule” at trial. Moreover, in the conclusion
section of his brief, he cites to Tennessee Pattern Jury Instructions—Criminal 42.16, which
deals with an absent material witness. The State responds that the trial court properly denied
the Defendant’s request for sanctions because the Defendant failed to show that the State had
lost or destroyed the evidence.

        During the discussion of preliminary matters prior to voir dire, the prosecutor stated
that, in addition to the motion to suppress hearing, “some other hearings” had been
conducted. The trial court replied, “That issue, we had a Ferguson issue. . . . My mind has
slipped on me since that . . . issue first came up. I notice [defense counsel], this morning, had
filed a request for a . . . Ferguson charge as in TPI.”6 The prosecutor relayed the Defendant’s
issue, “It concerns a situation in which [defense counsel] had asked the State to provide him
with the name of the white male that Officer Steve Summey had brief contact with along the
lines of a missing witness type charge.” The prosecutor then referenced a supreme court
opinion, stating that the opinion outlined what the trial court “must find before a missing




6
  The Defendant’s request for such an instruction is not included in the record on appeal. However, the trial
court used the word “filed,” indicating a written request. Moreover, following the trial court’s ultimate ruling
on the issue, the trial court confirmed with defense counsel that a written motion requesting the instruction
had been filed.

                                                     -15-
witness charge can be given.” The trial court then inquired if the missing witness had been
identified. The prosecutor then, seemingly, summarized the facts from the prior hearing 7 :

        Officer Summey has previously testified and would testify, if need be, that he
        spoke to this gentlemen briefly; got his name at that time; asked for consent to
        search him; searched him and found him to be in possession of money, but no
        drugs; and immediately released him and concentrated on [the Defendant].

               He never ran a warrants check on this individual, never wrote down this
        individual’s name, does not know this individual, and has no way of being able
        to recall who this individual is.

                And we brought up at the hearing last Wednesday or Thursday, our
        position would be that if anybody knows who this person might be it would be
        [the Defendant], since it’s our contention [the Defendant] was meeting him up
        there for the purposes of a transaction. It was apparent to the officers that they
        knew one another.

The trial court then referenced Tennessee Pattern Jury Instructions—Criminal 42.23, dealing
with the State’s duty to preserve evidence taken from Ferguson. The trial court later noted,
“That’s a missing witness issue there. . . . Ferguson is a different animal, I believe.” The
parties agreed to defer the matter until later.

       Following the initial charge to the jury, the trial court asked, “When [are] we going
to have to address this Ferguson issue?” The prosecutor said, “I think at charge time,” and
defense counsel agreed. The trial court explained, “Now, here the charge is set out in the
TPI. Even though you’ve given me a suggested charge, if I give the charge, I’ll give Charge
42.23.” Addressing the steps outlined in Ferguson “that a trial judge must take in deciding
whether or not this charge should be given,” the trial court noted that “it looks like the State’s
relying upon circumstantial evidence on the money this other fellow had, so I would have to
consider that[.]” Later, the trial court discussed that one of the factors to be considered was
“the relative strength of the case.” The parties indicated that the issue would be dealt with
following the presentation of further proof.




7
   In a footnote, the State argues for waiver of this issue because no copy of a transcript of this previous
hearing is included in the appellate record. However, because the majority of the argument and proof on the
issue was developed at trial and because the trial court made its ruling on the issue at trial, and those events
being transcribed, we deem the record sufficient for our review of the issue.

                                                     -16-
        When court reconvened the following morning, the prosecutor provided the court with
a copy of an opinion from this court, State v. Timothy Dewayne Williams, No. W2008-
02730-CCA-R3-CD, 2010 WL 1172206 (Tenn. Crim. App. Mar. 26, 2010), perm. app.
denied, (Tenn. Sept. 2, 2010), arguing that the case was “factually on point as what we have
here.” Both the prosecutor and defense counsel argued the applicability of the Williams case
to the present case. The prosecutor relied upon the Williams opinion for the proposition that
Ferguson only applied to the loss or destruction of exculpatory evidence, not to the failure
to interview a witness. Defense counsel responded that the officers in this case did in fact
interview the witness but failed to retain any identifying information. The trial court
confirmed with counsel that they wanted to address the matter later.

        Finally, following the conclusion of the State’s proof, the trial court heard more
argument on the Ferguson issue and made a ruling. Defense counsel confirmed that there
was no evidence of any intentional wrongdoing on the part of the State in failing to maintain
the witness’s information. Addressing the exculpatory nature of the unidentified witness’s
testimony, defense counsel argued that he was the only other person who could testify about
the circumstances leading up to the Defendant’s arrest. Defense counsel argued that, based
upon his conversations with the Defendant, he believed that the unidentified witness would
deny any eye contact with the Defendant or that any communication occurred inside the store.
Defense counsel also asserted that this unidentified witness would have evidence relevant
to “whether this was a consensual stop [of the Defendant] or if something was said that
would show that . . . [the Defendant] was in fact under the control of the State.” The
prosecutor, again citing to the Williams case, responded that the officers did not destroy or
hide exculpatory evidence, but they simply “failed to interview a witness who was available
to the [D]efendant for interview.” The prosecutor further argued that the witness had no
apparent exculpatory value, and it was the State’s contention that the Defendant possessed
this individual’s contact information, having arranged to meet with this person at the gas
station. Defense counsel responded that the officers did interview the witness but failed to
preserve his information, placing the Defendant in the position of either having to testify on
his own behalf, or not testify and “take the chance and go ahead without any supporting
witness.”

        Addressing the Ferguson factors, the trial court determined that there was no showing
of intentional wrongdoing, at most the State was negligent in failing to preserve the
information. Next, the trial court considered the significance of the destroyed evidence and
concluded that the “exculpatory nature of the evidence” was “very tenuous” because there
“[r]eally was not much suggestion what this witness would offer, outside the fact he’s
missing and cannot be identified.” Moreover, the trial court observed that the officers
searched this individual and did not finding anything incriminating; therefore, they had no
further cause to detain him. The trial court also looked at the other evidence used to support

                                             -17-
the convictions, noting that the Defendant had confessed to the crime, giving a “[s]hort,
concise, clear statement after advice of Miranda”; that the Defendant had a large amount of
cocaine, wrapped in individual packages; that one “rock” was placed in his hat and the others
were found inside his buttocks, indicating that an exchange was to occur; and that the
officers testified that they observed suspicious activity.

       The trial court then referenced another opinion of this court, State v. Joseph B.
Thompson, No. E2002-00061-CCA-R3-CD, 2003 WL 1202979 (Tenn. Crim. App. Mar. 17,
2003), perm. app. denied, (Tenn. June 30, 2003), stating that the case was “almost directly
[on] point.” The trial court noted the similar facts of that opinion to this case:

              In that case the police officers were called to a robbery of a . . . micro
       hotel [sic] on Stone Drive in Kingsport, Sullivan County, Tennessee. The
       officers went in. There were several people gathering around. The clerk of
       the hotel had been severely injured. Some males in the group . . .

              It was a crime that drew a crowd, in other words. There were various
       other people. And somebody made the comment there, “Jojo didn’t do that.”
       It was developed at trial that Joseph B. Thompson was known as “Jojo.” The
       police didn’t obtain that information as to the address or name of the person
       that made this comment. In fact [the trial court] continued the case on various
       occasions to give the defense attempt to locate him [sic]. The police didn’t
       write down the name.

              Now, the way it went up on appeal, it’s almost directly on point, the
       “Jojo” Thompson is, except that they emphasized Brady, and . . . the appellate
       court panel did not discuss Ferguson, but they did discuss Brady, basically
       finding there was no Brady violation by the police not obtaining that
       information and name of the witness.

        Regarding the Williams case previously discussed by the parties, the trial court noted
some disagreement with that case that “this could not apply to failure to obtain a name.” The
trial court continued, “But under the circumstances of this case I find there’s no error.”

        In conclusion, the trial court determined that it would not impose any sanctions on the
State, declining to issue a Ferguson instruction. On appeal, the Defendant alleges that the
trial court’s ruling on this issue was in error.




                                             -18-
       First, we feel constrained to note that throughout these proceedings, the Ferguson
issue and the “missing witness” rule are often referred to interchangeably. They are not the
same thing. The “missing witness rule” as recognized in Tennessee provides that

       a party may comment about an absent witness when the evidence shows ‘that
       the witness had knowledge of material facts, that a relationship exists between
       the witness and the party that would naturally incline the witness to favor the
       party and that the missing witness was available to the process of the Court for
       trial.

State v. Bough, 152 S.W.3d 453, 463 (Tenn. 2004) (quoting Delk v. State, 590 S.W.2d 435,
440 (Tenn. 1979)). “The missing witness rule is premised on the idea that the absent witness,
‘if produced, would have made an intelligent statement about what was observed.’” Dickey
v. McCord, 63 S.W.3d 714, 722 (Tenn. Ct. App. 2001) (quoting State v. Francis, 669 S.W.2d
85, 89 (Tenn. 1984)).

       The “missing witness” or “absent material witness” instruction provides:

               When it is within the power of the [S]tate or the defendant to produce
       a witness who possesses peculiar knowledge concerning facts essential to that
       party’s contentions and who is available to one side at the exclusion of the
       other, and the party to whom the witness is available fails to call such witness,
       an inference arises that the testimony of such witness would have been
       unfavorable to the side that should have called or produced such witness.
       Whether there was such a witness and whether such an inference has arisen is
       for you to decide and if so, you are to determine what weight it shall be given.

             [This inference does not apply to the defendant because [he][she] has
       a lawful right not to testify and [his][her] failure to testify cannot be
       considered for any purpose against [him][her], nor can any inference be drawn
       from such fact.]

7 Tennessee Practice, Tennessee Pattern Jury Instructions—Criminal 42.16 (footnotes
omitted). Before the instruction may be given, the party requesting it must establish “that
‘the witness had knowledge of material facts, that a relationship exists between the witness
and the party that would naturally incline the witness to favor the party and that the missing
witness was available to the process of the Court for trial.’” State v. Bigbee, 885 S.W.2d
797, 804 (Tenn. 1994) (quoting State v. Middlebrooks, 840 S.W.2d 317, 334-35 (1992))
(internal citation and quotation marks omitted). To justify a missing witness instruction, “the
witness who was not called must not have been equally available to both parties.” See State

                                             -19-
v. Boyd, 867 S.W.2d 330, 337 (Tenn. Crim. App. 1992) (citing State v. Overton, 644 S.W.2d
416, 417-18 (Tenn. Crim. App. 1982); Bolin v. State, 472 S.W.2d 232, 235 (Tenn. Crim.
App. 1971)); State v. Eldridge, 749 S.W.2d 756, 758 (Tenn. Crim. App. 1988).

        Although the Defendant cites to the “missing witness” instruction, Tennessee Pattern
Jury Instructions—Criminal 42.16, in his brief and states that he “moved for the ‘missing
witness’ rule,” it is clear from our review of the transcript that the Defendant requested the
instruction outlined in Ferguson, Tennessee Pattern Jury Instructions—Criminal 42.23.
Briefly, we observe that it was precisely because this witness was not available to either party
at the time of trial and because the Defendant believed the witness’s testimony would be
favorable to the defense, that he sought sanctions against the State for failing to preserve this
evidence. The “missing witness” rule was inapplicable to the present case. Moreover, even
without the instruction, we note that in closing arguments, defense counsel was able to argue
the effect of this individual’s absence to the jury. We decline to address this rule any further.

        We turn to the issue at hand, the refusal of the trial court to issue a Ferguson
instruction in its charge to the jury. The Defendant claims that the trial court erred in failing
to instruct the jury on the lost identity of this individual seen with the Defendant at the gas
station. The State disagrees, arguing that the Defendant failed to show that the State lost or
destroyed evidence.

       The Due Process Clause of the Fourteenth Amendment to the United States
Constitution provides every defendant the right to a fair trial.8 To facilitate this right, a
defendant has a constitutionally protected privilege to request and obtain from the
prosecution evidence that is either material to guilt or relevant to punishment. Brady v.
Maryland, 373 U.S. 83, 87 (1963). Further, the prosecution has a duty to turn over
exculpatory evidence that would raise a reasonable doubt about a defendant’s guilt. United
States v. Agurs, 427 U.S. 97, 110-11 (1976).

        In the case of Ferguson, 2 S.W.3d at 916, our state supreme court adopted a test for
courts to use in determining whether the loss or destruction of evidence deprived a defendant
of a fair trial. The initial analytical step in this test for determining whether there was any
duty to preserve evidence was described as follows:




8
  “As a general rule, . . . a trial lacks fundamental fairness where there are errors which call into question
the reliability of the outcome.” Ferguson, 2 S.W.3d at 914 n.3 (citing Betts v. Brady, 316 U.S. 455, 462
(1942); Watkins v. State, 393 S.W.2d 141, 144 (Tenn. 1965); Lofton v. State, 898 S.W.2d 246, 248 (Tenn.
Crim. App. 1994)).

                                                    -20-
       Whatever duty the Constitution imposes on the States to preserve evidence,
       that duty must be limited to evidence that might be expected to play a
       significant role in the suspect’s defense. To meet this standard of
       constitutional materiality, evidence must both possess an exculpatory value
       that was apparent before the evidence was destroyed, and be of such a nature
       that the defendant would be unable to obtain comparable evidence by other
       reasonably available means.

Ferguson, 2 S.W.3d at 917 (quoting California v. Trombetta, 467 U.S. 479, 488-89 (1984)).
The court explained that if the proof demonstrates the existence of a duty to preserve the
evidence and demonstrates that the State failed in that duty, “the analysis moves to
considerations of several factors which guide the decision regarding the consequences of the
breach.” Id. Accordingly, 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. at 917.

       If the trial court determines that a trial without the missing evidence would not be
fundamentally fair, then the trial court may dismiss the charges or craft such orders as may
be appropriate to protect the defendant’s right to a fair trial. Id. The court provided that,
“[a]s 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
Ferguson instruction provides:

              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 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.

Id. at 917 n.11; see also 7 Tennessee Practice, Tennessee Pattern Jury Instructions—Criminal
42.23 (footnote omitted).



                                             -21-
      We apply an abuse of discretion standard to the review of a trial court’s decision under
Ferguson. See State v. Angela M. Merriman, No. M2011-01682-CCA-R3-CD, 2012 WL
524474, at *1-2 (Tenn. Crim. App. Feb. 17, 2012), perm. app. granted, (Tenn. June 21,
2012). At the outset, we agree with the Defendant that this case is distinguishable from
Williams because here the officers did interview the witness but failed to maintain this
witness’s identifying information. Nevertheless, the initial analytical step outlined by the
Ferguson court incorporates a Brady analysis. See Ferguson, 2 S.W.3d at 917 n.9.

       The Thompson case cited by the trial court, involving the allegation of a Brady
violation, spoke to the delayed disclosure of evidence in addition to the officer’s failure to
obtain the witness’s identifying information. See 2003 WL 1202979, at *13. In that case,
the facts were as follows:

               Officer Osterman, who arrived at the Microtel shortly after Sergeant
       Brookshire, testified that it was his duty to make sure that no one entered the
       crime scene while the police were conducting the investigation. He stated that
       he otherwise took no significant part in the actual investigation of the case.
       While standing near the lobby area of the motel, Officer Osterman noticed four
       white males standing near the hallway. He heard one of the men say “the only
       black man I know is ‘Jo-Jo’ and it wasn’t ‘Jo-Jo.’” At the time Officer
       Osterman heard the statement, he had not been informed that the defendant
       was a suspect. Some twenty months later, Officer Osterman, during an
       interview by the assistant district attorney, for the first time recalled his
       knowledge of the conversation. The state immediately informed the defendant
       of the statement and the trial court granted a six-month continuance so that the
       defendant could investigate its origin.

Id. On appeal, this court held that the record did “not establish that the inability to locate the
witness was the result of the delayed disclosure.” Id. In concluding that no Brady violation
had been established, this court reasoned, “Officer Osterman was unable to provide a
description, other than the fact that he was white, making it unlikely that an earlier disclosure
would have assisted the defendant in identifying the individual.” Id.

       Here, the trial court made the following findings regarding Officer Summey’s
interview of the second individual at the gas station:

       He was identified and talked to. I don’t think it’s been—come out directly
       what was said at the time that they talked, but the officer that was interviewing
       the unidentified white male did take his name. There’s no indication it was
       written down, but he took his name. And I think that’s been admitted to. And

                                               -22-
        the white unidentified male was released from any further detention or stop.
        His name is unknown at this time. It was unknown prior to trial.

               The attorney was—was informed of the . . . unidentified white male, but
        the State could not force—or could not fin[d] any information as to the name,
        location, address, tag number, driver’s license number, or anything of that
        nature. So the unidentified white male is lost.

        The record reveals that Officer Summey did interview the witness and obtained some
identifying information; however, the record is devoid of any evidence that the officer
memorialized this information in writing or otherwise. Officer Summey was unable to
provide any information about this individual from his memory. Nevertheless, this case is
factually distinguishable from Thompson where the officer in that case was not the
investigating officer and only overheard a witness present at the scene. Here, the officers
were investigating a suspected drug deal when they separated the two individuals to ask
questions of them. Not only was this unidentified white male interviewed, but evidence
obtained during the search of this man was used against the Defendant at trial. Moreover,
based upon the facts as they developed, this individual could have likewise been charged as
a participant in the attempted deal at the gas station. Clearly, the identity of this individual
was material to the defense.9 Accordingly, the State had a duty to preserve the evidence, and
a violation of Brady did occur.

        Nonetheless, the remaining factors of Ferguson do not provide the Defendant with
relief. The trial court found that the State was at most negligent, there being no evidence of
any intentional wrongdoing; that the lost or destroyed evidence was of minimal significance;
and that the evidence adduced was sufficient to support the Defendant’s convictions. The
trial court observed that the officers searched this individual and did not find anything
incriminating; therefore, they had no further cause to detain him. The trial court also looked
at the other evidence used to support the convictions, noting the Defendant confessed; the
Defendant had a large amount of individually-wrapped cocaine packages; the location of the
cocaine packages on the Defendant’s person; and the officers’ testimony of suspicious
activity. Thus, even though we conclude that the State failed in its duty to preserve evidence,
we cannot say that the trial court abused its discretion by denying the Defendant’s request
for a Ferguson instruction.


9
  In order to establish a Brady violation, a defendant must show that he or she requested the information, the
State suppressed the information, the information was favorable to his or her defense, and the information
was material. State v. Edgin, 902 S.W.2d 387, 389 (Tenn. 1995). Evidence is “material” only if there is a
reasonable probability that the result of the proceeding would have been different had the evidence been
disclosed to the defense. United States v. Bagley, 473 U.S. 667, 682 (1985).

                                                    -23-
                              CONCLUSION

For the foregoing reasons, we affirm the judgments of the trial court.




                                           _________________________________
                                           D. KELLY THOMAS, JR., JUDGE




                                    -24-
