State Of Tennessee v. Vincent Edward Crowson, Jr.

05/27/2022

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

April 13, 2022 Session

STATE OF TENNESSEE v. VINCENT EDWARD CROWSON, JR.

Appeal from the Circuit Court for Rutherford County

No. 79939 David M. Bragg, Judge

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No. M2021-00321-CCA-R3-CD

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Following a bench trial, the trial court found the defendant, Vincent Edward Crowson, Jr.,

guilty of driving under the influence (count 1), driving while his license was suspended

because of a conviction for driving under the influence (count 2), possession of a weapon

while under the influence of a controlled substance (count 4), being a convicted felon in

possession of a firearm (count 5), driving while his license was suspended because of a

conviction for driving under the influence, second offense (count 6), and driving under the

influence, second offense (count 7). The trial court imposed an effective twenty-year

sentence, and the defendant appealed. On appeal, the defendant challenges the sufficiency

of the evidence supporting his convictions, the constitutionality of the felon in possession

of a firearm statute, and several pre-trial rulings of the trial court. After reviewing the

record and considering the applicable law, we affirm the judgments of the trial court.

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

J. ROSS DYER, J., delivered the opinion of the court, in which JILL BARTEE AYERS and JOHN

W. CAMPBELL, SR., JJ., joined.

Drew Justice, Murfreesboro, Tennessee, for the appellant, Vincent Edward Crowson, Jr.

Herbert H. Slatery III, Attorney General and Reporter; Richard D. Douglas, Senior

Assistant Attorney General; Jennings H. Jones, District Attorney General; and Brent

Pierce, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

Facts and Procedural History

On February 18, 2018, Tennessee Highway Patrol Trooper Chris Langley initiated

a traffic stop of the defendant in Rutherford County, Tennessee. Prior to the stop, Trooper

Langley saw the defendant cross over the fog line on Interstate 24. The defendant was

driving a red Chevrolet Silverado which matched the description of a stolen vehicle

provided in an active “be-on-the-lookout” (“BOLO”). Trooper Langley followed behind

the defendant for several miles, activated his dashcam video, confirmed the defendant was

driving a stolen vehicle, and initiated a traffic stop. During the stop, Trooper Langley

located a pistol on the defendant’s person and needles in the vehicle. The defendant also

admitted to using heroin when he passed Trooper Langley on the interstate.

A Rutherford County grand jury indicted the defendant for driving under the

influence (count 1), driving while his license was suspended because of a conviction for

driving under the influence (count 2), possession of drug paraphernalia (count 3),

possession of a weapon while under the influence of a controlled substance (count 4), being

a convicted felon in possession of a firearm (count 5), driving while his license was

suspended because of a conviction for driving under the influence, second offense (count

6), and driving under the influence, second offense (count 7). Tenn. Code Ann. §§ 39-17-

425, -1307, -1321; 55-10-401, -50-504. The defendant filed several pre-trial motions, each

of which the trial court addressed during a hearing on March 17, 2020.

a. Ferguson Motion

In support of his Ferguson1 motion, the defendant argued his case should be

dismissed because “all of the relevant dashboard video – critical evidence to the case – has

been deleted.” The defendant asserted the video was deleted “either with extreme

negligence or with outright intent” and “there is no other evidence of DUI apart from the

incident that occurred on video.” At the hearing, the defendant presented testimony from

Trooper Langley who described the events leading up the traffic stop of the defendant.

While “sitting in the median” on Interstate 24, Trooper Langley saw the defendant

drive past him in the left lane “doing 70.” The defendant crossed the fog line, and Trooper

Langley began following the defendant in order “to watch his driving behavior.” As a

result, Trooper Langley’s dashboard camera was activated.

In addition to the defendant’s driving behavior, Trooper Langley noted the red

Chevrolet Silverado driven by the defendant matched a stolen vehicle described in an active

BOLO. Trooper Langley called dispatch to confirm that the vehicle driven by the

defendant was the stolen vehicle identified in the BOLO. During the dispatch call, Trooper

Langley asked if the stolen vehicle’s license plate contained a “7.” The dispatch operator

1

State v. Ferguson, 2 S.W.3d 912, 915 (Tenn. 1999).

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stated that it did not but verified the license plate of the vehicle driven by the defendant as

the stolen vehicle identified in the BOLO. Trooper Langley continued following the

defendant for several miles. After the defendant exited the interstate and pulled into a gas

station, Trooper Langley initiated the traffic stop.

According to Trooper Langley, the dashcam video captured his pursuit of the

defendant and the traffic stop. The portion of the dashcam video that captured the traffic

stop was successfully pulled from the server. However, the portion of the video that

captured the pursuit had not yet been successfully pulled from the server. The dashcam

video of the traffic stop was entered into evidence along with an audio recording of Trooper

Langley’s dispatch call. The defendant also submitted an audio recording of Trooper

Langley’s testimony from the defendant’s preliminary hearing.

The State presented testimony from Kevin Kennett, the Administrative Sergeant for

the Nashville District of the Tennessee Highway Patrol. In that role, Mr. Kennett fulfilled

requests for video footage from the L-3 server system used by the department at the time

of the defendant’s traffic stop. Mr. Kennett explained video footage is saved first on the

county server before being saved on the agency server for 90 days, “depending on what

categorized issue it is.” If an officer logs a video as an “arrest” or a “significant event,”

the video will be saved on the agency server before being downloaded to a disk. In this

case, Trooper Langley categorized the video at issue as an “arrest,” thus ensuring it would

be saved to the agency server and not deleted after 90 days.

Mr. Kennett reviewed three screenshots from his computer showing his attempt to

locate the dashcam video at issue. The screenshots were entered into evidence and showed

that the dashcam video was categorized as an “arrest” and was “broken up into three

different sections” based upon the size of the media file. The video file related to the traffic

stop of the defendant was successfully saved. However, the two video files which captured

Trooper Langley’s pursuit of the defendant were corrupted. Mr. Kennett confirmed the

corrupted video files were saved as a “significant event” and were not deleted; however,

they failed to successfully download from the L-3 server. Mr. Kennett explained that he

had seen this file corruption happen before and that it was not out of the ordinary. And,

although he did not personally take any steps to resolve the corruption issue, the Tennessee

Highway Patrol recently changed from the L-3 server system to a new cloud system.

b. Motion to Suppress

The defendant also filed a motion to suppress the evidence obtained during the

traffic stop, including the pistol and needles found during the search of the vehicle and the

statements he made to Trooper Langley regarding his drug use. In support of his motion,

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the defendant argued he was unlawfully seized and was not properly Mirandized during

the stop. During the hearing, the State asked the trial court to incorporate by reference

Trooper Langley’s Ferguson-hearing testimony along with the hearing exhibits. The

defendant also testified in support of his motion.

The defendant admitted to driving the red Chevrolet Silverado on February 18,

2018. While driving on Interstate 24, the defendant saw Trooper Langley parked in the

median. At the time, the defendant was not under the influence and was driving in the

right-hand lane. The defendant did not recall crossing over the fog line. According to the

defendant, Trooper Langley would not have been able to see his license plate at the

intersection of Interstate 840 and Interstate 24 but believed Trooper Langley would have

been able to see the license plate as he exited Interstate 840 onto Murfreesboro Road, noting

Trooper Langley was “a couple of car lengths behind” him at that point. During cross-

examination, however, the defendant admitted that he did not know what Trooper Langley

saw while following behind him on the interstate. The defendant also testified that he was

not Mirandized at the scene.

The defendant admitted to being convicted of one count of vandalism in Cheatham

County and several counts of aggravated burglary in Davidson County. The defendant

explained he went on a “crime spree” in Davidson County. Thus, the aggravated burglary

convictions were the result of “one occasion, one arrest.” The defendant denied being

convicted of any felonies in Georgia, providing instead that he was “bound over and made

bond” in Georgia and was unaware of any pending charges in that state. The defendant

admitted to a pending theft charge in Cheatham County related to the stolen vehicle

involved in this case.

c. Motion to Dismiss the Gun Charges

In his final pre-trial motion, the defendant moved to dismiss the felon in possession

charge of count 5. The defendant argued Tennessee Code Annotated section 39-17-1307

was unconstitutional because it “violates his right to bear, and especially to ‘keep,’

firearms.” The defendant asserted “[b]ecause the statute at hand violates the right to keep

and bear arms, and because the General Assembly lacked any legal authority to pass this

gun ban, the illegal gun charge in each case should be dismissed.” This motion was

supported by the arguments of defense counsel. At the conclusion of the hearing, the trial

court denied each of the defendant’s motions.

d. Bench Trial

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The defendant subsequently waived his right to a trial by jury, electing instead to

have a bench trial under the agreement that if convicted, an effective twenty-year sentence

would be imposed and the remaining charges pending against the defendant in a separate

case would be dismissed.2 The State proceeded with its case-in-chief which consisted of

testimony from Trooper Langley regarding his arrest of the defendant.

While parked in the median near Exit 70 on Interstate 24, Trooper Langley observed

the defendant driving a red truck and “straddling the fog line in the gravel.” Approximately

two hours prior to encountering the defendant, authorities issued a BOLO for a stolen, red

2003 Chevrolet Silverado truck and trailer. The vehicle driven by the defendant matched

the description of the vehicle identified in the BOLO though there was no trailer attached.

The license plate of the vehicle driven by the defendant also matched the license plate of

the stolen vehicle provided in the BOLO.

Trooper Langley followed the defendant and initiated a traffic stop of the defendant

and his two passengers. After another officer arrived to assist Trooper Langley, the officers

ordered the defendant and passengers to put their hands in front of them. The defendant

“was moving really slow[ly],” so the officers removed the defendant and passengers from

the vehicle. The assisting officer asked the defendant if he had “anything [] on him,” and

the defendant replied that he did not. However, during a pat down search, the officers

located “a pistol on [the defendant’s] right side.” The Ruger .380 pistol located on the

defendant during the search was entered into evidence. The officers placed the defendant

in the assisting officer’s patrol vehicle and the passengers in Trooper Langley’s patrol

vehicle. Trooper Langley verified the VIN on the stolen vehicle and searched it. During

the search, Trooper Langley located “a needle in a purse” and “needles in a jacket.”

Trooper Langley asked the defendant about his drug use, and the defendant admitted

to using heroin. According to Trooper Langley, the defendant further stated that the last

time he had used heroin was “[a]s he was passing [Trooper Langley]. That’s why he was

on the fog line.” Trooper Langley stated he recovered the needle the defendant used to

inject himself while driving and noted the defendant appeared impaired. Trooper Langley

explained:

After every sentence -- after speaking with him, he could barely hold

his eyes open. He would stop talking. Once we placed him in the vehicle,

we had to constantly check on him, because he would be out -- out cold. We

would have to physically touch him to get him to wake up.

2

At the time, the defendant had charges pending against him in Case No. 79709.

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Trooper Langley researched the defendant’s driving history and discovered his

license was not valid due to a prior DUI and either “financial responsibility or a prior

unpaid ticket.” An official copy of the defendant’s driving record was entered into

evidence along with the case file for the defendant’s arrest which included documents

establishing the BOLO. Certified copies of the defendant’s prior convictions were also

entered into evidence.

During cross-examination, Trooper Langley stated the defendant only crossed the

fog line once. He followed the defendant for approximately eight miles, and “[i]t seemed

like [the defendant] was trying to avoid [him].” He initially began following the defendant

“because of the fog line.” But “[o]nce I got behind him, the tag matched the BOLO from

earlier,” and he initiated the traffic stop as a result. During the stop, the defendant told

Trooper Langley that he used heroin intravenously but did not identify where on his body

he injected himself, only that “he was doing it while he was driving, that’s why he was

over the line.” Trooper Langley agreed the defendant was overweight and it might be

difficult to inject drugs while driving, depending upon one’s experience level. Trooper

Langley did not perform any field sobriety tests on the defendant.

Regarding the three needles located during the search, Trooper Langley stated that

the needle found in the purse had drug residue on it and that he did not find any needles on

the defendant’s person. Though the defendant agreed to a blood draw, Trooper Langley

stated they were “unable to get any blood from him, period.” Trooper Langley agreed it

could take approximately ten minutes for heroin injected into a vein to take effect and

stated a pistol like the one found on the defendant could be useful to a civilian to defend

against foreign invasion. The State did not offer any additional proof.

The defendant and his grandfather, Wade Crowson, testified on behalf of the

defense.3 Mr. Crowson testified he is the owner of the truck and pistol at issue. Prior to

the defendant’s arrest, Mr. Crowson let the defendant borrow his truck “[m]ultiple times.”

On the morning of February 18, 2018, Mr. Crowson walked outside and saw that his truck

“was gone.” Because he did not know who took his truck, he reported the vehicle as stolen.

However, if he had known the defendant had taken his truck, Mr. Crowson would not have

contacted the police and, instead, would have contacted the defendant. Mr. Crowson stored

the pistol in the center console of the truck.

The defendant explained he borrowed Mr. Crowson’s truck after his vehicle

overheated while driving on the interstate in the early morning hours of February 18, 2018.

When the defendant arrived at Mr. Crowson’s home, Mr. Crowson was asleep, so the

3

The defendant also offered a certified judgment showing that the pending Cheatham County theft

charge was dismissed.

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defendant located the spare key to the truck without waking Mr. Crowson. The defendant

then retrieved his vehicle off the interstate using the trailer attached to Mr. Crowson’s truck

and towed his vehicle back to Murfreesboro, arriving around 3:30 or 4:00 a.m. While in

Murfreesboro, two of his roommates asked for a ride, and the defendant agreed. The

roommates, who the defendant described as “heavy heroin users,” were the passengers in

the truck when the defendant was arrested. The defendant admitted to a history of drug

use but testified he had never used heroin. The defendant stated he did not know there was

a pistol in Mr. Crowson’s truck when he took it. He found the pistol after arriving in

Murfreesboro. The defendant worried his passengers might steal the pistol and explained,

“when I found the gun, I put it on my person . . . [b]ecause I didn’t want nothing (sic) to

happen to it.” According to the defendant, he “planned on giving the truck and everything

back to [Mr. Crowson] later that day.” The defendant testified that he disconnected the

trailer from Mr. Crowson’s truck, but ultimately, he did not know what happened to the

trailer.

During cross-examination, the defendant admitted to driving Mr. Crowson’s truck

on February 18, 2018, and that the truck had been reported stolen. The defendant denied

telling Trooper Langley that he was using heroin that day, stating Trooper Langley lied

during his testimony. The defendant admitted to prior DUI arrests and several aggravated

burglary convictions. He admitted to past drug use but denied using heroin. The defendant

also denied using drugs on the day of his arrest or being high at the time of the traffic stop.

The defendant did not recall the last time he had used drugs.

At the conclusion of the proof, the trial court found the defendant guilty of driving

under the influence (count 1), driving while his license was suspended because of a

conviction for driving under the influence (count 2), possession of a weapon while under

the influence of a controlled substance (count 4), being a convicted felon in possession of

a firearm (count 5), driving while his license was suspended because of a conviction for

driving under the influence, second offense (count 6), and driving under the influence,

second offense (count 7). Tenn. Code Ann. §§ 39-17-1307, -1321; 55-10-401, -50-504.

The trial court found the defendant not guilty of possession of drug paraphernalia (count

3). Tenn. Code Ann. § 39-17-425. Based upon the agreement of the parties, the trial court

imposed an effective twenty-year sentence to be served in the Tennessee Department of

Correction. The defendant filed a motion for a new trial which the trial court denied. This

timely appeal followed.

Analysis

I. Ferguson Motion

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The defendant asserts the trial court erred in denying his Ferguson motion because

“[t]he undisputed proof showed that the Tennessee Highway Patrol not only lost the

dashboard video in this case, but also that such technical failures were a recurring problem

about which the government did nothing.” The defendant also suggests “the lost video

would have been relevant and exculpatory not only to showing [the defendant’s] innocence

of DUI, but also to showing that his vehicle was unlawfully stopped in the first place.” The

State asserts the trial court did not err “because the absence of a portion of Trooper

Langley’s video did not render his trial fundamentally unfair,” and “[w]hile the video was

the only evidence of the defendant driving, it was not the only evidence of his guilt.” Upon

our review, we agree with the State.

Every criminal defendant is afforded the right to a fair trial by both the Due Process

Clause of the Fourteenth Amendment to the United States Constitution and article I, section

8 of the Tennessee Constitution. U.S. CONST. amend 14; Tenn. Const. art. I, § 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.” State v. Ferguson, 2 S.W.3d 912, 915 (Tenn. 1999) (citing Brady v.

Maryland, 373 U.S. 83, 87 (1963)). “Even in the absence of a specific request, the

prosecution has a constitutional duty to turn over exculpatory evidence that would raise a

reasonable doubt about a defendant’s guilt.” Id. (citing United States v. Agurs, 427 U.S.

97, 110-11 (1976)0.

The Ferguson court adopted a balancing approach to determine whether the loss or

destruction of potentially exculpatory evidence renders a defendant’s trial fundamentally

unfair. 2 S.W.3d at 917. “The first step in this analysis is to determine whether the State

had a duty to preserve the evidence.” Id. “Generally speaking, the State has a duty to

preserve all evidence subject to discovery and inspection under Tenn[essee] R[ules] [of]

Crim[inal] P[rocedure] 16, or other applicable law.” Id. However,

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.

Id. (quoting California v. Trombetta, 467 U.S. 479, 488 (1984)). Therefore, “[i]f the proof

demonstrates the existence of a duty to preserve and further shows that the State has failed

in that duty, the analysis moves to a consideration of several factors which should guide

the decision regarding the consequences of the breach.” Id. The applicable factors include:

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“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.

“If, after considering all the factors, the trial judge concludes that a trial without the

missing evidence would not be fundamentally fair, then the trial court may dismiss the

charges. Dismissal is, however, but one of the trial judge’s options.” Id. “[T]he standard

of review of a trial court’s determination as to whether a defendant was deprived of a

fundamentally fair trial is de novo with no presumption of correctness.” State v. Merriman,

410 S.W.3d 779, 797 (Tenn. 2013). “Deference should be given to the trial court’s findings

of fact, however, unless the evidence preponderates otherwise.” Id. Thus, “[a] trial court’s

determination of the appropriate remedy for the State’s failure to preserve the evidence is

reviewed under an abuse of discretion standard.” Id.

The first step of the Ferguson analysis requires this Court to determine whether the

State had a duty to preserve the dashcam video. Ferguson, 2 S.W.3d at 917. While it is

clear the State had a duty to preserve the video footage, the record indicates that it did.

According to Trooper Langley, his dashcam video was activated when he began following

behind the defendant on Interstate 24 and continued throughout the traffic stop. Trooper

Langley properly categorized the dashcam video as an “arrest” which, according to Mr.

Kennett, ensured the video would be downloaded and saved on the L-3 server. The video

was saved in three separate files. During the download, two of the files were corrupted

and one file downloaded successfully.

Based upon these facts, we conclude the State had a duty to preserve the dashcam

video and took the necessary steps to do so. Unfortunately, due to reasons beyond the

State’s control, portions of the dashcam video were corrupted and unavailable at trial. The

defendant, however, has failed to show that the State failed in its duty to preserve the video,

to demonstrate negligence on behalf of the State, or to adequately explain the significance

of the lost dashcam video in light of Trooper Langley’s testimony regarding the defendant’s

behavior during the traffic stop and the defendant’s admission he was driving the vehicle.

Ferguson, 2 S.W.3d at 917. As a result, we need not consider what consequences would

be appropriate for the loss of a portion of the dashcam video and conclude the trial court

did not err in denying the Ferguson motion. The defendant is not entitled to relief.

II. Motion to Suppress

The defendant argues his “alleged admission should have been suppressed” because

“[t]he proof was clear that [the defendant] had already been arrested and placed in a police

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car when Trooper [] Langley searched his car.” The defendant asserts that during the

search, Trooper Langley found needles “about which he questioned [the defendant]” and

that “it was only in response to the questioning that the admission was allegedly made.”

Further, the defendant argues it was “undisputed that no Miranda warnings were given.”

The State asserts the trial court properly “denied the motion because the defendant was not

‘in custody’ for the purposes of Miranda when he made his statement.” Upon our review,

we agree with the State.

Suppression issues on appeal are subject to a well-established standard of review.

Appellate courts are bound by a trial court’s findings of facts determined after a

suppression hearing unless the evidence preponderates against them. State v. Odom, 928

S.W.2d 18, 23 (Tenn. 1996); State v. Matthew T. McGee, No. E2011-01756-CCA-R3-CD,

2012 WL 4017776, at *2 (Tenn. Crim. App. Sept. 13, 2012). “Questions of credibility of

the witnesses, the weight and value of the evidence, and resolution of conflicts in the

evidence are matters entrusted to the trial judge as the trier of fact.” Odom, 928 S.W.2d at

23. Appellate courts should consider the entire record, affording the prevailing party “the

strongest legitimate view of the evidence and all reasonable inferences drawn from that

evidence.” Matthew T. McGee, 2012 WL 4017776, at *2 (citing State v. Hicks, 55 S.W.3d

515, 521 (Tenn. 2001)); see also State v. Sanders, 452 S.W.3d 300, 306 (Tenn. 2014).

However, applying the law to the factual findings of the trial court is a question of law,

which is reviewed de novo on appeal. State v. Yeargan, 958 S.W.2d 626, 629 (Tenn.

1997).

The Fifth Amendment to the United States Constitution, applicable to states through

the Fourteenth Amendment, states that “[n]o person . . . shall be compelled in any criminal

case to be a witness against himself.” U.S. CONST. Amend. V. Similarly, the Tennessee

Constitution states “that in all criminal prosecutions, the accused . . . shall not be compelled

to give evidence against himself.” Tenn. Const. art. I, § 9. If a suspect is in police custody

“or otherwise [has been] deprived of his freedom of action in any significant way,” the

police must first inform him of his Fifth Amendment rights for any subsequent confession

to later be admissible as substantive evidence. Miranda v. Arizona, 384 U.S. 436, 444

(1966). In this regard, the United States Supreme Court has said, “[p]rior to any

questioning, the person must be warned that he has a right to remain silent, that any

statement he does make may be used as evidence against him, and that he has a right to the

presence of an attorney, either retained or appointed.” Id. These rights may be voluntarily,

knowingly, and intelligently waived. Id.

The Miranda decision only applies “to the questioning of an individual who has

been taken into custody or otherwise deprived of his freedom by the authorities in a

significant way.” State v. Dailey, 273 S.W.3d 94, 102 (Tenn. 2009) (quoting Miranda, 384

U.S. at 478) (internal quotation marks omitted). Accordingly, Miranda warnings are only

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required when a suspect is (1) in custody and (2) subjected to questioning or its functional

equivalent. State v. Walton, 41 S.W.3d 75, 83 (Tenn. 2001). In the absence of either,

Miranda requirements are not necessitated. Id.

The test for determining if an individual is in custody for Miranda purposes is

“whether, under the totality of the circumstances, a reasonable person in the suspect’s

position would consider himself or herself deprived of freedom of movement to a degree

associated with a formal arrest.” State v. Anderson, 937 S.W.2d 851, 855 (Tenn. 1996).

This is a fact-specific inquiry, and our supreme court has provided the following non-

exhaustive list of relevant factors:

[T]he time and location of the interrogation; the duration and character of the

questioning; the officer’s tone of voice and general demeanor; the suspect’s

method of transportation to the place of questioning; the number of police

officers present; any limitation on movement or other form of restraint

imposed on the suspect during the interrogation; any interactions between

the officer and the suspect, including the words spoken by the officer to the

suspect, and the suspect’s verbal or nonverbal responses; the extent to which

the suspect is confronted with the law enforcement officer’s suspicions of

guilt or evidence of guilt, and finally, the extent to which the suspect is made

aware that he or she is free to refrain from answering questions or to end the

interview at will.

Id. The defendant bears the initial burden of proving custody for the purposes

of Miranda before the burden shifts to the State to prove the voluntariness of the statement.

State v. Moran, 621 S.W.3d 249, 258 (Tenn. Crim. App. 2020), appeal denied (Mar. 23,

2021).

Here, the defendant has failed to meet his burden of proving custody for the

purposes of Miranda concerning the statement he made to Trooper Langley about using

heroin while driving on the interstate.4 The defense’s proof at the suppression hearing was

brief and included only the defendant’s testimony wherein he admitted to driving the stolen

vehicle and being stopped by Trooper Langley, denied being under the influence, and stated

he was not Mirandized during the traffic stop. The defendant failed to provide any

additional evidence to support his contention that he was in custody at the time he made

the statement about his heroin use. As such, the defendant clearly did not meet his burden

of proving he was in custody at the time he made the statement.

4

We note, the defendant’s argument during the suppression hearing focused on the constitutionality

of the traffic stop rather than the Miranda issue argued on appeal.

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Regardless, upon our review of the record as a whole, it is clear the defendant was

not in custody when he made the statement to Trooper Langley. During trial, Trooper

Langley testified that he saw the defendant cross the fog line while driving on Interstate

24. The vehicle driven by the defendant matched the description of a stolen vehicle

identified in an active BOLO. Trooper Langley followed the defendant, confirmed the

vehicle was stolen, and initiated a traffic stop. During the stop, the defendant appeared

impaired, “was moving really slow[ly],” “could barely hold his eyes open,” and had to be

“constantly check[ed] on.” Trooper Langley removed the defendant from the stolen

vehicle, performed a pat down search, and located a Ruger .380 pistol on the defendant’s

person. After finding the pistol, Trooper Langley placed the defendant in the assisting

officer’s patrol vehicle, searched the stolen vehicle, and found three needles. Trooper

Langley asked the defendant about his drug use, and the defendant admitted to using

heroin. Specifically, the defendant stated that the last time he had used heroin was “[a]s

he was passing [Trooper Langley]. That’s why he was on the fog line.”

Thus, the record indicates that after finding a pistol on the impaired defendant,

Trooper Langley placed the defendant in a patrol car for safety purposes. During a search

of the stolen vehicle, Trooper Langley found needles and asked the defendant about his

drug use, presumably to ensure both his safety and the safety of the public. Courts have

repeatedly held that an officer may handcuff a suspect or place him in a police car for safety

purposes, and that “[a]n officer may ask questions that are necessary to ensure the officer’s

safety or that of the public without violating the Miranda rights of a person in custody.”

See United States v. Wright, 220 Fed. Appx. 417, 420 (6th Cir. 2007) (noting that merely

placing a suspect in the back of a police car does not constitute custody for the purposes

of Miranda); State v. Dyron Norm Yokley, No. E2009-02646-CCA-R3-CD, 2011 WL

2120096, at *23 (Tenn. Crim. App. May 20, 2011), perm. app. denied (Tenn. Sept. 21,

2011) (citing New York v. Quarles, 467 U.S. 649, 657 (1984)). As such, the record

indicates the defendant was not in custody for purposes of Miranda, and the defendant has

provided no proof to show otherwise. The defendant is not entitled to relief.

III. Sufficiency of the Evidence

The defendant challenges the sufficiency of the evidence supporting his convictions

for driving under the influence, possession of a weapon while under the influence of a

controlled substance, and being a felon in possession of a firearm.5 The State asserts

sufficient evidence exists to support each of the challenged convictions, and we agree.

5

The defendant does not specifically challenge his remaining convictions, and, as a result, we will

not address the sufficiency of the evidence supporting the same.

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When the sufficiency of the evidence is challenged, the relevant question of the

reviewing court is “whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Tenn.

R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury

shall be set aside if the evidence is insufficient to support the findings by the trier of fact

of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-91 (Tenn.

1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). All questions

involving the credibility of witnesses, the weight and value to be given the evidence, and

all factual issues are resolved by the trier of fact. State v. Pappas, 754 S.W.2d 620, 623

(Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the trial judge,

accredits the testimony of the witnesses for the State and resolves all conflicts in favor of

the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our Supreme

Court has stated the rationale for this rule:

This well-settled rule rests on a sound foundation. The trial judge and the

jury see the witnesses face to face, hear their testimony and observe their

demeanor on the stand. Thus the trial judge and jury are the primary

instrumentality of justice to determine the weight and credibility to be given

to the testimony of witnesses. In the trial forum alone is there human

atmosphere and the totality of the evidence cannot be reproduced with a

written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523

(1963)). “A jury conviction removes the presumption of innocence with which a defendant

is initially cloaked and replaces it with one of guilt, so that on appeal a convicted defendant

has the burden of demonstrating that the evidence is insufficient.” State v. Tuggle, 639

S.W.2d 913, 914 (Tenn. 1982).

Guilt may be found beyond a reasonable doubt where there is direct evidence,

circumstantial evidence, or a combination of the two. State v. Matthews, 805 S.W.2d 776,

779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331 (Tenn.

1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). The standard of review

for sufficiency of the evidence “‘is the same whether the conviction is based upon direct

or circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011)

(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). The jury as the trier of fact

must evaluate the credibility of the witnesses, determine the weight given to witnesses’

testimony, and reconcile all conflicts in the evidence. State v. Campbell, 245 S.W.3d 331,

335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)).

Moreover, the jury determines the weight to be given to circumstantial evidence and the

inferences to be drawn from this evidence, and the extent to which the circumstances are

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consistent with guilt and inconsistent with innocence are questions primarily for the

jury. Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d 646, 662 (Tenn.

2006)). “[T]his court has stated that ‘it is logical and compelling that the judge’s role at a

bench trial be considered the same as the jurors’ role at a jury trial. Each, when so sitting,

is acting as the trier of facts.” State v. Toscar C. Carpenter, Sr., No. M2000-00990-CCA-

R3-CD, 2000 WL 1880612, at *2 (Tenn. Crim. App. Dec. 29, 2000) (quoting State v.

Daniels, 531 S.W.2d 795, 801 (Tenn. Crim. App. 1975)). “Accordingly, in a bench trial,

the trial judge, as the trier of fact, must resolve all questions concerning the credibility of

witnesses and the weight and value to be given the evidence, as well as all factual issues

raised by the evidence.” Id. (citing State v. Ball, 973 S.W.2d 288, 292 (Tenn. Crim. App.

1998)). This Court, when considering the sufficiency of the evidence, shall not reweigh

the evidence or substitute its inferences for those drawn by the trier of fact. Dorantes, 331

S.W.3d at 379.

a. Driving Under the Influence and Possession of a Weapon while under the

Influence of a Controlled Substance

The defendant was convicted of DUI pursuant to Tennessee Code Annotated section

55-10-401, which provides, in pertinent part:

It is unlawful for any person to drive or to be in physical control of

any automobile or other motor driven vehicle on any of the public roads and

highways of the state, or on any streets or alleys, or while on the premises of

any shopping center, trailer park, or apartment house complex, or any other

premises that is generally frequented by the public at large, while:

(1) Under the influence of any intoxicant, marijuana, controlled

substance, controlled substance analogue, drug, substance affecting the

central nervous system, or combination thereof that impairs the driver’s

ability to safely operate a motor vehicle by depriving the driver of the

clearness of mind and control of oneself that the driver would otherwise

possess.

Tenn. Code Ann. § 55-10-401. The defendant was also convicted of possession of a

weapon while under the influence of a controlled substance. Tennessee Code Annotated

section 39-17-1321 makes “it is an offense for a person to possess a handgun while under

the influence of alcohol or any controlled substance or controlled substance analogue.”

Tenn. Code Ann. § 39-17-1321(a). Heroin is a controlled substance. Tenn. Code Ann. §

39-17-406(c)(11).

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Here, it is undisputed the defendant was driving an automobile on a public highway

in the State of Tennessee on February 18, 2018. The defendant admitted that he used heroin

and that he did so as he passed Trooper Langley and crossed over the fog line on Interstate

24. During the traffic stop, Trooper Langley found three needles, one of which had drug

residue on it, in the stolen vehicle and a Ruger .380 pistol on the defendant’s person. The

record also indicates the defendant showed multiple verbal and physical signs of

impairment during the stop. Trooper Langley testified that he believed the defendant was

impaired because he “was moving really slow[ly],” “could barely hold his eyes open,”

“would stop talking,” had to be “constantly check[ed] on . . . because he would be . . . out

cold,” and had to be physically touched in order to wake. “This court has previously held

that sufficient evidence existed for a DUI conviction when the trial court only relied on the

arresting officer’s testimony that the defendant was driving under the influence.” State v.

Stephen A. Simpson, No. E2020-01340-CCA-R3-CD, 2021 WL 3477537, at *5 (Tenn.

Crim. App. Aug. 9, 2021), appeal denied (Dec. 8, 2021) (citing State v. Vasser, 870 S.W.2d

543, 544 (Tenn. Crim. App. 1993)).

From these facts, a rational trier of fact could have found the defendant guilty of

DUI and possession of a weapon while under the influence of a controlled substance.

While the defendant denied using heroin, both generally and while driving on the interstate,

and argues “there was little or no evidence of intoxication,” the trial court, as the trier of

fact, is entrusted with determining the weight of the evidence and evaluating the credibility

of witnesses. Toscar C. Carpenter, Sr., 2000 WL 1880612, at *2. Based upon the verdict,

the trial court weighed the testimony of Trooper Langley and the defendant and reconciled

the evidence in favor of the State. Campbell, 245 S.W.3d at 335; Dorantes, 331 S.W.3d at

379. This Court will not reweigh the evidence. Dorantes, 331 S.W.3d at 379.

Accordingly, we conclude the evidence was sufficient to support the defendant’s

convictions.

b. Felon in Possession

As charged in this case, unlawful possession of a firearm by a convicted felon occurs

when any person who has been convicted of a felony involving the use of or attempted use

of force, violence, or a deadly weapon subsequently unlawfully possesses a firearm. Tenn.

Code Ann. § 39-17-1307(b)(1)(A). The defendant’s conviction for being

a felon in possession of a firearm is based on a prior felony conviction for aggravated

burglary. Aggravated burglary is a “crime of violence.” Tenn. Code Ann. § 39-17-

1301(3). Possession may be actual, constructive, or joint. State v. Shaw, 37 S.W.3d 900,

903 (Tenn. 2001); Key v. State, 563 S.W.2d 184, 188 (Tenn. 1978). see also State v.

Bigsby, 40 S.W.3d 87, 90 (Tenn. Crim. App. 2000).

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Here, the State introduced a certified copy of the defendant’s prior felony conviction

for aggravated burglary, and the defendant admitted to the same. Trooper Langley

searched the defendant during the traffic stop and found a Ruger .380 pistol on the

defendant’s person. During trial, the defendant admitted to possessing the pistol.

Considering this testimony in the light most favorable to the State, there was ample

evidence presented at trial to show the defendant possessed the firearm after having

previously been convicted of a felony crime of violence.

The defendant, however, argues the evidence is insufficient because he successfully

raised the defense of necessity at trial. We disagree. Regarding the defense of necessity,

Tennessee Code Annotated section 39-11-609 provides unlawful “conduct is justified if:

(1) [t]he person reasonably believes the conduct is immediately necessary to avoid

imminent harm; and (2) [t]he desirability and urgency of avoiding the harm clearly

outweigh the harm sought to be prevented by the law proscribing the conduct, according

to ordinary standards of reasonableness.” Tenn. Code Ann. § 39-11-609; see T.P.I. - Crim.

40.05 (19th ed. 2015). The defense of necessity “excuses criminal liability in those

exceedingly rare situations where criminal activity is an objectively reasonable response to

an extreme situation.” Tenn. Code Ann. § 39-11-609, Advisory Comm’n Cmts. Therefore,

the defense is applicable in situations “(1) where the defendant acts upon a reasonable

belief that the action is necessary to avoid harm; and (2) where the harm sought to be

avoided is clearly greater than the harm caused by the criminal act.” Id. This Court has

previously explained, “necessity requires an immediately necessary action, justifiable

because of an imminent threat, where the action is the only means to avoid the harm.” State

v. Davenport, 973 S.W.2d 283, 287 (Tenn. Crim. App. 1998) (providing that “[e]xamples

of necessity include a ship violating an embargo law to avoid a storm, a pharmacist

providing medication without a prescription to alleviate someone’s suffering during an

emergency, or where two sailors are shipwrecked and one pushes the other off the float to

save his own life”) (internal citations omitted). “Thus, the statute involves balancing the

harm caused by the criminal offense and the harm sought to be avoided.” State v. Cole-

Pugh, 588 S.W.3d 254, 261 (Tenn. 2019) (citing W. Mark Ward, Tenn. Crim. Trial

Practice § 23:16 (Oct. 2018 update)).

The defense of necessity should be charged if supported by the facts produced at

trial; however, because it is not an affirmative defense, “the defendant need not prove

[necessity] by a preponderance of the evidence.” Davenport, 973 S.W.2d at 287 (citing

State v. Culp, 900 S.W.2d 707, 710 (Tenn. Crim. App. 1994)). Instead, if the evidence

“fairly raises” the defense, the trial court “must submit the defense to the jury and the

prosecution must ‘prove beyond a reasonable doubt that the defense does not

apply.’” Culp, 900 S.W.2d at 710 (Tenn. Crim. App. 1994) (quoting State v. Hood, 868

S.W.2d 744 (Tenn. Crim. App. 1993)).

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Here, the defendant asserts the defense of necessity was fairly raised by the evidence

produced at trial, arguing he “picked up the handgun and possessed it out of necessity to

prevent a greater harm.” The defendant, however, failed to demonstrate that a greater harm

existed at the time he “picked up the handgun.” Instead, the evidence produced at trial

shows the defendant took Mr. Crowson’s truck in the early morning hours of February 18,

2018, located a pistol in the center console of the truck, and placed the pistol on his person.

Though the defendant testified he did not want his passengers to steal the pistol, the

defendant failed to provide evidence showing either passenger attempted to do so or even

knew the pistol was in the vehicle. As such, the defendant has failed to show how removing

the pistol from the console and wearing it on his person was “immediately necessary to

avoid imminent harm.” Tenn. Code Ann. § 39-11-609. Further, the defendant has failed

to show that the desirability and urgency of avoiding the potential theft of the pistol

outweighed the harm sought to be prevented by the felon in possession statute. Id. The

defendant is not entitled to relief.

As noted, the defendant’s conviction resulted from a bench trial. We presume the

trial court, acting as the trier of fact, considered all of the law applicable to the defendant’s

case, including any available defenses fairly raised by the facts, in reaching its verdict. See

State v. Myers, 581 S.W.3d 173, 182-83 (Tenn. 2019) (citing State v. Daniels, 531 S.W.2d

795, 801 (Tenn. Crim. App. 1975) (“To us, it is logical and compelling that the judge’s

role at a bench trial be considered the same as the jurors’ role at a jury trial. Each, when

so sitting, is acting as the trier of the facts.”)). Again, the defendant is not entitled to relief.

IV. Constitutional Challenge to Tennessee Code Annotated section 39-17-1307(b)

The defendant challenges the constitutionality of Tennessee Code Annotated

section 39-17-1307(b) which makes it a crime for a person to unlawfully possess a firearm

after having been convicted of a felony crime of violence. Tenn. Code Ann. § 39-17-

1307(b)(1)(A). “Issues of constitutional interpretation are questions of law, which we

review de novo without any presumption of correctness given to the legal conclusions of

the courts below.” Waters v. Farr, 291 S.W.3d 873, 882 (Tenn. 2009) (citing Colonial

Pipeline Co. v. Morgan, 263 S.W.3d 827, 836 (Tenn. 2008)). This Court is “charged with

upholding the constitutionality of statutes where possible.” State v. Pickett, 211 S.W.3d

696, 700 (Tenn. 2007). “In evaluating the constitutionality of a statute, we begin with the

presumption that an act of the General Assembly is constitutional.” Id. (quoting Gallaher

v. Elam, 104 S.W.3d 455, 459 (Tenn. 2003)). In doing so, “[w]e must ‘indulge every

presumption and resolve every doubt in favor of the statute’s constitutionality.’” Gallaher,

104 S.W.3d at 459 (quoting State v. Taylor, 70 S.W.3d 717, 721 (Tenn. 2002)). “This

presumption applies with even greater force when the facial constitutional validity of a

statute is challenged.” Id. (internal citation omitted).

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However, “[i]t is well-settled in Tennessee that ‘courts do not decide constitutional

questions unless resolution is absolutely necessary to determining the issues in the case and

adjudicating the rights of the parties.’” Waters, 291 S.W.3d 882 (quoting State v.

Taylor, 70 S.W.3d 717, 720 (Tenn. 2002)). Furthermore, “a person has no standing to

contest the constitutionality of a statutory provision unless the provisions he claims to be

deficient has been used to deprive him of his rights.” State v. Purkey, 689 S.W.2d 196,

201 (Tenn. Crim. App. 1984) (citing State v. Vanzant, 659 S.W.2d 816 (Tenn. Crim. App.

1983); State v. Pritchett, 621 S.W.2d 127 (Tenn. 1981)).

Article I, section 26 of the Tennessee Constitution provides “[t]hat the citizens of

this State have a right to keep and to bear arms for their common defense; but the

Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent

crime.” Tenn. Const. art. I, § 26. As charged in this case, Tennessee Code Annotated

section 39-17-1307(b) provides that “[a] person commits an offense who unlawfully

possesses a firearm . . . and . . . [h]as been convicted of a felony crime of violence, an

attempt to commit a felony crime of violence, or a felony involving use of a deadly

weapon.” Tenn. Code Ann. § 39-17-1307(b)(1)(A). Our supreme court has observed that

“[t]he plain language of the statute makes clear the legislative intent to prohibit one who

has been convicted of a violent felony from possessing a handgun.” State v. Johnson, 79

S.W.3d 522, 526, 528 (Tenn. 2002) (holding “that the legislature intended that a person

who has been convicted of a felony involving the use or attempted use of force, violence,

or a deadly weapon cannot possess a handgun, even where his or her citizenship rights have

been restored pursuant to Tenn. Code Ann. § 40-29-101, et seq.”). Thus, “a person who

has been convicted of a violent felony may be charged with a crime when later found to be

in possession of a handgun.” Id. at 526. Regarding this statute, the supreme court has

explained further that “Tennessee has ‘specific disability statutes,’ which ‘designate a

particular civil disability that occurs upon the conviction and remains in effect throughout

the defendant’s life unless restored by a specific statutory procedure.’” Id. at 527 (quoting

Cole v. Campbell, 968 S.W.2d 274, 276 (Tenn. 1998)). “Specific disability statutes include

the loss of the right to vote, see Tenn. Code Ann. § 40-20-112 (1997); the loss of the right

to hold public office, see id. § 40-20-114; the loss of the right to serve as a fiduciary, see

id. § 40-20-115; and the loss of the right to possess a handgun, see id. § 39-17-1307(b).”

Id.

Here, the defendant argues the statute is unconstitutional because his right to keep

and bear arms is protected by Article I, section 26 of the Tennessee Constitution which

“does not empower the legislature to prohibit felons from keeping firearms” but rather

“empowers the legislature to regulate only the wearing of firearms.” The defendant asserts

that “[b]ecause the statute in this case violates the right to keep and bear arms, and because

the General Assembly lacked any legal authority to pass the gun ban, the illegal conviction

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for gun possession by a felon must be reversed and dismissed.” The State asserts that

“Tennessee’s Constitution does not provide an absolute right to bear arms, and it permits

the legislature to pass laws ‘with a view to prevent crime.’” We review the defendant’s

challenge below.

The undisputed facts of this case demonstrate that the defendant was previously

convicted of aggravated burglary, a felony crime of violence, and Trooper Langley located

a pistol on the defendant’s person during the traffic stop. As noted, Article I, section 26 of

the Tennessee Constitution provides that “the Legislature shall have power, by law, to

regulate the wearing of arms with a view to prevent crime.” Tenn. Const. art. I, § 26.

Because the defendant was wearing the pistol when he encountered Trooper Langley, the

defendant was clearly in possession of the pistol and, thus, directly violated the statute at

issue. Furthermore, the defendant concedes that the General Assembly can legislate the

“wearing” of arms. Thus, we decline to address the constitutional question raised by the

defendant’s facial challenge to Tennessee Code Annotated section 39-17-1307(b) as it is

clear that the resolution of the defendant’s constitutional challenge is not “‘absolutely

necessary to determining the issues in the case and adjudicating the rights of the

parties.’” Waters, 291 S.W.3d 882 (quoting Taylor, 70 S.W.3d at 720). And, because the

defendant was in direct violation of the statute and concedes the legislature can regulate

the behavior in which he was engaged, the wearing of a pistol, nothing in the record

indicates the defendant has been deprived of his rights. As a result, the defendant has no

standing to contest the constitutionality of Tennessee Code Annotated section 39-17-

1307(b), and he is not entitled to relief. Purkey, 689 S.W.2d at 201.

Conclusion

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

trial court.

____________________________________

J. ROSS DYER, JUDGE

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