Full Opinion (html_with_citations)

        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                   June 17, 2014 Session

            STATE OF TENNESSEE v. CRAIG PATRICK HEBERT

                 Appeal from the Criminal Court for Davidson County
                    No. 2011C2451    J. Randall Wyatt, Jr., Judge




            No. M2012-02299-CCA-R3-CD            - Filed December 22, 2014



A Davidson County jury convicted the defendant, Craig Patrick Hebert, of assault, and the
trial court sentenced him to six months, which was suspended and ordered to be served on
probation. On appeal, the defendant contends that (1) the trial court erred in failing to charge
the jury in accordance with Tennessee Pattern Jury Instruction – Criminal No. 42.23 (Duty
to Preserve Evidence); and (2) that the evidence was insufficient to support his conviction.
Following the denial of the motion for new trial, the defendant filed a petition for writ of
error coram nobis, which was heard and denied. This court consolidated the appeal of the
denial of his petition with the original appeal as of right in this cause. Upon review, we
affirm the judgment of the trial court.

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

J. R OBERT C ARTER, J R., S P. J., delivered the opinion of the court, in which N ORMA M CG EE
O GLE and R OGER A. P AGE, JJ., joined.

David A. Collins (on appeal) and Jeffrey Thomas Daigle (at trial), Nashville, Tennessee, for
the appellant, Craig Patrick Hebert.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel;
Victor S. Johnson, III, District Attorney General; and Brian Ewald, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                          OPINION
                              I. FACTUAL BACKGROUND

       The defendant was indicted for a single count of aggravated assault arising out of an
incident at Southern Thrift Store in Nashville, Tennessee on March 14, 2011.

        At trial, the victim, Sandra Dodson, testified that she was the assistant manager at the
store on the day in question. Ms. Dodson testified that store policy dictated that the doors
be locked at closing time, which in this case was 6:30 p.m. She further testified that the
defendant entered the store at closing time or shortly thereafter. Another store employee,
Tyrese Buggs, told the defendant that the store was closed, to which the defendant responded,
“not by my clock.” After being repeatedly told that the store was closed, the defendant
became angry and demanded that the employees call their district manager. Ms. Dodson
testified that while she was on the telephone with her district manager, the defendant began
circling her, cursing her, and threatening to sue the store. Upon a recommendation from her
manager, she activated a silent alarm that summoned the police.

        Ms. Dodson described feeling threatened by the defendant as a result of his continued
yelling and cursing. The defendant left the store but returned and threatened Mr. Buggs with
violence. After finally leaving the store, the defendant got into a pick-up truck to leave. Ms.
Dodson testified that she went to the parking lot and attempted to write down the license
number of the vehicle. She testified that at this time, the defendant told her that he would
run over her if she attempted to obtain the tag number. The defendant began backing his
truck toward Ms. Dodson, and she had to run out into a lane of traffic to avoid being struck
by the defendant’s truck. Ms. Dodson testified that she was scared because she was almost
hit by a car traveling down the road.

       Ms. Dodson testified that the events inside the store were captured by a surveillance
camera but that it did not record sound. The events in the parking lot were not covered in the
security video.

        Tyrese Buggs testified that he was present when the defendant came in the store and
would not leave. Mr. Buggs described the defendant as irate and testified that the defendant
kept trying to goad him into coming into the parking lot to fight. Mr. Buggs observed Ms.
Dodson’s attempt to get the license number from the defendant’s vehicle and witnessed the
defendant backing up toward her in the truck. He testified that Ms. Dodson ran all the way
into traffic in an effort to avoid the defendant’s truck.

      Detective Adam Weeks testified that approximately a week after the incident, he
reviewed the security video with Ms. Dodson. He testified that it contained no sound and
showed only the events inside the store. His understanding was that the offense in question

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occurred in the parking lot. He spoke with the defendant at some point, who described being
upset as a result of what he considered the “early closing” of the store and agreed everything
began to escalate after that initial encounter. Detective Weeks testified that he did not obtain
a copy of the video but thought that the store retained a copy. Following the testimony of
Detective Weeks, the State rested.

       The defendant testified that he arrived at the store and was told that it was closed. He
agreed that there was an argument that escalated into shouting. The defendant testified that
he left the store and that Ms. Dodson followed him out and went toward the rear of his
vehicle. He denied that she was ever directly behind his truck or that he in any way forced
her into the road. He generally disagreed with the accounts given by Mr. Buggs and Ms.
Dodson.

       The jury convicted the defendant of the lesser-included offense of misdemeanor
assault, and the trial court sentenced the defendant to a six-month suspended sentence. This
appeal followed.

        In June 2012, new counsel was appointed to represent the defendant in his direct
appeal. During the pendency of the direct appeal, counsel filed a petition for a writ of error
coram nobis, alleging that following the defendant’s trial, he learned that the foreman of the
grand jury that issued the indictment against the defendant was a convicted felon, violating
the defendant’s constitutional right to a “qualified and lawful grand jury.” The trial court
denied the petition, and the appeal of that denial was consolidated with the direct appeal from
the trial.

        On appeal, the defendant contends that (1) “the evidence was insufficient to support
his conviction,” (2) “the trial court committed reversible error in failing to charge the jury
pursuant to Tennessee Pattern Jury Instruction 42.23,” and (3) “that the trial court erred in
failing to grant the petition for writ of error coram nobis.”

                                       II. ANALYSIS

                        A. SUFFICIENCY OF THE EVIDENCE

       The defendant contends that the evidence is insufficient to support his conviction for
assault because of discrepancies between the testimonies of two of the State’s witnesses, Ms.
Dodson and Mr. Buggs. He maintains that these differences suggest that their testimony was
fabricated. The State argues that the jury’s verdict resolved any conflicts and that the
evidence was sufficient to support a guilty verdict. We agree with the State.



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        When a defendant challenges the sufficiency of the evidence, the standard for review
by an appellate 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). It is well settled that the State is entitled to the strongest legitimate view
of the evidence and all reasonable or legitimate inferences which may be drawn therefrom.
State v. Cabbage,
571 S.W.2d 832, 835
 (Tenn. 1978).

       An assault occurs when one “intentionally or knowingly causes another to reasonably
fear imminent bodily injury.” T.C.A. § 39-13-101 (a)(2). The proof at the trial, viewed in
the light most favorable to the State, showed that when Ms. Dodson went behind the
defendant’s truck to write down his tag number, the defendant began backing his truck
toward her, forcing her to run out into a lane of traffic. Ms. Dodson testified that she was
afraid. Her account was substantiated by the testimony of Mr. Buggs.

       The defendant argues that inconsistencies between these two witnesses were of such
a degree as to negate the testimony. Questions concerning the credibility of witnesses and
the weight and value to be afforded to the evidence, as well as all factual issues raised by the
evidence, are resolved by the trier of fact. State v. Bland,
958 S.W.2d 651, 659
 (Tenn. 1997).
The jury accredited the testimony of the State’s witnesses. This court will not reweigh or
reevaluate the evidence, nor will it substitute its inferences for those drawn by the jury.
Id.
The burden is on the defendant to demonstrate that the evidence was insufficient. The
evidence in this case is clearly sufficient to sustain the defendant’s conviction for assault.

            B. FAILURE TO CHARGE PATTERN INSTRUCTION 42.23

        The defendant claims that the trial court erred in failing to charge Pattern Criminal
Instruction 42.23 which reads as follows:

          T.P.I – CRIM. 42.23 Duty to preserve evidence

                  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.




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                 If, after considering all of the proof, you find that the State failed
          to gather or preserve evidence, the contents or qualities of which are an
          issue and the production of which would more probably than not be of
          benefit to the defendant, you may infer that the absent evidence would be
          favorable to the defendant.

        The defendant asserts that such a charge was required because the proof at trial
established that neither the police nor the store maintained a copy of the security video from
inside the store. The State argues that the issue is waived as a result of the failure of the
defense to request the charge at the trial. Tenn. R. App. P. (36)(b). The defendant urges this
court to review this issue as plain error.

        This court may address an issue as plain error only if each of the five specific factors
are met:

          (1) the record clearly establishes what occurred in the trial court, (2) a
          clear and unequivocal rule of law was breached, (3) a substantial right of
          the accused was adversely affected, (4) the accused did not waive the
          issue for tactical reasons, and (5) consideration of the error is necessary
          to do substantial justice.

State v. Hester,
324 S.W.3d 1, 56
 (Tenn. 2010). The asserted “plain error must have been
of such a great magnitude that it probably changed the outcome of the trial.” State v.
Adkisson,
899 S.W. 2d 626, 642
 (Tenn. Crim. App. 1994).

       The first step in the analysis would be to determine whether or not the State had a duty
to preserve the evidence. Generally, the State should preserve all evidence discoverable
under Tennessee Rule of Criminal Procedure 16. The difficulty in defining what must be
maintained has been recognized by our supreme court and the United States Supreme Court:

              “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 possess both 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.”




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State v. Ferguson
2 S.W.3d 912, 917
 (Tenn. 1999) (quoting California v. Trombetta,
467 U.S. 479, 488-89
 (1984)).

       The trial court found that the recording was not relevant, noting that the camera
recorded only what transpired inside the store and that the offense occurred in the parking
lot. We agree. Accordingly, we conclude that it was not plain error to fail to charge Pattern
Instruction 42.23.

                               C. ERROR CORAM NOBIS

       Finally, we will address the defendant’s challenge to the trial court’s denial of his
petition for writ of error coram nobis. The writ of error coram nobis, which is an
“extraordinary procedural remedy” that fills only a “slight gap into which few cases fall,” is
available to criminal defendants by statute in Tennessee. State v. Mixon,
983 S.W.2d 661, 662
 (Tenn. 1999); T.C.A. § 40-26-101, et seq. It is known more for its denial than its
approval. Mixon,
983 S.W.2d at 666
.

      The defendant complains that the indictment is void on its face because the grand jury
foreman was a convicted felon and thus ineligible to serve on the grand jury. T.C.A. § 22-1-
102. The State responds that the defendant waived the issue by not raising it prior to trial.

        Tennessee Rule of Criminal Procedure 12(b)(2) requires that any objection to a defect
in the indictment must be filed prior to trial but that “at any time while the case is pending,
the court may hear a claim that the indictment, presentment, or information fails to show
jurisdiction in the court or to charge an offense.” See also State v. Lopez,
440 S.W.3d 601, 610
 (Tenn. Crim. App. 2014). The constitutional requirements of an indictment are: (1) to
give notice to the accused of the offense charged, (2) to provide the court with an adequate
ground upon which a proper judgment may be entered; and (3) to provide the defendant with
protection against double jeopardy. State v. Lindsey,
208 S.W.3d 432, 438
 (Tenn. Crim.
App. 2006).

        The defendant does not contend that the indictment failed to provide notice, charge
an offense, or protect him from double jeopardy. Lopez,
440 S.W.3d at 610
. Instead, he
questions whether the indictment, which was signed by a person who was statutorily
ineligible to serve as grand jury foreperson, was “‘so defective as to deprive the court of
jurisdiction.’” Kenneth DeWayne Johnson v. State, No. M2013-02491-CCA-R3-PC,
2014 WL 3696268
, at *3 (Tenn. Crim. App. at Nashville, July 24, 2014) (quoting Dykes v.
Compton,
978 S.W.2d 528, 529
 (Tenn. 1998)). This court has recently examined this issue
and held that “[t]he status of the grand jury foreman as a convicted felon does not relate to
the power of the court to hear and decide a case.” Lopez,
440 S.W.3d at 610
; see Johnson,

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No. M2013-02491-CCA-R3-PC,
2014 WL 3696268
, at *3. Based upon the foregoing, the
defendant has failed to establish that the court was without jurisdiction to hear the case.
Lopez,
440 S.W.3d at 610
. Therefore, he waived his challenge to the grand jury foreman by
failing to raise the issue prior to trial.
Id.

       Moreover, “the historic doctrine of aider by verdict stands for the proposition that any
defects in the indictment are cured if the jury reaches a verdict.”
Id.
 The jury in the instant
case heard the evidence and returned a verdict, thereby curing any defects in the indictment.
Lopez,
440 S.W.3d at 610
. Thus, the trial court properly denied the petition for writ of error
coram nobis.

                                    III. CONCLUSION

        After a review of the record and the applicable law, we affirm the judgment of the
trial court.


                                           ______________________________________
                                           J. ROBERT CARTER, JR., SPECIAL JUDGE




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