State of Tennessee v. Kevin Todd Parton

07/08/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
May 29, 2019 Session

STATE OF TENNESSEE v. KEVIN TODD PARTON

Appeal from the Criminal Court for Knox County
No. 109592 G. Scott Green, Judge
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No. E2018-01209-CCA-R3-CD
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A jury convicted the Defendant, Kevin Todd Parton, of driving with a blood alcohol
content of 0.08 percent or more (“DUI per se”) and driving under the influence of an
intoxicant (“DUI”). The trial court merged the convictions and sentenced the Defendant
to eleven months and twenty-nine days, with ten days to be served in confinement. The
Defendant appeals, asserting that the trial court erred in denying a motion for a mistrial,
that the trial court erred in admitting the results of the blood alcohol test, and that the
arrest warrant was defective. After a thorough review of the record, we affirm the
judgments of the trial court.

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

JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and ROBERT L. HOLLOWAY, JR., JJ., joined.

Marcos Garza (at trial) and Keith Lowe (at trial and on appeal), Knoxville, Tennessee, for
the appellant, Kevin Todd Parton.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior
Assistant Attorney General; Charme P. Allen, District Attorney General; and Joseph
Welker and Miriam Johnson, Assistant District Attorneys General, for the appellee, State
of Tennessee.
 OPINION

FACTUAL AND PROCEDURAL HISTORY

The Defendant was stopped after law enforcement observed him driving
erratically in the early morning hours of October 11, 2015. After performing poorly on
field sobriety tests, he was arrested and consented to a blood draw, and testing revealed a
blood alcohol content of 0.183 percent.

On October 11, 2015, a magistrate issued three arrest warrants for the Defendant,
charging him with DUI, a roadway lane violation, and failure to provide evidence of
compliance with the financial responsibility law. The sworn affidavit signed by Officer
Nina Hummel and attached to the warrant for DUI recited the circumstances of the
offense as allegedly committed by the Defendant. However, the sworn affidavits
attached to the other two arrest warrants included no facts supporting the charged
offenses; instead, those affidavits contained only facts regarding an unrelated domestic
altercation occurring on the same night and involving a defendant whose last name was
“Barton.” The parties noted at trial that the State acknowledged these arrest warrants
were defective and that it had dismissed the accompanying charges prior to the grand jury
proceedings. The Defendant was bound over on July 18, 2016, and he was subsequently
indicted on December 13, 2016, for one count of DUI per se and one count of DUI.

The Defendant filed a “Motion to Dismiss Pursuant to T.C.A. 40-2-102,” alleging
that the State had failed to commence proceedings within the statute of limitations
because the defects in the arrest warrants for the dismissed charges rendered the
remaining arrest warrant for DUI likewise void and because the indictment was not
returned prior to the expiration of the limitations period. The motion was heard on two
separate dates, and the parties agreed to stipulate regarding what the magistrate’s
testimony would have been about the circumstances surrounding the signing of the arrest
warrants. The hearings are not a part of the record on appeal. An undated stipulation
was filed in the record after the hearings and after the trial court’s ruling, and the
stipulation reflected that the magistrate did not recall signing the arrest warrants, that he
believed incorrect affidavits were attached to two of the arrest warrants by mistake, and
that he would normally read the narrative “carefully” for the principal charge — in this
case the DUI — and then “move[] on to ‘ancillary’ charges.”

The trial court found that the arrest warrant was at most voidable due to the
defects in the other arrest warrants contemporaneously signed by the magistrate. Because
it found that the arrest warrant was facially valid at the time the indictment was returned
and that the Defendant was before the court “as a consequence of the action” of the grand
jury, the trial court denied the motion to dismiss.
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 The Defendant does not challenge the sufficiency of the evidence, and we give a
brief summary of the facts presented at trial as pertinent to the issues on appeal. Officer
Hummel testified that on October 11, 2015, soon after midnight, she observed the
Defendant’s car driving outside its lane, coming to a complete stop at a green light,
veering off the roadway, and driving with the tires rubbing against the curb. Officer
Hummel stopped the Defendant, who smelled of alcohol, acknowledged that he had been
drinking, and failed a field sobriety test. Officer Hummel found two open cans of beer
under the driver’s seat of the vehicle. A video of the stop was introduced into evidence.

Officer Hummel arrested the Defendant, and he consented to have his blood
drawn. The Defendant waited while another man, who had likewise been arrested for
DUI by Officer Hummel and her partner, was having his blood drawn. Officer Hummel
testified that she observed the phlebotomist draw the Defendant’s blood and place it into
a vial and kit. Officer Hummel sealed the kit and placed it into the “evidence box for
blood collection” at the Knox County Detention Facility. The video of the Defendant’s
arrest introduced into evidence largely shows the Defendant’s blood being drawn,
packaged, and sealed, and it shows Officer Hummel initialing the sealed box.

During a jury-out hearing, the trial court ruled that the Defendant could cross-
examine Officer Hummel regarding the mistaken affidavits attached to the dismissed
charges to demonstrate that her paperwork may have been prone to mistakes. The
affidavits were introduced into evidence and read into the record. Officer Hummel
acknowledged that she had sworn under oath that the Defendant had failed to maintain
his lane or provide proof of insurance and that the facts alleged in the affidavits did not
support the charged offenses.

Special Agent Melanie Carlisle of the Tennessee Bureau of Investigation (“TBI”)
testified that the TBI typically receives blood kits either by mail or through a drop box in
the evidence receiving unit. She stated that the drop box is secure and that according to
TBI procedure, a forensic technician would retrieve the evidence and place it into a
refrigerator. The forensic technician would also open the evidence, inventory it, label it,
and assign it a lab number. The defense objected to the chain of custody because Special
Agent Carlisle’s testimony and a chain of custody report indicated that the blood sample
had been handled and assigned a laboratory number by a forensic technician who was not
testifying at trial. The trial court overruled the objection.

Special Agent Carlisle testified that she received two tubes of blood which were
labeled with the Defendant’s name, the Defendant’s birthdate, the time of collection, and
the “phlebotomist I.D.” The tubes of blood were also labeled with a barcode. Special
Agent Carlisle noted that the factory labels on the tubes could not be removed, but she
could not say what adhesive was used on hospital labels. There was no testimony
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regarding what sort of label held the identifying information. She received the tubes of
blood with the submittal form completed by Officer Hummel and would have noted any
“discrepancies between the two, anything like that.” The prosecutor did not specifically
ask Special Agent Carlisle whether the box was sealed when it was received by the TBI,
but she identified the toxicology request form signed by Officer Hummel and stated it
was “located inside the sealed kit.” Her analysis showed that the blood had an alcohol
content of 0.183 percent.

Special Agent Carlisle acknowledged that she would have no way of knowing if
the person who collected the samples had inadvertently switched the Defendant’s blood
with that of another defendant in a different DUI case. She did not notice any obvious
errors made either by Officer Hummel or the forensic technician. She acknowledged that
there had been an instance in which the TBI’s Nashville office had reported a blood
alcohol content of 0.24 in a case where the actual content was 0.01.

The prosecutor asked on direct examination if Special Agent Carlisle had ever
received a request for independent testing of the blood, but defense counsel objected,
arguing that even if the blood were available, the prosecutor’s question would
impermissibly shift the burden of proof. The trial court ruled that the question was not
relevant and stated in front of the jury, “Strike that last question. Move along.” The
defense subsequently moved for a mistrial. The trial court denied the motion, observing
that it had excluded the testimony and further noting that it would have permitted the
question on redirect because the Defendant’s cross-examination, implying that the TBI’s
analysis was faulty, had made the testimony admissible.

Both the Defendant and Mr. Brian Carl testified that the Defendant drank
approximately four beers between the mid-afternoon and midnight while they watched
sports at Mr. Carl’s home and at a brewery. Both testified that, shortly before his arrest,
the Defendant had undergone knee surgery which would have affected his performance
on the field sobriety tests. The Defendant weighed 223 pounds, did not feel impaired,
and was “floored” when he saw the results of the TBI’s testing. He explained that his
erratic driving was due to his attempt to adjust the radio.

The jury convicted the Defendant as charged. The trial court merged the DUI per
se conviction into the DUI conviction and imposed a sentence of eleven months and
twenty-nine days, with ten days of periodic confinement to be scheduled around the
Defendant’s work obligations and the remaining time to be served on unsupervised
probation. The trial court denied the Defendant’s motion for a new trial challenging the
trial court’s refusal to grant a mistrial, its admission of the blood evidence, and its denial
of his motion to dismiss based on the statute of limitations, and the Defendant appeals.

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 ANALYSIS

I. Mistrial

The Defendant argues that it was improper for the prosecutor to ask Special Agent
Carlisle whether the Defendant had requested independent testing of the blood and that
the trial court erred when it denied his subsequent motion for a mistrial. We conclude
that the trial court did not abuse its discretion in denying a mistrial.

“The purpose of declaring a mistrial is to correct damage done to the judicial
process when some event has occurred which precludes an impartial verdict.” State v.
Welcome, 280 S.W.3d 215, 222 (Tenn. Crim. App. 2007). A mistrial should be declared
only upon a showing of manifest necessity, that is, when a miscarriage of justice would
result if the trial were to continue. State v. Banks, 271 S.W.3d 90, 137 (Tenn. 2008). The
appellant bears the burden of establishing manifest necessity. State v. Williams, 929
S.W.2d 385, 388 (Tenn. Crim. App. 1996). In evaluating whether the trial court abused
its discretion, the appellate court may consider: “(1) whether the State elicited the
testimony, (2) whether the trial court gave a curative instruction, and (3) the relative
strength or weakness of the State’s proof.” Welcome, 280 S.W.3d at 222. The decision
to grant a mistrial lies within the sound discretion of the trial court. State v. Saylor, 117
S.W.3d 239, 250 (Tenn. 2003).

The Defendant cites to State v. Gregg, 874 S.W.2d 643, 645 (Tenn. Crim. App.
1993), and State v. Kelly A. Hancock, No. 01C01-9804-CC-00191, 1999 WL 298219, at
*8 (Tenn. Crim. App. May 12, 1999), for the proposition that the question regarding the
independent testing of the blood was improper because it was an attempt to shift the
burden of proof to the Defendant and to create a “negative inference.” In both Gregg and
Kelly A. Hancock, the defendant was questioned regarding steps taken to obtain
independent testing of the defendant’s blood, and in both cases, this court found the
questioning improper. Gregg, 874 S.W.2d at 645; Kelly A. Hancock, 1999 WL 298219 at
*8.

Here, the prosecutor attempted to ask Special Agent Carlisle whether she had
received a request for independent testing of the Defendant’s blood. As the State
concedes on appeal, under Gregg and Kelly A. Hancock, this question was improper, as
its only purpose was to create the inference that the Defendant should have attempted to
prove the alcohol content of his blood and that his failure to do so indicated that he
believed the testing would be unfavorable to him. However, defense counsel promptly
objected to the question, prior to any answer. The trial court correctly concluded that the
testimony would not be admissible and stated before the jury that the question would be
struck. Accordingly, no improper evidence was admitted; curative action was taken; and
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the State’s proof, including the blood alcohol test, was strong. See Welcome, 280 S.W.3d
at 222; see also State v. Young, 196 S.W.3d 85, 111 (Tenn. 2006) (“The jury is presumed
to follow its instructions.”); Gregg, 874 S.W.2d 643, 645 (concluding that the error in
admitting the testimony about the defendant’s independent testing was harmless because
the jury was aware of the existence of a second vial of blood and because the State’s
proof was otherwise strong). We conclude that this isolated question posed by the
prosecutor, which the trial court ordered to be struck from the record, did not preclude the
jury from forming an impartial verdict and that the trial court did not abuse its discretion
in denying the mistrial.

II. Chain of Custody

The Defendant also challenges the admission of the blood evidence based on the
State’s failure to establish a proper chain of custody for the evidence. The Defendant
urges us to find this case similar to State v. John Palladin Gibson, No. E2017-01567-
CCA-R3-CD, 2018 WL 4811086, at *5-8 (Tenn. Crim. App. Oct. 3, 2018), no perm. app.
filed, in which this court concluded that the chain of custody of blood evidence was not
properly established. The State, on the other hand, cites to three cases which it contends
are analogous and in which this court concluded that the chain of custody was sufficiently
established. See State v. Pascasio Martinez, No. E2016-01401-CCA-R3-CD, 2017 WL
5613976, at *3 (Tenn. Crim. App. Nov. 21, 2017), perm. app. denied (Tenn. Mar. 15,
2018); State v. Earnest Laning, No. E2011-01882-CCA-R3-CD, 2012 WL 3158782, at
*2 (Tenn. Crim. App. Aug. 6, 2012); State v. Michael Joseph Arbuckle, No. M2000-
02885-CCA-R3-CD, 2001 WL 1545494, at *3 (Tenn. Crim. App. Dec. 5, 2001).

Tennessee Rule of Evidence 901 requires that physical evidence be authenticated
prior to its admission, and authentication requires evidence sufficient “to support a
finding by the trier of fact that the matter in question is what its proponent claims.”
Tenn. R. Evid. 901(a). “[I]t is ‘well-established that as a condition precedent to the
introduction of tangible evidence, a witness must be able to identify the evidence or
establish an unbroken chain of custody.’” State v. Cannon, 254 S.W.3d 287, 296 (Tenn.
2008) (quoting State v. Scott, 33 S.W.3d 746, 760 (Tenn. 2000)). Evidence should not be
admitted if its identity and integrity cannot be demonstrated by chain of custody or other
appropriate means. Scott, 33 S.W.3d at 760. This requirement is meant to preclude the
possibility that the evidence has been subject to tampering, substitution, or mistake.
Cannon, 254 S.W.3d at 296. The rule requires that each link in the chain be sufficiently
established, but “[a]n item is not necessarily precluded from admission as evidence if the
State fails to call all of the witnesses who handled the item.” Id. The State is not
required to prove the identity of the evidence beyond all possible doubt or to exclude
every possibility of tampering. Id. Instead, it must “reasonably establish the identity and
integrity of the evidence.” Id. If the State does not offer sufficient proof of the chain of
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custody of the item, it is not admissible unless its identity and integrity are demonstrated
by other appropriate means. Id. (citing Scott, 33 S.W.3d at 760). This court reviews the
trial court’s ruling regarding whether the chain of custody had been sufficiently
established for abuse of discretion. Id. at 295. A trial court abuses its discretion when it
applies an incorrect legal standard or reaches a decision which is against logic or
reasoning and which causes an injustice to the complaining party. Id.

Evidence has been ruled inadmissible when every link in the chain of custody was
not established and there was an indication that the evidence had been altered or had been
compromised. See id. at 298 (there was contradictory proof regarding whether and how
the evidence was recovered from the victim); Scott, 33 S.W.3d at 760-61 (the evidence
had been mounted on slides and there was no testimony explaining this alteration in the
condition of the evidence); State v. Reginald Bernard Coffee, No. M2016-01834-CCA-
R3-CD, 2017 WL 3836023, at *14 (Tenn. Crim. App. Aug. 31, 2017), perm. app. denied
(Tenn. Jan. 17, 2018) (the State did not introduce proof that the envelope, which had been
opened multiple times and passed through the hands of multiple unidentified individuals,
was sealed when received by the forensic analyst).

Likewise, this court has excluded evidence when a link in the chain of custody did
not testify and the State did not present testimony regarding normal procedures that
would have been employed to ensure the integrity of the evidence. John Palladin
Gibson, 2018 WL 4811086, at *8; Reginald Bernard Coffee, 2017 WL 3836023, at *15;
State v. Michael R. Anderson, No. M2008-01230-CCA-R3-CD, 2009 WL 856903, at *4-
5 (Tenn. Crim. App. Mar. 31, 2009) (the chain of custody was inadequately established
when the State failed to present evidence regarding when or by whom the blood test was
sealed and failed to present evidence regarding how the kit was labeled or identified to
prevent mistake).

The Defendant asserts that this case is indistinguishable from John Palladin
Gibson, in which a majority of a panel of this court concluded that the State failed to
show a proper chain of custody because of the absence of any evidence regarding “the
conditions in which the evidence was kept between [law enforcement’s] delivering it to
an unidentified person from the Forensics Department and the TBI Laboratory’s receipt
of it from the Sheriff’s Department.” John Palladin Gibson, 2018 WL 4811086, at *7.
In John Palladin Gibson, the defendant’s blood was collected in the presence of an
officer who sealed the evidence and gave it to the Knox County Sheriff’s Department
Forensic Department. Id. at *6. The TBI laboratory received the evidence six days later
in a sealed kit, and the chain of custody was established from that point forward. Id.
Distinguishing cases in which the chain of custody was found to have been established,
this court concluded that the absence of evidence regarding the “usual procedures for

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storing, securing, and transporting evidence” from the Sheriff’s Department to the TBI
was fatal. Id. at *8.

John Palladin Gibson relied in part on Reginald Bernard Coffee, in which this
court likewise concluded that the chain of custody had not been properly established
because not every “link” in the chain testified and the State failed to introduce evidence
regarding standard procedures for storing the evidence. 2017 WL 3836023, at *15. The
court in Reginald Bernard Coffee found the lack of testimony establishing the standard
procedures for storing the evidence determinative. Id. Although the court stated that
there was no evidence of tampering, it also cited to the fact that there was no testimony
regarding the identities or positions of at least two people who handled and signed the
evidence, that there was no testimony regarding the whereabouts of the evidence between
its collection and its analysis, that there was no testimony that the evidence was sealed
when the forensic scientist received it, and that the envelope containing the evidence had
been taped and opened multiple times. Id. at *14 (concluding the error in admitting the
evidence was harmless because other evidence supported the conviction).

The dissent in John Palladin Gibson argued that the chain of custody was
sufficiently established and distinguished Reginald Bernard Coffee on the basis that there
was reason to doubt the integrity of the evidence in Reginald Bernard Coffee, as the
envelope containing the evidence had been opened multiple times and the evidence had
passed through the hands of multiple witnesses who could not be identified. 2018 WL
4811086, at *11-12 (Easter, J., dissenting); see Michael Joseph Arbuckle, 2001 WL
1545494, at *3 (the evidence was admissible when there was no testimony regarding the
evidence between the time it was left in an “evidence locker” and its analysis at the TBI
but there was no indication of tampering, loss, substitution, mistake, or other
irregularities, and the defendant’s challenge was to the lack of testimony from the TBI
forensic technician and phlebotomist).

Other cases have concluded that the chain of custody was adequately established
when the State did not present testimony from every link in the chain but when there was
testimony that the evidence was kept in a secure manner and that there was no indication
of tampering. See, e.g. State v. Randy Timothy Jones, No. M2017-00769-CCA-R3-CD,
2018 WL 1182573, at *5-6 (Tenn. Crim. App. Mar. 7, 2018) (the chain of custody was
sufficiently established by the trooper’s testimony that he witnessed the collection of the
blood, labeled and sealed it, put it into a locked evidence drop box, and the agent’s
testimony that the forensic technician received the box and that it was sealed and gave no
indication of tampering), no perm. app. filed; State v. Kevin Allen Fleming, No. E2016-
01746-CCA-R3-CD, 2018 WL 1433503, at *15-17 (Tenn. Crim. App. Mar. 22, 2018),
perm. app. denied (Tenn. July 18, 2018) (the chain of custody was adequately established
when the trooper observed the collection of the blood, sealed the kit, and took it to a
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secure evidence locker, and when the TBI agent testified regarding the integrity of the
evidence once it was placed into the TBI drop box); State v. Jaquan Gathing and Prince
Parker, No. W2016-02076-CCA-R3-CD, 2018 WL 486001, at *8 (Tenn. Crim. App. Jan.
19, 2018), perm. app. denied (Tenn. May 17, 2018) (“[T]he chain of custody may be
adequately established without the testimony of the receiving TBI technician where other
testimony demonstrates that proper procedure was followed and there was no indication
that tampering had occurred.”); Pascasio Martinez, 2017 WL 5613976, at *3 (testimony
that the evidence was stored and received in a secured manner, that a notation would have
been made of any tampering, and that the samples appeared undisturbed was sufficient);
State v. Zacheriah Holden, No. M2010-00811-CCA-R3-CD, 2013 WL 871326, at *22-23
(Tenn. Crim. App. Mar. 8, 2013) (the chain of custody was established by an agent
testifying regarding the procedures for receiving evidence at the TBI although the
forensic technician did not testify); Earnest Laning, 2012 WL 3158782, at *3 (the chain
of custody was established by testimony regarding the collection of the blood, the fact
that it was sealed in a box which would have made any tampering evident, its storage in a
secure location, and its receipt by the TBI in a condition which indicated no alteration or
tampering); State v. Willie R. Dyer, No. M2007-02397-CCA-R3-CD, 2008 WL 4949266,
at *3-4 (Tenn. Crim. App. Nov. 19, 2008) (testimony regarding security of police
department’s evidence locker and the TBI’s procedures for receiving evidence
established the integrity of the evidence even without the testimony of the evidence
custodian and forensic technician).

Here, Officer Hummel testified that she watched the phlebotomist draw the
Defendant’s blood and place it into a kit. She sealed the kit into a box and put the box
into the “evidence box for blood collection” at the Knox County Detention Facility.

Special Agent Carlisle testified that the Defendant’s blood was received through a
secure drop box. She stated that under TBI procedure, a forensic technician would
retrieve the blood evidence, refrigerate it, and later open the sealed box to inventory the
contents, assign a laboratory number, affix a barcode, and destroy the box. The evidence
would then be refrigerated until Special Agent Carlisle was ready to analyze it. Over the
Defendant’s objection, the trial court permitted an internal chain of custody report to be
entered into evidence.

Special Agent Carlisle testified that she received the tubes of blood with the
submittal form and would note any “discrepancies between the two, anything like that.”
While she was not asked whether the box was sealed when it arrived, she identified the
toxicology request form signed by Officer Hummel and stated it was “located inside the
sealed kit.” The tubes were labeled with a barcode containing the laboratory number and
also labeled with the Defendant’s name and birthdate. She testified that the factory labels
were attached with an adhesive and could not be removed intact, but she could not speak
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to hospital labels. She did not testify which label contained the identifying information.
The defense asked Special Agent Carlisle multiple times about the possibility that Officer
Hummel could have switched the samples while conducting two blood draws, and
Special Agent Carlisle confirmed that she could not testify to the integrity of the sample
prior to its receipt by the TBI. See Kevin Allen Fleming, 2018 WL 1433503, at *17
(noting that the fact that blood was also drawn from passengers in the defendant’s vehicle
“does not call into question the authenticity of the Defendant’s blood evidence” when the
chain of custody was otherwise established). She also confirmed that she was not present
when the evidence was received and processed by the forensic technician. She testified
that any mistakes made by either Officer Hummel or the forensic technician were “not
obvious to [her] when [she] received the sample.”

Accordingly, as in John Palladin Gibson, the State did not offer testimony
regarding the handling of the evidence or regarding the normal procedures for handling
evidence between the time Officer Hummel delivered it to the evidence box at the Knox
County Detention Facility and its receipt by the TBI. Nevertheless, we agree with the
reasoning of the dissent in John Palladin Gibson and conclude that the remaining
testimony scantly but sufficiently established the identity and integrity of the evidence.
According to Officer Hummel and the video evidence, the Defendant’s blood was
collected and sealed so that any tampering would be evident. Special Agent Carlisle’s
testimony established that it was received by TBI inside “the sealed kit,” that the tubes
themselves were labeled with the Defendant’s name and birthdate, and that she did not
note any irregularities with the evidence when she received it. While it certainly would
have been better practice for the State to make each link in the chain of custody explicit,
we conclude that the testimony that the evidence was sealed after it was collected, the
video showing that it was sealed, and the testimony that it was received in a “sealed kit”
with no indication that it had been handled or stored improperly “reasonably establish[ed]
the identity and integrity of the evidence.” Cannon, 254 S.W.3d at 296. While we
caution the State that it must introduce proof sufficient to establish the integrity of the
evidence, we cannot say that the trial court abused its discretion in admitting the blood
test.

III. Validity of the Arrest Warrant

The Defendant contends that the entire proceedings against him are void because
the circumstances of the issuance of the arrest warrant indicate that the magistrate was
acting as a rubber stamp. The State argues that the Defendant has waived this issue by
failing to include a transcript from the hearing on his motion to dismiss but that the trial
court in any case correctly concluded that the valid indictment cured any defect in the
arrest warrant. But see State v. David Allen Jackson, No. E2015-02033-CCA-R9-CD,
2016 WL 4158168, at *8 (Tenn. Crim. App. Aug. 5, 2016) (concluding that an indictment
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filed after the limitations period does not cure the defects in a flawed warrant). The trial
court denied the motion to dismiss, finding that the arrest warrant was facially valid and
at most voidable.

The Defendant argued in his motion to dismiss that he was not indicted until more
than a year after his misdemeanor offense, that the arrest warrant issued the day of the
offenses was void, and his prosecution was therefore not timely commenced. The record
reflects that the motion was heard on two separate days, that the parties disputed whether
the magistrate could be compelled to testify, and that the parties agreed to ask the
magistrate questions and to stipulate the answers. The trial court’s written order did not
reference the stipulation, which was undated and filed in the record after the denial of the
motion. The court found that there were no disputed facts before it, and it denied the
motion to dismiss based on the fact that, while the other arrest warrants in the case had
been dismissed, the arrest warrant at issue was facially valid and at most voidable. The
trial court found that the arrest warrant was not void, had not been challenged prior to the
indictment, and that the proceedings were the result of a valid indictment. The State
asserts that failure to include the transcripts amounts to waiver.

The appellant has the duty to “have prepared a transcript of such part of the
evidence or proceedings as is necessary to convey a fair, accurate and complete account
of what transpired with respect to those issues that are the bases of appeal.” Tenn. R.
App. P. 24(b). In the absence of an adequate record, we presume that the trial court’s
judgments were correct. State v. Richardson, 875 S.W.2d 671, 674 (Tenn. Crim. App.
1993).

Although the Defendant stated at oral argument that no proof was introduced at
the hearings, we nevertheless observe that the hearings are pertinent to our review.
Parties are bound on appeal by the issues as they were presented to the lower courts.
State v. Howard, 504 S.W.3d 260, 277 (Tenn. 2016) (“It is well-settled that a defendant
may not advocate a different or novel position on appeal.”); State v. Johnson, 970 S.W.2d
500, 508 (Tenn. Crim. App. 1996) (“Issues raised for the first time on appeal are
considered waived.”). Furthermore, even when no factual evidence is presented at a
hearing, parties may be bound by the arguments advanced and any concessions made at
the hearing by their counsel. See State v. Cecil Glen Dobbs, Jr., No. E2017-00437-CCA-
R3-CD, 2017 WL 5952932, at *2 (Tenn. Crim. App. Nov. 30, 2017); State v. Jason L.
Holley, No. M2003-01429-CCA-R3-CD, 2005 WL 2874659, at *3-4 (Tenn. Crim. App.
Oct. 25, 2005). We conclude that the transcripts are necessary for review, and we
presume the trial court’s judgments are correct in their absence. See Richardson, 875
S.W.2d at 674.

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 Nevertheless, aside from any waiver, the record before us clearly demonstrates
that the State timely commenced prosecution and that the Defendant’s motion to dismiss
was properly denied. The prosecution of the misdemeanor at issue must be commenced
within twelve months after the commission of the offense. T.C.A. § 40-2-102(a)
(mandating that prosecutions for misdemeanors, with certain exceptions, be commenced
within twelve months of the offense); see T.C.A. §§ 55-10-401, -402(a)(1)(A) (2015)
(first offense DUI is punishable by no more than eleven months and twenty-nine days in
confinement); T.C.A. § 39-11-110 (offenses punishable by less than one year of
confinement are misdemeanors). Prosecution may be commenced by:

finding an indictment or presentment, the issuing of a warrant, the issuing
of a juvenile petition alleging a delinquent act, binding over the offender,
by the filing of an information as provided for in chapter 3 of this title, or
by making an appearance in person or through counsel in general sessions
or any municipal court for the purpose of continuing the matter or any other
appearance in either court for any purpose involving the offense….

T.C.A. § 40-2-104.

The record indicates that the Defendant was bound over to the grand jury on the
DUI charges on July 18, 2016, within one year of the offense. At oral argument, the
Defendant, citing State v. Ferrante, argued that the timely bind-over did not act to
commence proceedings but was instead a proceeding emanating from a void warrant and
accordingly, itself invalid. See State v. Ferrante, 269 S.W.3d 908, 915 (Tenn. 2008)
(citing State v. Wilson, 6 S.W.3d 504, 507 (Tenn. Crim. App. 1998) for the proposition
that a void warrant invalidates all subsequent proceedings emanating from it). The State
countered that the arrest warrant was only voidable.

In Ferrante, the defendant had been arrested for DUI and the affidavit of
complaint was void ab initio because the signatory was incapable of making a
determination regarding probable cause. Ferrante, 269 S.W.3d at 913. The Tennessee
Supreme Court ruled that the defendant’s numerous appearances before the court did not
serve to commence prosecution because they were not in response to an offense with
which he had been validly charged. Id. at 915. However, Ferrante addressed only
commencement of prosecution by personal appearance, not binding over after a
determination of probable cause. See Tenn. R. Crim. P. 5.1(b).

Directly on point is State v. McCloud, in which this court rejected the defendant’s
argument that a defective arrest warrant acted to void the subsequent timely bind-over.
310 S.W.3d 851, 860-61 (Tenn. Crim. App. 2009). In McCloud, we noted that “[t]he
defendant’s argument overlooks entirely the probable cause finding of the general
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sessions court, which occurred within the statute of limitations period.” Id. at 860; see
Tenn. R. Crim. P. 5.1(b) (“When the magistrate at a preliminary hearing determines from
the evidence that an offense has been committed and there is probable cause to believe
that the defendant committed it, the magistrate shall bind the defendant over to the grand
jury.…”). The opinion distinguished Ferrante because in McCloud, “there was a judicial
finding of probable cause and a statutorily sufficient commencement of the prosecution”
within the limitations period through the binding over of the defendant. McCloud, 310
S.W.3d at 861; see State v. Stephen James Thompson, No. M2009-02122-CCA-R3-CD,
2010 WL 3489162, at *3 (Tenn. Crim. App. Aug. 25, 2010) (the State timely commenced
prosecution by binding the defendant over to the grand jury prior to the limitations period
even though no valid arrest warrant issued).

Accordingly, even if we were to conclude that the argument is not waived for
failure to include the transcripts, the record clearly establishes that prosecution was
timely commenced by binding the Defendant over within twelve months of the offense.
The Defendant is not entitled to relief.

CONCLUSION

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

____________________________________________
JOHN EVERETT WILLIAMS, PRESIDING JUDGE

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