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
___________________________________

No. M2021-00321-CCA-R3-CD
___________________________________

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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