                                                                                      11/09/2018
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE
                             September 19, 2018 Session

       STATE OF TENNESSEE v. KRISTEN L. VAN DE GEJUCHTE

                Appeal from the Criminal Court for Sumner County
                    No. 258-2016       Dee David Gay, Judge
                    ___________________________________

                          No. M2017-01173-CCA-R3-CD
                      ___________________________________


Defendant, Kristen L. Van De Gejuchte, appeals her conviction for driving under the
influence. In her appeal, she contends that the evidence is insufficient to support her
conviction and that the trial court erred by denying her motion to suppress. After a
thorough review of the record and the applicable law, we conclude that the evidence is
sufficient to support her conviction and that the trial court did not err. Therefore, we
affirm the judgments of the trial court but remand for entry of a corrected judgment
document for Count One reflecting its merger with Count Two.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and J. ROSS DYER, J., joined.

Rob McKinney, Nashville, Tennessee, for the appellant, Kristen Lee Van De Gejuchte.

Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant
Attorney General; Lawrence Ray Whitley, District Attorney General; and Sidney Preston,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                      OPINION

                         Factual and Procedural Background

       A Sumner County Grand Jury indicted Defendant for driving under the influence
by impairment in Count One and driving under the influence per se in Count Two. The
following facts were adduced at the bench trial on these charges.
       On October 25, 2015, as John Pszenitzki sat on his deck at the Stoneridge
Apartments at the Hunt Club, he heard tires squeal. He looked toward the source of the
noise and saw a red Jeep Wrangler “half in, half out of a parking spot.” The Jeep
“lurched” forward a few times. Once the Jeep was turned off, Defendant exited the
vehicle and began walking toward the other side of the apartment complex. According to
Mr. Pszenitzki, it appeared as though Defendant fell behind some vehicles. Defendant
got up and began walking again until she fell a second time. At that point, Mr. Pszenitzki
heard the sound of somebody heaving, which Mr. Pszenitzki associated with someone
vomiting. Defendant stood up, walked a short distance, and fell a third time. Defendant
lay on the ground for ten to fifteen seconds before getting up and walking toward a
different red vehicle. As Defendant approached the vehicle, she paused before entering
the driver’s side door.

       When Defendant entered the red vehicle, Mr. Pszenitzki called Officer Jared
Roach of the Gallatin Police Department, his roommate at the time. While on the phone,
Mr. Pszenitzki told Officer Roach about the Defendant’s actions and remained on the
phone with him through the remainder of his observations. Defendant started the red
vehicle, waited five to ten seconds, backed out of the parking spot, and headed out of the
parking lot. Defendant drove through an adjacent parking lot before turning left on a side
road. Mr. Pszenitzki lost sight of the red vehicle as it went behind a building, but he
regained sight of the vehicle as it passed the building and headed toward the main
entrance of the apartment complex. Before getting to the main entrance, Defendant
turned around in another parking lot and drove away from the main entrance, back
toward the area from which she came. At this point, Officer Roach entered through the
main entrance of the apartment complex in his patrol car.

       Officer Roach spotted Defendant’s vehicle as she was turning around to drive
away from the main gate. He identified the vehicle as a “red Mazda M3.” Officer Roach
used an emergency override to enter the main gate and pursued the vehicle. After
catching up to the vehicle, Officer Roach activated his emergency equipment to initiate a
stop of the vehicle. Officer Roach disclosed that he did not personally observe a traffic
violation or public law violation before turning on the blue lights on his police car. As
soon as Defendant stopped, she exited the vehicle. Officer Roach ordered her to reenter
the vehicle for everyone’s safety. Next, Officer Roach began to speak with Defendant,
and Officer Brandon Troutt arrived to assist Officer Roach.

       Upon speaking with Defendant, Officer Roach noticed her eyes were “watery and
bloodshot.” Officer Roach “smelled the odor of an intoxicating beverage emanating from
inside her vehicle as well as her breath when she spoke[.]” He also heard Defendant slur
heavily as she spoke. When Officer Roach asked Defendant to exit the vehicle to
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perform field sobriety tests, she refused. He asked again. She refused. He ordered her to
exit. She refused. Finally, Officers Roach and Troutt forcibly removed Defendant from
the vehicle. Once removed, Defendant stood near the rear of the vehicle. She swayed
and appeared unsteady. She made several “changing and incoherent statements.”
Defendant said she was not drunk and was not driving. She said she was walking, not
driving. According to Defendant, she did not pull over. Rather, she walked over to the
place where she stood. Next, she claimed that she was going to get lasagna from her
garage. Officer Roach asked Defendant to perform field sobriety tests on multiple
occasions, and each time she refused. At this point, Officer Roach placed Defendant
under arrest for driving under the influence and read to her the Tennessee implied consent
law. Officer Roach requested that Defendant submit to a blood test, and Defendant
refused. In response, Officer Roach had Defendant transported to the Sumner County
Jail to be held while he obtained a search warrant for Defendant’s blood. After he
assisted Officer Roach with Defendant, Officer Troutt went with Mr. Pszenitzki and took
pictures of vomit in the location where Mr. Pszenitzki saw Defendant heaving.

        Officer Roach obtained a search warrant and transported Defendant directly to
Sumner Regional Hospital. Defendant’s blood was drawn, and Officer Roach kept the
sample in his custody until it was secured in his vehicle. After returning Defendant to the
jail, Officer Roach completed the remaining paperwork for analysis of the blood sample
and prepared the blood sample to be sent to the Tennessee Bureau of Investigation
(“TBI”).

        At trial, Neil Toll, the evidence technician at the Gallatin Police Department,
testified to the standard procedures for specimens received by his office. Evidence, like
Defendant’s blood sample, is placed in an evidence locker at the police station to which
only the three evidence technicians have a key. With regard to Defendant’s blood
sample, Mr. Toll removed it from an evidence locker at 8:25 a.m. on October 26, 2016,
and logged it into the computer system at 11:51 a.m. From that point, the evidence was
securely stored in a box in Mr. Toll’s office awaiting transport to the TBI laboratory. At
9:59 a.m. on October 29, 2016, Mr. Toll logged Defendant’s sample out of the system
and personally transported it to the TBI laboratory. At the TBI laboratory, Mr. Toll
placed it in the drop box. Agent April Hagar of the TBI crime laboratory tested the blood
sample obtained from Defendant. The test revealed a blood alcohol content of .215
grams percent.

       The nature of the property on which Defendant was operating her vehicle was a
central issue at trial. Mr. Pszenitzki said that the apartment complex has a main gate and
a secondary gate, and Officer Roach recalled that the gates at the apartment complex did
not work very well when they were first installed. The main gate is at the front of the
apartment complex and opens to Nashville Pike. At the main gate, one must proceed
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through an arm and a gate to enter the apartment complex. Residents have a “clicker” to
open the arm and gate, but non-residents must either use a code or call a resident to let
them in. The gate and arm at the main gate work “sometimes.” According to Mr.
Pszenitzki, the gates are usually open on the weekends and sometimes the gates are not
even operational. When the gates did not work, they usually stayed open. In the
afternoon, the main gate would be left open because of the influx of work traffic.
However, Mr. Pszenitzki said that the secondary gate is always closed and may only be
opened with a “clicker.” Officer Roach recalled the complex having problems with
“tailgating” and with residents giving extra “fobs” to guests. On cross-examination,
Officer Roach admitted that the only ways to gain access to the apartment complex were
to trespass, be in law-enforcement, be a resident, or be a resident’s guest.

        At the end of the bench trial, the trial court made an oral ruling. Based on the
above facts, the trial court found, beyond a reasonable doubt, that Defendant was guilty
of both driving under the influence by impairment and driving under the influence per se,
which the trial court merged into a single conviction. In addition to those findings, the
trial court found beyond a reasonable doubt that Defendant’s blood alcohol content was
.20 or above. The trial court gave Defendant a sentence of eleven months and twenty-
nine days at 75% and suspended that sentence except for seven days. Soon after, this
timely appeal followed.

                                           Analysis

                               I. Sufficiency of the Evidence

      Defendant contends that the evidence was insufficient to support her conviction
because the State failed to prove that she was operating her motor vehicle in an apartment
complex frequented by the public at large. The State counters by arguing that Defendant
was properly convicted for driving under the influence because she was driving in an
apartment complex and gated communities are not beyond the reach of Tennessee Code
Annotated section 55-10-401. We agree with the State.

       Well-settled principles guide this Court’s review when a defendant challenges the
sufficiency of the evidence. In a bench trial, the judge is the trier of fact, and “the verdict
of the trial judge is entitled to the same weight on appeal as a jury verdict.” State v.
Farrar, 355 S.W.3d 582, 585 (Tenn. Crim. App. 2011) (quoting State v. Holder, 15
S.W.3d 905, 911 (Tenn. Crim. App. 1999)); see also State v. Hatchett, 560 S.W.2d 627,
630 (Tenn. 1978). A guilty verdict removes the presumption of innocence and replaces it
with a presumption of guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). The
burden is then shifted to the defendant on appeal to demonstrate why the evidence is
insufficient to support the conviction. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.
                                             -4-
1982). The relevant question the reviewing court must answer is whether any rational
trier of fact could have found the accused guilty of every element of the offense beyond a
reasonable doubt. See Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319
(1979). On appeal, “the State is entitled to the strongest legitimate view of the evidence
and to all reasonable and legitimate inferences that may be drawn therefrom.” State v.
Elkins, 102 S.W.3d 578, 581 (Tenn. 2003). As such, this Court is precluded from re-
weighing or reconsidering the evidence when evaluating the convicting proof. State v.
Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d
776, 779 (Tenn. Crim. App. 1990). Moreover, we may not substitute our own
“inferences for those drawn by the trier of fact from circumstantial evidence.” Matthews,
805 S.W.2d at 779. Further, questions concerning the credibility of the witnesses and the
weight and value to be given to evidence, as well as all factual issues raised by such
evidence, are resolved by the trier of fact and not the appellate courts. State v. Pruett,
788 S.W.2d 559, 561 (Tenn. 1990). “The standard of review ‘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 first step of a sufficiency analysis is to “examine the relevant statute(s) in
order to determine the elements that the State must prove to establish the offense.” State
v. Henderson, 531 S.W.3d 687, 691 (Tenn. 2017). Our role in statutory interpretation “is
to assign a statute the full effect of the legislative intent without restricting or expanding
the intended scope of the statute.” State v. Dycus, 456 S.W.3d 918, 924 (Tenn. 2015)
(citing State v. Springer, 406 S.W.3d 526, 533 (Tenn. 2013) and State v. Marshall, 319
S.W.3d 558, 561 (Tenn. 2010)). “[W]e look to the plain language of the statute to
determine the intent of the legislature.” Id. (citing State v. Jennings, 130 S.W.3d 43, 46
(Tenn. 2004)). We do so with the presumption that “every word in the statute has
meaning and purpose and should be given full effect if the obvious intent of the General
Assembly is not violated by so doing.” Marshall, 319 S.W.3d at 561 (quoting Larsen-
Ball v. Ball, 301 S.W.3d 228, 232 (Tenn. 2010)). “When the language of the statute is
clear and unambiguous, ‘the legislative intent shall be derived from the plain and
ordinary meaning of the statutory language.’” Dycus, 531 S.W.3d at 691 (quoting State
v. Wilson, 132 S.W.3d 340, 341 (Tenn. 2004)). If the language of the statute is
ambiguous, we will look at the entire statutory scheme and use the canons of statutory
construction to ascertain the legislative intent. Id.

       As applicable in this case, Tennessee Code Annotated section 55-10-401 states the
following:

       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 or
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       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; [or]

       (2) The alcohol concentration in the person’s blood or breath is eight-
       hundredths of one percent (0.08%) or more[.]

        Defendant’s argument on appeal focuses on an issue of statutory interpretation.
Defendant proposes to this Court that the descriptive phrase “generally frequented by the
public at large” does not only apply to “any other premises.” Rather, Defendant contends
that the descriptive phrase also applies to “apartment house complex.” We disagree with
Defendant’s grammatical gymnastics. The statute is unambiguous. The plain language
of the statute presents an ordinal list of locations where driving under the influence is
prohibited. From the language of the statute, it is obvious that “any of the public roads or
highways of the state,” “any streets or alleys,” “the premises of any shopping center,
trailer park, or apartment house complex,” and “any other premises that is generally
frequented by the public at large” are each separate and distinct locations that are listed
by the legislature as places where driving under the influence is prohibited. To take a
phrase that is describing only one of the items in the ordinal list and apply the restrictive
nature of that descriptive phrase to another separate and distinct item in the list contorts
the plain language of the statute. The phrase “generally frequented by the public at
large,” as used in the statute, does not apply to “apartment house complex.” Thus, the
State need not put on additional proof that an “apartment house complex” is “frequented
by the public at large.”

       Now that the requisite elements have been established, we turn our eyes to the
proof presented at trial. Viewing the evidence in a light most favorable to the State, it is
obvious from the circumstantial evidence that Defendant was impaired by an intoxicant.
She fell down, she vomited, she swayed while standing, she slurred her speech, she
smelled of alcohol, and she spoke irrationally. Nearly all of the telltale signs of
impairment were present. Additionally, forensic analysis revealed that her blood alcohol
content was .215 grams percent at the time that her blood was drawn. While impaired,
Defendant was clearly driving or in physical control of a vehicle on the premises of an
apartment house complex. A rational trier of fact could find beyond a reasonable doubt

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that Defendant was guilty of both driving under the influence by impairment and driving
under the influence per se.

                              II. Motion to Suppress

       Defendant contends that the trial court erred when it denied her motion to suppress
and argues that the stop of her vehicle was constitutionally invalid because Officer Roach
did not have reasonable suspicion that Defendant had committed or was about to commit
a criminal offense. The State responds that Officer Roach had reasonable suspicion to
stop Defendant based on the information about Defendant’s actions that was relayed to
him by Mr. Pszenitzki. We agree with the State.

       Both the Fourth Amendment to the United States Constitution and Article I,
section 7 of the Tennessee Constitution guarantee the right to be free from unreasonable
searches and seizures. See State v. Binette, 33 S.W.3d 215, 218 (Tenn. 2000).
Tennessee’s constitutional protections regarding searches and seizures are identical in
intent and purpose to those in the federal constitution. State v. Turner, 297 S.W.3d 155,
165 (Tenn. 2009).

       When evaluating the constitutionality of warrantless seizures, this Court must
“evaluate the search or seizure under traditional standards of reasonableness” by
balancing an individual’s privacy interests against legitimate governmental interests.
Wyoming v. Houghton, 526 U.S. 295, 300 (1999). “[A] warrantless search or seizure is
presumed unreasonable, and evidence discovered as a result thereof is subject to
suppression unless the State demonstrates that the search or seizure was conducted
pursuant to one of the narrowly defined exceptions to the warrant requirement.” State v.
Yeargan, 958 S.W.2d 626, 630 (Tenn. 1997). The State has the burden to demonstrate,
by a preponderance of the evidence, that a warrantless seizure passes constitutional
muster. State v. Harris, 280 S.W.3d 832, 839 (Tenn. Crim. App. 2008).

        “One exception to the warrant requirement exists when a police officer makes an
investigatory stop based upon reasonable suspicion, supported by specific and articulable
facts, that a criminal offense has been or is about to be committed.” Binnette, 33 S.W.3d
at 218 (citing Terry v. Ohio, 392 U.S. 1, 20-21 (1968); State v. Bridges, 963 S.W.2d 487,
492 (Tenn. 1997)). The moment that a police officer turns on the blue lights on his patrol
vehicle, the “police officer has clearly initiated a stop and has seized the subject of the
stop.” Id. In such cases, the police officer must have reasonable suspicion of criminal
activity, supported by specific and articulable facts, at the time that the police officer
turns on the blue lights. Id. “Reasonable suspicion is a particularized and objective basis
for suspecting the subject of a stop of criminal activity . . . , and it is determined by
considering the totality of the circumstances surrounding the stop[.]” Id. (internal
                                           -7-
citations omitted). “Those circumstances include the objective observations of the police
officer, information obtained from other officers or agencies, information obtained from
citizens, and the pattern of operation of certain offenders.” State v. Day, 263 S.W.3d 891,
903 (Tenn. 2008). A tip from a known informant, by itself, can establish reasonable
suspicion for a vehicle stop. See Adams v. Williams, 407 U.S. 143, 146-47 (1972). We
review the validity of a stop from a “purely objective perspective,” and this Court may
consider “relevant circumstances demonstrated by the proof even if not articulated by the
testifying officer as the reasons for the stop.” State v. Smith, 484 S.W.3d 393, 402 (Tenn.
2016).

       Generally, we will uphold a trial court’s findings of fact at a suppression hearing
unless the evidence preponderates to the contrary. State v. Odom, 928 S.W.2d 18, 23
(Tenn. 1996). “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.” Id. “We afford to the party prevailing in the trial court the
strongest legitimate view of the evidence and all reasonable and legitimate inferences that
may be drawn from that evidence.” State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998).
When evaluating the correctness of a trial court’s ruling on a motion to suppress, this
Court may consider both the evidence from the suppression hearing and the trial. State v.
Henning, 975 S.W.2d 290, 299 (Tenn. 1998). As to the trial court’s application of the
law to the facts, however, we apply a de novo standard of review. Keith, 978 S.W.2d at
864.

       At the outset of our analysis, we note that Officer Roach’s testimony at the hearing
on the motion to suppress was essentially the same as his testimony at trial. Thus, it does
not bear repeating the same facts. In the present case, Defendant was “seized” within the
meaning of the state and federal constitutions the moment Officer Roach activated his
car’s blue lights. In order for that seizure to be constitutionally valid, Officer Roach must
have possessed at least reasonable suspicion, supported by specific and articulable facts,
that Defendant had committed or was about to commit an offense. At the time that
Officer Roach turned on the blue lights on his patrol car, he possessed information given
to him by Mr. Pszenitzki that Defendant erratically parked one vehicle, fell multiple
times, appeared to have vomited, reentered a different vehicle, and began driving. Mr.
Pszenitzki identified the vehicle that Defendant was driving, and Officer Roach saw that
vehicle upon arriving on the premises of the apartment complex. Because an apartment
complex is a location where driving under the influence is prohibited, as determined
above, Officer Roach had reasonable suspicion that Defendant was committing the crime
of driving under the influence. Thus, his stop of Defendant was constitutional.

                                        Conclusion

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      For the aforementioned reasons, we affirm the judgments of the trial court.
However, we remand this case for entry of a corrected judgment document in Count One,
which should indicate that Count One merges with Count Two. See State v. Berry, 503
S.W.3d 360, 364 (Tenn. 2015).



                                       ____________________________________
                                       TIMOTHY L. EASTER, JUDGE




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