                                                                                                    04/05/2018
          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT JACKSON
                                  November 7, 2017 Session

                  STATE OF TENNESSEE v. JAMES WILLIAMS

                   Appeal from the Criminal Court for Shelby County
                     No. 16-05454     J. Robert Carter, Jr., Judge


                                No. W2017-01117-CCA-R3-CD


The Defendant, James Williams, was convicted by a jury of one count of driving under
the influence (DUI) per se, one count of DUI, and one count of reckless driving. The trial
court merged the DUI per se conviction with the DUI conviction and imposed a sentence
of eleven months and twenty-nine days to be served in the county workhouse. On appeal,
the Defendant contends that the trial court erred in denying his motion to suppress, which
challenged “the legality of the traffic stop” resulting in the Defendant’s arrest. Following
our review, the judgments of the trial court are affirmed.

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

D. KELLY THOMAS JR, J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN. and ROBERT L. HOLLOWAY, JR., JJ., joined.

Terrell L. Tooten, Cordova, Tennessee, for the appellant, James Williams.

Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Sam Winnig,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION
                                  FACTUAL BACKGROUND


      On September 13, 2016, the Shelby County grand jury indicted the Defendant with
one count of DUI per se, one count of DUI, and one count of reckless driving.1 See
1
  We note that the indictments of the Defendant were erroneously omitted from the record on appeal and
instead indictments from an unrelated matter were included. On this court’s own motion and pursuant to
Rule 24(e) of the Rules of Appellate Procedure, the trial court clerk supplemented the record with the
correct indictments of the Defendant.
Tenn. Code Ann. §§ 55-10-205, -401. Prior to trial, the Defendant filed a motion to
suppress evidence obtained during the traffic stop, and a hearing was held on January 20,
2017.

        Memphis Police Department Officer Michael Huff testified at the suppression that
he was working during “the early hours” of September 20, 2015, and that he stopped the
Defendant at approximately 2:45 a.m. When asked to describe the events that led to the
traffic stop, Officer Huff explained, “I was eastbound on I-40 approaching Sycamore
View when I noticed a black Toyota Highlander in front of me, swerving in and out of
lanes[,] which caught my attention.” Officer Huff specified that the Defendant was
“[c]hanging from lane to lane, [using] no signal, straddling the lanes, the yellow lines, the
line provided in the roadway.” Regarding the condition of I-40, Officer Huff testified
that it was not “free and clear.” He said that due to construction on the road, “there were
no emergency lanes for anybody to pull over” “on the right hand side” and that there had
been “several accidents because of” the construction.

       Officer Huff said that after seeing the Defendant swerving, he “kept observing”
and saw the Defendant “exit[] on to Sycamore View and stop[] at the red-light.” Officer
Huff explained that he drove into the lane next to the Defendant and noticed that the
Defendant “had his phone up and he appeared to be texting.” Officer Huff said that the
Defendant was the driver of the Toyota Highlander and that no one else appeared to be in
the vehicle. Officer Huff was asked if he could see whether “[the Defendant] was
sending a te[x]t” or specifically what was on the screen of the phone, to which Officer
Huff replied that he “could see the phone screen” and that the Defendant was holding up
the phone.

        Officer Huff said that “[o]nce [the Defendant] turned northbound, he still
continued to have his phone up[,]” and Officer Huff “initiated a traffic stop.” Officer
Huff explained that he used the “blue lights and siren” on his vehicle and that the
Defendant pulled over his vehicle immediately. Officer Huff testified that he approached
the driver’s side of the vehicle and “asked [the Defendant] for a driver’s license,
registration[,] and proof of insurance.” Officer Huff said that he “could smell the odor of
an intoxica[nt] coming from [the Defendant] and inside the car.” Officer Huff asked the
Defendant to exit the vehicle and perform a series of field sobriety tests. The Defendant
exited the vehicle; however, he refused to do the field sobriety tests. Officer Huff said
that he “placed [the Defendant] under arrest, under suspicion of DUI.” Officer Huff
testified that ultimately, the Defendant was “arrested for a second offense, DUI.” He
explained that the Defendant was “transported for a blood draw.”

       On cross-examination, Officer Huff admitted that he did not know the exact
number of times the Defendant’s vehicle “straddle[ed] the lane or change[d] lanes.”
Officer Huff testified that it was “[m]ore than once,” but “less than ten times[.]” He
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explained, “I have to drive, too[.] . . . I have to maintain . . . watching the road and try to
watch everything else.” When asked if the basis for his traffic stop was “for the
texting[,]” Officer Huff responded, “Yes, sir.” Defense counsel asked Officer Huff how
long he observed the Defendant’s holding up the phone, and Officer Huff replied, “The
[traffic] light was approximately one minute and [the Defendant] had the phone up then[,]
and when we continued northbound, once the light turned green, he still had the phone
up.”

      At the conclusion of the hearing, the trial court denied the Defendant’s motion to
suppress. The trial court referenced two Tennessee supreme court cases State v. Davis,
484 S.W.3d 138 (Tenn. 2016), and State v. Smith, 484 S.W.3d 393 (Tenn. 2016), and
reasoned that these cases

       discuss[ed] the difference between probable cause [and] reasonable
       suspicion[,] and they specifically discussed straddling of lanes. Straddling
       the lanes within a lane and straddling a lane from changing lane to lane and
       also straddling of a lane and these cases are very clear. When an [o]fficer
       observes that, as part of the totality of the circumstances[,] and I am not
       even getting to whether holding a screen up[,] or not.

               I personally believe and I think that probably would justify
       reasonable suspicion, but you know, for purposes of the totality of the
       circumstances[,] here I think the [o]fficer had reasonable suspicion that a
       law was being violated and he activated his stop and then after that, the
       odor of the intoxica[nt] and the various thing[s] that followed, gave rise to
       probable cause to detain him further, which then l[e]d to the field sobriety
       [tests], or the lack thereof.

              So with all due respect I think the stop in this case was not a
       violation of [the Defendant’s] Fourth Amendment [r]ights to be free from
       unreasonable search and seizures and those two cases, I think, are just right
       on point.

       The Defendant now appeals to this court.

                                            ANALYSIS

        On appeal, the Defendant argues that Officer Huff had “no legal basis to conduct a
traffic stop.” As such, the trial court erred in failing to suppress the evidence obtained
against the Defendant during the stop. The Defendant relies on Officer Huff’s testimony
that the basis for stopping the Defendant was his observing the Defendant’s holding up a
phone with an illuminated screen. The Defendant argues that his behavior of looking at
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the phone’s screen did not violate Tennessee Code Annotated section 55-8-199, which
prohibits texting while driving. Because Officer Huff’s reason for stopping the
Defendant was based on conduct that did not violate the law, the “Defendant should
never have been pulled over.” The Defendant further contends that Officer Huff’s traffic
stop violated his due process rights because Tennessee Code Annotated section 55-8-199
is “unconstitutionally vague.” The State responds that Officer Huff had “reasonable
suspicion to initiate a traffic stop to investigate whether the Defendant failed to maintain
his lane or was texting while driving.” Furthermore, the State argues that the Defendant
“has waived his argument that the texting while driving statute is unconstitutionally
vague” by failing to raise the issue in his motion for a new trial.

                                      I. Search and Seizure

       First, we must determine if the Defendant has waived review of the trial court’s
denial of his motion to suppress by failing to include a transcript of the trial. A party
seeking appellate review has a duty “to prepare a record which conveys a fair, accurate
and complete account of what transpired with respect to the issues forming the basis of
the appeal.” State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993). Failure to prepare a
complete record precludes appellate review. See id. “When the appellate court is
without an adequate record on appeal, we must presume a trial court’s rulings were
supported by sufficient evidence.” State v. Claude Thomas Davis, No. M2005-02007-
CCA-R3-CD, 2007 WL 677858, at *2 (Tenn. Crim. App. Mar. 7, 2007) (citing State v.
Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991)).

        In Davis, the defendant was convicted of DUI, driving on a revoked license, and
violation of the implied consent law. On appeal, the defendant argued that the trial court
erred in denying his motion to suppress. Davis, 2007 WL 677858, at *1. A panel of this
court concluded that the defendant failed to provide an adequate record by failing to
include a trial transcript but reviewed the defendant’s arguments in the interests of
justice. See id. at *2.

        In this case, we conclude that the Defendant has waived review of his suppression
issue by failing to include the trial transcript. See Davis, 2007 WL 677858, at *2. The
Tennessee Rules of Appellate Procedure “contemplate that allegations of error should be
evaluated in light of the entire record” and “appellate courts may consider the proof
adduced both at the suppression hearing and at trial” when “evaluating the correctness of
a trial court’s ruling on a pretrial motion to suppress.” State v. Henning, 975 S.W.2d 290,
299 (Tenn. 1998). Here, we do not have an account of the trial, thus the record is
inadequate for us to determine the extent to which Officer Huff had reasonable suspicion
to stop the Defendant.

       Furthermore, we conclude that plain error review can provide no relief to the
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Defendant because it is not necessary to review the issue in the interests of justice.
Officer Huff testified that the Defendant was “[c]hanging from lane to lane, [using] no
signal, straddling the lanes, the yellow lines, [and] the line provided in the roadway.”
When asked how many times he observed the Defendant’s straddling the lanes or
crossing the lanes, Officer Huff replied that it was “[m]ore than once,” but “less than ten
times[.]” Such testimony clearly establishes that Officer Huff had reasonable suspicion
to stop the Defendant, regardless of whether the Defendant was texting. See, e.g., State
v. Smith, 484 S.W.3d 393 (Tenn. 2016) (holding when an officer observes a motorist
crossing a clearly marked fog line, the totality of the circumstances may provide a
reasonable suspicion sufficient to initiate a traffic stop). Thus, the Defendant is not
entitled to relief regarding the trial court’s denial of his motion to suppress.

                        II. Tennessee Code Annotated § 55-8-199

       The Defendant has also waived any issue regarding the constitutionality of
Tennessee Code Annotated section 55-8-199. Tennessee Rule of Appellate Procedure
3(e) treats issues “upon which a new trial is sought” as waived “unless the same was
specifically stated in a motion for a new trial.” Here, the Defendant did not reference his
issue challenging the constitutionality of Tennessee Code Annotated section 55-8-199 in
his motion for new trial. As such, we review this issue solely for plain error. The
doctrine of plain error applies when all five of the following factors have been
established:

       (a) the record must clearly establish what occurred in the trial court;

       (b) a clear and unequivocal rule of law must have been breached;

       (c) a substantial right of the accused must have been adversely affected;

       (d) the accused must not have waived the issue for tactical reasons; and

       (e) consideration of the error must be “necessary to do substantial justice.”

State v. Page, 184 S.W.3d 223, 230-31 (Tenn. 2006) (quoting State v. Terry, 118 S.W.3d
355, 360 (Tenn. 2003)) (internal brackets omitted). “An error would have to [be]
especially egregious in nature, striking at the very heart of the fairness of the judicial
proceeding, to rise to the level of plain error.” Id. at 231.

       Here, plain error review is not warranted. Given our conclusion that the stop was
supported by reasonable suspicion despite any texting by the Defendant, a substantial
right of the Defendant had not been adversely affected and substantial justice is not at
stake.
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                                   CONCLUSION

        Upon consideration of the foregoing and the record as a whole, the judgments of
the trial court are affirmed.



                                                _________________________________
                                                D. KELLY THOMAS, JR., JUDGE




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