        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                April 19, 2016 Session

        STATE OF TENNESSEE v. BRADLEY DARRIN WILLIAMS

               Appeal from the Circuit Court for Williamson County
                No. 1-CR-118429        Joseph A. Woodruff, Judge


                 No. M2015-00946-CCA-R3-CD – Filed July 26, 2016


A Williamson County grand jury indicted the Defendant, Bradley Darrin Williams, for
one count of driving under the influence (―DUI‖) and one count of DUI per se. The
Defendant filed a pretrial motion to suppress the evidence obtained as a result of his
traffic stop. The trial court denied the Defendant‘s motion, and the Defendant pleaded
guilty to the two counts of DUI. The trial court merged the convictions and sentenced the
Defendant to eleven months and twenty-nine days, to be served on probation after the
service of seven days in confinement. The Defendant reserved a certified question of law
pursuant to Tennessee Rule of Criminal Procedure 37(b)(2) as to whether the trial court
erred when it denied his motion to suppress because the officer did not have reasonable
suspicion justifying the stop. After review, we conclude that the traffic stop was lawful
and thus, we affirm the trial court‘s judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which JOHN EVERETT
WILLIAMS and NORMA MCGEE OGLE, JJ., joined.

Matthew D. Dunn, Brentwood, Tennessee, for the appellant, Bradley Darrin Williams.

Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Senior
Counsel; Kim R. Helper, District Attorney General; and Carlin C. Hess, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                       OPINION
                                        I. Facts

       This case arises from a traffic stop of the Defendant‘s vehicle, following which an
officer arrested him for DUI.
                                   A. Motion to Suppress

        The Defendant filed a motion to suppress evidence found as a result of the traffic
stop. He asserted that the state trooper did not have a sufficient basis upon which to
initiate the stop. The trial court held a hearing on the motion to suppress, during which
the parties presented the following evidence: Randy McDonald, a Tennessee Highway
Patrol trooper, testified that on April 12, 2014, at around 10:56 p.m., he was travelling
westbound on Cool Springs Boulevard when he noticed a vehicle in front of him weaving
in his lane and crossing the lane divider lines with its right two tires riding on top of the
lane divider line.

        Trooper McDonald noted that it was a four-lane stretch of road with two lanes
westbound and two lanes eastbound divided by a grassy median in the middle. He said
that he was in the lefthand lane, closer to the median when he first observed the
Defendant‘s vehicle. The vehicle he observed was in the same lane in front of him. The
trooper testified that his attention was drawn to this vehicle because, after it travelled
through a traffic light, two of the right side tires crossed over the lane divider, and the
vehicle came back and almost touched the fog line on the left side of the lane and then
travelled back riding on the divider lines again with its two right tires. On this basis,
Trooper McDonald initiated a traffic stop. The State offered a video recording from the
trooper‘s vehicle camera.

       In the video, the vehicle is seen travelling with its left two tires near the left fog
line. The driver made what appeared to be a quick correction, and the vehicle moved
toward the divider lane. The right two tires crossed over the center divider lane. The
vehicle swerved within its own lane several times, making rapid corrections within the
lane. The vehicle‘s right tires again rode on the center line. The vehicle initiated a left
hand turn using its turn indicator, and turned left. During this turn, the trooper activated
the blue emergency lights on his highway patrol car.

       After watching the video, Trooper McDonald testified that the vehicle swerved
within its own lane of travel and then crossed over the divider line. The vehicle travelled
with its wheels on the divider lines for approximately fifteen seconds.

        During cross-examination, Trooper McDonald testified that he was unsure of the
speed the vehicle was travelling. He said that he determined he should stop the vehicle
when it travelled with its tires on the lane divider for an extended period of time. He
agreed that there were no other vehicles in the adjacent lane and no car accident resulted
from this incident. Trooper McDonald said he stopped the vehicle for failing to maintain
its lane of travel.
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      At the conclusion of the hearing, the trial court denied the Defendant‘s motion to
suppress.

                                      B. Guilty Plea

      After the trial court denied his motion to suppress, the Defendant pleaded guilty to
DUI and DUI per se. At the guilty plea hearing, the State offered the following facts in
support of the Defendant‘s guilty plea:

            Your Honor, the court heard testimony from Trooper Randy
      McDonald at a suppression hearing March 23rd of this year, that [the
      Defendant] was pulled over on April 12, 2014, at 11:00 p.m.

             ....

      If continued, if his testimony continued, Your Honor, Trooper McDonald
      would have testified that [the Defendant] was the driver of the car that was
      pulled over, had an alcoholic beverage [odor] about his person, this
      occurred here in Williamson County. He performed poorly on the field
      sobriety test and refused a blood test. The trooper obtained a search
      warrant and obtained his blood which was analyzed by the TBI and came
      back at .261 grams percent grams of alcohol.

       The trial court accepted the Defendant‘s plea of guilt and merged the Defendant‘s
convictions. The trial court imposed the sentence agreed to by the parties: eleven months
and twenty-nine days, to be served on probation after the service of seven days in
confinement. Pursuant to Tennessee Rule of Criminal Procedure 37(b)(2), the Defendant
reserved the following certified question of law:

      Whether the trial court erred in denying appellant‘s motion to suppress in
      ruling that Trooper R. McDonald‘s basis for the stop, Failure to Maintain
      Lane of Travel, did not amount to an illegal seizure by law enforcement
      pursuant to reasonable suspicion that the Defendant had committed a minor
      traffic violation.

                                      II. Analysis
                             A. Certified Question of Law

      Because this appeal comes before us as a certified question of law, pursuant to
Rule 37(b) of the Tennessee Rules of Criminal Procedure, we must first determine
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whether the question presented is dispositive. The question is dispositive ―when the
appellate court ‗must either affirm the judgment [of conviction] or reverse and dismiss
[the charges].‘‖ State v. Dailey, 235 S.W.3d 131, 134 (Tenn. 2007) (alterations in
original) (quoting State v. Walton, 41 S.W.3d 75, 96 (Tenn. 2001); State v. Wilkes, 684
S.W.2d 663, 667 (Tenn. Crim. App. 1984)). An issue is never dispositive when this
Court may exercise the option to reverse and remand. Wilkes, 684 S.W.2d at 667. This
Court ―‗is not bound by the determination and agreement of the trial court, a defendant,
and the State that a certified question of law is dispositive of the case.‘‖ Dailey, 235
S.W.3d at 134-35 (quoting State v. Thompson, 131 S.W.3d 923, 925 (Tenn. Crim. App.
2003)). This Court must make an independent determination that the certified question is
dispositive. Id. at 135 (citing State v. Preston, 759 S.W.2d 647, 651 (Tenn. 1988)). Rule
37(b)(2) of the Tennessee Rules of Criminal Procedure provides that a defendant may
appeal from any judgment or conviction occurring as the result of a guilty plea. State v.
Long, 159 S.W.3d 885, 887 (Tenn. Crim. App. 2004). The following are prerequisites for
an appellate court‘s consideration of the merits of a question of law certified pursuant to
Rule 37(b)(2):

       (i) The judgment of conviction, or other document to which such judgment
       refers that is filed before the notice of appeal, contains a statement of the
       certified question of law reserved by the defendant for appellate review;

       (ii) The question of law is stated in the judgment or document so as to
       identify clearly the scope and limits of the legal issue reserved;

       (iii) The judgment or document reflects that the certified question was
       expressly reserved with the consent of the state and the trial judge; and

       (iv) The judgment or document reflects that the defendant, the state, and the
       trial judge are of the opinion that the certified question is dispositive of the
       case . . . .

Tenn. R. Crim. P. 37(b)(2)(A)(i)-(iv).

       In State v. Preston, our Supreme Court stated its intention to ―make explicit to the
bench and bar exactly what the appellate courts will hereafter require as prerequisites to
the consideration of the merits of a question of law certified pursuant to Tenn. R. Crim. P.
37(b)(2)(i) or (iv).‖ 759 S.W.2d 647, 650 (Tenn. 1988). First, the final order or
judgment appealed from must contain a statement of the dispositive question of law
reserved for review. Id. The question must clearly identify the scope and limits of the
legal issue and must have been passed upon by the trial judge. Id. Second, the order
must also state that: (1) the certified question was reserved as part of the plea agreement;
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(2) the State and the trial judge consented to the reservation; and (3) both the State and
the trial judge agreed that the question is dispositive of the case. Id. Third, the defendant
bears the burden of ―reserving, articulating, and identifying the issue‖ reserved. State v.
Troy Lynn Woodlee, No. M2008-01100-CCA-R3-CD, 2010 WL 27883, at *2 (Tenn.
Crim. App., at Nashville, Jan. 6, 2010), perm. app. denied (Tenn. May 20, 2010) (citing
Preston, 937 S.W.2d at 838). Failure to properly reserve a certified question of law
pursuant to the requirements stated in Preston will result in the dismissal of the appeal.
Woodlee, 2010 WL 27883, at *2 (citing State v. Pendergrass, 937 S.W.2d 848, 838
(Tenn. 1996)). The importance of complying with the Preston requirements has been
reiterated by our Supreme Court in State v. Armstrong, 126 S.W.3d 908, 913 (Tenn.
2003), which stated that the Preston requirements are ―explicit and unambiguous,‖ in
rejecting the defendant‘s argument in favor of substantial compliance with Tennessee
Rules of Criminal Procedure 37.

       In the case under submission, the Defendant‘s issue on appeal meets these
requirements: he pleaded guilty; the judgment form referenced the appeal; and the
addendum to the judgment form listed the question that the Defendant maintains on
appeal. The question included in the addendum attached to the Defendant‘s judgment
form is stated so as to identify clearly the scope and limits of the legal issue reserved and
is dispositive of the case. Thus, we conclude that the issue is properly before this Court.

                            B. Legality of Search and Seizure

       The Defendant argues that the trial court abused its discretion when it denied his
motion to suppress because Trooper McDonald did not have a reasonable suspicion to
stop him for DUI based upon the Defendant‘s failure to maintain his lane of travel. The
State counters that the trooper had probable cause to stop the Defendant for failing to
maintain his lane of travel, and, at that time, he properly investigated further and
determined the Defendant was intoxicated.

       Our standard of review for a trial court‘s findings of fact and conclusions of law
on a motion to suppress evidence is set forth in State v. Odom, 928 S.W.2d 18 (Tenn.
1996). Under this standard, ―a trial court‘s findings of fact in a suppression hearing will
be upheld unless the evidence preponderates otherwise.‖ Id. at 23. As is customary, ―the
prevailing party in the trial court is afforded the ‗strongest legitimate view of the
evidence and all reasonable and legitimate inferences that may be drawn from that
evidence.‘‖ State v. Carter, 16 S.W.3d 762, 765 (Tenn. 2000) (quoting State v. Keith,
978 S.W.2d 861, 864 (Tenn. 1998)). Nevertheless, this Court reviews de novo the trial
court‘s application of the law to the facts, without according any presumption of
correctness to those conclusions. See State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001);
State v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999). The trial court, as the trier of fact,
                                             5
is able to assess the credibility of the witnesses, determine the weight and value to be
afforded the evidence, and resolve any conflicts in the evidence. Odom, 928 S.W.2d at
23. In reviewing a trial court‘s ruling on a motion to suppress, an appellate court may
consider the evidence presented both at the suppression hearing and at the subsequent
trial. State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998).

       Our Supreme Court has stated:

               The Fourth Amendment to the United States Constitution proscribes
       ―unreasonable searches and seizures‖ and provides that ―no Warrants shall
       issue, but upon probable cause . . . particularly describing . . . the persons . .
       . to be seized.‖ Likewise, Article I, Section 7 of the Tennessee Constitution
       states that ―the people shall be secure in their persons . . . from
       unreasonable searches and seizures.‖ Because traffic stops constitute
       seizures entitling a vehicle‘s occupants to the full protections of the United
       States and Tennessee Constitutions, Whren v. United States, 517 U.S. 806,
       809-10, 116 S. Ct. 1769, 135 L.Ed.2d 89 (1996); State v. Pulley, 863
       S.W.2d 29, 30 (Tenn. 1993), the authorities must act reasonably when
       initiating a traffic stop.

              The United States Supreme Court has interpreted this requirement to
       mean that the authorities must have probable cause or an ―articulable and
       reasonable suspicion‖ to believe that a traffic violation has occurred when
       they initiate a traffic stop. Whren v. United States, 517 U.S. at 810, 116 S.
       Ct. 1769; Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 59
       L.Ed.2d 660 (1979); accord State v. Vineyard, 958 S.W.2d 730, 736 (Tenn.
       1997).

State v. Brotherton, 323 S.W.3d 866, 870 (Tenn. 2010).

        There are three levels of police-citizen interactions: (1) a full-scale arrest, which
must be supported by probable cause in order to be valid; (2) a brief investigatory
detention, which must be supported by a reasonable suspicion, based upon specific and
articulable facts, of criminal wrong-doing; and (3) a brief ―encounter‖ which requires no
objective justification. State v. Day, 263 S.W.3d 891, 901 (Tenn. 2008). Moreover, the
distinction between a stop based on probable cause and a stop based on reasonable
suspicion is not simply academic. Reasonable suspicion will support only a brief,
investigatory stop. See Terry v. Ohio, 392 U.S. 1, 27-29 (1968); see also United States v.
Bentley, 795 F.3d 630, 633 (7th Cir. 2015) (noting the necessity to ―distinguish between
stops based on reasonable suspicion and those based on probable cause [because] [t]he
latter are not subject to the scope and duration restrictions of Terry‖); State v. Troxell, 78
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S.W.3d 866, 871 (Tenn. 2002) (recognizing that investigative stops must be ―reasonably
related in scope to the circumstances which justified the interference in the first place‖
and that the stop ―must be temporary and last no longer than necessary to effectuate the
purpose of the stop‖ (quoting Terry, 392 U.S. at 20, and Florida v. Royer, 460 U.S. 491
(1983)) (internal quotation marks omitted)).

       A reasonable basis for a stop is something more than an ―inchoate and
unparticularized suspicion or ‗hunch.‘‖ Terry, 392 U.S. at 27. ―The evaluation [of
reasonable suspicion] is made from the perspective of the reasonable officer, not the
reasonable person.‖ State v. Smith, -- S.W.3d --, 2016 WL 537119, at *4 (Tenn. Feb. 16,
2016) (citing United States v. Quintana–Garcia, 343 F.3d 1266, 1270 (10th Cir. 2003);
and United States v. Valdez, 147 Fed. Appx. 591, 596 (6th Cir. 2005)). Moreover,
because a court reviews the validity of a stop from a purely objective perspective, the
officer‘s subjective state of mind is irrelevant, see Brigham City, Utah v. Stuart, 547 U.S.
398 (2006), and the court may consider relevant circumstances demonstrated by the proof
even if not articulated by the testifying officer as reasons for the stop, see Smith, --
S.W.3d --, 2016 WL 537119, at *4 (citing City of Highland Park v. Kane, 372 Ill. Dec.
26, 991 N.E.2d 333, 338 (Ill. App. Ct. 2013) (recognizing that, ―[i]n analyzing whether a
stop was proper, a court is not limited to bases cited by the officer for effectuating the
stop‖ (citing Whren, 517 U.S. at 813)); see also State v. Huddleston, 924 S.W.2d 666,
676 (Tenn. 1996) (recognizing that an officer‘s subjective belief that he did not have
enough evidence to obtain a warrant is irrelevant to whether or not probable cause
actually existed‖)). Additionally, if the defendant attempts to suppress evidence collected
during the challenged stop, the state is not limited in its opposing argument to the
grounds ostensibly relied upon by the officer if the proof supports the stop on other
grounds. Smith, --S.W.3d --, 2016 WL 537119, at *4 (citing State v. Tague, 676 N.W.2d
197, 201 (Iowa 2004)).

       Furthermore, it is well settled that: ―Probable cause‖—the higher standard
necessary to make a full-scale arrest—means more than bare suspicion: ―Probable cause
exists where ‗the facts and circumstances within their [the officers‘] knowledge, and of
which they had reasonably trustworthy information, [are] sufficient in themselves to
warrant a man of reasonable caution in the belief that‘ an offense has been or is being
committed.‖ Brinegar v. United States, 338 U.S. 160 (1949) (quoting Carroll v. United
States, 267 U.S. 132 (1925)). ―This determination depends upon ‗whether at that
moment the facts and circumstances within [the officers‘] knowledge and of which they
had reasonably trustworthy information were sufficient to warrant a prudent man in
believing that the petitioner had committed or was committing an offense.‘‖ Goines v.
State, 572 S.W.2d 644, 647 (Tenn. 1978) (quoting Beck v. Ohio, 379 U.S. 89 (1964)).
―In dealing with probable cause, . . . we deal with probabilities. These are not technical;
they are the factual and practical considerations of everyday life on which reasonable and
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prudent men, not legal technicians, act.‖ Brinegar, 338 U.S. at 175; See Day, 263
S.W.3d at 902-03.

       The Defendant in the case under submission points to numerous cases, some of
which he analogizes and some of which he distinguishes, to support his contention that
the officer in this case did not have reasonable suspicion to stop his vehicle and
investigate further. Officer McDonald testified that he stopped the Defendant based upon
the Defendant‘s failure to maintain his lane. Tennessee Code Annotated section 55-8-
123(1) provides as follows:

      Driving on roadways laned for traffic.

      Whenever any roadway has been divided into two (2) or more clearly
      marked lanes for traffic, the following rules, in addition to all others
      consistent with this section, shall apply:

      (1) A vehicle shall be driven as nearly as practicable entirely within a single
      lane and shall not be moved from that lane until the driver has first
      ascertained that the movement can be made with safety;

The General Assembly has criminalized a violation of Tennessee Code Annotated section
55-8-123(1) as a Class C misdemeanor. T.C.A. § 55-8-103. In this case, the Class C
misdemeanor is punishable by imprisonment of not greater than thirty (30) days or a fine
not to exceed fifty dollars ($50.00), or both. T.C.A. § 40-35-111(e)(3). We note this
case does not address the issue of whether Defendant‘s driving that was observed by the
trooper provided probable cause or reasonable suspicion that Defendant was driving
under the influence of intoxicants in violation of Tennessee Code Annotated section 55-
10-401, even though that is the offense to which the Defendant pleaded guilty as a result
of the stop, because the officer stated that he stopped the Defendant based upon his
failure to maintain his lane.

       There are several cases from this Court, both published and unpublished, that
address similar factual scenarios. After the Defendant in this case filed his brief,
however, the Tennessee Supreme Court addressed this issue in State v. Smith, -- S.W.3d -
-, 2016 WL 537119 (Tenn. Feb. 16, 2016). The Tennessee Supreme Court summarized
the factual scenario in Smith as:

              Trooper Chuck Achinger of the Tennessee Highway Patrol testified
      that, at approximately 3:00 a.m. on December 6, 2012, he was travelling
      north on I–65 in Williamson County, Tennessee. As he neared the 72 mile
      marker, he noticed a car in front of him ―drift over towards the shoulder‖ as
                                            8
      it entered a ―big swooping curve.‖ He then observed the vehicle cross the
      fog line ―by less than six inches, probably.‖ As the car came out of the
      curve, ―it corrected itself back into its lane, and then it drifted back over to
      the right and almost went all the way over the fog line again. It corrected
      itself. And then, again, it went back over and just barely touched the fog
      line again.‖ Trooper Achinger clarified that, when the car crossed the fog
      line, both tires on the right side of the car crossed the line ―[e]ntirely.‖
      Trooper Achinger observed this driving behavior over the course of four to
      five tenths of a mile. He acknowledged that the [d]efendant‘s driving did
      not endanger any other vehicles.

Id. at *1. Unlike the case under submission, the trooper‘s video did not show defendant
Smith‘s crossing of the fog line, however the trial court accredited the trooper‘s
testimony.

       In Smith, our Supreme Court analyzed and discussed case law and statutes from
other states criminalizing the failure to maintain one‘s lane. Id. at *5-8. The Court
concluded that:

              Therefore, based on the plain language of the statute, and guided by
      our concern for public safety, we hold that Section 123(1) is violated when
      a motorist strays outside of [his or] her lane of travel when either (1) it is
      practicable for [him or] her to remain in her lane of travel or (2) [he or] she
      fails to first ascertain that the maneuver can be made with safety. See Tenn.
      Code Ann. § 55-8-123(1). Thus, even minor lane excursions may establish
      a violation of Section 123(1) whether or not the excursion creates a
      specific, observed danger.

Id. at *9-10. The Smith Court cautioned:

             We caution that in many cases it will not be possible for an
      observing officer to discern either the reason for a driver‘s leaving her lane
      of travel or whether she first ascertained the safety of the maneuver. In
      those cases, the officer would have to investigate further in order to
      determine whether the driving maneuver violated Section 123(1). See
      Hackett, 361 Ill. Dec. 536, 971 N.E.2d at 1066 (holding that an
      investigatory stop made after officer observed motorist deviating from lane
      for no apparent reason ―allows the officer to inquire further into the reason
      for the lane deviation, either by inquiry of the driver or verification of the
      condition of the roadway where the deviation occurred‖). In such cases, the
      officer would not have probable cause to stop the motorist but might have
                                             9
       sufficient reasonable suspicion to do so. See id. (holding that officer was
       justified in making an investigatory traffic stop after observing motorist
       twice deviate from his own lane of travel to an adjacent lane of travel for no
       obvious reason).

Id. at *10.

        Ultimately, considering the totality of the circumstances, the Smith Court
concluded that the officer stopping defendant Smith had a reasonable suspicion,
supported by specific and articulable facts, that defendant Smith violated Section 123(1)
when she crossed the fog line and failed to remain entirely within her lane of travel. Id.
at 13. The officer was therefore justified in stopping defendant Smith to investigate
further the reasons for her leaving her lane of travel. Id. This holding accords with the
Tennessee Supreme Court‘s holding in State v. Brotherton, which approved a stop solely
for a traffic violation based on ―probable cause‖ or ―reasonable suspicion,‖ even when it
is clear that a Tennessee court would not have found the driver guilty of the traffic
violation. 323 S.W.3d 866, 871 (Tenn. 2010) (citing United States v. Johnson, 242 F.3d
707, 709-10 (6th Cir. 2001))

        Using Smith as a guide, we conclude that, in the case under submission,
considering the totality of the circumstances, Trooper McDonald had a reasonable
suspicion, supported by specific and articulable facts, that the Defendant had violated
Tennessee Code Annotated section 55-8-123(1). Trooper McDonald observed the
Defendant driving at approximately 11:00 at night, a time at which a driver may be more
likely to be fatigued or impaired. Such circumstances increase the likelihood of
accidental lane excursions. The Defendant was driving on a stretch of road that, from the
video, has clearly marked, wide lanes. Third, the video recording reveals that the weather
and the roadway were dry. Fourth, the video confirmed Trooper McDonald‘s testimony
that the Defendant‘s right tires crossed the lane divider, that he veered back and his left
tires touched and crossed the fog line, and then that he again veered so that his right tires
crossed the lane divider. Fifth, there is no proof in the record indicating that the
Defendant‘s lane excursion was preceded by a signal indicating his intention to leave his
lane or that it was followed by a lessening in speed indicating his intention to pull onto
the shoulder and stop. Finally, the Defendant‘s travel within his own lane included
multiple drifts toward either side of his lane followed by a jerky or quick movement for
correction. Again, these circumstances are indicative of an inadvertent lane excursion,
and Trooper McDonald was therefore justified in stopping the Defendant to investigate
further the reasons for the Defendant leaving his lane of travel. The trial court did not err
when it denied the Defendant‘s motion to suppress evidence obtained as a result of the
traffic stop.

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                                   III. Conclusion

        In accordance with the aforementioned reasoning and authorities, we affirm the
trial court‘s judgment.


                                              _________________________________
                                              ROBERT W. WEDEMEYER, JUDGE




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