        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                             Assigned on Briefs April 9, 2014

             STATE OF TENNESSEE v. JOSHUA ETHEN DOYLE

                 Appeal from the Criminal Court for Davidson County
                     No. 2012C2411     Mark J. Fishburn, Judge


                  No. M2013-02032-CCA-R3-CD - Filed May 13, 2014


The defendant, Joshua Ethen Doyle, appeals a certified question of law pertaining to the stop
of his vehicle, and the denial of a motion to suppress the breath alcohol test. Finding no error,
we affirm the judgment of the trial court.


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

J OE H. W ALKER, III, S P.J., delivered the opinion of the Court, in which J OHN E VERETT
W ILLIAMS and R OBERT W. W EDEMEYER, JJ., joined.

Tommy Ethen Doyle, Linden, Tennessee, for the appellant, Joshua Ethen Doyle.

Robert E. Cooper, Jr., Attorney General and Reporter; Ahmed A. Safeeullah, Assistant
Attorney General; Victor S. Johnson, III, District Attorney General; and Elizabeth Foy,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

                                            FACTS

       Officer Robert Crow of the Metro-Nashville Police Department testified he was on
duty the night of March 25, 2012, and he observed a vehicle driven by the defendant at about
2:50 a.m. traveling on Charlotte Pike with the driver’s side tires a foot or more across the
center, double-yellow line. He turned to get behind the vehicle to observe the driving, and
by the time he caught up with the vehicle it was near the intersection of Charlotte Pike and
Old Hickory Boulevard. The vehicle turned left off of Charlotte Pike into what the officer
thought was a driveway that was overgrown. The officer later realized there was not a
driveway there. The officer testified “there wasn’t actually a driveway there. He just pulled
into the yard off Charlotte.” The officer was familiar with the location and knew it was an
empty house, which he passes many times a day. The officer had never seen any cars or
people at the house. The grass was overgrown. Officer Crow then observed the defendant
drive across the front yard parallel to Charlotte Pike and back toward the intersection of Old
Hickory Boulevard. The officer pulled his car to the curb on Old Hickory Boulevard and
activated the blue lights about the same time as the defendant stopped his vehicle in the front
yard facing toward Old Hickory. The officer walked into the yard to speak with the
defendant, who was sitting in the car with the door open. The officer immediately noticed
a strong odor of alcohol.

Certified Question on Stop of Vehicle

        The certified question with regard to the stop is whether the trial court erred in holding
that the seizure at the intersection of Charlotte Pike and Old Hickory Boulevard was a lawful
investigative stop based on whether Officer Crow had a reasonable suspicion to stop the
defendant and erred in denying the defendant’s motion to suppress all evidence obtained
because of the Officer’s testimony at the suppression hearing.

Trial Court’s Findings

       The trial court, in a written opinion, found that Officer Crow had sufficient reasonable
suspicion, based on specific and articulable facts, to initiate a stop. The trial court not only
found that the defendant crossed at least one foot over the double-yellow line with the front
and rear driver’s side tires, but also that he turned into a yard that Officer Crow justifiably
believed to be vacated based on years of experience in patrolling the area. Additionally, when
Officer Crow changed directions to return to the home, the defendant had turned his vehicle
to the right and was driving through the yard in the direction of Old Hickory Boulevard
without an apparent indication of stopping his vehicle.

                                          ANALYSIS

        On appeal from a trial court’s ruling on a motion to suppress, the trial court’s findings
of fact should be upheld unless the evidence preponderates to the contrary. State v. Hanning,
296 S.W.3d 44, 48 (Tenn. 2009). The credibility of witnesses, the weight and value of the
evidence, and the resolution of conflicts in the evidence are matters entrusted to the trial
judge. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). 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)).



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        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. 806, 810 (1996); 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).
Reasonable suspicion exists when “specific and articulable facts . . . taken together with
rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, 392
U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). An investigatory traffic stop under Terry
“is a far more minimal intrusion [than an arrest pursuant to probable cause], simply allowing
the officer to briefly investigate further. If the officer does not learn facts rising to the level
of probable cause, the individual must be allowed to go on his way.” Illinois v. Wardlow, 528
U.S. 119, 126, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000). However, officers must have some
reasonable basis to warrant investigation; a mere “inchoate and unparticularized suspicion
or ‘hunch’” is not enough to generate reasonable suspicion. Terry, 392 U.S. at 27.

       Tennessee’s courts have also had ample opportunity to apply the reasonable suspicion
standard. We have held that reasonable suspicion is “a particularized and objective basis for
suspecting the subject of a stop of criminal activity.” State v. Binette, 33 S.W.3d 215, 218
(Tenn. 2000). The courts must look to the totality of the circumstances, State v. Levitt, 73
S.W.3d 159, 172 (Tenn. Crim. App. 2001) (citing United States v. Cortez, 449 U.S. 411,
417-18, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981); Ornelas v. United States, 517 U.S. 690,
696, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996)), to determine whether an officer reasonably
believed that the operator of a vehicle had either committed a crime or was about to commit
a crime. Levitt, 73 S.W.3d at 172; State v. England, 19 S.W.3d 762, 766 (Tenn. 2000). It is
constitutionally permissible to stop a vehicle for an equipment violation in Tennessee.
England, 19 S.W.3d at 766 (approving lower court holding that a violation of Tennessee.
Code Annotated section 55-9-404 created a reasonable suspicion incident to a traffic stop);
State v. Brotherton, 323 S.W.3d 866, 870 (Tenn. 2010).

        This court concludes that the evidence does not preponderate against the finding by
the trial court. In the early morning hours, the officer observed a vehicle that crossed the
center line, turned into a yard of an abandoned house and drove across the yard toward an
intersection. The officer certainly had sufficient reason for an investigatory traffic stop. The
trial court did not err in denying the motion to suppress.

Certified Question on Breath Test


      The defendant argues in his second certified question of law that the trial court erred
in denying the defendant’s motion to suppress the breath alcohol test because the
documentation presented by the State on this issue was not properly authenticated. The trial

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court, in a written opinion, found that the six requirements of authenticating an alcohol breath
test set out in State v. Sensing, 843 S.W.2d 412, 416 (Tenn. 1992) were established.

        The defendant failed to cite to the record or support his argument with any case law
in the brief. However, in the Reply Brief the defendant cited the record where Officer Crow
testified about the breath testing machine. He failed to cite any case law in support of his
contention. Tennessee Rule of Appellate Procedure 27(a)(7) requires appellate briefs to
contain an argument containing citation to the record and to legal authorities.

        The certified question addresses whether the documentation was properly
authenticated. One of the requirements of Sensing is that the evidentiary breath testing
instrument used was certified by the forensic services division, was tested regularly for
accuracy and was working properly when the breath test was performed. Sensing, 843
S.W.2d at 416. At the hearing, the witness was shown two certificates of compliance from
the Tennessee Bureau of Investigation (“TBI”) for the Intoximeter, which the witness
identified. The certificates were dated before and after the test date. The certificates indicated
a test using the laboratory-controlled standard of alcohol of known value had been conducted
and the instrument had been found to perform within the standards to measure breath alcohol.
Defense counsel objected to the introduction of the certificates as hearsay. The State
submitted they were self-authenticating documents that were public records. The trial court
overruled the objection.

       Whether testimony should be admitted under an exception to the hearsay rule is a
matter left to the sound discretion of the trial court and is reviewed on appeal for abuse of
discretion. Pylant v. State, 263 S.W.3d 854, 870 (Tenn. 2008). On appeal, this court will
presume that the trial court’s determination regarding the Sensing requirements is correct
unless the evidence preponderates otherwise. State v. Edison, 9 S.W.3d 75, 78 (Tenn. 1999).

       Our supreme court has recognized that the initial TBI certification and the subsequent
maintenance records of breath testing instruments are public records under Tennessee Rule
of Evidence 803(8). Sensing, 843 S.W.2d at 416. Unlike the business records exception, the
public records exception does not require that the record be introduced through the testimony
of a “custodian or other qualified witness.” See Tenn. R. Evid. 803(6), (8); State v. Baker,
842 S.W.2d 261, 264-65 (Tenn. Crim. App. 1992).


        Sensing contemplates that an officer certified to perform the breath test will testify
that the TBI certified the testing instrument and regularly tested it for accuracy. See Sensing,
843 S.W.2d at 416. Thus, the State could introduce the certification and maintenance records
through the testimony of Officer Crow. See State v. Korsakov, 34 S.W.3d 534, 543 (Tenn.

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Crim. App. 2000). These documents are self-authenticating pursuant to Tennessee Rule of
Evidence 902(4) and admissible hearsay pursuant to Tennessee Rule of Evidence 803(8).
They are therefore admissible. Finding no abuse of discretion by the hearing court in
admitting the records, the appellant is not entitled to relief on this issue.

                                    CONCLUSION


      For the foregoing reasons, we affirm the judgment of the trial court.




                                                 _________________________________
                                                 JOE H. WALKER, III, SPECIAL JUDGE




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