                                                                                          05/22/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                January 8, 2020 Session

          STATE OF TENNESSEE v. JASON BRADLEY WALTERS

                 Appeal from the Circuit Court for Madison County
                         No. 18-286 Kyle C. Atkins, Judge
                     ___________________________________

                           No. W2019-00420-CCA-R3-CD
                       ___________________________________


The State appeals as of right from the trial court’s order granting the motion to suppress
all evidence obtained as a result of an unconstitutional stop of the vehicle driven by
Defendant, Jason Bradley Walters. The basis of the stop was the arresting deputy’s
observation that Defendant violated Tennessee Code Annotated section 55-9-407, which
requires a driver to dim headlights within 500 feet of an approaching vehicle. In its
order, the trial court granted the motion solely based upon its determination that a
violation of Tennessee Code Annotated section 55-9-407 is not a crime. On appeal the
State argues it is a Class C misdemeanor pursuant to Tennessee Code Annotated section
55-10-301(a), and that the trial court’s judgment should be reversed. On this point, we
agree with the State. However, we remand for the trial court to make specific findings of
fact based upon the trial court’s credibility determinations of the witnesses, and any other
evidence, direct or circumstantial, viewed in light of the trial court’s credibility of the
testimony. The trial court must then issue a new order either granting the motion to
suppress or denying the motion.

                      Tenn. R. App. P. 3 Appeal as of Right;
               Judgment of the Circuit Court Reversed and Remanded

THOMAS T. WOODALL, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and ALAN E. GLENN, JJ., joined.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; Jody S. Pickens, District Attorney General; and April Knight
Cornelison, Assistant District Attorney General, for the appellant, State of Tennessee.

Justin P. Jones, Brownsville, Tennessee, for the appellee, Jason Bradley Walters.
                                        OPINION

       Trial Court Proceedings

       Only the deputy and Defendant testified at the suppression hearing. Basically,
each one testified that the other one violated the statute, establishing a classic situation
for the trial court to make specific findings of fact based upon witness credibility
determinations made by the trial court and any other evidence, direct or circumstantial,
that may exist in addition to the testimony. The only factual findings made by the trial
court were that Defendant was driving northbound, the deputy was driving southbound,
and the deputy’s only basis to stop Defendant was his opinion that Defendant violated
Tennessee Code Annotated section 55-9-407. However, this meager finding of fact does
not include a finding that the deputy’s opinion was credible. It was only a finding that
the deputy had no other basis to instigate a traffic stop in the event that the court
determined that Deputy Gross did not have a reasonable suspicion or probable cause that
Defendant had violated the statute. Also, this is an implicit, rather than explicit, finding
of fact. By granting the motion to suppress on the basis it relied upon, the trial court
implicitly found that the deputy had no other legal basis to initiate the traffic stop. All
other mentioning of what witnesses stated was a statement of various matters testified to
by the deputy as a summary of testimony.

       As a result of the vehicle stop and Defendant’s arrest, he was charged in a
multiple-count indictment by the Madison County Grand Jury with DUI second offense
(two counts on alternate theories), driving on a revoked license, which was revoked
because of a prior DUI conviction, and violation of Tennessee Code Annotated section
55-9-407, failure to dim his headlights.

        An exhaustive summary of the testimony is not necessary in this appeal.
Basically, at approximately 12:15 a.m., on October 17, 2017, Defendant was operating a
Chevrolet Silverado northbound on Christmasville Road. Deputy Justin Gross was on
duty driving southbound. There was a vehicle between 200 and 300 feet, also going
southbound, in front of Deputy Gross. Deputy Gross testified that as Defendant passed
the vehicle in front of Deputy Gross, and as Defendant was 150 to 200 feet from Deputy
Gross, Defendant turned on the high beams of his headlights. Deputy Gross testified that
he “flicked” his headlights on and off high beam several times to let Defendant know that
his lights were on too bright, but Defendant did not dim his lights and the glare prevented
Deputy Gross from looking straight ahead. Deputy Gross turned around in the road,
followed Defendant down Holland Lane, and turned on his blue lights initiating a stop as
Defendant pulled into the driveway of his home. Deputy Gross testified he made the stop
because Defendant unlawfully turned on his high beam lights and obstructed the deputy’s

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vision. Deputy Gross could not recall how fast he was driving when he saw Defendant’s
vehicle.

       Defendant’s testimony directly contradicted the pertinent testimony of Deputy
Gross. Defendant testified that the vehicle in front of Deputy Gross did have its lights on
dim, but Deputy Gross had his lights on bright. Defendant stated that his lights were on
dim, and when he had passed the first car he flashed his high beams on and off one time
to let Deputy Gross know his lights were on bright. Defendant testified that he was
within 200 feet of Deputy Gross when Defendant passed the vehicle traveling in front of
Deputy Gross. Defendant stated he was driving the posted speed limit of 40 miles per
hour. Defendant could not say whether Deputy Gross flicked his own lights because
Defendant was blinded and had to look at the ditch as he went by Deputy Gross.

       The parties’ respective closing arguments were based upon which side provided
the more credible evidence. Defendant did not argue that a violation of Tennessee Code
Annotated section 55-9-407 was not a crime. Thus, the State had no reason to address
that argument. The trial court took the matter under advisement and filed a written order
granting the motion to suppress. The order provides in pertinent part:

                TCA § 55-9-4[0]7 does not provide that a violation of this section
        is a criminal offense. Further, it does not provide for a fine or other
        penalty (TCA § 55-9-4[0]7). Chapter 9 is titled equipment-lighting
        regulations. There is not a catch-all provision as contained in TCA § 55-
        8-103, providing that any offense without a prescribed penalty is a class
        C misdemeanor. The Court further notes that throughout Chapter 9 of
        title 55, there are specific penalties at the end of many sections. In Part 4
        of Title 55 Chapter 9, most sections have a prescribed penalty.
        Specifically, TCA § 55-9-401, 402, 403, 404, 405, 406, 410, 414, and
        415 all classify the level of misdemeanor a violation of that section
        carries. However, TCA § 55-9-407 does not indicate that it is a criminal
        offense caring [sic] a misdemeanor penalty and/or fine. If the legislature
        had intended the failure to follow this section to be a crime, it would
        have given a penalty for violating the section. Since the actions of the
        defendant could not have been a crime or an attempt to commit a crime,
        the officer could not have had probable cause to believe that the
        defendant had committed or was about to commit a crime. Further, there
        was no testimony from the officer to establish reasonable suspicion a
        crime had been or was about to be committed.




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               Therefore, the Court finds the stop of the defendant was without
        probable cause or reasonable suspicion that a crime had been or was
        about to be committed.

               Therefore, the motion to suppress is GRANTED.

        As all evidence was suppressed, the State’s motion to dismiss the indictment, so
that it could appeal as of right, was granted.

       Analysis

        We are compelled to mention that the order granting the motion to suppress was
filed on February 6, 2019. Twenty-two days later, the State appeared before the trial
court and moved to dismiss all counts except the count charging a violation of Tennessee
Code Annotated section 55-9-407, which occurred prior to the constitutional violation.
However, in open court, the prosecutor said, “But after reading the Court’s order it
sounds like that, according to the order, then that would be dismissed, as well, because
that’s not a criminal offense.” Furthermore, the State acknowledged to the trial court that
an appeal was being considered. It is puzzling why the State failed to do the minimal
amount of research required to support a meritorious motion for the trial court to
reconsider its ruling prior to moving to dismiss the charges, especially since the ruling
was based upon a legal theory not raised or addressed by either party.

       The State has two arguments in its appeal. First, it argues that the trial court erred
by ruling that a violation of Tennessee Code Annotated section 55-9-407 is not a criminal
act; second, it argues that the evidence clearly shows that Deputy Gross had a reasonable
suspicion that Defendant had violated Tennessee Code Annotated section 55-9-407,
which justified the traffic stop. We agree with the State’s first argument. We disagree
with the State’s second argument because it relies primarily upon testimony of only
Deputy Gross. In its order, the trial court referred to some of Deputy Gross’s testimony,
but did not make any credibility determinations of either of the two witnesses. Also in its
remarks stating that it was taking the matter under advisement, the trial court
acknowledged it would have “to do the math” on distance and the time period for the
vehicles to pass each other “to see if it could even all take place.” The State’s argument
on the merits of the case is based upon its own findings of facts, which neither the State
nor this Court can make.

       (1) Is Violation of Tennessee Code Annotated section 55-9-407 a Crime

       Tennessee Code Annotated section 55-9-407 provides as follows:

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       55-9-407. Multiple beam road lighting equipment – Use.

               Whenever the road lighting equipment on a motor vehicle is so
        arranged that the driver may select at will between two (2) or more
        distributions of light from headlights or lamps or auxiliary road lighting
        lamps or lights, or combinations thereof, directed to different elevations,
        the following requirements shall apply while driving during the times
        when lights are required:

               (1) When there is no oncoming vehicle within five hundred feet
        (500′), the driver shall use an upper distribution of light; provided, that a
        lower distribution of light may be used when fog, dust, or other
        atmospheric conditions make it desirable for reasons of safety, and when
        within the confines of municipalities where there is sufficient light to
        render clearly discernible persons and vehicles on the highway at a
        distance of five hundred feet (500′) ahead and when following another
        vehicle within five hundred feet (500′); and

               (2) When within five hundred feet (500′) of an oncoming vehicle,
        a driver shall use a distribution of light so aimed that the glaring rays
        therefrom are not directed into the eyes of the oncoming driver.

       Tennessee Code Annotated section 55-10-301(a) provides as follows:

               (a) Any person violating any of the provisions of chapters 8 and 9
        of this title and parts 1-5 of this chapter where a penalty is not
        specifically prescribed commits a Class C misdemeanor.

      Thus, clearly violation of the provisions of Tennessee Code Annotated section 55-
9-407 is a Class C misdemeanor, and the trial court erred by granting the motion to
suppress on the sole basis that violation of section 55-9-407 is not a criminal offense.

      (2) Does the Remaining Evidence Require Reversal of the Trial Court’s Judgment
and Denial of the Motion to Suppress

       It is important to note that the State is the appellant in this case. While the State is
correct that the trial court erred in its legal basis for granting Defendant’s motion to
suppress, Defendant did not assert that basis as a legal theory to grant the motion to
suppress. Nevertheless, as the appellant, the State argues on the merits that the trial court
erred granting the motion to suppress on the basis that the evidence justified the stop
when it is clear that a violation of section 55-9-407 is a crime. We have already pointed
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out that the State’s argument primarily relies upon the State’s determination that Deputy
Gross is credible and Defendant is not. Only the trial court’s credibility determinations
apply. We note that without credibility determinations, when a trial court merely states
that “witness #1 testified that . . . ,” this is not a finding of fact – at most it is just part of
a summary of the testimony.

        If we were to address the merits of Defendant’s motion to suppress, as the State as
appellant asks us to do, the only finding of facts made by the trial court would require a
summary affirmance of the trial court’s order pursuant to Rule 20 of the Rules of the
Court of Criminal Appeals of Tennessee. However, we decline to do so in the interests of
justice. Neither can we simply remand the case for a findings of fact and a determination
of the credibility of the witnesses and then rule on the appeal, which we would normally
do in a similar situation when findings of fact are inadequate. The posture of this case is
unique by the situation of the trial court’s ruling. The only finding of fact necessary for
the trial court to make its ruling were the findings it did make: Deputy Gross and
Defendant were traveling in opposite directions when Deputy Gross decided to make a
traffic stop of Defendant on the sole basis that Deputy Gross believed Defendant had
violated a criminal offense by not abiding with the requirement of section 55-9-407. This
was all the trial court found, and all that was necessary for the trial court to make its
ruling, erroneous as it was.

       Accordingly, this Court is unable to properly review on the merits any issue in this
appeal, except our determination that the trial court erred in its ruling that a violation of
Tennessee Code Annotated section 55-9-407 is not a crime.

        It is the right and the obligation of the trial court to again review all the evidence
submitted at the suppression hearing and make a ruling based upon appropriate (and
clear) findings of fact and credibility determinations. In appropriate situations, clear and
concise findings of fact can be made without stating that one witness is totally credible
and the other witness is not credible. The finder of fact (which is the trial court here) can
find a witness credible in some testimony and not credible in other testimony. State v.
Odom, 928 S.W.2d 18, 23 (Tenn. 1996). A lack of credibility does not solely mean that a
witness has lied. A witness can be speaking entirely truthfully as to his or her perception
of what is seen, heard, smelled, or felt, but other evidence of weather, noise, odors,
distance, etc. may factor into the ultimate credibility determinations made by the finder of
facts.

      We have no idea of what determinations the trial court as the finder of facts will
make upon remand. After making appropriate findings of fact, the trial court may
conclude that the motion should be denied. If so, the matter would not be appropriate for
review by this Court in this Rule 3 appeal because the order could only be appealed by
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Defendant as an interlocutory appeal or upon a negotiated guilty plea with a certified
question of law. See Tenn. R. App. P. 9, 10; Tenn. R. Crim. App. 37(b)(2)(A). This case
is, however, before this Court as an appeal as of right by the State. The trial court may
make appropriate findings of fact and again conclude that the motion must be granted.
Faced with appropriate findings of fact and the discretion this Court must give to the trial
court in such situations, the State might choose not to appeal. Odom, 928 S.W.2d at 23;
State v. Jones, 802 S.W.2d 221, 223 (Tenn. Crim. App. 1990).

                                     CONCLUSION

       Accordingly, we reverse the trial court’s judgment granting the motion to
suppress. However, our ruling is not a determination that the motion should be denied.
We leave intact the judgment dismissing the indictment at this time. The case is
remanded to the trial court to make appropriate findings of fact in accordance with this
opinion. Based upon its findings of facts, the trial court must make a ruling either
granting the motion to suppress, or denying the motion to suppress. If the trial court
denies the motion, the indictment must be reinstated. After the trial court’s ruling, the
aggrieved party may seek any relief it may be entitled to seek.


                                   ____________________________________________
                                   THOMAS T. WOODALL, JUDGE




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