        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                January 27, 2010 Session

              STATE OF TENNESSEE v. JOHN AYRES HEWITT

               Direct Appeal from the Criminal Court for Knox County
                       No. 86629    Bobby Ray McGee, Judge




               No. E2009-01314-CCA-R3-CD - Filed November 29, 2010


Appellant John Ayres Hewitt was convicted of driving under the influence (DUI), third
offense and several other offenses stemming from a traffic stop and ensuing blood alcohol
test. He was given an effective sentence of 11 months and 29 days, which was to be
suspended after 150 days in custody. On appeal, Appellant contends that the arresting officer
lacked probable cause to initiate the traffic stop. Appellant cites the videotape from the
officer’s dashboard camera as evidence that he did not engage in any suspicious driving and
as a basis for discrediting the officer’s testimony. Based upon our review, we see no error
in the trial court’s denial of Appellant’s motion to suppress. However, we have determined
that there are errors in the sentences noted on the judgments in counts ten and eleven. We
therefore must remand the case to the trial court to address those judgments. The judgments
are affirmed in all other respects.

    Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court are
                        Affirmed in Part; Case Remanded.

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and D. K ELLY T HOMAS, J R., J., joined.

John E. Eldridge (on appeal) and Donald R. Coffey (at trial), Knoxville, Tennessee, for the
appellant, John Ayers Hewitt.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant
Attorney General; Randall E. Nichols, District Attorney General; and Sarah Winningham,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION
                                        I. Factual Background

       Knoxville Police Officer Clayton Madison was on patrol near the intersection of
Middlebrook Pike and Vanosdale on March 21, 2006, when he received a “be on the
lookout” (BOLO) notice regarding a possible drunk driver. Officer Madison then saw a car
matching the description given in the BOLO. He pursued the car, which Appellant was
driving, and said he saw it veering in and out of its lane. Officer Madison pulled Appellant
over and approached the car, where he found two open containers of beer. Appellant refused
to perform any field sobriety tests, so Officer Madison transported him to the University of
Tennessee Medical Center for a blood test. The test revealed Appellant’s blood alcohol level
was above the legal limit. Appellant was charged with DUI and several other traffic
offenses.

        Appellant moved to suppress the evidence gathered from Officer Madison’s stop.
Appellant asserted that Officer Madison did not have reasonable suspicion for the stop and
that the video from Officer Madison’s dashboard camera revealed that Appellant was not
driving in a suspicious manner.

        Officer Madison was the only witness to testify at the suppression hearing. He
testified that he had been with the Knoxville Police Department for five years and had been
trained in DUI detection and investigation.

       Officer Madison recalled that he received a BOLO regarding a possible drunk driver
and then saw Appellant’s car, which matched the description. He turned onto Middlebrook
Pike and “observe[d] [Appellant] for a while.” Officer Madison testified that he witnessed
Appellant “[drive] outside his lane lines a couple of times over a considerable distance.” He
said that when Appellant drove over the lane line, “[i]t wasn’t like he bounced over and then
bounced back. He drove across for a considerable distance in relation to the way we were
driving.” He further testified that Appellant “almost struck one car.”

       On cross-examination, the defense played a portion of the video recorded by Officer
Madison’s dashboard camera.1 Officer Madison said that the video showed Appellant
driving on the lane line “for quite a while.” However, he acknowledged that the video did


        1
           It appears that the video was first played on cross-examination. The transcript does not reflect that
the State played the video during direct examination, and the defense introduced the video into evidence at
the conclusion of Officer Madison’s testimony. The record is not clear, however, because page 9 of the
motion to suppress hearing transcript, which likely contains the hearing’s first reference to the video, is not
contained in the record. Instead, the ninth page of the suppression hearing transcript in the record before us
appears to be a duplicate of page 9 of the trial transcript.

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not show Appellant nearly hit another car; Officer Madison testified that the near-collision
took place off camera. Officer Madison also testified on cross-examination that he had to
sound his horn “a couple of times” before he could get Appellant’s attention to pull him over.

       The court heard argument from both sides at the conclusion of Officer Madison’s
testimony. Appellant asserted that the video did not show any erratic driving and instead
showed him immediately and properly react to Officer Madison’s signals. The State
countered that Officer Madison testified about more than what is depicted in the video and
that Officer Madison’s testimony provided a sufficient basis for the stop.

        The court agreed with the State. It noted that it was “required to consider [Officer
Madison’s] testimony.” The court then discounted the evidentiary value of the video,
explaining that because the camera was stationary, it could not “necessarily see[] everything
that the officer could have seen.” The court accepted Officer Madison’s testimony that he
saw Appellant cross the lane line “on multiple occasions” and nearly hit another car. It
specifically found that “this officer . . . was credible that he saw things [that] may not have
been on the videotape.” It thus found that Officer Madison had “at least a reasonable
suspicion” justifying the stop and denied Appellant’s motion.

       Officer Madison’s trial testimony repeated much of his testimony at the suppression
hearing. It diverged slightly when he said that Appellant “almost struck a couple of
vehicles,” rather than just one. However, he again stated that he witnessed Appellant cross
the lane line and nearly hit another car. He said that those events occurred before Appellant’s
car was clearly visible on the video.

       On cross-examination at trial, Officer Madison testified that Appellant “was a
considerable distance in front of [him] when [Appellant] was across the line.” He also
explained that there were “rather large curves” on the particular stretch of road and therefore
there were periods where, because his “camera point[ed] straight ahead,” it did not “catch
[Appellant].” He conceded that the video did not show Appellant swerving or weaving, but
Officer Madison said he was able to move his head to have a clear view of Appellant.

        The court reaffirmed the suppression decision. It explained that “in order to sustain
[Appellant’s] position, [the court] would have to reject the officer’s testimony.” It found “no
basis for doing that.” It further noted that it “observed the officer’s demeanor and listened
to his voice, and [it] cannot just reject [his testimony] out of hand.”

       Appellant later filed a motion for a new trial, arguing that the trial court erred in
denying the motion to suppress. At the hearing on the motion, Appellant contended that the
video not only failed to confirm Officer Madison’s testimony, it actually counseled against

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finding that testimony credible. Appellant argued that “it stretches all sense of reason” to
believe that Officer Madison could have seen what he testified he saw because the video
shows that he had to drive quickly for a significant period just to catch up to Appellant.

       The trial court again rejected Appellant’s position, reiterating that it “could not find
a basis to find that . . . [Officer Madison] was being deceptive or could not find a basis to
reject his testimony.” Instead of having an “actual basis” to discredit Officer Madison’s
testimony “other than just to speculate that the officer was lying,” the court would not
reconsider its decision. It denied Appellant’s motion, and this appeal followed. The only
issue on appeal is whether the trial court erred in denying the motion to suppress.

                                         II. Analysis

        We begin by addressing the appropriate standard of review. Citing our supreme
court’s decision in State v. Binette, 33 S.W.3d 215 (Tenn. 2000), Appellant contends that,
because “the events in the instant case leading to [Appellant’s] arrest were captured on a
police dashboard video . . . a court reviewing [Appellant’s] appeal is in the same position as
the trial court to examine the evidence,” and therefore should apply a de novo standard of
review “without a presumption of correctness.” We disagree.

        Binette applies only “when a trial court’s findings of fact at a suppression hearing are
based on evidence that does not involve issues of credibility.” 33 S.W.3d at 217. Because
“[trial] courts are uniquely positioned to observe the demeanor and conduct of witnesses,”
the deferential standard of review described in State v. Odom, 928 S.W.2d 18 (Tenn. 1996),
is appropriate when the credibility of a witness is at issue. Binette, 33 S.W.3d at 217. “But
when a court’s findings of fact at a suppression hearing are based solely on evidence that
does not involve issues of credibility . . . the rationale underlying a more deferential standard
of review is not implicated.” Id. (emphasis added). In Binette, the State presented only a
police videotape of the defendant’s driving; it did not present any live witnesses. See id. at
216. Thus, the de novo standard was appropriate. Id. at 217.

        Appellant’s case differs from Binette in that the trial court relied upon more than just
the video evidence in making its factual findings and denying Appellant’s motion. Here, the
arresting officer did testify. Indeed, he testified about events that are not depicted in the
video. That live, in-court testimony created issues of credibility for the trial court. Moreover,
Officer Madison’s testimony, which the trial court specifically accredited, was a critical
component in its decision. The credibility issues take this case outside the purview of
Binette. Therefore, we review the trial court’s suppression decision under the deferential
Odom standard. See State v. Brown, 294 S.W.3d 553, 561 (Tenn. 2009) (where the video
evidence did not depict all of the pertinent events and where “the trial court’s findings of fact

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were also based on live testimony,” the “de novo review does not apply”); see also State v.
Garcia, 123 S.W.3d 335, 342-43 (Tenn. 2003).

        Under Odom, “[q]uestions 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.” 928 S.W.2d at 23. Thus, “a trial court’s findings of fact in a suppression
hearing will be upheld unless the evidence preponderates otherwise.” Id.; see also State v.
Mike Brotherton, No. W2007-02016-SC-R11-CD, __ S.W.3d __, 2010 WL 3733914, at *3
(Tenn. Sept. 27, 2010). Nevertheless, appellate courts will review both questions of law and
the trial court’s application of law to the facts purely de novo. See State v. Hanning, 296
S.W.3d 44, 48 (Tenn. 2009); State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001). Furthermore,
the State, as the prevailing party, is “entitled to the strongest legitimate view of the evidence
adduced at the suppression hearing as well as all reasonable and legitimate inferences that
may be drawn from that evidence.” Odom, 928 S.W.2d at 23; see also Brotherton, No.
W2007-02016-SC-R11-CD, __ S.W.3d __, 2010 WL 3733914, at *3.

        Both the Fourth Amendment to the United States Constitution and article I, section
7 of the Tennessee Constitution provide protection for citizens against “unreasonable
searches and seizures.”2 Generally, a warrantless search is presumptively unreasonable and
thus violates constitutional protections. See State v. Walker, 12 S.W.3d 460, 467 (Tenn.
2000). Evidence derived from such a search is subject to suppression unless the State
“demonstrates by a preponderance of the evidence that the search or seizure was conducted
pursuant to an exception to the warrant requirement.” State v. Keith, 978 S.W.2d 861, 865
(Tenn. 1998). One of the permissible exceptions is met when an officer temporarily seizes
a citizen if the officer “has a reasonable suspicion, based upon specific and articulable facts,
that a criminal offense has been, is being, or is about to be committed.” Id. Thus, the
question here is whether Officer Madison had a reasonable suspicion that Appellant was
committing or had committed a crime. See Hanning, 296 S.W.3d at 49.

       While it is not possible to precisely articulate what “reasonable suspicion” means, it
is a “common sense, nontechnical conception” dealing “with the factual and practical
considerations of everyday life on which reasonable and prudent men, not legal technicians,
act.” Keith, 978 S.W.2d at 867 (quoting Ornelas v. United States, 517 U.S. 690, 699 (1996)).
At a minimum, however, there must be more than an officer’s mere “inchoate and
unparticularized suspicion or hunch.” Hanning, 296 S.W.3d at 49 (quotation marks omitted).




        2
         In State v. Downey, our supreme court noted that “article I, section 7 is identical in intent and
purpose with the Fourth Amendment.” 945 S.W.2d 102, 106 (Tenn. 1997) (quotation marks omitted).

                                                   -5-
       The analysis of whether an officer had reasonable suspicion is “a fact-intensive and
objective analysis,” which requires “reviewing the record for specific and articulable facts.”
Id. (quotation marks omitted); see also Brotherton, No. W2007-02016-SC-R11-CD, __
S.W.3d __, 2010 WL 3733914, at *3. In determining whether an officer had reasonable
suspicion, “a court must consider the totality of the circumstances.” Garcia, 123 S.W.3d at
344 (quoting Alabama v. White, 469 U.S. 325, 330 (1990)). “[R]easonable suspicion can be
established with information that is different in quality or content than that required to
establish probable cause and can arise from information that is less reliable than that required
to show probable cause.” Hanning, 296 S.W.3d at 49 (quotation marks omitted). It “does
not require an actual violation of the law.” Brotherton, No. W2007-02016-SC-R11-CD, __
S.W.3d __, 2010 WL 3733914, at *4. However, there must be “some minimal level of
objective justification for making the stop.” Keith, 978 S.W.2d at 867 (quoting United States
v. Sokolow, 490 U.S. 1, 7-8, (1989)).

       The record does not preponderate against the trial court’s factual findings that
underpinned Officer Madison’s reasonable suspicion. Officer Madison testified that he saw
Appellant “weaving over the lane lines” and that “each time” Appellant crossed the line, “it
was [over] a considerable distance.” As Office Madison explained, “[i]t wasn’t like
[Appellant] bounced over and then bounced back.” Moreover, he testified that Appellant
almost hit another car. Furthermore, Officer Madison specifically testified that much of what
he saw, and much of what he testified about, was not depicted on the video because the view
from the camera was obscured by other cars, the date stamp, and the winding nature of the
road.

       The trial court specifically accredited Officer Madison’s testimony. In particular, the
court credited Officer Madison’s testimony “that he saw things . . . [that] may not have been
on the videotape.” The court explained that it did not “think that [the video] necessarily
[showed] everything that the officer could have seen.” As the court later noted at trial, “in
order to sustain [Appellant’s] position, [the court] would have to reject the officer’s
testimony,” which the court found “no basis” for doing given its assessment of “the officer’s
demeanor and . . . voice.” It simply could not “just reject out of hand what he has told the
Court.”

       There is no dispute that if Officer Madison’s testimony is accurate, he had a
reasonable suspicion to believe that Appellant was violating Tennessee Code Annotated
section 55-10-401 (driving under the influence) or had violated section 55-8-123 (failure to
drive in a single lane). The question at this point is whether the video evidence so strongly
contradicts Officer Madison’s testimony as to make the record as a whole preponderate
against the trial court’s findings. We conclude that it does not.



                                              -6-
        Based on our close examination, the video neither confirms Officer Madison’s
testimony nor refutes it. The most obvious aspects of the video are that the camera’s angle
is fixed and the image it captures is obscured by a date stamp. In fact, the lane directly in
front of Officer Madison’s cruiser is covered by an “S” and a “2.” The image is also slightly
obscured by raindrops. As a result, the video does not clearly reflect Appellant’s car’s
movements during the early moments of Officer Madison’s pursuit. The video does reveal
the road’s topography, which Appellant contends disproves Officer Madison’s testimony. In
our view, the topography depicted in this video is not so extreme that we must discount
Officer Madison’s testimony that he saw things that were not on the screen. Quite simply,
the video does not contradict Officer Madison’s testimony that he repeatedly had a line of
sight that the camera did not. We therefore reject Appellant’s position that “the video shows
that it would have been impossible for Officer Madison to have had a sight line good enough
for him to observe specific and articulable facts” and that it “reveals Officer Madison was
simply too far behind [Appellant’s] car for him to even identify the car, much less observe
specific and articulable facts about its movement.” The video does not overcome Officer
Madison’s testimony and is not enough to demonstrate that the record preponderates against
the trial court’s findings of fact.

        We observe from the record that the judgments of conviction reflect that the court
sentenced Appellant to 6 months, to be served on probation, on count ten (failure to drive
within a single lane of traffic in violation of Tennessee Code Annotated section 55-8-123)
and count eleven (failure to provide evidence of financial responsibility in violation of
Tennessee Code Annotated section 55-12-139). However, the transcript of the sentencing
hearing reflects that the court ordered both sentences to be 30 days, to be served on
probation. “This court has previously noted that when there is a discrepancy between what
is reflected in the sentencing hearing transcript and what is on the judgment form, the
transcript controls.” State v. Adrian Porterfield, No. W2006-00169-CCA-R3-CD, 2007 WL
3005349, at *13 (Tenn. Crim. App. at Jackson, Oct. 15, 2007). In addition, the six-month
sentence in the judgment for the violation of section 123 exceeds the statutory maximum.
That violation is a class C misdemeanor, Tenn. Code Ann. § 55-8-103, and class C
misdemeanors are punishable by a maximum sentence of thirty days “unless otherwise
provided by statute,” id. § 40-35-111(e)(3). Moreover, the sentence imposed for failure to
provide proof of financial responsibility also exceeds the statutory maximum. Tennessee
Code Annotated section 55-12-139(c) limits the punishment to a maximum find of $100.
Both the judgment and the transcript order incarceration for the violation of section 139, but
impose no fine. Therefore, the case must be remanded to the trial court for correction of the
judgment in count ten (violation of Tennessee Code Annotated section 55-8-123) and for a
hearing to determine the appropriate fine for count eleven (violation of Tennessee Code
Annotated section 55-12-139). See State v. Charles Edward Graham, No. E2005-02937-
CCA-R3-CD, 2008 WL 199851, at *16 (Tenn. Crim. App. at Knoxville, Jan. 24, 2008)

                                             -7-
(remanding for correction of judgment after the trial court sentenced the defendant to thirty
days in custody for violating section 139).

                                     III. Conclusion

       Based upon our review, we conclude that this case should be remanded to the trial
court for correction of the judgment on count ten and for correction of the judgment and a
hearing to determine the appropriate fine on count eleven. The judgments are affirmed in all
other respects.

                                                   _________________________________
                                                   NORMA McGEE OGLE, JUDGE




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