           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT JACKSON
                                  March 5, 2014 Session

                STATE OF TENNESSEE v. SHANA SCHAFER

              Direct Appeal from the Criminal Court for Shelby County
                  No. 13-00261      Carolyn Wade Blackett, Judge




                  No. W2013-02031-CCA-R9-CD - Filed May 5, 2014


A Shelby County grand jury indicted the Defendant, Shana Schafer, for driving while under
the influence of an intoxicant (“DUI”) and DUI with a blood alcohol content (“BAC”) of
greater than .08 percent. The Defendant filed a motion to suppress the results of the blood
alcohol test based upon a violation of State v. Sensing, 843 S.W.2d 412 (Tenn. 1992). The
trial court granted the Defendant’s motion to suppress, and the State filed for an interlocutory
appeal. The trial court granted the State’s application, and, on appeal, the State contends that
the trial court erred when it granted the Defendant’s motion to suppress. After a thorough
review of the record and applicable authorities, we conclude that the trial court did not abuse
its discretion when it granted the Defendant’s motion to suppress. As such, we affirm the
trial court’s judgment.

Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Criminal Court Affirmed

R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which T HOMAS T.
W OODALL and R OGER A. P AGE, JJ., joined.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Senior Counsel;
Amy P. Weirich, District Attorney General; Stephanie Johnson, Assistant District Attorney
General, for the appellant, State of Tennessee.

Clairborne H. Ferguson (at hearing and on appeal), and Andrew Plunk (at hearing), Memphis
Tennessee, for the appellee, Shana Schafer.

                                          OPINION
I. Facts

       This case arises from a traffic stop of the Defendant’s vehicle that occurred on August
5, 2012. In relation to this stop, a Shelby County grand jury indicted the Defendant for DUI
and DUI with a BAC of more than .08 percent. Before trial, the Defendant filed a motion
to suppress the results of the blood alcohol test. At a hearing on this motion, the following
evidence was presented: Kyl Sathongnhoth, an officer with the Germantown Police
Department, testified that he arrested the Defendant on August 5, 2012. He explained the
events leading to the Defendant’s arrest, stating that his supervisors called him and reported
that there was a young lady in a vehicle who was crying “hysterically.” His supervisors
reported that they had detected an odor of an intoxicant, and they called Officer
Sathongnhoth to the scene to conduct a “DUI test.”

        When Officer Sathongnhoth arrived at the scene at around midnight, he saw the
Defendant inside her car parked in the parking lot of an Exxon gas station. He first talked
to his supervisors, and then he approached the Defendant, who was still seated inside her car.
Officer Sathongnhoth recalled that the Defendant was sitting in the driver’s seat, crying. The
officer said the Defendant was “crying pretty hysterically,” and he asked her for her
identification. He noted that her wallet was empty, and the contents of her wallet were
scattered on the floor of her car. Officer Sathongnhoth said he attempted calm the Defendant
while the Defendant and the officer worked together to locate her identification. The officer
noted the odor of intoxicant coming from the Defendant’s breath.

       Officer Sathongnhoth said that he asked the Defendant to submit to three field
sobriety tasks: the horizontal gaze nystagmus, the walk and turn, and the one-leg stand. The
officer said that it took some time to calm the Defendant before she could focus on his
instructions. During the instructional phase of the walk and turn test, the Defendant
exhibited difficulty balancing. When she started the walking phase, she used her arms, did
not touch her heel to toe, and, instead, walked casually. Officer Sathongnhoth said that the
Defendant’s not following his instructions in multiple instances were indicators of
intoxication. About the one-leg stand test, the officer testified that the Defendant was
swaying “quite a bit” while she attempted to balance and that she had a hard time balancing.
These were also indicators of her intoxication.

        After the officer completed administering the field sobriety tests, he was of the
opinion that the Defendant was intoxicated and should not be operating a motor vehicle.
Officer Sathongnhoth placed the Defendant in his patrol car, and he read her the advice of
rights and the Tennessee Complied Consent Law. He then asked her to submit to a blood
alcohol test, and the Defendant consented.

       Officer Sathongnhoth testified that there were certain procedures he was required to
follow before the blood alcohol test could be administered. He said that one of the
requirements was that before administering the test he first observe the Defendant for twenty

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minutes for factors that might effect the test results. He said that the testing machine was
programmed for twenty-one minutes. After the twenty-one minute observation period, the
Defendant was allowed to blow into the Intoxymeter. Officer Sathongnhoth testified that he
observed the Defendant for the twenty-minute observation period. He denied that he was
doing paperwork during this time frame.

       Officer Sathongnhoth testified that, generally, during the observation period, he was
confined to the seat of his vehicle with the Defendant located in the backseat of his vehicle.
He, however, spent most of the time talking to the suspect and observing the suspect before
the suspect blew into the Intoxymeter. He said he would try to turn around and look at the
suspect in the face, and he also had an LED screen in front of him displaying the picture from
a camera that was pointed directly at the suspect in the backseat.

       Officer Sathongnhoth said that during the period he observed the Defendant in the
backseat of his vehicle, he did not see her eat or drink anything, nor did he see her put
anything in her mouth, smoke, or regurgitate. All of the Defendant’s actions were recorded
through the DVD recorder in Officer Sathongnhoth’s car, and the DVD recording was
admitted into evidence. Officer Sathongnhoth said that, at the conclusion of the observation
period, the Defendant signed a form acknowledging that she had not placed anything in her
mouth during the observation period and that she would take the test.1

        Officer Sathongnhoth testified that at one point during the observation period, he
observed the Defendant wipe her nose. He said that he did not see her put anything in her
mouth at that point in time. He said that a “rustling” noise could be heard on the DVD
recording. He explained that he had his keyboard on his lap, and his microphone was located
on his hip; therefore, when he moved around, it made a sound. Officer Sathongnhoth
testified that during the duration of the twenty-one minute observation period, he was able
to observe the Defendant either eye-to-eye or on the police monitor.

        During cross-examination, Officer Sathongnhoth identified the sound of his gun-belt
and the seat creaking. He then acknowledged that the sound of paper rustling could be heard
at several points during the observation period. The officer acknowledged that the video
showed him reaching his arm over to the passenger seat. He denied that he moved the
keyboard to the passenger seat so that he could work on paperwork. He agreed that the video
showed him moving the keyboard. He could not recall, however, whether he was reaching
to get his keyboard or whether he was placing the keyboard in the passenger seat. He said
that there were times that he moved the keyboard so that he could more freely move in the
driver’s seat of the vehicle, as opposed to keeping it on his lap for the duration of the

       1
           This form was introduced into evidence but is not included in the record on appeal.

                                                      3
observation period.

        Officer Sathongnhoth identified another time that he could be seen in the “reflection”
moving. He said he did not recall specifically what he was doing. He offered, however, that
it was getting close to the end of the observation period and that he may have been preparing
to turn around and give the Defendant further instructions. He said he was moving his
clipboard, which was in his lap. The officer explained that he had to fill out all of his
paperwork and the arrest tickets before the observation period so that he would have the
necessary information to input into the Intoxymeter machine.

        Officer Sathongnhoth testified that he watched his screen to observe the Defendant
while he provided her instructions. The officer denied that the rustling of papers was him
filling out paperwork. He said he did not complete any paperwork during the observation
period.

     During redirect examination, Officer Sathongnhoth maintained that while he was
moving in the seat and moving various items around, he was still observing the Defendant.


        Based upon this evidence, the trial court granted the Defendant’s motion to suppress.
In its order, the trial court found:

                On the evening of August 5, 2012, police officers were called out [to]
       the parking lot of an Exxon Gas Station for a welfare check. . . . The
       observing officers noticed the Defendant had the smell of intoxicants on her.
       . . . Officer Sathongnhoth, an officer with the Metro DUI [unit] was called out
       to the scene to observe [the] Defendant. . . . [The] Defendant was in the front
       seat of her vehicle crying. . . . Officer Sathongnhoth spoke with the
       supervisors, then with [the] Defendant, and then confirmed the smell of
       intoxicants on her. . . .

              At this point, Officer Sathongnhoth moved [the] [D]efendant to the
       north end of the parking lot to use it as a safe place for field sobriety tests. . .
       . The officer then performed the standard field sobriety test consisting of the
       horizontal gaze nystagmus, the walk and turn, and the one leg stand. . . . These
       tests were shown in the video marked Exhibit 2.

              Following the tests and on the same video, Officer Sathongnhoth placed
       [the] Defendant in the back of his patrol car. . . . At this point, Officer
       Sathongnhoth advised [the] Defendant of her rights, read [the] Defendant the

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       Tennessee Implied Consent Law, and asked [the] Defendant to submit to a
       Blood Alcohol Concentration (“B.A.C.”) test. . . . To administer this test, the
       machine requires the Officer to wait twenty minutes before allowing [the]
       [D]efendant to breath[e] into the machine. . . . This is required to allow the
       Officer time to observe the Defendant prior to allowing her to complete the
       B.A.C. test. . . . During this twenty minutes, the camera in the patrol car was
       aimed squarely at [the] Defendant, returning video to an LED screen in front
       of Officer Sathongnhoth. . . . In the video during the twenty minute
       observation period, Officer Sathongnhoth can be heard, on a few occasions,
       shuffling items back and forth within his lap. . . . Officer Sathongnhoth further
       testified that he was shifting the items to and from his lap while attempting to
       observe [the] Defendant both on the LED screen and with his own vision. . .
       .

       Based upon these findings of fact, the trial court concluded that Officer Sathongnhoth
had not “continuously” observed the Defendant as required by State v. Sensing, 843 S.W.3d
412, 416 (Tenn. 1992). The trial court stated:

               In the case before the court, Officer Sathongnhoth admitted to shifting
       things in his lap on multiple occasions during the observational period. . . .
       The officer admitted his gaze was shifting from the video screen to the
       [D]efendant during this time. . . . By shifting his gaze on multiple occasions,
       and turning his attention from the [D]efendant without maintaining eye contact
       with the [D]efendant, the Officer diminishes certainty that he adequately and
       accurately observed her continuously during the observational period as
       elaborated on in numerous cases. This, however, would not be entirely
       dispositive, considering examples provided in our courts of how video
       evidence may be used to supplement the officer’s continual gaze during the
       observational period, and that the state may be able to establish its burden
       using such evidence. Fields, 1996 WL 1180706, at *3. As mentioned in that
       example, in such case, an officer would need to establish that he or she was
       able to observe things that may be missed within the video evidence such as
       a silent form of burping or regurgitation. Id. These forms of bodily function
       often occur silently, and may not be easily recorded, but may be picked up by
       the senses of the officer including sight, hearing, and smell, given close
       proximity to the test subject. Korsakov, 34 S.W.3d at 541.

              While the video evidence brought before this court does not definitely
       show that any of these things occurred, it cannot wholly supplant the officer’s
       continuous, eye-to-eye observation. The officer must “be able to testify with

                                              5
       certainty that the defendant did not silently or surreptitiously chew gum, belch,
       or regurgitate.” Fileds, 1996 WL 180706, at *3. In this case, Officer
       Sathongnhoth testified summarily that, though he moved objects about in the
       car and moved his eyes from the [D]efendant to the screen throughout the
       observational period, the [D]efendant did not smoke, put anything in her
       mouth or regurgitate. . . . Officer Sathongnhoth at no point testified to the
       possibility of the [D]efendant burping or burping/regurgitating silently at any
       point during the hearing. . . .

               It should be noted that the burden is not on the Defendant to show any
       of these things happened, but “it is the State’s burden, not the defendant’s, to
       present evidence through the testing officer that the Sensing pre-test
       requirements were met.” McCaslin, 894 S.W.2d at 312. Because the evidence
       has shown that the Officer was likely performing other tasks or was otherwise
       distracted, it is possible that the Officer missed the very functions that he was
       charged with observing. The State, in this case, has not proved by a
       preponderance of the evidence that the observation was adequately performed
       as to prevent a silent or surreptitious bodily function to have occurred outside
       of the range of the camera’s perception. As such, the results of the B.A.C. test
       cannot be admissible. Sensing, 843 S.W.2d at 416; Fields, 1996 180706, at *3.

       It is from this judgment that the State now appeals.

                                          II. Analysis

       On appeal, the State contends that the trial court erred when it granted the Defendant’s
motion to suppress. The State asserts that the record does not support the trial court’s factual
findings and that the trial court’s legal findings are inconsistent with Sensing and its progeny.
The Defendant contends that the trial court did not err because the State did not prove that
Officer Sathongnhoth adequately observed the Defendant for twenty minutes before giving
her a BAC test. We agree with the Defendant.

       A trial court’s factual findings on a motion to suppress are conclusive on appeal unless
the evidence preponderates against them. State v. Binette, 33 S.W.3d 215, 217 (Tenn. 2000);
State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Thus, questions of credibility, the weight
and value of the evidence, and the resolution of conflicting evidence are matters entrusted
to the trial judge, and this court must uphold a trial court’s findings of fact unless the
evidence in the record preponderates against them. Odom, 928 S.W.2d at 23; see also Tenn.
R. App. P. 13(d). The application of the law to the facts, however, is reviewed de novo on
appeal. State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998). We review the issue in the present

                                               6
appeal with these standards in mind.

       In Sensing, our Supreme Court established six elements that the State must prove
before the results of a breath-alcohol test may be admitted:

       (1) the tests were performed in accordance with the standards and operating
       procedure promulgated by the forensic services division of the Tennessee
       Bureau of Investigation, (2) that [the officer] was properly certified in
       accordance with those standards, (3) 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, (4) that the motorist was observed for the requisite 20 minutes prior
       to the test, and during this period, he did not have foreign matter in his mouth,
       did not consume any alcoholic beverage, smoke or regurgitate, (5) evidence
       that [the officer] followed the prescribed operational procedures, [and] (6) [the
       officer must] identify the printout record offered in evidence as the result of
       the test given to the person tested.

843 S.W.2d at 415. The State must establish compliance with these elements by a mere
preponderance of the evidence. State v. Arnold, 80 S.W.3d 27, 29 (Tenn. Crim. App. 2002).
This Court will “presume that the trial court’s Sensing decision is correct unless the
preponderance of the evidence is to the contrary.” Id.

        At issue in the case presently before us is the fourth Sensing requirement, which
requires that the police officer be able to testify that the motorist was observed for the
requisite twenty minutes prior to the test, and during this period, did not have foreign matter
in his or her mouth, did not consume any alcoholic beverage, smoke, or regurgitate. The
purpose of the fourth Sensing requirement is to ensure “that no foreign matter is present in
the defendant’s mouth that could retain alcohol and potentially influence the results of the
test.” State v. Cook, 9 S.W.3d 98, 101 (Tenn. 1999). This requirement has two distinct
elements: first, “the State must demonstrate that the Defendant was observed for twenty
minutes,” and second, “the State must establish that the subject did not smoke, drink, eat,
chew gum, vomit, regurgitate, belch or hiccup during the twenty minutes prior to taking the
test.” Arnold, 80 S.W.3d at 29 (quoting State v. John H. Hackney, No. 01C01-9704-CC-
00152, 1998 WL 85287, at *2 (Tenn. Crim. App., at Nashville, Feb. 20, 1998), perm. app.
denied (Tenn. Nov. 9, 1998)). If the State presents “credible proof establish[ing] that the
subject did not have foreign matter in the mouth, did not consume any alcoholic beverage,
and did not smoke or regurgitate, then the rule is satisfied . . . .” State v. Hunter, 941 S.W.2d
56, 57-58 (Tenn. 1997).



                                               7
       As this Court has stated previously, “Sensing does not require 100 percent
certainty[;]” however, “the State must establish by a preponderance of the evidence that the
defendant’s mouth was free of foreign matter for a period of twenty minutes prior to his
taking the breath-alcohol test.” State v. Brad Stephen Luckett, No. M2000-00528-CCA-R3-
CD, 2001 WL 227353, at *4 (Tenn. Crim. App., at Nashville, March 8, 2001), no Tenn. R.
App. P. 11 application filed.

         In Cook, our Supreme Court held that the fact that a defendant was wearing dentures
at the time of his breath-alcohol test did not preclude the admission of the test results. Cook,
9 S.W.3d at 101. The Court found that where the defendant was observed for the requisite
period of time and nothing unusual was detected, the defendant was asked if he had any
foreign matter in his mouth and replied that he did not, and the intoximeter would have shut
down had it detected the presence of mouth alcohol, the evidence did not “preponderate
against the trial court’s decision to admit the results of the breath-alcohol test . . . .” Id.

       Similarly, in State v. Luckett, this Court has held that the State satisfied the fourth
Sensing requirement even though the officer did not ask the defendant if he had any foreign
matter in his mouth prior to administering the test and did not confirm there was no foreign
matter by visually inspecting the defendant’s mouth. Luckett, 2001 WL 227353 at *1-2, 4.
This Court upheld the admission of the breath-alcohol test results because the administering
officer did not observe anything unusual during the twenty minute observation period and
because the officer did not notice anything during his conversation with the defendant that
would have caused him to believe the defendant had any foreign matter in his mouth. Id. at
*2, 4.

        In State v. McCaslin, 894 S.W.2d 310 (Tenn. Crim. App. 1994), the officer testified
that he placed the defendant in the backseat of his patrol car and drove away from the arrest
scene at 2:20 a.m. Id. at 311. The officer testified that the drive to the police station took
approximately ten minutes. Id. The officer administered the breath-alcohol test at 2:46 a.m.
Id. at 311. Although the defendant was in the officer’s presence for the entire twenty-minute
period, the officer continuously observed the defendant for only sixteen minutes at the police
station prior to administering the breath test. Id. This Court concluded that the officer could
not adequately observe the defendant in the patrol car while driving to the police station. Id.
at 312.

       In State v. Deloit, 964 S.W.2d 909 (Tenn. Crim. App. 1997), the officer observed the
defendant for fifteen minutes while conducting field sobriety tests. Id. at 915. The officer
then watched defendant in the rearview mirror of the patrol car for an additional ten to
thirteen minutes while he completed paperwork in the front seat of the patrol car. Id. The
officer admitted that he could not see the defendant while he was writing. Id. This Court

                                               8
held that the officer did not satisfy the twenty-minute observation period because he did not
continuously observe the defendant for the requisite twenty minutes. Id. at 916.

        In State v. Arnold, 80 S.W.3d 27 (Tenn. Crim. App. 2002), two officers transported
the defendant to the jail. Both officers sat in the front seat of the patrol car, and Defendant
sat handcuffed in the backseat of the patrol car. Id. The testing officer testified that he did
not continuously observe the defendant during the drive to the jail. Id. One of the officers
testified that he took his eyes off the defendant periodically during the drive and while
exiting the vehicle, but the defendant did not belch, regurgitate, or place anything in his
mouth during the twenty-minutes prior to the breath alcohol test. Id. at 28. This Court held
that the State failed to establish by a preponderance of the evidence that the officers complied
with the fourth Sensing requirement. The Court could not conclude that the twenty-minute
observation was satisfied because of evidence of distractions such as road noise and noise
from the police radio and the fact that the defendant was alone in the backseat of the patrol
car. Id. at 30-31.

        In State v. Korsakov, 34 S.W.3d 534 (Tenn. Crim. App. 2000), the officer testified that
he observed the defendant from the time they arrived at the jail at 2:45 a.m. until he
administered the test at 3:19 a.m. Id. at 537. The officer stood across from the defendant and
filled out paperwork during that time period. Id. The officer testified that he would have
heard or smelled anything that the defendant did that could have corrupted the test results.
Id. This Court held that although Sensing does not require an “unblinking gaze for twenty
minutes,” “the officer must be watching the defendant rather than performing other tasks.”
Id. at 540.

      In State v. Harold E. Fields, No. 01C01-9412-CC-00438, 1996 WL 180706 (Tenn.
Crim. App., at Nashville, 1996), no perm. to app. filed, this Court stated as follows:

       That an officer remained in the room with the defendant for twenty minutes
       prior to testing will not satisfy the requirements of Sensing. Sensing requires
       the State to establish that during those twenty minutes nothing occurred which
       would compromise the validity of the breath alcohol test. Where an officer
       can testify that he or she continuously observed the test subject, with his or her
       eyes, for the entire twenty-minute observational period, the State will in almost
       all cases be able to meet this requirement of Sensing.

The fact that “the officer may have looked away from the defendant for a second to check
his watch does not invalidate the entire observation period.” State v. Stanley E. Chatman,
No. M2002-02418-CCA-R3-CD, 2003 WL 22999438 (Tenn. Crim. App., at Nashville, Dec.
23, 2002), perm. app. denied (Tenn. June 7, 2004).

                                               9
       We first note that the State did not submit a copy of the videotape evidence in the
record on appeal. It is the duty of the appellant to prepare an adequate record for appellate
review. Tenn. R. App. P. 24(b). “When a party seeks appellate review there is 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). Without the videotape, we have no ability to review the trial court’s findings
with regard to the rustling or shuffling of the papers during the observation period.

        In light of this and in light of our standard of review, which makes the trial court’s
factual findings on a motion to suppress conclusive on appeal unless the evidence
preponderates against them, we conclude that the trial court did not abuse its discretion when
it granted the Defendant’s motion to suppress. We presume, in the absence of any videotape,
that the officer could be heard shuffling papers during the twenty-minute observation period.
That fact, in combination with the officer’s testimony that he shifted things in his lap on
multiple occasions and his testimony that he shifted his gaze between the video screen and
the Defendant during the observational period, supports the trial court’s finding that “the
Officer was likely performing other tasks or was otherwise distracted, it is possible that the
Officer missed the very functions that he was charged with observing.”

        We also find conclusive, because the evidence does not preponderate against it, the
trial court’s finding the State had not proved by a preponderance of the evidence that the
observation was adequately performed as to prevent a silent or surreptitious bodily function
to have occurred outside of the range of the camera’s perception. Because the evidence does
not preponderate against the trial court’s findings, we conclude that the trial court did not
abuse its discretion when it granted the Defendant’s motion to suppress. As such, the trial
court’s judgment is affirmed.

                                      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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