                                                                                          09/07/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs July 18, 2018

           STATE OF TENNESSEE v. TROY ANTHONY LOZANO

               Appeal from the Circuit Court for Montgomery County
                   No. CC-2016-CR-1510        Ross Hicks, Judge


                            No. M2017-01250-CCA-R3-CD


The defendant, Troy Anthony Lozano, appeals his Montgomery County Circuit Court
jury convictions of simple possession of marijuana, possession of drug paraphernalia,
operating a motor vehicle without two operable tail lights, and violation of the
registration law. In this appeal, the defendant challenges the sufficiency of the convicting
evidence and the denial of his motion to suppress. Discerning no error, we affirm.

            Tenn. R. App. P. 3; Judgments of the Circuit Court Affirmed

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOHN
EVERETT WILLIAMS, P.J., and ROBERT H. MONTGOMERY, JR., J., joined.

Joshua W. Etson, Clarksville, Tennessee, for the appellant, Troy Anthony Lozano.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Assistant
Attorney General; John W. Carney, District Attorney General; and Robert Nash,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

              In December 2016, the Montgomery County Grand Jury charged the
defendant with one count of simple possession of marijuana, one count of possession of
drug paraphernalia, one count of driving a motor vehicle without two operable tail lights,
and violation of the registration law.

              At the May 16, 2017 jury trial, Clarksville Police Department Officer
Holden Hudgin testified that on February 28, 2016, he observed an Infinity automobile
traveling with “the rear of the vehicle . . . not illuminated by any light required by state
law.” Officer Hudgin activated his emergency equipment to initiate a traffic stop. The
driver of the vehicle, later identified as the defendant, pulled the car over but refused to
provide his driver’s license to the officer or otherwise identify himself. Additionally, the
defendant only “had the window cracked about two inches on the passenger side,”
making it difficult for Officer Hudgin to hear him speak. Given the defendant’s refusal to
identify himself or roll the window down to communicate, Officer Hudgin became
concerned for his own safety and asked the defendant to step out of the vehicle.

               When the defendant refused, Officer Hudgin opened the door to the vehicle.
Instead of getting out of the vehicle at that point, the defendant remained in the vehicle
and “attempted to start filming” Officer Hudgin using the camera on his cellular
telephone. The defendant continued to refuse to provide any identifying documents,
telling the officer that “he didn’t have to give it” because “he was traveling and not
driving his vehicle.” Officer Hudgin again asked the driver “to step out of the vehicle so
we can figure out who he is and make sure he didn’t have anything he wasn’t supposed to
have on his person weapons-wise, since he was acting nervous and irrational.” At some
point, the battery in the defendant’s cellular telephone died, and the defendant exited the
vehicle.

              Officer Hudgin requested the presence of a K-9 at the scene “to conduct a
public odor examination of the vehicle.” After the “dog indicated to the odor of narcotics
emitting from the vehicle,” Officer Hudgin searched the interior of the vehicle and
discovered “some particles of green plant like material” that he believed to be marijuana.
Officer Hudgin testified that a field test of the substance, which weighed “less than a
gram,” administered at the scene “came back with a positive indication of THC, which is
the primary active ingredient in marijuana.” Although no further testing of the substance
was performed in this case, Officer Hudgin said that of the “close to a hundred” field
tests he had performed in the course of his duties, none had yielded results different from
those obtained during later laboratory examinations.

             Officer Hudgin also discovered “a black glass pipe . . . stuffed” into “one of
those car windshield like sun visors” that “folds into a circle.” The vehicle’s registration,
which was also found during the search, indicated that the vehicle was registered to Troy
Lozano and that the registration had expired on January 31, 2016.

                During cross-examination, Officer Hudgin testified that the defendant
refused to sign the “state citation” and instead “ask[ed] to see a magistrate.” In order to
effectuate the request, Officer Hudgin placed the defendant under arrest. He said that,
had the defendant simply provided his license and registration at the beginning of the
traffic stop, the entire process would have lasted only “as long as it took . . . to gather his
information, do . . . checks through NCIC and . . . issue him a citation.”



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              During redirect examination, Officer Hudgin said that it was “not normal”
for the suspect in a traffic stop to “start a video on a cell phone.” He said that he believed
that the defendant “was attempting” to “try to argue and have court on the side of the
road” when “his phone died.” Officer Hudgin testified that “this was the first time this
has ever happened” to him despite that he conducts “several traffic stops a night.” He
agreed, however, that the defendant’s attempting to film him was not illegal.

               Clarksville Police Department Officer and K-9 handler Keith Jones testified
that he brought police service dog Codea to the scene of the traffic stop in response to
Officer Hudgin’s call. He said that Codea “is trained to detect the presence of the odor of
a narcotic in the form of marijuana, crack, cocaine, meth, ecstasy[,] and heroin.” Officer
Jones testified that Codea’s reaction, which was captured on the dash camera recording,
indicated “that there either [are] narcotics or there have recently been narcotics inside of
the [defendant’s] vehicle.”

                At the conclusion of the State’s proof, the trial court permitted the
defendant to make an oral motion to suppress the evidence.1 The defendant asked the
trial court to suppress all of the evidence gathered during the traffic stop on grounds that
he “was not operating a motor vehicle at the time.” The defendant elaborated,

                I was not using it as a vehicle to transport or carry persons or
                property for compensation. That was actually in my right of
                locomotion of liberty. I was in my liberty of right of
                locomotion at the time and I was not using it as a motor
                vehicle. . . . I was not engaged in transportation.

The defendant also argued that he “was not in commerce at the time” and that “the officer
also stopped and seized” him without a warrant. The State argued that the issue was
“without merit or any legal basis” and that Officer Hudgin had reasonable suspicion to
stop the vehicle initially and developed probable cause to search the vehicle during the
course of the stop. The trial court denied the motion, observing that even if it accepted
the defendant’s argument as the law, it would not avail him the relief he desired.

              Defense counsel also moved to suppress the evidence seized from the
search of the defendant’s vehicle on grounds that the length of the detention exceeded the
length of time necessary to complete the original objective of the stop. The State
observed that “the defendant himself delayed the time . . . b[]y just not giving any of his
information to law-enforcement in order to issue him a citation.” The trial court denied

1
       The trial court permitted the defendant to argue his own motion despite that he was represented
by counsel.
                                                  -3-
the motion, noting that it was the defendant’s behavior, including his request to be taken
before the magistrate, that lengthened the traffic stop.

              Following a full Momon colloquy, the defendant elected to testify.

               The defendant testified that he had a valid California driver’s license but
refused to provide it to Officer Hudgin “because [he] was not operating as a driver at the
time.” He explained, “I was not using my vehicle as a motor vehicle. I was in my liberty
of locomotion. Which is protected under the fourth, fifth and 14th amendment[s] to the
constitution.” The defendant said that when he told Officer Hudgin that he “was not in
commerce,” the officer “said he doesn’t know what that is or he didn’t care, or something
like that, and then he came around my door and just opened it.” The defendant testified
that he began recording the officer because he was “not engaged in transportation” but
was instead in his “right of locomotion.” He said that he intended to record “the
encounter, and use it later on. But it died, so.” The defendant acknowledged that he had
asked to be taken before a magistrate. The defendant insisted that no odor of a narcotic
emanated from either his person or his vehicle.

             Based upon the foregoing proof, the jury convicted the defendant as
charged of simple possession of marijuana, possession of drug paraphernalia, operating a
motor vehicle without functioning taillights, and violating the registration law.

             Following a sentencing hearing, the trial court imposed sentences of 11
months and 29 days for each of the defendant’s Class A misdemeanor convictions to be
served concurrently as 60 days’ incarceration followed by supervised probation.

              The defendant filed a timely but unsuccessful motion for new trial, which
motion challenged only the sufficiency of the convicting evidence. In this timely appeal,
the defendant revisits this issue and raises a suppression issue.

                                  I. Motion to Suppress

               The defendant asserts that the trial court erred by denying his motion to
suppress the evidence seized during the traffic stop, arguing as he did in the trial court
that he “was NOT ENGAGED IN THAT ACT OF TRANSPORTATION/ NOT
ENGAGED IN COMMERCE that would give the police the authority to regulate [his]
automobile under T.C.A. code 55-9-402.” He contends that because his “automobile was
not being used in a commercial capacity to transport goods[,] property[,] or persons for
any fare, fee, rate, charge or other consideration, or directly or indirectly in connection
with any business, or other undertaking intended for profit,” Officer Hudgin “violated
[his] right of locomotion by stopping [him] for a MOTOR VEHICLE requirement of a
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Tennessee Light law.” He also argues that the officer did not have reasonable suspicion
to stop his vehicle or probable cause to extend the stop long enough to summon the drug-
detection dog. The State contends that the defendant has waived our consideration of this
issue by failing to file a written motion to suppress prior to trial and by failing to include
the issue in his motion for new trial. We agree with the State.

              Tennessee Rule of Criminal Procedure 12(b)(2) provides that a motion to
suppress evidence “must be raised before trial.” Tenn. R. Crim. P. 12(b)(2)(C). “Unless
the court grants relief for good cause, a party waives any defense, objection, or request by
failing to comply with” the “rules requiring such matters to be raised pretrial.” Tenn. R.
Crim. P. 12(f)(1). The defendant’s failure to file a motion to suppress prior to trial bars
our consideration of the claim on appeal.

               The defendant also failed to raise the denial of his motion to suppress in his
motion for new trial. This failure acts as a bar to plenary appellate review of any claim
with regard to the ruling of the trial court on the motion. “[I]n all cases tried by a jury, no
issue presented for review shall be predicated upon error in the admission or exclusion of
evidence . . . unless the same was specifically stated in a motion for a new trial; otherwise
such issues will be treated as waived.” Tenn. R. App. P. 3(e); see also State v. Martin,
940 S.W.2d 567, 569 (Tenn. 1997) (holding that a defendant relinquishes the right to
argue on appeal any issues that should have been presented in a motion for new trial but
were not raised in the motion).

               Although this court may, “[w]hen necessary to do substantial justice, . . .
consider an error that has affected the substantial rights of a party at any time, even
though the error was not raised in the motion for a new trial or assigned as error on
appeal,” Tenn. R. App. P. 36(b), it is our view that the defendant’s claim does not satisfy
the criteria for plain error review. This court will grant relief for plain error pursuant to
Rule 36(b) only when:

              “(1) the record clearly establishes what occurred in the trial
              court; (2) the error breached a clear and unequivocal rule of
              law; (3) the error adversely affected a substantial right of the
              complaining party; (4) the error was not waived for tactical
              purposes; and (5) substantial justice is at stake.”

State v. Cooper, 321 S.W.3d 501, 506 (Tenn. 2010) (quoting State v. Hatcher, 310
S.W.3d 788, 808 (Tenn. 2010)). Here, because the defendant’s claim is utterly without
merit, he cannot establish that a clear and unequivocal rule of law was breached. Indeed,
this court has repeatedly rejected claims like that raised by the defendant. See, e.g., State
v. Booher, 978 S.W.2d 953, 957 (Tenn. Crim. App. 1997); State v. Arthur Jay Hirsch,
                                              -5-
No. M2016-00321-CCA-R3-CD (Tenn. Crim. App., Nashville, Sept. 28, 2017), perm.
app. denied (Tenn. Jan. 18, 2018); State v. Anthony Troy Williams, No. M2012-00242-
CCA-R3-CD (Tenn. Crim. App., Nashville, Oct. 3, 2012); State v. Paul Williams, No.
W2009-02179-CCA-R3-CD (Tenn. Crim. App., Jackson, June 23, 2010); State v. David
A. Ferrell, No. M2007-01306-CCA-R3-CD (Tenn. Crim. App., Nashville, Aug. 7, 2009);
State v. Bobby Gene Goodson, No. E2001-00925-CCA-R3-CD (Tenn. Crim. App,
Knoxville, July 29, 2002).

                                       II. Sufficiency

                The defendant also challenges the sufficiency of the evidence to support his
conviction of simple possession of marijuana, arguing that the State failed to establish
“an unbroken chain of custody, or any chain of custody at all” and failed to present the
field test kit as evidence at trial.

              We review the defendant’s claim of insufficient evidence mindful that our
standard of review is whether, after considering the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S.
307, 319 (1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This
standard applies to findings of guilt based upon direct evidence, circumstantial evidence,
or a combination of direct and circumstantial evidence. State v. Dorantes, 331 S.W.3d
370, 379 (Tenn. 2011).

               When examining the sufficiency of the evidence, this court should neither
re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id.
Questions concerning the credibility of the witnesses, the weight and value of the
evidence, as well as all factual issues raised by the evidence are resolved by the trier of
fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must
afford the State the strongest legitimate view of the evidence contained in the record as
well as all reasonable and legitimate inferences which may be drawn from the evidence.
Id.

              Initially, we observe that the defendant’s claim that the State failed to
establish “an unbroken chain of custody” for the plant-like substance that was admitted
into evidence and submitted to the jury for examination, even if true, would not impact
the sufficiency of the convicting evidence. The defendant did not challenge the chain of
custody of this evidence at trial or in his motion for new trial. As a result, he has waived
any consideration of this issue on appeal. See State v. Hill, 638 S.W.2d 827, 830 (Tenn.
Crim. App. 1982) (holding that defendant waived appellate review of chain of custody
when he “did not object to the introduction of the marijuana on the basis of a defect in the
                                             -6-
chain of custody”).

              In this case, the defendant was charged with simple possession of
marijuana. See T.C.A. § 39-17-418(a) (“It is an offense for a person to knowingly
possess or casually exchange a controlled substance, unless the substance was obtained
directly from, or pursuant to, a valid prescription or order of a practitioner while acting in
the course of professional practice.”). The evidence adduced at trial, in the light most
favorable to the State, established that Officer Hudgin discovered a green, plant-like
material in the defendant’s car. The officer conducted a field test of the material, as he
had in “close to a hundred” other cases, and the field test indicated that the substance,
which weighed less than a gram, contained THC, the active ingredient in marijuana. The
substance was admitted into evidence and submitted to the jury for examination as well.
This evidence was sufficient to support the defendant’s conviction of simple possession
of marijuana. See Hill, 638 S.W.2d at 830 (finding evidence of marijuana possession
sufficient when the investigating officer “testified he conducted a field test, as he had
been trained to do, by placing a chemical on the plant and the test was positive for
marijuana”).

              Accordingly, the judgments of the trial court are affirmed.


                                                    _________________________________
                                                   JAMES CURWOOD WITT, JR., JUDGE




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