### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs S eptem

ber 25, 200 1
STATE OF TENNESSEE v. JOS EPH J. LEVITT, JR.
Direct Appeal from the Criminal Court for K nox County No. 66082 E. Shayne Sexton, Judge

No. E2000-03051-CCA-R3-CD December 18, 2001

The defendant drove up behind a vehicle which ha d halted because of a

driver’s license roadblock
near Knoxville

. He then proceeded onto the right shoulder to g et around that vehicle and was
s topped by the Tennessee Highway Patrol officer conducting the roadblock. What next occurred wa s highly disputed, but the events culminated with the defendant’s being spray ed with Freeze, some of which was deflected back onto the officer , partially incapa citating him al so. The defendant was charged with resisting arrest, reckless driving, and failure to car ry and display

a driver’s license on demand. The rec

kless driv ing cha rge wa s nolle prosequi and, following a jury trial, the de fendant
was found not guilty of re sisting arrest but was convicted of the driver’s license cha rge, sentenced to ten days confine

ment, which was suspended, and ordered to pay a $50 fine and court costs. He time ly appealed the conviction, arguing that the roadblock was unconstitutional. Based upon ou r review, we conclude that

the road block wa s unconstitutional a nd that the

office rs lacked probab le
cause to stop the defendant’s ve hicle. Ac cordingly , we reverse the conviction and dismiss the charge. Tenn. R. App.P. 3 Appeal as of Right ; Judgme nt of the Cr

iminal Court Reversed and Dismissed

A LAN E. G LENN , J., deliv er ed the opinion of the court, in which J OE G. R ILEY and T HOM AS T. W OODA LL , JJ., joined. James A. H. Bell, Knoxville, Tennessee, for the appellant, Joseph J. Levitt, Jr.

Paul G. Summers , Attorne y General and Repor

ter; Pete r M. Coug

hlan, Ass istant Atto

rney Genera l; andEric D. Christiansen, District Attorney General Pro Tem, for the appellee, State of Te nnessee.
OPINION Following a jury

trial, the defenda nt was fou

nd not gu ilty of resist ing arr est b ut guilt

y of failure to carry

and display his driver’s lice nse on demand, in violation of Tennessee Code Annotated Section 55-50-35 1, a ClassC misdemea nor. The trial cou rt senten ced the d efenda nt to ten da

ys in1 Tenne ssee De partm ent of S afety G enera l Ord er 41 0, go vernin g the o pera tion an d estab lishmen t of tr affi c

enforcement roadblocks, requires the presence of only two officers . Sobriety roadblocks, by contrast , require si x offi cers.

2 It was pos sibl e fora roadb lock at that location to b e cond ucted by o nly two officers. The site was also centra lly loca ted, maki ng i t pos sibl e for the troop ers to re spo nd fairly q uickly to e merg ency c alls throu ghou t the co unty.

-2- the county jail, suspended upon pay ment of a $50 fine and all court costs. Following the denial of his motion f

or a new trial, the defendant filed a timely notice of appeal to this court, raising two issues, wh

ich he sta tes in his br

ief as fo llows:

I. The Trial Court

erred in determiningthat the roadblock operated by members of the Tennessee Highwa y Pa trol was c onstitution ally pe rmissible

and deny

ing the A

ppellant ’s Motion to

Suppress a

l l evidence obtained as a result of this roadblock.

II. The evidence presented at trial wa s insufficient to prove beyond
a reasonable doubt that theAppellan t was ope rating a motor ve

hicle in violation of

T.C.A. § 55-50-351, requiring that an individual carry
a valid drivers [sic] licen se and display same whe n asked to by law enforc ement of

ficers.

Alth ough the evidence presented was sufficient to sustain the conviction, we conclude that the trial court erred in den ying the de fendan t’s m otio n to s uppre ss evi dence r elati ng to t he char ge of failure to carry

anddisplay

his licens e on demand, reverse the conviction, and dismiss the charg e.

FACTS

On Saturday , April 5, 1 997, at the beg in ning of their shifts, Troopers Frank Shearl a nd Stephen Parsley

of the Te

nnessee Highwa y Pa trol appr oached their sup ervisor , Serge ant Denn is Mu rr ay, at the Roc

ky T op gas s tation in K

noxville, inf

ormed him t

hat they wanted to

conduct a “traff ic en fo rc em en t” ro ad bl oc k t og et he r t ha t d ay, pursuant to General Order 410, 1 and rec eived his permission to establish a driver’s license checkpoint undernea th the South Knoxville Bridge on Riverside Drive in

Knoxville. T

he spot wa s a

“preapproved” roadblock site, wher e many roa

dblocks hadbeen conducted in the past. The road was two-lane, approximately twenty to twenty-two fee

t wide, and ran east to west underneath the bridg e. Paved shoulders that were at least ten feet wide made it possible for the trooper s to pull vehicles to the side of the road in safety . Approximately 100 to 200 feet east of

the site, and 400 to 500 feet west, sharp curves in the road hid the roa dblock from approaching traffic. The troopers acknowledg ed that the yhad no traffic statistics or data that indicatedthe need for a traffic enfor cement roadblock at that site. Inste ad, the location was chosen because it was a convenient site for the offic ers to conduct a roadblock. 2

The roadblock was begun at 4:15 p.m., and operated until approximately 6:30 p.m. Trooper Shearl, as the officer with the mos t seniority, was in char ge. Trooper Parsley

testified at the suppression hearing that their “predeter mined” plan was to stop every vehicle that

came through the3 The State did n ot que sti on Trooper Par sle y about what occur red f

ol lowi ng t he st op . At tri al, however, he test ifi ed tha t aft er h e “calmly” approached the defendant’s van and told hi m that he could not “go around traff ic like that,” the d efend ant answ ered , “Yo u-all shou ldn’t hav e the d amn road bloc ked ,” and said that Trooper Parsley was to address hi m as “si r.” Trooper Parsl ey sai d that he responded that he did not have to call t he defendant sir, and that he needed to see h is driver ’s lic ense. According t o Trooper Parsley, he asked t hree t imes t o see the defendant ’s l icense , saying, “I need to see y our drive r’s lice nse. I need to s ee your dri ver’s lic ense. I need t o see your driver’s license[, ]” but all three ti mes the defendant refused, using the cur se words “ damn” and “damnit .” Trooper Parsl ey sai d that he then opened the door to the defendant’s van, and told hi m to st ep out and show his identi ficati on. Instead of complying, the (con tinued ...)
-3- roadblock, unless the

condition s became

too hazar dous to do so . Both

trooper s were in

uniform, and the blue lights on their patrol cars, which were par ked on the westbound shoulder of the road, were activated. However, no advance publicity of the checkpoint was given, no traffic cones were set up to di rect moto

rists through the

roadbloc k, and the re were no signs t

o warn a pproach ing driv ers o f the roadblock.

The checkpoint had been in operat ion for approximately an hour a nd a half to two hours when the sixty-five-y

ear-old defendant, Knoxville lawyer Joseph J. Levitt, Jr., approached it in the eastboundlane. The defendant, who had been mowing grass at one of his rent al propert ies, was driving a 1977 Chevrolet van and towing a medium-sized trailer car rying la wn equipment. Trooper Shearl was in his p atrol ca r, parked on the we stb ound shoulder of the road, writing a ticket to a violator who was parked on the eastbound shoulder. I mmediately in front of the de fendant, in the eastboundlane, Trooper Parsley had stopped a smal l, older mod el Chevro let Blaze

r sport uti lity vehicle. The Blazer was towing a ten-foot-wide boa t trailer carry

ing a twenty -four-foot- long pontoon boat that had a mooring cover over it. Trooper Parsley wa s sta nding beside the driver’s door, checking the license of the driver of the Blazer. There we re no vehicles stopped in the westbound lane.

At the suppression hearing, Trooper Parsley testified that he was talking to the driver of the Blazer when he “heard gravel be ing kicked up, ” and looked up to see the defendant’s orang e and white van coming around on the right, traveling on the gra vel portion of the shoulder. He said that he saw the v an veer , and almo st strike a parked v ehicle

ahead of it on the shoulder, before ree ntering the paved shoulder

and then t

he traf fic lane. L

ater in h is testimon

y, h e said tha t the def endant c ame within “two to three feet” of the parked vehic le, before moving back over into the eastbound lane. He estimated the speed of the defendant’s van as between twenty -five and thirty miles per hour, and said that, although that was within the speed limit on Riverside Dr ive, the manner in which the defendant was driving “was uns afe for the condi tions at the

time we were there at the roadblock.” Trooper Parsley testified that whe n he yelled

“stop,” the defendant

stopped w ith his veh

icle at a slight angle, with the “left front portion” of his bumper “a few inches”over the

center double yellow line. He said that he handed back the driver’s license of the driver of the Blazer, walked up to the def endant, told him that he could not “drive around the shoulder likethat,” and asked to see his license. According to Trooper Parsley , the defendant, who appeared “ve ry irate,” told him that he did not have to stop, and that Trooper Parsley was to call him “sir.” 33 (.. .cont inu ed) defendant kicked him in the s hin. In response, Troope r Parsley grabbed the defendant’s l eft arm and pulled. When he “yanke d,” the de fenda nt’s foot c ame off t he brake, and the van start ed to roll. Trooper Parsley then sprayed the defendant in t

he face with mace. By that time, Trooper Shearl had come up behind Pars ley , and he also sprayed the defendant in t

he face w ith mac e. He te stif ied that he and Trooper Shearl “got [the defendant] out” of t he van, and “app roxim ately three feet from his van, he wa s laid on t he co ncrete.” Trooper Parsley said that he s earched the defen dan t’s wallet af

ter he had been placed under arr est and f ound an exp ired lice nse. H e later ra n the d efend ant’s lice nse number t

hrough dis patch, and lear ned that he possess ed a current lic ense.
4 The State asser ts i n it s brief that the def endant t esti fied t

hat “ he though t he had come upon t he scene of a n accident , yet

he went around the scene at or near t he speed li mit. ”
-4- On cross-examination, Trooper Pars le y acknowle dged that from his position beside the driver’s door

of the Blazer, he could not see traffic a pproaching behind the large pontoon boat. He admitted that he had not stepped away from the Blazer

to signa l approa ching tr affic to stop. He a

lso acknowledged

that they had no traf

fic cones set up at the roa dblo ck, th at he w as not wearin g a reflectivesafety ve st, and that he was not using a f lashlight. He pointed out, however, that it was daylight at the time, which made reflective vests and flashlights unnecessary . When asked whether there was anything

to distinguish him “from checking out a wreck,” he answered, “I

n my perce

ption, no.” He also verified that during the preliminary hearing, he had acknowledg ed that whether he had been conducting a ro adblock o r investi g ating a wreck probably would have depended on the perception of the individual driver.

The def endant te stified th at the site appear ed to him to be the scene of an accident. As he roundedthe shar

p curve l eading

to th e br idge, he saw the flashing lights of the patrol cars on the shoulder on the left side of

the ro ad and the back end of the boat trailer. Howe ver, he did not see Trooper Parsley

standing in the road beside the Blazer, or anything

else that would have indicated that it was a roadblock, rather than an accident. He testified that he drove slowly toward the

scene, looking to see if the wa

y w as clea

r for him t

o drive a round. He

explained

that he wa s familia

r with the road, and

knew that there was another sharp cur ve only a short

distance ahead, just bey ond the bridge. He therefore decided to pass the boat and B lazer on the right, driving around on the paved sh ou ld er of

th e r oa dw ay.
The defendant said that he was on the lo okout for broken glass in the

road, and was “ju st creepi ng” 4 as he drove past the boat and Blazer. After his trailer ha d cleared the Blazer, he began easi ng ba ck ov er in to th e l an e. Wh en he wa s b ac k i n t he la ne , h e h ea rd so me on e ye ll , “ He y, asshole.” When he heard it again, he leane d out of the window and saw Trooper Parsley coming towardhim. The d efendant said that he asked, “Office r, is there something wrong?” and that Trooper Parsley answe

red, “Yes, asshole, stop.” The def endant te stified th at he told the officer, “I don’t believe you should talk to cit izens like that. You can call me sir.” The defendant descr ibed what next e

nsued: This officer here, Parsley , came up to my ca r, and by then–I

had my
arm on the window, and I pushed my gear shift into park, and I asked him, I said – again, if there

was somet

hing wr ong, and he call ed me5 M cLain implied that he tho ught T roo per P arsley’s initial yell m ight n o t have been heard by the defendant

bec ause h is windo w was r olled up. -5-

asshole again, said he didn’t have to call me sir, and grabbed my arm andthen just b oom, boom, b oom. Somebo dy g rabbed m y a rm. I was sprayed in the face. The door was jerked open, and I was pulled out andmy arm, still lay

ing up there on thething, and it pulled the–the vehicle out of park. And pulled me

out on the g

round and spray

ed me either–either

once in the van and once coming out the door or twice in the van. I’m really

not sure.
Paul Michael McLain, the driver of the Chevrolet Blazer, testified that earlier that afternoon he and his wife had driven to theboat ramp at the South Knoxville Bridge so that he could h

elp his friend, Randy Rey

nolds, tow his boat home. On their way to meet Rey

nolds, they drove throug

h the roadblock

w ithout being stopped. He said they had not realized that it was a roadblock, and had thought they were

approaching a wreck. He saw the troopers, but they were at another

vehicle, and there were no signs to indicate that they were conducting a roadblock.

On the return trip with the bo at, McLain was driving Reynolds’ Blazer. With him in the Blazer were Rey nolds, Reynolds’ wife

Rita, and another womannamed Sharon Monday . This time, driving in the eastbound lane, he wa s s topped by an off icer, whom he later identified as Trooper Pa rs le y, who asked to see his driver’s license and whether he had beendrinking. McLain said that he told the trooper that he had not had any thing but iced tea, and they were joking about that as the defendant came driving around the Blazer on the rig ht shoulder. He said that the defendant was driving “very

slow,” at “a speed of five miles an hour or less,”did not veer or swerve, and was not kicking up a cloud of dust, rocks, or gra vel.

McLa in said that Trooper Parsley

yelled “He

y” or “some wo

rds” at th e defendant and t

hat, altho ugh th e d ef

en da nt di d n ot st op im me di at el y, 5 he even tually came to a

stop with th

e end of h is trailer approxima

tely thirty feet in front of the Blazer. Trooper Parsley left the B lazer and went up to the door of the defendant’s van. McL ain could not hear any

of the conversation, but

saw Trooper Parsley standing at the door of

the van for ten or fifteen seconds. He then sa w the other

trooper start
across the road toward the van. Halfway across the road, this second trooper took something out of his belt and started

shaking it. When the second troo per rea ched the van, he s pray

ed someth

ing in the driver’s window. McLain testified that the driver’s door was closed at the time. Toge ther, the two troopers physica

lly removed the

defendant from his van. The second trooper then jumped in the
van to stop it from ro ll in g a wa y, and Troo per Pars ley

began leading the defe ndant ac ross the s treet. Halfway across, he stuck h

is foot out, tripping

the defe ndant, who fell to hi s knees a nd lost his eyeglasses in th e proce ss. As the de fendan t gr oped for his glasses with his free hand, Trooper Parsley “too k h is foot and, like a sweeping kick, kicked his glasse s out of the way.”After the defendant was handcuffed, the off icers motioned for McLain to drive on.-6-

On cross-examination, McLain testified that he c ould not recall seeing the defendant kick Trooper Parsley, and that he

could not say who had ope ned the van door. When

asked if he had seen the defend ant kick a

t Trooper Parsley , he answered, “The door come ope n, the officers was [sic] removing him from the vehicle, I seen le gs at that time, you know. Whether they were

in a kicking motion, I cannot tell y

ou that, sir. I don’t know.” McL ain admitted that he had not reported Trooper Parsley’streatment of the defendant to any authorities. He said that he had contacted the defendant after Reynolds rea

d an arti cle in the

newspap er about

the incid ent, and r ecogn ized it as the same one they had witnessed. Randy Reynolds, the owner of the Blazer, testified that he was sitting in the front passenger seat when he saw the defendant drive past the Blazer on the shoulder , traveling very slowly, at “three, four, five mile an hour, somewhere around there.” He described wha t occurred:
Well, I noticed it [the defendant’s van] when he got about to the mirror, and the officer hollered–when he got about to the front of the Blazer, the officer hollered, “Stop,” I believe that’s what it was, and
so he kind of pulled on up a little, maybe f ive, ten foo t, a nd he was just barely rolling and one–one officer runsover and grabs the door, andthe other one runs and grabs him and jerks hi m out, a nd one throws it in park. Reynolds said that he did not see any signs announcing that the troopers were cond uc ting a roadblock. He had assumed that it was a roadblock, however, because he had ha

d the oppo

rtunity to watch the troopers for ten or fifteen minutes as he loa ded his boat onto the trailer.

On cross-examination, he testified that the defendant’s van slowed down, but never c ame to
a complete stop. The rear of the defendant’s trailer, he said, was about ten f eet in front of his Blazer when the first tro oper sta

rted towa rd the va n. That tr ooper sa id something to the defendant, which Reynolds could not hear. He then opened thedoor of the van and grabbed the de fendant, while the second trooper put the van in park. After the troopers had pulled the defendant out of the van, the first trooper, who had the defen dant’s a rm in a twisting hold, put his foot behind the defendant’s legs, and “took him down” to the ground.

At the conclusion of the hearing, the trial court issued an oral ruling denying the motion to suppress
. In itsruling, the cour t indicated that it wa s f

i nding that the constitutionality of the roadbloc k was irr elevant because the defe ndant had driven a round the checkp oint:

We’re not talking

about some one who di d not comply with a willful–I don’t see the roadblock as the issue here. I don’t. I thi nk tha

t [t he defenda nt] candidly said that he

thought i t was a wr eck, an d I’ll take that–I ’ll take tha

t as money

in the ban

k. The que stion bec ome s after–I don’t thin

k he did an

yth ing imp roper. I

don’t thin

k he did anything improper by g oing by , but the qu estion is , once the officer-7- sa ys “Stop,” w

hat ha ppens? Ithink the officer at that point had a right to say “ St op. ” Up unt il th en, I d on’t s ee any thing wr ong with this process.
However, as the following exchang e makes c lear, the court a lso gave at least s ome indication that it was finding the roadblock constitutional, based on the fa ct that it did not subs tantially

deviate from the p

rocedur es estab lished in D epartme nt of Safe ty G eneral Order 4 10:

MR. BELL : But, Your Honor, he had him stopped, not becau se of a wreck but because the officer believed he was conduct ing a roadbloc k. That’swhat–

THE COURT: You

see, I don’t–we

ll, then we go ba

ck to is this a lawful roadblock? I believe that under G eneral Order 410, I don’t think that what happened deviates substantia lly from–what happened factua lly in this case, deviates substantially f rom410. Now, I think that D owney ha s cleaned up a lot of what 410 did, but that’s the problem with running these cases three y ears down the line.

I’ll tell you, ge

ntlemen–I

mean, I am–this is somewhat probably unusual coming f

rom a cou rt, but I don’t see the problems leading up to the stop. I see terrible problems af ter it happened. I mea

n–
When asked to c larify

its rulin g regard

ing the constitutionality of the stop, the cour t explained that it did not find the procedu res for constituti onally

reasonable sobriety

checkpoints, adopted by our supreme court in State v. Downey , 945 S.W.2d 102 (Tenn. 1997), applicable to the case:

Your ruling is as follows. As to Downey , I find th at it do es no t a pp ly. As a matter

of law, I have c onsidered the changes that were made to General Order 410 based on the Downey case. I think

I have run that throu gh my mind. Standing, I don’t thin

k is an i ssue in this case. I think that [the de

fendant ] avail ed hi mself to w

hat is a ri ght of hi s, which is to proceed around

. I don’t think it was a necessar ily safe action. I don ’t think tha

t every one would

do th at, but I b elieve that he was within

his power

to do that, but I

also t hink that the officer had, wi thin his duty, the option to ask [the defendant] to stop, and I believe that occurred. I think the of ficer a cted lawfully and [the defenda nt] acted lawfully , an d so I find that there was no unlaw ful halt, there was no unlawful stop. I don’ t find the roadblock proced ures persuas ive in any way , and I

think that t

he case will g o forward like that.6 Te rry v. O hio , 392 U.S. 1, 88 S. Ct. 1868 , 20 L. Ed. 2d 88 9 (1968 ).
-8- The court went on to findthat the evidence did not support the reckless driving charge, and that the defendant’s “action did not, in and of themselves, [sic] constitute an act that migh

t by itself be sufficient to stop the car.” When asked on what basis it was finding tha

t the troop er had la

wfully stopped the defendant, the trial court stated that it was based on:

The statute of

when blue

lig h ts are running, the law enforce ment officer is running whatever process on the road, whether he’s working
a wreck, wheth er he’s running a roadblock, whateve r it is, at that particular time, the road was quarantined off or it was at

least being
su pervisedby the Tennessee Highway Patrol, and [the defen dant ] didn’tknow why. He w as acting on h is own. That’s fine. The officer had different intentions, but his intentions were well founded. He didn’t kno w if [the de

fendant ] was driving around to avo id that or to drive ar ound to av oida wreck, to avoid whatever, just didn’t know if he was getting around the edge. My ruling is that

nothing improper on either side occurred. B ut I think the officer had a r ight to sto p him, and [th

e defendant] did what law enforcement–or what law-abiding citizens would do, which is stop. At that point it’s–that’s really what the jury is going to decide, but I think I

have–

Based on the trial court’s findings, defense counsel moved to ame nd the motion to suppre ss to include an argument that the trooper had no reasonable suspicion to justify a Terry -type 6 stop of the defenda

nt. In response , the tria

l court fi rst repeated tha t the trooper lawfully stopped the defenda nt pursua nt to his au

thority to direc t and cont

rol traf fic on pub lic road s, stating : Well, reasonable suspicion is what the buzzword is, but this is one the St ate–and I thin k it’s a pr

oper con tention wh

en a law enforc eme n t officer has given an or der for a motorist to stop, they a re to stop. We’re not talking

about a search. We’re not talking about evidence that was gained after. We’ re t alking about a terrible thing that occurred after the stop.
However, the court later w ent on to i ndicate that it wa s finding

that the tr

ooper ha d reason able suspicion for the stop, stating that the trooper was not mistaken in the stop, and that it occurred because “[i]n his mind he thought you were g oing around his roadblock.” The defenda nt then proceeded to trial on the two remaining cha rges of the indictment.
ANALYSIS7 The Hicks opinion was releas ed aft er the brie fs were f iled i n thi s case. Pursuant to Rule 27(d) of th e Tennessee Rule s of Ap pellate Pro ced ure, the d efend ant sub mitted the case as sup plem ental au thority for his argu men t.
-9- I. Trial Court’s De

nial of Motion to Suppress

In challenging the trial court’sdenial of his motio n to suppre ss, the defendant argue s, first, that drivers’ license checkpoints are per se unconstit utional, a nd secon d, that even if no t per se unconstit utional, the checkpoint

at issue in this cas e failed to satisfy the guid elines e stablishe d in Statev. Downey , 945 S.W.2d 102 (Tenn. 1997), and State v. Hicks , 55 S.W.3d 515 (Tenn. 2001), for a constitutional suspicionless stop. 7 The State responds by a rguing that the constitutionality of the roadblock is i rrelev ant. The State con

tends tha t the def endant w as stoppe d for the reckle ss manner in which he drove around th e roadbl ock, and

that the tr

ooper’srequest

for his license was a permissible part of a valid investigatory stop.
A. Standard of Review

We review the trial court’s denial of the defenda nt’s motion to suppr ess by the following well-es tablished

standar d: Questions of credibility of the witnesse s, the weight and value of the evidence, and resolution of conflicts in the evidence a re matters entrustedto the tria

l judge a s the trie

r of fact. The par

ty p revailing in the trial court is ent itle d to t he str ongest legi tim ate view of the evidence adduced at the suppression hearing as well as all reas onable andlegitima

te inferences that may

be drawn f

rom that e

vidence . So long as the greater weight of the evidence supports the trial court’s finding s, those findings shall be upheld. In other wo rds, a t rial court’s findings of fact in a suppression hearing will be uph eld unles s the evidence preponderates otherwise.

Statev. Odom , 928 S.W.2d 18, 23 (Tenn. 1996). However, the trial court’s application of law to the facts, a s a matter

of law, isrevie w ed de novo , with no presumption of correctness. State v. Daniel , 12 S.W.3d 420, 423 (Tenn. 2000). This court may consider the proof

at trial, as well as at the suppression hearing, when considering the appropriateness of the trial court’s ruling on a pretrial motion to suppress. See Statev. Henning , 975 S.W.2d 290, 2 99 (Tenn . 1998) (holding th at beca use the rules of

appella te procedure “contemplate that alleg ations of error should be evaluated in light of the entir e recor d[,]” an ap

pellate court “may c onsider the proof adduced both at the suppression hearing and at trial”).

B. Denial of M otion to Suppr ess
In order to set

the framework for our review, a nd because thedefendant’s brief focuses on this topic, we will begin our analy sis by examiningthe const itutionality o f the roa

dblock at issue in-10-

this case. Both the Fourth Amendment to the United States Constitution and Article I, Section 7 of the TennesseeConstitution protect individuals against unreasonable searches and seizures. See U.S. Const. amend. IV; Tenn. Const. art. I , § 7 . “The se constitutional pr ovisions a

re desig ned to ‘safeguard

the pr ivacy and s ecurit y of indiv idual s again st arb itrar y invasio ns of go ve rnment officials.’” State v. K

eith , 978 S.W.2d 861, 865 (Tenn. 1998) (quoting Camara v. Municipal Court , 387 U.S. 523, 528, 87 S. Ct. 1727, 1730, 18 L. Ed. 2d 930 (1967)). A sear ch or seizure conducted withouta warra

nt is presu

med unre asonable , and evid ence ob tained a s a resul

twill be suppressed “unless the prosecution demonstrates by a preponderance

of the evidence that the search or seizure
was conducted pursuan

t to an exception to the warrant requirement.” Id. at 865 (citations omitted). The stop of an automobile, even for the short duration involved in a driver’s checkpoint, constitutes
a seizure under both the United States and Tennessee Constitutions. See Whren v. United States , 517 U.S. 806, 809-10, 116 S. Ct. 1769, 1772, 135 L. Ed. 2d 89 ( 1996); Michiga n v. Sitz , 496 U.S. 444, 449-51, 110 S. Ct. 2481, 2485, 110 L. Ed. 2d 412 (1990); Delaware v. Prouse , 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660 (1979); State v. Downey , 945 S.W.2d 102, 107 (Tenn. 1997). Thus, to be cons idered r easonab le, the wa

rrantle ss stop of a

n automobi le must

fall under one of the exceptions to the warrant requirement. These exceptions include investiga tive stops based on
reasona ble suspicion of wrongdoing on the part of the occupants of the vehicle, see Whren , 517 U.S. at 810, 116 S. Ct. at 1769 ; Prouse , 440 U.S. a t 655, 99 S. Ct. at 1391 ; State v. Vineyard , 958 S.W.2d 730, 734 (Tenn. 1997), a

nd roadb locks tha

t are co nducted “

pursuant to a plan e

mbody ing explic it, neutral limitations on the conduct of individual officers.” Brown v. Texas , 443 U.S. 4 7, 51, 99 S. Ct. 2637, 2640, 61 L. Ed. 2d 357 (1979). Un der the latter exception , the United States Sup reme Court, balan cing th e publ ic int erest in pre venti ng d runk driv ing against the Fourth Amendment interest of the individual, has held that a roadblock designed to check for intoxicated drivers is not violative of the Fo

urth Amendment tothe United States Constitution. Sitz , 496 U.S. at 453, 11 0 S. Ct. at 2485.

In State v. Downey , 945 S.W.2d 102 (Tenn. 1997), our supreme court adopted the balancing analy sis used in Sitz to dete rmine whether sobriety checkpoints violate Article I, Section 7 of the Tennessee Constitution. Id. at 110. Under th

is analy sis, which

weighs“‘the g

ravity of the pub lic
concerns served by the

seizure, the degree to which the seizure advances the

public interest, and the severity of the interference

withindividual liberty,’” id. at 107 (quot ing Brown , 443 U.S. at 50-51, 99 S. Ct. at 2640), the court concluded that a sobrie ty c heckpoin t, becau se of the

compelling public interest in preventing drunk driving, can be a reasonable seizure under the Tennessee Constitution “prov ided it is established and operated in a ccorda nce wi th pre determ ined o perati onal gu idelines an d supervisory

authority that

min imize the risk of arbitrary intrusion on individuals and limit the discretion of law enforcement officers a t the scene.” Id. at 104. Because the evidence in Do wney revealed that the decision to operate the checkpoint was made by an officer in the field, who acted withoutany supervisory

or administrative oversight of his actions, the court found that the roadblock was unconstitutional under Article I, Section 7 of the Tennessee Constitution. Id. at 110-11.

More recently, in State v. Hicks , 55 S.W.3d 515 (Tenn. 2001), our supreme court addressed the constitutionality of drivers’ license r oadblocks under Article I, Section 7 of t he Tenne sse e Constitution. Id. at 519. The court explained that the balancing test used in Downey is to be applied-11-

notjust to sobriety

checkp oints, but in

“allcases involving constitutional challenges to roadblocks
or checkp oints unde

r the Ten nessee C onstituti on.” Id. at 524. It next determined that, under the Downey test, “a roadbloc k will nec essarily

fail con stitutiona

l examinati on if

it lacks a suffic iently compelling state interest.” Id. at 527. The court then considered whether ther e is a suff

iciently compelling stat e interest i n roadblocks established solely to c heck drivers’ licenses. After examining the State’s assertion that drivers’ license roadblocks are n ecessa ry to ensure hig

hway saf ety by detecting and dete

rring u nlicense d driver s, it

concluded that “no evidence in the record establishes this fac t, or even if true, establishes that this interest is sufficiently compelling to justify suspicionless stops.” Id. The court wrote:

Becau se the exceptions to the warran t require ment “ar e jealou sly andcarefully

drawn,” the State

must show that “the exigencies of the situation made the search

[or se izure ] imperative .” State v. Bartram , 925 S.W.2d 2 27, 230 (Tenn. 1996) (emphasis added and internal quotations omitted). Theref ore, as req uired in Downey , the State must show that drivers not possessing a license are unable t o saf ely operate motor vehicles on the roads and hi ghway s of this state; that
an unlicens ed drive

r invaria bly present s an immine

nt dang er of de ath
or serious bodily injury

to other drivers that is not typically present withlicensed drivers; and that the safet y th reat from unlicensed drivers is of

such a magnitude that

the problem, coupled with itsrisk of harm, co mmands he

ighte ned attention. Only when this showing is made m ay courts find that the State ha s a sufficiently c ompelling interest to justify maintaining drivers’ license roadblocks.

Id. In a separate

concurring opinion, Chief Justice Anderson, joined by Justice Birch, conc luded that drivers’ license roadblocks are per se unconstitutional under Article I, Section 7 of th e Tennessee Constitution b ecause a sufficien tly compelling state inter est in drivers’ license roadblocks
can never be shown. Id. at 539. Distinguishing drivers’ licens e roadbloc ks from so briety roadbloc ks, Justice Anderson wrote: “In my view, there is no basis upon whi ch to reas onably conclude that a moto

rist who isnot in posse ssion of a valid driv ers’ li cense necess arily poses an immediate

danger of death or serious bodily injury gr eat enough to warrant the suspicionless stop of all drivers at a checkpoint.” Id. at 540 (emphasis in original).

In light of Hicks , we conclude that the drivers’ license chec kpoint in this case was an
unreaso nable

seizure, violative of Article I, Section 7 of the Te nnessee C on stitution. First and foremost, the required showingof a compelling state inte rest wasnot made. “Only when the State makes the required

showing , as it

has previously done with sobriety checkpoints, may c ourts accept the presenc e of the c ompellin g i nterest a nd proceed to fur

ther ana lyze the road block und

er this decision and Downey .” Id. at 528.-12-

However, even had t

h e State established a compelling interest, we would still have no hesitation i n de termining that the r oadblock here fa iled to pa ss constitu

tional must

er, based on its failure to be established and operated in a manner that minimized its intru siveness on individual freedo m. The Hi cks c ourt made it clear that drive

rs’ lice nse road blocks ar e subjec t to the sam

e require ments for constitutional reasona bleness as sobriety roa

dblocks. Id. at 537 n.13. According to the cou rt: [T]he most import

ant attri bute of a reaso nableroadblock is the presenceof genuine limitations upon the discretionof the office rs in the field. Tw o facts are critical to finding that the officer s’ discretion
on the scene was pr operl y limited: (1) the decision to set up the roadblock in the first instance cannot have been made by

the officer
or officers actually

establishing the checkpoint, and (2) the officers on the scene cannot decide for themselves the pr ocedures to be used

in operating th e ro adb lo ck. In all cases, therefore, the State must show that some authority superior to the of ficers in the field de cided to
es tablish the roadblock, particularly as to its time and location, and that t he o fficers adhered to neutral standar ds previously fixed by administrative decision or r egu lation. To be clear, these factors are
so essential to a reasonable roadblock that the absenc e of either of them will necessarily r

esult in the invalidation of the stops.

Id. at 533 (citation omitted).

The roadblock here did not meet these minimal standards for constitutionality. There was no meaningful prior administrative authorization or approval for the e stablishment of the roadblock at the Riverside Drive location on the afternoon of April 5, 1997. Troopers Par sley an d Shear l formulatedthe plan for the roadblock together, a nd had a location picked

out, before approaching Sergeant Mu rray a

t the service station to obtain his approval. Although Sergea nt Murray’s permission may

have technically

complied with the Downey require ment that t

he party responsi ble for establishing the roadblock b e different from the party responsible for approving it, we cannot
co nc lude that mere

acquies cence t

o an alre ady

formulat ed plan sa

tisfies the reaso nablene ss require ment. It is also clear that the offic ers in the field, who were totally unsupe rvised at the scene, chose the time of the roadblock, the procedures to be employ ed, and whichvehi cles were to be stopped. Further evidence supporting the unre asonableness of the roadblock includ es the lack of advancepublicity, the failure to have traf

fic cones or warning signs in plac e, and testimony indicating that Troo

per Pars ley

used the r

oadblock as a subterfuge t o question at least one driver about his drinking. See ge nerally , id. at 534-38.

Hadthe defendant stayed in his lane, to be stopped after Trooper P a rsley concluded his encounter with McLain, our inquiry would be ended, since there would be no doubt that he would be entitled to the suppression of evidence obtained as the result of a seizure a t an un lawfu l roadblock. See State v. Keith , 978 S.W.2d 861, 865 (Tenn. 1998). However, the defendant drove8 We note, however, that i n a recent unpublished opinion, another panel of this court concluded that a defendant

who accelerated past a tr ooper cond ucting a roa dblo ck, be fore fina lly halting in the cen ter of the road, had been st opped at the road bloc k. See S tate v. Joe W. Steward , No. M 1999-01 284-CC A-R3-CD , 2000 W L 1246 436, at *1-2 (Tenn. Crim . App . Aug. 1 8, 20 00) , perm. to appealgrant ed (Tenn. Oct. 8, 2001).
-13- onto the paved

shoulder to pass on the right the vehicle immediately in front of him before pulling back into the lane. There fore, we must ne xt consider whether the trial court erred in finding that Trooper Parsley lawfully

stopped the defendant after he had passed on the right the Bla zer and its trailer which was stopped in his lane. 8

In Terry v. Ohio , 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed.2d 889, the United States Supreme Cour t held that a law enforcement officer ma y conduct a br

ief, investigatory

stop of an individual if the officer has a reasonable suspicion, ba sed on specific and articul able fa cts , of criminal activity on the part of the i ndividual. U nder the Terr y rationale, a

n officer may

stop and detain a vehicle based on the reasonable suspicion that one of its occupants is either engaged in, or about to be engaged in, criminal activity. Ornelas v. United States , 517 U.S. 6 90, 693, 11 6 S. Ct. 1657, 1662, 134 L. E d. 2d 911 ( 1996); State v. Simpson , 968 S.W.2d 776, 780 (Tenn. 1998); Vineyard , 958 S.W.2d a t 734. Rea sonable s uspicion i s an objective sta ndar d, and must be determined from the totality of the circumstances. United States v. Cortez , 449 U.S. 411, 417-18, 1 01 S. Ct. 690, 695, 66 L . Ed. 2d 621 (1981); Ornelas , 517 U.S. at 696, 116 S. Ct. at 1661-62. “Based upon that whole picture the detaining officers must have a particula rized and objectiv e basis for suspecting the particular person stopped of criminal activity .” Cortez , 449 U.S. at 417-18, 101 S. Ct. at 695. Reasonable suspicion will be found to exist only when “the eve nts which occurred leading up to the stop” would cause an “objectively reasonable police officer” to suspect criminal activity on the part of the individual stopped. Ornelas , 517 U.S. at 696, 116 S. Ct. at 1661-62.

The State argues that the defendant’s reckless manner of driving around the B lazer provided Trooper Parsley with “mor

e than re asonable

suspicion” for the stop. We agree that the observa tion of a traffic violation, such as reckless driving, would have given T rooper Pa rsley not only reasona ble suspicion, but probable cause, to stop the defendant. See Whren v. United States , 517 U.S. 806, 817, 116 S. Ct. 1769, 1776, 135 L. Ed. 2d 89 (1996) (citations omitted) (noting that traffic violations provide probable

cause f or a stop) . “As a

general matter, the de cision to st op an automobile is
reasona ble where the police have probable ca use to believe that a traf

fic vi olation has occurred.” Id. at 810, 116 S. Ct. at 1772 (citations omitted). The descriptions were vastly differing as to the
manner in which the defendant passed to the right the pontoon boat, pulled by the Bla zer, which
were stopped in his lane. The photographs of the area show that the shoulder adjacent to the spot where the Bl azer was st opped is paved and somewhat wider than the lane itself. Portions of the surfaceof the paved right shoulder appear to have dirt and loose gravel on them. Paul Michael McLain, the driver of the Blazer, testified at the trial that, as the defe ndant’s v an came

abreas t of his vehicle, the vanwas proceeding “[v]ery slow. Ver

y sl owly , less tha

n five mile s an hour. ” He said that the van then stopped about thirty fe et in front of his vehicle. A dditionally, he had testified at the motion to suppre ss that the defenda nt’s vehi clewas neither swerving nor veer ing and agreed that it was not “kicking up a cloud of dust and rocks and grav el.” Dur

ing the m otion to sup

press, he also-14-

said that he did not see the defendant’s van c ome clos e to hitting another car. Ra ndy Rey nolds, sitting in the right front seat of the Blazer, agreed that the va n was going “[f]our or five mile[s] an hour” wh en he fir st saw it, a

nd that he did not noti ce if

it was kicking up “ dust

and rocks.” At the motion to suppress, he had also testified that, as far as he knew, the defenda nt’s van h ad not com

e close to striking either the Blazer or another ve hicle.

I n contras t t o the testimony of the driver a nd passenger of the Blazer, Tr ooper Parsley testified at the motion to suppress that he heard “gravel be ing kicked up,” and, looking up, saw the defendant’s van coming around the right side of the B lazer, almost striking a vehicle parked on the shoulder in front of the Blazer, and then reentering the lane of traf

fic in front of the Blazer. He estimated the speed of the van was “25 to 30 miles per hour, not above the speed limit, but around the speed limit or right at it.” He said that the van was being operated in a manner which was “unsafe for the conditions at the time we were the re at the roadblock.”

After hearing the testim

ony at the moti on to suppr

ess, the t rial cou rt concl uded, ap parentl y bothfactually a

nd legally , that

the State had failed

to make a

case ag ainst the d

efenda nt for reckless drivi ng. Re so lv in g t he co nf li ct in g t es ti mo ny a s to the defenda nt’s spee d and whe

ther he nearly struck another vehicle in passing the Blazer on the right, the trial court, as we under stand its f indings, rejected the officer’s testimony

and accredited the defense pr oof that the act

of passing the Blazer, andthe manne

r in which

the defe ndant did s o, did not c onstitute r ecklessdrivin g . Applying the appropr iatestandard of revi ew, w e conclude that since, in this regard, “the greater weight of the evidence supports the trial court ’s fin dings , tho se fin dings shall be upheld.” Odom , 928 S.W.2d at 23. Thus, we concludethat the tr ial cour t did not er

r in dete rmining that the d efenda nt’s acti ons in driving onto the shoulder to pass the Blazer on the right did not provide either proba bl e cause o r reasonable suspicion for stopping his vehicle.

In addition to

arguing that the defendant’ s mannerof driving was reckless, the prosecutor argued at the suppression hearing that in passing the B lazer on the shoulder, the defendant violated the statute r

equiring motorists to

drive wit

hin the cl early

marked l anes of t

raffic . This statute provides , in pertin

ent part : Driving on roadways laned for traffic.– Whenever any roadway has been divided into two (2) or more clearly markedlanes for traffic, the following rules, in addition to all others consistent herewith, shal l ap pl y: (1) A vehicle

shall be d

riven asnearly

as prac ticable e

ntirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can b e made w ith safety[.] Tenn. Code Ann. § 55-8-123(1) (1998).9 In Ludwi ck v. Doe , 914 S. W.2d 522 (Te nn. Ct. App . 199 5), the C ourt o f App eals interp reted the wo rds “stre et”

or “highwa y” to inc lude “th e par t design ated fo r vehic ular tr avel b y the public, any paved s houlder, any unpave d shoulder, and a ny rem aining p art of the right of wa y,” concludi ng that this s tatute was not violated by a motorist ’s drivi ng onto the pa ved should er to p ass on the right a v ehicle w hich wa s stopp ed, wa iting to m ake a left turn. Id. at 525.

10 Trooper Parsl ey t est if ied t hat, as t he def endant had ent ered t he right sh ould er, he a lmost stru ck a ve hicle parked on th e shou lder

and i n fr ont of

the Blazer. However, the occupants of the Blazer did not observe the de fenda nt’s nearl y st rik ing thi s par ked veh icl e, an d the tri al c ourt accre dit ed th eir

tes ti mony i n th is regar d.
-15- The prosecu

tor also referred the

trial court to the statute which permits passing on the right only under limi

ted condi tions:

When overtak

ing on the r

ight is per

mit t ed.– (a) The driver of a vehicle may overtake

andpass upon the right of anot her vehi cle only under the following

condition s: (1) When the vehicle overtaken is making or about to make a left turn;
(2) Upon a street

or highway

with unobstructed pavement not occupied by parked

vehicles of

sufficient width for two (2) or more lines of moving vehicles in each direction; and
(3) Upon a one-way

street, or upo n any roa

dway on which traffic is restricted to one (1) d i rection of movement, where the roadway

is free from obstructions and of sufficient width for two ( 2) or mor

e lines of moving ve

hicles. (b) The driver of a vehicle may overt ake and pass anot

her vehi cle upon the right only

under such conditions permitting such movement in safety. I

n no event sha ll such movement be made by dr iving off th e p av em en t o r m ai n- tr av el ed po rt io n o f t he ro ad wa y.
Tenn. Code Ann. § 55-8-118 (1998). The defendant responded by advising the trial court that the statute had been interpreted to allow travel on the shoulder. 9

The trial court found that the defendant did not violate any traffic laws by

passing on the right. We agree. The defenda nt did not travel for any substantial distanc e or period of time outside his lane of traffic, and quite obviously believed that it would be saf er to pass on the right than on the left, given the sharp curve in the road a head. He testified that he checked to see if t he way w as clea r, and proceeded slowly and cautiously ar

ound the stopped vehicle and boat. The paved shoulder, which was at least ten feet wide, provided ample room for him to maneuver, and there w ere no parked vehicles impeding his path. 10 The defendant was immediately behind the Blazer and

boat, andnothing in the evidence indicates that there wer e any other

vehicles stoppedbehind him . Thus,11 Other juri sdict ions hav e reached si milar resul ts, concludi ng that a motoris t’s obvious at tempt s t o avoi d a roadblock may p rovid e the re ason able su spicio n sufficient fo r a brie f, investiga tory stop

. See, e.g. Synder v. State , 538 N.E.2d 961 , 965 (Ind. C t. App . 198 9) (ho lding tha t driver ’s attemp ts to avoid a roadblock by making a turn around “giv es rise to a reas onable sus picion on t he part of

a police offi ce r t hatth e dri ver ma y be co mm itting a crim e”); Stroud v. Co mm onw ealth , 370 S.E. 2d 721, 722 ( Va. Ct. App. 1988) ( concl udi ng that drive r’s U-tu rn an d reve rsal of di rection within 100 to 15 0 feet o f road bloc k gave officer re ason able su spicio n for sto p); Tims v. State , 760 S.W .2d 78, 79 (Ark. Ct. App. 1988) (holding that motorist’s action in acceler ating past r oadblock pro vided reasonable suspicion for st op); Coffman v. State , 759 S.W .2d 5 73, 5 75 ( Ark. C t. App . 198 8) (statin g that mo torist’s turn a nd re versa l of dire ction at sightof clearly marked roadb lock gave officers re ason able su spicio n for sto p); City of Las Cruces v. Betancourt , 735 P.2d 1161, 1163 (N.M. Ct. App. 1987) (holdi ng that motori st who pro ceed ed p ast roa dblo ck at “hig h rate o f speed ,” almost hitt

ing two offi cers, provided reasonable suspicion for off icer to st op vehicle).
-16- this was not the cas e of a motori st attempting to get around backed up traf fic by trave

ling on the shoulder, while the

rest of th

e motorist s waited in the lane. Instead, the def endant utilized the shoulder only for the

length of time necessary

to get around

what he believed to be a vehicle that had been involved in an accident. Ac cord ingly , we conc lude that the defe ndant did not violate

this statute by driving onto the shoulder to pass on the right the vehicle stopped in his lane of traffic.
Next, we consider whether the defendant’s action in by passing the roadblock

was sufficient to create reasonable suspicion for the stop. I n State v. Binion , 900 S.W.2d 702, 705 (Tenn. Cr im. App. 1994), this court concluded that a motorist’s attempts to avoid a roadblock may g

ive rise to a
reasona ble suspicion

of crimin al ac ti vi ty. 11 We recogn ized, however, that a determination of whether
reasona ble suspic ion exists is necessa rily fact-sp ecific, requiring a ca se-by -case a naly sis:

W h ether reasonable suspicion exists must be determined from the totality of circumst ances on a case b y c ase basi s. Among the factors to be consid

ered is whether objective evidence indicates that the motorist was attemp ting to evade arrest or detection . Such evidence may include the

distance the motorist was from the roadblock when the turn-off or U-turn was made, whether the motorist was able to see the roadblock

before the motorist took evasive action , andthe manner in which the motorist operates his or her au tomobi le in making the evasive action. Other factor s to be c onsidered are the arresting officer’s ex pe ri en ce an d a ny other circumstances whi ch would indicate the driver was intentionally avoiding the roadblock to evade arrest or detection.

Id. at 706 (emphasis added).

All the evide

nce in this case supports the conclusion that the defendant was not attempting to avoid arrest or detection by driving around the Blazer, and was not awa re that he was approaching
a roadblock. The roadblock had not been publicized, no warning signs or traffic cones were erected, andboth troopers were invisible to the defen dant as he drove up behind the wide, tarp-cover ed pontoon boat. Trooper Parsley admitted that

it would have been possible for a motorist to mistake the roadbloc

k for the scene of an acci dent. Furthermore, had the defendant been attempting to evade-17-

arrest, it is unlikely that he would have driven in a dire ction that took him towa rd th e patrol cars. Under the unique circumstances of this case, ther efore, we conclude that the defe ndant’s action in driving around th

e roadbl ock did no t provide reasona ble susp icion to justify an investigative stop of his vehicle. The trial court also found that the stop was lawful based on the statute that “when blue lights
are running, the law enforcement officer is running whatever process on the road, . . . .” The trial court did not cite th

e specif ic code s ection, but we beli eve that it was referring

to the foll owing:
Obedience to p olice officers.– (a) No person shall willfully fail or refuse to comply

withany la wful order or direction of any police officer invested by law with authority to di rect , control , or reg

ulate traffic. Tenn. Code Ann. § 55-8-104 (1998).

Alth ough this statute may authorize a state trooper to command a motorist to stop as part of the direction or regulation of traf fi c, it does not authorize the trooper to request the motorist’s driver’s license , in the absence of probable cause of a traffic violation or reasonable suspicion of criminal activity. To allow a trooper to demand

a motorist ’s drive

r’s lice nse base d solely

on a state statute authorizing troope

rs t o dire ct traff

ic would u

ndercut the protections ag ainst unr easonab le search and seizure afforded by

the Tennessee and United States Cons titu tion s, as w ell as the ho ldin gs of Downey

and Hicks

. Ac co rd in gl y, we conclude that Trooper P arsley had neith er proba ble caus e nor re asonable suspicion to make an investigatory stop. II. Sufficiency of the Evidence

As his second issue, the defendant arg ues that th

e evidence was in sufficie nt to sustai n his conviction for th e viol ation of Ten nesse e Code Annot ated S ectio n 55-5 0-351 . Alt hough o ur determination as to the d

efenda nt’s firs t issue mak

es this claim moot , we will review it because of the possibility of further appe llate review.

In consider

ing this issue, we apply the f amiliar rule that where sufficiency of the convicting evidence is challenged, the relevant question of the re viewing court is “whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense charg ed beyond a reasonable doubt.” Jackson v. Virg inia , 443 U.S. 307, 319, 9 9 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). See also State v. Evans , 838 S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson , 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992) ; Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury sha

ll be set aside if the evidence is insuffici ent to supp ort the findings by the trier of fact of guilt bey

ond a
reasona ble doubt.”). All questions involving the credibility of witnesses, the weight and value to be-18-

giventhe evidence, and all factual issues are resolved by the trier of

fact. See State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987) . “A guilty verdict by the jury, approved by the trial judge , accre dits the testim

ony of the wit nesses f or the Sta te and re solves all conflicts in favor of the theory of the State.” State v. Grace , 4 93 S.W.2d 474, 47 6 (Tenn. 1973). Our supreme court stated the rationale for this rule:

This well-settled rule rests on a sound foundation. The trial judge and the jury see the witnesses face to face, hear the ir tes tim ony and observe their demeanor on thestand. Thus the trial judge and jury are the primary instrumentality of justice to determine the wei ght and credibi lity

to be give n to the testimony of witnesses. I n the trial forum alone is there human atmosphere and the totality of the evidenc e canno t be repr

oduced with a writt

en reco rd in this Court.
Bolin v. State , 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State , 212 Tenn. 464, 370 S.W.2d 523 (1963)). A j ur y c onviction removes the presumption of innocence with which a defendant is i ni tially cloaked and r eplaces it with one of guilt, so that on appeal, a convicted defendant has the burdenof

demonstrating that the evidence is insufficient. See State v. Tu ggle , 639 S.W.2d 913, 914 (Tenn. 198 2). When th e credi bility of the wit

nesses w as resolved by

the jury in favor of the State, the appellate court “may notreconsider the jury ’s credibility assessments.” State
v. Carruthers , 35 S.W.3d 516, 558 (Tenn. 2000), cert. denied , ___U.S. ___, 121 S. Ct. 2600 (2001). Applying these principles, weconclude that the evidence was sufficient for a reasonable jury to find the d

efenda nt guilty bey ond a rea sonable

doubt. Tr ooper Parsley te stified at trial that he askedthree times to see the defenda nt’s drive r’s lice nse, but th e defendant ref

used eac h timeto show it to him. Thistestimony

was arg uably supporte d, at lea st

in pa rt , b y te st im on y of

Ro na ld Lac ke y, a K-9 training co ordinato

r who had

stopped a

t the roa dblock in o

rder to ta lk with Tro oper She arl. Alth ough Lackey

did not testify

to hearing Trooper Parsley ask for the defe ndant’s license, he did say that he heard Trooper Parsley ask t he defe ndant his n ame, and that the d

efenda nt replie d with “What’s your

damn name?” Th e defendant, on the other hand, testified that the first time he was askedfor his driver’s license was when he was a lready handcuffed

and in the back of the patrol car, andthat he told Trooper Parsley his license was in his wal let in his right rear pocket. The jury obviously resolved these d iscrepa ncies in the proof in favor of the State, and this court may not reconsider that assessment.

As to th e defendant’s claim that the indictment was deficient bec ause it failed to track th e statutory language by

omitting the claim that the defendant did not display his license upon demand,
we notethat the indictment did allege that the defendant acted “in violation of Tenn. Code Ann. § 55-50-351.” In State v. Carter , 988 S.W.2d 1 45 (Tenn . 1999), d eny ing the d efenda nt's cha llenge to a felony murder

indi ctmen t whi ch refe rred t o the a pprop riate prosc ripti ve sta tute b ut fai led to allege that the killings were reckless, our supreme c ourt stated:-19- In this case, both felony murde r indictments referenced the appropriate statute. This reference providednotice to the defendant of the applicable mens rea, notice of the offense upon which to enter the judgment, and protection from subsequent pro secution on the
sameoffense. The indictment also meets the requirements of Tenn. Code Ann. § 40-13-202. The language of the fe lony murder c ounts was legally

sufficient under Ruff

[978 S. W.2d 9 5 (Te

nn. 19 98)].

Id. at 149 (citations omitted).

Ac co rd in gl y, we concludethat, by its refer ence to Tennessee Code Annotated Section 55-50- 351, count two of the indictment was sufficient to put the defendant on notice as to what he wa s alleged to have done and to prevent r eprosecution for the same offense.
CONCLUSION

Based upon the f

orego ing rea soning a

nd analy sis, we re

verse the judgment

of conviction and dismiss the charge. The matter is remanded for further proceedings consistent with this opinion.

___________________________________ ALAN E. GL

ENN, JUDGE