State v. Avent, WD76395

CourtCourt of Appeal of Missouri (US)
PartiesSTATE OF MISSOURI, Appellant, v. KATHRYN AVENT, Respondent.
Docket NumberWD76395
Decision Date01 April 2014

KATHRYN AVENT, Respondent.



Opinion filed: April 1, 2014

The Honorable Sue Dodson, Judge

Before Division Two: Mark D. Pfeiffer, Presiding Judge,
Joseph M. Ellis, Judge and Victor C. Howard, Judge

The State of Missouri appeals from an order issued in the Circuit Court of Johnson County granting Kathryn Avent's motion to suppress evidence obtained subsequent to her arrest for driving while intoxicated based upon a lack of probable cause to support her arrest. For the following reasons, the trial court's decision is affirmed.

At approximately 7:16 p.m. on June 22, 2012, Corporal Joshua Owens of the Missouri Highway Patrol stopped Avent for speeding on Montserrat Park Road in

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Johnson County.1 After detecting alcohol on Avent's breath, Corporal Owens questioned Avent and asked her to perform several field sobriety tests including a horizontal gaze nastagmus test ("HGN"), a walk-and-turn test, a one-leg-stand test, and a portable breath test. At the conclusion of those tests, despite Avent having performed well on the walk-and-turn and one-leg-stand tests, Corporal Owens placed Avent under arrest for driving while intoxicated in violation of § 577.010. After being taken to the police station, read Miranda warnings, and advised of the implied consent law, Avent consented to a chemical test of her breath which indicated that her blood alcohol content was in excess of .08 percent by weight.

After being charged by information with driving while intoxicated, Avent filed a motion to suppress the results of the breathalyzer test and any statements made by her following her arrest, claiming that Corporal Owens lacked probable cause to support his decision to place her under arrest. After hearing evidence and argument on that motion, the trial court granted Avent's motion and ordered any evidence obtained after her arrest suppressed.2

In its sole point on appeal,3 the State claims that the trial court clearly erred in sustaining Avent's motion to suppress "in that the facts that Defendant had watery and

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glassy eyes, Defendant admitted to consuming four or five beers, Defendant emitted a strong odor of alcohol, Defendant exhibited six out of six clues of intoxication on the horizontal gaze nystagmus test, and Defendant's breath tested positive for alcohol through the portable breath test established probable cause to arrest Defendant for driving while intoxicated." In making this argument, the State, contrary to our standard of review, disregards the ability of the trial court to make credibility determinations and to weigh the evidence, discounts evidence favorable to Avent, and fails to view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the trial court's ruling.

Where a motion to suppress has been filed by a criminal defendant, "[t]he State has the burden of showing by a preponderance of the evidence that the motion to suppress should be denied." State v. Emmett, 346 S.W.3d 418, 420 (Mo. App. S.D. 2011) (internal quotation omitted). "This includes both the burden of producing evidence and the risk of non-persuasion." Id. at 419; see also State v. Harris, 305 S.W.3d 482, 485 (Mo. App. E.D. 2010) ("[T]he State has the burden of production and persuasion to show by a preponderance of the evidence that a defendant's motion to suppress should be overruled."). "Probable cause exists where the facts and circumstances within the police officers' knowledge, and of which they have reliable and trustworthy information, would warrant a person of reasonable caution to believe that the person being arrested had committed the offense." State v. Johnson, 354 S.W.3d 627, 634 n.6 (Mo. banc 2011) (internal quotation omitted).

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"'Where a trial court has granted a defendant's motion to suppress, 'we review the trial court's decision on appeal under an abuse of discretion standard. Only if the trial court's judgment is clearly erroneous will an appellate court reverse.''" Emmett, 346 S.W.3d at 419 (quoting State v. Pfleiderer, 8 S.W.3d 249, 253 (Mo. App. W.D. 1999) (quoting State v. Milliorn, 794 S.W.2d 181, 183 (Mo. banc 1990))). "Review is limited to determining whether the decision is supported by substantial evidence." State v. Stover, 388 S.W.3d 138, 149 (Mo. banc 2012). In making that determination, "[t]he facts and reasonable inferences from such facts are considered favorably to the trial court's ruling and contrary evidence and inferences are disregarded." State v. Norfolk, 366 S.W.3d 528, 531 (Mo. banc 2012). "We defer to the factual findings and credibility determinations made by the circuit court, remembering that the circuit court may choose to believe or disbelieve all or any part of the testimony presented by the State, even though it may be uncontradicted, and may find the State failed to meet its burden of proof."4 Emmett, 346 S.W.3d at 420 (internal quotation omitted); see also State v. Mignone, No. WD75654, 2013 WL 5712452 at *2 (Mo. App. W.D. 2013). "The weight of the evidence and the credibility of the witnesses are for the trial court's determination." State v. Kovach, 839 S.W.2d 303, 307 (Mo. App. S.D. 1992).

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Where the trial court makes no findings of fact in ruling on the motion to suppress, the trial court is presumed to have found all facts in accordance with its ruling. State v. Gaw, 285 S.W.3d 318, 324, 325 (Mo. banc 2009);5 Foster, 392 S.W.3d at 578-79; State v. Hamilton, 227 S.W.3d 514, 515 (Mo. App. S.D. 2007); State v. Abeln, 136 S.W.3d 803, 808 (Mo. App. W.D. 2004); State v. Kampschroeder, 985 S.W.2d 396, 398 (Mo. App. E.D. 1999); State v. Lacy, 851 S.W.2d 623, 627 (Mo. App. E.D. 1993); State v. Morr, 811 S.W.2d 794, 796 (Mo. App. W.D. 1991). The trial court will be deemed to have implicitly found not credible, or entitled to little to no weight, any testimony or other evidence that does not support its ruling. Lacy, 851 S.W.2d at 627; State v. Banks, 922 S.W.2d 32, 40 (Mo. App. S.D. 1996).6 "If the ruling is plausible, in light of the record viewed in its entirety, we will not reverse, even if we would have

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weighed the evidence differently." Harris, 305 S.W.3d at 485; Milliorn, 794 S.W.2d at 184.

We note, at the outset, that this is not a case where the trial court's decision was rendered based on stipulated facts and the question presented to the trial court was merely an issue of law. The factual issues in this case were clearly contested. "A factual issue is contested if disputed in any manner, including by contesting the evidence presented to prove that fact." Pearson v. Koster, 367 S.W.3d 36, 44 (Mo. banc 2012). "[A] party can contest the evidence in many ways, such as by putting forth contrary evidence, cross-examining a witness, challenging the credibility of a witness, pointing out inconsistencies in evidence, or arguing the meaning of the evidence." Id. "Once contested, a trial court is free to disbelieve any, all or none of the evidence, and the appellate court is not to re-evaluate testimony through its own perspective." Id. (internal quotation omitted).

Avent filed a motion to suppress the evidence challenging the legality of her arrest. The State produced Corporal Owens to testify as to the circumstances surrounding that arrest. Avent cross-examined Corporal Owens, challenging his testimony by inferring bias and partiality, pointing out Corporal Owens selective omission of observations favorable to Avent, and by questioning the evidentiary weight of his observations and the reasonableness of inferences drawn therefrom. Avent obtained admissions by Corporal Owens that his various observations were indicative of the fact alcohol had been consumed but were not indicative of the amount consumed. Avent also elicited an abundance of testimony from Corporal Owens indicative of her

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not being intoxicated. Accordingly, the underlying facts of this case were certainly contested.7 See Emmett, 346 S.W.3d at 420 (noting that the State's contention that the

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facts were not in dispute was belied by the fact the defendant filed a motion to suppress challenging the legality of her arrest, there were no factual stipulations in the record, the State produced witnesses to testify about the circumstances of the arrest, and the defendant cross-examined those witnesses); Mignone, 2013 WL 5712452 at *3 ("Mignone contested the evidence through cross-examination of the trooper regarding his observations and by argument to the trial court regarding the nature and quality of the evidence.").

While Avent conceded during oral argument that she had admitted consuming alcohol on the day of her arrest, that a PBT was administered, and that she had alcohol on her breath,8 Avent affirmatively asserts on appeal that the trial court was not obligated to, and presumably did not, accept as credible Corporal Owen's testimony regarding (a) her having watery/glassy eyes,9 (b) her admitting to have consumed four

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or five beers in the four to five hours preceding her arrest, (c) her having a strong odor of alcohol on her breath, or (d) her exhibiting six clues of intoxication on the HGN test. The State, on the other hand, takes the position that, because the trial court made some gratuitous oral statements about...

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