State v. Brightman

• Citation: 388 S.W.3d 192
• Decision Date: 29 January 2013
• Docket Number: No. WD 74299.,WD 74299.
• Parties: STATE of Missouri, Respondent, v. Jonathan Andrew BRIGHTMAN, Appellant.
• Court: Court of Appeal of Missouri (US)

388 S.W.3d 192

STATE of Missouri, Respondent,

v.Jonathan Andrew BRIGHTMAN, Appellant.

No. WD 74299.

Missouri Court of Appeals,

Western District.

Oct. 2, 2012.

Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 25, 2012.

Application for Transfer Denied Jan. 29, 2013.

Brent M. Nelson, Columbia, MO, for respondent.

Robert S. Adler, St. Louis, MO, for appellant.

Before Special Division: ZEL FISCHER, Special Judge, Presiding, MARK D. PFEIFFER, Judge and GARY D. WITT, Judge.

GARY D. WITT, Judge.

Jonathan Brightman was convicted after a jury trial in Boone County Circuit Court of driving while intoxicated, Section 577.010.¹ We reverse and remand.

Factual Background²

Brightman was charged with driving while intoxicated, and for failing to signal prior to turning ³ on December 17, 2009.

At approximately 2:35 a.m., Brightman was driving his vehicle when the police observed that he failed to signal prior to making a left hand turn. After pulling over Brightman's vehicle, the officer noticed that Brightman had a strong odor of intoxicants on his breath, and also had bloodshot and glassy eyes. When asked by the officer whether he had consumed alcohol prior to driving, Brightman responded by stating “a couple, but not much.”

The officer requested that Brightman participate in the three standardized field sobriety tests, and Brightman complied with this request. During this testing, Brightman failed the one-leg-test by: (1) swaying while balancing and (2) putting his foot down during the test.⁴ Brightman also failed the horizontal gaze nystagmus test (“HGN”) by manifesting nystagmus in all six phases of the test.⁵ The officer further testified that while Brightman failed to touch his heel to toe on more than one occasion during the walk and turn test, his performance was otherwise sufficient to pass this test.

Based on these observations, and a preliminary breath test which showed the presence of alcohol, the officer placed Brightman under arrest for driving while intoxicated. Brightman submitted to a breath test which revealed that he had a blood alcohol concentration of 0.119%.

On July 13, 2011, this matter was tried before a jury. At the conclusion of trial, the jury found Brightman guilty of driving while intoxicated.

After a sentencing hearing on August 15, 2011, the trial court sentenced Brightman to thirty days in jail with execution of that sentence suspended and Brightman was placed on probation for two years. The Circuit Clerk's office taxed costs to Brightman in an amount totaling $1,149.90, which included the costs of the jury.

Brightman now appeals, arguing seven Points on appeal.

Analysis

In Point One, Brightman argues that the “trial court erred in admitting the breath test results because, based on the evidence (the testimony of the arresting officer, the DVD of the stop, field sobriety tests and arrest) there was no probable cause to arrest Defendant and a trial judge in the administrative revocation had previously found no probable cause to arrest based on the same evidence therefore issues preclusion applied based on res judicata and collateral estoppel and the motion to suppress the breath test results should have been sustained.” We disagree.

Here, Brightman brings multiple claims of error in one Point Relied On, which is a sufficient basis to deny any relief on the Point Relied On. State v. Agee, 350 S.W.3d 83, 96–7 (Mo.App. S.D.2011) (“Multiple claims of error in one point relied on render[ ] the point multifarious and as such is a violation of Rule 84.04, made applicable to briefs in criminal appeals by Rule 30.06(c). Generally, multifarious points preserve nothing for appellate review and are ordinarily subject to dismissal.”). Ex gratia, we review the distinctissues presented in this Point Relied On in turn.

Here, the gravamen of Brightman's claim in this Point Relied On is that there was not probable cause to arrest him for driving while intoxicated. A person commits the crime of “driving while intoxicated” if he operates a motor vehicle in an intoxicated or drugged condition. Section 577.010. In reviewing the trial court's ruling on the probable cause for an arrest, the appellate court considers all evidence and reasonable inferences in the light most favorable to the ruling and defers to the trial court's credibility determinations. State v. Ondo, 231 S.W.3d 314, 315 (Mo.App. S.D.2007). “Probable cause to arrest exists when the arresting officer's knowledge of the particular facts and circumstances is sufficient to warrant a prudent person's belief that the suspect has committed an offense.” Id.

Here, there is no dispute that Brightman was operating a vehicle. Further, there was evidence that prior to being arrested for driving while intoxicated, (1) Brightman admitted that he had been drinking prior to being stopped, and (2) the officer made various observations supporting his belief that Brightman was intoxicated (strong odor of intoxicants on his breath, blood shot and glassy eyes, failure of the one-leg-test, and failure of all six clues of the horizontal gaze nystagmus test). See State v. Keeth, 203 S.W.3d 718, 724 (Mo.App. S.D.2006) (“Defendant smelled of an intoxicating beverage, had red eyes, his speech was slurred, and he was unsteady in his gait. Upon routine questioning by a law enforcement officer investigating the accident, Defendant admitted to drinking two or three beers an hour or so before the accident.... Defendant failed three field sobriety tests administered by Patrolman Hedrick.”).⁶ This case is factually distinguishable from Keeth only in that Brightman passed one of the three standardized field sobriety tests. This distinction is not cause for relief for Brightman, in that our standard of review requires us to view the facts in the light most favorable to the ruling below. State v. Sund, 215 S.W.3d 719, 723 (Mo. banc 2007).

Brightman also argues under this Point that the trial court was somehow bound by the findings of a different judge, in a different action regarding the administrative review of the suspension of Brightman's driver's license. The trial judge in the administrative action found that there was not probable cause to arrest Brightman for driving while intoxicated. But Missouri law is clear that such a finding is not binding on the court in the criminal action. The legislature has determined that in an administrative proceeding to revoke or suspend a driver's license, “the determination of these facts by the Department (of Revenue) is independent of the determination of the same or similar facts in the adjudication of any criminal charges arising out of the same occurrence.” Section 302.505. “The operation of a motor vehicle while under the influence of intoxicants gives rise to separate and independent proceedings, one civil and one criminal, and the outcome of one proceeding is of no consequence to the other.” State v. Purvis, 739 S.W.2d 589, 591 (Mo.App. S.D.1987).⁷ Simply put, Brightman has failed to cite to any authority to demonstrate that the above does not apply to the instant case.

Therefore, for all of the aforementioned reasons, Point One is denied.

In Point Two, Brightman argues that the “trial court erred in submitting instruction 5 [as] the verdict director on [the] driving while intoxicated [charge].” We disagree.

This argument fails by the simple fact that it is undisputed that the trial court instructed the jury using the applicable Missouri Approved Instruction, MAI–CR 3d 331.02. “Whenever there is an MAI–CR instruction or verdict form applicable under the law and Notes On Use, the MAI–CR instruction or verdict form shall be given or used to the exclusion of any other instruction or verdict form.” Rule 28.02(c).⁸ “When an applicable MAI–CR instruction is available, that instruction must be given by the trial court as written, and its use will not constitute error.” State v. Davis, 203 S.W.3d 796, 798 (Mo.App. W.D.2006). Accordingly, “[t]he failure to give an instruction in accordance with an MAI or any applicable Notes on Use is error, the prejudicial effect to be judicially determined.” State v. Michael, 234 S.W.3d 542, 553 (Mo.App. E.D.2007).

Here, it is not disputed that the instruction in question, Instruction No. 5, tracked MAI–CR 3d 331.02, accurately and properly.⁹ Rather, Brightman argues on appeal that “the time has come to change the instruction” and that “[i]f this Court does not believe it has the ability it should reverse this case on the facts of this case.” Brightman further argues that because MAI–CR 3d 331.02 does not define terms such as “intoxicated condition,” it does not track the current state of the law. The Missouri Supreme Court recently expressly rejected this argument:

Missouri authority holds that ordinary persons understand what is meant by the terms “intoxicated condition” and “under the influence.” In State v. Johnson, 55 S.W.2d 967, 968 (Mo.1932), this Court held that “[a]ny juror would readily understand what was meant by a charge of operating a motor vehicle while defendant was in an intoxicated condition.” This Court added that an “attempt to define such words would tend to confuse rather than clarify the issues.” Id.

In State v. Raines, 333 Mo. 538, 62 S.W.2d 727, 729 (1933), this Court held that:

A jury would readily understand that what is meant by an “intoxicated condition” in connection with a charge of this nature is drunkenness to such an extent that it interferes with the proper operation of an automobile by the defendant.

Since Raines, other Missouri courts have also recognized that a driver is in an “intoxicated condition” for purposes of a DWI prosecution if his use of alcohol impairs his ability to operate an automobile. See State v. Cox, 478 S.W.2d 339, 342 (Mo.1972); State v. Hoy, 219 S.W.3d 796, 801 (Mo.App. S.D.2007).... [N]o other jurisdiction has held that a DWI statute similar to Missouri's is unconstitutionally vague.

State v. Schroeder, 330 S.W.3d 468, 475...