State v. Browning
| Decision Date | 06 January 2015 |
| Docket Number | WD 76144 |
| Citation | 458 S.W.3d 418 |
| Parties | State of Missouri, Respondent, v. Gary Preston Browning Jr., Appellant. |
| Court | Missouri Court of Appeals |
458 S.W.3d 418
State of Missouri, Respondent
v.
Gary Preston Browning Jr., Appellant.
WD 76144
Missouri Court of Appeals, Western District.
OPINION FILED: January 6, 2015
Motion for Rehearing and/or Transfer to Supreme Court Denied March 3, 2015
Application for Transfer Denied April 28, 2015
Richard A. Starnes, Jefferson City, MO, for respondent.
James R. Brown, Kearney, MO, for appellant.
Before Division Three: Karen King Mitchell, Presiding Judge, Cynthia L. Martin, Judge and Gary D. Witt, Judge
Opinion
Cynthia L. Martin, Judge
Gary Browning (“Browning”) appeals his conviction of driving while intoxicated as an aggravated offender following a jury trial. He complains that there was insufficient foundation to permit the admission of Sergeant Joe Kantola's (“Sgt. Kantola”) testimony about the results of administration of the horizontal gaze nystagmus (“HGN”) test. Browning also questions the adequacy of the approved verdict director for driving while intoxicated, MAI–CR 3d 331.02, though he concedes that the trial court committed no error in tendering the instruction. Because any error in the admission of the results of the HGN test is not prejudicial in light of other evidence supporting the verdict as to which Browning has no complaint, and because Browning asserts no error in the trial court's use of MAI–CR 3d 331.02, we affirm.
Factual and Procedural Background
Browning does not challenge the sufficiency of the evidence to sustain his conviction. Viewed in the light most favorable to the conviction,1 the following evidence was presented to the jury:
On Sunday, April 22, 2007 at around 10:15 p.m., Sgt. Kantola of the Kearney Police Department was stopped in an unmarked patrol vehicle at a red light at the intersection of 92 Highway and Interstate 35. Sgt. Kantola was in the right lane, and a minivan was stopped next to him in the left lane. Sgt. Kantola observed a black Jeep approaching the minivan quickly from behind, without appearing to slow down. The Jeep then came to a sudden stop. When the light turned green, all three vehicles proceeded through the intersection.
The Jeep passed Sgt. Kantola, following the minivan too closely. The Jeep suddenly entered Sgt. Kantola's lane without using its turn signal. The Jeep accelerated past the minivan, then suddenly went back into the left lane without using its turn signal. At the time, the Jeep was traveling over the posted 35 mile-per-hour speed limit. The Jeep then turned east onto 33 Highway without using its turn signal.
Because Sgt. Kantola had witnessed multiple traffic offenses, he followed the Jeep, and activated his emergency lights. The Jeep slowed down, but did not stop immediately.
Sgt. Kantola approached the Jeep. Browning was driving, and was the sole occupant. Before Browning spoke, Sgt. Kantola could smell an “overpowering” odor of alcohol from Browning's breath. When Browning did speak, his speech was slurred. Browning's eyes were glassy and bloodshot. His pupils were dilated. Sgt. Kantola asked Browning if he had been drinking. Browning responded that he “drank some earlier.” Browning was asked to get out of the car. As Browning did so, he stumbled and used the door to support himself.
Sgt. Kantola administered several field sobriety tests. He administered the HGN test, the walk-and-turn test, and the one-legged stand test. According to Kantola, Browning showed all six signs of intoxication during the HGN test, and also swayed while balancing during the test. Browning showed four of the eight signs of intoxication during the walk-and-turn test, with two being required to demonstrate intoxication. Browning showed all four signs of intoxication during the one-legged-stand test. Browning also submitted to a portable breath test, which was positive for the presence of alcohol. At that point, Browning was placed under arrest. He began pleading with Sgt. Kantola, “Please don't do this to me.”
After being transported to the police station and advised of the implied consent law, Browning agreed to submit to a breath test. Browning's blood alcohol content was .103.
Browning was convicted of driving while intoxicated following a jury trial. The court imposed a four-year sentence, but suspended the sentence and placed Browning on probation. Browning filed this timely appeal.
Analysis
Browning's first point on appeal argues that the trial court abused its discretion in admitting Sgt. Kantola's testimony regarding the results of the HGN test over Browning's objection. Browning claims that an adequate foundation was not established to permit admission of the testimony. Browning raised this same issue in a pre-trial motion to suppress which was denied by the trial court following an evidentiary hearing.
We review a trial court's decision regarding the admission of evidence for an abuse of discretion. State v. Prince, 311 S.W.3d 327, 335 (Mo.App.W.D.2010). We will not find an abuse of discretion unless a trial court's ruling is clearly against the logic of the circumstances and is so arbitrary and unreasonable as to indicate a lack of careful consideration. State v. Brown, 939 S.W.2d 882, 883 (Mo. banc 1997). We will not reverse a conviction based on the erroneous admission of evidence unless prejudice is demonstrated, established by proof that the admission of the evidence was “outcome-determinative.” State v. Adams, 350 S.W.3d 864, 866 (Mo.App.E.D.2011) (citing State v. Johnson, 207 S.W.3d 24, 42 (Mo. banc 2006) ). “ ‘A finding of outcome-determinative prejudice
expresses a judicial conclusion that the erroneously admitted evidence so influenced the jury that, when considered with and balanced against all of the evidence properly admitted, there is a reasonable probability that the jury would have acquitted but for the erroneously admitted evidence.’ ” Adams, 350 S.W.3d at 866 (quoting Johnson, 207 S.W.3d at 42 ).
Here, Browning only challenges about the trial court's admission of Sgt. Kantola's testimony regarding the results of the HGN field sobriety test. Browning does not challenge the admission of Sgt. Kantola's testimony regarding Browning's erratic driving and about the physical signs of intoxication he observed immediately upon approaching Browning including the smell of alcohol, bloodshot and glassy eyes, dilated pupils, slurred speech, and problems with balance. Browning does not challenge the admission of Sgt. Kantola's testimony that Browning acknowledged he had been drinking. Browning does not challenge the admission of Sgt. Kantola's testimony regarding the results of the walk-and-turn and the one-legged stand tests, the results of the portable breath test, or the results of the breath test which demonstrated that Browning had a blood alcohol content of .103, well in excess of the presumptive level of intoxication set forth in section 577.037.1.2 Browning does not challenge the admission of Sgt. Kantola's testimony about Browning's plea that he not be arrested.
Given all of this unchallenged evidence, the sufficiency of which to support his conviction Browning admits, there is no reasonable probability that the jury would have acquitted Browning but for the trial court's admission of Sgt. Kantola's testimony about the results of the HGN test. Thus, even assuming the trial court committed error in the admission of this evidence, that error is not prejudicial as it is not outcome-determinative, and the error will not support the reversal of Browning's conviction.3
Browning's first point on appeal is denied.
Browning's second point on appeal does not claim trial court error, but instead questions whether the time is ripe for the Supreme Court to re-evaluate the adequacy of MAI–CR 3d 331.02, the approved verdict director for driving while intoxicated. At trial, Browning tendered a modified verdict director that added an essential element,4 and a definition of “intoxicated condition,”5 neither of which appear in MAI–CR 3d 331.02. The tendered verdict director was refused. Browning's point relied on acknowledges that the trial court did not commit error in refusing the tendered instruction.6
Browning queries, however, whether it would be “prudent” to define the term “intoxicated condition” in the approved verdict director,7 citing dicta to that effect in State v. Brightman, 388 S.W.3d 192 (Mo.App.W.D.2012). He asks in his Brief: “Has the time now come to reconsider this issue?” [Appellant's Brief, p. 25] Browning acknowledges that binding precedent on this issue relegates his query to the exclusive province of the Supreme Court. [Appellant's Brief, p. 3] See State v. Schroeder, 330 S.W.3d 468, 475 (Mo. banc 2011) (holding that “ordinary persons understand what is meant by the term [ ] ‘intoxicated condition,’ ” negating any need for a definition in MAI–CR 3d 331.02).
Because Browning claims no error in the trial court's use of the approved verdict director for driving while intoxicated, there is nothing for this court to review. Rule 84.04(d)(1).
Browning's second point on appeal is denied.
Mitchell, Presiding Judge, joins in the majority...
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