State v. Knifong, WD 58739.

• Decision Date: 28 August 2001
• Docket Number: No. WD 58739.,WD 58739.
• Citation: 53 S.W.3d 188
• Parties: STATE of Missouri, Respondent, v. Tammy P. KNIFONG, Appellant.
• Court: Missouri Court of Appeals

53 S.W.3d 188

STATE of Missouri, Respondent, v. Tammy P. KNIFONG, Appellant.

No. WD 58739.

Missouri Court of Appeals, Western District.

June 26, 2001.

Motion for Rehearing and/or Transfer Denied August 28, 2001.

Kathryn Neal Benson, Fulton, for appellant.

Robert R. Sterner, Pros. Atty., Geoff Preckshot, Asst. Pros. Atty., Fulton, for respondent.

Motion for Rehearing and/or Transfer to Supreme Court Denied August 28, 2001.

RONALD G. HOLLIGER, Judge.

On April 18,1999, Appellant Tammy Knifong patronized the Post Office Bar and Grill, eating dinner at the establishment and consuming alcoholic beverages. Knifong claimed at trial that she only consumed 2.5 beers between 10:00 P.M. and 1:15 A.M., but admitted that she had taken Effexor, an antidepressant medication, earlier that day, as well as a prescription decongestant sometime that evening. During her time at the establishment, Knifong offered to give a friend a ride home that evening, and went out to her vehicle to wait for her friend. She waited for an undefined period of time, then drove out of the parking lot, thinking that perhaps her friend had not found her and had started to walk home. By this point, it was approaching 2:00 A.M.

Palmer, the arresting officer, attempted to stop Knifong roughly three to four blocks after she had left the parking lot, as she had failed to turn on her vehicle's headlights. Knifong did not pull over until they had traveled another two blocks. Palmer videotaped the encounter with Knifong which followed, including the field sobriety tests administered by the officer.¹ Palmer testified at trial that he smelled "the odor of intoxicants" coming from Knifong's vehicle. He also testified that Knifong's eyes were bloodshot and watery at the time of the stop, and that her speech was slurred. Palmer's testimony indicates that he had some difficulty understanding Knifong due to her accent, however. Palmer also testified that during the stop he saw a half-full bottle of beer in a cup holder in Knifong's vehicle.

During his encounter with Knifong, Palmer administered a horizontal gaze nystagmus (HGN) test. The officer testified that Knifong exhibited 5 of the 6 possible indicators of intoxication on that test. Palmer then administered a "one-leg stand" test and a "walk-and-turn" test to Knifong. At first, Knifong could not stand on one leg without swaying and hopping for more than five to six seconds. Upon Knifong's third attempt, she was still unable to remain on one foot for the full 30 seconds, but was able to comply for approximately 22 seconds. Knifong was similarly only partially able to complete the "walk-and-turn" test. Evidence and testimony indicated that Knifong was belligerent and uncooperative at points during her contact with Palmer. Knifong subsequently claims that this was because she had allegedly been sexually harassed by another Fulton police officer a week previously, and thought her stop was related to that incident.

Palmer placed Knifong under arrest for DWI based upon the officer's observations and Knifong's performance on the field sobriety tests. After being taken to the police station and informed of her rights under Miranda and the implied consent law, Knifong initially refused to submit to a breath test. She refused again 20 minutes later, apparently claiming that she could not take the test due to being on prescription medication. Knifong states that she was aware of the warning on her antidepressant medication that she was to avoid alcohol and was unsure whether it would affect her breath test results. Knifong also admitted during questioning by the officer that she was "under the influence" of an alcoholic beverage, but was confused as to the difference between merely being "under the influence" and actual impairment. The booking room procedures were also videotaped and shown to the jury.

This matter proceeded to jury trial on May 2, 2000. The central issue permeating the trial, from voir dire through the instruction conference, was the distinction between being "under the influence" and intoxication causing actual impairment. Knifong's counsel objected to the State's verdict director on the grounds that the definition of intoxication did not adequately inform the jury as to what the offense of intoxication was, in violation of Knifong's due process rights. In her motions for acquittal, Knifong also briefly made oral argument suggesting that the charging statute was unconstitutionally vague.

At the conclusion of trial, the jury returned a guilty verdict, and Knifong was sentenced to one count of Driving While Intoxicated. Due to her criminal history, she was also sentenced as a prior offender. Knifong subsequently filed a motion for judgment notwithstanding the verdict, or alternatively for new trial, raising in greater detail her constitutional arguments against the DWI statue and the state's verdict director, among other issues. This motion was overruled, and Knifong was sentenced to 90 days in the county jail. That sentence was suspended and Knifong was placed on two years probation. This appeal follows.

Knifong raises three points on appeal. She first contends that the trial court erred in denying her motions for acquittal and for judgment notwithstanding the verdict or for new trial because the definition of "intoxicated condition" in § 577.001, RSMo 1994, is unconstitutionally vague, in violation of the Fifth and Fourteenth Amendments. For her second point, Knifong argues that the trial court erred in overruling her objection to the State's verdict director. In this point, Knifong relies on the same vagueness argument as stated in her first point, suggesting that this vagueness leads to jury confusion and could cause inconsistent jury verdicts arising from the same or similar evidence. For her final point on appeal, Knifong contends that the trial court erred in denying her motions for acquittal and JNOV/ new trial because the State failed to establish beyond a reasonable doubt that she was intoxicated while operating her vehicle.

For her first point, Knifong musters an argument that the definition of "intoxicated condition" in § 577.001, RSMo 1994, is unconstitutionally vague, in violation of the Fifth and Fourteenth Amendments. Specifically, Knifong contends that the statutory definition "uses terminology that implies a variety of levels and manners of influence by alcohol ... forcing people of ordinary intelligence to guess at its meaning, and fails to provide explicit standards necessary to avoid arbitrary and discriminatory application by the state and its agents." The thrust of Knifong's argument appears to be that the statute permits conviction if the defendant is under any amount of influence of an intoxicating substance, however minimal. Knifong suggests that the statute fails to establish any borderline level of intoxication, such as intoxication to the point of impairment, making it impossible for individuals to determine when they would be in violation of the law.

The parties appear to concede that Knifong's first point on appeal presents more than a colorable attack on the validity of the DWI statute. If a defendant has raised and preserved for appeal such an argument alleging the constitutional invalidity of a Missouri statute, this court does not have jurisdiction to hear the issue. See Hatfield v. McCluney (In re Estate of McCluney), 871 S.W.2d 657, 659 (Mo.App. 1994). In such circumstances, we are required to transfer the case to the Missouri Supreme Court for resolution of the issue. Id. It is essential, therefore, that we examine whether the constitutional issue was properly preserved by Knifong. To preserve a constitutional issue, it must be "raised at the earliest time consistent with good pleading and orderly procedure." State v. Flynn, 519 S.W.2d 10, 12 (Mo.1975). There are also strict requirements as to how the substance of that constitutional issue is to be raised:

To properly raise a constitutional issue, a party must (1) raise the constitutional issue at the first available opportunity, (2) specifically designate the constitutional provision claimed to have been violated by express reference to the article and section of the constitution or by quoting the provision itself, (3) state the facts showing the violation; and (4) preserve the constitutional question throughout for appellate review.

State v. Hyde, 682 S.W.2d 103, 105 (Mo. App.1984); see also State v. Tatum, 653 S.W.2d 241, 243 (Mo.App.1983). If a party fails to properly preserve an argument that a statute is constitutionally invalid, the issue cannot be considered on appeal. See State v. Belcher, 805 S.W.2d 245, 251 (Mo.App.1991).

Here, Knifong's argument that § 577.001 is unconstitutionally vague was not presented in either of her written motions for acquittal. Her counsel made additional oral arguments, at the time those motions were presented, that the DWI statute was vague and thus violated her due process rights. However, in our view, counsel's arguments do not meet the requirements articulated in State v. Hyde. Nowhere do counsel's arguments identify which constitution (state or federal) is implicated, or identify specific sections of that constitution. See State v. Tatum, 653 S.W.2d at 243. Nor are counsel's arguments particularly clear as to what constitutes the alleged infirmity of the statute.

Knifong failed to present a fully...