State v. Rose, WD 59925.

Citation86 S.W.3d 90
Decision Date30 July 2002
Docket NumberNo. WD 59925.,WD 59925.
PartiesSTATE of Missouri, Respondent, v. Douglas D. ROSE, Appellant.
CourtCourt of Appeal of Missouri (US)

Joseph A. Morrey, St. Joseph, for Appellant.

Dwight K. Scroggins, Jr., St. Joseph, for Respondent.



Douglas D. Rose raises five points on appeal from his conviction for driving while intoxicated (DWI). Mr. Rose was also convicted of another traffic offense, but none of the points relate to that conviction. The first point alleges that there was insufficient evidence to sustain his DWI conviction. Next, he claims that the trial court should have granted his motion in limine to exclude evidence of his refusal to take a breath test. In his third point he claims that the trial court erred in allowing the police officer to testify concerning the horizontal gaze nystagmus test that was administered. Fourth, Mr. Rose argues that the trial court improperly interrupted his cross-examination of the arresting officer and dismissed the jury. Finally, he complains that the trial judge improperly interrupted his closing argument and dismissed the jury upon an objection by the State.

We affirm.


Mr. Rose was stopped by St. Joseph Police Officer Gerard McConaha at approximately 1:30 a.m. on October 4, 2000, after the officer observed Mr. Rose's pickup truck slow at a red light, proceed through the intersection, and make a left turn while the signal was still red. After pulling Mr. Rose over, Officer McConaha detected a strong odor of intoxicants, and the officer also noticed that Mr. Rose's eyes were glassy. When asked, Mr. Rose denied that he had been drinking. Officer McConaha had Mr. Rose exit the vehicle because of his driving actions, the smell of intoxicants, and his general look of intoxication. At that point, the officer administered three field sobriety tests, the horizontal gaze nystagmus ("HGN") test, the one-leg stand test, and the walk-and-turn test.

Based upon Mr. Rose's poor performance on these sobriety tests, the officer concluded that Mr. Rose was intoxicated. He was asked again if he had been drinking, and Mr. Rose responded, "Well, I had two beers." Mr. Rose was arrested for DWI and transported to the police station. At the station, Mr. Rose agreed to submit to a breath sample. However, after being given three opportunities, the officer concluded that Mr. Rose was not attempting to give a valid sample because the breathalyzer emitted an audible beeping tone "like if you just let it set there by itself" and because the device into which Mr. Rose was blowing did not "cloud up from condensation." Thus, Mr. Rose was marked down as a refusal. It was the officer's opinion, even without the benefit of a breathalyzer result, that Mr. Rose was under the influence of alcohol that night. Accordingly, Mr. Rose was charged with the class B misdemeanor of DWI, § 577.010,1 and a jury found him guilty.2

This appeal follows.


Because the claims of error raised in Points II and III, if found in Mr. Rose's favor, would bear on the sufficiency of evidence claim he raises in Point I, we address these points prior to addressing Point I.

I. Evidence of Mr. Rose's Failure to Submit to a Breathalyzer Test

In Mr. Rose's second point on appeal, he claims that the trial court erred in denying his motion in limine to exclude evidence of his failure to submit to the breathalyzer test because refusal was not found in his administrative suspension hearing. Rulings on motions in limine are interlocutory in nature and preserve nothing for appellate review. See State v. Carr, 50 S.W.3d 848, 855 (Mo.App. W.D. 2001). To preserve a claim of error for appellate review as to the admission of evidence, the party seeking to exclude the evidence must object at trial to its admission. See id. at 855-56. Here, however, when the prosecution adduced testimony from Officer McConaha concerning Mr. Rose's refusal, defense counsel did not object. Therefore, the issue has not been preserved for appellate review. Although Mr. Rose does not apprise this court of the applicable standard of review pursuant to Rule 84.04(e),3 we presume that he requests plain error review pursuant to Rule 30.20.

Under plain error review, Mr. Rose must show that a manifest injustice or a miscarriage of justice occurred. Even though the State concedes in its brief that the Associate Circuit Court of Buchanan County reinstated Mr. Rose's license after a trial de novo on the basis that the evidence presented at the hearing was insufficient, Mr. Rose has not filed a record of the administrative hearing with this court. It is the appellant's responsibility to prepare the record on appeal. Rule 81.12(d). Furthermore, whatever the reason for trial counsel's failure to object at trial, the claim he seems to raise is essentially a collateral estoppel argument, maintaining that the prosecution should be precluded from introducing evidence of a driver's refusal where no refusal is found in the administrative context, and the courts of this state have typically held that such an assertion is without merit. See State v. Clarkston, 963 S.W.2d 705, 710 (Mo.App. W.D.1998) ("The fact that the refusal to consent to a breath test could not be used as a basis to revoke [the driver's] license did not make his refusal to take [the breath test] inadmissible for other purposes, such as to explain ... why the State did not have direct evidence of the level of alcohol ... in [his] blood, and instead relied on other evidence of intoxication."); see also State v. Mayfield, 970 S.W.2d 917, 918-919 (Mo. App. S.D.1998) (stipulation in license revocation proceeding that officer did not have probable cause to stop motorist did not collaterally estop the State in later DWI case); State v. Rotter, 958 S.W.2d 59, 64 (Mo.App. W.D.1997) (stipulation during license revocation hearing that driver had not refused to submit to a breath test did not have collateral estoppel effect in driver's criminal trial for DWI); State v. Warfield, 854 S.W.2d 9, 11-12 (Mo.App. S.D. 1993) (finding in prior license suspension administrative hearing that defendant was not driver of automobile did not bar the prosecution for DWI); Pagano v. Dir. of Revenue, 927 S.W.2d 948, 951 (Mo.App. E.D.1996) (stating "driver's guilty plea in the criminal proceeding was not conclusive as to any of the elements of the administrative suspension of driver's license, and did not waive Director's duty to present evidence that driver was, in fact, the person operating the vehicle. The trial court's determination of whether driver was the person behind the wheel was independent of, and not affected by, driver's plea of guilty to the criminal charges arising out of the same occurrence.").

Because of the aforementioned case law and the overall circumstances in this case, we are confident that Mr. Rose did not suffer a manifest injustice or a miscarriage of justice. This point is denied.

II. The HGN Test and Related Testimony4

In discussing the field sobriety tests administered to Mr. Rose, Officer McConaha testified that Mr. Rose scored six points on the horizontal gaze nystagmus test. The HGN test scores one point for eye movement indicative of alcohol influence for each of three tests for each eye, with the highest possible score of six points, and a score of four or more points is an indication that a suspect is intoxicated. See Parrish v. Dir. of Revenue, 11 S.W.3d 652, 655 (Mo.App. E.D.1999). Although somewhat awkward, the name of this test is quite descriptive:

Nystagmus is an involuntary jerking of the eyes. Under the HGN test, an individual's eye movements are tested as a means of determining whether they are under the influence of alcohol. A suspect is required to follow an object such as a finger or pen with his eyes as the object is moved laterally along a horizontal plane to the periphery of the suspect's vision. [T]here are three separate indicators that an officer looks for under the HGN test. First, an officer observes how smoothly a suspect follows the object as it is moved to the periphery of the suspect's vision. Jerking of the eyes rather than the ability to follow the object smoothly indicates the influence of alcohol. Second, an officer observes whether or not a distinctive jerking occurs in the eyes at the maximum point of deviation when the eye moves to the far periphery of vision. Distinctive jerking is indicative of the influence of alcohol. Third, an officer observes the angle at which nystagmus occurs. Nystagmus occurring at or before the eye is looking at a 45-degree angle is indicative of the influence of alcohol.

State v. Hill, 865 S.W.2d 702, 704 (Mo.App. W.D.1993), overruled on other grounds by State v. Carson, 941 S.W.2d 518, 520 (Mo. banc 1997).

A. The Admissibility of HGN Test Results

The courts of this state typically find that HGN evidence is admissible as a reliable measure of an illegal level of intoxication in prosecutions for DWI. See, e.g., Clarkston, 963 S.W.2d at 717. In this case, Mr. Rose challenges the trial court's decision to allow Officer McConaha to testify: "Six scores, in my experience, they've always been above the legal limit [of] .10. I've never had one that scored six below." More specifically, Mr. Rose's third point claims that Officer McConaha was incompetent to testify because an insufficient foundation was laid as to both his competency as an expert and the test's scientific efficacy.

As it relates to Mr. Rose's quarrel with the test's efficacy, we first recognized the scientific acceptance of the HGN test in ...

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