Court of Appeals of Missouri, Southern District, First Division
APPEAL FROM THE CIRCUIT COURT OF PHELPS COUNTY. Honorable William E. Hickle, Circuit Judge.
For Appellant: Margaret M. Johnston, of Columbia, Missouri.
For Respondent: Chris Koster, Attorney General and Robert J. Bartholomew, Assistant Attorney General, of Jefferson City, Missouri.
WILLIAM W. FRANCIS, JR., C.J., P.J. - OPINION AUTHOR. JEFFREY W. BATES, J. - Concurs. DANIEL E. SCOTT, J. - Concurs.
WILLIAM W. FRANCIS, JR., C.J., P.J.
Patrick L. Baker (" Baker" ) appeals his conviction of the class B felony of driving while intoxicated (" DWI" ) in violation of section 577.010. Finding no merit to Baker's claims, we affirm Baker's conviction.
Facts and Procedural Background
Baker does not contest the sufficiency of the evidence to support his conviction. Accordingly, we set forth only those facts necessary to address Baker's single point. In doing so, we view the evidence in the light most favorable to the jury's verdict, rejecting all contrary evidence and inferences. See State v. Newberry, 157 S.W.3d 387, 390 (Mo.App. S.D. 2005).
Baker was charged by information with the class B felony of DWI in violation of section 577.010. At trial, during the State's opening statement, the prosecutor referred to the arresting officer's search of the vehicle Baker was in and his discovery of " a cup on the floorboard that had spilled that had some residue left in it that he sniffed and it smelled like rum and Coke." Baker's counsel objected and argued the prosecution failed to disclose to him the officer's findings regarding the contents or smell of the cup. The prosecutor's response was that he had disclosed this information to Baker's counsel in a conversation earlier in the week. Baker's counsel admitted the prosecution had disclosed there was a cup in the car, but suggested the prosecution failed to mention it had a substance in it, or that it smelled like rum and Coke.
The trial court took the objection under advisement, instructed the prosecutor not to mention the cup further in his opening statement, and instructed the jury to disregard the prosecutor's statement. After opening statements, the trial court again heard arguments and then inquired of Baker's counsel:
THE COURT: So what relief are you asking for?
[BAKER'S COUNSEL]: I'm asking that if the officer's allowed to testify -- I don't have an objection to the officer testifying about finding a cup. [Prosecutor] did tell me about that. I'm saying that I -- the news about the rum and Coke in it, that's news to me. And there's nothing in evidence, there's nothing in the report and so ...