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State v. Nunez

Court of Appeals of Missouri, Southern District, First Division

February 23, 2015

STATE OF MISSOURI, Plaintiff-Respondent,
v.
RUBEN NUNEZ, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF NEWTON COUNTY. Honorable Timothy W. Perigo, Circuit Judge.

For Appellant: Margaret M. Johnston of Columbia, MO.

For Respondent: Chris Koster, Atty. Gen., Adam S. Rowley, Asst. Atty. Gen. of Jefferson City, MO.

JEFFREY W. BATES, J. - OPINION AUTHOR. DANIEL E. SCOTT, J. - CONCUR. WILLIAM W. FRANCIS, JR., C.J./P.J. - CONCUR.

OPINION

JEFFREY W. BATES, J.

Page 530

AFFIRMED

Ruben Nunez (Defendant) appeals his conviction for driving while intoxicated (DWI). See § 577.010.[1] Defendant's single point contends the trial court clearly erred in admitting evidence obtained by a police officer following an allegedly unlawful traffic stop. We disagree and affirm.

In March 2013, Defendant was charged by information with DWI.[2] Prior to trial, defense counsel filed a motion to suppress all of the evidence obtained by Granby Police Officer David Mace, the officer who stopped Defendant. Defense counsel contended that Officer Mace did not have reasonable suspicion for the stop. Officer Mace testified at the motion hearing, and the trial court denied the motion. Defendant's DWI charge was tried to a jury. At trial, Officer Mace was called as a witness by the State. Defense counsel was permitted to make a continuing objection to Officer Mace's testimony, which the court overruled. The jury convicted Defendant of DWI. Defendant preserved his objection to Officer Mace's testimony by including that issue in his motion for new trial. On appeal, Defendant challenges the court's denial of the motion to suppress and the overruling of defense counsel's objection to Officer Mace's trial testimony. The following principles govern our review of these rulings.

At a suppression hearing, " [t]he burden of going forward with the evidence and the risk of nonpersuasion shall be upon the state to show by a preponderance of the evidence that the motion to suppress should be overruled." § 542.296.6 RSMo (2000); State v. Franklin, 841 S.W.2d 639, 644 (Mo. banc 1992). The trial court decided that the State met its burden. We will not reverse that ruling unless the decision was clearly erroneous, leaving this

Page 531

Court with a definite and firm impression that a mistake was made. State v. Williams, 97 S.W.3d 462, 469 (Mo. banc 2003); State v. Daniels, 221 S.W.3d 438, 440 (Mo. App. 2007); State v. Newberry, 157 S.W.3d 387, 397-98 (Mo. App. 2005).

Our inquiry is limited to determining whether the decision to deny the motion to suppress is supported by substantial evidence. State v. Edwards, 116 S.W.3d 511, 530 (Mo. banc 2003). " In reviewing the trial court's ruling on the matter, this Court considers the record made at the suppression hearing as well as the evidence introduced at trial." State v. Deck, 994 S.W.2d 527, 534 (Mo. banc 1999). The complete record before the trial court is viewed in a light most favorable to the ruling on the motion to suppress. State v. Jackson, 186 S.W.3d 873, 879 (Mo. App. 2006). Therefore, we consider only those facts, as well as the reasonable inferences derived therefrom, that are favorable to the ruling. State v. Galazin, 58 S.W.3d 500, 507 (Mo. banc 2001). We disregard all contrary evidence and inferences. State v. Kinkead, 983 S.W.2d 518, 519 (Mo. banc 1998). While we review the facts under a clearly erroneous standard, whether the Fourth Amendment has been violated is a question of law subject to de novo review. Daniels, 221 S.W.3d at 440.

Viewed favorably to the trial court's ruling, Officer Mace gave the following testimony about why he initially stopped Defendant. On March 23, 2013 at 2:46 a.m., he saw Defendant's maroon Ford Crown Victoria driving toward him at 13 m.p.h. on Main Street in Granby. The speed limit for that street was 25 m.p.h. Officer Mace was concerned because driving slowly is characteristic of a drunk driver. As the Crown Victoria passed by the patrol car about four or five feet away, Officer Mace saw that Defendant was driving the vehicle. Officer Mace recognized Defendant as the driver of the vehicle because of several prior contacts with him during the course of Officer Mace's police work. Officer Mace also knew that Defendant had his driver's license revoked several months ...


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