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State v. McCarty

Court of Appeals of Missouri, Western District, Second Division

October 4, 2016

JEFFREY C. McCARTY, Appellant.

         Appeal from the Circuit Court of Cole County, Missouri The Honorable Thomas Sodergren, Judge

          Before: Karen King Mitchell, Presiding Judge, Cynthia L. Martin, Judge and Gary D. Witt, Judge

          Cynthia L. Martin, Judge

         Jeffrey McCarty ("McCarty") appeals from the trial court's judgment convicting him of misdemeanor possession of an intoxicating liquor by a minor. McCarty argues that the trial court erred in overruling his motion to suppress evidence discovered through a traffic stop. McCarty claims that the evidence should have been suppressed because it was obtained following an investigatory traffic stop that was unsupported by reasonable suspicion that McCarty was involved in illegal activity. McCarty also contends that the State failed to prove an essential element of the charged offense because the evidence offered to prove his age at the time of the offense was inadmissible. We reverse.

         Factual and Procedural Background

         At approximately 4:30 a.m. on April 12, 2014, Corporal Arthur Brown ("Corporal Brown") of the Cole County Sheriff's Department responded to a call from dispatch. Dispatch advised that an anonymous caller had reported that a male and female were having a "loud disturbance" in a parking lot outside an apartment complex located in the 3000 block of Cassidy Road off of Highway 54 in Cole County, Missouri. The anonymous caller described the disturbance as a verbal argument.

         Corporal Brown arrived in the area of the reported argument about ten minutes after the call from dispatch. As Corporal Brown was about 100 to 150 feet from the apartment complex, he noticed a vehicle coming towards him on Cassidy Road. As his headlights illuminated the vehicle, Corporal Brown could see a male driver and a female passenger in the vehicle. Corporal Brown testified during a suppression hearing that "initially I didn't think anything of it" when he passed the vehicle on Cassidy Road.

         Corporal Brown proceeded to the parking lot of the apartment complex. As he drove through the parking lot, he found no one outside, nor at the specific address where the call came from. Corporal Brown did not stop to knock on any doors, and did not talk to anyone at the scene. Corporal Brown testified during the suppression hearing that he did not observe anything that would confirm two people had actually been arguing outside of the apartment complex. Corporal Brown then testified:

When I got to the apartment and noticed there wasn't anything outside, you know--I've been doing this for a while. I'm trained that, you know, sometimes people leave the area--so that was just--it was kind of a hunch that maybe [the people in the vehicle he passed on Cassidy Road] are the people that were in the argument. And I just had to check on it just to make sure.

         Corporal Brown thus turned around, left the parking lot, and caught up with the vehicle he had passed on Cassidy Road. Corporal Brown pulled the vehicle over to investigate whether the occupants were involved in the reported argument.

         Corporal Brown approached the vehicle and identified McCarty as the driver using McCarty's driver's license. Corporal Brown observed that McCarty was under twenty-one years of age based on the date of birth on the driver's license. While speaking with McCarty, Corporal Brown could smell alcohol. Corporal Brown mentioned that McCarty was underage and McCarty agreed. Corporal Brown administered a preliminary breathalyzer test on McCarty, which tested positive for the presence of alcohol. Corporal Brown arrested McCarty. After arresting McCarty, Corporal Brown secured the vehicle at the scene and saw a case of beer on the backseat floorboard behind the driver's seat.

         McCarty was charged with misdemeanor possession of an intoxicating liquor by a minor pursuant to section 311.325.[1] McCarty filed a motion to suppress challenging the lawfulness of Corporal Brown's traffic stop. The trial court overruled McCarty's motion.

         At trial, Corporal Brown testified about the events on the night of McCarty's arrest. Evidence seized after the stop of McCarty's vehicle was admitted over McCarty's objection regarding the lawfulness of the stop. Defense counsel also objected when Corporal Brown was asked to state the date of birth he saw listed on McCarty's driver's license, claiming the testimony was hearsay and violated the best evidence rule. The trial court took that objection with the case.

         At the State's request, and without objection, the trial court took judicial notice of the following cases: 14AC-CR00995-01, 13AC-CR02465, 12AC-CR01619, 120052500, and 091184137. ...

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