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State v. Gorombey

Court of Appeals of Missouri, Western District, Second Division

January 2, 2018

STATE OF MISSOURI, Respondent,
v.
JOSHUA MORGAN GOROMBEY, Appellant.

         Appeal from the Circuit Court of Clay County, Missouri The Honorable Louis Angles, Judge

          Before: Anthony Rex Gabbert, Presiding Judge, Thomas H. Newton, Judge and Gary D. Witt, Judge

          OPINION

          Gary D. Witt, Judge

         In four separate actions, all stemming from one traffic stop, Appellant Joshua Morgan Gorombey ("Gorombey") was charged with failure to produce an insurance card, section 303.025, [1] speeding, section 304.010, failure to produce a driver's license, section 302.020, and failure to yield to an emergency vehicle, section 304.022. Following a bench trial[2] in the Circuit Court of Clay County, Missouri, Gorombey was found guilty on all charges and issued fines on each of the charges except the charge of failure to yield to an emergency vehicle for which he was sentenced to ten days in the county jail. This appeal followed.

         Factual Background [3], [[4]]

         On May 10, 2016, at approximately 11:00 a.m., Gorombey was driving his vehicle southbound on Interstate Highway 435 in Clay County, Missouri. Corporal Salfrank ("Corporal Salfrank") of the Missouri State Highway Patrol used his laser speed detection unit to determine that Gorombey was traveling at 93 miles per hour in a construction zone with a reduced posted speed of 55 miles per hour.[5] Corporal Salfrank activated his emergency lights in an attempt to stop Gorombey. Gorombey did not immediately pull his vehicle over or indicate an intention to do so. Instead, Corporal Salfrank, who could see Gorombey looking at him in his rearview mirror, motioned with his finger to pull over and Gorombey gestured several times, shaking his head "no." Corporal Salfrank gestured again, and again Gorombey shook his head "no." Eventually, Gorombey exited Interstate Highway 435 on to Highway 210, despite the fact that Interstate Highway 435 had larger, and thus safer shoulders. Gorombey stopped at the bottom of the exit ramp where there was no shoulder and his vehicle was partially blocking the ramp. Gorombey traveled approximately one half mile between the time Corporal Salfrank initiated his emergency lights and stopping his vehicle.

         During the stop, Gorombey denied driving his vehicle, although he was seated in the driver's seat, and failed to produce a driver's license. After obtaining his name, Corporal Salfrank determined that, although Gorombey was a Missouri resident, he did not have a valid Missouri's driver's license. Gorombey failed to respond adequately to Corporal Salfrank's questions regarding whether Gorombey possessed an out-of-state license.[6]Further, Gorombey was unable to produce proof of insurance or financial responsibility. Corporal Salfrank wrote Gorombey citations for speeding, failure to yield to an emergency vehicle, failure to produce a driver's license, and failure to maintain financial responsibility. Gorombey refused to roll down the vehicle's window more than a crack to accept the citations. Thus, Corporal Salfrank slid them into the window, at which point Gorombey said something to the effect of "oh, no you don't, " exited the vehicle, and refused to return to his vehicle. Eventually, however, he complied with Corporal Salfrank's direction and returned to his vehicle.

          Gorombey entered a plea of not guilty as to all four citations. A bench trial was held on July 27, 2016, at which Gorombey appeared pro se. Corporal Salfrank testified on behalf of the State regarding the events in questions, consistent with the facts as set forth above. Although Gorombey initially sought to play a cell phone recording from the traffic stop, following questioning by the State and court, ultimately Gorombey did not seek to admit the recording into evidence. The trial court found Gorombey guilty of all crimes as charged, ordered Gorombey to pay fines and court costs, plus sentenced Gorombey to ten days in county jail for the charge of failure to yield to an emergency vehicle. Gorombey posted appeal bond and this appeal followed.

         Discussion

          I.

         Gorombey raises six points of error on appeal.[7] Gorombey's first Point Relied On alleges the trial court denied Gorombey due process by allowing Corporal Salfrank to testify because Corporal Salfrank was not competent to act as a witness. Gorombey's argument appears to be two fold. First, Gorombey appears to contend that because he was not engaged in "'Commerce' as defined in 49 U.S. Code § 31301, " he was not subject to the laws Corporal Salfrank sought to enforce. Second, that Gorombey was denied due process because he was not allowed to fully question Corporal Salfrank as to the legal definitions of "commerce" and Corporal Salfrank was not able to answer Gorombey's questions regarding the legal definitions to Gorombey's satisfaction. Therefore, he concludes that Corporal Salfrank was incompetent to testify.

         "Missouri presumes that a witness is competent to testify, except for a few statutory exceptions including mental capacity." Cardenas v. Dir. of Revenue, 339 S.W.3d 608, 612 (Mo. App. S.D. 2011). Specifically, a witness is competent if he or she shows "(1) a present understanding of, or the ability to understand upon instruction, the obligation to speak the truth; (2) the capacity to observe the occurrence about which testimony is sought; (3) the capacity to remember the occurrence about which testimony is sought; and (4) the capacity to translate the occurrence into words." State v. Robinson, 835 S.W.2d 303, 307 (Mo. banc 1992). Whether a witness is competent to testify is a question for the trial judge who is given wide discretion in making such determination. Section 491.380.1; State v. Martineau, 932 S.W.2d 829, 832 (Mo. App. S.D. 1996). If not raised at the earliest possible time, objections to competence are waived. State v. Hastings, 477 S.W.2d 108, 111 (Mo. banc 1972).

         Gorombey never objected to Corporal Salfrank's testimony on the basis of competence and thus any such objection is waived. If an objection is not preserved for appeal, we will review only for plain error. State v. McClure, 482 S.W.3d 504, 507 (Mo. App. W.D. 2016). Plain errors are only those that are "evident, obvious, and clear error" that result in a "miscarriage of justice or manifest injustice." Id.

         We find no error, plain or otherwise. Corporal Salfrank was present and personally observed all of the factual events that formed the basis of his testimony. Gorombey cites no persuasive case law or other authority for the proposition that a person must be engaged in commerce to be subject to the traffic laws established by the State. Section 304.010.2(3) establishes uniform maximum speeds for interstate highways at sixty miles per hour. "On any state road or highway where the speed limit is not set pursuant to a local ordinance, the highways and transportation commission ...


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