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State v. Deweese

Court of Appeals of Missouri, Western District, Third Division

February 27, 2018

STATE OF MISSOURI, Respondent,
v.
MAJOR CARTER DEWEESE, Appellant.

         Appeal from the Circuit Court of Chariton County, Missouri The Honorable Terry A. Tschannen, Judge

          Before Gary D. Witt, Presiding Judge, Lisa White Hardwick, Judge and Edward R. Ardini, Jr., Judge

          GARY D. WITT, JUDGE.

         Appellant Major Deweese ("Deweese") appeals his conviction in Chariton County Circuit Court for one count felony driving while intoxicated as a persistent and chronic offender, section 577.010. Deweese's sole point on appeal alleges that the trial court erred in admitting the results of his horizontal gaze nystagmus ("HGN") because the State failed to lay proper foundation that the test was properly administered. We affirm.

         Background

         Deweese was stopped at approximately 5:55 p.m. on May 6, 2014, by Officer William Barger ("Chief Barger"), Chief of Police for the City of Brunswick, Missouri. Chief Barger testified that he observed Deweese's vehicle swerving within its lane and crossing the centerline of the roadway numerous times. Chief Barger activated his emergency lights attempting to pull over Deweese's vehicle. The vehicle did not stop and traveled approximately six to eight blocks, when Chief Barger additionally activated his emergency sirens, Deweese traveled an additional five blocks before he stopped his vehicle.

         Once stopped, Deweese was able to produce his insurance card but not a driver's license. Chief Barger observed that Deweese's eyes were bloodshot and watery; his speech seemed confused. Deweese could not remember where he was coming from or where he was going. Additionally, Chief Barger testified that he smelled an odor of intoxicants coming from Deweese. Deweese stated that he had two drinks of vodka prior to driving.

         Chief Barger asked Deweese to exit the vehicle and Chief Barger performed the HGN test on him.[1] Chief Barger observed all six clues of intoxication on the test. Deweese was unable to perform the walk and turn test or the one leg stand test due to a physical disability. Deweese was placed under arrest for driving while intoxicated. Following arrest, Deweese agreed to take a breath analysis test which showed that his blood-alcohol level was .274%.[2]

         Deweese called Eric Kinkhorst ("Kinkhorst") to testify in his defense. Kinkhorst was not with Deweese that evening but witnessed the traffic stop. Kinkhorst was approximately 100 feet away and testified that although it was difficult to see them due to the angle, he did not observe Chief Barger perform any tests, including he did not see Chief Barger perform the HGN test on Deweese.

         The jury ultimately found Deweese guilty of driving while intoxicated.

         Deweese's sole point on appeal alleges error in admitting the results of the HGN test. Deweese's Point Relied On reads as follows:

The trial court plainly erred in admitting the results of the HGN test in violation of Mr. Deweese's Fourth, Sixth and Fourteenth Amendments to the United States Constitution, and Article I, Sections 10 and 15 of the Missouri Constitution, in that the HGN test was not properly administered and therefore was inadmissible. Because the HGN test formed the basis of the probable cause to arrest Mr. Deweese, all evidence obtained after this violation of Mr. Deweese's constitutional rights should be suppressed as fruit of the poisonous tree.

         The argument portion of Deweese's brief argues that because Kinkhorst did not witness Chief Barger perform the HGN test that the test must have been performed while Deweese was seated in a car and therefore the test was not properly performed and the test results should not have been admitted. Deweese then extrapolates from that point that without the HGN test results there was no probable cause to arrest him and therefore all of the additional evidence of his intoxication should not have been admitted and therefore there was insufficient evidence remaining to convict him of the charge.

         Standard ...


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