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State v. Barlow

Court of Appeals of Missouri, Western District, Fourth Division

March 27, 2018

STATE OF MISSOURI, Respondent,
v.
CHARLES A. BARLOW, Appellant.

          Appeal from the Circuit Court of Daviess County, Missouri The Honorable Thomas N. Chapman, Judge

          Before Mark D. Pfeiffer, Chief Judge, and Cynthia L. Martin and Edward R. Ardini, Jr., Judges.

          Mark D Pfeiffer, Chief Judge.

         Mr. Charles Barlow ("Barlow") appeals from the judgment of the Circuit Court of Daviess County ("trial court"), following a jury trial, convicting him of the class B felony of driving while intoxicated. In his sole point on appeal, Barlow argues that the trial court plainly erred in overruling his motion to suppress and in admitting evidence obtained as a result of his traffic stop because the arresting officer did not have reasonable suspicion to stop Barlow's vehicle, violating Barlow's right to be free from unreasonable searches and seizures. We affirm.

         Factual Background

         On the evening of December 12, 2015, Deputy Tyler Miller ("Deputy Miller") of the Daviess County Sheriff's Department was working the night shift. Deputy Miller was standing outside the Corner Café in Gallatin, Missouri, talking with a group of friends, when Barlow approached the group to speak with his ex-wife. Deputy Miller noticed that Barlow had bloodshot and glassy eyes and smelled of intoxicants. He also overheard Barlow speaking and noticed Barlow's speech was slurred. Shortly thereafter, Deputy Miller observed Barlow get into the driver's seat of a vehicle, but he was unable to stop him before he drove away.

         In his patrol car, Deputy Miller attempted to locate Barlow but he was unable to immediately find him. As his vehicle was almost out of gas, Deputy Miller stopped at the gas station to refuel. After leaving the gas station, approximately five to ten minutes after Deputy Miller had observed Barlow in front of the café, Deputy Miller saw Barlow drive past him. Deputy Miller immediately stopped Barlow's vehicle and again observed the same signs of intoxication he had observed in front of the café. Barlow admitted to Deputy Miller that he had been drinking but refused to take a portable breath test. Deputy Miller conducted field sobriety tests which indicated signs of intoxication. Barlow was placed under arrest and agreed to take a breath test at the police station. The breath test showed Barlow's blood alcohol content was .286 percent, over the legal limit in Missouri of .08 percent. See Section 577.012.[1]

         The State charged Barlow with driving while intoxicated as a chronic offender. Prior to trial, Barlow filed a motion to suppress the evidence gathered as a result of his traffic stop. Barlow argued that the stop was not supported by reasonable suspicion, thereby violating his rights under the Fourth and Fourteenth Amendments to the United States Constitution and article I, section 15 of the Missouri Constitution. After a suppression hearing at which Deputy Miller testified, the trial court denied the motion to suppress. Barlow failed to renew his objection to the admission of the previously challenged evidence at trial. The jury found Barlow guilty, and the court sentenced him to six years of imprisonment in the Missouri Department of Corrections. Barlow failed to file a motion for a new trial but now appeals.

         Analysis

         In his sole point on appeal, Barlow argues the trial court plainly erred in overruling his motion to suppress and in admitting all of the evidence found as a result of his traffic stop because, under the totality of the circumstances, Deputy Miller did not have reasonable suspicion to stop Barlow's vehicle because the fact that Deputy Miller observed that Barlow had bloodshot and glassy eyes, slurred speech, and a strong odor of an intoxicating beverage was not enough to justify the traffic stop when Deputy Miller did not observe Barlow make any traffic violations before stopping him.

         As conceded by Barlow on appeal, his claim of error has not been preserved for appellate review as he failed to renew his objection to the challenged evidence at trial and he did not include the claim in a motion for a new trial. See State v. Lee, 498 S.W.3d 442, 447 (Mo. App. W.D. 2016) (after the denial by the trial court of a motion to suppress evidence based on allegation that the search violated the defendant's constitutional rights, "to keep the challenge preserved for appeal, the defendant must assert timely objections throughout trial and raise the issue in a motion for new trial"). A claim that is not properly preserved is reviewable only for plain error. See Rule 30.20.[2] Accordingly, Barlow's claim may only be reviewed for plain error.

         Rule 30.20 authorizes this Court to review, in its discretion, "plain errors affecting substantial rights . . . when the court finds that manifest injustice or miscarriage of justice has resulted therefrom." Our Supreme Court has established a threshold review to determine if a court should exercise its discretion to entertain a Rule 30.20 review of a claimed plain error. First, we determine whether or not the claimed error "facially establishes substantial grounds for believing that 'manifest injustice or miscarriage of justice has resulted[.]'" State v. Brown, 902 S.W.2d 278, 284 (Mo. banc), cert. denied, 516 U.S. 1031 (1995) (quoting Rule 30.20). If not, we should not exercise our discretion to conduct a Rule 30.20 plain error review. If, however, we conclude that we have passed this threshold, we may proceed to review the claim under a two-step process pursuant to Rule 30.20. In the first step, we decide whether plain error has, in fact, occurred. State v. Baumruk, 280 S.W.3d 600, 607 (Mo. banc), cert. denied, 130 S.Ct. 144 (2009). "All prejudicial error, however, is not plain error, and plain errors are those which are evident, obvious, and clear." Id. (citations and internal quotation marks omitted). In the absence of evident, obvious, and clear error, we should not proceed further with our plain error review. If, however, we find plain error, we must continue to the second step to consider whether or not a miscarriage of justice or manifest injustice will occur if the error is left uncorrected. Id. at 607-08.

When reviewing the trial court's overruling of a motion to suppress, th[e reviewing c]ourt considers the evidence presented at both the suppression hearing and at trial to determine whether sufficient evidence exists in the record to support the trial court's ruling. The Court defers to the trial court's determination of credibility and factual findings, inquiring only whether the decision is supported by substantial evidence, and it will be reversed only if ...

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