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State v. Tice

Court of Appeals of Missouri, Southern District, Second Division

May 21, 2018

STATE OF MISSOURI, Plaintiff-Respondent,
PERRY RAYMOND TICE, Defendant-Appellant.

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

          JEFFREY W. BATES, J.

         Perry Tice (Defendant) was charged as an aggravated offender with the class C felony of driving while intoxicated (DWI). See §§ 577.010, 577.023.[1] A jury found Defendant guilty as charged, and the trial court imposed a four-year sentence.

         Defendant presents two points, the first of which is dispositive. He contends the trial court abused its discretion in admitting the arresting officer's testimony about the results of an "improperly administered HGN test" because "an adequate foundation was not established[.]" We disagree and affirm.

         "We consider the facts and all reasonable inferences derived therefrom in a light most favorable to the verdict, and we reject all contrary evidence and inferences." State v. Campbell, 122 S.W.3d 736, 737 (Mo. App. 2004); see State v. Johns, 34 S.W.3d 93, 103 (Mo. banc 2000). Viewed from that perspective, the following facts were before the trial court.

         At around 1:15 a.m. on August 16, 2015, Neosho Police Officer William Ray Cliffman (Officer Cliffman) was patrolling when a Ford Ranger drove by, traveling 55 miles per hour in a location where the speed limit was 45 miles per hour. Officer Cliffman turned around and pulled over the truck. The truck pulled over into a Taco Bell parking lot, blocking traffic from passing. Because the truck was blocking traffic, Officer Cliffman told the driver of the truck to move to the other side of the business. Both the truck driver and Officer Cliffman parked their vehicles in a gravel lot on the other side of the Taco Bell.

         Officer Cliffman approached the truck and learned that the driver was Defendant. The officer noticed that Defendant's speech was slurred, and when he tried to get out of the vehicle, he almost fell and had to catch himself by grabbing the door. Officer Cliffman also noticed that Defendant's eyes were bloodshot and watery. The officer asked Defendant where he had been, and Defendant told him "Buck's Place." Officer Cliffman knew that establishment was a bar outside of Neosho. Officer Cliffman asked Defendant whether he had anything to drink. Defendant said he had been drinking, but he did not know how much he had. The officer asked Defendant to perform field sobriety tests, and Defendant agreed. Officer Cliffman then administered two field sobriety tests.

         The first test was the horizontal gaze nystagmus (HGN), which is a test to show "nystagmus, " i.e., involuntary twitching of the eyes while following a stimulus, indicating possible intoxication. There are six indicators or "clues" that are measured when performing this test. A score of four or more clues on the HGN test indicates possible intoxication. Defendant exhibited five of the six clues during the HGN test.

         Although Officer Cliffman believed that Defendant was intoxicated after performing the HGN test, the officer also administered a second field sobriety test, the walk-and-turn test. There are eight possible clues in the walk-and-turn test. Out of the eight clues, Defendant exhibited six for the following actions: failing to maintain heel-to-toe stance; stopping while walking to steady himself; not touching heel-to-toe; losing balance while walking; using arms for balance; and taking an incorrect number of steps. Exhibiting six clues indicates possible intoxication. Because Defendant could not complete the walk-and-turn test, Officer Cliffman declined to give Defendant the one-leg-stand test. The officer was concerned that Defendant would fall and hurt himself.

         Officer Cliffman then placed Defendant under arrest and transported him to the jail. During this transport, the officer smelled the odor of alcohol emanating from Defendant's body. Defendant was eventually charged with DWI.

         Defendant filed a "Motion to Suppress Evidence of Standard Field Sobriety Tests."[2]Relying on State v. Browning, 458 S.W.3d 418, 424-30 (Mo. App. 2015), defense counsel argued that the results of the HGN test were inadmissible because Officer Cliffman failed to follow the National Highway Traffic Safety Administration (NHTSA) manual while administering the HGN test.

         The court held an evidentiary hearing on the motion and received testimony from Officer Cliffman. He attended an eight-hour course in 2013 or 2014, at which he received specialized training in DWI detection. When he administered an HGN test, he used a card he called his "cheat sheet" to help him perform it correctly. He always followed all of the directions on the card. While administering the HGN test to Defendant, Officer Cliffman checked for the following in each eye: (1) equal tracking, pupil size, and resting nystagmus; (2) lack of smooth pursuit; (3) distinct and sustained nystagmus at maximum deviation; (4) angle of onset; and (5) vertical nystagmus. When checking for nystagmus, the officer positions the stimulus 12 to 15 inches away from the face, just above the eyes. When checking for lack of smooth pursuit, he "might do it a couple times, " but he couldn't remember whether or not he checked two different times on Defendant. Similarly, when checking for distinct and sustained nystagmus, and angle of onset, Officer Cliffman checked for each at least once.

         The trial court sustained Defendant's motion to suppress testimony about the HGN test results for the following reason:

The court has before it the Browning case, where Judge Witt [in the concurring opinion] spells out the steps from the [NHTSA] manual. It says this is to be - step 6 says this is to be repeated for each eye and compared. Step 7, the officer is to check each eye at least twice for this ...

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