Joseph J. Savick (“Defendant”) was convicted of the class D felonies of driving while revoked (section 302.321, RSMo Cum.Supp.2005) and resisting arrest (section 575.150, RSMo Cum.Supp.2005), the class C felony of assault on a law enforcement officer (section 565.082, RSMo Cum. Supp.2005), and the class B felony of driving while intoxicated (section 577.010, RSMo 2000). The charges stemmed from Defendant’s refusal to stop when law enforcement attempted to pull him over for a license violation and a subsequent pursuit that ensued before he was apprehended. Defendant appeals only his conviction for driving while intoxicated, contending that the trial court abused its discretion in allowing an officer to testify that he believed Defendant was under the influence of a central nervous system stimulant, based upon a drug recognition evaluation, without establishing the necessary foundation for admission of expert testimony. Assuming, without so finding, that the evidence was erroneously admitted, we find, nevertheless, that its admission did not prejudice Defendant and therefore affirm the trial court’s judgment.
Factual and Procedural Background
Viewed in the light most favorable to the trial court’s verdict,
State v. Hall,
Deputy Andrew Long of the Greene County Sheriffs Depai'tment received Lynn’s radio call while he was in a position north of Lynn at the intersection of Farm Road 94 and highway 13. When Defendant’s vehicle passed his position, Long turned onto highway 13, and both officers continued to follow Defendant, who sporadically changed lanes as he proceeded northbound. On his approach to the intersection of state highway O, Defendant abruptly swerved his vehicle from the passing lane into the right lane without signaling and turned right at the intersection, cutting off a black pickup truck that had been in the right lane alongside Defendant and causing it to “[skid] off the road and into the ditch line.” Both officers activated their vehicles’ lights and sirens and pursued Defendant as he drove at excessive speeds eastbound on highway O. A video camera in Long’s vehicle recorded the pursuit.
Defendant drove in both lanes of the road and turned southbound onto Farm Road 141 without stopping at a stop sign. Lynn estimated Defendant’s speed at 60 to 70 miles per hour. The officers followed Defendant as he turned and proceeded eastbound on Farm Road 76. Along that road, a maroon Cadillac had stalled and was blocking both lanes of the road. Defendant drove around the stalled car, driving through the ditch, and continued eastbound. At this point, Long estimated Defendant’s speed around 70 miles per hour. As they approached a “T” intersection at Farm Road 145, Lynn ordered Long to “back way off’ and give Defendant “plenty of room” so Defendant would not do “anything irrational.” Long complied. Defendant ran another stop sign when he reached that intersection, where he turned and headed northbound. Defendant continued swerving in both lanes northbound along Farm Road 145, driving some 70 to 80 miles per hour and running another stop sign at state highway WW. At Farm Road 56, Defendant turned west and proceeded at a high rate of speed toward highway 13. At that point, highway 13 is a four-lane divided highway, with two northbound lanes and two southbound lanes. Lynn could see headlights of vehicles traversing the highway intersection ahead, and he again directed Long to back off as Defendant approached the traffic-congested highway at speeds of 85 or 90 miles per hour. Running yet another stop sign, Defendant turned south onto highway 13, missing a southbound semi-truck by a few inches and a northbound truck by just a few feet. Lynn and Long slowed and turned at the intersection, following at a greater distance behind Defendant as he headed southbound on highway 13.
Defendant turned east off highway 13 onto highway WW, continued to highway H, where he turned south, and turned again on Shelby Road and wound his way to U.S. Highway 65, all the while with officers in pursuit. At highway 65, Corporal Lynn had stopped southbound traffic to avoid any potential collision with Defendant and the pursuing officers as their vehicles entered the highway.
Various law enforcement agencies responded during the 41-mile pursuit that lasted some 42 minutes, and several attempts were made by officers along the route to deploy spike strips in order to slow or stop Defendant’s flight. Spike strips placed to the west of highway 65 punctured three of the tires on Defendant’s vehicle, but he continued driving, turning southward onto northbound highway 65 and proceeding south in the northbound lane and along the asphalt shoulder of the highway. At the point Defendant entered the roadway, highway 65 is a two-lane highway, but it splits into a four-lane, divided highway near the Springfield city limits. Officers had blocked traffic at accesses along highway 65 and eastward at the access to Interstate 44 and had Defendant “boxed in” as he neared the Chestnut Expressway exit.
As Defendant attempted to again drive across the median, his speed slowed, and Defendant opened the driver’s side door several times as he attempted to jump out of the vehicle while it was still moving. His front left and both rear tires were shredded off, and he was driving on the rims, which prevented him from gaining any traction. The vehicle became stuck in the median. Defendant exited his vehicle, jumped onto the hood of a patrol car, and began running eastbound as officers ordered him to stop and pursued him on foot. Law enforcement officers stopped Defendant on an embankment on the other side of the highway and ordered him to lie facedown on the ground with his hands behind him, which Defendant refused to do. Instead, Defendant kept his hands underneath his body, which prevented officers from being able to handcuff him. One officer used his taser on Defendant, and when one of the taser’s prongs did not connect, he used the taser as a stun gun on the back of Defendant’s neck as Defendant continued to fight and resist.
Defendant was eventually arrested and advised of his Miranda
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rights, after which Defendant agreed to speak with Deputy
Long first conducted a horizontal gaze nystagmus (“HGN”) evaluation, in which Long instructed Defendant to stand with his feet together and arms at his side as Long held his finger up in front of Defendant’s face slightly above his eyebrows and told Defendant to follow his finger with his eyes only and without moving his head. Long was checking for a smooth pursuit as Defendant’s eyes tracked from one side to the other. Both of Defendant’s eyes “jerked” and “bounced a little bit[ ]” as they followed Long’s finger. As Long observed distinct nystagmus in both eyes and the “onset of nystagmus prior to 45 degrees,” Defendant swayed back and forth and was unable to stand completely still. Long opined that Defendant “was possibly impaired.”
After inquiring whether Defendant had any physical issues with his legs that would hinder walking, standing, or operating a vehicle, to which Defendant answered that he did not, Long administered a walk-and-turn test. Long instructed Defendant to place his right foot directly in front of his left foot, touching heel to toe with his arms down at his side, while Long provided further directions; Long demonstrated this maneuver as he described it. He told Defendant not to begin until he was instructed to do so and then “take nine heel-to-toe steps” forward in a straight line and turn “and then take nine heel-to-toe steps back.” Defendant failed to maintain his initial position until told to begin, used his arms for balance, took eleven steps instead of nine, and “had to stop and steady himself from falling.” Long determined that Defendant’s performance indicated he was impaired.
Continuing his evaluation, Long instructed Defendant on the one-leg stand test, telling Defendant to keep his arms at his side and stand on one leg, bring his other leg up about six inches from the floor, point his toe, look at his foot, and count “one thousand one, one thousand two, one thousand three, and so on until [he] told him to stop.” Defendant “swayed while he was balancing, and he used his arms again to keep from falling over.” Based upon these observations, Long believed that Defendant was impaired.
Long then interviewed Defendant and asked a series of standardized questions, including what time it was. Defendant responded it was around ten o’clock. It was actually after midnight. When Long asked Defendant if he had been drinking, Defendant denied drinking or being under the influence of alcohol. Defendant further denied using marijuana or taking any prescription medications. Defendant consented to Long’s request that he submit to a breath test, and Defendant’s breath sample registered 0.00 percent blood alcohol content. Long believed Defendant was unable to safely operate a motor vehicle because he was under the influence of a substance other than alcohol. Long next requested that Defendant consent to a drug recognition evaluation.
A drug recognition evaluation is designed to allow an officer to detect what category of controlled substances may have rendered an individual impaired or
Deputy Shane Gooden conducted Defendant’s drug recognition evaluation. Goo-den was originally certified as a drug recognition evaluator in 2001. In order to receive that certification, Gooden completed a sixteen-hour pre-school program; a fifty-six-hour school program; and conducted a minimum of twelve drug recognition evaluations with a minimum accuracy rate of seventy-five percent. Gooden has been recertified as a drug recognition evaluator every two years since his initial certification and has also served as a drug recognition evaluation program instructor.
After Defendant was again advised of his
Miranda
rights, Gooden proceeded to evaluate Defendant, first asking him several generalized questions about Defendant’s physical condition to ensure that Defendant had no physical conditions or infirmities that would affect an evaluation. Goo-den began the drug recognition evaluation by noting that Defendant had registered a 0.00 blood alcohol content on the breathalyzer (step 1); Long had already consulted with Gooden, and Gooden had been advised of Long’s observations and the information Long had obtained up to that point (step 2). Gooden next conducted a preliminary physical examination of Defendant, taking Defendant’s blood pressure reading, temperature, pulse, and examined Defendant’s eyes. He found Defendant’s eyes to be “[wjatery and bloodshot[,]” and also observed dry mouth and body tremors. Defendant’s pulse was “over the general accepted range[,]” his blood pressure was “142 over 100,” which Gooden testified was “outside the normal range[,]” and Defendant’s body temperature was elevated at 99.2 degrees. All of these observations indicated a “possible drug influence” (step 3). Gooden then conducted both horizontal and vertical gaze nystagmus tests and checked the conjunctiva of Defendant’s eyes for redness; Gooden observed that Defendant’s eye movement indicated a lack of convergence in Defendant’s right eye and that the “lack of smooth pursuit, nys-tagmus at maximum deviation, and ... angle of onset” indicated a “[pjossible drug influence” (step 4). During the Romberg balance test, Defendant exhibited eyelid tremors and a slight circular sway with his head, and he estimated the passage of 30 seconds after only 21 seconds. These observations indicated to Gooden that Defendant’s “[ijnternal clock [was] sped up” and eliminated the possibility that Defendant was under the influence of a central nervous system depressant. Defendant began the walk-and-turn test three times but completed it only once, during which he
At trial, Gooden testified over Defendant’s objection that it was his opinion, based on the drag recognition evaluation, that Defendant had been under the influence of a central nervous stimulant and unable to safely operate a motor vehicle at the time of his arrest. Gooden also testified as to the results of each step of the drug recognition evaluation, including Defendant’s statements that he had ingested cocaine three days prior to the underlying incident and that he would have tested positive for cocaine had he submitted to the requested urine test. Gooden stated that he would expect a person under the influence of cocaine to exhibit rapid, aggressive driving, which Gooden believed was consistent with Defendant’s driving as observed during a replay of a video of the pursuit.
The jury found Defendant guilty on all four counts. In his motion for new trial, Defendant claimed that the trial court erred in overruling Defendant’s objection to Gooden’s opinion that Defendant was under the influence of a central nervous system stimulant following a drug recognition evaluation under the scientific standards applicable in Frye,
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Defendant’s motion was denied, and he was sentenced to seven years’ imprisonment for driving
Standard of Review
In general, “[a] trial court has broad discretion to admit or exclude evidence at trial.”
State v. Madorie,
Discussion
Defendant presents one point relied on in his appeal, which we set forth below:
The trial court erred and abused its discretion when it permitted Detective Gooden to testify over [Defendant’s] foundation objection that it was Goo-den’s opinion, based on a drug recognition evaluation, that [Defendant] was under the influence of a central nervous system stimulant at the time he was driving, in violation of [Defendant’s] rights to due process of law and a fair trial as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, Sections 10 and 18(a) of the Missouri Constitution. The State failed to demonstrate that the ability to determine intoxication from a specific drug category from a drug recognition evaluation without a toxicology examination was generally accepted in the scientific community, a necessary foundation for expert testimony.
We need not decide whether the trial court abused its discretion as Defendant contends because our determination that Defendant cannot show prejudice by the admission of Gooden’s challenged opinion testimony is dispositive.
Assuming, without deciding, that the trial court abused its discretion in admitting Gooden’s opinion testimony, Defendant cannot succeed in his argument because he has not and cannot show the requisite outcome-determinative prejudice resulting from such admission. In order for error to be prejudicial and thus require reversal, it must be shown that, but for the admission of the challenged evidence, there is a reasonable probability that the result would have been different.
State v. Barriner,
Errors in admitting evidence require reversal only when prejudicial to the point that they are outcome-determinative. State v. Black,50 S.W.3d 778 , 786 (Mo. banc 2001). “A finding of outcome-determinative prejudice expresses a judicial conclusion that the erroneously admitted evidence so influenced the jury that, when considered with and balanced against all evidence properly admitted, there is a reasonable probability that the jury would have acquitted but for the erroneously admitted evidence.” Id.
State v. Johnson,
Defendant only challenges Gooden’s opinion testimony that Defendant was under the influence of a central nervous system stimulant, or step 11 of the drug recognition evaluation. Our review is limited to those issues raised in an appellant’s point relied on and subsequently expounded upon in an appellant’s argument.
See
Rule 84.04(e) as made applicable by Rule 30.06(c);
State v. Morrow,
Pursuant to section 577.010.1, “a person commits ... driving while intoxicated if he operates a motor vehicle while in a drugged condition.”
State v. Friend,
Excluding Gooden’s challenged opinion that Defendant was under the influence of a central nervous system stimulant, there was abundant evidence demonstrating both the presence of a drug in Defendant’s body and Defendant’s impaired driving ability due to that drag.
See Hoy,
As to the presence of a drug, Long testified that Defendant’s eyes “jerked” and “bounced” during the initial HGN, that Defendant swayed back and forth and
Gooden testified that Defendant’s eyes were “[wjatery and bloodshot,” Defendant showed no signs of a medical impairment, and Defendant had dry mouth and body tremors. He also testified that Defendant’s pulse rate, blood pressure, and body temperature were all above the normal ranges throughout the duration of his examination of Defendant. Gooden stated that Defendant again failed the HGN and other nystagmus tests; that Defendant’s internal clock was accelerated; that Defendant exhibited eyelid tremors and swaying during the Romberg balance test; that Defendant again failed the walk-and-turn test, as he started the test three times, used his arms for balance, missed touching heel to toe several times, turned incorrectly, and “did the test rapidly and rigidly”; that Defendant again failed the one-leg stand test, as he hopped, swayed, and used his arms for balance; that Defendant exhibited “hand and eyelid tremors” during the finger-to-nose test; that Defendant’s pupils exhibited a slow reaction to light; that Defendant had heat bumps on his tongue, a result of smoking cocaine or methamphetamine; and that Defendant’s muscle tone was rigid. Gooden testified that Defendant denied having any medical condition or illness that would impair his ability to undergo the drug recognition evaluation as well as having used any alcohol or prescription drug, effectively excluding any other reason for Defendant’s symptoms and behavior. Gooden then testified that Defendant told him, in response to Gooden’s request for a urine sample, that he would test positive for cocaine and that Defendant had a fresh needle mark on his right arm.
As evidence of Defendant’s impaired driving ability, numerous officers involved in the chase testified as to the erratic and dangerous driving exhibited by Defendant during the ordeal, including that Defendant abruptly cut off a pickup truck by turning right from the passing lane, causing the truck to go into a ditch; that Defendant ran multiple stop signs while repeatedly driving at “excessive” speeds; that Defendant drove through a ditch to avoid a stalled vehicle while driving approximately 70 miles per hour; that Defendant swerved between lanes unpredictably; that Defendant turned into traffic at a busy intersection, missing one semi-truck by a few inches and another truck by a few feet; that Defendant drove through a median to avoid driving over spike strips, coming within a few feet of a law enforcement officer, and continued on to drive southward in the northbound lanes at approximately 90 miles per hour, turning off his headlights even though it was 10:30 at night; that Defendant continued driving after three of his tires had shredded off the wheels after having been punctured by spike strips, again driving into the median to avoid capture and becoming stuck in the process; and that Defendant repeatedly
The evidence that Defendant’s impaired driving ability was due to the presence of the drug in Defendant’s body included circumstantial evidence that Defendant denied any prescription drug, alcohol, or marijuana use and denied any physical impairment to his legs that would affect his driving. In addition, direct evidence was presented by Long’s testimony, without objection, of his lay opinion that Defendant “was under the influence of something other than alcohol” and that Defendant was not able to safely operate a vehicle. Intoxication may be proved by a lay witness who has had a reasonable opportunity to observe the alleged offender.
Hoy,
Where there is strong evidence of the defendant’s guilt, other than the witness’s challenged testimony, no prejudice results to the defendant as a result of admitting that testimony.
State v. Kidd,
Decision
The trial court’s judgment is affirmed.