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State v. Ogle4/29/1998
Opinion Summary: None
Opinion Vote: AFFIRMED. Montgomery, C.J., and Shrum, J., concur.
Opinion:
Appellant Davy R. Ogle (Defendant) was convicted by a jury of the class D felony of driving while intoxicated. Sections 577.010.1; 577.023.3; 558.011.1(4). Defendant was sentenced to the Missouri Department of Corrections for a term of four years. Defendant appeals.
As more fully developed below, in his sole point of error Defendant maintains that the trial court erred in allowing, over Defendant's objection, the prosecuting attorney to cross-examine Defendant regarding Defendant's post-Miranda failure to volunteer to law enforcement officers an exculpatory statement to the crime to which he was charged.
Defendant does not challenge the sufficiency of the evidence to support his conviction. We review the evidence and all permissible inferences therefrom in the light most favorable to the verdict and ignore any inferences that do not support a finding of guilt. State v. Clemons, 946 S.W.2d 206, 216 (Mo. banc 1997).
I.
On April 23, 1996, at approximately 2:36 a.m., Officer Charles Brown of the Webb City Police Department came upon the intersection of Prospect and Central in Webb City and discovered a black Chevrolet Corsica, stopped, partially on the road and partially off the road.
The automobile appeared to Officer Brown to have been in an accident because its front end was damaged and one of its front tires was flat. Officer Brown parked his police cruiser behind the automobile. Officer Brown testified that the Corsica's head lamps were on and that its engine was running.
As Officer Brown approached the Corsica, he found Defendant in the driver's seat, slumped over the steering wheel. Officer Brown tapped on the Corsica's window but received no response from Defendant. Officer Brown then opened the driver's door and asked Defendant if he was alright. Officer Brown testified that " e just kind of grunted at me." Officer Brown further testified that Defendant's eyes were watery, glassy, and bloodshot, and he noticed a very strong odor of an intoxicant coming from Defendant.
Upon again asking Defendant if he was alright, Officer Brown testified that "all of sudden he [Defendant] leaned forward, taking his jacket, and bending up over the steering wheel at that time he [Defendant] shut the ignition off . . . ." Officer Brown stated that he did not see the Corsica's keys after Defendant removed them from the ignition switch. Whereupon, Officer Brown grabbed Defendant's left arm and asked to him to step out of the vehicle.
Officer Brown stated that Defendant was staggering and could barely stand up. Officer Brown determined that due to Defendant's inability to ambulate, it would be unsafe to conduct a field sobriety test and placed Defendant under arrest for probable cause of driving while intoxicated.
Officer Brown read Defendant his Miranda warnings and transported him to the police station where Miranda warnings were read to him a second time.
While at the police station, Officer Brown and Officer Pachlhofer completed an alcohol influence report and conducted a breathalyzer test on Defendant, after obtaining his consent. Defendant was unable to answer many of the questions asked in conjunction with the alcohol influence report.
At trial, the State and Defendant stipulated to the results of the breathalyzer test and stipulated that the breathalyzer test was conducted by Officer Pachlhofer and that the breathalyzer machine was properly functioning when the test was administered to Defendant. The results of the test indicated tha
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