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State v. Coyne6/24/2003
Opinion Vote: AFFIRMED.
Russell, P.J., and Shaw, J., concur.
Opinion:
Opinion of May 20, 2003 is withdrawn. New opinion follows.
Patrick M. Coyne ("Coyne") appeals the judgment on his conviction of one count of unlawful use of a weapon in violation of section 571.030.1(1) RSMo (Supp. 2001). Coyne claims that the trial court erred in failing to give an instruction which included language concerning the accessibility of the weapon, and that the court erred in denying his motion to suppress evidence concerning the weapon because it was the product of an unlawful search and seizure. Finding no error, we affirm.
On February 14, 2001, Coyne drove to a bar and restaurant called the Locker Room. He ate and drank with some friends. He left the Locker Room and decided not to drive his car. Coyne fell asleep in his car. Kathleen Ross (" Officer Ross"), a police officer with the City of Florissant, approached Coyne's vehicle around 3:15 a.m. While on patrol, she noticed the car in the relatively deserted parking lot behind the Locker Room. Coyne was sitting behind the wheel on the driver's side of the vehicle, and it appeared as though he was sleeping. The motor was running, and Officer Ross observed what appeared to be vomit on Coyne, in the seat around him and outside the car. She tapped on the window and Coyne woke up and rolled down the window. Officer Ross testified that she smelled a strong odor of intoxicating beverage inside the vehicle and on Coyne's breath. She asked Coyne to exit the car, and she saw him reach under the seat. Coyne informed Officer Ross that he was getting his shoes. According to Officer Ross, Coyne staggered when he left the vehicle and his eyes were glassy and red. He spoke with slurred speech. She formed the opinion that Coyne was intoxicated and arrested him. During her discussion with Coyne, Mark Hucker ("Sergeant Hucker"), a sergeant with the Florissant police department and Shaun Kummer ("Officer Kummer"), another officer, arrived at the scene to assist Officer Ross. Sergeant Hucker looked under the seat of Coyne's vehicle and saw a handgun but did not remove it. Sergeant Hucker informed Officer Ross that there was a weapon in the car and that she should search the suspect. After arresting Coyne, Officer Ross looked under the front seat and found an unloaded gun. She testified that it was within arm's reach under the drivers' seat. Coyne was charged with one count of unlawful use of a weapon and one count of driving while intoxicated. A motion to suppress evidence was filed March 21, 2002. In the motion, Coyne requested that "any and all articles seized" be suppressed. The motion was heard on April 4, 2002, and the court denied the motion. Trial began July 8, 2002, and the jury returned a verdict finding Coyne guilty of unlawful use of a weapon and not guilty on the driving while intoxicated count. Coyne filed a motion for new trial and motion for judgment of acquittal which was heard and denied. The trial court entered a judgment and sentence on August 23, 2002. The present appeal followed.
In his first point, Coyne asserts that the trial court erred in failing to submit an instruction to the jury which required them to make a finding as to the accessibility of the gun. Coyne argues that there was a question of fact as to the location and accessibility of the gun. As support for his argument, Coyne claims that the testimony of the location of the gun was not consistent; therefore, the exact location of the gun was not established. He also cites to his own testimony that the gun was not easily accessible.
Coyne submitted a proposed instruction which required the jury to find " that the firearm was rea
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