STATE OF MISSOURI,                      )
                                        )
                   Respondent,          )
                                        )
      vs.                               )   No. SD33986
                                        )
SONNIE KORAN JOHNSON,                   )   FILED: May 11, 2016
                                        )
                   Appellant.           )

            APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY

                         Honorable J. Dan Conklin, Judge

AFFIRMED

      Sonnie Johnson appeals his chronic-offender DWI conviction, §§ 577.010,

577.023.1(2), claiming that (1) horizontal gaze nystagmus (HGN) test results were

admitted without proper foundation; and (2) there was insufficient evidence of his

intoxication apart from the HGN testimony. 1 We affirm the judgment.


1Statutory citations are to RSMo as amended through 2010. We decline to address
an unpreserved point seeking a new trial on this and three related driving
convictions because “[r]eview of the record does not reveal substantial grounds to
believe that a manifest injustice or miscarriage of justice occurred.” State v.
Mayes, 281 S.W.3d 918, 921 (Mo.App. 2009).
                           Applicable Legal Principles

      “Intoxication sufficient to sustain a [DWI] conviction can be proved by any

witness who had a reasonable opportunity to observe an alleged offender.” State v.

Williams, 847 S.W.2d 111, 113 (Mo.App. 1992).

      The foundation to admit HGN results is twofold: (1) the officer was adequately

trained (eight or more hours) to perform and interpret the test; and (2) the test was

properly administered. State v. Burks, 373 S.W.3d 1, 6 (Mo.App. 2012).

      We credit all evidence and reasonable inferences suggestive of Johnson’s guilt,

disregarding contrary evidence. State v. Rose, 86 S.W.3d 90, 105 (Mo.App. 2002).

                                     Background

      Per the record as we must view it, a night-patrol officer observed Johnson

driving 55 to 60 m.p.h. on a 35 m.p.h. street. The officer turned and followed, saw

Johnson’s car weaving, and initiated a traffic stop.

      Johnson was alone in the car. He could not produce a driver’s license. His

breath smelled strongly of alcohol. His eyes were glassy. He first claimed to have had

“one drink,” then “two drinks.” Being asked to exit his vehicle for field sobriety tests,

Johnson got out, placed his hands behind his back as if for handcuffs, and told the

officer “I already know what you’re going to do.”

      The officer had Johnson perform three NHTSA 2 field sobriety tests: HGN,

walk-and-turn, and one-leg stand. Based on those results, including six of six




2 National Highway Traffic Safety Administration. We refer to its HGN-testing
protocol throughout this opinion.

                                           2
intoxication indicators on the HGN test, Johnson was arrested and transported to

the jail, where he refused to be breath-tested for blood alcohol.

         Charged as a chronic DWI offender, Johnson waived a jury and was tried by

the court. He did not testify. The sole witness was the arresting officer, who testified

at length and without objection about his HGN test procedure and results.

         After the State rested, the defense moved to strike the admitted HGN evidence

based on a recent Western District case stating that material deviations from testing

procedures in the NHTSA manual would require a trial court to exclude HGN test

results. See State v. Browning, 458 S.W.3d 418, 422 n.3 (Mo.App. 2015),

discussed infra. Defense counsel told the court that the material deviation was “step

one, check for eyeglasses.” The court read the Browning opinion and reopened the

case.

         The officer was recalled and testified that Johnson was not wearing corrective

lenses that night. 3 On cross-examination, the officer said he did not ask Johnson if




3   We quote the officer’s testimony:
        Q. When you did the [HGN] test on the night in question with Mr.
        Johnson, step one of the test the very first thing that you do when you’re
        looking at someone, what is the first thing that you do before you
        administer the HGN test?
        A. Check to see if they’ve got any glasses or contacts in.
        Q. Now is it fairly obvious if someone has on glasses or not?
        A. Yes, ma’am.
        Q. And what about contacts?
        A. You’re within such close proximity most of the time because of the
        general overall conditions you can tell -- see if someone’s wearing glass --
        or excuse me, wearing contacts. So I didn’t ask him if he was wearing
        contacts ‘cause I saw that he was not.

                                             3
he was wearing glasses because the officer saw and knew Johnson wasn’t. After

taking the issue under advisement, the court refused to strike the HGN testimony,

and further found that even without HGN proof, the evidence was sufficient to

convict Johnson of DWI. Johnson challenges these two findings in Points I and II

respectively; he must prevail on both points to win a reversal.

                                       Point I

      This point posits that the officer “failed to comply with NHSTA [sic] standards

by omitting to ask [Johnson] whether he was wearing eyeglasses or contact lenses,

and strict compliance with the protocol is a condition of admission of the results.”

      Yet Johnson cannot prevail on his theory that NHTSA standards force officers

to always ask certain questions – even when the answer is obvious or already known

to the officer and is not disputed at trial or on appeal – because no NHTSA

standards were made a part of our appellate record. This omission forecloses Point I

and Johnson’s reliance on Browning, which opined that “material deviations from

the testing procedures set forth in the NHTSA Manual will require a trial court to

deny admission of HGN test results.” Id. at 423 n.3 (our emphasis). 4


       Q. And this may be a stupid question, but did you see whether he had
       eyeglasses on or not?
       A. He was not wearing eyeglasses.
4 This point would fail even if we assumed, arguendo, that Johnson’s concern is still

“step one, check for eyeglasses” as was stated at trial and as quoted in Browning’s
concurring opinion as follows:
       Step I: Check for Eyeglasses. Eyeglasses may impede the suspect’s
       peripheral vision and may impede the officer’s ability to observe the eye
       carefully. It does not matter whether the suspect can see the stimulus with
       “perfect clarity” as long as the suspect can see the stimulus at all because
       nystagmus is not a vision test.

                                           4
                                       Point II

      The foregoing effectively moots Johnson’s challenge to the sufficiency of the

evidence apart from the HGN test, but this point would fail anyway. Case law

supports the trial court’s finding that non-HGN evidence alone showed Johnson’s

intoxication. See, e.g., State v. Knifong, 53 S.W.3d 188, 193–94 (Mo.App. 2001)

(driver’s odor of alcohol, watery and bloodshot eyes, slurred speech, difficulty with

field sobriety tests, and refusal to take breathalyzer was evidence supporting guilt).

                   Postscript – Browning, Burks, and Rose

      Having touched upon Browning, we would be remiss not to allay that court’s

concern that in Burks, we said HGN test procedure challenges went to the “‘weight,

rather than to admissibility of the test results.’” See Browning, 458 S.W.3d at 423,

n.3 (quoting and questioning Burks, 373 S.W.3d at 6-7), 429 (Witt, J., concurring,

also questioning Burks).

      In Burks, we largely tracked, repeatedly cited, and went no further than the

Western District’s excellent 2002 HGN analysis in Rose, as seen by summarizing

relevant parts of both cases back-to-back.

                              Rose, 86 S.W.3d at 97-99

      In affirming admission of a HGN test, the Western District cited the two-part

foundation: (1) the officer had eight or more hours of HGN test training; and (2) the

test was properly administered. Id. at 98-99. The record showed the officer had

such training “and the transcript reveal[ed] that the test was properly administered,”

458 S.W.3d at 427 (Witt, J., concurring). Our record shows the officer did check for
eyeglasses, which the trial court credited, and Johnson does not claim otherwise on
appeal.

                                             5
so our colleagues found “sufficient foundation” to admit the test results. Id. at 99.

Defendant Rose’s criticisms could and “should have been borne out through the

various options available to him at trial, such as cross-examination,” id., since HGN

testing may indicate intoxication, but “[t]hat ultimate conclusion rests with the trier

of fact, who is free to believe or disbelieve the officer’s testimony and to ascribe the

weight given to it.” Id. at 98.

                            Burks, 373 S.W.3d at 6-7 & n.4

      This court faced a HGN foundation complaint, specifically that an officer’s

instructions had not tracked NHTSA guidelines. Id. at 6. As in our present case, no

guidelines had been made part of the appellate record. Id. at n.4. We undertook a

Rose-like review anyway, as we could, based on the record we had:

          • As in Rose, we noted the two-step foundation. Id. at 6.

          • Also as in Rose, we found from the record that the officer had enough
            training and had properly performed the test. Id. (citing Rose as
            “setting out the requisite steps involved in the proper administration of
            an HGN test”).

          • Finally, and again citing Rose in support, we noted that challenges to
            the properly-admitted HGN testimony would therefore “go to its
            weight, rather than to the admissibility of the test results.” Id. at 7
            (citing Rose).

                                     Conclusion

      We find no merit in Johnson’s arguments for reversal. Judgment affirmed.



DANIEL E. SCOTT, P.J. – OPINION AUTHOR

JEFFREY W. BATES, J. – CONCURS

MARY W. SHEFFIELD, C.J. – CONCURS

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