STATE OF MISSOURI, ) ) Plaintiff-Respondent, ) ) v. ) No. SD35759 ) Filed: May 1, 2020 JUSTIN KEITH LONG, ) ) Defendant-Appellant. )
APPEAL FROM THE CIRCUIT COURT OF CHRISTIAN COUNTY
Honorable Larry G. Luna, Senior Judge
AFFIRMED
Following a bench trial, Justin Long (Defendant) was convicted of the class B
misdemeanor of driving while intoxicated (DWI). See § 577.010.1 Prior to trial, Defendant
filed motions in limine and to suppress evidence and statements. Defense counsel was
permitted to make continuing objections at trial, which were taken with the case. Ultimately,
the trial court denied the motions in limine, overruled the objections and admitted the
challenged evidence and statements.
1 All statutory references are to RSMo (2016). Presenting five points on appeal, Defendant contends the trial court erred by failing
to suppress evidence and statements because: (1) the arresting officer had “no reasonable
suspicion to detain” Defendant; (2) the arresting officer had “no reasonable suspicion to
extend his nonconsensual detention” of Defendant; (3) there was “no probable cause to
arrest” Defendant; (4) the Horizontal Gaze Nystagmus (HGN) test “should not have [been]
admitted” because “the test was not performed properly”; and (5) the Portable Breath Test
(PBT) “should not have [been] considered” because “law enforcement had wrongly assured
[Defendant] the PBT would not be used against him[.]” Finding no merit in any of these
points, we affirm.
Factual and Procedural Background
In reviewing the trial court’s ruling on a motion to suppress, “[t]his Court defers to
the trial court’s factual findings and credibility determinations and considers all evidence
and reasonable inferences in the light most favorable to the trial court’s ruling.” State v.
Lammers, 479 S.W.3d 624, 630 (Mo. banc 2016). The following summary of facts has been
prepared in accordance with these principles.
Around 2:40 a.m. on February 10, 2017, Ozark Police Officer Trevor Spencer was
parked in his patrol vehicle on the shoulder of the on-ramp to 65 Highway. Officer Spencer
saw an Acura SUV drive past him, park on the shoulder of the road, and turn on its
emergency flashers. Two passengers exited the passenger side of the vehicle and began
walking towards his patrol vehicle. Officer Spencer then activated his emergency lights and
contacted the two passengers, later identified as Jeremy Rice (Rice) and Angel Fulton
(Fulton), as they were walking toward his patrol vehicle. As the officer was exiting his
vehicle, he heard Fulton tell Rice to get back into the vehicle, saying: “We’re both drunk,
2 and we want to go home.” Officer Spencer instructed the two passengers to re-enter the
vehicle. The officer was concerned for everyone’s safety at the side of the road and about
the possibility of an escalating domestic situation. After both were in the vehicle, Officer
Spencer then contacted the driver, whom he identified as Defendant.
When the officer asked Defendant why the passengers had exited the vehicle,
Defendant said they had been in an argument and that they had been at Wise Guys, a local
bar. Officer Spencer observed: (1) an immediate smell of intoxicants on Defendant’s breath;
(2) Defendant’s eyes were glassy and bloodshot; and (3) Defendant’s “speech was a little bit
slurred.” Defendant said that he was “the most sober” and planned to bring everyone home.
When asked if he had consumed any alcoholic beverages, Defendant said he had consumed
three or four drinks of Crown Royal. At this point, Officer Spencer thought Defendant might
be impaired. Officer Spencer asked Defendant if he believed that he was impaired.
Defendant said he believed that he was over the legal limit. Officer Spencer asked Defendant
to take a PBT, but Defendant asked if he could take a field sobriety test instead. As
Defendant exited his vehicle, Officer Spencer observed Defendant sway back and forth.
Officer Spencer then conducted three field sobriety tests on Defendant. First, Officer
Spencer performed the HGN test. Defendant exhibited all six clues of impairment,
indicating intoxication. Defendant even exhibited what was referred to as vertical gaze
nystagmus, which, according to Officer Spencer, indicated a high level of intoxication.
Next, Defendant performed the walk-and-turn test. He showed one indicator of intoxication
out of a possible nine by using his arms for balance. Third, Defendant performed the one-
leg-stand test. He showed one indicator of intoxication out of a possible four by similarly
using his arms for balance.
3 Officer Spencer again asked Defendant to submit to the PBT, and this time Defendant
complied. The PBT was positive for the presence of alcohol. Defendant asked what he
blew, and the officer responded that it was a .197. Based on the “totality of the whole entire
event[,]” Officer Spencer believed that Defendant was operating a motor vehicle in an
intoxicated condition and placed him under arrest. Officer Spencer then transported
Defendant to the Ozark Police Department. As Defendant exited the vehicle, Defendant
stumbled and almost fell out of the patrol car. Apparently referring to the PBT result,
Defendant said, “I guess I am a one nine.”
Once at the station, Officer Spencer read Defendant his Miranda warning and an
implied-consent statement. Officer Spencer then completed the AIR interview with
Defendant. During that interview, Defendant agreed that he was operating a vehicle when
he stopped his vehicle in front of the patrol car, and that he had been drinking. He said he
had “four shots in about an hour” and was under the influence of an alcoholic beverage.
Defendant blew into the breathalyzer machine, which yielded a blood-alcohol content of
.139.
Defendant was charged with DWI. Prior to trial, Defendant filed motions to suppress
all evidence and statements obtained after an “unlawful detention” or arrest with “no
probable cause” in violation of his constitutional rights to be free from unreasonable search
and seizures under, inter alia, the Fourth Amendment of the United States Constitution. The
motions were taken with the case, and defense counsel was permitted to make continuing
objections at trial. Officer Spencer testified to the aforementioned facts at trial. Exhibits
included the dash cam video, which confirmed much of Officer Spencer’s testimony.
Exhibits also included the blood-alcohol test report, which was admitted to show
4 Defendant’s blood-alcohol level was above the legal limit. Testimony concerning the result
of the PBT was admitted to establish probable cause to arrest Defendant. Thereafter, the
court: (1) denied the motions in limine and objections at trial; (2) admitted the challenged
testimony and evidence; and (3) found Defendant guilty of DWI. This appeal followed.
Additional facts will be included below as we address Defendant’s five points on appeal.
Standard of Review
We review the denial of a motion to suppress to determine whether there was
substantial evidence to support the decision, and we will only reverse where the trial court’s
ruling is clearly erroneous. State v. Gaw, 285 S.W.3d 318, 319-20 (Mo. banc 2009); State
v. Johnson, 427 S.W.3d 867, 871 (Mo. App. 2014). A ruling is clearly erroneous when we
are left with a definite and firm impression that a mistake has been made. Johnson, 427
S.W.3d at 871. “Whether conduct violates the Fourth Amendment is a question of law,
which we review de novo.” Id. at 871-72; see Lammers, 479 S.W.3d at 630; State v. Bruce,
503 S.W.3d 354, 357 (Mo. App. 2016).
In reviewing an appellant’s claim that the trial court erred in admitting evidence, our
review is for abuse of discretion. State v. Winfrey, 337 S.W.3d 1, 5 (Mo. banc 2011). “The
trial court abuses its discretion when its ruling is clearly against the logic of the
circumstances and is so unreasonable as to indicate a lack of careful consideration.” Id.
(citation omitted); see State v. Smith, 330 S.W.3d 548, 553 (Mo. App. 2010).
Discussion and Decision
Point 1 – Consensual Encounter
Defendant’s first point contends the trial court clearly erred “in denying [his] motions
in limine and to suppress evidence and statements because Officer Spencer had no
5 reasonable suspicion to detain [Defendant.]”2 According to Defendant, the officer “had no
reason to believe [Defendant] or any other person had committed a crime and said encounter
was not a consensual one.” We disagree.
Generally, there are three categories of police-citizen encounters: (1) a consensual
encounter; (2) an investigative detention requiring only reasonable suspicion based upon
specific articulable facts; and (3) an arrest requiring probable cause. See Johnson, 427
S.W.3d at 872. “A consensual encounter does not implicate the Fourth Amendment until
the officer restrains the individual’s liberty to the extent that a reasonable person would feel
that he or she was not free to leave or decline the officer’s questions.” Id. If the encounter
is consensual, “police officers are free to question an individual, even without reasonable
suspicion of criminal activity[.]” State v. Sund, 215 S.W.3d 719, 723 (Mo. banc 2007); see
also Lammers, 479 S.W.3d at 631 (“for purposes of the Fourth Amendment, a seizure does
not occur simply because a police officer approaches an individual and asks a few
questions”). Further, “[u]nder the Fourth Amendment, a law enforcement officer may
approach a vehicle for safety reasons, or if a motorist needs assistance, so long as the officer
can point to reasonable, articulable facts upon which to base his actions.” State v. Schroeder,
330 S.W.3d 468, 473 (Mo. banc 2011); see State v. Galen, 554 S.W.3d 550, 554 (Mo. App.
2 We note that in each of Defendant’s points, he challenges only the court’s ruling denying his motions to suppress. Generally, “a point relied on attacking the trial court’s ruling on a pretrial motion to suppress, without attacking the court’s ruling admitting the evidence, is deficient in that it does not identify the actual ruling that is subject to challenge and, therefore, does not preserve the issue for appellate review.” State v. Wolf, 91 S.W.3d 636, 642 (Mo. App. 2002); see State v. Lloyd, 205 S.W.3d 893, 900 (Mo. App. 2006) (a trial objection to the admission of evidence challenged in a motion to suppress is required to preserve the issue for appellate review). Here, because the motions in limine were taken with the case and defense counsel was permitted to make continuing objections at trial, we consider issues related to the admission of the challenged evidence at trial preserved. 6 2018). “Motorists typically require assistance while stranded on the roadside at night.”
Schroeder, 330 S.W.3d at 473. The encounter remains consensual, however, “only as long
as a reasonable individual would feel free to leave and end the conversation.” Johnson, 427
S.W.3d at 872; cf. State v. Rowe, 67 S.W.3d 649, 655-56 (Mo. App. 2002) (there is no
requirement under the law that an officer must tell a citizen whom they encounter that they
are free to leave). “If a reasonable person would feel free to disregard the police and go
about their business, the encounter is consensual and the Fourth Amendment is not
triggered.” Lammers, 479 S.W.3d at 631; see Johnson, 427 S.W.3d at 872.
Here, the initial contact between Officer Spencer and Defendant was a consensual
encounter. It was Defendant who pulled over, parked the Acura and turned on his emergency
flashers – all in front the patrol car, suggesting that he and/or the passengers might possibly
need help. See, e.g., Schroeder, 330 S.W.3d at 473. Officer Spencer testified that a male
and female then exited the Acura from the passenger side and began walking towards his
patrol vehicle. Concerned by this unusual occurrence, Officer Spencer then activated his
emergency lights and exited his patrol vehicle to contact the two passengers and see if they
needed help. As Officer Spencer exited his vehicle he heard the female tell the male to get
back into the car and that they were both drunk. Officer Spencer directed the passengers
back into the Acura for safety reasons. He then approached Defendant to inquire why his
passengers exited the car and approached his patrol vehicle at 2:40 a.m. Officer Spencer
was free to question Defendant about these unusual events. See Schroeder, 330 S.W.3d at
473; see also Lammers, 479 S.W.3d at 631; Johnson, 427 S.W.3d at 872. Therefore, the
officer’s initial encounter with Defendant was consensual. See Schroeder, 330 S.W.3d at
473; Galen, 554 S.W.3d at 554; Johnson, 427 S.W.3d at 872. Point 1 is denied.
7 Point 2 – Reasonable Suspicion of Criminal Activity
Defendant’s second point contends the trial court clearly erred in failing to suppress
evidence and statements because Officer Spencer had “no reasonable suspicion to extend his
nonconsensual detention” of Defendant. According to Defendant, the officer “had effected
his initial purpose of the detention and he failed to inform [Defendant] he was free to leave.”
We find no merit in this argument.
Reasonable suspicion, which is a less stringent standard than probable cause, is
present when “a police officer observes unusual conduct which leads him reasonably to
conclude in light of his experience that criminal activity may be afoot.” State v. Lovelady,
432 S.W.3d 187, 191 (Mo. banc 2014) (citations omitted). “Suspicion is reasonable if the
officer is able to point to specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant that intrusion.” Id. (citation omitted); see,
e.g., State v. Peery, 303 S.W.3d 150, 154-55 (Mo. App. 2010) (officer has reasonable
suspicion to conduct a detention when he can point to specific facts and inferences which
establish an objective basis for suspecting illegal activity).
This case is similar to State v. Marr, 499 S.W.3d 367 (Mo. App. 2016). In Marr, a
police officer received a dispatch that there was a stranded motorist. The officer located the
vehicle reported as stranded, activated his emergency lights for safety reasons, and
approached the occupants of the vehicle to inquire if there was a problem and to provide
help if needed. Id. At 370. As the officer approached the vehicle, he observed the driver
reaching down as if to hide something. For safety reasons, the officer then approached the
passenger side of the vehicle, where he encountered the defendant. Id. The officer
immediately noticed that the defendant appeared to be under the influence of what he
8 believed to be methamphetamine: she was nervous and fidgety, her pupils were dilated, her
cheeks were sunken, and she had sores on her hands and face. Id. The officer asked the
defendant for identification, at which point she provided her Missouri Department of
Corrections identification and informed the officer that she was currently on probation. Id.
at 370-71. At this point, the officer decided to investigate further. He collected both the
defendant’s and driver’s identification, ran both through dispatch, and soon thereafter
deployed a drug dog, which alerted to the passenger side door. The vehicle was searched
and methamphetamine was found in the passenger seat. The defendant was charged and
convicted of first-degree trafficking. Id. at 370.
On appeal, the defendant in Marr argued that once the officer determined that the
defendant and driver were not in need of assistance, his “initial investigation in response to
the stranded motorist dispatch was completed and every action taken thereafter constituted
an impermissible extension of the original investigation in violation of the Fourth
Amendment.” Id. at 373. The western district of this Court disagreed. The Court noted that
the initial contact between the officer and the defendant was a consensual encounter. Id.
The encounter became a detention when the officer “developed reasonable suspicion almost
immediately upon his encounter with [the defendant].” Id. at 374. By the time the officer
asked the defendant to step out of the car, he had observed “sufficient articulable facts at that
point to constitute reasonable suspicion to believe that [the defendant] was engaged in
criminal activity.” Id.
We reach the same conclusion here. Officer Spencer’s consensual encounter with
Defendant quickly turned into a reasonable suspicion of criminal activity. See id. Officer
Spencer testified that Defendant told him that they had all been at a local bar, the passengers
9 had gotten into an argument, and that he was “the most sober” person in their group. While
speaking with Defendant, the officer immediately smelled the odor of alcohol on
Defendant’s breath, and observed Defendant’s eyes were watery, bloodshot and glassy, and
his speech was slurred. When Officer Spencer asked Defendant if he had been drinking,
Defendant replied that he had had three to four alcoholic beverages that night. Based on
these observations of Defendant during this initial encounter, Officer Spencer developed
concerns that Defendant was driving under the influence of alcohol. It was only after these
initial observations that Officer Spencer obtained Defendant’s identification to run through
dispatch and proceeded to conduct a further investigation. See id. Thus, the consensual
encounter between Officer Spencer and Defendant quickly turned into a detention only after
Officer Spencer made sufficient observations to generate reasonable suspicion of criminal
activity, i.e., that Defendant was driving while intoxicated. Accordingly, Point 2 is denied.3
Point 3 – Probable Cause to Arrest
Defendant’s third point contends the trial court clearly erred in failing to suppress
evidence and statements because “there was no probable cause to arrest” Defendant. He
maintains “there was insufficient evidence as a matter of law to believe that [Defendant] had
committed any crime.” We disagree.
“Probable cause requires more than a mere suspicion of intoxication, but less than
absolute certainty.” Smith v. Dir. of Revenue, 594 S.W.3d 282, 284 (Mo. App. 2020).
“Probable cause to arrest exists when the arresting officer’s knowledge of the particular facts
and circumstances is sufficient to warrant a prudent person’s belief that a suspect has
3 Regardless of whether or not Officer Spencer had developed a reasonable suspicion of criminal activity, he was not required to tell Defendant that he was free to leave. See Rowe, 67 S.W.3d at 655-56. 10 committed an offense[.]” White v. Dir. of Revenue, 321 S.W.3d 298, 312 (Mo. banc 2010)
(citation omitted); Ridgway v. Dir. of Revenue, 573 S.W.3d 129, 133 (Mo. App. 2019).
Missouri courts have found a combination of observations indicating intoxication to be
sufficient for a finding of probable cause. Rain v. Dir. of Revenue, 46 S.W.3d 584, 588-89
(Mo. App. 2001). Even absent field sobriety tests or a PBT, “probable cause is proven using
other indicators of intoxication such as: an odor of alcohol, behaviors, mannerisms, and
physical expressions.” Smith, 594 S.W.3d at 284-85; see Rain, 46 S.W.3d at 587-89.
Here, the evidence was sufficient to support a finding of probable cause. Officer
Spencer testified that, after Defendant said he came from a local bar and was “the most
sober” person in their group, the officer observed: (1) an immediate odor of alcohol on
Defendant’s breath; (2) his eyes were watery, bloodshot and glassy; (3) his speech was
slurred; (4) when asked if he had been drinking, Defendant replied that he had had three to
four alcoholic beverages that night; and (5) Defendant swayed back and forth as he exited
his vehicle. See, e.g., Smith, 594 S.W.3d at 284-85 (similar testimony by arresting officer
“sufficient in itself to support a finding of probable cause”); see also Rain, 46 S.W.3d at
588.
In addition, field sobriety tests indicated that Defendant was intoxicated. Officer
Spencer observed Defendant exhibit six out of six clues during the HGN test, indicating
intoxication. Defendant even exhibited what was referred to as vertical gaze nystagmus,
which, according to Officer Spencer, indicated a high level of intoxication. See State v.
Rose, 86 S.W.3d 90, 97 (Mo. App. 2002) (“HGN evidence is admissible as a reliable
measure of an illegal level of intoxication”); State v. Stone, 280 S.W.3d 111, 116-17 (Mo.
App. 2009). Further, during both the walk-and-turn and one-leg-stand tests, Officer Spencer
11 noticed Defendant improperly used his arms for balance. Moreover, Defendant admitted to
Officer Spencer that he had been drinking whiskey that night, admitted that he was likely
over the legal limit, and a PBT was positive for alcohol. Based on the totality of these
circumstances, Officer Spencer had a reasonable belief that Defendant operated a vehicle
while intoxicated, and thus had probable cause to arrest Defendant. See, e.g., Ridgway, 573
S.W.3d at 134 (probable cause supported by evidence that the defendant “smelled strongly
of alcohol; had bloodshot, watery, glassy eyes; exhibited swaying and uncertain balance;
was mumbling and slurring his words; admitted to consuming three drinks; and failed both
field sobriety tests conducted by consent, the [HGN] test and [PBT]”). Accordingly, Point
3 is denied.
Point 4 – HGN Test
Defendant’s fourth point challenges the admissibility of the HGN test. The following
facts are relevant to this point.
With respect to the HGN test, Officer Spencer provided the following testimony: (1)
he received the required eight hours of training to perform the HGN test; (2) he explained
how to perform the test; (3) he detailed how he performed the test on Defendant; and (4) as
a result, he clearly observed horizontal gaze nystagmus in both of Defendant’s eyes, as well
as vertical nystagmus, indicating a high level of intoxication. Defense counsel did not offer
any HGN standards or guidelines in evidence. The court admitted Officer Spencer’s
testimony about the results of the HGN test over objection, and defense counsel rigorously
cross-examined Officer Spencer about any deviations from the procedures that he testified
he followed.
12 On appeal, Defendant argues that the trial court “should not have admitted … the
results of the [HGN] test in that it was not performed properly” in accord with “the
Department of Health regulations and standards and Officer Spencer’s training.” We
disagree.
In State v. Tice, 550 S.W.3d 558 (Mo. App. 2018), this Court rejected a similar
argument. There, the defendant argued “the results of the HGN test were inadmissible
because [the officer] failed to follow the National Highway Traffic Safety Administration
(NHTSA) manual while administering the HGN test.” Id. at 561. After reviewing the
officer’s testimony, we held that an adequate foundation to admit the test had been laid based
upon Rose, 86 S.W.3d at 98-99 (setting out the requisite steps involved in the proper
administration of an HGN test). Tice, 550 S.W.3d at 564; State v. Burks, 373 S.W.3d 1, 6-
7 (Mo. App. 2012). We also noted that, while defense counsel claimed the NHTSA
guidelines were not followed, no evidence to that effect was presented. Tice, 550 S.W.3d at
564. We upheld the trial court’s ruling that the HGN test results were admissible, and that
the issues raised by defense counsel went to the weight of the evidence. Id. at 562 n.4.
We reach the same conclusion here. Officer Spencer testified that he had received
the requisite eight hours of training. During his testimony, he also explained in detail how
he administered the HGN test to Defendant and the observations that were made during each
phase of the test. As in Tice, this testimony was sufficient to show an adequate foundation
to admit the HGN test in this case. Id. at 564; see Burks, 373 S.W.3d at 6-7; Rose, 86
S.W.3d at 98-99. Because “the Department of Health regulations and standards” were not
admitted in evidence, there is no evidentiary basis for Defendant’s argument that Officer
Spencer did not properly perform procedures. See Tice, 550 S.W.3d at 564-65; Burks, 373
13 S.W.3d at 6-7. Any deviation from the procedures discussed goes to weight, not
admissibility. Tice, 550 S.W.3d at 562 n.4. Thus, the trial court did not abuse its discretion
in admitting testimony about the HGN test results. Point 4 is denied.
Point 5 – PBT
Defendant’s fifth point challenges the admission of PBT evidence. The following
As mentioned previously, the first time Officer Spencer asked Defendant to take a
PBT, Defendant asked to do field sobriety tests instead. According to the dash cam video,
soon after Defendant made this request, another officer who had since arrived on the scene,
said the “PBT is not admissible in court.” After Officer Spencer conducted field sobriety
tests, he again asked Defendant to take the PBT. The following exchange occurred:
Officer Spencer: “Let me ask you, will you take this PBT test for me real quick?”
Defendant: “I’m going to be totally transparent with you. I think I’m a little over the legal limit….”
Officer Spencer: “Hey man, here’s the deal. It was a simple yes or no question. Like I said, it’s not admissible in court. … Will you take the test for me real quick?”
Defendant: “Yeah.” ….
Other officer, after explaining how to take the PBT: “It’s either positive for alcohol or negative for alcohol.”
Defendant then complied and took the PBT.
Defendant’s point contends the trial court “should not have considered any evidence
concerning, nor the results of, the [PBT]” because “law enforcement had wrongly assured
[Defendant] on multiple occasions that the PBT would not be used against him” and
Defendant relied on those statements to his detriment. We find no merit in this argument.
14 The use of a PBT result is “narrowly restricted by statute.” State v. Morgenroth,
227 S.W.3d 517, 521 (Mo. App. 2007). Section 577.021 provides that “[a] test administered
pursuant to this section shall be admissible as evidence of probable cause to arrest and as
exculpatory evidence, but shall not be admissible as evidence of blood alcohol content.”
§ 577.021.3. Thus, “the result of a portable breath test is admissible to show an officer had
probable cause to arrest.” State v. Roux, 554 S.W.3d 416, 418 (Mo. App. 2017). It is well
settled that “[t]he trial court is presumed to know and apply the law[.]” State v. Selph, 568
S.W.3d 561, 568 (Mo. App. 2019).
As an initial matter, we disagree with Defendant’s interpretation of the exchange
between Officer Spencer and Defendant about the PBT. As we understand the exchange,
Defendant was concerned that the numerical value of the PBT would be used against him as
evidence of his blood-alcohol content. The officers’ assurances that the result of the PBT
could not be used for that purpose is entirely correct. See § 577.021.3 (PBT result “shall not
be admissible as evidence of blood alcohol content”). We further note that Defendant
learned of the numeric result of the PBT – .197 – only because he asked. There is no
indication in the record that the trial court relied upon the .197 PBT result to establish
Defendant’s blood-alcohol content. There was no need for the trial court to do so because
the breathalyzer result from the police station test established that Defendant’s blood-alcohol
content was .139, above the .08 legal limit. See § 577.037.2. Defendant also was correctly
informed that the PBT is used only to determine whether a breath test is positive or negative
for alcohol. The result in this case – positive for alcohol – was offered to establish probable
cause only, which again is a correct use of the PBT result under the statute. See § 577.021.3;
Roux, 554 S.W.3d at 418. The trial court is presumed to know the law and would have
15 considered the PBT positive result for that purpose only. See Selph, 568 S.W.3d at 568.
Accordingly, the trial court did not abuse its discretion in admitting evidence concerning the
PBT. Point 5 is denied.
The judgment of the trial court is affirmed.
JEFFREY W. BATES, C.J. – OPINION AUTHOR
DANIEL E. SCOTT, P.J. – CONCURS IN SEPARATE CONCURRING OPINION
MARY W. SHEFFIELD, J. – CONCURS
16 STATE OF MISSOURI, ) ) Plaintiff-Respondent, ) ) v. ) No. SD35759 ) JUSTIN KEITH LONG, ) ) Defendant-Appellant. )
CONCURRING OPINION Points 1-3, at best, border upon frivolous given the facts and our standard of review. That said, I concur. DANIEL E. SCOTT, P.J. — CONCURRING OPINION AUTHOR