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## Missouri Court of Appeals **Southern District Division One** 

STATE OF MISSOURI, ) ) Plaintiff

- Respondent, ) )
v. ) No. SD35936 ) LARRY A. SINOR, ) FILED: February 6 , 2020 ) Defendant

- Appellant. )
APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY Jerry A. Harmison, Jr., Judge
AFFIRMED
. Larry A. Sinor (“Defendant” ) appeals his conviction, following a two

- day jury trial, for
the clas s A misdemeanor of careless and imprudent driving in violation of section 304.012, RSMo. (2000). Defendant asserts six points on appeal all requesting plain error review of the
trial court’s failure to sua sponte intervene to strike and exclude from evidence certain selected parts of the testimony given by the State’s expert witness , Trooper Bonnie Talik

. We deny those requests, decline to engage in plain error review, and affirm the trial court’s judgment of
conviction.
Factual and Procedural B ackground On June 20, 2016, the semi

- tractor driven by Defendant at 56 or 57 miles per hour in an2 eastward direction in the right lane of Route OO collided with the rear of a hay rake being pulled by a farm tractor that was traveling in the same direction in the same lane at a top speed of 16 or 17 miles per hour

. The driver of the farm tractor died as a r esult of the collision. By information, the State charged Defendant with the class A misdemeanor of careless and imprudent driving alleging that Defenda nt operated a motor vehicle on a public highway known as Route OO, in a careless and imprudent manner by failing to keep a proper lookout and overtaking and striking a slower moving vehicle, and thereby endangered the property of another or the life and l imb of any person and was at that tim e involved in an accident.
T he State endorsed on the information, as a witness , Bonnie Talik of the Major Crash Investigation Unit of the Missouri State Highway Patrol, who was the lead investigator of the
collision

. D efendant ’s counsel took Trooper Talik’s deposition befo re trial. Also b efore trial,
Defendant endorsed and gave notice of his intent to call Dr. Bruce A. Kater, Neuro

- Optometrist ,

as a n expert witness. The State took Dr. Kater’s pre - trial deposi tion.
At trial, Defendant was represented by public defenders Sarah Johnson and Rodney
Hackathorn. During Defendant’s opening statement, trial counsel Johnson described for the jury the anticipated battle of experts related to the “lookout” kept by Defendant in the following

manner: You will hear testimony from Missouri Highway Patrol accident reconstructionist [Talik] that, according to her mathematical calculations, [Defendant] should have been able to stop his semi in time to avoid the collision. However, you will also hear that these mathematical calculations are not exact. They are based on a guess as to what speed the tractor was actually going. You will hear that without that critical piece of information, no one can definitively say at what point the tr actor entered the road in front of [Defendant]

. You will also hear that, without knowing the tractor’s speed, there’s no way to calculate how quickly [Defendant’s] semi reached the tractor. So could there have been something else going on? Well, you’ll h ear from Dr. Bruce Kater, our neuro optometrist from Mercy Hospital, that there’s a phenomenon called the looming effect; or, as the Federal Aviation Administration calls it, a blossom effect. You will hear Dr. Kater explain that this phenomenon is3 based on how quickly an image expands on the retina, or the nerve portion on the back of the eye. You will hear that this phenomenon occurs when two objects are closing in, whether head on or from behind, and that it affects the

-- the brain’s ability to recogn ize you’re on a collision course. You will hear testimony that the FAA calls this the blossom effect, because the approaching image goes from an imperceptible increase in size to an explosion in the field of vision. You will hear testimony that at that c ritical point, the brain must process the visual information, formulate a plan, and put it into motion. Failure at any level leads to disaster, and seconds count. The trial transcript of the two

- day trial indicates that a substantial portion of the
testim ony came from Trooper Talik and Dr. Kater

. Of the 193 pages of trial testimony in the transcript, Trooper Talik’s testimony covered 81 pages (46 for direct and 35 for cross

examination) and Dr. Kater’s testimony covered 76 pages (59 for direct and 17 for cross examination)

. Nothing in the transcript indicates that Trooper Talik’s testimony differed from that given in her pre

- trial deposition taken by trial counsel or surprised trial counsel in any

manner. Neither of Defendant’s trial counsels made an obj ection to any of Trooper Talik’s testimony. A substantial portion of Defendant’s closing argument, made by trial counsel Johnson, attacked various factual underpinnings of Trooper Talik’s testimony , promoted the accuracy of Dr. Kater’s testimony as to th e “looming effect and perception

- reaction times,” and criticized Trooper Talik’s testimony for not tak ing those into account. In addition, trial counsel compared and contrasted the credentials of Trooper Talik and Dr. Kater emphasizing the deficiencies of the former and superior quali ties of the latter. After deliberating for 24 minutes, the jury ret urned a guilty verdict. Defendant filed a motion for new trial, but no claim of trial court error was raised in that motion as to any part of Troope r Talik’s testimony. The trial court denied Defendant’s motion for new trial and
sentenced Defendant to serve 180 days in the Greene County Jail, but suspended the execution of that sentence and placed Defendant on two years of unsupervised probation with the condi tion4 that he serve four days of shock deten tion in the Greene County Jail. T his appeal timely
followed.
Discussion
Defendant concedes that none of his six claims of trial court error were preserved for appellate review by a timely and proper objection and inclusion in Defendant’ s motion for new
trial. Rather, Defendant requests Rule 30.20 plain error review of the trial court’s failure to sua sponte intervene to strike and exclude from evidence five different conclusions testifie d to by Trooper Talik and, in his sixth point relied on , “the cumulative prejudicial effect” from the errors challenged in the oth er five points relied on

. 1 Defendant claims that he was denied his right to a fair trial because each challenged conclusion testified to by Trooper Tal ik “invaded the pro vince of the jury.” “Rule 30.20 is no panacea which a criminal defendant can use to obtain appellate review of any alleged error that is unpreserved.” State v. Campbell , 122 S.W.3d 736, 739 (Mo.App. 2004). “[A]n appellate court is not required to engage in plain error review; the decision whether to grant or deny such a request is left to the court’s discretion.” Id. at 740. “The court may simply decline to exercise its discretionary authority to review the point for plain error.”
S

hifkowski v. State , 136 S.W.3d 588, 590 (Mo.App. 2004). 2 If we exercise our discretion and engage in the requested plain error review of unpreserved error, a “defendant must show not only that the trial court committed evident,

1 All rule references are to Missouri Court Rul es (2019). 2 Rule 30.20 provides, in pertinent part, that “Whether briefed or not, plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom. Rule 30.20 (emphasis added). Nothing in that rule makes a request from a party a prerequisite for the exercise of a court’s discretion to engage in plain erro r review

. See , e.g. , State v. Kimes , 234 S.W.3d 584, 590 (Mo.App. 2007) ( sua sponte found plain error in trial court’s imposition of jail sentence for infraction where only authorized punishment was a fine). Conversely, nothing in that rule requires a co urt to engage in any type of plain error review merely because a party request s it to do so

.5 obvious, and clear error, but also the existence of manifest injustice or a miscarriage of justice.” State v. Stuckley , 573 S.W.3d 766, 768 (Mo.App. 2019). Here, having reviewed and considered the record on appeal, the parties ’ briefs, and the alleged trial error s for which plain error review is requested , Defendant has failed to persuade us that we should exercise our discretion to engage in plain error review. Moreover, we find nothing in the record on appeal warranting the exercise of our discretion to engage i n plain error
review. W e , therefore, deny Defendant’s requests for plain error review and decline to exercise our discretionary authority to review Defendant’s six points for plain error.
Decision The trial court’s judgment is affirmed.

GARY W. LYNCH, P.J.

– OPINION AUTHOR NANCY STEFFEN RAHMEYER, J.

– CONCURS WILLIAM W. FRANCIS, JR., J.

– CONCURS