Pence v. Com., 90-CA-1723-DG

• Citation: 825 S.W.2d 282
• Decision Date: 06 September 1991
• Docket Number: No. 90-CA-1723-DG,90-CA-1723-DG
• Parties: Melvin PENCE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: Kentucky Court of Appeals

Page 282

825 S.W.2d 282

Melvin PENCE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 90-CA-1723-DG.

Court of Appeals of Kentucky.

Sept. 6, 1991.

Discretionary Review Denied by

Supreme Court March 4, 1992.

Case Ordered Published by Supreme Court March 13, 1992.

James T. Kelley, Elizabethtown, for appellant.

Frederic J. Cowan, Atty. Gen., Perry T. Ryan, Asst. Atty. Gen., Frankfort, Robert Keith Bond, Ken M. Howard, Elizabethtown, for appellee.

Before EMBERTON, HUDDLESTON and WILHOIT, JJ.

WILHOIT, Judge.

This matter is before the court on discretionary review from the Hardin Circuit Court. Two questions are raised: whether sufficient evidence was presented at trial to support the appellant's conviction for operating a motor vehicle while under the influence of alcohol (KRS 189A.010), and whether the trial court should have granted a mistrial because the jury was permitted to hear damaging hearsay testimony.

The evidence presented by the prosecution consisted of the testimony of the police officer who arrested him. The officer stated that in response to a complaint he went to the Big T Truck Stop and that when he arrived at the truck stop, "I was given a type of vehicle to look for.... [and] observed that vehicle in the parking facility...." He went to the vehicle where he found the appellant sitting behind the wheel. In response to a question by the officer, the appellant admitted that "he had been operating the vehicle." From observation of the appellant, the officer believed he was intoxicated and placed him under arrest for driving under the influence of intoxicating beverages. The officer took the appellant to jail where he gave him a breathalyzer test which showed a blood alcohol content of .26 percent.

The appellant objected to testimony by the officer that the police radio dispatcher had received a call stating "that a Mr. McMillen had called," and testimony that the officer was advised by the dispatcher "that the complainant had stated that he had followed an individual." The appellant asked for a mistrial maintaining that these references to hearsay gave the jury the impression that the officer had received "a complaint of a drunk driver, and he stopped him."

Bearing in mind that the Commonwealth has the burden of proving every element of the case beyond a reasonable doubt, see KRS 500.070; In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), we must consider whether the jury was presented with sufficient evidence from which it could infer beyond reasonable doubt that the appellant was or had been operating, while intoxicated, the vehicle in which he was found. There was evidence to support a jury finding that he was intoxicated when found in the vehicle and that at some indefinite time before his arrest he had been operating the vehicle. The flaw in the prosecution's case seems to be that there was no evidence to support a finding that the appellant was operating the vehicle while intoxicated.

It was not shown that at the time the officer came upon the appellant the engine in the appellant's vehicle was running or even that the engine was warm. There was no evidence that the ignition key was turned on. There likewise was no evidence that the appellant was then planning to move his vehicle and, in fact, another vehicle was parked behind the appellant blocking him "from exiting the parking spot." Nothing in the evidence presented indicates or permits a reasonable inference as to how long the appellant had been at the truck stop, whether five minutes or five hours. There was no proof showing it more likely that the appellant drove to the truck stop while intoxicated than that he got intoxicated after his arrival. Even if the officer's being sent to the...