State

Decision Date14 November 2000
Citation34 S.W.3d 175
Parties(Mo.App. W.D. 2000) . State of Missouri, Respondent v. Charles Dale Cross, Appellant. Case Number: WD57145 Missouri Court of Appeals Western District Handdown Date:
CourtMissouri Court of Appeals

Appeal From: Circuit Court of Macon County, Hon. Hadley E. Grimm

Counsel for Appellant: Seth Shumaker

Counsel for Respondent: Robert T. Bickhaus

Opinion Summary:

Charles Dale Cross appeals the circuit court's judgment convicting him of the Class B misdemeanor of driving while intoxicated. He contends that the state's evidence was insufficient, his arrest by Macon police officers was illegal because the alleged infraction occurred outside Macon's jurisdictional limits, and the circuit court erred in admitting evidence of a breathalyzer test's results because the state did not establish that it was competent evidence.

AFFIRMED.

Division holds:

(1) The evidence established that Cross was operating a motor vehicle as that term is used in section 577.010, RSMo 1994, and section 577.001.1, RSMo Cum. Supp. 1999. Cross was on the driver's side of the car, lying across the front seats with the engine running. No one else was in the vehicle. Though circumstantial, the state's evidence was sufficient for a fact finder reasonably to conclude that he had turned on the car's engine. After officers aroused Cross, he immediately turned off the headlights and turned off the engine. In the ordinary sense of the word, he was operating the car. The evidence also established that Cross was intoxicated at the time he was operating the vehicle.

(2) The Macon police did not have the authority to arrest Cross because they were outside their jurisdiction. Cross, however, did not seek to suppress the officer's testimony before trial, and he did not object to it at trial on constitutional grounds. A constitutional claim must be raised at the earliest opportunity and preserved at each stage of the judicial process. Cross' contention on appeal--that his unlawful arrest rendered the officers' testimony inadmissible as "fruit of the poisonous tree"--comes too late. Moreover, that Macon officers acted outside their jurisdiction does not preclude them from testifying about what they observed.

(3) Although the circuit court erred in admitting the breathalyzer test results into evidence, this Court discerns no prejudice to Cross. Section 577.010.1 requires proof only that a defendant "operate[d] a motor vehicle while in an intoxicated or drugged condition." It does not require a showing of any level of intoxication. The Highway Patrol Trooper's observations were sufficient to establish Cross' violation of section 577.010.1 beyond a reasonable doubt.

Opinion Author: Paul M. Spinden, Chief Judge

Opinion Vote: AFFIRMED. Lowenstein, Breckenridge, Smart, Smith, J.J., and Turnage, S.J., concur.

Ellis, Judge, dissents in separate opinion. Stith, Howard, Newton, and Holliger, J.J., concur in the dissenting opinion.

Opinion:

Charles Dale Cross appeals the circuit court's judgment convicting him of the Class B misdemeanor of driving while intoxicated. He contends that the state's evidence was insufficient to establish that he was driving while intoxicated. He also contends that his arrest by Macon police officers was illegal because the alleged infraction occurred outside Macon's jurisdictional limits and that the circuit court erred in admitting evidence of a breathalyzer test's results because the state did not establish that it was competent evidence. We affirm the circuit court's judgment.

The evidence established that on December 13, 1998, Macon police officer Christopher Bowzer was dispatched to investigate a report of a person slumped over in the seat of a car parked near U. S. 36 and Long Branch Road. Bowzer found the car parked with its engine running and its headlights on. The driver's door was open, and Cross' legs were hanging out and touching the ground. The car was parked outside Macon's city limits, but, because he was concerned about Cross' health, Bowzer continued to investigate. He found Cross asleep or unconscious, lying across the front seats. Bowzer could not arouse him. Bowzer radioed his dispatcher to summon a Highway Patrol trooper to the scene.

Before a trooper arrived, two other Macon police officers arrived to assist Bowzer. Bowzer testified that one of them, Officer Toal,1 awakened Cross by shaking him and yelling at him. Cross then turned off the car's headlights and engine and removed the keys from the ignition. He attempted to get out of his car, but Toal told him to remain in the car and took the keys from him. When Toal asked Cross how much he had to drink, Cross responded, "Not enough."

Highway Patrol Trooper Kelley2 arrived a brief time later and ordered Cross to get into his patrol car. Highway Patrol Trooper John Siecinski arrived moments later and spoke with the Macon officers and Trooper Kelley about what they had observed.

Siecinski testified that he noted a strong odor of intoxicants about Cross and saw two empty beer bottles in Cross' car. He said that Cross' eyes were watery, bloodshot and glassy, his speech was slurred, his balance was "uncertain, swaying . . . [and] wobbling," his walk was "swaying, staggering and slow," and he swayed and was uncertain when asked to turn while walking. Siecinski said that he concluded from this that Cross was intoxicated, but, because of Cross' condition and safety concerns, he decided not to conduct field sobriety tests.3 Siecinski formally arrested Cross for driving while intoxicated and took him to the Macon County sheriff's office where Cross consented to a breathalyzer test which indicated that his blood alcohol content was .182 percent.

Cross contends that the state's evidence was not sufficient to establish that he was operating a motor vehicle as that term is used in section 577.010.1, RSMo 1994. The statute says, "A person commits the crime of 'driving while intoxicated' if he operates a motor vehicle while in an intoxicated or drugged condition."4 In section 577.001.1, RSMo Cum. Supp. 1999, the General Assembly defined "operates:" "As used in this chapter, the term . . . 'operates' . . . means physically driving or operating a motor vehicle."5

The primary rule of statutory construction is to ascertain what the General Assembly intended and to give effect to that intent, and we ascertain that intent primarily by deeming the General Assembly to have intended the plain and ordinary meaning of the words it uses in a statute. Spradlin v. City of Fulton, 982 S.W.2d 255, 258 (Mo. banc 1998). "Operating" is a broad term which the General Assembly did not define.6 We presume the General Assembly to have intended for us to give "operating" its plain and ordinary meaning. "'Absent a statutory definition, the words used in the statute will be given their plain and ordinary meaning as derived from the dictionary.'" State v. Hibler, 5 S.W.3d 147, 149 (Mo. banc 1999) (quoting Columbia Athletic Club v. Director of Revenue, 961 S.W.2d 806, 809 (Mo. banc 1998)).

The dictionary defines "operate" as "to cause to function[.]" Webster's Third New International Dictionary of the English Language Unabridged 1581 (1971). This lends itself to a broad understanding of the term, and indeed the Supreme Court has been broad in its treatment of the term. We note as an example--and strictly as an example of its acceptance of a broad definition of "operating"--that the Supreme Court, in construing the term in section 304.010 RSMo 1949, declared that "operating" encompassed:

"[A]ll acts . . . fairly incidental to the ordinary course of [an automobile's] operation, including not only the act of stopping en route for purposes reasonably associated with the transit but also all acts which, in point of time and circumstance, are reasonably connected with entering the vehicle at the point of departure and alighting therefrom at destination."

Teters v. Kansas City Public Service Company, 300 S.W.2d 511, 516 (Mo. 1957) (quoting Karnes v. Ace Cab Company, 287 S.W.2d 378, 380 (Mo. App. 1956)).7 Indeed, "[f]or purposes of chapters 304 and 577, Missouri courts have repeatedly construed 'operator' broadly." Gibbs v. National General Insurance Company, 938 S.W.2d 600, 604 (Mo. App. 1997) (emphasis added).8

We make this point, not because a broad definition is necessary, but to assert that Cross' actions clearly fit within the term. Nonetheless, it seems important to emphasize that, by not defining "operate," the General Assembly prompts us to apply the plain and ordinary meaning of the term which can be--and has been--defined quite broadly. We must assume that the General Assembly wanted us to construe the word in its plain and ordinary sense rather than rewriting the statute to match our understanding of "context."9 We certainly concur with the dissent that "[t]he Judiciary's duty is not to write or re-write statutes." Slip op. at 14. That is why we refrain from doing so.

Given this understanding, and without trying to articulate every activity that is included in "operating a motor vehicle," we have no difficulty concluding that Cross' case fits within the definition of section 577.001.1 and that the state presented sufficient evidence to establish his guilt beyond a reasonable doubt. When Bowzer first arrived, Cross was on the driver's side of the car, lying across the front seats with the engine running. No one else was in the vehicle. Though circumstantial, the state's evidence was sufficient for a fact finder reasonably to conclude that he had turned on the car's engine. See Baptist v. Lohman, 971 S.W.2d 366, 368 (Mo. App. 1998).10 After officers aroused Cross, he immediately turned off the headlights and turned off the engine.11 In the ordinary sense of the word, he was operating the car.12

Cross argues that, before the General Assembly amended section 577.001.1 in 1996, it defined "oper...

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