State v. Barac

• Decision Date: 25 September 2018
• Docket Number: WD 81267
• Citation: 558 S.W.3d 126
• Parties: STATE of Missouri, Respondent, v. Karbino William Deng BARAC, Appellant.
• Court: Missouri Court of Appeals

558 S.W.3d 126

STATE of Missouri, Respondent,

v.Karbino William Deng BARAC, Appellant.

WD 81267

Missouri Court of Appeals, Western District.

OPINION FILED: September 25, 2018

MODIFIED October 23, 2018

Evan J. Buchheim, Jefferson City, MO, for respondent.

Casey A. Taylor, Columbia, MO, for appellant.

Before Division Four: Karen King Mitchell, Chief Judge, Presiding, Mark D. Pfeiffer, Judge and Cynthia L. Martin, Judge

Cynthia L. Martin, Judge

Karbino William Deng Barac ("Barac") appeals from the trial court's entry of judgment convicting him of driving while intoxicated as an aggravated offender after a bench trial. Barac argues that there was insufficient evidence to establish the offense's temporal requirement--that Barac had operated the vehicle while intoxicated. We affirm.

Factual and Procedural History¹

On April 5, 2017, at approximately 6 p.m., Officer Jason Hill ("Jason Hill") of the St. Joseph, Missouri Police Department was dispatched to a wellbeing check on Interstate 229 near Exit 22. Officer Hill testified that, when he received the call, he was already driving south on 22nd Street, so he was not far from the location of the wellbeing check. Officer Hill described the vehicle as resting on Interstate 229, directly before the bridge over 22nd Street. The vehicle was positioned so that it was six to twelve inches from the concrete bridge, and was parked parallel to the guardrail, which was only a few inches away from the vehicle so that no one could enter or exit the vehicle on the passenger side.

When Officer Hill approached the vehicle, he saw Barac slumped with his head on the steering wheel. Officer Hill opened the vehicle's door, and Barac immediately became uncooperative and combative. Officer Hill smelled a strong odor of intoxicants coming from Barac's body and noticed Barac's bloodshot, watery eyes. Further, Barac's speech was slurred, but as the encounter continued, Barac's speech improved. Officer Hill asked Barac to submit to a portable breath test. Barac refused. Officer Hill testified that he did not attempt to conduct any field sobriety tests at the scene because it was apparent to him that Barac would refuse to participate. Thereafter, Officer Hill placed Barac under arrest and escorted him to the patrol car. Barac used short, uncertain steps, walking slowly toward the patrol car. Officer Hill transported Barac to the station. While at the station, Barac refused to submit to a breath or blood test, so Officer Hill obtained a warrant to take a blood sample. Barac's blood sample indicated that he had a blood alcohol content of .359 percent.

While on the scene, Officer Hill confirmed that the vehicle was registered to Barac. Officer Hill testified that, while the vehicle was not running, the vehicle's key was in the ignition and turned to the "on" position so that Officer Hill had to turn the key counterclockwise to remove it from the ignition. Officer Hill also testified that he found no containers of alcohol around the vehicle, and during a subsequent inventory search of the car, he found no containers of alcohol in the car itself. On cross-examination, Officer testified that he did not feel the vehicle's hood to determine whether it was hot and that he did not check if the vehicle had gas. Officer Hill then testified that he did not know how long the vehicle had been parked on the scene.

The State charged Barac with driving while intoxicated as a persistent offender in violation of section 577.010.² The State later amended the charges to driving while intoxicated as a chronic offender in violation of section 577.010. After a bench trial, the trial court found Barac guilty of driving while intoxicated as an aggravated offender and sentenced him to five years' imprisonment.

Barac appeals.

Standard of Review

We assess the sufficiency of the evidence to support a conviction in a court-tried case using the same standard as in a jury-tried case. State v. Sutton , 427 S.W.3d 359, 360 (Mo. App. W.D. 2014). To determine whether the evidence is sufficient to support the conviction, " ‘we must look to the elements of the crime and consider each in turn to determine whether a reasonable [factfinder] could find each of the elements beyond a reasonable doubt.’ " Id. (quoting State v. Thenhaus , 117 S.W.3d 702, 703 (Mo. App. E.D. 2003) ). In doing so " ‘we are required to take the evidence in the light most favorable to the State and grant the State all reasonable inferences from the evidence, disregarding all contrary inferences.’ " Id. (quoting Thenaus , 117 S.W.3d at 703 ). "However, [we] ‘will not supply missing evidence or grant the state unreasonable, speculative, or forced inferences.’ " State v. Thompson , 538 S.W.3d 390, 393 (Mo. App. W.D. 2018).

Analysis

Barac raises a single point on appeal in which he argues that there was insufficient evidence to prove beyond a reasonable doubt that he was driving while intoxicated as an aggravated offender. Barac does not deny that he was intoxicated when Officer Hill arrived on the scene and does not dispute that his prior convictions render him an aggravated offender. Instead, Barac argues that the State failed to present sufficient evidence from which a reasonable factfinder could have found beyond a reasonable doubt that Barac operated his vehicle while intoxicated. In other words, Barac challenges the sufficiency of the evidence to support the temporal connection between Barac's alleged operation of the vehicle and his intoxication. Barac asserts that, because no witness testified that they actually observed Barac driving the vehicle and because Officer Hill testified that the engine was not running when he found Barac slumped over the steering wheel, the question at trial was whether the evidence presented by the State demonstrated that Barac operated the vehicle while intoxicated before Officer Hill arrived on the scene. Barac contends that, pursuant to relevant precedent, the evidence presented was insufficient to demonstrate that Barac had done so. We disagree.

"A person commits the offense of driving while intoxicated if he or she operates a vehicle while in an intoxicated condition." Section 577.010.1. As used in Chapter 577, " ‘[d]rive,’ ‘driving,’ ‘operates’ or ‘operating,’ means physically driving or operating a vehicle or vessel." Section 577.001(9). Our Supreme Court has concluded, using the dictionary definitions of "drive" and "operate," that a defendant "drives" a vehicle when he or she "guide[s] it along or through anything," and that a defendant "operates" a vehicle when he or she causes the car to function by direct personal effort or work. Cox v. Dir. of Revenue , 98 S.W.3d 548, 550 (Mo. banc 2003). Thus, if the key is in the ignition and the engine is running, a person "operates" a vehicle, even if that person is sleeping or unconscious. Id. When Officer Hill found Barac slumped over the vehicle's steering wheel, the key was in the ignition and was turned to the "on" position, but the engine was not running. Thus, the situation does not align with the test for "operates" set forth in Cox .

"[I]n those cases in which the accused engine was not running at the time in question, the State must present ‘significant additional evidence of driving [or operating] and the connection of driving [or operating] in an intoxicated state ... to sustain a criminal conviction.’ " State v. Chambers , 207 S.W.3d 194, 197 (Mo. App. S.D. 2006) (quoting State v. Anderson , 107 S.W.3d 447, 450 (Mo. App. S.D. 2003) ). Thus, our task on appeal is to determine "whether the State presented sufficient evidence that a reasonable [factfinder] could find beyond a reasonable doubt that [Barac] was driving or operating a motor vehicle and that he did so while intoxicated." Id. " ‘[T]he State must establish, through direct or circumstantial evidence, the temporal connection between the defendant's last operation of a motor vehicle and his observed intoxication.’ " State v. Baker , 499 S.W.3d 730, 733 (Mo. App. W.D. 2016) (quoting State v. Shoemaker , 448 S.W.3d 853, 856 (Mo. App. W.D. 2014) ). When driving or operating is not personally observed by an eyewitness, circumstantial evidence may be used to prove that that the defendant was driving or operating a vehicle while intoxicated. Id. "Examples of ... ‘significant additional evidence’ as it relates to the ‘drive’ [or ‘operate’] element of [driving while intoxicated] includes, but is not limited to: lights inside or outside the vehicle were illuminated; the key was in the ignition; the accused was found behind the steering wheel; the accused was the sole occupant of the vehicle; the vehicle was found in a lane of traffic; and the vehicle was registered to the accused." Id. at 734 (citing Chambers , 207 S.W.3d at 198-99 ; State v. Karl , 270 S.W.3d 514, 517 (Mo. App. W.D. 2008) ; State v. Thurston , 84 S.W.3d 536, 538-40 (Mo. App. S.D. 2002) ). Further, "[r]efusal to take a [breath] test can constitute evidence from which a reasonable inference can be drawn that the driver was intoxicated at the time of the operation of the vehicle. Id.

In State v. Baker , we considered whether the State presented "significant additional evidence" that the defendant drove or operated his vehicle while intoxicated. Id. at 733. There, the State presented evidence that an eyewitness called 911 after observing the defendant's vehicle parked in the middle of a busy intersection, blocking a lane of traffic. Id. at 734, 735. The eyewitness saw the sole occupant of the vehicle leaning back in the driver's seat of the vehicle, with his arm hanging out the window. Id. at 734. The officer dispatched to the scene saw a vehicle parked in the middle of an intersection with the driver's door open and the defendant's sandals on the driver's side floorboard. Id. The officer also observed the vehicle's key in its ignition in the "on" position, but the engine was not running. Id. The vehicle's head lights and rear lights were illuminated. Id. The officer...