State v. Burks

• Decision Date: 24 February 2012
• Docket Number: No. SD 31023.,SD 31023.
• Citation: 373 S.W.3d 1
• Parties: STATE of Missouri, Plaintiff–Respondent, v. Morris T. BURKS, Defendant–Appellant.
• Court: Missouri Court of Appeals

373 S.W.3d 1

STATE of Missouri, Plaintiff–Respondent,

v.Morris T. BURKS, Defendant–Appellant.

No. SD 31023.

Missouri Court of Appeals,

Southern District,

Division Two.

Feb. 3, 2012.

Motion for Rehearing or Reconsideration and

Transfer Denied Feb. 24, 2012.

Stacie Bilyeu, Springfield, MO, for Appellant.

Lindsey N. Phoenix, Springfield, MO, for Respondent.

JEFFREY W. BATES, Judge.

After a bench trial, Morris Burks (Defendant) was convicted of driving while intoxicated in violation of § 577.010.¹ Defendant presents three points on appeal. He contends: (1) the trial court erred in admitting evidence that Defendant refused to take a portable breath test prior to his arrest; (2) the trial court erred in admitting evidence concerning certain field sobriety tests administered to Defendant; and (3) the evidence was not sufficient to support Defendant's conviction. Finding no merit in any of Defendant's points, we affirm. For ease of analysis, we will review Defendant's points in reverse order.

Point III

In Defendant's third point, he challenges the sufficiency of the evidence to support his conviction for driving while intoxicated. On appeal, we accept as true the evidence and reasonable inferences derived therefrom that are favorable to the judgment. State v. McQuary, 173 S.W.3d 663, 667 (Mo.App.2005). We disregard all unfavorable evidence and inferences. Id. Viewing the record in that light, as we must, the following evidence was presented at trial.

On April 2, 2010, Officer Jonathan Conklin (Officer Conklin) was on patrol in Springfield. At approximately midnight, Officer Conklin was in his patrol car at the intersection of Broadmoor and Glenstone. The speed limit on Glenstone was 40 miles per hour. He observed a 2005 Dodge Magnum heading north on Glenstone at approximately 90 miles per hour. Officer Conklin pursued the vehicle and initiated a traffic stop. There were two occupants inside the Magnum.

Defendant was the driver of the vehicle, and there was a male passenger in the right front seat.² When Defendant rolled down his window, Officer Conklin observed that Defendant's eyes were glassy, watery and bloodshot. He had the strong odor of intoxicants on his breath. Defendant said he had consumed one glass of beer with his dinner. Because Defendant had a weapon in his vehicle, Officer Conklin asked Defendant and his passenger to get out of the car. As Defendant did so, he swayed, staggered and stumbled a little bit.

Officer Conklin performed several standardized field sobriety tests because he suspected that Defendant might be impaired. Defendant failed the horizontal gaze nystagmus (HGN) test, the walk-and-turn test and the one-legged stand. Officer Conklin then asked Defendant to submit to a portable breath test (PBT). Defendant declined to do so.

Based upon the aforementioned observations of Defendant's appearance and performance on the field sobriety tests, Officer Conklin concluded that Defendant was most likely intoxicated. Officer Conklin placed Defendant under arrest and transported him to the Greene County Jail. After advising Defendant of his rights and the requirements of Missouri's implied consent law, Officer Conklin asked Defendant to take a breathalyzer test. He refused. While at the jail, Defendant stated that he had drunk two beers that night. He admitted that he was under the influence of alcohol.

The trial court found that the State had proven beyond a reasonable doubt that Defendant was guilty of driving while intoxicated. Defendant argues that the evidence was insufficient to support that finding. We disagree.

In a court-tried criminal case, the judge's findings have the force and effect of a jury verdict. Rule 27.01(b); State v. Crawford, 68 S.W.3d 406, 408 (Mo. banc 2002).³ Thus, we use the same standard of review in a court-tried and a jury-tried case. State v. Fraga, 189 S.W.3d 585, 586 (Mo.App.2006). “Appellate review is limited to determining whether there was sufficient evidence from which a reasonable trier of fact could have found each element of the offense to have been established beyond a reasonable doubt.” State v. McLarty, 327 S.W.3d 557, 562 (Mo.App.2010). The State may rely upon direct and circumstantial evidence to meet its burden of proof. See State v. Howell, 143 S.W.3d 747, 752 (Mo.App.2004). “In weighing the sufficiency of the evidence, this Court will accept as true all reasonable inferences drawn from the evidence and disregard all evidence and inferences to the contrary. This Court's function does not include reweighing the evidence.” State v. Chambers, 207 S.W.3d 194, 196 (Mo.App.2006) (citation omitted).

There are two elements of the offense of driving while intoxicated: (1) the defendant was driving or operating a motor vehicle; and (2) he or she did so while intoxicated. § 577.010; Chambers, 207 S.W.3d at 197;State v. Anderson, 107 S.W.3d 447, 450 (Mo.App.2003). Thus, the issue we must decide is whether the State presented sufficient evidence from which the trial court could have found that the foregoing two elements were established beyond a reasonable doubt. Chambers, 207 S.W.3d at 197;Anderson, 107 S.W.3d at 450. We answer that question in the affirmative.

The first element is easily satisfied. Officer Conklin observed the Magnum in operation on Glenstone, and Defendant admitted at trial that he had been driving that vehicle. Accordingly, there was sufficient evidence from which the trial court could have concluded beyond a reasonable doubt that Defendant was driving or operating a motor vehicle. There also was sufficient evidence from which the trial court could have concluded that Defendant did so while intoxicated. Viewed in the light most favorable to the judgment, there was evidence that: (1) Defendant drove his vehicle at approximately 90 miles per hour on a city street with a 40 mile-per-hour speed limit; (2) his eyes were glassy, watery and bloodshot; (3) he had the strong odor of intoxicants on his breath; (4) he swayed, staggered and stumbled upon exiting his vehicle; (5) he admitted that he had been drinking and was under the influence of alcohol; (6) he failed the HGN, walk-and-turn and one-legged stand field sobriety tests; (7) Officer Conklin opined that Defendant was most likely intoxicated at the time of his arrest; and (8) Defendant refused to take a breathalyzer test at the police station. This is sufficient to support Defendant's conviction for driving while intoxicated in violation of § 577.010. See, e.g., State v. Bradley, 57 S.W.3d 335, 341 (Mo.App.2001).

Defendant contends that his conviction should be reversed because it is contrary to weight of the evidence, which showed that his behavior could be explained for reasons other than intoxication. He cites civil suspension and revocation cases such as Hagler v. Director of Revenue, 223 S.W.3d 907 (Mo.App.2007), to support his assertion that this Court can reweigh the evidence in this criminal case. We disagree. An assertion that the judgment is against the weight of the evidence is cognizable in a civil action in which appellate review is conducted pursuant to the principles articulated in Rule 84.13(d) and Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). We defer to the trial court's credibility determinations, and we are bound by the lower court's factual findings unless we are firmly convinced that the judgment is wrong. See Houston v. Crider, 317 S.W.3d 178, 186 (Mo.App.2010). Rule 84.13(d) and Murphy, however, do not apply to this criminal case. See City of Kansas City v. McGary, 218 S.W.3d 449, 451 n. 1 (Mo.App.2006). An appellate court does not engage in a weight-of-the-evidence review in a criminal case. See State v. Miller, 499 S.W.2d 496, 499 (Mo.1973); State v. Goddard, 34 S.W.3d 436, 438 (Mo.App.2000); State v. Colson, 829 S.W.2d 669, 669 (Mo.App.1992). The applicable standard of review requires us to ignore all evidence and inferences that are contrary to the trial court's finding of guilt. Chambers, 207 S.W.3d at 196. Point III is denied.

Point II

In Defendant's second point, he contends the trial court erred by admitting Officer Conklin's testimony about the results of his field sobriety tests. The followingadditional facts are relevant to this point.

Officer Conklin testified that he had received training on how to detect the odor of alcoholic beverages and how to determine whether a driver was operating a vehicle while intoxicated. During Officer Conklin's three years as a police officer, he had made between 20 and 30 arrests for driving while intoxicated. On all of those occasions, he administered field sobriety tests to the drivers. Once Defendant exited his vehicle, Officer Conklin performed three standardized field sobriety tests on Defendant.

The HGN test was the first one administered to Defendant. Officer Conklin had received eight hours of classroom and practical instruction in how to properly perform this test. During that instruction process, Officer Conklin administered the HGN test to impaired and unimpaired volunteers. This taught Officer Conklin how to recognize nystagmus, which is an involuntary movement of the eyes. Because it was important to see Defendant's pupils and eyeballs, Officer Conklin had Defendant remove his eyeglasses. Officer Conklin initially observed that Defendant's pupils were of equal size, his eyes tracked equally and there was no resting nystagmus. Next, Officer Conklin instructed Defendant to keep his head still while the officer moved his finger in a series of motions. Defendant was told to follow the finger with his eyes only, and he said that he understood. Officer Conklin checked for lack of smooth pursuit by moving his finger to the right and left for several seconds. Defendant's eyes indicated a lot of nystagmus because his eyes were jumping back and forth. Officer Conklin then performed the maximum deviation portion of the test by holding his finger 12 to 15 inches from Defendant's eyes, slightly above the eye...