State v. Burns
| Decision Date | 28 February 2012 |
| Docket Number | No. WD 73348.,WD 73348. |
| Citation | 359 S.W.3d 558 |
| Parties | STATE of Missouri, Respondent, v. Jeffery S. BURNS, Appellant. |
| Court | Missouri Court of Appeals |
OPINION TEXT STARTS HERE
Allan D. Seidel, Trenton, MO, for appellant.
Shaun J. Mackelprang and Evan J. Buchheim, Jefferson City, MO, for respondent.
Before Division Four: LISA WHITE HARDWICK, Chief Judge, Presiding, JOSEPH M. ELLIS and ALOK AHUJA, Judges.
Following a bench trial, Jeffrey Burns was convicted of driving while intoxicated (DWI) and careless and imprudent driving. He challenges the sufficiency of the evidence to support the convictions and the lawfulness of the initial traffic stop. For reasons explained herein, we find no error and affirm the convictions.
At 10:15 pm on November 15, 2000, Brookfield police officer Thomas Bunnell was on routine patrol when he saw a pick-up truck pull forward in a parking lot and stop with its tires on the sidewalk. As the officer drove into the lot, the truck rolled forward over the sidewalk and curb and proceeded onto Main Street.
Officer Bunnell followed and stopped the truck. The driver, Jeffrey Burns, exited the truck and told the officer that he was looking for his friend. Officer Bunnell noticed that Burns' speech was slurred, his eyes were glassy, and he had a strong odor of intoxicants. Burns admitted he had been drinking.
Officer Bunnell asked Burns to perform several field sobriety tests. Burns failed the Horizontal Gaze Nystagmus (HGN) test, exhibiting four of six indicators of intoxication. He failed the one-leg stand test. During the walk-and-turn test, he failed to maintain a heel-to-toe stance, used his arms for balance, and stepped off the imaginary line. Officer Jason Stallo administered a portable breath test, which showed Burns' blood alcohol content (BAC) was above the legal limit of .08%.1 Based on the results of the sobriety tests, Officer Bunnell arrested Burns for DWI.
Burns was taken to the police station, where he refused to take a chemical breath test. Burns admitted he had been drinking beer from 8:00 pm to 10:30 pm. The State charged him with the class C felony of DWI as an aggravated alcohol offender and the class B misdemeanor of careless and imprudent operation of a motor vehicle.
At the bench trial, Burns admitted pleading guilty to several previous DWI offenses. He also admitted that he drove over the sidewalk and curb to get to Main Street from the parking lot. The court found him guilty on all charged offenses and imposed a $150 fine with suspended execution of a four-year prison sentence.
Burns brings three points on appeal. In Points I and III, he contends the evidence was insufficient to support his convictions for careless and imprudent driving and DWI. In Point II, Burns argues there was no basis for the traffic stop because he did not unlawfully operate his vehicle.
State v. Ollison, 236 S.W.3d 66, 68 (Mo.App.2007). Our role is limited to determining whether there was sufficient evidence from which the court, as the trier of fact, could have reasonably found Burns guilty beyond a reasonable doubt. Id. “We consider the evidence and inferences in a light most favorable to the verdict, ignoring all contrary evidence and inferences.” Id. Questions of law are reviewed de novo, without deference to the trial court's findings. State v. Morris, 197 S.W.3d 638, 640 (Mo.App.2006).
In Point I, Burns contends the evidence was insufficient to support his conviction for careless and imprudent driving pursuant to Section 304.012.1. 2 The statute provides:
Every person operating a motor vehicle on the roads and highways of this state shall drive the vehicle in a careful and prudent manner and at a rate of speed so as not to endanger the property of another or the life or limb of any person and shall exercise the highest degree of care.Burns argues the evidence failed to establish that he improperly operated his vehicle on a road or highway because the conduct for which he was charged occurred on a private parking lot.
Viewed in a light most favorable to the judgment, the record indicates that Burns's conduct was not limited to the confines of the parking lot. Officer Bunnell testified that Burns exited the parking lot and entered onto Main Street by driving over the sidewalk and jumping the curb. At least part of the conduct occurred while Burns was operating the vehicle onto a public street. The court also could have reasonably inferred that the sidewalk and curb abutting Main Street were part of the public thoroughfare. Although there was a nearby driveway to exit the parking lot, Burns admitted that he drove across the sidewalk and curb to gain access to Main Street. This admission offered additional evidence that Burns was not driving in a “careful or prudent manner” once he left the parking lot and traveled onto the public roadway.
Under previous versions of the careless driving statute containing language nearly identical to Section 304.012, our courts interpreted the law to apply to drivers entering a public roadway from a private street or lot. Ely v. Parsons, 399 S.W.2d 613, 617 (Mo.App.1966) (); Bush v. Kansas City Pub. Serv. Co., 350 Mo. 876, 169 S.W.2d 331, 334–35 (1943) (); Eoff v. Senter, 317 S.W.2d 666, 671 (Mo.App.1958) ().
Burns' reliance on State v. Barlett, 394 S.W.2d 434 (Mo.App.1965) () and State v. Thurston, 84 S.W.3d 536 (Mo.App.2002) is misplaced. In determining the sufficiency of charges in an information, Barlett recognized that the word “highways” is to be used in its popular rather than technical sense, and was intended to apply to all roads traveled by the public. 394 S.W.2d at 436. See also Covert v. Fisher, 151 S.W.3d 70 (Mo.App.2004) (). Thurston turned on the issue of whether the defendant was “operating” a motor vehicle and not on whether the conduct occurred on a highway. Here, Burns has admitted he was driving, so there was no issue as to whether he was operating the truck.
The evidence supports the circuit court's finding that Burns was guilty of careless and imprudent operation of a motor vehicle because he drove across a sidewalk and curb while entering upon a public street. Point I is denied.
In Point II, Burns contends the circuit court erred in convicting him of DWI because there...
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