State v. Byron, WD 66807.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtPer Curiam
Citation222 S.W.3d 338
PartiesSTATE of Missouri, Respondent, v. D. BYRON, Appellant.
Docket NumberNo. WD 66807.,WD 66807.
Decision Date22 May 2007

Michelle Dee Carpenter, St. Joseph, MO, for appellant.

Kathleen Andrews Fisher, St. Joseph, MO, for respondent.



Appellant D. Byron1 appeals his jury conviction of driving while intoxicated. Byron claims the evidence was insufficient to support the jury's verdict and his motion for judgment of acquittal at the close of all the evidence should have been granted. For the following reasons, the judgment is reversed.


Byron only challenges the sufficiency of the evidence; he claims that the court should have granted his motion for acquittal. In reviewing this, we are limited to a determination of whether the evidence was sufficient for a reasonable jury to find him guilty beyond a reasonable doubt. State v. Rose, 86 S.W.3d 90, 105 (Mo.App.2002). We view the evidence and all reasonable inferences in the light most favorable to the verdict and disregard all contrary evidence. State v. Lynch, 131 S.W.3d 422, 424 (Mo.App.2004). We refrain from weighing the evidence or determining issues of credibility. Id. Viewed in the light most favorable to the verdict, the facts are as follows:

In the early morning hours of July 19, 2005, Officer Brian McClintick was dispatched to the intersection of 36th Street and Frederick Avenue in St. Joseph, Missouri. A 9-1-1 call had been placed around 1:45 a.m. reporting an accident in the area of 36th and Frederick. Officer McClintick had been through the intersection earlier that night at around 12:40 a.m. or 12:50 a.m. and had noticed no accident at that time.

Frederick Avenue was under construction. The officer found that a car had gone through several tall traffic cones marking off a construction area and had stopped in the construction area. Part of the passenger-side front wheel was hanging over the edge of the road because there was no shoulder and there was about a two-foot drop off where the shoulder should have been.

Joshua Rudisill and his fiancé had noticed the accident while driving through the intersection. Rudisill's fiancé called 9-1-1 while Rudisill went to investigate the vehicle. He found no one inside or near the vehicle. Officer McClintick responded to the 9-1-1 call and spoke with Rudisill at the scene of the accident.

Officer McClintick found a muddy footprint near the vehicle which did not match his or Rudisill's shoes. Officer McClintick retrieved the vehicle's registration information from the glove box and determined that the vehicle belonged to Byron.

Officer McClintick radioed in this information and requested that someone go to Byron's home to speak with him. Officer Aaron Beene responded to the call and went to Byron's home at around 2:00 a.m. After finishing his investigation at the accident scene, Officer McClintick joined Officer Beene at Byron's home. Both officers noticed that Byron was intoxicated when they arrived at his home. Both officers testified that Byron smelled of alcohol, had watery, bloodshot eyes, had slurred speech, and had trouble with his balance. Both officers also noticed that Byron's pant legs had mud on them and that a pair of muddy shoes were just inside the door of Byron's home.

When the officers asked Byron about the accident, he indicated that he knew nothing about it but said that his father had borrowed the car. The officers contacted Byron's father, Donald Sherman, who denied borrowing the car. Byron's father testified at trial that he had been awakened earlier that night by a call from Byron asking his father to pick him up because he had been in an accident. Byron's father testified that he picked Byron up at a Food 4 Less located on North Belt Highway approximately one-quarter mile from the accident site. He also said that he and Byron went to inspect the car after he picked Byron up, but concluded that it would have to be towed to be removed from its location. He indicated that at the time he picked Byron up through the time he took him home, Byron did not appear to be intoxicated. He said he was with his son about twenty minutes altogether. He was not asked either on direct or cross-examination whether Byron had purchased anything at the Food 4 Less or was carrying anything when he was picked up.

After speaking with Byron, Officer McClintick seized the muddy shoes and placed Byron under arrest for leaving the scene of a motor vehicle accident. He searched Byron and found a set of keys. The officers and Byron returned to the scene of the accident where they took a picture of the muddy footprint Officer McClintick had found with Officer Beene's camera. The footprint matched the tread in the muddy shoes they had retrieved from Byron's home. Officer McClintick testified that he tried the keys seized from Byron and they started the vehicle.

The officers transported Byron to the law enforcement center where Officer McClintick performed several field sobriety tests on Byron. Byron performed poorly on all sobriety tests. Officer McClintick then asked Byron to take a breathalyzer test and informed him that if he did not take the test his license would be immediately suspended. Byron refused, stating, "You didn't see me driving. You didn't catch me driving."

Byron was charged by information with driving while intoxicated, in violation of section 577.010 RSMo,2 and with careless and imprudent driving, in violation of section 304.012. After a jury trial, Byron was found guilty of driving while intoxicated and not guilty of careless and imprudent driving. Byron was sentenced to four months in jail with suspended execution of sentence; he was placed on probation for two years, ordered to do twenty-five hours of community service, and given fifteen days of shock time. He was ordered to go through the Substance Abuse Traffic Offender Program, attend one Alcoholics Anonymous meeting per week while on probation, and have an ignition interlock on his car at all times while on probation. Byron now appeals to this court.

Standard of Review

Our review is limited to a determination of whether there is sufficient evidence from which a reasonable juror could find the defendant guilty beyond a reasonable doubt. State v. Grim, 854 S.W.2d 403, 411 (Mo. banc 1993); see also State v. Grice, 914 S.W.2d 360, 365 (Mo.App.1995). "We accept as true all evidence favorable to the State, including all favorable inferences drawn from the evidence, and disregard all evidence and inferences to the contrary." Grice, 914 S.W.2d at 365.


Byron claims that the evidence was insufficient to establish that he was actually operating a motor vehicle while intoxicated. He claims that, at best, the evidence showed that he had been driving a motor vehicle and had wrecked his car, and that then, thirty minutes to an hour later, he was intoxicated. According to Byron, the evidence was insufficient to link his intoxication to the actual operation of the vehicle.

The case law on this issue is very fact-specific. Generally, when there is a significant interval of time between the time of an accident and the time that the defendant is observed to be intoxicated, the prosecution must offer specific evidence that the defendant was intoxicated at the time the defendant was driving. In State v. Dodson, 496 S.W.2d 272 (Mo.App.1973), for instance, the defendant was in a tavern until around 7:00 p.m. Id. at 272. Shortly before 9:00 p.m., he ran off the highway into a ditch. Id. An unidentified passerby came by the scene of the accident, assisted the defendant out of his car, and gave him a ride home. Id. Around 9:40 p.m., an officer for the State Highway Patrol came to the defendant's house to talk to him about the accident. Id. at 272-73. At that time, the officer noticed that the defendant showed signs of being intoxicated. Id. at 273. The officer also testified that the defendant denied being in any accident, denied driving his car that evening, and said he had not left home all evening. Id.

The court concluded that although the State may have shown that the defendant was intoxicated at 9:40 p.m., this did not tend to prove that the defendant was intoxicated forty-five minutes earlier when the accident apparently occurred. Id. The court stated that "the fact [that] a defendant was under the influence of [alcohol] at the time of his arrest, without a showing of more, will not support a finding that he was in that condition when driving a motor vehicle at some earlier time." Id. at 274 (quoting State v. Creighton, 201 N.W.2d 471, 473 (Iowa 1972)). See also State v. Block, 798 S.W.2d 213 (Mo.App.1990) (officers contacted defendant at his home two and one-half hours after the negligent driving; only other evidence was neighbor's comment that defendant's van smelled of alcohol at the time she spoke with the defendant while defendant was in his van).

In contrast, in State v. Johnston, 670 S.W.2d 552 (Mo.App.1984), a state trooper was dispatched to investigate an accident on a farm road that had occurred about 11:30 p.m.; the trooper reached the scene at about 11:58 p.m. Id. at 553. The vehicle was stuck in a ditch with the defendant sitting in the driver's seat. Id. When the officer approached the defendant, he noticed that the defendant appeared to be intoxicated. Id. at 554. There was an interval of twenty-eight minutes between the occurrence of the accident and the arrival of the officer. Id. at 556. There was no indication that the defendant had access to alcohol during that time interval. Id. The court in Johnston held that there was sufficient evidence to convict the defendant. Id. at 557. Johnston stands for the proposition that an interval of less than thirty minutes between the accident and the observation of the driver's lack of sobriety tends to show intoxication at the time of driving.3

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