State v. Easley
| Decision Date | 29 October 1974 |
| Docket Number | No. 35684,35684 |
| Citation | 515 S.W.2d 600 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Zelmar L. EASLEY, Defendant-Appellant. . Louis District, Division Three |
| Court | Missouri Court of Appeals |
Marglous & Marglous, Ray B. Marglous, Clayton, for defendant-appellant.
Thomas W. Shannon, Pros. Atty., Kenneth S. Kochman, Asst. Pros. Atty., St. Louis, for plaintiff-respondent.
This is an appeal from a judgment of conviction entered by the Judge of the St. Louis Court of Criminal Correction in a court-tried case, finding the defendant, Zelmar Easley, guilty of driving a motor vehicle while intoxicated. § 564.440, RSMo 1969, V.A.M.S.
Defendant challenges the conviction by posing for our consideration five allegations of error. We find none of the allegations to be convincing, and, accordingly affirm the judgment.
Defendant's first claim as to the sufficiency of the evidence to support the judgment causes us to review the evidence. On March 25, 1973, at 1:20 A.M., an accident occurred between two motor vehicles at the intersection of Blair and Hebert Streets in the City of St. Louis, Missouri. Officer Michael Janz, a member of the St. Louis Police Department, testified that when he arrived at the scene he observed two vehicles--one, facing south on Blair, a north-south street, the other, a 1966 Buick, parked in the middle of the intersection. In the vehicle that faced south a Miss Lula Sneed was seated in the driver's seat. Defendant was standing in the middle of the intersection about ten to fifteen feet from the Sneed automobile and about two feet from the Buick automobile. Further testimony from Officer Janz showed that the Sneed automobile was damaged on the left side and front and the 1966 Buick was damaged on the right side and right front. Officer Janz testified that in answer to his question, 'What happened?' defendant said that he had been traveling west on Hebert at Blair Street and he thought that the other automobile had run the stop sign and had run into him. Officer Janz observed that defendant swayed, his speech slurred, and that he smelled of alcohol. After Officer Janz placed defendant under arrest and explained to him his rights, defendant consented to take a breath alcohol test. The test results showed the blood alcohol content to be .23%, and the defendant stipulated to the results. Also, after being qualified as an expert, Officer Janz, based upon his observation, stated that, in his opinion, defendant was intoxicated. Neither Miss Sneed nor Officer Janz saw defendant operate the 1966 Buick, but after the accident defendant's car was driven to the curb and the keys were given to and accepted by him.
Over objection, the prosecution was permitted to and did put before the court, pertaining to the ownership of the 1966 Buick, testimony that a police check on the license plate of the Buick brought back a reply that the questioned vehicled belonged to the defendant.
Miss Lula Sneed testified that on the occasion in question after making a stop, she drove into the intersection and her vehicle was struck by a light colored car. She said that she was rendered temporarily unconscious and when she awoke she saw Officer Janz and the defendant standing next to her automobile.
In evaluating the sufficiency of the evidence to support a verdict, we consider as true all substantial evidence favorable to the verdict and disregard all unfavorable evidence. State v. Chester, 445 S.W.2d 393 (Mo.App.1969). Defendant argues that his admissions to the police officer and the hearsay testimony about the ownership of the Buick automobile are the only pieces of evidence presented by the state to prove his guilt.
Beyond a reasonable doubt the state, to establish a defendant's guilt under § 564.440, RSMo 1969, V.A.M.S., must prove (1) that the person charged drove or operated a motor vehicle, and (2) at the time he did so he was intoxicated. Inasmuch as there is no controversy about defendant's intoxication the question is whether there was substantial evidence to show that on March 25, 1973, at 1:20 A.M., defendant drove and operated the 1966 Buick automobile. Here two witnesses established that an accident occurred and that defendant was present; he accepted the keys to the car after the vehicle was driven to the curb and he admitted driving on Blair Street just before the accident. Consequently, we hold that at least a prima facie case was made for the court's consideration and, therefore, rule this claim against defendant.
As we understand defendant's second claim it concerns itself with the order of proof. Stated another way, he claims error because the court permitted his admission to Officer Janz to come into evidence without first hearing...
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