State v. Gittemeier, No. ED 98399.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtROBERT M. CLAYTON III
Citation400 S.W.3d 838
PartiesSTATE of Missouri, Respondent, v. Paul Scott GITTEMEIER, Appellant.
Docket NumberNo. ED 98399.
Decision Date18 June 2013

400 S.W.3d 838

STATE of Missouri, Respondent,
Paul Scott GITTEMEIER, Appellant.

No. ED 98399.

Missouri Court of Appeals,
Eastern District,
Division Five.

May 14, 2013.
Motion for Rehearing and/or Transfer to Supreme Court Denied June 18, 2013.

[400 S.W.3d 840]

N. Scott Rosenblum, Erin R. Griebel, Clayton, MO, for Appellant.

Chris Koster, Attorney General, Richard A. Starnes, Asst. Atty. Gen., Jefferson City, MO, for Respondent.


Paul Gittemeier (“Gittemeier”) appeals from the judgment entered upon a verdict convicting him of driving while intoxicated and trespass in the first degree. He asserts the evidence was insufficient as a matter of law to prove intoxication, he was not operating a motor vehicle on publicly maintained lands or roads, and the trial court improperly granted the State's motion in limine regarding Gittemeier's expert witness. We affirm.


Gittemeier was charged as a prior and persistent offender with the class B felony of driving while intoxicated (“DWI”) as a chronic offender 1 and the class B misdemeanor of trespass in the first degree.

[400 S.W.3d 841]

The evidence presented at trial revealed the following. At approximately 5:45 a.m. on July 31, 2010, Gittemeier's neighbor, James Preis, witnessed Gittemeier riding his ATV on Preis's lawn while holding what appeared to be a bottle of vodka. Preis told Gittemeier to leave and called the police. Gittemeier drove away and then returned, when he proceeded to tip over the ATV following an apparent attempt to do “donuts” on the lawn. Preis tackled Gittemeier with the intent to hold him until police came. He testified Gittemeier smelled of alcohol, was incoherent and slurring, discussed random topics, and started to doze off. After fifteen minutes, Preis released Gittemeier, who walked home.

Sheriff's Deputy Kurt Hey arrived around 6:30 a.m., and made contact with Gittemeier at his residence. Deputy Hey testified that when he interviewed Gittemeier at around 6:45 a.m., Gittemeier had bloodshot eyes, was mumbling, smelled of intoxicants, and was swaying and stumbling. Gittemeier admitted to drinking “a few” drinks and stated he had not consumed any alcohol after the incident with Preis. Deputy Hey conducted several standardized field sobriety tests, which Gittemeier failed. Deputy Hey concluded Gittemeier was intoxicated and placed him under arrest at 7:40 a.m. After he was arrested, Gittemeier again stated he had not consumed any alcohol after the incident. Gittemeier refused a breath test, and, after a warrant was obtained, a paramedic conducted two blood draws at 11:36 a.m. and 12:06 p.m. The 11:36 a.m. blood sample revealed Gittemeier had a blood alcohol content (“BAC”) of 0.170%, and the 12:06 p.m. sample revealed a BAC of 0.167%.

The jury returned a verdict of guilty on both counts. The trial court sentenced Gittemeier as a prior and persistent offender and a chronic DWI offender to concurrent sentences of fifteen years' imprisonment in the Missouri Department of Corrections for the DWI and 90 days in the county jail for first-degree trespassing. This appeal follows.

A. Evidence of Intoxication

In his first point on appeal, Gittemeier argues the trial court erred in denying his motion for judgment notwithstanding the verdict or for a new trial, because there was insufficient evidence to prove he was intoxicated at the time he operated the ATV. We disagree.

We review challenges to sufficiency of the evidence supporting a criminal conviction for whether sufficient evidence was presented at trial from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt of all the essential elements of the crime. State v. Gibbs, 306 S.W.3d 178, 181 (Mo.App. E.D.2010). We accept as true all evidence supporting the jury's verdict, including all favorable inferences therefrom, and disregard all contrary evidence and negative inferences. Id.

“A person commits the crime of ‘driving while intoxicated’ if he operates a motor vehicle while in an intoxicated or drugged condition.” Section 577.010.1 RSMo (Cum.Supp.2010). “An intoxicated condition” is defined as being “under the influence of alcohol.” Section 577.001.3 RSMo (Cum.Supp.2005). Even in the absence of chemical tests establishing a defendant's BAC, the State may meet its burden to show intoxication through testimony of an alleged offender's physical manifestations of intoxication, such as bloodshot eyes and slurred speech, and through a defendant's difficulty performing the field sobriety tests.

[400 S.W.3d 842]

State v. Knifong, 53 S.W.3d 188, 193–94 (Mo.App. W.D.2001); see also State v. Scholl, 114 S.W.3d 304, 307 (Mo.App. E.D.2003).

Gittemeier argues there was insufficient evidence to prove he was intoxicated at the time he was operating the ATV at 5:45 a.m. In support of his argument, he relies on State v. Byron, 222 S.W.3d 338 (Mo.App. W.D.2007), which held, “[g]enerally, 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.” Id. at 341.

In Byron, the defendant was involved in a single car accident with no witnesses sometime between 12:40 a.m. and 1:45 a.m. Id. at 339. He left the scene and was interviewed by police at his home at around 2:00 a.m. Id. During the interview, police noticed Byron appeared intoxicated and he performed poorly on several field sobriety tests. Id. at 340. Byron was charged with DWI. Id. At trial, the State presented evidence of Byron's intoxication at the time of his interview and arrest. Id. at 342. However, Byron's father testified he had picked up Byron shortly after the accident, at which time he “did not appear to be intoxicated.” Id. A jury found Byron guilty. Id. at 340. The Western District Court of Appeals reversed the conviction, finding there was insufficient evidence to establish Byron drove while intoxicated. Id. at 343–44. The court noted that had Byron been found at the scene of the accident soon after it occurred and exhibited the same level of intoxication, there would have been sufficient evidence to support the conviction. Id. at 343.

Here, in contrast to Byron, although there was a timelag between the incident at 5:45 a.m. and when Deputy Hey interviewed Gittemeier at 6:45 a.m., the State presented sufficient evidence of Gittemeier's intoxication at the time he operated the vehicle. Preis testified Gittemeier was holding a bottle of alcohol while driving the ATV. Further, Preis testified Gittemeier smelled of alcohol while Preis attempted to restrain him; Gittemeier was incoherent and slurring; he rambled about several topics, such as his divorce, his father, and Preis's house; and he started to doze off. This evidence distinguishes the present case from Byron, where there was no evidence presented that the defendant had been drinking while operating a vehicle, and the only testimony concerning his condition immediately after the accident was from the defendant's father, who testified that the defendant “did not appear to be intoxicated.” Id. at 340, 342.

Gittemeier, however, challenges Pries's testimony as inconclusive proof of intoxication and argues Preis's testimony was not credible because it was motivated by his dislike of Gittemeier. The State may meet its burden of proof solely through the testimony of any witness who had reasonable opportunity to observe the defendant's physical condition. Scholl, 114 S.W.3d at 307;State v. Rose, 86 S.W.3d 90, 105 (Mo.App. W.D.2002). Preis's testimony of Gittemeier's condition immediately after the incident tends to show he was intoxicated at the time of driving. Scholl, 114 S.W.3d at 307 (unsteadiness on feet, odor of intoxicants and slurred speech support finding of intoxication).

As to Gittemeier's claim that Preis's testimony was biased and thus not credible, we defer to the jury's...

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