State v. Hoy

• Decision Date: 19 April 2007
• Docket Number: No. 27677.,27677.
• Citation: 219 S.W.3d 796
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Robert F. HOY, Defendant-Appellant.
• Court: Missouri Court of Appeals

219 S.W.3d 796

STATE of Missouri, Plaintiff-Respondent, v. Robert F. HOY, Defendant-Appellant.

No. 27677.

Missouri Court of Appeals, Southern District, Division Two.

April 19, 2007.

James R. Schumacher, Springfield, MO, for Appellant.

Casey Clark, Assistant Prosecuting Attorney, Springfield, MO, for Respondent.

GARY W. LYNCH, Judge.

Robert F. Hoy ("Defendant") appeals his conviction for the class B misdemeanor of driving while intoxicated, in violation of § 577.010.¹ On appeal, he challenges the sufficiency of the evidence supporting his conviction and the admission of expert testimony of the results of a drug recognition evaluation. We affirm.

1) Factual Background

Defendant was arrested for driving while intoxicated after he was involved in a motor vehicle accident, where he drove his semi-tractor into the rear of another vehicle. The witnesses the State called against him were: (1) Charles Smith, who observed defendant's driving immediately before the accident; (2) Donna Jansen, the driver of the other vehicle involved in the accident; (3) Officer Wayne Woods of the Springfield Police Department, who responded to the accident scene; (4) Corporal Cort Stuart of the Missouri Highway Patrol, who conducted a drug recognition evaluation on Defendant; and (5) Martin Lindenbusch, the Supervisor of Toxicology at the Missouri Highway Patrol Crime Lab in Jefferson City.

On his way to work around 8:00 to 8:30 a.m. on February 25, 2004, Smith first noticed Defendant's semi-tractor, which did not have a trailer attached, when it was blocking two different directions of traffic at an intersection on West Bypass, in Springfield. The tractor was in the middle of the intersection for thirty seconds to a minute. Defendant finally turned onto West Bypass in front of Smith and proceeded in the same direction as Smith was traveling. Defendant was traveling in the right southbound lane at a speed much slower than surrounding traffic so that cars behind him had to dodge around him. Smith, traveling in the left southbound lane, quickly overtook Defendant, and just as he was about to pass by Defendant, the tractor driven by Defendant, without signaling or giving any indication it was going to change lanes, cut in front of Smith into the left southbound lane. Defendant then proceeded to move, again without signaling, into the left-turn lane, but came to a complete stop partially in the left-turn lane and partially blocking traffic in the left southbound lane. When he was cut off by Defendant, Smith had to brake and move to the right southbound lane. As he passed by Defendant's stopped tractor, Smith observed that it was in contact with the rear of the vehicle in front of it in the left-turn lane.

Jansen was in the left-hand turn lane waiting for the light to change to green when Defendant drove his semi-tractor into the rear of her vehicle. After the initial impact, Jansen put her vehicle in park and was exiting her vehicle when, without warning, the semi-tractor "lurched" forward, pushing her vehicle forward and almost knocking her off her feet. As Jansen approached Defendant, she observed that he "was very unkempt looking" and was "acting just not too ... rational[.]" After the police arrived, Jansen observed that Defendant was not able to walk a straight line and that he was "walking really strange ... [s]tepping really high."

Officer Woods, upon his arrival at the accident scene, noted that Defendant appeared confused, paused while answering questions, had slurred speech, leaned when he walked as if off balance, had difficulty removing his license from his wallet, and had staring and constricted eyes. Officer Woods then conducted several field sobriety tests on Defendant at the scene of the accident to determine if Defendant was capable of operating a vehicle.

Defendant could not follow the instructions necessary to complete the horizontal gaze nystagmus (HGN) test, but Officer Woods detected two clues during the test before it was aborted. According to Officer Woods, a score of four clues indicates a 77% chance of a blood-alcohol content (BAC) above 0.10%.

Next, during the walk-and-turn test, Officer Woods detected five of the test's eight possible clues. Officer Woods also testified that a score of two clues indicates a 68% chance of a BAC above 0.10%.

Defendant then performed the one-leg-stand test. Defendant scored four of the possible five clues on the one-leg-stand test. As related by Officer Woods, a score of two clues on this test indicates a 65% chance of BAC above 0.10%. Officer Woods came to the conclusion that Defendant was impaired, and he arrested Defendant for driving while intoxicated.

Officer Woods never smelled any odor on Defendant's breath and came to the additional conclusion that Defendant's impairment was due to drugs. Defendant was given a breathalyzer exam which showed a BAC of 0.00%. Officer Woods then turned Defendant over to Corporal Stuart of the Missouri Highway Patrol for a drug recognition examination ("DRE").

Corporal Stuart is certified by the International Association of Chiefs of Police as a drug recognition expert.² He has received seventy-two hours of specialized training in the detection of impaired drivers where impairment is caused by a drug other than alcohol. That training teaches one to detect and distinguish between seven different drug categories that cause impairment. The DRE is a standardized, twelve-step evaluation process used to evaluate whether an individual is impaired by a drug other than alcohol. Corporal Stuart conducted the DRE on Defendant and concluded, from its results, that Defendant was under the influence of a narcotic analgesic and a central nervous system depressant. Corporal Stuart also concluded that Defendant was unable to safely operate a vehicle. At some point during the examination, Defendant told Stuart that he had taken a sleeping pill the night before and pain medications the morning of the accident.

Defendant then provided a urine sample that was tested for the presence of drugs. Martin Lindenbusch, the Supervisor of Toxicology at the Missouri Highway Patrol, testified that results of his testing showed that Defendant's urine specimen contained hydrocodone, an analgesic drug, and zolpidem, a sleeping pill classified as a central nervous system depressant. He also testified as to the effects and symptoms of hydrocodone and central nervous system depressants on the body. He further testified that both can cause intoxication. The parties stipulated on the record that Lindenbusch was "not going to be able to testify as to the amount of drug begin [sic] over a certain threshold and being able to impair [Defendant]."

2) Procedural Background

Defendant was charged with three offenses: Count I charged Defendant with driving while intoxicated by operating "a motor vehicle while under the influence of a drug or drugs"; Count II charged Defendant with failure to maintain financial responsibility by operating a motor vehicle without insurance; and Count III charged Defendant with careless and imprudent driving. After a court trial, Defendant was convicted of driving while intoxicated and careless and imprudent driving, but acquitted on failure to maintain financial responsibility. Defendant appeals his conviction for driving while intoxicated and raises two points: (1) the conviction was not supported by sufficient evidence; and (2) the trial court erred in its admission of the DRE results.

3) Sufficiency of the Evidence

In his first point, Defendant challenges the sufficiency of the evidence for the trial court to find the defendant guilty beyond a reasonable doubt of operating a motor vehicle while intoxicated on a drug or drugs. Defendant does not challenge that he was operating a motor vehicle at the time of the alleged offense, but rather, he challenges only the sufficiency of the evidence supporting that he was doing so in an intoxicated condition. Because Defendant's blood-alcohol content was zero on the chemical test of his urine specimen, we must address Defendant's sufficiency-of-the-evidence claim within the framework of § 577.037. State v. Falcone, 918 S.W.2d 288, 292 (Mo.App.1996). That statute provides, in pertinent part:

5. Any charge alleging a violation of section 577.010 ... shall be dismissed with prejudice if a chemical analysis of the defendant's ... urine ... demonstrate [sic] that there was less than eight-hundredths of one percent of alcohol in the defendant's blood unless one or more of the following considerations cause the court to find a dismissal unwarranted:

* * * *

(2) There is evidence that the defendant was under the influence of a controlled substance, or drug, or a combination of either or both with or without alcohol; or

(3) There is substantial evidence of intoxication from physical observations of witnesses or admissions of the defendant.

Section 577.037.5. By the explicit terms of this statute, Defendant is exonerated "of driving while intoxicated unless the requirements of either subdivision 2 or subdivision 3 of subsection 5 are met." Falcone, 918 S.W.2d at 292.

A) Standard of Review

In Missouri, the findings of a court-tried case have the force and effect of a jury verdict. State v. Booyer, 87 S.W.3d 926, 928 (Mo.App.2002); State v. Northern, 472 S.W.2d 409, 411 (Mo.1971). Review is the same as if a jury had returned a verdict. Rule 27.01(b); State v. Giffin, 640 S.W.2d 128, 130 (Mo.1982). In determining the sufficiency of the evidence to support a conviction, this Court accepts as true all evidence that is favorable to the State and any favorable inferences that can be drawn from such evidence. State v. Owen, 869 S.W.2d 310, 311 (Mo.App.1994). Any contrary evidence or inferences are disregarded. Id. When a challenge alleges insufficiency of the evidence in a criminal case, our review is limited to a determination as to whether there is sufficient evidence from which the trial court might have...