State v. Johnson, s. 70787
| Decision Date | 07 October 1997 |
| Docket Number | Nos. 70787,70876,s. 70787 |
| Citation | 955 S.W.2d 786 |
| Parties | STATE of Missouri, Respondent, v. Johnnie Lee JOHNSON, Appellant. |
| Court | Missouri Court of Appeals |
Deborah B. Wafer, Dist. Defender, St. Louis, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.
Defendant, Johnnie Lee Johnson, was charged, jury tried, convicted and sentenced for driving while intoxicated, a class D felony, in violation of Section 577.010 RSMo 1994. The trial court sentenced defendant as a prior and persistent offender to serve a term of five years.
The sole issue on appeal is whether there is sufficient evidence to support a finding that defendant was intoxicated when operating a motor vehicle on Perryville Road in Cape Girardeau County on November 17, 1994. At trial, defendant informed the jury in his opening statement that at approximately 9:55 p.m., a pick-up truck forced him off the road, and he "promptly" called the police. The police received notice of the event at 9:55 p.m., and Sergeant Buddy Davis (Sgt.Davis) arrived at the scene at 10:06 p.m. Defendant argued in closing argument that he called the police and reported the event, and Sgt. Davis arrived shortly after his call. On appeal, he argues the evidence did not support a finding of when the event occurred, thus, his physical condition at that time is unknown. Defendant did not testify. He did not contest that he was operating his vehicle when it left the road. The issue to be decided is whether or not he was intoxicated when the event occurred. Sgt. Davis testified that he believed the accident was reported "as soon as it happened." Sgt. Davis described defendant's appearance when he first met him; defendant was staggering, his speech was slurred, he emitted a strong odor of an alcoholic beverage and his eyes were bloodshot. Defendant failed to pass several field sobriety tests. When defendant was booked at the police station, a thirty minute video tape was made. The tape was played for the jury. It contained an admission by defendant that he had been drinking. Generally, the state's evidence was sufficient to support a finding that defendant was guilty of the charged crime. Specifically, the evidence of his condition within minutes of the accident, supported an inference he was intoxicated while driving. See State v. Block, 798 S.W.2d 213, 215 (Mo.App.1990).
On appeal, defendant argues a position never presented to the trial court by objection or in the motion for new trial. His defense at trial was simply that he was not intoxicated. He now argues the state failed to make a submissible case because there was no evidence given as to when the accident occurred, and as to whether he did not drink intoxicating beverages after the accident and before the officer arrived. Thus, defendant argues the state failed to establish he was intoxicated when he was driving his car.
Defendant's sole issue on appeal fails. First, there is evidence to support a finding the accident occurred shortly before 9:55 p.m. when defendant "promptly" reported it to the police. Sgt. Davis arrived eleven minutes later and determined that defendant was then intoxicated. Thus, cases cited by defendant where the time of driving was not provable, State v. Liebhart, 707 S.W.2d 427, 429 (Mo.App.1986), or...
To continue reading
Request your trial
-
State v. Davis
...to support a conviction of driving while intoxicated. In commenting on Johnston, the Byron court said, "This proposition [as enunciated in Johnson,] is in accord with the generally recognized principle that it often takes thirty minutes or more for alcohol that imbibed to enter the bloodstr......