State v. Johnston, 13367

• Decision Date: 20 April 1984
• Docket Number: No. 13367,13367
• Citation: 670 S.W.2d 552
• Parties: STATE of Missouri, Respondent, v. Charles A. JOHNSTON, Appellant.
• Court: Missouri Court of Appeals

Page 552

670 S.W.2d 552

STATE of Missouri, Respondent, v. Charles A. JOHNSTON, Appellant.

No. 13367.

Missouri Court of Appeals,

Southern District,

Division One.

April 20, 1984.

Donald E. Bonacker, Bonacker & Reynolds, P.C., Springfield, for appellant.

Thomas E. Mountjoy, Pros. Atty., Greene County, Brent D. Green, Asst. Pros. Atty., Greene County, Springfield, for respondent.

CROW, Judge.

Appellant, tried by the court without a jury, was found guilty of driving while intoxicated, first offense, § 577.010.1-.010.2(1), RSMo 1978, and sentenced to 30 days' imprisonment in the county jail. Execution of the sentence was suspended and appellant was placed on probation, subject to certain conditions immaterial here.

The primary issue in this appeal is whether the evidence was sufficient to establish the corpus delicti of driving while intoxicated, thereby providing a basis for the admission in evidence of appellant's extrajudicial statement that he had driven the vehicle in question to the site where he was found in it by the investigating officer. Appellant also contends the evidence failed to prove beyond a reasonable doubt that he was intoxicated when he allegedly drove the vehicle there, in that the State's proof did not refute the possibility that he had become intoxicated only after arriving at that location.

Appellant did not testify. Evidence pertinent to the above issues was supplied by the testimony of Trooper Billy Chadwick of the Missouri State Highway Patrol. Chadwick related that about 11:45 p.m., June 15, 1982, he was dispatched to investigate a minor accident on a farm road in Greene County. Chadwick reached the scene at 11:58 p.m., and saw a Pontiac Firebird in a ditch, its front end near or against a chain link fence and its rear end near or on the road. He noticed 10 to 15 feet of damage on the fence, and assumed it had resulted from impact by the Firebird. There were 62 or 63 feet of "skid marks and tire marks" on the road, leading to the Firebird.

According to Chadwick, appellant (the only occupant of the Firebird) was seated behind the steering wheel, apparently trying to back the vehicle out of the ditch. Chadwick explained there was a pickup truck at the scene when he arrived, but he was uncertain whether the Firebird was connected to the pickup. He did recall the driver of the pickup saying either that he could pull the Firebird out, or that he had been trying to pull it out.

Chadwick approached the Firebird and asked appellant for identification. Appellant handed Chadwick his driver's license, then exited the Firebird. Chadwick noticed that appellant's breath "smelled of intoxicants," his eyes were bloodshot and his face flushed. Chadwick described appellant's clothing as "disarranged," and his speech as "confused."

A wrecker eventually appeared and towed the Firebird away. Chadwick was not sure whether the Firebird was extricated from the ditch by the wrecker or the pickup.

When Chadwick was asked whether appellant made any statements about drinking or driving, appellant's attorney objected on the ground that the corpus delicti had not been established, in that there was no evidence appellant was "operating a motor vehicle on a public highway." The trial court overruled the objection. Chadwick thereupon testified that appellant said he lost control of the car due to the wet road, and that he had drunk approximately three beers.

Appellant contends the trial court erred in allowing Chadwick to repeat appellant's statements, in that an accused's admission that he committed a crime is inadmissible in evidence unless the corpus delicti is established by independent evidence. Appellant asserts there was no independent evidence that he was driving the Firebird when it left the road and came to rest in the ditch.

It is, of course, well established in Missouri that unless there is independent proof, either circumstantial or direct, of the essential elements of the corpus delicti, extrajudicial admissions, statements or confessions of the accused are not admissible in evidence. State v. Summers, 362 S.W.2d 537, 542 (Mo.1962); State v. Cooper, 358 Mo. 269, 214 S.W.2d 19, 20 (1948). Cases examining the nature of corpus delicti explain that it consists of two elements: (1) proof, direct or circumstantial, that the specific loss or injury charged occurred, and (2) someone's criminality as the cause of the loss or injury. State v. Worley, 375 S.W.2d 44, 46 (Mo.1964); State v. Hawkins, 165 S.W.2d 644, 646[6, 7] (Mo.1942); State v. Summers, 506 S.W.2d 67, 71 (Mo.App.1974); State v. Celmars, 399 S.W.2d 145, 147 (Mo.App.1966). Proof of the corpus delicti need not include proof of the defendant's connection with the crime charged, State v. Wood, 596 S.W.2d 394, 402 (Mo. banc 1980), cert. denied 449 U.S. 876, 101 S.Ct. 221, 66 L.Ed.2d 98 (1980), that is, proof of the criminal agency of the defendant is not required as part of the corpus delicti before admitting his confession in evidence, Worley, 375 S.W.2d at 46.

These principles, though readily stated, are not easily applied in prosecutions for offenses arising out of the operation of motor vehicles.

In Kansas City v. Verstraete, 481 S.W.2d 615 (Mo.App.1972), the defendant was charged with violating a municipal ordinance prohibiting the operation of a motor vehicle by a person under the influence of alcohol. A police officer, dispatched to an accident scene, found the defendant (apparently intoxicated) walking some 50 to 75 feet from the location where his car was parked. He was in a crowd in the immediate vicinity where a bicycle had hit a pole. Declaring this evidence insufficient to establish the corpus delicti, Verstraete held the trial court erred in receiving into evidence the defendant's statements to the officer that he had been driving a car and did not think he struck anything.

Proof of the corpus delicti was deemed sufficient in State v. Easley, 515 S.W.2d 600 (Mo.App.1974), a prosecution for driving while intoxicated. There, a police officer found the defendant at the scene of a two-vehicle accident, standing two feet from one of the vehicles, a Buick. Neither the officer nor the driver of the other vehicle saw the defendant drive the Buick, but after the accident the Buick was driven to the curb and its keys were given to, and accepted by, the defendant. License plate records showed the Buick belonged to the defendant. Admission into evidence of the defendant's statements to the officer indicating that he (the defendant) was the driver of the Buick was upheld, and the conviction was affirmed.

Another case where the corpus delicti was proved is State v. Hunziker, 638 S.W.2d 333 (Mo.App.1982), a prosecution for careless and impudent driving. There, a Vega was struck by two different vehicles. The Vega's driver did not see the drivers of those vehicle, but after the impacts the defendant approached her and apologized for hitting her, saying he had fallen asleep. When the investigating officer arrived, he saw an unoccupied station wagon with a Vega taillight inside its grill. Over the defendant's objection, the officer was permitted to testify that the defendant admitted being the operator of the station wagon. This ruling was upheld on appeal, and the conviction was affirmed.

We have examined other cases with analogous facts, ¹ but none of them deal with the admissibility of a confession, therefore none hinge on whether the corpus delicti was established. Accordingly, we need not discuss them here.

Turning to the evidence in appellant's case, we note that the fence damage and tire marks on the pavement corresponded to the position of the Firebird when Chadwick first saw it. In addition, the Firebird itself was damaged, and was stuck in the ditch. We find this evidence sufficient to establish that someone was driving the Firebird on the road, and that the Firebird left the road and struck the fence, coming to rest in the ditch.

Furthermore, it is readily inferable that the mishap took place within 30 minutes of the time Chadwick came on the scene. He was asked on cross-examination what time he estimated the accident occurred. He replied, "Approximately 11:30." There was no evidence to the contrary.

Accordingly, we hold there is independent evidence to support a finding that someone was driving the Firebird on the road at approximately 11:30 p.m., June 15, 1982, and that the driver lost control, applied the brakes, and skidded off the pavement at the point shown by the tire marks.

Besides this, and although inessential to the admissibility of appellant's statements, we note there is independent evidence pointing to appellant as the driver. When Chadwick arrived, appellant was in the Firebird, alone, apparently trying to get it out of the ditch. There is no evidence that anyone else exercised dominion over the Firebird, or asserted any claim to it, prior to the time it was towed away. We are also mindful that, according to Chadwick, the pavement was wet. This corroborates appellant's statement that he lost control of the car due to the wet road.

On this evidence, we must reject appellant's contention that the record fails to establish the corpus delicti. The evidence in appellant's case is similar to Easley and Hunziker in the respect that in those cases, as here, the vehicles in question had been involved in accidents. The evidence in appellant's case is stronger than those cases, however, in that here, appellant was in the Firebird, evidently trying to get it out of the ditch when Chadwick arrived.

We hold that the corpus delicti was established at appellant's trial by independent evidence. Consequently, the trial court ruled correctly in receiving appellant's extrajudicial statements into evidence.

Regarding appellant's second point, we observe that Chadwick administered a "breathalyzer" test to appellant at 1:00 a.m., June 16. The instrument showed the amount of alcohol in appellant's blood to be fifteen-hundredths...