State v. Keeth

• Decision Date: 30 August 2006
• Docket Number: No. 27419.,27419.
• Citation: 203 S.W.3d 718
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Rick L. KEETH, Defendant-Appellant.
• Court: Missouri Court of Appeals

203 S.W.3d 718

STATE of Missouri, Plaintiff-Respondent, v. Rick L. KEETH, Defendant-Appellant.

No. 27419.

Missouri Court of Appeals, Southern District, Division Two.

August 30, 2006.

Rehearing Denied September 19, 2006.

Application for Transfer Denied October 31, 2006.

Appellant appears pro se.

Laura Kriebs, Pulaski County Prosecuting Attorney, Waynesville, MO, for Respondent.

GARY W. LYNCH, Judge.

A jury found Appellant Rick L. Keeth ("Defendant") guilty of driving while intoxicated, in violation of Section 577.010,¹ and recommended imposition of a $500.00 fine. In accordance with the jury verdict, the trial court entered a judgment of conviction sentencing Defendant to pay the recommended fine. Defendant appeals this judgment claiming three points of error challenging: (1) the trial court's denial of his pretrial motion to dismiss the charge for insufficient evidence; (2) the trial court's denial of his motion to suppress evidence; and (3) the trial court requiring him to proceed to trial without counsel and without a knowing and voluntary waiver of Defendant's right to counsel as guaranteed by the Sixth and Fourteenth amendments of the United States Constitution. We affirm.

1) Factual Background

Viewed in the light most favorable to the verdict, the evidence adduced at trial was as follows:

On or about October 18, 2003, Defendant was driving home from a bar called the Crocker Tap when he was involved in a one-vehicle accident that left his vehicle in the ditch. When police officer Jason Vela ("Officer Vela") of the Crocker Police Department arrived at the scene, Defendant was the only occupant in the vehicle and was asleep with his head on the passenger-side seat and his feet on the driver-side seat. The vehicle's motor was not running. Officer Vela made several attempts to awaken Defendant. When Defendant finally woke up, he stumbled out of the vehicle almost falling to the ground; his eyes appeared bloodshot and red, and he had slurred speech. There also was a strong odor of an intoxicating beverage on Defendant.

Highway patrolman Donald Hedrick ("Patrolman Hedrick") arrived at the scene, approached Defendant, and asked him to have a seat in the patrol car, which he agreed to do. While in the patrol car, Defendant began to answer Patrolman Hedrick's questions about the accident. Defendant admitted to driving the vehicle at the time of the accident, which he said happened "a few minutes ago." He stated that he drove into the ditch to avoid a herd of deer in the roadway. Defendant was asked whether he had consumed any alcohol before the accident, and he admitted to drinking two or three beers an hour earlier. When asked if he had consumed any alcohol since the accident, Defendant answered that he had not.

Patrolman Hedrick then asked Defendant if he would take some field sobriety tests. Defendant agreed to do so. Defendant failed the three sobriety tests that were administered. Patrolman Hedrick then placed Defendant under arrest for operating a motor vehicle while intoxicated.

Defendant, representing himself pro se, was tried and convicted by a jury in Pulaski County, Missouri. He was sentenced to pay a $500.00 fine. Defendant appeals this judgment of conviction.

2) Trial Court's Denial of Defendant's Pretrial Motion to Dismiss

Defendant made an oral pretrial motion to dismiss ("Motion to Dismiss"), which was denied by the trial court. In his first point on appeal, Defendant claims the denial of his Motion to Dismiss was in error because there was no evidence from which to infer that Defendant operated the vehicle in an intoxicated condition. Defendant has continually asserted, in spite of his statements to Patrolman Hedrick to the contrary, that he became intoxicated after the accident occurred and claims the evidence does not support a charge of operating while intoxicated. Therefore, he claims, the trial court erred by not granting the Motion to Dismiss.

Defendant has provided this court with no record as to the substance of the Motion to Dismiss or what took place at the pretrial hearing on the motion. The only record Defendant has supplied concerning this point is the handwritten docket entry made by the trial court on February 18, 2004, which consists of: "Def appears. Makes oral motion to dismiss. Motion denied." There is no transcript of the proceeding from which this Court could glean the substance of the Motion to Dismiss or what took place at that hearing.

It is an appellant's duty to provide this court with all of the "evidence and proceedings necessary for determination of the questions presented". State v. Brumm, 163 S.W.3d 51, 56 (Mo.App.2005) (citing State v. Sumowski, 794 S.W.2d 643, 646 (Mo. banc 1990)); Rule 30.04. Failure to provide a sufficient record to permit determination of the issues requires that the point be denied. State v. Sullivan, 935 S.W.2d 747, 760 (Mo.App.1996). Failure to file a transcript of a pretrial hearing with this Court "results in a presumption that its contents were favorable to the judgment entered, and not favorable to the movant." Ludwig v. State, 771 S.W.2d 373, 374 (Mo.App.1989). Because Defendant presented no record of the substance of his Motion to Dismiss or of the hearing upon the motion, this Court can not assign any error to the denial of the Motion to Dismiss by the trial court.

Even assuming arguendo that there was a sufficient record of the pretrial hearing on the Motion to Dismiss and we gratuitously accept Defendant's unsupported assertion in his brief that his Motion to Dismiss challenged the sufficiency of the evidence against him, a motion to dismiss for insufficient evidence is not a proper, authorized pretrial motion. State ex rel. Peach v. Gaertner, 617 S.W.2d 101 (Mo. App.1981); Rule 24.04(b)(1). See also U.S. v. Brown, 481 F.2d 1035, 1041 (8th Cir. 1973),

stating that Federal Rule of Criminal Procedure 12 does not authorize pretrial motions to dismiss on the basis of a sufficiency-of-the-evidence defense (Federal Rule of Criminal Procedure 12(b)(2) is substantially similar to Missouri Rule 24.04(b)(1)). Rule 24.04(b)(1) states that "any defense or objection which is capable of determination without trial of the general issue may be raised before trial by motion." (Emphasis added). The only way to determine if sufficient evidence exists is for the State to present all of its evidence. The trial is the first opportunity afforded the State to present its evidence. Rule 27.02(g) (felonies); Rule 27.03 (misdemeanors). Sufficiency of the State's evidence is not capable of determination without a trial. Therefore, the trial court did not err in denying Defendant's Motion to Dismiss. At the time Defendant made his Motion to Dismiss and the trial court ruled upon it, both pretrial, there was simply no evidence before the trial court upon which a sufficiency determination could be made.

Rule 27.07² provides Defendant the appropriate vehicle to challenge the sufficiency of the evidence in the trial court by filing a Motion for Judgment of Acquittal at the close of the State's evidence, at the close of all evidence, and even after the jury is discharged. Defendant in the instant case chose not to avail himself of any of these opportunities.

Furthermore, the Defendant has not chosen to challenge on this appeal the sufficiency of the evidence presented at trial. His only allegation of error to this court is the sufficiency of the evidence in the context of the denial of his Motion to Dismiss.

However, this court may, in its discretion, address whether plain error exists regarding the sufficiency of the evidence to support the conviction. State v. Lubbers, 81 S.W.3d 156, 160 (Mo.App. 2002). The authority given to consider plain error is derived from Rule 30.20 which provides: "plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom." This plain error rule is to be used sparingly. State v. Roberts, 948 S.W.2d 577, 592 (Mo. banc.1997); State v. Goodine, 196 S.W.3d 607, 617-18 (Mo.App.2006). To meet the plain error standard, the appellant must demonstrate that a manifest injustice or a miscarriage of justice will occur if the error is not corrected. Roberts, 948 S.W.2d at 592. There is a two-step test a reviewing court employs to determine if there has been a plain error. Goodine, 196 S.W.3d at 617-18. First, the reviewing court must "determine whether the asserted claim of plain error facially establishes substantial grounds for believing a manifest injustice or miscarriage of justice has occurred." Id. (citing State v. Campbell, 122 S.W.3d 736, 740 (Mo.App.2004)). To be facially established, such error needs to be "evident, obvious, and clear." State v. Jackson, 186 S.W.3d 873, 883 (Mo.App. 2006). If an appellant cannot get past this first step, the reviewing court should not hear the claim. Goodine, 196 S.W.3d at 617-18 (citing Campbell, 122 S.W.3d at 740). If the reviewing court determines that the first step is satisfied, it will next look at the actual claim to determine "whether a manifest injustice or miscarriage of justice actually occurred." Id. The burden of proving such manifest injustice or miscarriage of justice is on the appellant. State v. Baxter, 2006 WL 176980, *1 (Mo.App.2006).

In reviewing a lack of sufficiency of the evidence claim:

[W]e must view the evidence in the light most favorable to the verdict. State v. Williams, 847 S.W.2d 111, 113 (Mo.App. 1992). We must give the state the benefit of all reasonable inferences. State v. Hoyt, 922 S.W.2d 443, 447 (Mo.App. 1996). We must also discard all contrary inferences that can be drawn from the evidence, unless "they are such a . . . logical extension of the evidence that a reasonable juror would be unable to disregard them." State v. Grim, 854 S.W.2d 403, 411 (Mo. banc 1993). If the evidence, viewed in that light, would support a

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