State v. Kimes

• Decision Date: 15 August 2007
• Docket Number: No. 28138.,28138.
• Citation: 234 S.W.3d 584
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Joshua L. KIMES, Defendant-Appellant.
• Court: Missouri Court of Appeals

234 S.W.3d 584

STATE of Missouri, Plaintiff-Respondent, v. Joshua L. KIMES, Defendant-Appellant.

No. 28138.

Missouri Court of Appeals, Southern District, Division Two.

August 15, 2007.

Application for Transfer Denied September 6, 2007.

Application for Transfer Denied October 30, 2007.

John E. Kelly, Springfield, MO, for appellant.

R. Tiffany Yarnell, Assistant Prosecuting Attorney for Greene County, Springfield, MO, for respondent.

GARY W. LYNCH, Chief Judge.

Joshua L. Kimes ("Defendant") was found guilty following a court trial of committing the infraction of speeding, in violation of section 304.130.¹ The trial court sentenced him to serve ten days in jail, execution of which was suspended, and to complete a defensive driving course. Defendant appeals, contending the evidence was insufficient to find him guilty beyond a reasonable doubt of speeding. Defendant argues that the uncorroborated opinion testimony of a police officer that Defendant was speeding does not constitute sufficient evidence to convict him of speeding within the meaning of City of Kansas City v. Oxley, 579 S.W.2d 113 (Mo. banc 1979). We disagree with Defendant's bright line interpretation of the holding in Oxley, find that the opinion testimony of the officer in this case is sufficient evidence supporting Defendant's guilt, and affirm such finding. But, finding plain error in Defendant's ten-day jail sentence for an infraction, which may only be punished by a fine, we reverse the sentence and remand for re-sentencing.

(1) Factual and Procedural Background

Viewing the evidence in the light most favorable to the trial court's judgment, City of Springfield v. Waddell, 904 S.W.2d 499, 503 (Mo.App.1995), the following facts were adduced at trial:

On February 17, 2006, Officer Roger Lee of the Greene County Sheriff's Department was using a radar unit to track the speed of vehicles traveling through the 5000 block of South Farm Road 135 in Greene County, Missouri. Officer Lee first saw the Nissan Pathfinder driven by Defendant when it was about 100 yards away from him. At trial, the prosecutor asked Officer Lee:

Q.... [I]n your capacity as a law enforcement officer, have you observed vehicles in motion before?

A. Yes.

Q. Okay. And based on your training and experience, do you have an estimate of what the Pathfinder['s] speed was at that time?

A. Yeah. I estimated it to be about 35 miles an hour.

Q. And do you recall what the posted speed limit in that area was?

A. At that point, at that time of day, it was a 20 mile an hour school zone.

* * * *

Q. Okay. Did the Pathfinder's speed register on your radar unit?

A. Yes, it did.

Q. After it registered, what did you do[?]

A. I initiated a traffic stop of the vehicle and contacted the driver.

The prosecutor proceeded to question Officer Lee about the procedures he used that day to test the accuracy of the radar unit. Officer Lee testified he had tested the unit with tuning forks earlier that morning. When the prosecutor asked Officer Lee what speed the radar unit had registered for the Pathfinder, defense counsel objected on the ground that a proper foundation had not been laid as to the proper functioning of the equipment. That objection was sustained.

Defendant did not cross-examine Officer Lee, and the State rested. Defendant did not offer any evidence. The trial court found that Defendant was guilty of speeding beyond a reasonable doubt. That finding was based solely on Officer Lee's "testimony on observation" and not on radar evidence. Defendant was sentenced to serve ten days in jail, execution of which was suspended, and to complete a defensive driving course. This appeal followed.

(2) Standard of Review

In reviewing the sufficiency of the evidence to support the trial court's judgment, this court must determine whether substantial evidence exists from which a reasonable fact-finder might have found Defendant guilty beyond a reasonable doubt. State v. Grim, 854 S.W.2d 403, 405, 411 (Mo. banc 1993). "Substantial evidence is evidence from which the trier of fact could reasonably find the issue in harmony with the verdict." State v. Pittman, 167 S.W.3d 232, 234 (Mo.App. 2005). Because it is the fact-finder's duty to weigh the evidence and determine the credibility of witnesses, we accept as true all evidence favorable to the State and all reasonable inferences drawn therefrom, and we disregard all evidence and inferences to the contrary. Grim, 854 S.W.2d at 405, 411; Pittman, 167 S.W.3d at 234.

(3) Discussion

In his sole point relied on, Defendant contends the trial court erred in finding him guilty beyond a reasonable doubt of speeding, because there was insufficient evidence to support such a finding. Defendant argues that the uncorroborated opinion testimony of Officer Lee that Defendant was speeding does not constitute substantial evidence of speeding within the meaning of City of Kansas City v. Oxley, supra.² Defendant argues that Oxley held that an officer's visual estimate alone of a defendant's speed cannot constitute substantial evidence of speeding. However, the Supreme Court in Oxley did not hold that an officer's opinion testimony alone can never constitute substantial evidence of speeding; rather, the Court held that under the facts of that case the officer's uncorroborated opinion testimony alone that the defendant was exceeding the speed limit did not constitute substantial evidence of speeding. 579 S.W.2d at 116. See also City of Jackson v. Langford, 648 S.W.2d 927, 930 n. 3 (Mo.App.1983) ("Some writers have suggested that a speeding case can never be made with opinion evidence alone. We do not read Oxley that broadly."); State v. Cusumano, 819 S.W.2d 59, 60 n. 2 (Mo.App.1991) ("[W]e read Langford and Oxley to stand only for the proposition that the specific, uncorroborated opinion evidence involved in those cases did not rise to the level of substantial evidence."). Because the review of this issue involves a fact-specific analysis, we must begin by looking at the facts in Oxley.

A police officer who was using radar to check the speeds of vehicles traveling along a stretch of highway first spotted Oxley's vehicle when it was about one and a half city blocks away. Oxley, 579 S.W.2d at 114. The officer testified at the hearing that based on his experience as a police officer, he estimated Oxley's vehicle was traveling at about 45 miles per hour, which was ten miles over the posted speed limit of 35 miles per hour. Id. He checked Oxley's speed with his radar, then pulled him over, and issued him a ticket for "[d]riving 45 M.P.H. in 35[r]adar." Id. At the hearing, defense counsel objected to the admission of the radar evidence on the ground that the certificates of accuracy for the tuning forks were hearsay, and the objection was sustained. Id. The court found Oxley was guilty beyond a reasonable doubt of speeding, based solely on the officer's opinion evidence and not on the radar evidence. Id. On appeal, the Supreme Court reversed the trial court's finding, holding that under the facts of the case, the uncorroborated testimonial opinion of the officer as to Oxley's rate of speed was not substantial evidence upon which to support a finding of guilt. Id. at 116.

Here, Defendant asserts that "the facts in this case do not differ materially from the facts" in Oxley. Defendant points out that the defendants in each case were found guilty by the trial court based on the officers' visual estimate of speed. But Defendant fails to point out or discuss one distinguishing fact between this case and Oxley. In this case, Officer Lee's opinion was that Defendant was driving 35 m.p.h. in a 20 m.p.h. speed zone, whereas in Oxley, the officer's opinion was that the defendant was driving 45 m.p.h. in a 35 m.p.h. speed zone.³ The application of the principles discussed in Oxley to this factual difference leads us to conclude that the trial court's decision in this case is not contrary to the holding in Oxley.

In Oxley, the Supreme Court noted that "the variance between the estimated speed and the posted speed was not great." Id. at 116 (emphasis added). Oxley was estimated to be driving 45 m.p.h. in a 35 m.p.h. zone. In other words, the officer's opinion of the estimated speed exceeded the speed limit by only 29 percent of that limit.⁴ In discussing the sufficiency of this variance, the court examined and considered People v. Olsen, 22 N.Y.2d 230, 292 N.Y.S.2d 420, 239 N.E.2d 354 (1968), in which the officer's estimate that the defendant's speed was between 50 and 55 m.p.h. in a 30 m.p.h. zone was held sufficient to support the defendant's guilt. Id. That variance — 67 to 83 percent in excess of the speed limit — was characterized by the Oxley court as being "wide," and the court further observed that the Olsen "court gave the clear impression that such opinion evidence may well not be sufficient if the variance were less." Id. The language in Olsen which supported this clear impression was:

A police officer's estimate that a defendant was traveling at 50 to 55 miles per hour in a 30-mile-an-hour zone should be sufficient to sustain a conviction for speeding. On the other hand, his testimony, absent mechanical corroboration, that a vehicle was proceeding at 35 or 40 miles per hour in the same zone might for obvious reason be insufficient, since, it must be assumed that only a mechanical device could detect such a slight variance with accuracy sufficient to satisfy the burden necessary to sustain a conviction.

People v. Olsen, 22 N.Y.2d at 232, 239 N.E.2d at 355, 292 N.Y.S.2d at 422. (emphasis added). The Oxley court used the "slight variance" analysis in Olsen to distinguish Olsen from the facts before it and to buttress its conclusion that the officer's uncorroborated opinion of Oxley's speed, which was only 29 percent above the speed limit, "was not great," i.e., a slight variance, and therefore, was not sufficient substantial evidence upon which to support the...