State v. Lopez

• Decision Date: 07 November 2017
• Docket Number: ED 104225
• Citation: 539 S.W.3d 74
• Parties: STATE of Missouri, Respondent, v. Francisco A. LOPEZ, Appellant.
• Court: Missouri Court of Appeals

539 S.W.3d 74

STATE of Missouri, Respondent,

v.Francisco A. LOPEZ, Appellant.

ED 104225

Missouri Court of Appeals, Eastern District, DIVISION THREE.

FILED: November 7, 2017 Motion for Rehearing and/or Transfer to Supreme Court Denied December 19, 2017

John Newsham, Philip H. Dennis, Shawn Goulet, 9939 Gravois Road, St. Louis, MO 63123, 230 S. Bemiston Avenue, Suite 410, St. Louis, MO, for appellant.

Catherine M. Hoag, Kelly L. King, 104 West Main, Suite E, Warrenton MO 63383, for respondent.

Gary M. Gaertner, Jr., Presiding Judge

Introduction

Francisco A. Lopez (Defendant) appeals from the trial court's entry of judgment and sentence after a jury found him guilty of driving while intoxicated (DWI), endangering the welfare of a child, and driving without a valid license. He argues on appeal that there was insufficient evidence supporting the DWI charge, and that the trial court plainly erred in permitting an instructional error and improperly applied the law. We affirm.

Background

The State charged Defendant with the class B misdemeanor of DWI (Count I), the class A misdemeanor of endangering the welfare of a child in the second degree (Count II), and the class A misdemeanor of driving without a valid license (Count 111), stemming from a one-vehicle accident on March 30, 2013.¹

At a 2016 trial, Sergeant Aaron Sutton with the Warren County Sheriff's Department testified to the following. Around 7:30 p.m. on March 30, 2013, he responded to a dispatch call reporting a vehicle accident, where he discovered that a vehicle had gone off the roadway and struck a tree. When Sergeant Sutton arrived at the scene, Defendant was outside the vehicle but identified himself as the driver and stated his five-year-old son, O.L., was in the vehicle with him at the time of the accident. Defendant produced a Mexican identification card, but he did not have a Missouri driver's license or an international driver's license. Sergeant Sutton testified that he believed a Mexican identification card was the same as a Mexican driver's license. However, he also testified without objection that Missouri does not recognize a Mexican identification card as a valid driver's license and that a Mexican identification card does not grant a person driving privileges in Missouri.

While speaking with Defendant, Sergeant Sutton noticed a moderate smell of alcohol on Defendant's breath, Defendant's speech was slightly slurred, he was swaying, and his eyes were bloodshot, watery, and glassy. Although Defendant initially denied drinking alcohol, Sergeant Sutton administered a partial horizontal gaze nystagmus (HGN) test—a field sobriety test—which showed a distinct nystagmus in both of Defendant's eyes, indicating impairment. On cross-examination, Sergeant Sutton agreed that a nystagmus could also indicate a head injury and Defendant had an abrasion on his forehead following the accident.

Sergeant Sutton took Defendant into custody on suspicion of DWI. At the police station, Sergeant Sutton read Defendant his rights and administered three additional field sobriety tests to Defendant, two of which indicated impairment. During booking, Defendant admitted that he had consumed six beers between 3:30 p.m. and the accident, which Defendant stated occurred around 7:20 p.m.

Defendant moved for a judgment of acquittal on Counts I and II at the close of the State's evidence. The trial court denied the motion and then submitted instructions to the jury without objection. The jury found Defendant guilty on all counts. The trial court sentenced Defendant to concurrent terms of 30 days in the county jail on Count I and 60 days in the county jail on Count II. On Count III, the trial court issued Defendant a fine. This appeal follows.

Discussion

Point I

In his first point on appeal, Defendant argues the trial court erred in overruling his motion for judgment of acquittal on Count I, the DWI charge, because there was insufficient evidence supporting his conviction. We disagree.

We review claims challenging the sufficiency of the evidence supporting a criminal conviction by determining whether the State presented sufficient evidence at trial from which a reasonable jury might have found the defendant guilty of all the essential elements of the crime beyond a reasonable doubt. State v. Gibbs, 306 S.W.3d 178, 181 (Mo. App. E.D. 2010). We accept as true all evidence and favorable inferences supporting the jury's verdict and disregard all contrary evidence and negative inferences. Id. We do not act as a super juror with veto power but will defer to the trier of fact. State v. Nash, 339 S.W.3d 500, 559 (Mo. banc 2011).

"A person commits the crime of 'driving while intoxicated' if he operates a motor vehicle while in an intoxicated or drugged condition." Section 577.010.1. RSMo. (Cum. Supp. 2011). To sustain a conviction, the State must prove through direct or circumstantial evidence not only that the defendant was intoxicated, but also that the defendant operated the vehicle while in this condition. State v. Davis, 217 S.W.3d 358, 360 (Mo. App. W.D. 2007) ; State v. Shoemaker, 448 S.W.3d 853, 856 (Mo. App. W.D. 2014). Circumstantial evidence is evidence that does not directly prove a fact but gives rise to a logical inference that the fact exits. State v. Putney, 473 S.W.3d 210, 216 (Mo. App. E.D. 2015). In considering the sufficiency of the evidence, we give circumstantial evidence the same weight as direct evidence, Shoemaker, 448 S.W.3d at 856.

Defendant argues on appeal both that the State did not prove what time the accident occurred and thus the evidence of intoxication at his arrest was too remote in time to establish his intoxication while driving; and also that the State's evidence was insufficient to prove intoxication. Neither challenge is persuasive.

First, the evidence was sufficient to prove a temporal connection between Defendant's operation of the vehicle and the observed intoxication. See Shoemaker, 448 S.W.3d at 856 (State must prove "temporal connection" between defendant's operation of vehicle and his observed intoxication). The established timeline is this: Defendant stated he crashed his vehicle at approximately 7:20 p.m.; Sergeant Sutton received a dispatch call at 7:30 p.m.; and Sergeant Sutton arrived at the scene approximately 10-15 minutes later by 7:45 p.m., whereupon he observed signs of intoxication in Defendant. On this evidence, there was approximately thirty minutes or less between when Defendant admitted he was driving and Sergeant Sutton's observations of intoxication, which is on its face sufficiently close in time to support an inference of intoxication while driving. See State v. Davis, 226 S.W.3d 927, 929 (Mo. App. W.D. 2007) (interval of less than thirty minutes between driving and observations of intoxication is close enough time frame to support conviction for driving while intoxicated).

Second, the State may prove intoxication through circumstantial evidence and the testimony of witnesses who had a reasonable opportunity to observe the defendant. Putney, 473 S.W.3d at 215-16. Here, Defendant admitted that he consumed six beers between 3:30 p.m. and the accident at 7:20 p.m. In talking with Defendant at the scene, Sergeant Sutton noticed a moderate smell of alcohol on Defendant's breath, and that Defendant's speech wasslurred, he was swaying, and his eyes were bloodshot, watery, and glassy. Sergeant Sutton conducted a partial field sobriety test at the scene, which indicated Defendant was intoxicated, and three additional field sobriety tests at the police station, two of which indicated intoxication. These facts were sufficient for a reasonable jury to find that Defendant was operating his vehicle while intoxicated, See State v. Burks, 373 S.W.3d 1, 4 (Mo. App. S.D. 2012) (admission of drinking, odor of alcohol, swaying, failing field sobriety tests, and glassy, watery, and bloodshot eyes were all sufficient evidence of intoxication). While Defendant presented at trial alternative explanations for Sergeant Sutton's observations, our review is merely to determine whether evidence existed from which a jury could form the conclusions it did. We do not reweigh the evidence or substitute our judgment for that of the jury's.

To the extent Defendant challenges for the first time on appeal the admission or weight of the HGN test result by claiming Sergeant Sutton improperly conducted the test or was not qualified to perform the test, we do not consider claims raised for the first time on appeal that challenge the admissibility of evidence for lack of foundation. See State v. Tisius, 362 S.W.3d 398, 407 (Mo. banc 2012) (noting, "[w]e will not review the contention of inadequate foundation raised for the first time on appeal") (citation omitted); State v. Honsinger, 386 S.W.3d 827, 829 (Mo. App. S.D. 2012), Moreover, the manner in which tests are conducted speaks to the weight of the evidence, which is an issue for the jury, not this Court, to decide. See State v. Evans, 517 S.W.3d 528, 540 (Mo. App. S.D. 2015). Regardless, where, as here, there is substantial properly admitted evidence supporting the jury's finding of intoxication, including multiple observed physical signs of intoxication, failed field sobriety tests, and an admission of drinking, any potential error in the admission of an HGN test is not reversible error. State v. Browning, 458 S.W.3d 418, 422 (Mo. App. W.D. 2015).

Because there was sufficient evidence supporting the conviction, the trial court did not err in entering judgment on the jury's guilty verdict on Count I. Point denied.

Point II

In his second point on appeal, Defendant argues the trial court plainly erred in submitting Instruction Number 7, the verdict-directing instruction on Count II, to the jury...