State v. Lynch

• Citation: 131 S.W.3d 422
• Decision Date: 13 April 2004
• Docket Number: No. WD 62085.,WD 62085.
• Parties: STATE of Missouri, Respondent, v. Shawn P. LYNCH, Appellant.
• Court: Court of Appeal of Missouri (US)

131 S.W.3d 422

STATE of Missouri, Respondent, v. Shawn P. LYNCH, Appellant.

No. WD 62085.

Missouri Court of Appeals, Western District.

April 13, 2004.

Jeremiah W. (Jay) Nixon, Atty. Gen., Dora A. Fichter and Leslie E. McNamara, Assistant Attorneys General, Jefferson City, MO, for Respondent.

J. Armin Rust, Lexington, MO, for Appellant.

Before VICTOR C. HOWARD, P.J., and LOWENSTEIN and SMART, JJ.

VICTOR C. HOWARD, Presiding Judge.

A jury convicted Shawn Lynch (Appellant) of driving while intoxicated (DWI) in violation of section 577.010,¹ and driving while his license was revoked in violation of section 302.321. On appeal, he challenges the sufficiency of the evidence to support the DWI conviction. He also challenges the propriety of his sentence and the prosecutor's closing argument. For the reasons set forth below, we affirm the judgment.

Sufficiency of the Evidence

Appellant's first two points on appeal challenge the sufficiency of the evidence to support his DWI conviction.² In reviewing the sufficiency of the evidence to convict Appellant of DWI, we must accept as true all evidence and inferences favorable to the verdict and disregard all evidence and inferences to the contrary. State v. Scholl, 114 S.W.3d 304, 307 (Mo.App. E.D.2003). We will not make determinations concerning credibility or weight to be afforded the evidence as those issues were for the jury, not this court, to determine. Id. Viewed in accordance with our standard of review, the evidence presented at trial established the following:

At approximately 6:45 a.m. on January 12, 2002, Officer Ashley Paige of the Higginsville Police Department received a report of an injured person at the Williams Travel Center (the truck stop) at the junction of I-70 and Highway 13 in Lafayette County, Missouri. When Officer Paige arrived at the truck stop, he found Appellant lying in a booth in the restaurant section. Appellant's left arm was bleeding and his ankle appeared to be injured. When Officer Paige asked Appellant what had happened, Appellant told him he was driving home and wrecked his car. When asked for identification, Appellant gave the officer a Missouri identification card.

Trooper Shane Green with the Missouri Highway Patrol arrived shortly thereafter to take over the investigation. Trooper Green noticed Appellant's injuries to his arm and ankle. He also noticed that Appellant's eyes were watery and bloodshot, and "he had a strong odor of intoxicants about his person." Appellant told Trooper Green that he was a passenger in his Camaro with three other people that had been involved in an accident on North Outer Road, which runs parallel to I-70. When Trooper Green asked who and where the other people were, Appellant told him that he did not know their names or where they were; he said they left the scene of the accident in the opposite direction of him. Appellant then told Trooper Green that he was returning to his home in Corder, Missouri, from his girlfriend's house, where he had been drinking. When Trooper Green asked Appellant if he had anything to drink since the accident, Appellant responded that he had not. An ambulance arrived at the truck stop and evaluated Appellant's injuries, but he refused any further medical treatment. Appellant then agreed to go with Trooper Green to the scene of the accident.³

Appellant's Camaro was found in a ditch near North Outer Road west of Exit 45. After observing the scene, Trooper Green concluded that Appellant's car had been traveling west on the North Outer Road when the driver lost control and spun off of the road into the ditch. Trooper Green noted: there were "several items" in the passenger seat of the Camaro; the driver's side window was broken; the driver's door would only open with force, but the passenger door opened freely; there was blood on the driver's side door panel; and the keys were not in the car. When Trooper Green asked Appellant about the keys, Appellant took them out of the front pocket of his pants and gave them to Trooper Green. Appellant again claimed he was not driving. Trooper Green told Appellant that the evidence suggested otherwise and arrested him for DWI. Trooper Green advised Appellant of his rights and took him to the Higginsville Police Department.

When they arrived at the police station, Appellant agreed to take a breathalyzer test and give a blood sample for comparison with the blood found at the scene on the driver's door of his Camaro. At 9:53 a.m., the breathalyzer test showed that Appellant's blood alcohol content was 0.165%, which was more than double the legal limit of 0.08%. DNA analysis showed that Appellant's blood matched the DNA profile of the blood samples taken from the driver's side door of his car to a statistical probability of one in 128.4 billion people of the Caucasian population. A record check with the Department of Revenue revealed that Appellant's driver's license was revoked.

A grand jury indicted Appellant on three counts: DWI; driving while his license was revoked, suspended or canceled; and careless and imprudent driving. Prior to trial, the State dismissed the careless driving charge. After the court found defendant was a prior and persistent offender,⁴ the State filed an amended information in lieu of indictment by interlineation, charging Appellant with DWI and driving while his license was revoked, suspended or canceled.

At his two-day trial on September 18 and 19, 2002, Appellant testified in his own defense. He told the jury that around 11:00 p.m. on the night in question he went to a strip club where his friends worked on Independence Avenue to show them the Camaro he had recently purchased. After showing them his car, he went back inside the club, where he drank approximately ten to fifteen "Crown and Cokes." Around 2:00 a.m., Appellant left the club. He testified that he convinced "Nina," a girl he talked to at the bar that he "had met a couple of times," to drive him home because he "was in no condition to drive." According to Appellant, while on I-70 on the way to his house in Corder, Nina decided that she did not want to go to Appellant's house, so she exited I-70 East at Exit 45. She missed the ramp back on to I-70 West and ended up on North Outer Road, where she lost control of the car, causing it to spin into the ditch. Appellant testified that he and Nina "got out of the driver's side door." He said he "didn't even try the passenger door" because, due to the car's position in the ditch, "the way gravity or whatever you call it, it wouldn't have [opened.]" When Nina and Appellant walked to I-70 from North Outer Road, they spoke "very little" and ended up walking in opposite directions on I-70. He saw a semi-truck stop and pick up Nina as he was walking away.

Appellant testified that he tried to walk east on his injured ankle towards his home in Corder, but the weather was very cold, and he had only a light coat. He also tried to call his mother on his cell phone, but the phone went out before he could tell her where he was. Cold, Appellant returned to Exit 45, crawled up under the overpass, and built a fire to keep warm until daybreak. He testified that at daybreak, a woman stopped to help him. At Appellant's request, the woman called his mother to tell her where Appellant was. Before his mother could arrive, a man stopped and took Appellant to the truck stop, where Officer Paige found him.

On review we must determine whether this evidence was sufficient for a reasonable juror to find each element of the DWI offense to have been established beyond a reasonable doubt. Scholl, 114 S.W.3d at 307. Section 577.010.1 defines the elements of DWI: "A person commits the crime of `driving while intoxicated' if he [1] operates a motor vehicle [2] while in an intoxicated or drugged condition." Section 577.001.1 defines "operates" as "physically driving or operating a motor vehicle." Section 577.001.2 states that "a person is in an `intoxicated condition' when he is under the influence of alcohol, a controlled substance, or drug, or any combination thereof." Appellant fails to develop any argument challenging the sufficiency of the evidence to establish that he was driving at the time of the accident, the first element of the offense, so we do not consider that issue. Rather, we limit our review to determining whether the evidence was sufficient for a reasonable juror to find that Appellant was in an intoxicated condition at the time.

Appellant argues that the time of driving was too remote from the time he was determined to be intoxicated to support an inference of intoxication while driving. He claims the element of intoxication at the time of operating an automobile was not proved by evidence of his intoxicated condition seven hours after the accident. In support, he cites State v. Block, 798 S.W.2d 213, 214-15 (Mo.App. W.D.1990), State v. Dodson, 496 S.W.2d 272, 273 (Mo.App.1973), and State v. Liebhart, 707 S.W.2d 427, 429 (Mo.App. W.D.1986).⁵ In those cases, the defendants were involved in one-car accidents and found intoxicated at a later time. In each case, the court held in relevant part that the evidence was insufficient to establish that the defendant was intoxicated at the time of the accident. Those holdings turned on the fact that evidence of the defendants' intoxication at the time of the arrests, when remote from their operation of the vehicles, "without more" or "in itself," was insufficient to prove intoxication at the time the defendants were driving.

We have reviewed each of these cases and find they are factually distinguishable from Appellant's case. Here, there is "more," i.e., the evidence in this case is sufficient to establish that Appellant was intoxicated at the time of the accident: Appellant admitted to having ten to fifteen "Crown and Coke" drinks between 11:00 p.m. and 2:00 a.m. before leaving the bar in his car; the accident occurred at 3:00 a.m.; Appellant admitted to the police...