State v. Mignone
| Citation | 411 S.W.3d 361 |
| Decision Date | 22 October 2013 |
| Docket Number | No. WD 75654.,WD 75654. |
| Parties | STATE of Missouri, Appellant, v. Anthony Robert MIGNONE, Respondent. |
| Court | Court of Appeal of Missouri (US) |
OPINION TEXT STARTS HERE
Alyssa M. Mayer, for Appellant.
Jeffrey S. Eastman, Gladstone, for Respondent.
Before Special Division: ZEL FISCHER, Special Presiding Judge, VICTOR C. HOWARD, Judge and MARK D. PFEIFFER, Judge.
The State appeals from the judgment of the motion court dismissing with prejudice the charge against Anthony Mignone for driving while intoxicated in violation of section 577.010.1 The motion court's dismissal was based on section 577.037.5, which requires dismissal with prejudice of a driving while intoxicated charge where the defendant has had a properly administered chemical breath analysis resulting in a blood alcohol content reading of less than eight hundredths of a percent and none of three evidentiary exceptions are met.
On appeal, the State claims that the trial court erred in dismissing the charge for lack of substantial evidence because “substantial evidence” is a legal standard and was met by the evidence presented by the State at the hearing on the motion to dismiss. The State also claims the trial court erred in dismissing the charge on the grounds that the State did not present evidence that the breath sample was unreliable due to a lapse of time, because the statute only requires the State to produce some evidence that the breath test was unreliable due to a lapse of time, which it did through testimony of a witness and breath test evidence.
On August 26, 2011, Anthony Mignone was stopped by a trooper with the Missouri Highway Patrol for a traffic violation. According to the trooper's testimony, he noticed the odor of an alcoholic beverage emitting from inside the vehicle. After speaking with Mignone, the trooper obtained his driver's license and requested that he join him inside his patrol car. In the patrol car, the trooper conversed more with Mignone and continued to detect the strong odor of an alcoholic beverage. He testified that Mignone admitted having drinks when asked. The trooper also said that he noticed Mignone's eyes were bloodshot and glassy. The trooper stated that he then asked Mignone to submit to some field sobriety tests, and he administered the horizontal gaze nystagm us test, the walk and turn test, and the one leg stand test.
The trooper testified that he assumed that Mignone could not operate a motor vehicle safely based on the tests, and he placed Mignone under arrest for driving while intoxicated. The arrest took place at 3:06 a.m. Mignone was transported to the jail and afforded time to contact an attorney. The trooper then read Mignone the Implied Consent Advisory, and Mignone consented to a chemical test. At the conclusion of a fifteen minute period of observation, Mignone submitted a breath test sample resulting in a blood alcohol content reading of .075%. The test was administered at 4:38 a.m. Mignone was asked to submit to a second testing of his breath, and at 5:46 a.m., the second sample resulted in a blood alcohol content reading of .051%.
Mignone was charged by uniform citation with the class B misdemeanor of Driving While Intoxicated, and Mignone then filed a motion to dismiss citing section 577.037. At a hearing on the motion, the State presented the evidence detailed above through the trooper's testimony and offered the results of the breath test. Mignone did not present evidence at the hearing but did challenge the State's evidence through cross-examination and argument. After argument by the parties, the case was taken under advisement. The trial court then issued an order granting Mignone's motion and dismissing the State's case with prejudice. In its order, the court found
that a chemical analysis of Defendant's breath sample was less than eight-hundredths of one percent of alcohol in defendant's blood ... that there was no evidence submitted that the chemical analysis is unreliable as evidence of the defendant's intoxication at the time of the alleged violation due to the lapse of time between the alleged violation and obtaining of the specimen. No evidence was presented that defendant was under the influence of a controlled substance or a combination of a controlled substance and alcohol ... [and] there was no substantial evidence of intoxication from the physical observation of the state's witness or the admissions of defendant as presented in evidence.
This appeal followed.
We have not previously adopted a standard of review for an appeal from a court's dismissal pursuant to section 577.037.5. Considering the function of the trial court, as set out in the statute, we will reverse the dismissal only if it is clearly erroneous.2 That means we must be left with a definite and firm impression that a mistake has been made. State v. Sparkling, 363 S.W.3d 46, 49 (Mo.App. W.D.2011). As in other adversarial proceedings, “we view the evidence presented and all reasonable inferences drawn therefrom in the light most favorable to the trial court's order and disregard all evidence and inferences to the contrary.” State v. Abeln, 136 S.W.3d 803, 808 (Mo.App. W.D.2004). We defer to the factual findings and credibility determinations made by the trial court, remembering that the trial court “may choose to believe or disbelieve all or any part of the testimony presented by the State, even though it may be uncontradicted, and may find the State failed to meet its burden of proof.” Id. at 808–09 (emphasis and internal quotes and citation omitted).
The State raises two points on appeal. First, the State claims that the trial court erred in dismissing the charge for lack of substantial evidence because “substantial evidence” is a legal standard and was met by the evidence presented by the State at the hearing on the motion to dismiss. The State also claims the trial court erred in dismissing the charge on the grounds that the State did not present evidence that the breath sample was unreliable due to a lapse of time, because the statute only requires the State to produce some evidence that the breath test was unreliable due to a lapse of time, which it did through testimony of a witness and breath test evidence.
Mignone's motion to dismiss was premised on section 577.037.5, which mandates that a charge alleging violation of section 577.010 “shall” be dismissed with prejudice if a chemical analysis of the defendant's breath
demonstrate[s] that there was less than eight-hundredths of one percent of alcohol in the defendant's blood unless one or more of the following considerations cause the court to find a dismissal unwarranted:
(1) There is evidence that the chemical analysis is unreliable as evidence of the defendant's intoxication at the time of the alleged violation due to the lapse of time between the alleged violation and the obtaining of the specimen;
(2) There is evidence that the defendant was under the influence of a controlled substance, or drug, or a combination of either or both with or without alcohol; or
(3) There is substantial evidence of intoxication from physical observations of witnesses or admissions of the defendant.
The plain language of section 577.037.5 calls for the court to weigh evidence and evaluate witness credibility in order to decide whether certain “considerations” render dismissal “unwarranted.” Clearly, the statute calls upon the trial court to make a judgment about the nature and quality of the evidence, because that evidence must “cause the court to find” something. Dismissal is the default position, and, although not specifically stated in the statute, the clear implication is that the burden of persuasion is on the State to come forward with evidence to “cause the court to find a dismissal unwarranted.” 3
In this case, the State introduced evidence in an attempt to cause the court to find that dismissal was unwarranted. Mignone contested that evidence. To contest evidence, a party is not required to present contradictory or contrary evidence. White v. Dir. of Revenue, 321 S.W.3d 298, 308 (Mo. banc 2010). Other ways a party can contest evidence are by cross-examination, by pointing out internal...
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...the State failed to meet its burden of proof.” 4Emmett, 346 S.W.3d at 420 (internal quotation omitted); see also State v. Mignone, 411 S.W.3d 361, 363–64 (Mo.App. W.D.2013). “The weight of the evidence and the credibility of the witnesses are for the trial court's determination.” State v. K......
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...he bore the burden of proving that the current charges were brought in violation of the 1991 plea agreement. See State v. Mignone, 411 S.W.3d 361, 364 n.3 (Mo.App.W.D.2013) (“[T]he burden of proof for a motion to dismiss criminal charges is on the defendant.”); State v. Redifer, 215 S.W.3d ......
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...deliberations. Credibility determinations are for the circuit court and the jury, and we defer to those findings. See State v. Mignone, 411 S.W.3d 361, 363 (Mo.App.2013). In any event, we review “for prejudice, not mere error, and will reverse only if the error was so prejudicial that it de......
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