State v. Mitchell

• Decision Date: 13 October 2006
• Docket Number: No. 27186,27186
• Citation: 203 S.W.3d 246
• Parties: STATE OF MISSOURI, Plaintiff-Respondent, v. SHANNON LLOYD MITCHELL, Defendant-Appellant.
• Court: Missouri Court of Appeals

203 S.W.3d 246

STATE OF MISSOURI, Plaintiff-Respondent, v. SHANNON LLOYD MITCHELL, Defendant-Appellant.

No. 27186

Missouri Court of Appeals, Southern District, Division Two.

October 13, 2006

Bruce Galloway of Ozark, MO, Appellant's Attorney.

Janette Bleau, Asst. Prosecuting Atty. of Ozark, MO, Respondent's Attorney.

JEFFREY W. BATES, Chief Judge.

Shannon L. Mitchell (Defendant) was charged with committing the class A misdemeanor of driving while intoxicated in violation of § 577.010.¹ The trial court found Defendant guilty and sentenced him to pay a $500 fine and serve one year in the Christian County jail. The court suspended execution of the jail sentence and placed Defendant on probation for two years. On appeal, Defendant claims the trial court erred in denying Defendant's motion for judgment of acquittal filed at the close of all of the evidence. Defendant contends the court should have sustained the motion because there was insufficient evidence to prove beyond a reasonable doubt that Defendant was operating his vehicle while intoxicated. We affirm.

I. Factual and Procedural Background

The State's case was presented through the testimony of Officer Jeremy Grisham (Officer Grisham). He was employed by the Nixa, Missouri, police department and worked the 10:00 p.m. to 8:00 a.m. shift.

At approximately 2:00 a.m. on January 1, 2005, Officer Grisham was driving his patrol car north on Gregg Road. He observed a silver Chevrolet Tahoe (Tahoe) stopped on the exit driveway of Mathews Elementary School. The rear of the Tahoe was facing Gregg Road, and the vehicle's reverse lights and brake lights were illuminated. Officer Grisham decided to check out the Tahoe because the vehicle's presence at a closed school at 2:00 a.m. was suspicious.

Officer Grisham stopped directly behind the Tahoe and activated the patrol car's overhead lights. He exited his car and approached the passenger side of the Tahoe. Its engine was running and, as Officer Grisham approached, the passenger-side power window rolled down. Defendant's spouse (Wife) was sitting in the passenger's seat; Defendant was sitting in the driver's seat. When Officer Grisham asked Defendant what he and his wife were doing at a school at 2:00 a.m., he was told that they had pulled in there because they were in the process of moving and were looking for a place to stay for the night.

Officer Grisham could smell the strong odor of an alcoholic beverage coming from inside the vehicle. He observed that Wife's eyes were extremely red and bloodshot, so he asked if she had been drinking. Wife said she had. Officer Grisham then asked Defendant if he had been drinking and he replied, "I had a couple earlier." When Officer Grisham sought more detailed information about Defendant's alcohol consumption, Wife stated that "[h]e had a few earlier, but that was before the New Year."

As Officer Grisham walked around to the driver's side of the Tahoe, Defendant rolled down the power window. Defendant's eyes were watery and bloodshot, and his breath smelled of alcohol. Officer Grisham performed a horizontal gaze nystagmus on Defendant while he was seated in the Tahoe. The results of that test indicated Defendant had alcohol in his system, so Officer Grisham decided to administer field sobriety tests. Defendant exhibited a poor ability to follow instructions and failed all three tests. When Officer Grisham asked Defendant to undergo a preliminary breath test as an additional field sobriety test, Defendant refused.

Officer Grisham arrested Defendant for driving a vehicle while intoxicated. During a search of the Tahoe incident to Defendant's arrest, Officer Grisham found a gallon container of an alcoholic margarita drink. The container was open and half empty. Once Defendant arrived at the police station, he refused to submit to a breathalyzer test.

At the close of the State's evidence, Defendant filed a motion for judgment of acquittal. The trial court denied the motion.

The defense case was presented via the testimony of four witnesses. For purposes of this appeal, the relevant testimony was provided by auto mechanic Jackie Schuller (Schuller) and Defendant.²

Schuller testified that he installed a toggle switch in the Tahoe's center console in July 2004. The purpose of the switch was to activate the Tahoe's reverse lights when the engine was off and the transmission was in park. Defendant sometimes loaded automobiles at night on a tow dolly attached to the Tahoe. He had the console switch installed to provide white-light illumination during that process without the need for the engine to be running or the transmission to be placed in reverse. On cross-examination, however, Schuller conceded that the Tahoe's reverse lights would continue to operate normally when the engine was running and the transmission was placed in reverse.

Defendant testified that Wife had been driving the Tahoe and that he was sitting in the front passenger seat. The couple was moving and planned to move into one of two possible rental houses in Nixa the next morning. They decided to go look at one of the houses one more time. Wife became lost and pulled into the school's driveway to find a map inside the car. She shut off the engine, removed the keys from the ignition and exited the driver's seat. Wife went to the rear of the Tahoe, opened the hatch, removed some boxes and bags and dumped out their contents. Wife then asked Defendant to "turn on the light." After turning on the Tahoe's interior lights and headlights, he activated its reverse lights using the toggle switch in the console. Wife still could not find a map. She came to the passenger door and told Defendant to get out of the way so she could look in the glove compartment. Defendant walked around the back of the Tahoe past the open hatch and got into the driver's seat. He shut the door because the weather was cold. He found a compact disk and began playing music on the stereo. A police car pulled up behind the Tahoe one or two minutes after Defendant sat in the driver's seat. After turning all of the lights off, Defendant looked down and saw that the keys were in the cupholder.

At the close of all the evidence, Defendant filed another motion for judgment of acquittal. The trial court also denied this motion. After Defendant was convicted of driving while intoxicated, he appealed.

II. Standard of Review

In a court-tried criminal case, the court's findings have the force and effect of a jury verdict. Rule 27.01(b); State v. Fraga, 189 S.W.3d 585, 586 (Mo. App. 2006). "Therefore, the standard used to review the sufficiency of the evidence in a court-tried and a jury-tried criminal case is the same." Fraga, 189 S.W.3d at 586. Our role in reviewing the sufficiency of the evidence to support a criminal conviction is limited to determining whether there was sufficient evidence from which a reasonable fact finder could have found that the defendant was guilty beyond a reasonable doubt. State v. Mitchell, 77 S.W.3d 637, 640 (Mo. App. 2002). We accept as true the evidence and reasonable inferences derived therefrom that are favorable to the judgment. State v. McQuary, 173 S.W.3d 663, 667 (Mo. App. 2005). We disregard all unfavorable evidence and inferences. Id. This standard applies even when all evidence of a defendant's guilt is circumstantial. State v. Thompson, 147 S.W.3d 150, 162 (Mo. App. 2004). "Great deference is given to the trier of fact, and an appellate court is not to act as a `super juror' with veto power over a verdict." State v. Daniels, 179 S.W.3d 273, 285 (Mo. App. 2005). Therefore, we do not weigh the evidence or determine the reliability or credibility of witnesses. Id.

Defendant initially filed a motion for judgment of acquittal at the close of the State's case. When this motion was denied, Defendant presented evidence on his own behalf. Thereafter, the trial court denied Defendant's subsequent motion for judgment of acquittal filed at the close of all the evidence. We take note of this procedural posture because it affects the scope of our review. "When a defendant introduces evidence on his own behalf, after the overruling of his motion for judgment of acquittal at the close of the State's case, the sufficiency of the evidence must be determined upon the entire record considering any incriminating evidence developed during the defendant's case." State v. Rivers, 554 S.W.2d 548, 550 (Mo. App. 1977).

III. Discussion and Decision

In Defendant's sole point on appeal, he contends the trial court erred in denying the motion for judgment of acquittal at the close of all the evidence. Defendant was convicted of driving while intoxicated in violation of § 577.010. This crime is committed when a person "operates a motor vehicle while in an intoxicated or drugged condition." § 577.010.1. Thus, the two essential elements of this crime are: (1) operation of a vehicle; (2) while intoxicated. See State v. Madorie, 156 S.W.3d 351, 355-56 (Mo. banc 2005); State v. Scholl, 114 S.W.3d 304, 307 (Mo. App. 2003). Defendant concedes he was intoxicated when he was arrested. Therefore, the only issue we must decide is whether there was sufficient evidence for a reasonable fact finder to conclude beyond a reasonable doubt that Defendant operated the Tahoe while in that condition.³

This inquiry involves the proper construction to be given § 577.010: viz., what activities constitute operation of a motor vehicle within the meaning of this statute. Section 577.010 contains no internal definition of the word "operates." Instead, a chapter-wide definition for this word is found in § 577.001. Prior to 1996, the word "operates" was defined to mean "physically driving or operating or being in actual physical control of a motor vehicle." § 577.001.1 RSMo (1994). Under that definition of "operates," a person could be convicted of driving while intoxicated by simply sleeping behind the wheel of his running automobile with the transmission in...