State v. Wiles

• Decision Date: 26 July 2000
• Parties: (Mo.App. S.D. 2000) State of Missouri, Plaintiff-Respondent, v. Ronald L. Wiles, Defendant-Appellant. 23132 0
• Court: Missouri Court of Appeals

26 S.W.3d 436 (Mo.App. S.D. 2000)

State of Missouri, Plaintiff-Respondent, v. Ronald L. Wiles, Defendant-Appellant.

23132

Missouri Court of Appeals Southern District

07/26/2000

Appeal From: Circuit Court of Jasper County, Hon. Jon Dermott, Judge

Counsel for Appellant: Craig A. Johnston

Counsel for Respondent: James R. Layton

Opinion Summary: None

Prewitt, J., and Montgomery, J., concur

Phillip R. Garrison, Judge

Ronald L. Wiles ("Defendant") was charged with the Class D felony of driving while intoxicated in violation of Section 577.010.1, RSMo 1994. A jury found Defendant guilty, and he was sentenced to five years imprisonment. Defendant appeals his conviction, asserting that the trial court erred in 1) overruling his motion for judgment of acquittal and in sentencing him pursuant to Section 577.010.1, RSMo 1994, as the State failed to prove beyond a reasonable doubt that he had "operated" his vehicle while intoxicated and 2) overruling his motion to dismiss, submitting to the jury an instruction defining "operated" as "physically driving or operating," and refusing to give his definition of "operated."

As Defendant contests the sufficiency of the evidence supporting his conviction, appellate "review is limited to a determination of whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt." State v. Chaney, 967 S.W.2d 47, 52 (Mo. banc 1998), cert. denied 525 U.S. 1021, 119 S.Ct. 551, 142 L.Ed.2d 458 (1998). In applying this standard, the Court accepts as true all of the evidence favorable to the State, including all favorable inferences drawn from the evidence, and disregards all evidence and inferences to the contrary. State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993), cert. denied 510 U.S. 997, 114 S.Ct. 562, 126 L.Ed.2d 462 (1993). Viewed in this light, the evidence most favorable to the verdict shows:

Shortly before 1 a.m. on February 14, 1999, Webb City Police Officer Travis Osterman ("Officer Osterman") received a report of a loud vehicle idling in a residential area. Upon arriving at the scene, Officer Osterman observed a blue 1970s model Ford truck parked at an angle, facing a garbage dumpster, with its engine running at a fast idle. As he approached the vehicle, Officer Osterman noticed that the truck's headlights, taillights, and brake lights were on. He found Defendant slumped over the steering wheel on the driver's side of the vehicle. Defendant's left hand was on the door rest and his right hand was down by his side. His left foot was on the brake pedal, his right foot was on the accelerator, and the vehicle was in park.

Officer Osterman knocked on the window to get Defendant's attention. Defendant failed to respond, so Officer Osterman opened the driver's side door. Defendant, after almost falling out of the truck, had to be assisted back into an upright position by Officer Osterman. Officer Osterman smelled a strong odor of intoxicants coming from Defendant and observed that his eyes were "glassy and watery and staring." Inside the truck's cab, Officer Osterman found an open container of whiskey, an open can of beer, and several unopened containers of beer. After Defendant failed three field sobriety tests, Officer Osterman arrested Defendant for driving while intoxicated. After being taken to the Webb City jail, Defendant admitted that he had been drinking and that he was still under the influence of alcohol.

In a pre-trial motion, during the instruction conference, and in his motion for a judgment of acquittal or in the alternative for a new trial, Defendant asserted that the term "operate" as used in Section 577.010, RSMo 1994, was unconstitutionally vague and that the jury instruction incorporating the term was similarly vague. ¹ The trial court overruled these objections. On June 23, 1999, a jury returned a verdict finding Defendant guilty of the charged offense. Defendant appeals his conviction.

In his first point on appeal, Defendant contends that the trial court erred in overruling his motion for judgment of acquittal and in sentencing him for operating a motor vehicle while intoxicated because the State failed to prove beyond a reasonable doubt that he had "operated" his vehicle while intoxicated. Defendant argues that although he was found intoxicated in a parked vehicle with its engine running, the evidence did not support that he was "physically driving or operating" a motor vehicle while intoxicated as required under Sections 577.001.1, RSMo Cum. Supp. 1998, and 577.010, RSMo 1994, as he was asleep in the truck, the truck was in park, and there was no evidence that he had started, moved, or driven the truck while intoxicated.

Prior to August 28, 1996, the definition of "driving" or "operating" under Section 577.001.1, RSMo 1994, provided that "[a]s used in this chapter, the term 'drive', 'driving', 'operates' or 'operating' means physically driving or operating or being in actual physical control of a motor vehicle." That statute was amended in August 1996, and now states that "[a]s used in this chapter, the term 'drive', 'driving', 'operates' or 'operating' means physically driving or operating a motor vehicle." Section 577.001.1, RSMo Cum. Supp. 1998. Defendant concedes that under the prior definition, the evidence would have been sufficient to convict him of driving while intoxicated, as he was in "actual physical control of a motor vehicle." Defendant argues, however, that his actions, which would have fallen under the purview of former Section 577.001.1, RSMo 1994, no longer fall under the scope of the current version of the statute due to the removal of the words "actual physical control" from the statute.

Cases, prior to the statute's amendment, interpreting "actual physical control" had held that there was sufficient evidence to support a conviction for driving while intoxicated where a defendant was found asleep behind the steering wheel with the engine running and the lights burning, even though the vehicle was in park, under the theory that the defendant was in a position to regulate the vehicle's movement. See State v. O'Toole, 673 S.W.2d 25 (Mo. banc 1984) (evidence sufficient to support a conviction for driving while intoxicated when defendant was found in an intoxicated condition, asleep at the wheel with the engine running and the lights on); State v. Hollis, 800 S.W.2d 69 (Mo.App. S.D. 1990) (defendant was found to be in actual physical control of vehicle when he was discovered, in an intoxicated condition, sitting behind the steering wheel with the engine running).

In cases finding sufficient evidence to support a conviction of driving while intoxicated based on "actual physical control," there is a lack of explanation as to what actions may fall within the definition of "operate" as used in the context of Section 577.001.1. This is because in each case, it was sufficient that the defendant had "actual physical control," regardless of whether he or she succeeded in using that control to operate the vehicle. See O'Toole, 673 S.W.2d at 27; State v. Hoyt, 922 S.W.2d 443, 448 (Mo.App. W.D. 1996); Hollis, 800 S.W.2d at 71. In addition, cases finding a lack of "actual physical control" do not explain the term "operate" because in each case the most obvious manifestation that a vehicle was "operating" was missing as the vehicle was not running. See State v. Hughes, 978 S.W.2d 24 (Mo.App. W.D. 1998); State v. Swinson, 940 S.W.2d 552 (Mo.App. S.D. 1997); State v. Block, 798 S.W.2d 213 (Mo.App. W.D. 1990); State v. Liebhart, 707 S.W.2d 427 (Mo.App. W.D. 1986). Consequently, none of these cases address the issue presented by Defendant of whether an intoxicated, sleeping individual who has his feet on the brake and accelerator of an idling truck, which has its lights on and is in park, is "operating" a vehicle within the meaning of Sections 577.010.1, RSMo 1994, and 577.001.1, RSMo Cum. Supp. 1998.

Baptist v. Lohman, 971 S.W.2d 366 (Mo. App. E.D. 1998), is the sole case which has thus far interpreted and applied the amendment to Section 577.001.1, RSMo Cum. Supp. 1998. In Baptist, the defendant was arrested for driving while intoxicated after he was found slumped over in the driver's seat of his vehicle with the engine running and the car in neutral. In challenging the Director of Revenue's decision to suspend his driver's license, the defendant argued that he was not "driving" the vehicle because the statute as amended required that someone actually observe an operator of a motor vehicle drive the vehicle. The court disagreed finding that "[w]hile a motorist may no longer be found to be driving while intoxicated merely because he is in 'control' of a running automobile, Section 577.001 as amended still permits 'operating a motor vehicle' to be established by circumstantial evidence." Id. at 368.

Although Baptist did not expressly consider the meaning of the terms "operating" and "physically driving," Defendant asserts that the amendment to Section 577.001.1, RSMo Cum. Supp. 1998, when read in context with Baptist, stands for the proposition that the term "operating" should be narrowly construed. Moreover, he argues that the terms "driving" and "operating" should in fact be considered synonymous. In support of this proposition, Defendant refers to the interchangeable use of the terms "operating" and "driving" by the courts, and cites to such cases as State v. Johnston, 670 S.W.2d 552 (Mo.App. S.D. 1984), and State v. Kennedy, 530 S.W.2d 479 (Mo.App. St. L. 1975), in which the terms are used interchangeably.

While Missouri courts have admittedly used the terms "operating" and "driving" interchangeably, which has led to some confusion, this alone does not establish that the two terms have become synonymous. Under traditional rules of statutory construction, "each word, clause, sentence and section of a statute should be given meaning." Missouri Property & Cas. Ins. Guar. Ass'n...