City of Grandview v. Winters

768 S.W.2d 162, 1989 Mo. App. LEXIS 221, 1989 WL 11341
CourtMissouri Court of Appeals
DecidedFebruary 14, 1989
DocketNo. WD 40391
StatusPublished
Cited by2 cases

This text of 768 S.W.2d 162 (City of Grandview v. Winters) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Grandview v. Winters, 768 S.W.2d 162, 1989 Mo. App. LEXIS 221, 1989 WL 11341 (Mo. Ct. App. 1989).

Opinion

FENNER, Presiding Judge.

Appellant, Jack B. Winters, appeals his convictions under the Ordinances of the City of Grandview, Missouri, for improper lane usage and driving under the influence of an intoxicating liquor (DUI). Appellant was convicted of the beforementioned violations on December 11, 1987, after trial in the Circuit Court of Jackson County, Division 104, before the Honorable James N. Foley, Associate Circuit Judge. Appel[164]*164lant’s trial on December 11, 1987, was on his de novo appeal from conviction in the Grandview Municipal Division of the Jackson County Circuit Court.

In regard to the charge of improper lane usage, Winters argues that the information, upon which he was tried, charged him with improper lane usage by “stradling [sic] the yellow line while traveling south bound on West Access”. Winters argues he was entitled to judgment of acquittal on this charge first because the facts at trial showed there was no such yellow line and second because the street upon which he was driving, West Access, was a one-way street exempt from the ordinance under which he was charged.

On appeal from a conviction for a municipal ordinance violation, the evidence is construed most strongly in favor of the result reached and the facts in evidence and all inferences reasonably to be drawn therefrom are considered in the light most favorable to the city with all evidence and inferences to the contrary disregarded. City of Jackson v. Rapp, 700 S.W.2d 498, 499 (Mo.App.1985).

Winters did not testify at trial. The only evidence Winters offered at trial was the testimony of a pharmacist in relation to medication that Winters was using at the time of his arrest in August of 1987. The City of Grandview offered the testimony of the arresting officer, Henry Ellis. In regard to the charge of improper lane usage the only evidence in the record at trial is the following testimony from Officer Ellis:

“Q. [Prosecutor]: What did you observe, if anything, as you were behind him at that time?
A. [Officer Ellis]: He was driving what I call in the passing lane, and there’s a yellow line dividing the lanes, the shoulder, and he was crossing oyer that line.
Q.: Approximately how many times did you see him cross over the line?
A.: I believe it was twice.
Q.: And this was crossing over the center line of Blue Ridge?
A.: That’s correct.
Q.: Blue Ridge is four lanes wide at that location?
A.: Well, it’s not Blue Ridge. It would be the West Access Road he was crossing.
Q.: I’m sorry. The West Access Road. There’s two lanes and a shoulder on each side?
A.: That’s correct.”

At oral argument the parties agreed that the yellow line separated the shoulder of the road from the passing lane and was not in the center of the road.

Winters was charged under Section 14-42 of the Grandview City Code which provides in pertinent part as follows:

Sec. 14-42. Vehicle to be driven on right half of roadway; exceptions.
(a) Upon all roadways of sufficient width, a vehicle shall be driven upon the right half of the roadway, except as follows:
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(4) Upon a roadway designated and signposted for one-way traffic.
(b) Upon all roadways, any vehicle proceeding at less than the normal speed of traffic at the time and place and under the conditions then existing, shall be driven in the right-hand lane then available for traffic, or as close as practible to the right-hand curb or edge of the roadway, except when overtaking and passing another vehicle proceeding in the same direction or when preparing for a left turn at an intersection or into a private road or driveway.

The City’s evidence on the charge of improper lane usage consisted only of the ordinance and the officer’s testimony as above quoted. Although the officer did establish that there was a yellow line somewhere on the road, his testimony on the lane usage charge was otherwise vague, indefinite, contradictory and inconclusive in regard to the appellant having violated the provisions of the ordinance under which he was charged.

Appellant’s conviction of improper lane usage is reversed.

[165]*165In his third allegation of error, Winters argues that he was entitled to a judgment of acquittal on the charge of DUI. Winters argues that the information in the DUI charge stated that the offense occurred on 122nd Street at or near West Access and that there is no such location in the City of Grandview.

Winters misinterprets the charge. The information charges that the offense occurred at or near 122nd and West Access not on 122nd at or near West Access as Winters argues. The evidence did establish that 122nd Street does not intersect with West Access and that there are no intersections between 119th and 125th on West Access. However, the reasonable inference to be drawn from the evidence is that the information described the general location on West Access where the violation occurred.

An information charging an ordinance violation is not tested by the same degree of strictness and particularity as one charging a criminal offense. City of Joplin v. Graham, 679 S.W.2d 897, 898 (Mo.App.1984). Additionally, if there had been some failure in the information to give all of the desired details, such failure would have been waived by Winters not requesting a bill of particulars. State v. Kesterson, 403 S.W.2d 606, 611 (Mo.1966); State v. Ridinger, 589 S.W.2d 110, 113 (Mo.App.1979).

The fourth argument presented by Winters is that he is entitled to judgment of acquittal on the charge of DUI because “if said location [122nd and West Access] did exist it would be upon private property and not upon a public roadway.” The evidence is clear that Winters was driving on West Access in the general vicinity where 122nd Street would otherwise intersect. There was no evidence at trial to support Winters’ fourth allegation of error, it is without merit and denied.

The fifth allegation of error raised by Winters is that he was entitled to a judgment of acquittal on the charge of DUI because the information failed to allege he was under the influence of alcohol to a degree which rendered him incapable of safely driving a vehicle and therefore, the information was void. Once again an information charging an ordinance violation is not tested by the same degree of strictness and particularity as one charging a criminal offense and it is generally considered to be sufficient if it describes the act complained of in the language of the ordinance itself. City of Joplin v. Graham, supra, at 898.

Winters’ fifth allegation of error is not supported by the law or the evidence. The information clearly meets the test set forth in City of Joplin v. Graham, supra.

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City of Overland v. Wade
85 S.W.3d 70 (Missouri Court of Appeals, 2002)
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Bluebook (online)
768 S.W.2d 162, 1989 Mo. App. LEXIS 221, 1989 WL 11341, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-grandview-v-winters-moctapp-1989.