In the Missouri Court of Appeals Eastern District SOUTHERN DIVISION STATE OF MISSOURI, ) No. ED107538 ) Respondent, ) ) Appeal from the Circuit Court of ) Cape Girardeau County vs. ) Cause No. 16CG-CR00658 ) LANCE M. SWALVE, ) Honorable Craig D. Brewer ) Appellant. ) Filed: April 7, 2020
OPINION
Lance M. Swalve (“Defendant”) appeals the trial court’s judgment entered upon a jury
verdict finding him guilty of one count of driving while intoxicated (“DWI”). Defendant raises
two points on appeal. In his first point, Defendant argues that the trial court abused its discretion
in denying his motions for judgment of acquittal because the State presented insufficient
evidence for a reasonable juror to find him guilty of the charged offense beyond a reasonable
doubt. And in his second point, Defendant asserts that the trial court abused its discretion in
denying his objection to the State’s use of twelve beer bottles during its closing argument to
demonstrate the amount of alcohol that Defendant had allegedly consumed before driving.
Defendant contends that the prosecutor’s statement constituted prejudicial error because the
demonstrative use of the beer bottles misrepresented the evidence admitted at trial and there was
a reasonable probability that it affected the jury’s verdict.
1 Finding that the trial court did not err, we affirm the judgment of the trial court.
I. Factual and Procedural Background
Defendant was charged by information on or about April 14, 2016, of one count of DWI
after Defendant was observed in an allegedly intoxicated state by several witnesses at the Isle
Casino in Cape Girardeau, Missouri on the evening of March 10, 2016, before Defendant entered
a vehicle and drove away from the casino. A jury trial on the matter was held on August 9, 2017.
At trial, the State presented evidence detailing the events that formed the basis of Defendant’s
DWI charge. Specifically, the State presented testimony by Ryan Adams (“Adams”) (a casino pit
manager), Brian McGowan (“McGowan”) (a casino security supervisor), Rodney Beard
(“Beard”) (a casino surveillance supervisor), and Sergeant Blaine Adams (“Sgt. Adams”) (a
Missouri State Highway Patrol officer who was working with the Missouri Gaming Commission
at the casino) and offered surveillance video and video still images of Defendant while he was
present at the casino on March 10, 2016. Defendant did not present any evidence.
The evidence presented at trial demonstrated the following. Defendant arrived at the Isle
Casino at approximately 5:15 p.m. on March 10, 2016. Upon arriving, Defendant purchased a
pint of beer from a casino bar, and thereafter played table games on the casino floor for the
following five hours. During the approximately five hours that Defendant played table games, he
obtained 12 more alcoholic beverages—specifically, 12 16-ounce bottles of beer. Beard, who
reviewed all of the surveillance footage of Defendant while he was at the casino, confirmed that
he did not see Defendant give any drinks away or pour any drinks out. At about 10:20 p.m.,
Defendant disputed the result of a hand of blackjack, where he claimed that he did not “wave
off” the dealer. As a result of this dispute, Adams was alerted and made contact with Defendant
and the blackjack dealer. Prior to speaking with Defendant at this point, Adams had not
2 interacted with Defendant or received any other notifications about Defendant’s behavior. After
speaking with Defendant, Adams (who was trained to identify intoxicated persons in connection
with his job, as it was casino policy to disallow intoxicated persons on the casino floor) believed
that Defendant was intoxicated based on him being argumentative, slurring his speech, and
appearing red in the face.
Adams then contacted Sgt. Adams regarding Defendant’s potential intoxication. Sgt.
Adams and McGowan responded to the casino floor to speak with Defendant, and invited
Defendant to view the surveillance video footage of the hand of blackjack that Defendant
disputed. After viewing the footage, Defendant conceded that he was incorrect and did indeed
wave off the dealer during the hand at issue. Following their interaction with Defendant, Sgt.
Adams and McGowan (both of whom are trained to identify intoxicated persons) both concluded
that Defendant was intoxicated because he had glassy and bloodshot eyes, slurred his speech,
swayed where he stood, and had an odor of intoxicants. Upon making this determination, Sgt.
Adams told Defendant that, per casino policy, Defendant could not return to the casino floor
because he was intoxicated. Defendant was then escorted to the casino lobby at 10:34 p.m.
Approximately 20 minutes later at 10:54 p.m., Defendant requested to again speak with
Sgt. Adams and attempt to prove that he was not intoxicated. Sgt. Adams asked Defendant how
intoxicated he was on a scale of one to ten (one being sober and ten being drunk to the point of
staggering, vomiting, and falling down), to which Defendant responded “five.” After this second
interaction, Sgt. Adams believed that his determination regarding Defendant’s intoxication was
still correct, and advised Defendant that he needed to wait five or six hours before he drove home
or to find a ride home. Sgt. Adams encountered Defendant for the final time that night when
Defendant attempted to re-enter the casino floor at approximately 11:18 p.m. When this last
3 interaction concluded at approximately 11:20 p.m., Sgt. Adams again noted the signs of
Defendant’s intoxication (particularly, Defendant’s argumentative demeanor) and again told
Defendant that he could not drive home because of his “extremely intoxicated” state.
Surveillance video showed that Defendant thereafter exited the casino and initially
entered the passenger seat of a vehicle; however, after a few minutes, Defendant switched
positions with the person in the driver’s seat of the vehicle and proceeded to drive away. After
learning that Defendant drove away, Sgt. Adams entered his patrol car and attempted to pursue
Defendant because he believed that Defendant was DWI. Sgt. Adams also contacted another
Missouri State Highway Patrol officer who was on duty that night and gave him a description of
Defendant’s vehicle to further attempt to detain Defendant, but neither Sgt. Adams nor the other
officer was able to locate Defendant’s vehicle. On March 12, 2016, Sgt. Adams called
Defendant’s home, and notified him that he would be receiving a ticket for DWI. In response,
Defendant stated to Sgt. Adams, “I made a bad mistake last night.”
At the close of the State’s evidence and at the close of all the evidence, Defendant filed
motions of acquittal, both of which were denied. During the rebuttal portion of the State’s
closing argument, the prosecuting attorney placed a 12-pack of beer bottles (which were used
previously during trial to illustrate the type of drinks that Defendant was served) on the jury rail
and referenced them to demonstrate the amount of alcohol that Defendant allegedly consumed in
the five hours that he was on the casino floor. Defendant objected to this statement on the
grounds that it was “highly inappropriate,” which the trial court overruled. The jury found
Defendant guilty of the DWI charge, and Defendant was sentenced to 180 days in jail with
execution of that sentence suspended and Defendant placed on two years’ supervised probation.
This appeal follows.
4 II. Discussion
Point I
In his first point on appeal, Defendant argues that the trial court abused its discretion in
denying Defendant’s motions for judgment of acquittal because the State presented insufficient
evidence such that a reasonable juror could not have found Defendant guilty beyond a reasonable
doubt of the DWI charge. Defendant further asserts that “[i]t was impossible for a reasonable
juror to find [Defendant] guilty based on the evidence presented at trial as the time interval
between his last possible consumption of alcohol and his departure from the Casino dispelled any
reasonable doubt that he was intoxicated.”
a. Standard of Review
“We review claims challenging the sufficiency of the evidence supporting a criminal
conviction by determining whether the State presented sufficient evidence at trial from which a
reasonable jury might have found the defendant guilty of all the essential elements of the crime
beyond a reasonable doubt.” State v. Lopez, 539 S.W.3d 74, 78 (Mo. App. E.D. 2017) (citing
State v. Gibbs, 306 S.W.3d 178, 181 (Mo. App. E.D. 2010)). We accept as true all evidence and
inferences therefrom supporting the jury’s verdict, and disregard all contrary evidence and
inferences. State v. Gittemeier, 400 S.W.3d 838, 841 (Mo. App. E.D. 2013).
b. Analysis
“A person commits the crime of ‘driving while intoxicated’ if he operates a motor vehicle
while in an intoxicated or drugged condition.” Section 577.010.1.1 “To sustain a conviction, the
State must prove through direct or circumstantial evidence not only that the defendant was
intoxicated, but also that the defendant operated the vehicle while in this condition.” Lopez, 539
1 All references are to Mo. Rev. Stat. Cum. Supp. 2016.
5 S.W.3d at 78; see also State v. Donovan, 539 S.W.3d 57, 66 (Mo. App. E.D. 2017) (“[T]o obtain
a DWI conviction, the State must prove beyond a reasonable doubt that the defendant
(1) operated a vehicle (2) while intoxicated.”). “Circumstantial evidence is evidence that does
not directly prove a fact but gives rise to a logical inference that the fact [exists].” Lopez, 539
S.W.3d at 78 (citing State v. Putney, 473 S.W.3d 210, 216 (Mo. App. E.D. 2015)).
Circumstantial and direct evidence are given the same weight when considering the sufficiency
of the evidence. Id. (citing State v. Shoemaker, 448 S.W.3d 853, 856 (Mo. App. W.D. 2014)).
In this case, there is abundant evidence detailing Defendant’s intoxicated state prior to
driving. Specifically, the exhibits and testimony presented at trial showed that Defendant was
served 13 alcoholic beverages in the five hours before his interactions with Adams, McGowan,
and Sgt. Adams, that each of those individuals noticed that Defendant exhibited indicators of
intoxication (such as slurred speech, facial redness, glassy and bloodshot eyes, swaying while
standing, smelling of intoxicants, and being argumentative), and that Defendant drove away from
the casino just over an hour after first interacting with those witnesses and just 16 minutes after
Sgt. Adams last identified that Defendant was intoxicated. We find that a reasonable jury could
have found Defendant guilty beyond a reasonable doubt of the DWI charge from this evidence
and the reasonable inferences drawn therefrom.
Even absent chemical and field-sobriety tests, the State may still meet its burden of proof
to show that a defendant was intoxicated while driving. Gittemeier, 400 S.W.3d at 841; State v.
Scholl, 114 S.W.3d 304, 307–08 (Mo. App. E.D. 2003). “[T]he State may prove intoxication
through circumstantial evidence and the testimony of witnesses who had a reasonable
opportunity to observe the defendant.” Lopez, 539 S.W.3d at 78 (citing Putney, 473 S.W.3d at
215–16); see also Gittemeier, 400 S.W.3d at 842 (“The State may meet its burden of proof solely
6 through the testimony of any witness who had reasonable opportunity to observe the defendant’s
physical condition.”). While there were no blood test results or field-sobriety test results
presented to show that Defendant was intoxicated when he drove, the testimony of Adams,
McGowan, and Sgt. Adams combined with the circumstantial evidence presented here
(specifically, that Defendant obtained 13 alcoholic beverages in the hours before driving home)
is sufficient to give rise to the logical inference that fact was true. See Lopez, 539 S.W.3d at 78.
Defendant’s primary argument is that the “significant time gap” between his drinking and
when he drove combined with there being no evidence of exactly how much alcohol Defendant
consumed prior to driving make it “impossible for a reasonable juror to find [Defendant] guilty.”
We first note that it is reasonable for the jury to infer that Defendant consumed all or a
substantial portion of the 13 drinks he was served at the casino; it is logical that Defendant would
not continue to order drinks unless he finished the one he had previously.2 As the jury clearly
inferred from the evidence presented that Defendant consumed enough alcohol to become
intoxicated, we accept it as true. See Gittemeier, 400 S.W.3d at 841; Lopez, 539 S.W.3d at 78.
Further, in support of his contention that it is impossible for a reasonable jury to find him
guilty of the DWI charge because of the gap in time between his drinking and when he drove,
Defendant largely relies on Missouri DWI cases where the defendant was in a car accident and
the defendant’s intoxication was discovered some time after. Specifically, Defendant argues that
the holding of State v. Byron, 222 S.W.3d 338 (Mo. App. W.D. 2007) (citing State v. Dodson,
496 S.W.2d 272, 273–74 (Mo. App. W.D. 1973)), where the court overturned the defendant’s
DWI conviction because the defendant could have obtained and consumed alcohol and become
intoxicated in the time between when he crashed his car and when he was found intoxicated by
2 For further discussion of why it was reasonable to infer that Defendant consumed all or most of the alcohol he was served, see infra Point II, B. Analysis.
7 police, is applicable to this case. In Byron, the evidence showed that the defendant had an
accident when he ran his car off the road, but was only found some time later intoxicated at his
home. Id. at 342–43. During the time between the accident and when police found the defendant
intoxicated, he had walked from the accident scene to a grocery store, where he was picked up
by his father and driven home. Id. The court in Byron concluded that “because of the evidentiary
gap, we cannot say that under the law Byron’s guilt of driving while intoxicated was
demonstrated by the evidence to such a degree that the jury could find guilt beyond a reasonable
doubt.” Id. at 343–44.
The facts of this case are quite distinguishable from those present in Byron. The result of
Byron turned on the amount of time between the accident and when the defendant’s intoxication
was discovered (between 40 minutes and almost 1.5 hours) and that the defendant had
opportunity to obtain alcohol after the accident such that there was reasonable doubt as to
whether he became intoxicated only after driving, and not before or while driving. Id. Here, there
was plentiful evidence presented at trial demonstrating that Defendant was intoxicated prior to
driving; the testimony of the witnesses trained to identify intoxicated persons certainly supports
that Defendant was intoxicated from the time he left the casino floor (at approximately 10:20
p.m.) to the last interaction that Defendant had with Sgt. Adams (at approximately 11:20 p.m.).
Sgt. Adams confirmed during his testimony that he observed the same signs of Defendant’s
intoxication (bloodshot and glassy eyes, slurred speech, argumentative behavior, and strong odor
of intoxicants on his breath) during his final interaction with Defendant at 11:20 p.m.
(approximately 16 minutes before Defendant drove away from the casino) as his previous
encounters with Defendant. From that evidence in particular, the jury could certainly reasonably
infer that Defendant was still intoxicated when he drove away from the casino at 11:36 p.m.
8 Missouri DWI cases addressing a temporal gap between when a defendant was observed
intoxicated and when the defendant drove a vehicle state generally that an interval of 30 minutes
or less “is on its face sufficiently close in time to support an inference of intoxication while
driving.” Lopez, 539 S.W.3d at 78 (citing State v. Davis, 226 S.W.3d 927, 929 (Mo. App. W.D.
2007)).3
In essence, Defendant proposes that he could have become sober between when Adams,
McGowan, and Sgt. Adams observed him intoxicated and when he drove. However, “[t]he State
is not required to disprove every possible theory under which a defendant could be innocent,” but
rather, “evidence is sufficient to support guilt if any reasonable inference supports guilt, even if
other ‘equally valid’ inferences do not.” State v. Rastorfer, 574 S.W.3d 282, 287 (Mo. App.
W.D. 2019) (quoting State v. Varnell, 316 S.W.3d 510, 518 (Mo. App. W.D. 2010) and Putney,
473 S.W.3d at 219). Undoubtedly, the time between driving and intoxication is often a
determinative factor in DWI cases, and in this case, the direct and circumstantial evidence
presented (specifically, that showing Defendant obtained 13 beers, was observed intoxicated at
11:20 p.m., and drove away from the casino at 11:36 p.m.) supported the reasonable inference by
the jury that Defendant was intoxicated while driving, and we must disregard any inference to
the contrary. See Gittemeier, 400 S.W.3d at 841; Lopez, 539 S.W.3d at 78. We therefore find that
the State presented sufficient evidence from which a reasonable jury could have found Defendant
guilty beyond a reasonable doubt of the DWI charge.
Point I is denied.
3 While we note that both Lopez and Davis addressed factual situations where the defendant was observed intoxicated shortly after driving, we believe the holdings of those cases are persuasive in this case, as both emphasized that 30 minutes was a brief enough timespan to support that the defendants were intoxicated when they drove.
9 Point II
In Defendant’s second point on appeal, he argues that the trial court abused its discretion
in overruling his objection to the State’s use of twelve beer bottles during the rebuttal portion of
its closing argument to demonstrate how much Defendant had to drink before driving away from
the casino. Defendant asserts that this abuse of discretion was prejudicial to his defense because
the use of the twelve-pack of beer bottles misrepresented the evidence presented during trial and
created a reasonable probability that the jury’s verdict would have been different absent that
statement.
Where a defendant objects to a statement made by the prosecuting attorney during
closing arguments, we review the trial court’s alleged error for abuse of discretion. State v.
Tramble, 383 S.W.3d 34, 37 (Mo. App. E.D. 2012); State v. Brown, 337 S.W.3d 12, 14 (Mo.
banc 2011). “An abuse of discretion occurs when a defendant is prejudiced such that ‘there is a
reasonable probability that the outcome at trial would have been different if the error had not
been committed.’” State v. Holmsley, 554 S.W.3d 406, 410 (Mo. banc 2018) (quoting State v.
Deck, 303 S.W.3d 527, 540 (Mo. banc 2010)). “Closing arguments must be examined in the
context of the entire record.” Tramble, 383 S.W.3d at 37 (quoting Deck, 303 S.W.3d at 540).
“The trial court has broad discretion in controlling the scope of closing arguments.” State
v. Cross, 497 S.W.3d 271, 279 (Mo. App. E.D. 2016); see also Tramble, 383 S.W.3d at 37. The
State is allowed to argue the evidence and all reasonable inferences therefrom during closing
argument. State v. Walter, 479 S.W.3d 118, 125 (Mo. banc 2016) (citing Brown, 337 S.W.3d at
14). However, while the State has wide latitude during closing argument, “courts should exclude
10 statements that misrepresent the evidence or the law, introduce irrelevant prejudicial matters, or
otherwise tend to confuse the jury.” Cross, 497 S.W.3d at 279; Holmsley, 554 S.W.3d at 410.
“The latitude given to parties in closing does not serve as an end run around the law of
evidence,” but rather, “[c]losing argument grants each side the opportunity to highlight the
evidence that was presented.” Walter, 479 S.W.3d at 125 (quoting Brown, 337 S.W.3d at 15).
During the rebuttal portion of the State’s closing argument in this case, the prosecuting
attorney referenced a 12-pack of beer bottles (that had been used earlier during trial when Sgt.
Adams confirmed that those were the type of beverage served to Defendant) to suggest that
Defendant had consumed that amount of alcohol plus one pint of beer before driving.
Specifically, the prosecutor stated to the jury, “[Y]ou now know how much he had to drink, and I
know how much he had to drink. And what’s the answer to that question? The answer to that
question --” at which point, the prosecutor referred to the 12-pack of beer bottles and Defendant
objected. After Defendant’s objection was overruled by the trial court, the prosecutor clarified
repeatedly that the 12-pack was equal to the amount of alcohol that Defendant obtained, and
pointed out that Beard had testified that he did not see Defendant give any drinks away or throw
drinks out while reviewing the hours of surveillance footage of Defendant at the casino.
In this case, we cannot say that the trial court abused its discretion in overruling
Defendant’s objection to the prosecutor’s statement referencing the 12-pack of beer bottles. First
and foremost, as alluded to supra Point I, B. Analysis, the State’s inference that Defendant
consumed all or most of the drinks that he obtained is a reasonable one that could be drawn from
the evidence presented. The photographic stills and surveillance video of when Defendant
obtained his drinks, Beard’s testimony that he did not see Defendant give any drinks away or
pour drinks out, and testimony by Adams, McGowan, and Sgt. Adams regarding Defendant’s
11 intoxicated state support the inference that Defendant consumed most if not all of the drinks he
obtained. Considering the combined evidence presented, the State’s inference that Defendant
consumed an amount of alcohol equal to or greater than the 12-pack of beer was a reasonable
one that fell within the wide latitude that the State is granted during closing argument. Walter,
479 S.W.3d at 125; Brown, 337 S.W.3d at 14. Further, we find that there is no reasonable
probability that the outcome of trial would have been different absent the prosecutor’s statement,
as that statement simply repeated the evidence presented at trial and made a reasonable inference
from that evidence. See Holmsley, 554 S.W.3d at 410. As such, we find that the trial court did
not abuse its discretion in overruling Defendant’s objection to the prosecutor’s statement during
the State’s closing argument.
Point II is denied.
III. Conclusion
For the foregoing reasons, we find that there was sufficient evidence presented from
which a reasonable jury could have found Defendant guilty beyond a reasonable doubt of the
DWI charge and that the trial court did not abuse its discretion in overruling Defendant’s
objection to the prosecutor’s statement referencing the 12-pack of beer bottles during the State’s
closing argument. The judgment of the trial court is affirmed.
_______________________________ Colleen Dolan, Chief Judge
Robert G. Dowd, Jr., J., concurs. Lisa P. Page, J., concurs.