State v. Carson

898 S.W.2d 555, 1995 Mo. App. LEXIS 1006, 1995 WL 319041
Missouri Court of Appeals·Decided May 30, 1995·No. Nos. WD 49128, WD 50176·Published·Cited by 6 cases

Opinion

FENNER, Chief Judge.

A jury convicted appellant, Dennis Carson, of leaving the scene of an accident, driving while revoked, and driving while intoxicated. He appeals the denial of his motions for judgment of acquittal at the close of the State’s case and at the close of all the evidence, and the court’s sentencing him on his conviction for leaving the scene of an accident. He also appeals his sentence for driving while revoked, and the denial of his Rule 29.15 motion for post-conviction relief.

On April 23, 1993, appellant smashed his truck into the side of a 1969 Toyota Land Cruiser. The Land Cruiser belonged to Terry and Brad Dale, and it was parked on the street in front of their house when appellant hit it. There was damage to the front, back, and side of the Land Cruiser, as the collision left the Land Cruiser wrapped around a pole. Appellant drove away after hitting the Land Cruiser, but then came back and parked under a light on the street. Terry Dale heard the collision and called the police. She and her daughter were on the front porch waiting for the police to arrive when appellant returned. Dale’s daughter wrote down the truck’s license plate number. Dale was able to see that the truck was blue, the front of the truck was smashed, there was steam coming out of the truck, and that the driver of the truck was a man and the passenger was a woman. The appellant drove away a second time.

The police later found the truck, parked in the middle of another street, with appellant and the passenger still in it. The engine of the truck was warm, and the truck was damaged. The police found paint on the truck [557] that matched the color of the Land Cruiser, and also found paint on the Land Cruiser that matched the color of the truck.

Appellant did not have a driver’s license, as his license was revoked. The police officer smelled alcohol on his breath, and appellant admitted that he had consumed a couple of beers. There were several beer cans in the car, appellant’s speech was slow and slurred, his eyes were bloodshot, he swayed and stumbled as he walked, and he had to hang on to the truck in order to stand. The officers believed appellant was intoxicated, but appellant refused to take both a field sobriety test and a breathalyzer test. The officers arrested the appellant, and appellant was charged as a prior offender and a prior intoxication-related offender with leaving the scene of a motor vehicle accident, driving while revoked, and driving while intoxicated. At trial, the jury convicted appellant of all three offenses.

In his first point, appellant argues that the trial court erred in overruling his motions for judgment of acquittal at the close of the State’s case and at the close of all the evidence, and in sentencing appellant on his conviction for leaving the scene of an accident. Appellant argues that the State failed to produce sufficient evidence to prove that the accident resulted in property damage in excess of $1,000, which is the element necessary to change the crime of leaving the scene of an accident from a class A misdemeanor to a class D felony under section 577.060.3, RSMo 1994.

In determining whether there is evidence sufficient to support a finding of guilty, this court accepts as true all evidence favorable to the verdict, including all favorable inferences to be drawn from the evidence, and disregards all contrary evidence and inferences. State v. Grim, 854 S.W.2d 403, 405 (Mo. banc), cert. denied, — U.S. -, 114 S.Ct. 562, 126 L.Ed.2d 462 (1993). We will neither weigh the evidence nor judge the reliability or credibility of witnesses. State v. Villa-Perez, 835 S.W.2d 897, 900 (Mo. banc 1992); State v. Marlow, 888 S.W.2d 417, 421 (Mo.App.1994). Our review is limited to a determination of whether there is sufficient evidence from which a reasonable jury could have found the defendant guilty beyond a reasonable doubt. Marlow, 888 S.W.2d at 421.

Appellant contends that Terry Dale’s testimony as to the value of her Land Cruiser both before and after appellant hit it was insufficient to establish that the damage was more than $1,000. However, the case appellant cites in support of this contention, State v. Watkins, 804 S.W.2d 859 (Mo.App.1991), is distinguishable from the present case. In Watkins, the owner of the damaged property testified at trial only that his car was a “honey” and a “cream puff,” and that the car was “totally demolished” and “wrecked beyond recognition.” Id. at 861. There was no evidence presented as to the monetary damage to the vehicle.

By contrast, in this case Terry Dale testified at trial that the value of the Land Cruiser before the accident was $1,500, and that the damage to the vehicle was more than what the vehicle was worth. As an owner of the Land Cruiser, Terry Dale’s opinion of the value of her property before and after the collision is sufficient to take the issue that the vehicle was damaged in excess of $1,000 to the jury. State v. Harris, 873 S.W.2d 887, 890 (Mo.App.1994). See also Schreiber v. Bradford, 754 S.W.2d 41, 42 (Mo.App.1988). Further, the court in Watkins even suggested that “[o]ne additional question to the owner of the car would in all probability have established the monetary damage.” Watkins, 804 S.W.2d at 861 (emphasis added). Appellant’s first point is without merit.

Appellant’s second point is that the court plainly erred in sentencing appellant as a prior offender on his conviction for driving while revoked. Appellant argues that while the count of leaving the scene of an accident contained the prior offender allegations and the count of driving while intoxicated contained the prior intoxication-related offender allegation, the count of driving while revoked in the amended information did not contain any prior offender allegations. Therefore, he contends, the trial court erred in sentencing him as a prior offender on that count.

[558] Appellant, recognizing that this point has not been preserved for appellate review, requests plain error review pursuant to Rule 80.20. Under the plain error rule, we will set aside the trial court’s ruling only when it affects the rights of the accused to the extent that manifest injustice or miscarriage of justice will result if left uneorrected. State v. Swigert, 852 S.W.2d 158, 160 (Mo.App.1993); State v. Sandies, 740 S.W.2d 169, 177 (Mo. banc 1987), cert. denied, 485 U.S. 993, 108 S.Ct. 1303, 99 L.Ed.2d 513 (1988).

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State v. Carson, 898 S.W.2d 555, 1995 Mo. App. LEXIS 1006, 1995 WL 319041 (Mo. Ct. App. 1995).

898 S.W.2d 555 (State v. Carson) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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