State v. Graves

358 S.W.3d 536, 2012 WL 246631, 2012 Mo. App. LEXIS 105
CourtMissouri Court of Appeals
DecidedJanuary 26, 2012
DocketNo. SD 31373
StatusPublished
Cited by5 cases

This text of 358 S.W.3d 536 (State v. Graves) 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
State v. Graves, 358 S.W.3d 536, 2012 WL 246631, 2012 Mo. App. LEXIS 105 (Mo. Ct. App. 2012).

Opinion

GARY W. LYNCH, Judge.

Zack Randall Graves (“Defendant”) appeals his conviction for the class A misdemeanor of driving while intoxicated. See section 577.010.1 Defendant contends the trial court erred in convicting him of that charge because there was insufficient evidence that he was operating the motor vehicle in question and insufficient evidence that he had a prior conviction, plea of guilty, or finding of guilt in an intoxication-related traffic offense. Finding no merit in these contentions, we affirm.

Factual and Procedural Background

Defendant was charged by information with driving while intoxicated, in violation of section 577.010, on February 27, 2010. The information alleged that this offense should be punished as a class A misdemeanor, in accordance with sections 558.011, 560.016, and 577.023, because of Defendant’s prior conviction for driving while intoxicated in the Municipal Court of Springfield, Missouri, in 2009.

At trial, before opening statements, defense counsel stated, “We are stipulating that our client is seated here at defense table.” This statement led to the following exchange between the trial judge, defense counsel, and prosecutor:

THE COURT: Anything else?
[Defense Counsel]: No, Your Honor.
[Prosecutor]: Are you stipulating the person pulled over is the person sitting at defense table? Pm sorry. I didn’t understand.
THE COURT: Are you stipulating that the Defendant is the person sitting next to you?
[Defense Counsel]: I’m stipulating that the Defendant in this case is the person sitting next to us. Yes, Your Honor.

Following the above exchange and during Defendant’s opening statement, defense counsel stated, “The evidence will show that my client passed the field sobriety tests that were administered to him.” (Emphasis added).

In presenting its case, the State initially offered into evidence State’s exhibit one, a document that the transcript refers to as a “certified copy of a prior offense.” Defendant initially objected to the exhibit in the following exchange:

[Defense Counsel]: I do object ... if there’s not foundation laid for it.
THE COURT: Well, if it’s a certified copy, then isn’t that foundation?
[Defense Counsel]: I mean, the foundation of it being the same person that was [538]*538convicted is being convicted, in that case being the same person that’s on trial here.
THE COURT: May I see it? All right. It has a date of birth in here. So is there some substantive objection you have or some substantive reason, given your stipulation at the beginning of trial?
[Defense Counsel]: No, Your Honor.

The trial court overruled Defendant’s objection, and Defendant does not challenge that ruling in this appeal.

The State then called its only witness, City of Springfield police officer Clint Collier. During his direct testimony, he was asked, “And, did you come into contact with Zack Gmves on that day?” (Emphasis added). Officer Collier answered in the affirmative. The State also asked Officer Collier, “How did you identify someone as Zack Graves that night?” (Emphasis added). Officer Collier testified that Defendant handed him his Missouri ID, and he went back to his car and “ran [it]” The State also asked Officer Collier, “How did that contact with Mr. Graves come about,” to which Officer Collier replied, “I witnessed his vehicle traveling southbound on Glenstone with no headlights.” (Emphasis added). Also, during direct examination, Officer Collier testified to the course of events transpiring during the traffic stop, including: the field sobriety tests he asked “the defendant” to perform; “Mr. Graves’ ” performance on those tests and signs of impairment; “Mr. Graves’ ” subsequent arrest, transportation to the Greene County Jail; reading of Miranda rights from the Alcohol Influence Report; informing “Mr. Graves” of the Missouri Implied Consent Law; “Mr. Graves’ ” agreement to take a breath test; the administration of the breath test on a BAC DataMaster to “Mr. Graves,” which included giving instructions to “Mr. Graves” and observing “Mr. Graves”; the printed results of that test; and State’s exhibit three described in the transcript as a “BAC Evidence Ticket” that showed “Defendant’s name” and date of birth.

On cross examination, defense counsel questioned Officer Collier about the events of the evening in question, but most notably for this appeal, the following:

Q: Officer, do you know if the vehicle the Defendant was driving had automatic headlights on it? (Emphasis added).
A: I have no idea, sir.
[[Image here]]
Q: And you noted in your report the Defendant’s breath had the faint odor of alcohol, didn’t you? (Emphasis added).
A. I believe so. Yes, sir.
[[Image here]]
Q. Was the Defendant doing anything else that might have made you think the — the breath would be faint instead of moderate or strong? (Emphasis added).
A. Sir, I don’t know — I don’t know why. It smelled faint to me. That’s why I marked it down.
[[Image here]]
Q: ... you noted that the speech of Defendant was mumbling, correct? (Emphasis added).
A. Correct.
[[Image here]]
Q: And on the walk-and-turn, did the Defendant stop while walking to steady himself? (Emphasis added).
A: I don’t recall. I’d have to look in my report, sir.
[[Image here]]
Q: Okay. And you had the Defendant perform the one leg stand, right? (Emphasis added).
A: Yes, sir.
[[Image here]]
[539]*539Q. And then during the 15-minute observation period, you did nothing during that 15-minute observation period other than observe the Defendant, did you? (Emphasis added).
A. I read off the questionnaire on the AIR to him during the 15 minutes.

In closing arguments, defense counsel stated, “He [referring to Officer Collier] didn’t check my client’s mouth.... If my client had something in his mouth ... it could have vastly affected his result.” (Emphasis added).

The trial court found Defendant guilty beyond a reasonable doubt and sentenced Defendant to pay a $350 fine and serve 180 days in the Greene County Jail. The execution of the jail sentence was suspended, and Defendant was placed on unsupervised probation for two years on the conditions that he complete SATOP, perform 60 hours of community service, serve five days of detention in the Greene County Jail, pay $155.00 to Law Enforcement Re-coupment, pay court costs, and pay $10.00 to the Crime Victims Compensation Fund. Defendant timely appealed.

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Cite This Page — Counsel Stack

Bluebook (online)
358 S.W.3d 536, 2012 WL 246631, 2012 Mo. App. LEXIS 105, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-graves-moctapp-2012.