State v. Meanor

863 S.W.2d 884, 1993 Mo. LEXIS 103, 1993 WL 429675

• Court: Supreme Court of Missouri
• Decided: October 26, 1993
• Docket: 75787
• Status: Published

Opinions

HOLSTEIN, Judge.

Shortly after midnight, on September 23, 1989, Steven Eads and his wife, Angela, were traveling west on Highway 100 in Franklin County, returning home from a baseball game in St. Louis. Their Mazda pickup truck was struck head-on by a Ford Ranger pickup truck operated by defendant Robert M. Meanor, who was attempting to pass a third vehicle. Steven Eads was killed and Angela was injured. Defendant was charged with and ultimately convicted of involuntary manslaughter, § 565.024, second-degree assault, § 565.060.1(4), possession of marijuana, § 195.202, RSMo Supp.1992, and possession of drug paraphernalia, § 195.233, RSMo Supp.1992.¹ Defendant was given sentences of five years for manslaughter, three years for assault, six months for possession of marijuana, and six months for possession of drug paraphernalia. He appealed to the Missouri Court of Appeals, Eastern District. Following opinion, this Court granted transfer. Rule 83.03. We affirm.

I.

One who operates a motor vehicle in an intoxicated condition and, when doing so, acts with criminal negligence and causes the death of any person is guilty of involuntary manslaughter. § 565.02^.1(2). Similarly, a person operating a motor vehicle while in an intoxicated condition who acts with criminal negligence so as to cause physical injury is guilty of assault in the second degree. § 565.060.1U). “Intoxicated condition” is defined as “under the influence of alcohol, a controlled substance, a drug, or any combination thereof.” § 565.002U)-

In Count I of the information it is alleged that the defendant was “under the influence of a combination of alcohol and marijuana” when he caused the death of Steven Eads. In Count II, the information alleges that the defendant was under the influence of a combination of alcohol and marijuana when he caused physical injury to Angela Eads. The first point on appeal claims that the trial court should have entered a judgment of acquittal on Counts I and II because the evidence was insufficient to establish defendant was under the influence of drugs and alcohol.

In determining whether the evidence is sufficient, we take the record in a light most favorable to the state and grant the state all reasonable inferences from the evidence. Contrary inferences are disregarded. Viewing the evidence in this light, the Court then decides whether a reasonable juror could find each of the elements beyond a reasonable doubt. State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989). Missouri no longer follows the rule which, in a circumstantial evidence case, required that the evidence must be inconsistent with any reasonable theory of defendant’s innocence in order to support a conviction. State v. Grim, 854 S.W.2d 403, 406 (Mo. banc 1993).

On the evening of September 22, 1989, Robert Meanor and his wife rented a room at the Ramada Inn near Six Flags. They planned an evening out with friends in celebration of Sue Meanor’s birthday. The plan was for Sue to “party” and Robert to remain sober enough to drive. Robert and Sue departed the Ramada with friends Vie and Vicki Williams at about 9:00 p.m. They went to a bar known as Washington Landing, where they drank, danced, and played pinball and shuffleboard until around 11:30 p.m. During this period of time, Sue became very intoxicated. Robert had two or three beers and one “lip licker,” a shot containing Bailey’s, Amaretto, and Kahlua. From the bar the Meanors drove to a Pizza Hut in Washington, Missouri. Meanor and a Pizza Hut employee became engaged in a disagreement over whether Meanor had paid for food which had been ordered. Meanor refused to pay, and Pizza Hut refused to give him his food. Police were summoned. An officer of the Washington Police Department came to the Pizza Hut at around 12:30 a.m. The officer took Meanor outside and eventually persuaded him to leave, threatening to arrest him for trespassing if he did not. Before allowing Meanor to drive, however, the officer ran two field sobriety tests to ensure that Meanor was not impaired. By this time, Sue Meanor was passed out in the Ford pickup truck.

It was less than thirty minutes later that the crash occurred. Seventeen-year-old Randy Beach was driving east on Highway 100 when he noticed the Meanor vehicle approaching rapidly from the rear. Due to the speed with which the vehicle was gaining, Beach believed Meanor was a police officer about to pull him over. Consequently, Beach cheeked his speed. It showed he was driving 63 miles per hour. Beach indicated he slowed little, if any, assuming he was already caught. As Meanor got close, he pulled into the westbound lane of Highway 100 to pass Beach and struck the Mazda pickup truck head-on. Steven Eads died from the injuries he received in the accident. Angela Eads was a passenger in the truck her husband was driving. She received serious physical injuries. A number of travelers stopped at the scene before the arrival of emergency vehicles. Fire in the engine of the Eads vehicle was extinguished.

Highway Patrol officer Vayla Thomas-Nelson arrived at the scene shortly after 1:00 a.m. She observed Robert Meanor lying on the road. Meanor had suffered serious injuries. However, he was conscious and yelling in a manner officer Thomas-Nelson described as “obnoxious.” She observed that he had bloodshot eyes and that his speech seemed somewhat slurred. She testified that at the scene she smelled intoxicants about Meanor’s person. In addition, she detected the odor of burnt marijuana in the cab of the Ford pickup truck. Later that morning, upon visiting Meanor at the hospital, she detected the odor of burnt marijuana about him. In the course of investigating the scene of the accident, officer Thomas-Nelson looked inside the Meanors’ Ford Ranger. In it she discovered a small pipe containing residue of burnt marijuana, an envelope containing a small amount of marijuana, and a plastic bag containing 11 grams of marijuana. The envelope and pipe were in the center of the floorboard more toward the passenger side of the seat. The plastic bag was in a door pouch on the driver’s side. The trooper testified that she was familiar with the odor of marijuana, having smelled burnt marijuana during her training at the Highway Patrol academy and having come into contact with marijuana during her six years on the patrol. When asked if she had an opinion as to whether Meanor was intoxicated, she indicated she had such an opinion and she believed him to be intoxicated.

A blood sample was taken from Meanor. It indicated he had a blood alcohol content of .02%. The blood sample taken was insufficient to be tested for the presence of drugs.

The state’s theory was that Meanor was intoxicated by a combination of alcohol and marijuana. Defendant focuses on officer Theilmann’s testimony indicating defendant was not intoxicated when he left the Pizza Hut, evidence that defendant’s blood alcohol was .02%, one-fifth of the amount constituting prima facie evidence of alcohol intoxication, and the absence of direct evidence that the defendant had consumed marijuana. Defendant discounts the testimony of the Highway Patrol trooper that defendant was intoxicated when she observed him at the scene of the accident, that he smelled of intoxicants and of burnt marijuana after the accident, that marijuana and a device to smoke marijuana were found within defendant’s easy reach after the accident and that the inside of the Meanors’ pickup smelled of marijuana.

In the case of alcohol intoxication, the courts of this state have consistently held that intoxication sufficient to sustain a conviction may be proved by a lay witness who has had a reasonable opportunity to observe the alleged offender. State v. Ruark, 720 S.W.2d 453, 454 (Mo.App.1986); State v. Walker, 588 S.W.2d 726, 727 (Mo.App.1979); and State v. Powell, 306 S.W.2d 531, 532 (Mo.1957). No Missouri case has yet determined whether lay witness testimony of intoxication by drugs is sufficient to sustain a conviction. Outside of this state there are apparently two lines of authority. One line of authority is represented by People v. Jacquith, 129 Ill.App.3d 107, 84 Ill.Dec. 357, 472 N.E.2d 107 (1984), and State v. Rifkin, 140 Vt. 472, 438 A.2d 1122 (1981). The other line of authority is characterized by Harris v. District of Columbia, 601 A.2d 21 (D.C.App.1991), and State v. Lindley, 286 N.C. 255, 210 S.E.2d 207 (1974).

Both Rifkin and Jacquith turn on the competency of arresting officers to testify as expert witnesses in identifying the characteristics of a person who has consumed drugs. The problem with these two cases is, they fail to distinguish between the admissibility of the evidence of intoxication and the sufficiency of the evidence of intoxication. Rifkin rejected the testimony of the arresting officer regarding the defendant’s impairment as sufficient evidence because “drugs can produce a confusing array of symptoms which cannot be sorted out without specialized training.” 438 A.2d at 1124. In Jacquith, the court held that the police officers were non-experts and were not competent to testify as to the defendant’s intoxication, thus, the evidence was insufficient. 129 Ill.App.3d 107, 84 Ill.Dec. 357, 472 N.E.2d at 112-13. But in this case, the Court is not called on to decide whether the trooper’s opinion was admissible.

Another distinction is found in the particular statutes of the states in question. Both the Vermont and the Illinois statutes contain a special requirement that to convict one of driving under the influence of drugs, the influence must be to a degree that renders such person incapable of safe driving. III. Rev.Stat. ch. 95 1/2, para. ll-501(a)4 (1982), and Vt.Stat.Ann. tit. 23, § 1201(a)(3) (1987). See also Smithhart v. State, 503 S.W.2d 283 (Tex.Cr.App.1973), holding that to convict under a statute which required proof that the defendant was “under the influence of drugs to a degree which rendered him incapable of safely operating the vehicle” required expert testimony connecting the symptoms to the drug. 503 S.W.2d at 286; Tex.Rev.Civ.St. Ann. art. 6701d, § 50 (West 1977). Missouri has no special statute requiring proof of any particular degree of impairment by drugs.

Other jurisdictions having statutes similar to Missouri’s have concluded that the proof required to establish driving under the influence of drugs should be no greater and no different from the proof required to establish driving under the influence of alcohol, other than the evidence must relate to the particular substance involved. “There is no reason why the same level of proof should not suffice to support a conviction for driving under the influence of drugs.” Harris v. District of Columbia, 601 A.2d at 27. These eases hold that the court must consider all the evidence admitted, whether competent or not, in a light most favorable to the state. Whether such evidence is direct, circumstantial, or both, if there is evidence from which the jury could find that the defendant operated a motor vehicle while under the combined effects of alcohol and drugs, the conviction should be affirmed. State v. Lindley, 210 S.E.2d at 210.

The Harris and Lindley cases are consistent with the prior decisions in Missouri which permit conviction of intoxicated driving even on the testimony of a lay witness. Where there is evidence that a person has recently consumed alcohol and marijuana and is then observed exhibiting signs of impaired judgment and motor skills consistent with intoxication, reasonably intelligent jurors may conclude that the cause of the impairment is the combined effects of alcohol and marijuana.

Here there is no issue on appeal as to the admissibility of the officer’s opinion that defendant was intoxicated. The cause of such intoxication, ingestion of a combination of alcohol and marijuana, is clearly inferable from the circumstantial evidence in the case. The claim that the evidence of intoxication was insufficient is denied.

II.

In the second point on appeal, defendant argues that he should be granted a new trial because the prosecuting attorney told the jury during opening statement that appellant’s driver’s license was suspended at the time of the accident. This was Count V of the original information and was not submitted to the jury nor was evidence in support of Count V actually produced.

The state attempted to introduce Meanor’s driving record at trial. However, defendant objected to its admission, and the objection was sustained. References during opening statement to arguably admissible evidence made in good faith with a reasonable expectation that the evidence will be produced are not cause for reversal. State v. Brooks, 618 S.W.2d 22, 24 (Mo. banc 1981). Point II is denied.

III.

Defendant’s third point is that the evidence is insufficient to establish that defendant was intentionally and consciously in possession of drugs and drug paraphernalia. Where the possession is based on constructive possession of drugs found in a jointly controlled vehicle, there must be additional facts to buttress the inference that the defendant had knowledge of the presence of the controlled substance before constructive possession is shown. State v. Adkins, 800 S.W.2d 28, 30 (Mo.App.1990).

Robert Meanor owned the truck. He and his wife, Sue, had been married just one week. The largest amount of marijuana was found in the driver’s side pouch, within easy reach. There was a smell of burnt marijuana in the truck and the odor of marijuana about Meanor’s person, indicating recent use of marijuana. Sue denied having used marijuana that night.

The facts in State v. Bowyer, 693 S.W.2d 845 (Mo.App.1985), on which Meanor relies, are readily distinguishable. In that case the defendant was driving a car of his estranged wife. It was the first time he had been in the car in six months and all the marijuana was concealed in a container within the console between the two front seats. In the present case, Meanor owned and had routine access to the truck and there was ample evidence of recent use of marijuana. Thus, the facts are sufficient to establish Meanor’s intentional and conscious possession of the marijuana and the pipe. The third point is denied.

IV.

In his final point, defendant challenges the sufficiency of the information, pointing out that it fails to indicate that he possessed drug paraphernalia with the “intent to use” such paraphernalia. § 195.233.1, RSMo Supp.1992.

Meanor first raised this defect in his motion for new trial.

When the issue [of a defective information] is raised for the first time after verdict, the indictment or information will be deemed insufficient only if it is so defective that (1) it does not by any reasonable construction charge the offense of which defendant was convicted or (2) the substantial rights of the defendant to prepare a defense and plead former jeopardy in event of acquittal are prejudiced.

State v. Parkhurst, 845 S.W.2d 31, 35 (Mo. banc 1992). In Parkhurst, the word “knowingly” was omitted from an information charging the defendant with brandishing a deadly weapon. Here also a mental element was omitted from an information which was otherwise complete. Like Parkhurst, the information here included a reference to the statute under which Meanor was charged, the date of the offense and a description of the device he possessed. The information is not so defective that it can be said not to charge the offense of which defendant was convicted. The information is sufficiently detailed to permit him to prepare a defense and to permit him to plead former jeopardy if charged again. Point IV is denied. Judgment affirmed.

COVINGTON, C.J., and BENTON, THOMAS, and LIMBAUGH, JJ., concur. ROBERTSON, J., concurs in part and dissents in part in separate opinion filed. PRICE, J., concurs in opinion of ROBERTSON, J.

1 . References to statutes are to RSMo 1986 unless otherwise stated.