State v. Wessel

371 S.W.3d 1, 2011 WL 6187116, 2011 Mo. App. LEXIS 1631
CourtMissouri Court of Appeals
DecidedDecember 6, 2011
DocketNo. SD 31009
StatusPublished
Cited by1 cases

This text of 371 S.W.3d 1 (State v. Wessel) 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. Wessel, 371 S.W.3d 1, 2011 WL 6187116, 2011 Mo. App. LEXIS 1631 (Mo. Ct. App. 2011).

Opinion

DON E. BURRELL, Presiding Judge.

Allen C. Wessel (“Defendant”) appeals his conviction of the class D felony of driving while intoxicated (“DWI”). See sections 577.010 and 577.023.3.1 In a single point relied on, Defendant asserts that “the evidence was insufficient to establish beyond a reasonable doubt that [Defendant] ‘operated’ the vehicle he was in.” Finding no merit in Defendant’s claim, we affirm.

Standard of Review

In reviewing the sufficiency of the evidence to support a jury’s verdict, we must “consider whether a reasonable juror could find each of the elements [of the crime] beyond a reasonable doubt.” State v. Grim, 854 S.W.2d 403, 411 (Mo. banc 1993); see also State v. Whalen, 49 S.W.3d 181, 184 (Mo. banc 2001). The evidence and reasonable inferences from it are viewed in the light most favorable to the jury’s verdict, and “[w]e disregard contrary inferences, unless they are such a natural and logical extension of the evidence that a reasonable juror would be unable to disregard them.” Grim, 854 S.W.2d at 411; see also State v. Belton, 153 S.W.3d 307, 309 (Mo. banc 2005). The following summary of the relevant facts is [2]*2presented in accordance with this standard.

Facts

In the late evening of May 7, 2009, Antonio Comacho received a call from his father that prompted him to go into the alley behind his house and look for a truck in the vicinity of Central Auto Sales in Carthage. The back of the business was “less than a football field” away from Mr. Comacho’s house. From his vantage point, Mr. Comacho could see the rear of the business, including an area around a dumpster. He did not see a truck anywhere in that area. Mr. Comacho went back into his house for about 15 or 20 minutes, then came back outside and again looked toward Central Auto Sales. This time, Mr. Comacho saw a truck parked in the grass near the dumpster, and he called the police. Mr. Comacho was far enough away from the truck that he did not see anyone in it and could not hear whether its engine was running.

Police officer Chad Harris was dispatched to investigate a suspicious vehicle report and arrived at Defendant’s truck “[a] few minutes after 10:00 p.m.” (about five minutes after Mr. Comacho had called the police). As Officer Harris approached the truck, he “observed that the vehicle was stationary, [and] there was a large amount of steam emitting from the engine compartment. The vehicle was making a loud noise, again, coming from the engine compartment.” He also described the noise as “strange.” Officer Harris determined that the truck’s engine was running, but “it sounded as if there were some issues with the vehicle[,]” and he agreed with defense counsel’s characterization that “the truck was having mechanical problems[.]” Officer Harris did not check for exhaust. He did not check to see if it was possible to drive the truck, and he did not know if it would move under its own power.

When he got close to the truck, Officer Harris could see “a glow emitting from the dash from the instrument panel and from the radio and you could hear that the radio was on in the vehicle.” Defendant was inside the truck, sitting with his seat reclined backwards. Defendant did not initially respond to knocks on the truck window by Officer Harris and another officer. It took “[s]everal minutes” before Defendant “look[ed] up temporarily to ask [them] to leave.” Officer Harris observed that “[t]he passenger seat and over your [sic] extended cab portion were packed almost to the ceiling” with various items. The officers asked Defendant to step out of the truck, and “[a]s he exited the vehicle, he did take the key out of the ignition, turn it back from the forward position, and he handed the key to [Officer Harris].”

Officer Harris smelled a strong odor of alcohol coming from the inside of the truck and from Defendant’s breath. Defendant “stated that he had drank [sic] two beers the night before.” Defendant also told Officer Harris that he did not have a permanent residence. After Defendant failed four field sobriety tests administered by Officer Harris, Defendant was arrested for DWI and taken to the jail.

Analysis

Defendant “Operated” the Motor Vehicle

Section 577.010.1 provides that “[a] person commits the crime of ‘driving while intoxicated’ if he operates a motor vehicle while in an intoxicated or drugged condition.” (Bolding as stated in original). Section 577.001.2 provides that “[a]s used in this chapter, the term ‘drive’, ‘driving’, ‘operates’ or ‘operating’ means physically [3]*3driving or operating a motor vehicle.”2 (Bolding as stated in original). “Thus, the two essential elements of [DWI] are: (1) operation of a vehicle; (2) while intoxicated.” 3 State v. Mitchell, 203 S.W.3d 246, 249 (Mo.App. S.D.2006). Our high court has applied the plain and ordinary meanings of the words “drive” and “operates” in section 571.001 so that “drive” means “to guide a vehicle along or through” and “operates” means “to cause to function usually by direct personal effort: work (~a car).” Cox v. Director of Revenue, 98 S.W.3d 548, 550 (Mo. banc 2003) (quoting WebsteR’s ThiRD New International Dictionary, 692, 1581 (1993)).

Defendant argues that “[t]he evidence failed to establish that the motor of [Defendant’s] truck worked and, thus, was capable of moving. [Defendant] was fast asleep behind the wheel of a motor vehicle that was apparently not operable.” We disagree.

Defendant relies on State v. Chambers, 207 S.W.3d 194, 199 (Mo.App.S.D.2006) (holding the evidence insufficient to prove that the defendant drove or operated his motor vehicle). Chambers “was discovered slumped over the steering wheel of a car parked in [another person’s] driveway.” Id. at 195. The car’s engine was not running, but the windshield wipers were moving. Id. We stated that “[c]ir-cumstantial evidence may be used to prove the elements of driving while intoxicated, however, in those cases in which the accused’s engine was not running at the time in question, the State must present “ ‘significant additional evidence of driving and the connection of driving in an intoxicated state ... to sustain a criminal conviction.’ ” ” Id. at 197 (internal citations omitted). Chambers did not admit that he had driven or operated the vehicle, and we held the possibility that barking dogs signaled his arrival in the driveway very shortly before he was discovered did “not constitute sufficient proof as to the time of the car’s arrival at the [driveway] to permit an inference of [the defendant’s] operation of the vehicle immediately prior to his discovery.” Id. at 198.

Defendant acknowledges that “[t]he main difference between the cases is that in Chambers the engine was not running, whereas in [Defendant’s] it possibly was.” (Emphasis added.) The distinction from Chambers is greater than Defendant suggests. “[Significant additional evidence of driving” is not required in the instant case because no one testified that the engine was not

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Cite This Page — Counsel Stack

Bluebook (online)
371 S.W.3d 1, 2011 WL 6187116, 2011 Mo. App. LEXIS 1631, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wessel-moctapp-2011.