Court of Appeals of Missouri, Eastern District, Third Division
from the Circuit Court of Warren County 13BB-CR00834-02
Honorable Keith M. Sutherland
M. Gaertner, Jr, Presiding Judge.
A, Lopez (Defendant) appeals from the trial court's entry
of judgment and sentence after a jury found him guilty of
driving while intoxicated (DWI), endangering the welfare of a
child, and driving without a valid license. He argues on
appeal that there was insufficient evidence supporting the
DWI charge, and that the trial court plainly erred in
permitting an instructional error and improperly applied the
law. We affirm.
State charged Defendant with the class B misdemeanor of DWI
(Count I), the class A misdemeanor of endangering the welfare
of a child in the second degree (Count II), and the class A
misdemeanor of driving without a valid license (Count III),
stemming from a one-vehicle accident on March 30,
2016 trial, Sergeant Aaron Sutton with the Warren County
Sheriffs Department testified to the following. Around 7:30
p.m. on March 30, 2013, he responded to a dispatch call
reporting a vehicle accident, where he discovered that a
vehicle had gone off the roadway and struck a tree. When
Sergeant Sutton arrived at the scene, Defendant was outside
the vehicle but identified himself as the driver and stated
his five-year-old son, O.L., was in the vehicle with him at
the time of the accident. Defendant produced a Mexican
identification card, but he did not have a Missouri
driver's license or an international driver's
license. Sergeant Sutton testified that he believed a Mexican
identification card was the same as a Mexican driver's
license. However, he also testified without objection that
Missouri does not recognize a Mexican identification card as
a valid driver's license and that a Mexican
identification card does not grant a person driving
privileges in Missouri.
speaking with Defendant, Sergeant Sutton noticed a moderate
smell of alcohol on Defendant's breath, Defendant's
speech was slightly slurred, he was swaying, and his eyes
were bloodshot, watery, and glassy. Although Defendant
initially denied drinking alcohol, Sergeant Sutton
administered a partial horizontal gaze nystagmus (HGN) test-a
field sobriety test-which showed a distinct nystagmus in both
of Defendant's eyes, indicating impairment. On
cross-examination, Sergeant Sutton agreed that a nystagmus
could also indicate a head injury and Defendant had an
abrasion on his forehead following the accident.
Sutton took Defendant into custody on suspicion of DWI. At
the police station, Sergeant Sutton read Defendant his rights
and administered three additional field sobriety tests to
Defendant, two of which indicated impairment. During booking,
Defendant admitted that he had consumed six beers between
3:30 p.m. and the accident, which Defendant stated occurred
around 7:20 p.m.
moved for a judgment of acquittal on Counts I and II at the
close of the State's evidence. The trial court denied the
motion and then submitted instructions to the jury without
objection. The jury found Defendant guilty on all counts. The
trial court sentenced Defendant to concurrent terms of 30
days in the county jail on Count I and 60 days in the county
jail on Count II. On Count III, the trial court issued
Defendant a fine. This appeal follows.
first point on appeal, Defendant argues the trial court erred
in overruling his motion for judgment of acquittal on Count
I, the DWI charge, because there was insufficient evidence
supporting his conviction. We disagree.
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. Gibbs. 306 S.W.3d 178, 181 (Mo. App.
E.D. 2010). We accept as true all evidence and favorable
inferences supporting the jury's verdict and disregard
all contrary evidence and negative inferences. Id.