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State v. Lopez

Court of Appeals of Missouri, Eastern District, Third Division

November 7, 2017

STATE OF MISSOURI, Respondent,
v.
FRANCISCO A. LOPEZ, Appellant.

         Appeal from the Circuit Court of Warren County 13BB-CR00834-02 Honorable Keith M. Sutherland

          Gary M. Gaertner, Jr, Presiding Judge.

         Introduction

         Francisco 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.

         Background

         The 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, 2013.[1]

         At a 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.

         While 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.

         Sergeant 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.

         Defendant 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.

         Discussion

         Point I

         In his 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.

         We 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. ...


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