STATE v. OWEN (2012)

Benjamin Scott Owen appeals his conviction for driving while intoxicated. He contends the evidence was insufficient to establish that he was operating his vehicle, as required by Section 577.010.¹ For reasons explained herein, we affirm.

Factual and Procedural History

At 9:30 a.m. on March 19, 2011, Travis Fricke, a tow truck driver, received a dispatch call regarding a pickup truck that was in a ditch alongside 13 Highway in Lafayette County. On his way to the location, Fricke notified Joshua Utz, a Highway Patrol trooper. Fricke contacted the trooper because the truck was located on a portion of 13 Highway that was closed and barricaded due to a bridge outage. Based on protocol with the Highway Patrol, Fricke was to notify the troopers whenever he received a call to tow a vehicle under such circumstances.

Fricke arrived at the location at 10:00 a.m. and saw the truck in a ditch, with the keys in the ignition and the engine running. He saw Owen asleep in the driver's seat, leaning against the driver's side door. Fricke did not see anyone else in or around the truck. He beat on the door, but Owen did not answer. Fricke then opened the door and “hollered” at Owen. Owen did not awaken. Fricke noticed the strong odor of alcohol coming out of the truck. Fricke took one of Owen's shoes and started tapping him with it. Owen woke up at that point and told Fricke that he was glad Fricke was there. As Owen spoke, Fricke noticed that his speech was “really vague.”

After waking Owen, Fricke hooked his cable to the truck. Owen shifted the truck's gears to “neutral,” and Fricke pulled the truck up the hill. Once the truck was out of the ditch and on the highway, Fricke told Owen to put the truck in “park.” When Owen did not do so, Fricke went back to the truck and saw that Owen was passed out and leaning against the driver's side door. Fricke again told Owen to put the car in “park,” and Owen complied.

At this point, which was around 10:30 a.m., Utz arrived and had Owen perform several standardized field sobriety tests. During the Horizontal Gaze Nystagmus test, Owen exhibited all six indicators of intoxication. Owen did not follow Utz's instructions for the one-leg stand test, and he had difficulty following Utz's instructions for the walk-and-turn test. During all of the field sobriety tests, Utz noticed that Owen was swaying. Utz also noticed that Owen's eyes were red, bloodshot, and glassy, and he smelled of alcohol. Based upon his training and experience, as well as the field sobriety tests, Utz opined that Owen was impaired. According to Utz, Owen appeared like “somebody that was drinking the night before and was still intoxicated from a heavy night of drinking.”

Utz arrested Owen and transported him to the Lafayette County Sheriff's Department.² At the Sheriff's Department, Owen told Utz that he drank beer from 9:00 p.m. until 2:00 a.m. and that he was asleep in his truck for three hours before Fricke arrived.

The State charged Owen, as a prior offender, with driving while intoxicated in violation of Section 577.010. Following a bench trial, the court found Owen guilty. The court sentenced him to ten days in jail and assessed a $400 fine. Owen appeals.

Standard of Review

Owen's sole point on appeal challenges the sufficiency of the evidence to support his conviction. When reviewing the sufficiency of the evidence in a bench-tried criminal case, we apply the same standard as in a jury case. State v. Sladek, 835 S.W.2d 308, 310 (Mo. banc 1992). Appellate review is limited to a determination of whether the State presented sufficient evidence from which a reasonable fact-finder could have found the defendant guilty beyond a reasonable doubt. State v. Crawford, 68 S.W.3d 406, 408 (Mo. banc 2002). We accept as true all evidence and inferences favorable to the State and disregard all contrary evidence and inferences. Id. at 407–08.

Analysis

The offense of driving while intoxicated under Section 577.010 requires proof of two elements: (1) the defendant operated a motor vehicle; and (2) the defendant was intoxicated. State v. Wilson, 343 S.W.3d 747, 751 (Mo.App.2011). In this appeal, Owen does not dispute that he was intoxicated. He disputes only that he operated his truck while in that condition.

Section 577.001.2 provides that the terms “drive,” “driving,” “operate,” and “operating” mean “physically driving or operating a motor vehicle.” Our Supreme Court has determined the plain and ordinary meaning of the words “drive” and “operate” as used in that statute. In Cox v. Director of Revenue, the Court found that “drive” means “ ‘to guide a vehicle along or through,’ “ while “operate” means “ ‘to cause to function usually by direct personal effort: work ( ̃a car).’ “ 98 S.W.3d 548, 550 (Mo. banc 2003) (quoting Webster's Third New International Dictionary 692, 1581 (1993)).

The Court applied these definitions and found that Cox, who was discovered asleep or unconscious in the driver's seat of a vehicle with the keys in the ignition, its engine running, and the shift lever in “park,” was not driving the vehicle because it was motionless. Id. The Court did find, however, that Cox met the “bright-line test to operate a car, as he caused its motor to function.” Id. The Court concluded that, if the key is in the ignition and the engine is running, an officer may have probable cause to believe that the person sitting behind the steering wheel is operating the vehicle under Section 577.001.2.³ Id. The Court stated that this is true “even if that person is sleeping or unconscious.” Id.

In this case, as in Cox, Owen was discovered asleep in the driver's seat of his vehicle with the keys in the ignition, its engine running, and the truck's shift lever in “park.” Thus, under Cox, Owen met the “bright-line test” for operating the vehicle, as he caused the truck's motor to function. Owen's moving the truck's shift lever from “park” to “neutral” before the truck was towed and from “neutral” to “park” after the truck was towed onto the highway constituted further acts of operating the vehicle, as he caused the truck's transmission to function.⁴

Nevertheless, Owen argues that, because the truck was in a ditch and was not capable of movement until it was removed from the ditch, it was “not in a position to be operated.” In support of this argument, he relies on State v. Wiles, 26 S.W.3d 436 (Mo.App.2000). In Wiles, the court ruled that the driver, who was asleep in the driver's seat of his vehicle with its engine running and shift lever in “park,” was operating the vehicle because he was “engaging the machinery of his vehicle and was in a position to manipulate its movement.” Id. at 441. Owen contends that, unlike the driver in Wiles, he was not in a position to manipulate the truck's movement because it could not be moved and, therefore, he does not meet Section 577.001.2's definition of operating. We disagree that the language of the Wiles decision is controlling.

The Supreme Court decided Cox after the Southern District of this court decided Wiles. Although the Supreme Court cited Wiles for the proposition that a sleeping or unconscious person can be deemed to be operating a vehicle, Cox, 98 S.W.3d at 550, the Court did not adopt Wiles's language that a person is operating a vehicle when he is “engaging the machinery of his vehicle and [is] in a position to manipulate its movement.” Instead, the Court determined that the “bright-line test” for operating a vehicle within the plain and ordinary meaning of Section 577.001.2 is causing the vehicle's motor to function. Id. Cox's definition of operating does not require that the vehicle be capable of movement when the motor is functioning.⁵ Operating is demonstrated it if the key is in the ignition, the engine is running, and the person is sitting behind the steering wheel. Id. at 550–51.

The evidence was sufficient to show that Owen was operating his truck within the meaning of Section 577.001.2. Owen does not dispute that he was intoxicated at the time he sat behind the steering wheel of his vehicle with his keys in the ignition and the engine running. Accordingly, the circuit court did not err in finding Owen guilty of the offense of driving while intoxicated under Section 577.010, because he operated his motor vehicle while in an intoxicated condition.

Conclusion

We affirm the circuit court's judgment.

FOOTNOTES

1.  All statutory references are to the Revised Statutes of Missouri 2000, as updated by the Cumulative Supplement 2011.

2.  Once there, Utz asked Owen to submit to a breathalyzer test, and he complied. At trial, Owen objected to the admission of the test results, arguing that Utz did not sufficiently observe him for fifteen minutes prior to administering the test. The court admitted the test results subject to Owen's objection. In its judgment, the court found that, based upon Fricke's and Utz's testimony alone, without the admission of the test results, Owen was intoxicated. Owen does not challenge this finding.

3.  When Cox was decided, the definition of “drive” and “operate” was in Section 577.001.1, RSMo 2000. In 2005, the statute was renumbered, and the definition is now in Section 577.001 .2.

4.  Pursuant to Cox, Owen was not operating the truck when he turned off its ignition, as that caused the truck not to function. 98 S.W.3d at 551. Contrary to Owen's claim, the same cannot be said of his moving the shift lever from “neutral” to “park” after the truck was back on the highway. As noted, his moving the shift lever caused the truck's transmission to function. Moreover, the engine was running when he put the truck in “park,” so the truck's motor was also functioning at that time.

5.  Even if it did, the record indicates that Owen's truck was capable of movement after Fricke towed it onto the highway. Utz testified that, before he left, he moved the truck to the shoulder of the road. Thus, the court could reasonably infer that, when Owen was sitting behind the wheel with the engine running and moved the shift lever from “neutral” to “park” after the tow, the truck was capable of movement.

LISA WHITE HARDWICK, Judge.

ALL CONCUR.