STATE OF MISSOURI v. GEORGE F. PUTNEY
No. ED102420
In the Missouri Court of Appeals, Eastern District, Division Four
FILED: October 27, 2015
Appeal from the Circuit Court of St. Louis County; Honorable Michael D. Burton
KURT S. ODENWALD, Judge
Appellant George Putney (“Putney“) appeals from the judgment of the trial court entered following a bench trial. The trial court found Putney guilty on two counts: leaving the scene of a motor vehicle accident (Count I) and first-degree involuntary manslaughter (Count II). Putney argues that the trial court erred in denying his motion for judgment of acquittal. Putney contends there was insufficient evidence to find, beyond a reasonable doubt, that he was driving while in an intoxicated condition at the time of the accident. Accordingly, Putney argues that his conviction under Count II should be overturned. Because the evidence and reasonable inferences therefrom, though circumstantial, are sufficient to support a finding that Putney operated his vehicle while in an intoxicated condition at the time of the accident, we affirm the judgment of the trial court.
On January 26, 2012, Putney went to Arena Bar for lunch around noon. Arena Bar was located at the 5600 block of West Park in the City of St. Louis. Lisa Kehm (“Kehm“) owned the bar with her husband. Kehm waited on Putney that day. Kehm recognized Putney as she had known him for twenty years, was one of his good friends, and Putney was a regular customer at the bar. Kehm served Putney two cans of Pepsi and lunch. Kehm denied serving Putney any alcohol. Kehm also stated that no one else served Putney alcohol while she was at the bar. Kehm left the bar after her shift, which ended about 2:00 or 2:30 P.M. Putney was still at the bar when Kehm left. Putney‘s credit-card receipt from that afternoon was timestamped at 4:11 P.M. While the receipt was not itemized, Kehm testified that Putney‘s lunch would have cost $10, and his two sodas were $2 each, for a total of around $14. According to the receipt, Putney‘s bill was $33.40. At the time, a glass of beer was $3, and mixed drinks were $4.25. There was no testimony as to what Putney consumed after Kehm left around 2:30 P.M.
Putney was later seen a short distance away at St. James the Greater Catholic Church, in the Dogtown neighborhood of the City of St. Louis, coaching youth basketball. Putney conducted the practice in his dress shirt, dress slacks, and dress shoes. Susan Faccaro (“Faccaro“), the mother of a child on the team, was at the practice and noticed Putney demonstrating basketball moves. At one point, Faccaro saw her son on the ground and Putney standing over him. Another time, she saw Putney blocking Emeric, another boy on the team, to the ground. Faccaro noticed Putney was having an obvious problem with his balance during the practice and was more “aggressive” and “physical” with the ten-year-old boys than usual. In a discussion after practice, Faccaro found Putney to be more “happy” and “excitable” than usual, though she had only talked to him a few times. Putney was talking fast and repeating himself. Faccaro thought Putney was “acting weird.” Faccaro and Chris Prichard (another parent) pulled
Eliza Coriell (“Coriell“) was also a server at Arena Bar. Coriell testified that she started her shift around 6:15 P.M. She could not remember whether Putney was there when she began her shift. Coriell did not serve Putney any drinks, but did remember serving him water. Coriell did not notice anything unusual. At some point, Putney left Arena Bar and stopped by Jack in the Box. A Jack-in-the-Box receipt found in Putney‘s vehicle was timestamped at 7:23 P.M.
At approximately 7:35 P.M., Kayla Taylor (“Taylor“) was driving eastbound on Clayton Road, near Mason Road in west St. Louis County. Taylor saw a sudden movement from a westbound vehicle. The westbound vehicle, a GMC Envoy, travelled into the eastbound lane. Taylor did not see the actual collision because her view was obscured by the vehicle in front of her, but the westbound Envoy collided with an eastbound Volvo in the eastbound lane. Mark Cusumano (“Cusumano“) was a passenger in a vehicle near the scene. Cusumano immediately exited his vehicle and approached the accident scene. The driver of the Volvo (“Victim“) was nonresponsive. Cusumano testified that the driver of the Envoy repeatedly tried to start his engine. Concerned that starting the Envoy would ignite spilled fluids at the accident scene, Cusumano yelled at the driver to stop. Several other bystanders also attempted to stop the driver. The driver managed to start his engine and drove westward, slowly. The driver nearly hit Cusumano‘s vehicle while leaving the scene. Cusumano identified Putney as the driver.
Well, what caught my attention mainly was the manner in which [the man] was moving. He was very—[h]e seemed distressed, and he was moving in a rather awkward fashion. His hands were kind of up, like he was bracing for a fall. Not real controlled is what I thought. And there was kind of a teetering in his walk, a fast-paced walk. ... Side to side.
Police officers arrived on the scene about 7:40 P.M., roughly five minutes after the accident. The officers found the Volvo still sitting in the eastbound lane on Clayton Road, and they found the Envoy a short distance away in a drainage ditch. Police found Victim inside the Volvo. Victim was nonresponsive at the scene, and was pronounced dead at the hospital. The cause of death was blunt trauma to the chest.
Detectives searched the Envoy‘s crash data retrieval system, which revealed that the Envoy was travelling at forty-two miles per hour at the time of the crash. No brakes were applied in the eight seconds leading up to the crash. The crash data retrieval system also showed constant pressure on the throttle; there was no increase or decrease in pressure on the throttle in the seconds before the crash.
The team processed the rest of the scene around the Envoy, which was mired in mud. A single dress shoe was found lying on the ground. Inside the Envoy, officers found Putney‘s wallet, a hamburger, onion rings, and other items from Jack in the Box. As mentioned above, the receipt from Jack in the Box was timestamped at 7:23 P.M. The interior of the Envoy smelled of alcohol and airbag material. The team also found a styrofoam cup in the middle console, which contained a pink liquid. The cup resembled the cups used by Arena Bar. Emily Smelser (“Smelser“), a criminalist with the Missouri State Highway Patrol Crime Lab, conducted an alcoholic beverage analysis on the pink liquid inside the cup. The results of the liquid were 5.41% ethanol by volume positive, and 4.31% by weight. These measurements allowed Smelser to conclude that the liquid inside the cup was an alcoholic beverage, though the testing could not specify the type of alcohol.
Officers ran the plates on the Envoy and determined that it was registered to Putney. Officers were immediately dispatched to Putney‘s residence. Putney was not home. Putney‘s wife answered the door and agreed to call Putney. Putney answered his cell phone and talked to Officer Janet Nisbet (“Officer Nisbet“). Putney assured Officer Nisbet that he was nearby, and that he would come home. About an hour later, Putney‘s wife called him again. Putney answered, said he did not need a ride, and hung up after his wife asked him when he was coming home. Officers waited at Putney‘s house for four hours, but Putney never came home. At 10:56
Putney went back to Arena Bar the next morning. Kehm (the bar owner) allowed Putney to use the office phone for about 45 minutes, in private. When asked what was wrong, Putney told Kehm that “something terrible occurred.” Three days after the accident, on January 29, 2012, Putney turned himself into police. The State charged Putney with two counts: leaving the scene of a motor vehicle accident (Count I), and first-degree involuntary manslaughter (Count II). Putney waived a jury trial. At trial, Putney did not testify or present any evidence. The trial court found Putney guilty on both counts. The court denied Putney‘s post-trial motion for judgment of acquittal. The trial court sentenced Putney to four years on Count I and ten years on Count II. The sentences were run concurrently. Putney filed his timely notice of appeal on December 16, 2014. This appeal follows.
In his sole point on appeal, Putney argues that the trial court erred in overruling his motion for judgment of acquittal on Count II, first-degree involuntary manslaughter.
Specifically, Putney maintains that the State did not present evidence sufficient to prove beyond a reasonable doubt that Putney was operating a motor vehicle while intoxicated. Putney contends there was insufficient evidence to prove that he was ever intoxicated on January 26, 2012. Even if such evidence existed, Putney argues the evidence was not sufficient to show he was intoxicated at the time of the collision with Victim.
We view the sufficiency of the evidence in the light most favorable to the State. State v. Grim, 854 S.W.2d 403, 411 (Mo. banc 1993). We grant the State all reasonable inferences from the evidence. State v. Langdon, 110 S.W.3d 807, 811-12 (Mo. banc 2003). In doing so, we will not supply missing evidence or give the State the benefit of unreasonable, speculative, or forced inferences. State v. Schroeder, 330 S.W.3d 468, 475 (Mo. banc 2011). Conversely, we disregard all contrary inferences, unless the inferences are “such a natural and logical extension of the evidence that a reasonable [fact finder] would be unable to disregard them.” Grim, 854 S.W.2d at 411. In considering whether the State presented sufficient evidence to sustain a conviction, we consider each of the elements in turn. Id. Viewing the evidence in this light, the issue becomes “whether a reasonable [fact finder] could find each of these elements beyond a reasonable doubt.” Id.
Discussion
Involuntary manslaughter has several forms under Section 565.024.1 The form of involuntary manslaughter charged by the State against Putney occurs when the defendant “[w]hile in an intoxicated condition operates a motor vehicle ... and, when so operating, acts with criminal negligence to ... [c]ause the death of any person not a passenger in the vehicle ... operated by the defendant.” Section 565.024.1(3)(a). Putney does not contest that he was driving his Envoy when he struck Victim‘s vehicle, that he acted with criminal negligence, or that he caused Victim‘s death. Putney challenges the trial court‘s finding that the State presented
In matters of alcohol intoxication, evidence of intoxication sufficient to sustain a conviction may be introduced through the testimony of lay witnesses who had a reasonable opportunity to observe the alleged offender. State v. Meanor, 863 S.W.2d 884, 887 (Mo. banc 1993). While helpful, the State need not produce the results of a chemical test to prove intoxication. State v. Hall, 201 S.W.3d 599, 603 (Mo. App. S.D. 2006). Intoxication may be proven through circumstantial evidence. State v. Neal, 979 S.W.2d 223, 225 (Mo. App. S.D. 1998); see also State v. Jackson, 439 S.W.3d 276, 278 (Mo. App. E.D. 2014) (“Circumstantial evidence alone can be sufficient to support a conviction“). Circumstantial evidence means evidence that does not directly prove a fact, but it gives rise to a logical inference that the fact exists. State v. Mayfield, 83 S.W.3d 103, 107 (Mo. App. S.D. 2002).
I. The trial court could reasonably infer that Putney was drinking at Arena Bar during the afternoon of January 26, 2012.
Putney arrived at Arena Bar on January 26, 2012 around noon for lunch. Putney remained at Arena Bar for approximately four hours, until at least 4:11 P.M., when his receipt was timestamped. The receipt was not itemized, but Putney‘s total bill was $33.40. According to Kehm (the bar owner and server that day), Putney‘s lunch and two sodas cost $14 total, leaving about $19.40 unaccounted. Kehm left the bar at around 2:30 P.M. Shortly after Putney left Arena Bar, he was seen coaching a youth basketball team at a nearby school. Finn was picking up his son at the practice at 5:30 P.M. and smelled a “tint” of alcohol on Putney. Given the unaccounted-for bar bill and the “tint” of alcohol on Putney shortly thereafter, the trial court
III. Putney‘s actions after basketball practice and immediately prior to the accident support an inference that Putney continued drinking prior to the accident.
Evidence of Putney‘s continued intoxication following basketball practice is critical to the State meeting its burden of proof. To sustain Putney‘s conviction for involuntary manslaughter, we must find sufficient evidence from which the trial court reasonably could have inferred that Putney remained in an intoxicated condition after leaving basketball practice. When practice ended at 5:30 P.M., Putney, who already had some level of intoxication, returned to Arena Bar. We note the lack of any direct evidence that Putney consumed alcohol during his second visit to the bar. We agree with Putney that the lack of direct evidence as to his conduct
When viewed in a light most favorable to the State, the record contains additional circumstantial evidence also supporting a reasonable inference that Putney was driving his car in an intoxicated condition at the time of the accident. Intoxication is often evidenced by
Putney demonstrated an obvious impairment of motor reflexes and lack of coordination while driving his Envoy. The evidence showed that Putney was driving erratically and at an excessive speed. Although road conditions were not wet or icy, Putney inexplicably crossed over the center line into oncoming traffic. Evidence showed that Putney crossed the center line traveling forty-two miles per hour in an area where the speed limit was thirty-five. Not only was Putney speeding, but the evidence showed he made no effort to slow down or maneuver away from the Volvo before he crashed. Putney did not apply the brakes in the eight seconds before the collision. The evidence shows constant pressure was applied to the throttle. The record lacks any evidence that Putney made any attempt to avoid the crash. The trial court reasonably could have concluded that Putney, if he was not intoxicated, would have been alert to the danger and had the coordination and motor skills required to brake before the collision, or at least attempt to apply the brakes or veer away from the oncoming Volvo. The fact that Putney was driving westbound while entirely in the eastbound lane, and accelerating rather than braking upon impact—coupled with the previous evidence about Putney‘s afternoon at the bar, conduct at the youth basketball practice, and his return to Arena Bar—supports a reasonable inference that Putney was intoxicated at the time of the accident.
Further, witnesses’ testimony by those who saw Putney after he exited his vehicle supported an inference of intoxication. The testimony at trial indicated that Putney ran away from the scene in a dress shirt and slacks, wearing only one shoe on a January evening. At this time Putney was moving “kind of awkwardly,” holding his arms up as if “bracing for a fall,” and teetering from side to side as he ran. Coupled with the previously discussed evidence, Putney‘s unsteadiness on his feet, lack of coordination while running away, and leaving one shoe behind in January supported a reasonable inference that Putney was intoxicated in the minutes immediately after the accident. See Hall, 201 S.W.3d at 603.
We are mindful of Missouri cases referencing a rule prohibiting “piling inference upon inference” or “inference stacking.” See, e.g., State v. Ring, 141 S.W.2d 57, 65 (Mo. banc 1940); State v. Lottie, 648 S.W.2d 908, 910 (Mo. App. W.D. 1983). The inference stacking rule prohibits an inference “where an initial inference is drawn from a fact, and other inferences are
The presence of parallel inferences consistent with guilt may be sufficient to support a finding of guilt. State v. Lottie, 648 S.W.2d at 911. The existence of multiple, parallel inferences does not undermine the fact finder‘s verdict provided the inference is reasonably drawn from facts established by proof. Id.. Here, the inferences supporting a finding of Putney‘s intoxication while driving are derived from direct factual evidence introduced at trial. The trial court reasonably could infer that Putney drank alcohol while at Arena Bar in the afternoon prior to the accident given the factual evidence of his presence at Arena Bar for almost the entire afternoon, the bill from Arena Bar, and his condition after leaving Arena Bar and appearing at basketball practice shortly thereafter. It was reasonable for the trial court to infer that Putney was intoxicated at the youth basketball practice from the direct testimony of witnesses present at the practice. Further factual evidence allowed a reasonable inference that Putney drank more alcohol at Arena Bar after the basketball practice. An open cup of a drink containing 5.41%
Putney argues that the State failed to temporally connect Putney‘s alleged intoxication to his actual operation of a motor vehicle, citing State v. Hatfield, 351 S.W.3d 774 (Mo. App. W.D. 2011) as support. In Hatfield, an officer was dispatched to an accident. Id. at 775. When the officer arrived, Defendant was standing outside his vehicle, which was damaged. Id. at 775-76. Defendant said, “I lost it making the turn.” Id. at 776. The officer noticed “multiple indicators” that Defendant was intoxicated, including a strong odor of alcohol, slurred speech, and balance problems. Id.. Defendant did not dispute (1) that he drove the vehicle at some point before the officer arrived or (2) that he was intoxicated when the officer arrived. Id. at 777. The court reversed the conviction because there was no evidence as to the approximate time that Hatfield was operating the vehicle or the time the accident occurred, or how much time elapsed between the accident and the arrest (when there was evidence of intoxication). Id. at 780. Because it was impossible to determine from the record the approximate time that Hatfield last operated the
5Putney‘s challenge to his conviction is premised on his contention that the conviction resulted solely from evidence of inference after inference built upon one another in such a manner that the evidence lacks a factual foundation and cannot lawfully support the trial court‘s judgment. We find this argument unavailing.
VI. Other Considerations
We reiterate that the inferences discussed above are not the only reasonable inferences that a trier of fact might have drawn from the State‘s evidence. A trier of fact might reasonably have found that Putney spent the afternoon at Arena Bar without consuming an amount of alcohol to cause intoxication. Putney could have stumbled at basketball practice for reasons other than intoxication. Putney might not have returned to Arena Bar for the purpose of consuming alcohol. Putney might have returned to the bar for a number of reasons. Maybe he left something at the bar earlier that day. With regard to the collision, Putney might have been distracted by his cell phone; he might have dropped the food he was eating. Putney‘s unsteadiness following the accident may have been due to injuries he suffered in the accident. While these are reasonable counter-inferences that might explain what occurred, our standard of review precludes us from substituting such inferences with the reasonable inferences drawn by the trier of fact.
Important to our resolution of this appeal, evidence is sufficient to support guilt if any reasonable inference supports guilt, even if other “equally valid” inferences do not. State v. Mosby, 341 S.W.3d 154, 156 (Mo. App. E.D. 2011); see also State v. Chaney, 967 S.W.2d 47, 54 (Mo. banc 1998) (recognizing that the “equally valid inferences” rule was abolished by Grim, 854 S.W.2d at 413–14). Adhering to our standard of review, we must disregard inferences unfavorable to the State. We are not persuaded that the counter-inferences maintained above are “such a natural and logical extension of the evidence that a reasonable [fact finder] would be unable to disregard them.” Grim, 854 S.W.2d at 411. While any individual piece of evidence may be insufficient to sustain the State‘s burden of proof, each individual inference is reasonably drawn from evidence in the record. The individual pieces of evidence and inferences therefrom build a convincing chain of inferences leading to the reasonable conclusion that Putney was intoxicated while operating his vehicle at the time of the accident. Putney‘s argument that the inferences drawn by the trial court are unreasonable, speculative, or forced is unavailing.
Moreover, we reject Putney‘s argument that the trial court supplied the missing evidence of his intoxication. The record contains evidence of alcohol consumption, some degree of intoxication as of 5:30 P.M., and an open cup containing an alcoholic beverage in the vehicle that Putney was erratically driving when he crashed into the Volvo two hours later. Putney‘s evidence of alcohol consumption and intoxication is not missing from the record. The evidence before us reasonably could lead the trier of fact to find that Putney was intoxicated at the time of the accident.
Putney argues that the State failed to temporally connect Putney‘s alleged intoxication to his actual operation of a motor vehicle, citing State v. Hatfield, 351 S.W.3d 774 (Mo. App. W.D. 2011) as support. In Hatfield, an officer was dispatched to an accident. Id. at 775. When the officer arrived, Defendant was standing outside his vehicle, which was damaged. Id. at 775-76. Defendant said, “I lost it making the turn.” Id. at 776. The officer noticed “multiple indicators” that Defendant was intoxicated, including a strong odor of alcohol, slurred speech, and balance problems. Id.. Defendant did not dispute (1) that he drove the vehicle at some point before the officer arrived or (2) that he was intoxicated when the officer arrived. Id. at 777. The court reversed the conviction because there was no evidence as to the approximate time that Hatfield was operating the vehicle or the time the accident occurred, or how much time elapsed between the accident and the arrest (when there was evidence of intoxication). Id. at 780. Because it was impossible to determine from the record the approximate time that Hatfield last operated the vehicle, the court held that the State failed to temporally connect Hatfield‘s intoxication to his operation of the vehicle. Id.
Unlike Hatfield, the evidence clearly proved Putney was driving the Envoy when it crashed into the Volvo. The only issue is whether Putney was intoxicated at the time. The State presented evidence suggesting that Putney was intoxicated before, during, and after the collision. The State presented evidence that the accident occurred on January 26, 2012, between 7:35 and 7:40 P.M. Witness Cusumano identified Putney as the driver who crashed and drove away from the scene. Witnesses saw Putney immediately after the collision running away from his vehicle. As explained above, the State presented circumstantial evidence that would allow a reasonable fact finder to infer that Putney was intoxicated this entire time. Unlike Hatfield, the State temporally connected Putney‘s intoxication to his operation of a motor vehicle by presenting evidence that established the approximate time of the accident, that Putney was driving his vehicle, and that Putney was intoxicated.
Conclusion
The decision of the trial court is affirmed.
KURT S. ODENWALD
Judge
Sherri B. Sullivan, P.J., concurs.
Patricia L. Cohen, J., concurs.