Dеfendant, Gary Hughes, was convicted following a jury trial in the Circuit Court of Buchanan County, Missouri, of the class D felony of driving while intoxicated, §§ 577.010 and 577.02S.3. 1 The defendant was sentenced to four years imprisonment. Defendant raises two points on appeal. First, he alleges that insufficient evidence was presented to prove that he operated a motor vehicle while in an intoxicated cоndition. Second, Defendant argues the trial court erred in overruling defense’s objection to statements made by the prosecutor during closing argument. Examination of the record shows Defendant’s contention that insufficient evidence was presented to support his conviction has merit. Therefore, the judgement of conviction is reversed.
I. Facts
On May 2, 1997, at approximately 11:42 p.m., Officer Larry R. Stobbs, Jr. of the St. Joseph Police Department was dispatched to the scene of a vehicular accident. When he arrived at the scene, he found an Oldsmobile Cutlass that had left the road and run into a tree on private property. No one was around or inside the vehicle.
Officer Stobbs could not determine the actual time of the accident. At trial Officer Stobbs testified that althоugh he did not remember finding the engine of the vehicle running, the hood of the engine was still warm. The vehicle had extensive front end damage including a “star-shaped” fracture in the front windshield between the reаrview mirror and the steering wheel. Although the impact with the windshield was consistent with someone’s head or hand striking the glass, no blood or hair samples were taken. The vehicle had a “bench type” front sеat on which Officer Stobbs found a wallet containing the defendant’s identification and a man’s jacket. The front passenger side was also littered with “beer cans, beer bottles, and trash.”
The witness who reported the accident, Harold Faris, told Officer Stobbs that he saw what appeared to be a white male standing in the open driver’s side door around the time he called the police. Mr. Faris did not testify to seeing the defendant behind the wheel of the car either before or after the accident. Mr. Faris estimated that Officer Stobbs arrived approximately ten minutes after he рlaced the call. Officer Stobbs radioed the information obtained from Mr. Faris to Officer Becky Bradley who began looking for a white male in the area. Approximately one block from the accident scene, Officer Bradley observed a white male open the cab door of a dump truck, poke his head out, and then quickly shut the door again. Officer Bradley asked the man, later identified as the defendant, to step out of the truck. Officer Bradley then notified Officer Stobbs that she had located the defendant and held him until Officer Stobbs arrived.
Officer Stobbs testified that when he arrived the defendant smelled strongly of liquor,-had blood shot eyes, was staggering and slurring his speech and had a fresh cut on his forehead that was trickling blood. When Officer Stobbs questioned the defendant about the cut, the defendant was first unaware that he had an injury and then stated that it was an old cut. When Officer Stobbs asked the defendant about his wallet, the defendant felt his pants pocket. Defendant then admitted that the vehicle was his but stated that his girlfriend had been driving the car and that she had wrecked it. At approximately 12:01 a.m., Officer Stobbs placed the defendant under arrest for driving while intoxicated and for leaving the scene of an accident.
Officer Stobbs then took the defendant to the police station for further questioning. At the station, Officer Stobbs asked the defendant several standard questions from аn alcohol influence report that is completed when persons are arrested for driving while intoxicated. Defendant was unsure of the date or day of the week and, after some questiоning, became belligerent, violent and combative compelling Officer Stobbs to place him in a holding cell. Defendant later refused to sub *26 mit to a breath test, and no field sobriety-tests were performed on Defendant due to safety concerns. Officer Stobbs indicated at trial that based on his observations the defendant was very intoxicated and would have been unable to perform the tests.
II. Sufficiency of the Evidence
On appeal, Defendant argues that the trial court erred in finding him guilty of driving while intoxicated because the evidence was insufficient to prove each element of the offense beyоnd a reasonable doubt. Appellate review of a challenge to the sufficiency of the evidence to support a criminal conviction is limited to determination of whether sufficiеnt evidence was presented from which a reasonable trier of fact might have found the defendant guilty beyond a reasonable doubt.
State v. Silvey,
Under section 577.010, a person commits the crime of driving while intoxicated if he “operates a motor vehicle while in an intoxicated or drugged condition.” § 577.010. Each word in the name of the offense, “driving while intoxicated,” identifies an element of proof.
Eppenauer,
In this case, the evidence viewed in the light most favorable to the verdict shows that at the time of his arrest, the defendant was belligerent, violent and combative; smelled strongly of liquor; had blood shot eyes; was staggering and slurring his speech; and refused to submit to a breath test. Officer Stobbs testified that in his opinion, the defendant was very intoxicated. As the defеndant admits in his reply brief, this evidence is sufficient to establish that the defendant was intoxicated at the time of his arrest.
See State v. Myers,
“Driving” is defined under section 577.001.1 as “being in actual physical control of a motor vehicle.” § 577.001.1;
see also Wilcox v. Director of Revenue,
In
Wilcox v. Director of Revenue,
this court identified additional forms of evidence that may provide sufficient evidence to uphold the DWI conviction of a person found in a vehicle without the engine running.
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The remaining evidence favorable to the verdict includes the defеndant’s admission of ownership of the vehicle, the defendant’s proximity to the vehicle when he was discovered, the cut on the defendant’s forehead and the “star” fracture in the windshield. The defendant’s ownership of the car in and of itself is insufficient to establish that the defendant, as opposed to someone else, was actually driving the vehicle.
See State v. Chapman,
The evidencе presented regarding the cut on Defendant’s forehead and the star fracture is also insufficient to establish that the defendant was driving. Because no blood or hair samples were taken in this cаse, the state failed to present any evidence to show that the cut on Defendant’s head was actually caused by striking the windshield. Moreover, although Officer Stobbs testified that the star fracture was consistent with someone’s head or hand striking the windshield, the prosecution did not establish that the fracture was consistent with the driver striking the windshield. The fracture was located between the rearview mirror and the steering wheel in a car with a “bench type” front seat. This location does not preclude the possibility that a passenger, not the driver, struck the windshield.
Because the defendant did not admit to operating the vеhicle and no significant additional evidence was presented showing that the defendant was driving the vehicle, there is insufficient evidence from which a reasonable trier of fact could find the defendant guilty of driving while intoxicated beyond a reasonable doubt. The judgment of conviction is therefore reversed, the sentence imposed is set aside, and Defendant is ordered discharged.
In light of our resolution on this point, Defendant’s remaining points on appeal need not be addressed.
All concur.
Notes
. All statutory references are to RSMo 1995 unless otherwise indicated.