754 S.W.2d 921 | Mo. Ct. App. | 1988
In this jury tried case, defendant appeals his conviction of driving while intoxicated, a class B misdemeanor, in violation of § 577.010 RSMo. 1986. We affirm.
Defendant’s sole allegation of error is that the trial court committed reversible error in denying his motion for judgment of acquittal at the close of all the evidence, because there was insufficient evidence to prove beyond a reasonable doubt that he was operating a motor vehicle while intoxicated. We disagree, because the evidence was sufficient.
Defendant was found in his car at 3:58 a.m. on November 24, 1986, by two St. Peters police officers. The car was stuck on a dirt road; the headlights were beaming fairly brightly and although the engine was not running, the hood was warm. After opening the car door, the engine and alternator lights were observed to be on,
At trial, defendant said that he was driving the car and looking for a friend when the car got stuck. When he could not get the car to move, he went looking for some help, taking a six-pack of beer with him. In looking for help, he walked around for an hour and a half and drank four of the beers. He then returned to the car, started it, and turned on the headlights. He drank one-half of another beer, and then threw the cans into the woods. His total consumption of alcohol was the four and one-half cans of beer.
The term “driving”, as used in § 577.010 RSMo. 1986, is defined in § 566.001 as “physically driving or operating or being in actual physical control of a motor vehicle.”
Here, the evidence established that defendant drove the car to the spot where it got stuck. His testimony established that he started the car and turned on the headlights after drinking beer. There was no evidence that he thereafter left the car. When the officer arrived, defendant was seated behind the wheel, the keys were in the ignition in the on position, the alternator and engine lights were on, the headlights were on, and the hood of the car was warm.. His blood alcohol content was .17. The evidence is sufficient for a jury to find that defendant was operating a motor vehicle while intoxicated. State v. Hoeber, 737 S.W.2d 484 (Mo.App.E.D. 1987). Point denied.
The judgment is affirmed.
