                        MISSOURI COURT OF APPEALS
                            WESTERN DISTRICT


 STATE OF MISSOURI,                          )
                                             )   WD82831
                     Appellant,              )
    v.                                       )   OPINION FILED:
                                             )
 LESLIE CHRISTY,                             )   February 18, 2020
                                             )
                      Respondent.            )


              Appeal from the Circuit Court of Platte County, Missouri
                       Honorable Dennis Carl Eckold, Judge

                                Before Division Two:
          Cynthia L. Martin, P.J., Thomas H. Newton, and Gary D. Witt, JJ.


         The State of Missouri appeals the judgment of the Platte County Circu it Court

dismissing the criminal charge of driving while intoxicated (DWI), section 577.010,

with prejudice. It claims in one point relied on that it presented substantial evidence

of intoxication. The judgment is affirmed.

         Ms. Leslie Christy was arrested for DWI on October 5, 2018. Her blood-alcohol

content (BAC) was determined to be .07%, or below the legal limit. Her defense

counsel subsequently filed a motion to dismiss, and a hearing was held. The following

evidence was presented at the hearing:

         Deputy William Beeler testified that he is the DWI officer for the Platte County

Sheriff’s Office. He was working on October 5, 2018, at approximately 12:45 in the
morning when he observed a speeding vehicle. His radar unit confirmed that the

vehicle was going 50 miles per hour in a 35-miles-per-hour zone, so Deputy Beeler

initiated a traffic stop. Ms. Christy was driving the speeding vehicle.

       Deputy Beeler smelled the odor of alcohol coming from inside the vehicle. Ms .

Christy stated that she had spilled gasoline in the vehicle and that caused the smell, but

Deputy Beeler did not smell gasoline in the vehicle. Deputy Beeler observed that Ms.

Christy’s eyes were “bloodshot, glassy, and staring in appearance.” He asked Ms.

Christy to exit the vehicle. When she did, her balance was unsteady. He stated, “She

– When she was walking back, she appeared to not – her balance was just off a little

bit. She kind of – She kind of stumbled a little bit as she walking back, in between the

cars.” After she was out of the vehicle, Deputy Beeler smelled “the odor of alcohol

coming from her breath and person.”

       Deputy Beeler asked Ms. Christy to take field-sobriety tests.             He first

administered the Horizontal Gaze and Nystagmus test (HGN test). According to the

deputy, Ms. Christy “swayed noticeably front to back during the test.” Deputy Beeler

testified that Ms. Christy showed all six clues of impairment on the HGN. Four clues

or more indicates impairment. Ms. Christy claimed at trial that the HGN test was not

properly administered in multiple ways and thus evidence of its results was

inadmissible. Ms. Christy went through the video with Deputy Beeler and identified

places where the guidelines for administering the HGN were allegedly not followed.

The court ruled that it was admissible and noted that it would consider “what weight,

if any, to give to it.”




                                            2
      The second field-sobriety test was the walk-and-turn test. Ms. Christy was

unable to maintain her heel-to-toe stance. She missed touching heel to toe by more

than half an inch. She stepped off the line. She used her arms for balance and lost her

balance while making her turn. Ms. Christy showed five clues of impairment; two

clues or more indicates impairment. The third field-sobriety test was the one-leg stand.

Ms. Christy used her arms for balance, swayed, and put her foot down. Ms. Christy

showed three clues of impairment; two clues or more indicates impairment.

      Deputy    Beeler   was    questioned     regarding whether   he   had   previously

administered field-sobriety tests to people older than age 60 or to overweight people.

He stated he has administered the tests to such people and that “not every person” who

was older than age 60 or overweight showed signs of impairment. In his opinion, Ms.

Christy was intoxicated when he stopped her.

      Deputy Beeler’s patrol car was equipped with a dashboard camera (dash cam),

and it recorded his stop of Ms. Christy. The recording was played in court during the

hearing.

      Deputy Beeler was asked about his testimony in prior cases. He acknowledged

that his testimony had been found not credible in two cases in Platte County, where

Ms. Christy’s case was heard.

      Deputy Beeler testified that Ms. Christy stumbled when walking from her ca r.

On cross-examination, defense counsel played that portion of the tape and asked

Deputy Beeler to identify the stumble. Deputy Beeler testified:

      Q: And now you’ve ordered her out of the car?

      A: I asked her to step out of the car.



                                               3
      Q: And now 29 seconds –

      A: And she just -- she just kind of stumbled back as she -- when she made
      her turn. And then when she was walking it appeared that she stumbled a
      little bit as she was walking back.

      Q: That’s what you’re calling a stumble?

      A: Yes. Whenever she -- When she -- When she was turning around, I
      mean, she took a step back.

      In his paperwork, Deputy Beeler indicated there was a moderate odor of alcohol.

He did not indicate a strong odor. He acknowledged on cross -examination that the

passenger in the car had been drinking. He also acknowledged that there are a lot of

reasons unrelated to alcohol consumption that a person might have red eyes. Ms.

Christy told Deputy Beeler that night that she had had a long day.

      The paperwork had a place for Deputy Beeler to indicate that Ms. Christy was

stumbling. He did not make such an indication. Instead, he checked that her balance

and walking were uncertain. Deputy Beeler stated, “I deemed that when I wrote the

report as uncertain but it’s kind of -- uncertain and stumbling are kind of, kind of close

together.”

      The paperwork also had a place where Deputy Beeler could have indicated that

Ms. Christy swayed during the HGN test. He did not check that box, however. He did

state in the narrative portion of his report that she was swaying. He did not indicate

that Ms. Christy was staggering, falling, or had problems with balance and walking.

Deputy Beeler also testified as follows:

      Q: She had no problem speaking with you?

      A: Correct.

      Q: She did not slur her speech?

                                            4
      A: Correct.

      Q: She was not confused?

      A: Correct.

      Q: She was not incoherent?

      A: Correct.

      Q: She did not stutter?

      A: Correct.

      Q: She did not mumble?

      A: Correct.

      Q: You did not notate any unusual actions; correct?

      A: Correct.
      Q: And you did note that she was cooperative?

      A: Yes and dishonest.

      Q: And we could see from the video precisely what her demeanor was?

      A: Yes.

      Q: And we could see exactly how she walks; correct?

      A: Correct.

      Q: And the Judge can observe all of those same things that you observed
      on that particular night?

      A: Correct.

Deputy Beeler acknowledged that Ms. Christy was 61 years old and overweight. She

told him she was not confident she could complete the physical -dexterity exams. The

field-sobriety test guidelines indicate that being older than age 65 or more than 50

pounds overweight can affect a person’s ability to do some of the tests and may render



                                          5
the results invalid. Deputy Beeler did not ascertain how many pounds overweight Ms.

Christy was.

      In administering the field-sobriety tests, Deputy Beeler observed how well Ms.

Christy followed instructions because the inability to do so may be a sign of

impairment. Ms. Christy followed his instructions.

      After hearing all evidence and arguments, the trial court stated:

      The statute does require substantial evidence of intoxication from
      physical observations. I’ve had the benefit of watching a video. I’ve also
      heard the testimony. I also acknowledge that sometimes what Deputy
      Beeler might see is a little different in person as he stands two feet away
      from somebody than what I’m seeing on a video and I respect that, too.
      That can happen. And I did see her slightly sway when she was doing the
      HGN test. I did not see her stumble as she exited the vehicle. I think the
      problem with the HGN is, you know, we can’t view it. There’s no way
      for anybody to view it on the screen. It’s not like umpires in New York
      can, you know, see every angle and see every close up. We don ’t have
      that advantage at all here. So, I have to rely on the testimony as to the
      HGN test. I did not hear the Defendant slur her speech when she
      responded to anything that the officer asked her. I did not see her stop to
      steady herself. It didn’t look like she performed very well on the field
      sobriety test, the one-leg stand test, and the heel-to-toe. She did hold her
      arms out, did have to balance herself as she made her way along the fog
      line.

The court took the matter under advisement and later issued a judgment sustaining the

motion to dismiss the charges. In its judgment, the court found that a chemical analysis

of Ms. Christy’s breath sample showed less than .08% of alcohol in her blood. The

court further found that no evidence was presented that the chemical analysis is

unreliable. Finally, the court found:

      No evidence was presented that [Ms. Christy] was under the influence of
      a controlled substance or a combination of a controlled substance and
      alcohol. The court further finds that there was no substantial evidence of
      intoxication from the physical observation of the state’s witness, the in-
      car video or the admissions of [Ms. Christy] presented in evidence.



                                           6
The court accordingly dismissed the charge against Ms. Christy with prejudice.

          This appeal follows. 1

                                             Legal Analysis

          This court will reverse a dismissal under section 577.037.2 2 only if it is clearly

erroneous. State v. Mignone, 411 S.W.3d 361, 363 (Mo. App. W.D. 2013). “That means

we must be left with a definite and firm impression that a mistake has been made. ” Id.

“As in other adversarial proceedings, we view the evidence presented and all

reasonable inferences drawn therefrom in the light most favorable to the trial court ’s

order and disregard all evidence and inferences to the contrary.” Id. (citation omitted).

We also defer to the trial court’s factual findings and credibility determinations,

“remembering that the trial court may choose to believe or disbelieve all or any part of

the testimony presented by the State, even though it may be uncontradicted, and may

find the State failed to meet its burden of proof.” Id. (citation omitted).

          In the sole point on appeal, the State claims the trial court clearly erred in

dismissing the DWI charge against Ms. Christy before trial under section 577.037.2. It

states that, by the court’s own verbal findings of fact, there was substantial evidence

of intoxication from physical observations of the witness and the dash -cam video. The

State asserts that the court observed Ms. Christy swaying during the HGN test,

performing poorly on the walk-and-turn test, and performing poorly on the one-leg

stand test.



1
    We note that Ms. Christy did not file a brief with this Court.
2
 Mignone was the first case to establish the standard of review applicable to a dismissal under section
577.037. State v. Mignone, 411 S.W.3d 361, 363 (Mo. App. W.D. 2013). It references section
577.037.5. Id. The substance of section 577.037.5 relevant to our analysis was moved to section
577.037.2 in the version of the statute that became effective January 1, 2017.

                                                      7
      Section 577.037.2 states:

      If a chemical analysis of the defendant’s breath, blood, saliva, or urine
      demonstrates there was eight-hundredths of one percent or more by
      weight of alcohol in the person’s blood, this shall be prima facie evidence
      that the person was intoxicated at the time the specimen was taken. If a
      chemical analysis of the defendant’s breath, blood, saliva, or urine
      demonstrates that there was less than eight-hundredths of one percent of
      alcohol in the defendant’s blood, any charge alleging a criminal offense
      related to the operation of a vehicle, vessel, or aircraft while in an
      intoxicated condition shall be dismissed with prejudice unless one or
      more of the following considerations cause the court to find a dis missal
      unwarranted:

      (1) There is evidence that the chemical analysis is unreliable as evidence
      of the defendant’s intoxication at the time of the alleged violation due to
      the lapse of time between the alleged violation and the obtaining of the
      specimen;

      (2) There is evidence that the defendant was under the influence of a
      controlled substance, or drug, or a combination of either or both with or
      without alcohol; or

      (3) There is substantial evidence of intoxication from physical
      observations of witnesses or admissions of the defendant.

The State argues that it presented substantial evidence of intoxication from physical

observations of witnesses or admissions of the defendant under section 577.037.2(3).

      “The plain language of section [577.037.2] calls for the court to weigh evidence

and evaluate witness credibility in order to decide whether certain ‘considerations’

render dismissal ‘unwarranted.’” Mignone, 411 S.W.3d at 364. “Clearly, the statute

calls upon the trial court to make a judgment about the nature and quality of the

evidence, because that evidence must ‘cause the court to find’ something.”            Id.

“Dismissal is the default position, and, although not specifically stated in the statute,

the clear implication is that the burden of persuasion is on the State to come forward

with evidence to ‘cause the court to find a dismissal unwarranted.’” Id.



                                            8
       In the current case, the State introduced Deputy Beeler’s testimony and the dash-

cam video to cause the court to find that dismissal was unwarranted.         Ms. Christy

contested that evidence.    “To contest evidence, a party is not required to present

contradictory or contrary evidence.” Id. “Other ways a party can contest evidence are

by cross-examination, by pointing out internal inconsistencies in the evidence, or by

challenging the credibility of a witness.”      Id.   Ms. Christy contested the State’s

evidence through cross-examination of Deputy Beeler regarding his observations, his

reports, his consideration of Ms. Christy’s age and weight, and his credibility in prior

cases. Ms. Christy’s counsel also used the dash-cam video and argument to the court

to contest the State’s evidence. “The trial court is afforded wide discretion in resolving

conflicts in the evidence, even where there is evidence that woul d support a different

result.” Id. (citation omitted).

       In Mignone, the trooper pulled the defendant over for a traffic violation and

“noticed the odor of an alcoholic beverage emitting from inside the vehicle. ” Id. at

362. The trooper had the defendant come sit in the patrol car with him. Id. Inside the

patrol car, the trooper “continued to detect the strong odor of an alcoholic beverage.”

Id. He testified that the defendant “admitted having drinks.” Id. The trooper also

observed that the defendant’s “eyes were bloodshot and glassy.”               Id.   After

administering field-sobriety tests, the trooper testified that he assumed the defendant

could not operate a motor vehicle safely. Id. He arrested the defendant for DWI. Id.

Testing of the defendant’s BAC revealed it to be .075%. Id. A later test revealed a

BAC of .051%. Id. at 362-63.




                                            9
       The defendant in Mignone was charged with DWI and subsequently filed a

motion to dismiss under section 577.037. Id. at 363. At the hearing, the State presented

the above evidence.    Id.   The defendant challenged that evidence through cross-

examination and argument. Id. The trial court dismissed the case, finding “there was

no substantial evidence of intoxication from the physical observation of the state’s

witness or the admissions of defendant as presented in evidence.” Id. This Court

affirmed the dismissal. Id. at 366.

       In Mignone, the State argued,

       that, as used in section 577.037.2(3), the phrase “substantial evidence”
       has the same significance as it does in the context of a post-conviction
       review of the sufficiency of the evidence, that is, that the court should
       determine only whether the State produced competent evidence from
       which a reasonable jury could have found the defendant guilty beyond a
       reasonable doubt.

Id. at 364.

       This Court rejected that argument, noting “that standard of review presupposes

that a fact finder has already weighed the evidence and found it believable so as to

support a certain proposition urged by the party with the burden of persuasion.” Id. at

364-65. In Mignone, as in Ms. Christy’s case, “the trial court did not find the evidence

supported any proposition at all, let alone the one proposed by the State —that dismissal

was unwarranted.” Id. at 365.

       Section 577.037.2(3) “requires the trial court to weigh evidence and evaluate

witness credibility to decide whether there was ‘substantial evidence’ of intoxication

from physical observations of witnesses or admissions of the defendant so a s to make

the dismissal unwarranted.” Id. “Substantial evidence is competent evidence, which

if believed, would have probative force upon the issues.”        Id. (citation omitted).

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“Competent evidence is relevant and admissible evidence that can establish th e fact at

issue.” Id. (citation omitted).

      In Ms. Christy’s case, favorable evidence supported the dismissal.           It was

undisputed that Ms. Christy’s BAC was less than .08%. The State’s case was premised

solely on Deputy Beeler’s testimony. Deputy Beeler’s testimony has been found not

credible in more than one prior case. Ms. Christy noted several instances where the

paperwork Deputy Beeler completed did not support his testimony. Even assuming his

testimony was credible in this case, the evidence can s till support the dismissal when

taken in the light most favorable to the dismissal. There was an odor of alcohol in the

vehicle, but the passenger had been drinking. Ms. Christy’s eyes were bloodshot and

red, but she told Deputy Beeler she had had a long day. Ms. Christy’s balance was

unsteady, but she was overweight, had problems with her knees, and was 61 years old.

Ms. Christy used the dash-cam video to argue that the HGN test was not properly

administered. Ms. Christy was not slurring, was not conf used, was not incoherent, did

not stutter, and did not mumble. She did not make any unusual actions. She cooperated

with Deputy Beeler and followed his instructions.        Given this evidence, and our

standard of review, the trial court did not clearly err in finding that there was no

substantial evidence of intoxication from the physical observation of the State ’s

witness or the admissions of defendant to make a dismissal unwarranted.

      The State also argues that a motion to dismiss under section 577.037 functions

like a summary-judgment motion. It claims in its brief, “If the State presents evidence

showing there are genuine issues of material facts (in this case, substantial evidence o f

intoxication), the State may proceed to trial where the jury will weigh the substantial



                                           11
evidence.” In support of this assertion, the State cites the dissenting opinion in State

ex rel. McCree v. Dalton, 573 S.W.3d 44 (Mo. banc 2019). The issue in McCree was

whether section 577.037.2 requires a pretrial hearing or pretrial determination on the

motion. Id. at 45. The Missouri Supreme Court found it does not. Id. at 47. In a

dissent, Justice Zel Fischer wrote, “A fair reading of § 577.037.2 is that a motion to

dismiss filed pursuant to this statute is expressly intended to operate much like a

summary judgment motion in the civil realm and bring an early resolution to cases

when there is not sufficient competent evidence to proceed to trial. ” Id. at 50. The

State relies on this assertion to support its argument.

          After asserting that this Court should view the proceeding in the same manner

by which we view summary-judgment motions, the State highlights the following trial

court words:

          And I did see her slightly sway when she was doing the HGN test.
                                          ***
          It didn’t look like she performed very well on the field sobriety test, the
          one-leg stand test, and the heel-to-toe. She did hold her arms out, did
          have to balance herself as she made her way along the fog line. So, unlike
          the Mignone which I think was a little bit clearer cut for me, 3 this one is
          a lot closer.


The State concludes that these findings are sufficient to survive the motion to dismiss.

It also relies on cases where sufficient evidence existed to support a conviction for

driving while intoxicated.

          The State’s arguments are unpersuasive. The standard of review set forth in

Mignone is essentially the opposite of the standard of review used in cases involving

summary-judgment rulings. See, e.g., Seaton v. Shelter Mut. Ins. Co., 574 S.W.3d 245,


3
    The same trial judge dismissed the charges in this case and in Mignone.

                                                   12
246–47 (Mo. banc 2019) (“Appellate review of summary judgment is de novo. This

Court reviews the record in the light most favorable to the party against whom

judgment was entered. The party against whom summary judgment was entered is

accorded the benefit of every doubt.” (citations omitted)). Justice Fischer comparing

the two situations in a dissenting opinion in the context of whether a pretrial hearing is

required does not change the Mignone analysis and review standard.

      Further, the trial court’s statements do not require reversal. Through cross -

examination, Ms. Christy’s counsel argued that she performed poorly on the field-

sobriety tests for reasons related to her age, weight, and health. The State did not

present evidence or argue that intoxication is the only reason a person might perform

poorly on such tests. This point is denied.

                                      Conclusion

      Because the trial court did not err in dismissing the DWI charge, we affirm.



                                                /s/Thomas H. Newton
                                                Thomas H. Newton, Judge


Cynthia L. Martin, P.J., and Gary D. Witt, J. concur.




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