STATE OF MISSOURI,                            )
                                              )
       Plaintiff-Respondent,                  )
                                              )
vs.                                           )              No. SD32647
                                              )
DAMIEN T. BRYAN,                              )              Filed: June 30, 2014
                                              )
       Defendant-Appellant.                   )

          APPEAL FROM THE CIRCUIT COURT OF CAMDEN COUNTY

                        Honorable Patricia S. Joyce, Circuit Judge

AFFIRMED

       Damien T. Bryan (“Appellant”) was convicted after a jury trial of two counts of

second-degree murder and one count of felony driving while intoxicated as a result of a

multi-vehicle accident. Appellant brings two claims of error: (1) that the trial court did

not have jurisdiction because “none of the counts of the ‘first substituted indictment’

were designated as ‘[a] true bill’ and were not signed by the grandjury foreman”; and (2)

that the trial court erred in denying Appellant’s motions for judgment of acquittal because

the State’s evidence was legally insufficient in that, while he may have been shown to be

intoxicated at some unknown time at least an hour after a trooper was called to the




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accident scene, there were no signs of intoxication at the accident scene and no evidence

that Appellant had no access to methamphetamine between the accident and his observed

intoxication. We reject both claims and affirm the judgment.

       Appellant’s first point is procedural: he claims that the court did not have

jurisdiction because the substituted indictment, to which no objection was ever made, was

insufficient. Citing to section 545.040, Rule 23.01, and State v. Horn, 79 S.W.2d 1044

(Mo. 1935), Appellant claims the insufficient indictment is a nullity. Appellant ignores

the line of cases that hold a defendant’s failure to object to a substitute indictment before

trial renders the claim unreviewable. In State v. Parkhurst, 845 S.W.2d 31, 34 (Mo. banc

1993), the Supreme Court overruled a line of cases that had held that jurisdiction is

dependent upon the sufficiency of the indictment or information. State v. Love, 88

S.W.3d 511, 516 n.4 (Mo. App. S.D. 2002); see also State v. Smith, 242 S.W.3d 735, 740

(Mo. App. S.D. 2007) (citing Rule 24.04(b)(2)). Appellant “waived his right to object to

the information, ‘except for objections that the indictment or information fails to show

jurisdiction or to charge an offense.’” Smith, 242 S.W.3d at 740 (quoting State v.

Simpson, 846 S.W.2d 724, 728 (Mo. banc 1993)).

       As important as these cases is J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d

249 (Mo. banc 2009). In Wyciskalla, the Supreme Court held:

               As discussed in In re Marriage of Hendrix, 183 S.W.3d 582 (Mo.
       banc 2006), Missouri courts recognize two kinds of jurisdiction: subject
       matter jurisdiction and personal jurisdiction. These two kinds of
       jurisdiction—and there are only two for the circuit courts—are based upon
       constitutional principles. Personal jurisdiction is, for the most part, a
       matter of federal constitutional law.[] Subject matter jurisdiction is
       governed by article V of the Missouri Constitution.

Id. at 252. It states further what cases Article V covers:




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                   In contrast to the federal system, the subject matter jurisdiction of
           Missouri’s courts is governed directly by the state’s constitution. Article
           V, section 14 sets forth the subject matter jurisdiction of Missouri’s circuit
           courts in plenary terms, providing that “[t]he circuit courts shall have
           original jurisdiction over all cases and matters, civil and criminal. Such
           courts may issue and determine original remedial writs and shall sit at
           times and places within the circuit as determined by the circuit court.”[]

Id. at 253-54 (emphasis in original). Here, the charges were second-degree murder and

felony driving while intoxicated -- clearly within Article V of the Missouri Constitution.

Point I is denied.

           Point II challenges the sufficiency of the evidence of driving while intoxicated. In

the light most favorable to the verdict, Appellant approached a stop sign at the

intersection of South Country Club Road and Route C, a two-lane county highway, while

he was traveling between 17 to 19 m.p.h. It was a clear, dry day and he had six hundred

feet of visibility toward the east-bound lane. He collided with the front-passenger side

bumper of one of the victim’s cars, which was traveling east toward Jefferson City on

Route C. The collision pushed the victim’s car onto its side and into the oncoming

(westbound) lane of Route C, where it struck another vehicle and killed the second victim

instantly. Trooper Richard Dowd arrived at the accident scene just after the first victim

had been extracted from her vehicle and taken to the hospital.1 He talked to Appellant,

who was sitting in an ambulance. Appellant said he did not see her vehicle before he hit

it. A preliminary breath test on Appellant showed no alcohol in his system. The trooper

called for assistance from a certified drug recognition expert, Corporal Halford, who

arrived at 11:05 a.m., after Appellant had been taken to the hospital. Cole County Sheriff

Greg White and Corporal Halford met with Appellant approximately 40-45 minutes after



1
    She was later pronounced dead.


                                                 3
the accident. At that time they observed behavior by Appellant consistent with

methamphetamine intoxication.

       To be clear, Appellant is not claiming that there is insufficient evidence of

impairment due to methamphetamine at the time Appellant was interviewed by Sheriff

White and Corporal Halford. His claim is that there was no evidence showing him to be

impaired due to methamphetamine use at the time of the accident. Appellant claims that

the proof of methamphetamine intoxication was too remote from the time of the accident

to provide sufficient evidence of intoxication at the time of the accident. He contests that

it is pure speculation and conjecture that Appellant was impaired at the time of the

accident because he could have ingested methamphetamine in the hour that may have

transpired between the time of the accident and the time of the observations by the

Sheriff and Corporal, and the State did not provide any evidence that Appellant did not

have access to methamphetamine in that time period.

       When considering sufficiency-of-evidence claims, this Court’s review is limited

to determining whether the evidence is sufficient for a reasonable juror to find each

element of the crime beyond a reasonable doubt. State v. Freeman, 269 S.W.3d 422, 425

(Mo. banc 2008). Appellate courts do not review the evidence de novo; rather they

consider the record in the light most favorable to the verdict:

       To ensure that the reviewing court does not engage in futile attempts to
       weigh the evidence or judge the witnesses’ credibility, courts employ a
       legal conclusion that upon judicial review all of the evidence is to be
       considered in the light most favorable to the prosecution. Thus, evidence
       that supports a finding of guilt is taken as true and all logical inferences
       that support a finding of guilt and that may reasonably be drawn from the
       evidence are indulged. Conversely, the evidence and any inferences to be
       drawn therefrom that do not support a finding of guilt are ignored.




                                              4
State v. O’Brien, 857 S.W.2d 212, 215-16 (Mo. banc 1993) (internal citations and

quotations omitted). When we are faced with a record of facts that supports conflicting

inferences, we must presume—even if it does not affirmatively appear in the record—that

the trier of fact resolved any such conflicts in favor of the prosecution and must defer to

that resolution. State v. Chaney, 967 S.W.2d 47, 53-54 (Mo. banc 1998). Circumstantial

evidence is given the same weight as direct evidence in considering the sufficiency of the

evidence. State v. Grim, 854 S.W.2d 403, 405-06 (Mo. banc 1993).

       Circumstantial evidence does not have to be conclusive of guilt to sustain a

driving while intoxicated conviction when driving is not observed. State v. Keeth, 203

S.W.3d 718, 724 (Mo. App. S.D. 2006). Although “a significant lapse of time between a

defendant’s driving and being seen in an intoxicated condition requires the [State] to

offer specific evidence that the defendant was intoxicated when the defendant was

driving,” “a brief lapse of time between a defendant’s driving and being seen in an

intoxicated condition requires less exacting evidence of the defendant’s intoxication.”

State v. Davis, 226 S.W.3d 927, 929 (Mo. App. W.D. 2007).

       Here the time between the accident and the observations of impairment was

approximately one hour. In that time, Appellant was in an ambulance or in the hospital.

Appellant cites to State v. Wilson, 273 S.W.3d 80 (Mo. App. W.D. 2008), as being

squarely on point. In Wilson, the only time frame that the jury heard between the

accident and the signs of intoxication was within twenty-four hours. The State did not

narrow down the time between the accident and the investigation in the hospital. The

appellate court ruled that twenty-four hours was just too long. That is not the case before

us.




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       While twenty-four hours between an accident and observable signs of intoxication

rendered the Wilson conviction too speculative, in this case, it is a reasonable inference

by the jury that in the roughly one hour between the time of the accident and the

observations by law enforcement in the hospital, at a time when Appellant was either in

an ambulance or hospital, Appellant did not ingest methamphetamine. It is therefore a

reasonable inference that the methamphetamine was already in his system at the time of

the accident. The exhibition of signs of intoxication one hour later, coupled with all of

the circumstances surrounding the motor-vehicle accident, support those inferences. The

trial court did not err in refusing to grant the judgment of acquittal. Point II is denied.

       The judgment is affirmed.



Nancy Steffen Rahmeyer, P.J. – Opinion Author

Daniel E. Scott, J. – Concurs

William W. Francis, Jr., C.J. – Concurs




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