STATE OF MISSOURI,                                   )
                                                     )
        Plaintiff-Respondent,                        )
                                                     )
vs.                                                  )                 No. SD32828
                                                     )
MATTHEW G. PILANT,                                   )                 Filed: August 14, 2014
                                                     )
        Defendant-Appellant.                         )

            APPEAL FROM THE CIRCUIT COURT OF LACLEDE COUNTY

                          Honorable Kenneth M. Hayden, Circuit Judge

AFFIRMED

        Matthew G. Pilant (“Appellant”) appeals his conviction following a bench trial for

the class C felony of driving while intoxicated as an aggravated offender. See sections

577.010.1, 577.023.4.1 In two points, he claims that there was insufficient evidence to

support his conviction that he was in an “intoxicated condition.” Finding no merit in the

claim, we affirm.




1
  The trial court sentenced Appellant to seven years imprisonment, but suspended the execution of the
sentence for a period of five years supervised probation. Appellant was also convicted of careless and
imprudent driving, see section 304.012, and failing to signal, see section 304.019; however, he does not
challenge those convictions on appeal. All references to section 577.010.1 are to RSMo 2000. All other
statutory references are to RSMo Cum.Supp.2005.


                                                    1
        In his first point, Appellant argues that the testimony of Thomas Miller

(“Miller”)—the State’s sole witness—lacked probative value under the “destructive

contradictions” doctrine.2 Following the submission of this case, however, our supreme

court abolished this doctrine, along with the “corroboration rule,” in State v. Porter, —

S.W.3d —, 2014 WL 3729864, slip op. at *1 (Mo. banc July 29, 2014), “because, among

other reasons, both require appellate courts to act as the finder of fact.” As Porter

precludes our consideration of the destructive contradictions doctrine, we instead limit

our analysis to Appellant’s second claim of error which challenges the sufficiency of the

evidence under our general standard of review for such challenges.

        Under that standard, we review whether or not sufficient evidence was produced

from which the trier of fact could have reasonably found guilt beyond a reasonable doubt.

State v. Fraga, 189 S.W.3d 585, 586 (Mo.App. S.D. 2006). This standard applies

regardless of whether the cause was court-tried or jury-tried. Id. In reviewing the

evidence, we accept all inferences favorable to the State as true, while all contrary

evidence and inferences are disregarded. Id. Our function is to determine if there is

sufficient evidence to support the conviction, not to reweigh the evidence. State v.

Mann, 129 S.W.3d 462, 467 (Mo.App. S.D. 2004). “It is the trial court’s prerogative to

decide whether to believe all, part or none of a witness’ testimony.” State v. Baumruk,

280 S.W.3d 600, 612 (Mo. banc 2009) (quoting State v. Morton, 229 S.W.3d 626, 629

(Mo.App. S.D. 2007)) (internal quotations omitted).



2
  Under this doctrine, a witness’ testimony loses probative value when his or her inconsistent and
contradictory statements at trial “are so diametrically opposed to one another as to preclude reliance
thereon[.]” State v. Beckett, 858 S.W.2d 856, 857 (Mo.App. W.D. 1993). However, mere discrepancies in
the witness’ testimony are not sufficient to invoke the doctrine; rather, the conflict must concern vital
points or elements. Id.


                                                    2
                                              Analysis

        “A person commits the crime of ‘driving while intoxicated’ if he operates a motor

vehicle in an intoxicated or drugged condition.” Section 577.010.1. “[A] person is in an

‘intoxicated condition’ when he is under the influence of alcohol, a controlled

substance, or drug, or any combination thereof.” Section 577.001.3. “Intoxication

consists of three components: impaired ability, presence of a proscribed substance in the

defendant’s body at the time of the offense, and a causal connection between the

proscribed substance and the defendant’s impaired ability.” State v. Honsinger, 386

S.W.3d 827, 830 (Mo.App. S.D. 2012). Whether a person is intoxicated may be proven

by any witness who had a reasonable opportunity to observe the person’s physical

condition. State v. Edwards, 280 S.W.3d 184, 189 (Mo.App. E.D. 2009).

        In this case, the testimony at trial as we must view it revealed that Miller, a

Missouri State Trooper, pulled over a vehicle driven by Appellant on April 9, 2008.

Miller testified that Appellant had been traveling at an excessive rate of speed and

appeared to be “out of control.” Upon approaching Appellant’s vehicle, Miller noted that

the driver’s side front and rear tires were blown out and that the driver’s outside mirror

had been shattered. When Miller questioned Appellant about the damage to the front of

his vehicle and if he had hit a road sign, Appellant responded, “Yeah, probably did.”

Miller inquired further, but Appellant was unable to provide any logical explanation as to

the status of his vehicle.

        Miller proceeded to order Appellant out of his vehicle. Miller noted that

Appellant exhibited “confused, incoherent, slurred speech”; bloodshot and glassy eyes; a

strong odor of intoxicants on his breath; and uncertain movements, including staggering.




                                              3
When Miller asked Appellant if he had consumed any alcohol, Appellant indicated that

he had consumed beer. Miller asked how much, and Appellant responded, “Definitely

six.” Appellant consented to perform field sobriety tests; however, Appellant was unable

to perform the horizontal gaze nystagmus test (“HGN test”) as instructed, which,

according to Miller, was the “easiest test.” Thereafter, Miller placed Appellant under

arrest for driving while intoxicated.3

         Appellant tacitly acknowledges that the above evidence, upon which the trial

court relied,4 constituted a prima facie showing that he was intoxicated. Nonetheless,

Appellant asserts that, in this case, Miller’s testimony should be disregarded because his

memory was “so faded that no reasonable juror could have relied on this evidence in

finding Appellant guilty.” The fallacy of this argument is that it ignores our standard of

review and the deference provided to the trial court’s credibility determinations. We note

that almost five years separated Appellant’s arrest and his subsequent trial; nevertheless,

the trial court was in the best position to gauge Miller’s memory as to the circumstances

pertaining to Appellant’s alleged intoxication.

         Accordingly, Miller’s testimony provided sufficient evidence to support the

finding that Appellant was in an intoxicated condition. See, e.g., State v. Vanosdol, 974

S.W.2d 650, 652-53 (Mo.App. W.D. 1998). Appellant’s points are denied and the

judgment of the trial court is affirmed.


3
 We note that Miller also presented testimony regarding an attempt to administer a breath test to Appellant,
but the trial court found this testimony in particular not to be credible.
4
  In rendering its judgment, the trial court explicitly found that Appellant: (1) operated a motor vehicle
with two blown tires and a damaged driver’s side mirror; (2) was unable to provide a logical explanation
for the damage to his vehicle; (3) exhibited slurred and confused speech; (4) had bloodshot and glassy eyes;
(5) exhibited a strong odor of intoxicants; (6) had uncertain movements; (7) could not follow instructions
with regard to HGN test; (8) operated a motor vehicle at an excessive rate of speed, fishtailed, and failed to
signal; and (9) admitted to consuming six beers.


                                                      4
Nancy Steffen Rahmeyer, J. - Opinion Author

Don E. Burrell, J. - Concurs

Mary W. Sheffield, P.J. - Concurs




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