                                                                   CORRECTED
                                                                    02/26/2019




            IN THE MISSOURI COURT OF APPEALS
                    WESTERN DISTRICT
 STATE OF MISSOURI,            )
                 Respondent, )
                               )
 v.                            )               WD80925
                               )
 PETER DANIEL RASTORFER,       )               FILED: February 26, 2019
                    Appellant. )
                   Appeal from the Circuit Court of Clay County
                   The Honorable Shane T. Alexander, Judge
       Before Division Two: Alok Ahuja, P.J., and Thomas H. Newton
                         and Mark D. Pfeiffer, JJ.
      After a bench trial in the Circuit Court of Clay County, appellant Peter

Rastorfer was convicted of driving while intoxicated in violation of § 577.010 RSMo.

He was sentenced as a chronic offender to eight years’ incarceration. Rastorfer

appeals. He argues that the State’s evidence was insufficient to convict him of the

offense, because the State failed to prove that he was intoxicated while operating a

motor vehicle. We affirm.
                                 Factual Background1
      Two minutes before midnight, on Saturday, October 3, 2015, two Clay County

Sheriff’s deputies were dispatched to North Eastern Avenue and 134th Street in

Smithville for a reported vehicle accident. Upon arrival, Deputy Mary Conrad saw

a white Ford F-350 pickup truck off the side of the roadway on an embankment.

The truck was lying upside down on its roof. The vehicle was close to and facing the

       1     Consistent with our standard of review, we view the evidence in the light
most favorable to the circuit court’s judgment.
roadway, with its headlights and tail lights on. Deputy Conrad described the

weather as clear, and the road as straight and dry with a paved asphalt surface.

        Rastorfer was standing near the truck. As Deputy Conrad approached him,

she smelled a “faint” odor of alcohol on his breath, and noticed that his eyes were

bloodshot. Deputy Conrad testified that, based on her observations, she believed

Rastorfer was intoxicated. Rastorfer declined medical treatment at the scene.

        Rastorfer told Deputy Conrad that he was traveling northbound on North

Eastern Avenue when the passenger side wheels of his truck went off the side of the

road. He said that he overcorrected and crossed over the center line, went off the

opposite side of the road, and then caught an embankment, which caused the truck

to flip. The truck rolled several times before it came to rest on its roof next to the

road.

        Deputy Chris Johnson responded to the scene of the accident shortly after

midnight and began a driving while intoxicated investigation. Deputy Johnson

detected a “strong odor” of alcohol coming from Rastorfer. He also observed

Rastorfer’s eyes to be “watery and glassy,” and his balance “swaying and uncertain.”

Rastorfer told Deputy Johnson that he had last consumed an alcoholic beverage 30

minutes earlier. Deputy Johnson testified that Rastorfer’s “hand was bandaged up”
due to “an injury on his hand.”

        Deputy Johnson performed two field sobriety tests: a horizontal gaze

nystagmus (HGN) test, and the walk-and-turn test. He detected three out of six

possible clues of intoxication on the HGN test. Deputy Johnson testified that the

presence of four clues on the HGN test generally indicates intoxication; but he

explained that he was unable to complete the HGN test, and did not score

Rastorfer’s right eye, because Rastorfer “wouldn’t follow my proper instructions” by

visually following the stimulus. Deputy Johnson detected four out of eight possible
clues of impairment on the walk-and-turn test, and testified that two clues indicates


                                           2
intoxication. When Deputy Johnson attempted to perform the one-leg stand test,

Rastorfer refused to comply. Following his investigation, Deputy Johnson arrested

Rastorfer for driving while intoxicated and transported him to the Clay County

Detention Center.

      At the Detention Center, Deputy Johnson read Rastorfer the Missouri

Implied Consent warning, and told Rastorfer that if he refused to submit to

chemical testing he would lose his driving privileges for one year. Rastorfer refused

to submit to testing.

      In response to questioning, Rastorfer admitted that he had been driving the

truck when it crashed. He said he had been injured in the crash but not

“substantially.” While Deputy Johnson was interrogating him, Rastorfer’s hand

bled on the counter. Rastorfer said that, “the last three hours prior to his contact

with law enforcement,” he had been at “dirt track races in Grain Valley.” Rastorfer

said that he had consumed five beers on the day of the accident, between 2:00 p.m.

and 10:00 p.m. Rastorfer admitted that he was under the influence of alcohol at the

time of his questioning by Deputy Johnson.

      Rastorfer was charged as a chronic offender with one count of felony driving

while intoxicated. He waived his right to a jury trial, and the case was tried to the
court. The court found that Rastorfer had been convicted of four or more

intoxication-related traffic offenses and was therefore a chronic offender under

§ 577.023, RSMo. The court found Rastorfer guilty as charged, and sentenced him

to eight years’ imprisonment.

      Rastorfer appeals.
                                 Standard of Review
      In bench-tried criminal cases like this one, the court’s “findings shall have the

force and effect of the verdict of a jury.” Rule 27.01(b). Accordingly, “[w]e assess the
sufficiency of the evidence to support a conviction in a court-tried case using the


                                           3
same standard as in a jury-tried case.” State v. Barac, 558 S.W.3d 126, 129 (Mo.

App. W.D. 2018) (citation omitted). We ask whether “the State has introduced

sufficient evidence from which [the court] could have found each element of the

crime beyond a reasonable doubt.” State v. Ajak, 543 S.W.3d 43, 46 (Mo. 2018)

(citation and internal quotation marks omitted).

      To determine whether the evidence presented was sufficient to support
      a conviction and to withstand a motion for judgment of acquittal, this
      Court does not weigh the evidence but, rather, accepts as true all
      evidence tending to prove guilt together with all reasonable inferences
      that support the verdict, and ignores all contrary evidence and
      inferences. But the Court will not supply missing evidence or grant
      the State unreasonable, speculative, or forced inferences.
Id. (citations and internal quotation marks omitted).
                                      Analysis
            As the name of the offense indicates, to support a conviction
      under § 577.010 the State must prove beyond a reasonable doubt that
      the defendant was (1) driving (2) while (3) intoxicated. Each of these
      words has significance, and imposes a separate evidentiary burden on
      the State.
State v. Hatfield, 351 S.W.3d 774, 776–77 (Mo. App. W.D. 2011).

      Although Rastorfer conceded to Deputy Johnson that he was intoxicated at

the time he was arrested, and that he was driving his truck at the time of the

accident, he argues that the State’s evidence was insufficient to establish, beyond a

reasonable doubt, that he was intoxicated while driving.

      We have recognized that to sustain a conviction for driving while intoxicated,

“‘[t]he State must establish, through direct or circumstantial evidence, the temporal

connection between the defendant’s last operation of a motor vehicle and his

observed intoxication.’” Barac, 558 S.W.3d at 130 (quoting State v. Baker, 499

S.W.3d 730, 733 (Mo. App. W.D. 2016) (citation omitted)). There was sufficient

circumstantial evidence in this case to establish the required temporal connection
between Rastorfer’s admitted driving, and his admitted intoxication. Rastorfer



                                          4
admitted that he was driving his truck at the time of the accident. He also

admitted to drinking five beers between 2:00 p.m. and 10:00 p.m. on the date of the

accident. The Sheriff’s deputies encountered Rastorfer shortly after midnight. He

later told Deputy Johnson that, in the three hours prior to encountering the

deputies, he had been dirt track racing in Grain Valley, more than thirty miles

away from the accident scene. Given that Rastorfer told officers that he had

stopped drinking by 10:00 p.m., the time he said he had been in Grain Valley, and

the distance he travelled from Grain Valley to the accident scene, it was a

reasonable inference that Rastorfer had finished drinking well before the accident

occurred. Rastorfer admitted that he was intoxicated when officers interrogated

him; on his own version of events, that intoxication must have derived from the

alcoholic beverages he consumed before 10:00 p.m., which supports a reasonable

inference that he was intoxicated thereafter—while he was driving, and causing the

single-vehicle accident.

      Officers observed signs of Rastorfer’s intoxication when they first

encountered him, and he admitted to being intoxicated at the Clay County

Detention Center. Circumstantial evidence supports the inference that Rastorfer

was driving, and the accident occurred, only shortly before the Sheriff’s deputies
arrived at the scene (and thus, only shortly before Rastorfer’s admission, and the

officer’s observations, of his intoxication). Rastorfer’s vehicle was upside down, very

close to the roadway, with its headlights on and shining across the roadway. Given

that the headlights and tail lights of the vehicle were illuminated, and given the

position of the vehicle, it is a reasonable inference that the vehicle had not been in

that position for any considerable period of time. Cf. Barac, 558 S.W.3d at 132

(location of vehicle close to traffic lanes of interstate highway supported the

inference that the vehicle “had not been at that location for an extended period”
before police arrived). The State also presented evidence that Rastorfer’s hand bled


                                           5
on a counter at the police station following the accident; a fact-finder could

reasonably conclude that the injury was recent. See State v. Varnell, 316 S.W.3d

510, 517 (Mo. App. W.D. 2010) (“Whether a defendant is still bleeding can be a

factor in determining how long ago the accident occurred.”).

       The circumstances of Rastorfer’s vehicle accident also support the inference

that he was intoxicated while he was driving. Rastorfer had a single-vehicle

accident on a straight, dry, paved road surface, in clear weather. The accident was

serious: the truck rolled several times, coming to rest upside down. Thus, despite

favorable road conditions, and without any obvious external cause, Rastorfer veered

off the side of the road and flipped his very large pickup truck. “[T]he

circumstances of an accident, when coupled with other supporting evidence and

interpreted in the light most favorable to the judgment, can provide additional

competent evidence of drunk driving.” Varnell, 316 S.W.3d at 516 (citation

omitted). The fact that Rastorfer had admitted to substantial consumption of

alcoholic beverages before the accident occurred only bolsters the inference that the

accident was alcohol-related. See Baker, 499 S.W.3d at 734 (“a relatively brief

period of time from a defendant’s erratic driving and his arrest in an intoxicated

condition can be sufficient to establish that connection” (between driving and
intoxication)); Varnell, 316 S.W.3d at 516 (“By admitting to alcohol use after veering

off a dry road into a culvert, with no external factors present to explain the crash,

Varnell provided the court with substantial circumstantial evidence to support a

conviction.”).

       Finally, Rastorfer’s refusal to submit to a chemical breath test can be

interpreted as evidence that he was conscious of his guilt for driving while

intoxicated. See Baker, 499 S.W.3d at 734 (“Refusal to take a breathalyzer test can

constitute evidence from which a reasonable inference can be drawn that the driver
was intoxicated at the time of the operation of his vehicle.”).


                                           6
       Rastorfer relies principally on three cases to argue for reversal: State v.

Ollison, 236 S.W.3d 66 (Mo. App. W.D. 2007), State v. Davis, 217 S.W.3d 358 (Mo.

App. W.D. 2007), and State v. Hatfield, 351 S.W.3d 774 (Mo. App. W.D. 2011). In

each case, we reversed a conviction for driving while intoxicated based on our

conclusion that the State had failed to present sufficient evidence that the

defendant was intoxicated while driving. Those cases are materially

distinguishable from this case, however. In each of those cases, we concluded that

there was no competent evidence from which the fact-finder could determine, even

approximately, when the defendant had been driving, and when an accident had

occurred.2 As we have explained above, however, this case is importantly different.

While the precise time of the accident (and Rastorfer’s last operation of his truck)

may not be established by the State’s evidence, the evidence does support the

reasonable inference that Rastorfer had been driving only shortly before the

Sheriff’s deputies approached him, and that he had concluded his consumption of

alcohol substantially earlier.

       Rastorfer also argues that his conviction must be reversed because the State’s

evidence failed to negate the possibility that he had consumed alcoholic beverages

at the scene of the accident, after the accident occurred. As we have explained
above, however, the evidence permitted the reasonable inference that the accident

had occurred only shortly before officers encountered Rastorfer around midnight,

but Rastorfer told Deputy Johnson at the Detention Center that his alcohol

consumption had concluded by 10:00 p.m. Moreover, there was no evidence of open


       2       See Hatfield, 351 S.W.3d at 780 (“Here, there is no evidence as to the
approximate time that Hatfield was operating the vehicle or the time the accident occurred,
or how much time elapsed between the accident and the arrest.” (citation and internal
quotation marks omitted)); Ollison, 236 S.W.3d at 69 (“[T]he State’s evidence established
only that [the accident] occurred sometime between 7:00 p.m. and 1:20 a.m.”); Davis, 217
S.W.3d at 361 (“There is nothing in the record to establish the approximate time that Davis
was operating the vehicle or the time [the] accident occurred.”).


                                             7
or empty alcoholic beverage containers at the scene. Even if the evidence did not

wholly foreclose the possibility that Rastorfer consumed alcohol following the

accident, “‘[e]ven in a circumstantial evidence case, the evidence need not be

conclusive of guilt, nor must the evidence exclude every hypothesis of innocence.’”

State v. Scroggs, 521 S.W.3d 649, 654 (Mo. App. W.D. 2017) (citation omitted). “The

State is not required to disprove every possible theory under which a defendant

could be innocent,” Varnell, 316 S.W.3d at 518; instead, “evidence is sufficient to

support guilt if any reasonable inference supports guilt, even if other ‘equally valid’

inferences do not.” State v. Putney, 473 S.W.3d 210, 219 (Mo. App. E.D. 2015)

(citations omitted). In this case, the State’s failure to present evidence to exclude

the possibility that Rastorfer consumed alcoholic beverages after his accident does

not require reversal, when the State presented other, sufficient evidence to prove

Rastorfer guilty of driving while intoxicated beyond a reasonable doubt.
                                      Conclusion
      The judgment of the circuit court is affirmed.




                                               ___________________________________
                                               Alok Ahuja, Judge
All concur.




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