IN THE MISSOURI COURT OF APPEALS

WESTERN DISTRICT

STATE OF MISSOURI,

Respondent,

v.

PETER DANIEL RASTORFER,

Appellant.

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WD80925

FILED: February 26, 2019

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.

CORRECTED 

02/26/2019
2

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 
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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 
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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 
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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 
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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.”). 
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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.”).
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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.