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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 convict ion 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 insuffici ent evidence to support his conviction that he was in an “intoxicat ed 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 prob ation. Appellant was also convicted of careless an d imprudent driving, see section 304.012, and failing to signal, see section 304.019; however, he does not challenge those convictions on appeal. All referen ces to section 577.010.1 are to RSMo 2000. All oth er statutory references are to RSMo Cum.Supp.2005.2

In his first point, Appellant argues that the test imony of Thomas Miller (“Miller”)—the State’s sole witness—lacked probativ e value under the “destructive

contradictions” doctrine. 2 Following the submission of this case, however, o ur supreme court abolished this doctrine, along with the “corr oboration 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 cont radictions doctrine, we instead limit our analysis to Appellant’s second claim of error w hich challenges the sufficiency of the evidence under our general standard of review for s uch challenges. Under that standard, we review whether or not suffi cient 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 st andard 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 wi tness’ 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 pro bative value when his or her inconsistent and contradictory statements at trial “are so diametric ally 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 vi tal points or elements. Id.3 Analysis “A person commits the crime of ‘driving while intox icated’ 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 contr olled substance, or drug, or any combination thereof.” S ection 577.001.3. “Intoxication consists of three components: impaired ability, pr esence 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 a bility.” State v. Honsinger , 386 S.W.3d 827, 830 (Mo.App. S.D. 2012). Whether a per son 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 vi ew it revealed that Miller, a Missouri State Trooper, pulled over a vehicle drive n 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 o ut and that the driver’s outside mirror had been shattered. When Miller questioned Appella nt about the damage to the front of his vehicle and if he had hit a road sign, Appellan t responded, “Yeah, probably did.” Miller inquired further, but Appellant was unable t o provide any logical explanation as to

the status of his vehicle. Miller proceeded to order Appellant out of his veh icle. Miller noted that Appellant exhibited “confused, incoherent, slurred speech”; bloodshot and glassy eyes; a strong odor of intoxicants on his breath; and uncer tain movements, including staggering.4

When Miller asked Appellant if he had consumed any alcohol, Appellant indicated that he had consumed beer. Miller asked how much, and A ppellant responded, “Definitely six.” Appellant consented to perform field sobriet y tests; however, Appellant was unable to perform the horizontal gaze nystagmus test (“HGN test”) as instructed, which, according to Miller, was the “easiest test.” There after, Miller placed Appellant under arrest for driving while intoxicated. 3 Appellant tacitly acknowledges that the above evide nce, 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 test imony 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 arg ument is that it ignores our standard of review and the deference provided to the trial cour t’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 M iller’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 condit ion. 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 regar ding an attempt to administer a breath test to Appe llant, but the trial court found this testimony in particu lar not to be credible.

4 In rendering its judgment, the trial court explici tly found that Appellant: (1) operated a motor ve hicle with two blown tires and a damaged driver’s side mi rror; (2) was unable to provide a logical explanati on for the damage to his vehicle; (3) exhibited slurre d and confused speech; (4) had bloodshot and glassy eyes; (5) exhibited a strong odor of intoxicants; (6) had uncertain movements; (7) could not follow instruct ions with regard to HGN test; (8) operated a motor vehic le at an excessive rate of speed, fishtailed, and f ailed to signal; and (9) admitted to consuming six beers.5

Nancy Steffen Rahmeyer, J. - Opinion Author Don E. Burrell, J. - Concurs Mary W. Sheffield, P.J. - Concurs