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State v. Dueker4/13/1999
h.
On review, we accept as true all of the evidence favorable to the verdict, including all favorable inferences drawn from the evidence, and disregard all evidence and inferences to the contrary. State v. Grim, 854 S.W.2d 403, 405 (Mo.banc 1993). In reviewing a challenge to the sufficiency of the evidence, appellate review is limited to a determination of whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt. Id. A jury is permitted to draw such reasonable inferences from the evidence as the evidence will permit, and may believe or disbelieve all, part, or none of the testimony of any witness. State v. White, 847 S.W.2d 929, 933 (Mo.App. E.D. 1993).
Defendant concedes that a showing that he failed to maintain a proper lookout can support his conviction of involuntary manslaughter. See, e.g., State v. Dagley, 793 S.W.2d 420, 424-25 (Mo.App. W.D. 1990). Here, however, defendant maintains that the State could not establish the cause of the collision leading to Keck's death and did not show that it was anything other than an unavoidable accident. In contrast, the State argues that the evidence and reasonable inferences therefrom showed that defendant never saw Keck riding on the side of Highway N and failed to keep a proper lookout.
We initially consider whether the evidence and reasonable inferences therefrom showed that defendant never saw Keck. Although defendant claimed that he saw Keck at 200 yards, that he released the accelerator at fifty yards, and that, immediately prior to impact, he moved to the left and attempted to evade the bicycle, the jury was entitled to disbelieve his testimony. The jury instead may have credited (1) Dr. Long's testimony that (a) defendant must have consumed approximately sixteen beers during the six hours prior to the collision, causing him to have a blood alcohol content of .21 within one hour of the collision; and (b) one having a blood alcohol content of .21 or .20 loses one's peripheral vision, making it difficult to see more than what is directly in front of oneself, impairing distance, judgment, perception, and the ability to recognize what one sees, and preventing one from assessing risk properly; (2) Scott's testimony that defendant's vehicle appeared to be traveling fast and weaving in its lane; (3) McClelland's testimony that he saw the impact and that defendant approached Keck from behind, apparently failed to see him, and "just hit him"; (4) Hoelscher's testimony that he did not see the bicycle veer "at all" and that the sight of defendant's oncoming vehicle led him to think that Keck was going to be hit; and (5) Tobias's testimony that defendant's bumper neared one of Keck's tires , leading Tobias to "ke looking back" and notice "how close he got to him." Additionally, noting that Haney testified that he did not see Keck's bicycle while traveling behind defendant, the jury may have inferred that, at the time when Haney saw defendant's vehicle veer to the left, defendant already had struck Keck and was in the process of leaving the highway in order to stop. Thus, the evidence at trial and reasonable inferences therefrom indeed showed that defendant never saw Keck riding on the side of Highway N.
If defendant never saw Keck, he may have failed to keep a proper lookout. In determining whether defendant failed to do so, the jury may have credited (1) Driehmeier's testimony that one traveling behind a slower moving vehicle on a two-lane roadway having a no-passing line on his or her side has the duty to look out for the slower moving vehicle; (2) Scott's testimony that Keck wore light-colored clothing and stayed on the right edge of the roadway while trave
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