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State v. Cross11/14/2000
section 304.010. Id. at 517. Thus, the Court acknowledged that the terms "driving" and "operating" have different meanings when used in other statutes, thereby confirming that it was confining its broad definition of those terms to section 304.010 and that it did not intend for this definition to be applied in the interpretation of other statutes.
Furthermore, Gibbs v. National General Ins. Co., 938 S.W.2d 600 (Mo. App. S.D. 1997), which the majority relies on for the proposition that Missouri courts "have repeatedly construed 'operator' broadly" under Chapters 304 and 577, examines numerous different definitions for "operating" which have been provided for under various statutory chapters. Id. at 603-604.
After reviewing the various definitions applied under the different chapters, Gibbs concluded that "the key to operation of a motor vehicle in Missouri is actual physical control." Id. at 604. However, the Legislature specifically amended section 577.001.1 so that "actual physical control," the "key" to the definitions considered in Gibbs, no longer constitutes "operating" under Chapter 577. Accordingly, this change to the statute has rendered the definitions examined in Gibbs inapplicable to the current statute.
While I agree that being in actual physical control is a presrequisite to operating a motor vehicle, I do not agree that these two terms overlap so much as to be, in practical effect, synonymous. The majority purports to recognize that these terms have different meanings and that operating is merely a subset of actual physical control, as is driving. But in fact it then defines operating as actual physical control was previously defined, by stating that one can be found to be operating a vehicle if one is found in actual physical control of a running vehicle. This is, of course, exactly what is required in order to show actual physical control by most cases, since if a vehicle is not running then whether those in it are intoxicated is irrelevant.
This is evident when the majority states that it has "no difficulty concluding . . . that the state presented sufficient evidence to establish [Cross'] guilt beyond a reasonable doubt." Maj. Op. at 4. In reaching this conclusion, the majority relies on two separate theories: 1) that the state's circumstantial evidence was sufficient to prove that Cross operated the vehicle, and 2) that the direct evidence establishes that Cross operated the car by turning off the car's engine and headlights.
The majority points to the following circumstantial evidence to support its conclusion: (1) Cross was "in the driver seat lying across the front seats with the engine running;" and (2) " o one else was in the vehicle." Id. The majority contends that this circumstantial evidence "was sufficient for a fact finder reasonably to conclude that he had turned on the car's engine." Maj. Op. at 6. I submit that such evidence is wholly inadequate to prove beyond a reasonable doubt that Cross turned on the car's engine and that he was intoxicated at the time. While there was no one else in the car when the officers arrived, there was no evidence whatsoever regarding whether other people were near the car or in the vicinity. There was no evidence as to who owned the car, or how long it had sat at the location.
While someone obviously had to drive the car to its location, and while a fact finder might draw the inference that it was Cross, there is no evidence as to whether he was intoxicated when it was driven there. There was evidence of the presence of beer cans in the car, indicating that some alcohol may have been consumed after the vehicle was stopped by the side of the road. I respectfully suggest that the m
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