Victory Denise Boone v. G. Eric Barnes

United States Bankruptcy Appellate Panel
FOR THE EIGHT CIRCUIT
_________________________
No. 00-6105WM
_______________________
In re: G. Eric Barnes *
*
Debtor *
* Appeal from the United States
Victory Denise Boone * Bankruptcy Court for the
* Western District of Missouri
Appellant *
*
v. *
*
G. Eric Barnes *
*
Appellee *
____________________________
Submitted: August 7, 2001
Filed: September 10, 2001
____________________________
Before SCOTT, DREHER AND McDONALD1, Bankruptcy Judges
____________________________
McDONALD, Bankruptcy Judge
1
The Honorable David P. McDonald, Chief Judge, United States Bankruptcy Court for the
Eastern District of Missouri sitting by designation.
1
Victory Denise Boone (“Plaintiff”) appeals from the judgment of the bankruptcy
court2 holding that the Plaintiff failed to establish that G. Eric Barnes ( “Debtor”) was
intoxicated at the time of an accident with Plaintiff. For the following reasons, we
affirm the bankruptcy court’s judgment.
I.
The Plaintiff and the Debtor were involved in a three car accident on Interstate
35 in North Kansas City, Missouri at approximately 3:00 A.M. on the morning of
December 14, 1997. The Debtor arrived at the Beaumont Club at approximately
midnight the morning of the accident. The Debtor stayed at the Beaumont Club for
approximately two hours and testified that he consumed three twelve ounce beers
during that time. The Debtor left the Beaumont Club around 2:15 A.M. to go to the
Harrah’s gaming boat. However, once he arrived at Harrah’s, Debtor elected not to
gamble because he had very little cash and returned home.
At approximately 3:00 A.M. on his way home from Harrah’s, Debtor lost
control of his vehicle on an entrance ramp to southbound Interstate 35. Debtor’s
vehicle slid across all lanes of southbound Interstate 35 and came to rest in the far left
lane after colliding with the median. Before Debtor could restart his vehicle, Plaintiff,
who was traveling southbound on Interstate 35, collided into his vehicle. Apparently,
Plaintiff did not see Debtor’s vehicle prior to the collision and therefore did not apply
her brakes. A third vehicle collided with Debtor’s vehicle immediately after the initial
collision between Plaintiff and Debtor.
Debtor suffered facial lacerations and contusions as the result of the accident
and Plaintiff sustained a severe leg injury. Both Plaintiff and Debtor were transported
2
The Honorable Arthur B. Federman, Chief Judge, United States Bankruptcy Court for the
Western District of Missouri.
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to hospitals for treatment of their respective injuries. A passenger in Plaintiff’s vehicle,
Samantha Walker, died at the scene of the accident.
The initial State Trooper on the scene of the accident, Corporal P.R. Davis,
interviewed Debtor in the ambulance prior to the ambulance transporting Debtor to the
hospital. Corporal Davis questioned Debtor as to whether he had been drinking and
Debtor responded in the negative. Corporal Davis also reported that the only odor he
could detect from Debtor was that of blood. The second State Trooper on the scene,
Corporal M.W. Cross, asked Plaintiff if she had been drinking that night and Plaintiff
admitted that she had consumed a couple of drinks during the course of the evening.
Debtor arrived at North Kansas City Hospital at approximately 4:00 A.M. The
hospital’s records indicate that Debtor was spontaneous, oriented and was able to
obey commands. Also, the records indicate that hospital personnel did not detect
alcohol on Debtor’s breath.
The reporting State Trooper, D.S. Nace, arrived on the scene of the accident
after both Plaintiff and Debtor had been transported to the hospital. Corporal Davis
and Trooper Nace arrived at North Kansas City Hospital at approximately 6:00 A.M.
to interview Debtor. Trooper Nace reported that he detected the odor of alcohol on
Debtor’s breath as he was interviewing him. Trooper Nace also stated that the Debtor
seemed confused and dazed and that he was unable to recall the facts relating to the
accident. Trooper Nace also questioned Debtor if he had been drinking prior to the
accident and Debtor responded that he had a “few drinks on the boat”.
Trooper Nace, believing that the Debtor may be intoxicated, decided to
administer a field sobriety test to Debtor. However, because Trooper Nace was
uncertain of the extent of Debtor’s injuries, he determined that he could only
administer the horizontal gaze nystagmus (“HGN”) test. Although the HGN test is
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ideally administered with the subject standing directly in front of the person
administering the test, Trooper Nace administered the HGN test with Debtor lying
down because of his injuries. Trooper Nace testified that Debtor presented all six
indications of intoxication in the HGN test.
Trooper Nace now believed that the Debtor was in fact impaired based on the
smell of alcohol on Debtor’s breath and the results of the HGN test. Trooper Nace
placed Debtor under arrest for careless and imprudent driving and requested that
Debtor submit to a blood alcohol test. Debtor complied with Trooper Nace’s request
and submitted to a blood alcohol test, which indicated that Debtor has a blood alcohol
content (“BAC”) of .05% by volume at 6:15 A.M. 3
Trooper Nace filed a statement of probable cause seeking to charge the Debtor
with involuntary vehicular manslaughter for the death of Ms. Walker on March 5, 1998,
indicating that he believed that Debtor was intoxicated at the time of the accident.
Based on Trooper Nace’s statement, the prosecuting attorney of Clay County
Missouri charged Debtor with involuntary vehicular manslaughter for the death of Ms.
Walker. Debtor entered a plea arrangement with the prosecuting attorney whereby the
Debtor agreed to plead guilty to careless and imprudent driving, a class A
misdemeanor, in exchange for the prosecutor dismissing the felony involuntary
vehicular manslaughter charge. The Circuit Court of Clay County, Missouri
sentenced Debtor to one year imprisonment on February 4, 1999 based on the plea
agreement.
Plaintiff filed a negligence action against the Debtor in the Circuit Court of
Jackson County, Missouri on March 17, 1998, seeking to recover for the injuries she
3
The Debtor argues on appeal that Plaintiff failed to demonstrate that Trooper Nace
administered the BAC test in accordance with Missouri law. Debtor failed, however, to raise this
objection at trial. Accordingly, the Debtor failed to preserve this issue for appellate review. Peerless
Corp. v. United States, 185 F.3d 922, 925 (8th Cir. 1999).
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suffered in the accident. Debtor filed a petition for relief under Chapter 7 of the
Bankruptcy Code on February 7, 2000. Plaintiff filed this adversary proceeding
seeking a determination that any damages she may be awarded in her state court action
are nondischargeable pursuant to 11 U.S.C. §529(a)(9).
After a trial on Plaintiff’s adversary complaint, the bankruptcy court entered
judgment on September 20, 2000, in favor of the Debtor. The bankruptcy court
determined that Plaintiff failed to meet her burden of proof in demonstrating that
Debtor was intoxicated under Missouri law at the time of the accident. Plaintiff
appeals from the bankruptcy court’s judgment, contending that the bankruptcy court
erred in finding that Plaintiff failed to meet her burden of proof and that the bankruptcy
court applied the incorrect burden of proof. We affirm.
II.
We will not set aside the bankruptcy court’s findings of fact unless those
findings are clearly erroneous. Fed. R. Bank. P. 8013. A finding is clearly erroneous
if, although there is evidence to support it, after examining the entire record, the
reviewing court is left with the definite and firm conviction that a mistake has been
made. Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985). When
reviewing the record, we must also give due regard to the bankruptcy court’s
opportunity to judge the credibility of the witnesses. Fed. R. Bank. P. 8013. We will
review the bankruptcy court’s determination of questions of law de novo. Holiday v.
Kline (In re Kline), 65 F.3d 749, 750 (8th Cir. 1995).
The bankruptcy court’s finding that the Debtor was not legally intoxicated at the
time of the accident is a question of fact that we review under the clearly erroneous
standard. Jones v. Hager (In re Jones), 80 B.R. 974, 976 (W.D. Mo. 1987). The
question of whether the bankruptcy court applied the correct burden of proof is a
question of law that we will review de novo. Internal Revenue Service v. Ford (In re
Ford), 194 B.R. 583, 588 (S.D. Ohio 1995).
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III
Plaintiff first argues that the bankruptcy court’s factual conclusion that the
Debtor was not intoxicated under Missouri law at the time of the accident was clearly
erroneous.
A. Application of Missouri State Law to Resolve Substantive Issues
Section 523(a)(9) of the Bankruptcy Code prevents the discharge of any debt
for personal injury caused by the Debtor’s operation of a motor vehicle, if such
operation was unlawful because of the Debtor’s intoxication. 11 U.S.C. § 523(a)(9).
When determining whether the debtor was unlawfully operating a vehicle while
intoxicated for purposes of section 523(a)(9), the bankruptcy court must apply state
substantive law. Whitson v. Middleton (In re Middleton), 898 F.2d 950, 952 (4th Cir.
1989).
Under Missouri law, a person commits the crime of driving while intoxicated if
he operates a motor vehicle while in an intoxicated condition. Mo. Rev. Stat. §
577.010.1. A BAC of .10% or more by weight in the person’s blood stream is prima
facie evidence of intoxication. Mo. Rev. Stat. § 577.037.1. If a BAC test result
shows that the person’s BAC is less than .10% by weight, then the court must dismiss
the charge unless there is evidence that: (1) the BAC test is unreliable because of the
passage of time between the operation of the vehicle and the administration of the test;
or (2) there is substantial evidence of intoxication from physical observation of
witnesses or an admission from the person. Mo. Rev. Stat. §§ 577.037.5(1) and
577.037.5.(3).
Here, the Debtor’s BAC three hours after the accident was .05% by weight.
Plaintiff argues that the bankruptcy court’s finding that Debtor was not legally
intoxicated is clearly erroneous for two reasons. First, Plaintiff contends that she
produced uncontroverted expert evidence that the BAC test result was unreliable
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because of the lapse of three hours between the accident and the administration of the
BAC test. Second, Plaintiff asserts that Trooper Nace’s observation of the Debtor
at the hospital, including the results of the HGN test, constitutes substantial evidence
of Debtor’s intoxication. We disagree with both of Plaintiff’s arguments.
B. Debtor’s BAC Level
At trial, Trooper Nace testified that he believed the dissipation rate of alcohol
in the blood stream accepted by Missouri courts is .02% per hour. The application
of a dissipation rate of .02% per hour would result in a Debtor having a BAC of .11%
at the time of the accident, which is over the presumptively intoxicated limit in
Missouri. Trooper Nace based his testimony solely on his experience in working with
prosecutors in criminal cases. The bankruptcy court held that this testimony was not
expert testimony. Plaintiff argues on appeal that this testimony by Trooper Nace
constitutes expert testimony that conclusively demonstrated that the Debtor had a
BAC in excess of .10% at the time of the accident.
As an initial observation, both parties analyzed the evidentiary questions
presented in this appeal by applying Missouri law. Although the bankruptcy court
must apply state law to resolve the substantive issues under section 523(a)(9), the
Federal Rules of Evidence apply in all proceedings under the Bankruptcy Code,
including adversary proceedings. Fed. R. Bankr. P. 9017; Fed. R. Evid. 1101(a).
Thus, even when the bankruptcy court applies state law to resolve substantive issues,
it must apply the Federal Rules of Evidence to resolve evidentiary questions. See
Hirsch v. Lopreato (In re Colonial Realty Co.), 209 B.R. 819, 822 (Bankr. D. Conn.
1997) (applying the Federal Rules of Evidence to resolve evidentiary issues while
applying Connecticut law to address the substantive fraudulent conveyance issue); See
also Spryncznatyk v. General Motors Corp., 771 F.2d 1112, 1122 (8th Cir. 1985)
(holding that in general questions of admissibility of evidence are governed by federal
law in cases where state substantive law applies). Accordingly, the Federal Rules of
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Evidence, not Missouri state law, govern the resolution of evidentiary questions here.
Fed. R. Evid. 702 governs the admissibility of expert testimony. At the time of
trial, Rule 702 stated that: “If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training, or education
may testify thereto in the form of an opinion or otherwise.”4 The analysis of the
admissibility of proffered expert testimony under Rule 702 centers on whether the
reasoning or methodology underlying the testimony is reliable and whether the
reasoning or methodology has been properly applied to the facts in issue. Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579, 592-93 (1993).
The proponent of the proffered expert testimony must establish by a
preponderance of the evidence that it should be admitted into evidence under Rule
702. Id. at 593 n.10. Thus, the proponent of the proffered testimony must establish
the proper foundation that the proposed expert has the sufficient expertise, training,
education or knowledge to testify as an expert on the issue in dispute. Weisgram v.
Marley Co., 169 F.3d 514, 519 (8th Cir.) cert. granted on other grounds, 527 U.S.
1069 (1999) aff’d, 528 U.S.982 (2000). Also, a trial court has wide discretion in
admitting proffered expert testimony under Rule 702 and we will not disturb its ruling
absent an abuse of that discretion. Bosley v. Excel Corp., 165 F.3d 635, 640 (8th Cir.
1999).
Plaintiff asserts that under Missouri law, a law enforcement officer who has
sufficient opportunity to observe the person may testify as an expert witness. See
4
Rule 702 was amended effective December 1, 2001, to explicitly incorporate the reliability
requirement reflected in the Supreme Court’s holding in Daubert and its progeny. However, because
the trial occurred prior to the effective date of the amendment, we will apply the prior version of Rule
702. See United States v. Edmonds, 69 F.3d 1172, 1175 (D.C. Cir. 1995).
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State v. Teaster, 962 S.W.2d 429, 431 (Mo. Ct. App. 1998). Apparently, Plaintiff is
arguing that because Troop Nace is qualified to testify as an expert as to his
observation of Debtor, he may testify as an expert on any issues concerning the
Debtor’s purported intoxication.
A trial court, under Rule 702, may admit the testimony of a properly trained law
enforcement official on the issue of whether a person is intoxicated based on the
officer’s personal observation of the person immediately following the accident. See
e.g. Commercial Union Insurance Co. v. Christiansen, 80 B.R. 481, 483 (W.D. Mo.
1987). However, the fact that a person may be qualified on one aspect of an issue
does not mean that the person is an expert on all aspects of the issue. Weisgram, 169
F.3d at 519. Rather, even if the witness may testify as an expert on one aspect of an
issue, the trial court must limit the scope of the witness’ testimony to the witness’
areas of expertise so as to ensure the testimony is reliable under Rule 702. Wheeling
Pittsburgh Steel Corp. v. Beelman River Terminals, Inc., 254 F.3d 706, 715 (8th Cir.
2001).
Here, Plaintiff did not offer any evidence concerning Officer Nace’s skill,
training, knowledge, expertise or education concerning his ability to testify to the rate
at which alcohol dissipates in the blood stream. Plaintiff simply relied on the fact that
Officer Nace is a law enforcement official and that in his experience, prosecutors
attempt to use a dissipation rate of .02% per hour. The record is barren of any
evidence indicating that Trooper Nace had any specialized training or experience
related to the rate of dissipation of alcohol in the blood stream. Further, although
Plaintiff asserts that Trooper Nace’s testimony establishes that Missouri has adopted
a dissipation rate of .02% per hour, she failed to cite to either the bankruptcy court
or us one instance where a Missouri court has in fact utilized that rate.
Plaintiff failed to meet her burden of proof in establishing the foundation that
Trooper Nace had the requisite knowledge, skill, experience, training or education to
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assist the bankruptcy court in determining the rate at which alcohol dissipates in the
blood stream. Accordingly, we cannot find that the bankruptcy court abused its
discretion in deciding that Officer Nace’s testimony concerning the dissipation rate of
alcohol in the blood stream was not admissible expert testimony.
Furthermore, because of the technical and complex nature of the issue, we agree
with the trial court that the rate of dissipation of alcohol in the blood stream must be
proved by expert testimony. See e.g. Commonwealth v. DiGeronimo, 652 N.E.2d
148, 157 n.15 (Mass. App. Ct. 1995). Based on this record, we cannot find that the
bankruptcy court’s finding that Plaintiff failed to demonstrate that Debtor’s BAC was
.10% or higher at the time of the accident was clearly erroneous.
B. The HGN Test
Plaintiff also maintains that Officer Nace’s testimony that Debtor evidenced six
of the six indications of intoxication in the horizontal gaze nystagmus (“HGN”) test is
dispositive to the issue of whether there was substantial evidence of Debtor’s
intoxication. The bankruptcy court noted that Trooper Nace administered the HGN
test, but that Debtor was in a prone position, not upright. Thus, the trial court either
determined that Trooper Nace’s testimony concerning the results of the HGN was
simply not reliable enough to be admissible under Rule 702 or that it may have met the
minimum reliability threshold, but that it should be given very little weight.
The HGN test measures an individual’s eye movement as it tracks an object that
is moving laterally along a horizontal plane to the periphery of the individual’s vision.
There are six clues of intoxication in the HGN test. Trooper Nace testified that when
he administered the test to the Debtor at the hospital, the Debtor presented all six
clues.
10
Missouri courts do allow the admission of testimony based on the results of a
HGN test if the person administering the test is adequately trained. See State v. Hill,
865 S.W.2d 702, 704 (Mo. Ct. App. 1993), overruled on other grounds State v.
Carson, 941 S.W.2d 518 (Mo. 1997). Also, under Missouri law, a presentation of
four of the six clues for intoxication is considered substantial evidence of intoxication.
Hill, 941 S.W.2d at 704.
Missouri courts have admitted such testimony because it is generally accepted
in the scientific community, relying on Frye v. United States, 293 F. 1013, 1014 (D.C.
Cir. 1923). Rule 702, however, has replaced the Frye standard as the test for whether
expert testimony should be admitted in Federal courts. Daubert, 509 U.S. at 587-88.
Thus, as we have outlined above, under Rule 702, Federal trial courts must determine
whether the proffered expert testimony is reliable rather than whether it is generally
accepted. Id. at 592-93.
It is true that under Rule 702, whether the testimony is based on a methodology
or reasoning that is generally acceptable is certainly relevant to whether it is reliable.
Id. at 594. However, generally acceptable is not dispositive to the analysis. Id. Also,
even testimony based on a generally accepted methodology may not be reliable when
applied to a particular issue or set of facts. Kumho Tire Co, Ltd. v. Carmichaeal, 526
U.S. 137, 153-54 (1999); Blue Dane Simmental Corp. v. American Simmental Assoc.,
178 F.3d 1035, 1040-41 (8th Cir. 1999).
Here, Plaintiff produced no evidence as to the reliability of the HGN test in
general or its application to the specific facts of this case. In fact, Trooper Nace
testified that the HGN should ideally be given while the person is standing but in this
case he had to administer the test while the Debtor was lying down. Furthermore,
there is no evidence of whether the injuries the Debtor had suffered as a result of the
accident may have any effect on the results of the HGN test. Also, there is no
evidence in the record as to the length of Trooper Nace’s training in administering and
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interpreting the HGN test. Given this record, we cannot determine the trial court
abused its discretion if it found that Trooper Nace’s administration and interpretation
of the HGN test was not sufficiently reliable to be admitted under Rule 702. 5
Furthermore, the bankruptcy court is afforded broad discretion in giving as
much or as little weight to expert testimony as it deems appropriate. Gran v. Internal
Revenue Service (In re Gran), 964 F.2d 822, 827 (8th Cir. 1992). Under the record
here, the bankruptcy court was well within its discretion in giving little weight to
Trooper Nace’s testimony concerning the results of the HGN test.
C. The Totality of Trooper Nace’s Observation of Debtor
Plaintiff next argues that the bankruptcy court’s finding that the Debtor was not
intoxicated was clearly erroneous because of the totality of Trooper Nace’s testimony.
Specifically, Defendant points to the following to support its contention: (1) Trooper
Nace’s detection of alcohol on Debtor’s breath at the hospital, (2) Debtor’s
conflicting statements to Trooper Nace and Corporal Davis concerning the amount of
alcohol he consumer prior to the accident, (3) Trooper Nace’s testimony that Debtor
was dazed and confused at the hospital, (4) Trooper Nace’s testimony that debtor was
unable to recall the facts surrounding the accident, (5) Trooper Nace’s testimony that
Debtor did not have his headlights on at the time of the accident and (6) the fact that
Debtor made a U-Turn in a nearby Texaco station just prior to entering Highway 35.
5
We note that even if we were to apply Missouri law with respect to this admissibility
question, we would still find that the bankruptcy court did not abuse its discretion in not admitting
Trooper Nace’s testimony concerning the results of the HGN test. Under Missouri law, if the
proponent of the HGN test fails to establish that it was administered properly or by a sufficiently trained
personnel, the trial court should exclude the results of the HGN test. Duffy v. Director of Revenue, 966
S.W.2d 372, 378 (Mo. Ct. App. 1998). Based on the record recited above, we could not say that the
trial court abused its discretion even if we applied Missouri law with respect to the admissibility
question.
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Clearly, a law enforcement official may testify as to his observation of the
allegedly intoxicated person immediately after the accident. Jones v. Hager, 80 B.R.
974, 977 (W.D. Mo. 1987). However, in Jones, the respective law enforcement
officials testified as to their observation of the purported intoxicated person
immediately after the accident. Id. Here, Trooper Nace did not observe Defendant
until approximately three hours after the accident.
Also, there is evidence in the record that controverts Trooper Nace’s testimony.
First, the hospital records indicate that hospital personnel believed that Debtor was
alert and responsive and that they did not detect alcohol on his breath. Second,
Corporal Davis, who spoke with Debtor immediately after the accident, did not smell
alcohol on Debtor’s breath. Third, the accident reconstruction report prepared by the
Highway Patrol does not list alcohol as a factor in the accident. Fourth, Trooper
Nace’s report of the accident indicates that there was a thin layer of ice crystals on the
entrance ramp where Debtor lost control of his car. Fifth, Trooper Nace did not mark
alcohol as a contributing factor in his initial accident report. Sixth, Austin Mackey,
who was with Debtor at the Beaumont Club the night of the accident, testified that he
did not believe that Debtor was intoxicated at the time he left the Club and would have
driven with him without any reservations.
As mentioned above, the weight given to any witness, including an expert, is a
matter within the discretion of the bankruptcy court. Gran, 964 F.2d at 827. Also,
under the clearly erroneous standard of review, a reviewing court may not reverse the
trial court’s finding if it is plausible in light of the entire record. Anderson, 470 U.S.
at 574. Given the record outlined above, and the bankruptcy court’s ability to judge
the credibility of the witnesses, the bankruptcy court’s finding that the Debtor was not
intoxicated at the time of the accident is certainly plausible. Therefore, we cannot say
that the bankruptcy court’s finding was clearly erroneous.
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D. Debtor’s Guilty Plea to Careless and Imprudent Driving
Plaintiff also asserts that the bankruptcy court improperly considered the fact
that the prosecutor and Debtor reached a plea agreement whereby the Debtor pled
guilty to careless and imprudent driving in exchange for the prosecutor dismissing the
vehicular manslaughter charge. A review of the bankruptcy court’s memorandum
opinion indicates that it simply reviewed Debtor’s guilty plea and found no admission
of intoxication. Under Missouri law, if a person admits to intoxication, such
admission may rebut the presumption that he was not intoxicated if his BAC was less
.10%. Mo. Rev. Stat. § 577.037.5(3). Thus, the fact that the Debtor did not admit to
being intoxicated at the time of the accident in his guilty plea was certainly relevant to
the issue in dispute. Accordingly, the trial court did not err in examining Debtor’s
guilty plea.
E. The Bankruptcy Court’s Application of the Correct Burden of Proof
Plaintiff’s final argument is that the bankruptcy court applied the incorrect
burden of proof. In adversary complaints to determine dischargeability under 11
U.S.C. § 529(a), the creditor must establish her case by a preponderance of the
evidence. First Nat’l Bank of Olathe v. Pontow (In re Pontow), 111 F.3d 604, 608 (8th
Cir. 1997). Here, Plaintiff contends that the bankruptcy court held her to a more
exacting burden of proof.
Nowhere in its order does the bankruptcy court apply a standard of proof
beyond a preponderance of the evidence. Plaintiff bases her contention on the
bankruptcy court’s citing the fact that Debtor pled guilty to careless and imprudent
driving. Apparently, Plaintiff is asserting that because the bankruptcy court stated in
its memorandum opinion that the Debtor pled guilty to careless and imprudent driving,
somehow the bankruptcy court imposed a criminal burden of proof on the Plaintiff.
However, as noted above, the bankruptcy court analyzed the guilty plea simply to
14
ensure that there were no admissions of intoxication in the plea. Accordingly, we
cannot say that the bankruptcy court held Plaintiff to a more stringent burden of proof.
IV.
After reviewing the entire record, we are not left with a definite and firm
conviction that the bankruptcy court made a mistake in determining that Plaintiff failed
to establish by a preponderance of the evidence that Debtor was intoxicated at the time
of the accident. Accordingly, the bankruptcy court’s finding that the Debtor was not
intoxicated at the time of the accident is not clearly erroneous. Also, the bankruptcy
court did not hold Plaintiff to a more stringent burden of proof than a preponderance
of the evidence. Therefore, the judgment of the bankruptcy court is affirmed.
A true copy.
Attest:
CLERK, U.S. BANKRUPTCY APPELLATE PANEL,
EIGHT CIRCUIT
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