City of Joplin v. Marston

• Decision Date: 21 July 2011
• Docket Number: No. SD 30824.,SD 30824.
• Citation: 346 S.W.3d 340
• Parties: CITY OF JOPLIN, Missouri, Plaintiff–Respondent,v.Kimberly K. MARSTON, Defendant–Appellant.
• Court: Missouri Court of Appeals

346 S.W.3d 340

CITY OF JOPLIN, Missouri, Plaintiff–Respondent,
v.
Kimberly K. MARSTON, Defendant–Appellant.

No. SD 30824.

Missouri Court of Appeals, Southern District, Division One.

July 21, 2011.

[346 S.W.3d 340]

R. Deryl Edwards, Joplin, MO, for Appellant.No brief filed by Respondent.

[346 S.W.3d 341]

GARY W. LYNCH, Judge.

Kimberly K. Marston, (“Defendant”) appeals her convictions, following a trial de novo in the Circuit Court of Jasper County, for driving a vehicle under the influence of drugs and driving the wrong direction on a one-way street allegedly in violation of City of Joplin ordinances. Finding insufficient evidence as to the ordinances alleged to have been violated, we reverse and remand for the entry of a judgment of acquittal.

Factual and Procedural Background

As a prefatory matter, we observe that the City of Joplin failed to file a respondent's brief in this case, which we acknowledge it was under no obligation to do. However, “ ‘[w]hen one party fails to file a brief, [this Court] is left with the dilemma of deciding the case (and possibly establishing precedent for future cases) without the benefit of that party's authorities and point of view. Appellate courts should not be asked or expected to assume such a role.’ ” City of Montgomery v. Christian, 144 S.W.3d 338, 339 (Mo.App.2004) (quoting State v. Musil, 935 S.W.2d 379, 380 (Mo.App.1996) (citing Thummel v. King, 570 S.W.2d 679, 686 (Mo. banc 1978))).

Officer Gabriel Allen of the Joplin Police Department observed Defendant driving the wrong way down a one-way street. Officer Allen initiated a traffic stop and, upon approaching the vehicle, noticed the strong smell of burnt marijuana. He next asked Defendant if she had had anything to drink, to which Defendant responded that she had drunk one beer. Officer Allen then had Defendant perform several field sobriety tests, the results of which indicated intoxication. Thereafter, Officer Allen arrested Defendant and performed a search of the vehicle, during which he found a marijuana joint on the floorboard between the two front passenger seats. Defendant was subsequently charged with violating three municipal ordinances: driving a motor vehicle under the influence of a controlled substance (“Count I”), driving the wrong direction on a one-way street (“Count II”), and possession of marijuana (“Count III”).

Following trial in the municipal division of the circuit court, Defendant was found guilty on all three charges. She timely filed an application for trial de novo. After that trial de novo, the circuit court found Defendant not guilty as to Count III but guilty on Counts I and II. The court sentenced Defendant to pay a fine of $400.00 on each of the latter two counts. Defendant later received a special order from this Court permitting the late filing of a notice of appeal; this appeal ensued.

Standard of Review

While considered a civil action, municipal ordinance violations are said to be “quasi-criminal in nature.” City of Webster Groves v. Erickson, 789 S.W.2d 824, 826 (Mo.App.1990) (quoting Strode v. Dir. of Revenue, 724 S.W.2d 245, 247 (Mo. banc 1987)). This is so...