State v. Ellmaker

• Decision Date: 20 October 2020
• Docket Number: WD 83026
• Citation: 611 S.W.3d 320
• Parties: STATE of Missouri, Respondent, v. Michael L. ELLMAKER, Appellant.
• Court: Missouri Court of Appeals

611 S.W.3d 320

STATE of Missouri, Respondent,

v.Michael L. ELLMAKER, Appellant.

WD 83026

Missouri Court of Appeals, Western District.

OPINION FILED: October 20, 2020

Jeannie Willibey, Kansas City, MO, Counsel for Appellant.

Nathan Aquino, Jefferson City, MO, Counsel for Respondent.

Before Division Three: Gary D. Witt, P.J., Lisa White Hardwick and Thomas N. Chapman, JJ.

Thomas N. Chapman, Judge

Michael Ellmaker ("Ellmaker") was convicted of driving while intoxicated ("DWI") following a jury trial in the Circuit Court of Platte County. The trial court found that Ellmaker was a habitual offender due to his six prior intoxication-related traffic offenses, entered a conviction for the class B felony of driving while intoxicated, and sentenced Ellmaker accordingly. Ellmaker appeals. In his first point, he argues that the trial court erred in finding that he was a habitual offender because the evidence produced by the State was insufficient to prove that two of his prior convictions qualify as intoxication-related traffic offenses. In his second point, he argues that the court erred in permitting testimony that referred to Ellmaker's post-arrest silence. In his third point, he contends that the trial court plainly erred in failing to intervene when the State impermissibly referred to Ellmaker's post-arrest silence in opening statement and closing argument. We have determined that the trial court erred in permitting testimony regarding Ellmaker's post-arrest silence as substantive evidence of guilt. The judgment is reversed, and the case is remanded.

Factual and Procedural History

On April 8, 2017, Sergeant Campbell ("Campbell") received a broadcast about a possible intoxicated driver leaving the Argosy Casino in a silver four-door car. Campbell spotted a silver Buick Lucerne with expired license plates, and began following the vehicle. He noticed the vehicle crossed the double solid lines as it went around a curve. As the vehicle stopped at a red light, Campbell saw the driver of the vehicle take a drink from a can inside a blue koozie. When the light turned green, Campbell stopped the vehicle, which was driven by Ellmaker. When asked for his license, registration, and insurance, Ellmaker was not able to provide these documents, and instead offered a cell phone bill. At this time, Ellmaker asked if his passenger could drive. Campbell noticed that Ellmaker's eyes were watery and bloodshot, and could smell alcohol when Ellmaker spoke. Ellmaker indicated that he had not been drinking and that the can in the car was a Coke. However, the passenger volunteered that the can (later confirmed to be a Busch beer can) was the passenger's beer.

Campbell testified that Ellmaker "kind of staggered" while exiting his car and maintained contact with the trunk of the vehicle as he stood. When asked, Ellmaker agreed to take a field sobriety test, but mentioned that "he had a bad knee."

Sergeant Campbell testified that there are three standardized field sobriety tests: the horizontal gaze nystagmus

(HGN), the walk and turn, and the one-legged stand. Due to his purported physical disability, Ellmaker was not asked to perform the walk and turn or one-legged stand tests, but was asked to perform the HGN field sobriety test. The HGN is an eye test that checks for six indicators of impairment. Sergeant Campbell testified that four positive indicators suggest impairment, and that six of six clues indicate a "high level of BAC, blood alcohol content." Ellmaker showed all six clues, which led Campbell to conclude that Ellmaker was impaired.¹

Sergeant Campbell placed Ellmaker under arrest. When he was told that he was being placed under arrest subject to the administration of a breathalyzer, Ellmaker stated that he had just come from the casino and had "had a few." At the Riverside Police Station, Campbell administered a breathalyzer test. The test used allows the taker six attempts to provide a sufficient sample of air. If a sufficient sample is not provided in six attempts, then the machine times out, and it is treated as a refusal. Ellmaker did not provide a sufficient amount of air in his six attempts, and was thus considered to have refused to take the breathalyzer test.

After providing Ellmaker his Miranda warnings, Sergeant Campbell asked Ellmaker a number of questions. Mr. Ellmaker said that he was gambling at the Ameristar Casino. Ellmaker said that he started drinking at five o'clock and stopped drinking ten minutes after six o'clock (an hour and ten minutes). However, Ellmaker also indicated that he was drinking at a pace of one beer an hour, and that he drank three beers (which suggested he had been drinking for three hours). When asked whether he was under the influence when he was stopped, Ellmaker said that he did not want to answer that question.

Ellmaker was charged in Platte County Circuit Court with the class B felony of driving while intoxicated as a habitual offender. He was also charged with the misdemeanor² of failure to drive on the right half of the roadway. After a jury trial, Ellmaker was convicted on the DWI offense. He was sentenced to ten years of imprisonment. He appeals to this court.

Point One

In his first point on appeal, Ellmaker contends that the trial court erred in finding him to be a habitual DWI offender, because there was insufficient evidence to prove that two of his six prior convictions qualified as intoxication-related traffic offenses ("IRTOs").

Driving while intoxicated is a class B felony if the defendant is a habitual offender, whereas the offense is a class C felony if the defendant is a chronic offender. § 577.010.³ A "habitual offender" is a person found guilty of five or more IRTOs committed on separate occasions, while a "chronic offender" is a person who has been found guilty of four or more such IRTOs. § 577.001(5), (11). Section 577.023.4 provides in relevant part:

Evidence offered as proof of the defendant's status as a ... habitual offender ... shall include but not be limited to evidence of findings of guilt received by a search of the records of the Missouri uniform law enforcement system, including criminal history records from the central repository or records from the driving while intoxicated tracking system (DWITS) maintained by the Missouri state highway patrol, or the certified driving record maintained by the Missouri department of revenue.

The State has the burden to prove prior IRTOs beyond a reasonable doubt. State v. Craig , 287 S.W.3d 676, 681 (Mo. banc 2009). "The standard of review for this court-tried issue is the same as in a jury-tried case."

State v. Cordell , 500 S.W.3d 343, 345 (Mo. App. S.D. 2016). Under section 577.023, the State need only present sufficient facts to support a finding beyond a reasonable doubt that the defendant either pled guilty or was found guilty of the requisite number of prior IRTOs. State v. Coday , 496 S.W.3d 572, 574 (Mo. App. W.D. 2016). In making this determination, "we accept as true all evidence to prove the prior offenses together with all reasonable inferences that support the circuit court's finding." State v. Rigsby , 589 S.W.3d 661, 664 (Mo. App. W.D. 2019) (quoting Coday , 496 S.W.3d at 574 ).

In this matter, the State presented evidence seeking to show that Ellmaker had six prior IRTOs. State's Exhibit 1, which was comprised of records showing a 2006 Jackson County conviction for C felony (aggravated offender) DWI, was admitted without objection. Following its admission, the trial court asked if there was any argument regarding State's Exhibit 1. Ellmaker's counsel then indicated what ended up being the entire extent of his argument at trial regarding the admission of his prior convictions:

So I do have a - I don't have a general objection. In State v. O'Coday [sic], which is 496 S.W.3d 572, to the extent that that felony conviction is insufficient to support a conviction of DWI or DUI in the State of Missouri under the laws at that time, we would be objecting, but nothing further.⁴

The State then offered State's Exhibit 2, which included the DWITS records from the Highway Patrol, and also offered State's Exhibit 3, which included Ellmaker's driving record maintained by the Missouri Department of Revenue ("DOR"). In response to State's Exhibits 2 and 3 (which included all six of Ellmaker's prior convictions for driving while intoxicated), Ellmaker's counsel indicated, "No objection, well other than the same objection to the last, the State v. Coday , just the general objection." Ellmaker did not state which of the six convictions he was challenging or make any specific argument as to how or why any of the convictions would be impacted by the holding in Coday .

On appeal, Ellmaker challenges the sufficiency of the State's evidence in support of the court's determination that Ellmaker was a habitual offender pursuant to Section 577.001(11). He argues that the February 18, 1993⁵ and December 21, 1993⁶ convictions in the Circuit Court of Jackson County, Missouri for driving while intoxicated under section 577.010 were insufficient because they did not constitute IRTOs.⁷ Regarding both of the challenged 1993 convictions, the DWITS records maintained by the highway patrol indicated (under the charge code description), "DWI/ALCOHOL." Ellmaker's DOR driving record indicates that he was convicted of "DRIVING WHILE INTOXICATED" in both of the challenged 1993 IRTOs.

"In determining whether a previous offense qualifies as an IRTO it must involve conduct sought to be deterred at the time of the present offense." Cordell , 500 S.W.3d at 345. At the time of Ellmaker's present (2017) offense, driving while intoxicated fell within the definition of an "intoxication-related traffic offense." § 577.001(15). "A person commit[ted] the offense of driving while intoxicated if he or she operate[d] a vehicle while in an intoxicated condition." § 577.010.1. " ‘Drive’, ‘driving’, ‘operates’, or ‘operating’, mean[t] physically driving or operating a vehicle or...