State v. Miller

• Decision Date: 21 January 2005
• Docket Number: No. 26160.,26160.
• Citation: 153 S.W.3d 333
• Parties: STATE of Missouri, Respondent, v. Zachary MILLER, Appellant.
• Court: Missouri Court of Appeals

153 S.W.3d 333

STATE of Missouri, Respondent, v. Zachary MILLER, Appellant.

No. 26160.

Missouri Court of Appeals, Southern District, Division Two.

January 21, 2005.

Bruce Galloway, Springfield, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Daniel N. McPherson, Asst. Atty. Gen., Jefferson City, for respondent.

ROBERT S. BARNEY, Judge.

Following a bench trial, Appellant, Zachary Miller ("Defendant"), was convicted of the Class D felony of driving while intoxicated, in violation of section 577.010.¹ Pursuant to section 577.023, the trial court sentenced Defendant, as a prior and persistent offender, to four years imprisonment but suspended the execution of the sentence and placed him in a five year supervised probation program with special conditions.

As best we discern Defendant's sole point on appeal, he contends the State failed to prove he was a persistent offender under section 577.023.1(2), and requests the case be remanded solely for the purpose of re-sentencing him as a prior offender.² Defendant asserts the trial court erred in overruling his objection that State's Exhibit 2 lacked relevance, because it did not demonstrate the underlying Springfield municipal ordinance violation contained the same elements required by section 577.010. Accordingly, he asserts the trial court had no basis for finding the violation to be an "intoxication-related traffic offense" in determining he was a prior and persistent offender under section 577.023.³

We preliminarily note the record does not contain a copy of the municipal ordinance by which Defendant challenges the determination that he was improperly found to be a persistent offender. While we are unable to determine the ordinance's exact wording, our perusal of State's Exhibit 2, in conjunction with our review of the transcript, throws light upon the substance of the municipal ordinance under which Defendant was charged and found guilty of an intoxicated related traffic offense.⁴

The record reveals that on September 20, 2003, at approximately 11:57 p.m., Greene County Deputy Brian Archer observed a vehicle cross the center line and then make a turn without signaling. Deputy Archer initiated a traffic stop of the vehicle, a 1997 red Ford pickup, at Farm Road 80 and Lakewood Street in Greene County, Missouri. He identified the driver as Defendant and noted a moderate odor of intoxicants. Upon questioning, Defendant, who was twenty years old at the time, admitted to having consumed two beers that evening. Deputy Archer administered three field sobriety tests: walk and turn, one leg stand, and horizontal gaze nystagmus, all of which Defendant failed. After placing Defendant under arrest, Deputy Archer searched the vehicle and found a twelve-pack box of beer containing four unopened cans. At the Greene County Jail, Defendant refused to provide a breath sample.

A felony complaint was filed in Greene County Circuit Court on October 28, 2003, charging Defendant with the Class D felony of driving while intoxicated in violation of section 577.010. The complaint also alleged Defendant was a prior and persistent offender under section 577.023, based on an October 15, 2002, guilty plea to a DWI charge entered in the Associate Division of the Circuit Court of Greene County; and an August 6, 2002, guilty plea to a DWI charge entered in the Municipal Court of the City of Springfield. Defendant's case went to trial on January 28, 2004.

At a pretrial hearing, the trial court took evidence on Defendant's prior convictions. The State offered Exhibit 1, the Greene County DWI, which was admitted without objection. Defense counsel objected to Exhibit2 — the City of Springfield DWI conviction — as irrelevant "to the issue of whether this is a predicate prior for this offense."

The trial court found Defendant to be a prior and persistent offender beyond a reasonable doubt. Defendant then waived his right to a jury trial and proceeded with a bench trial. Defendant was found guilty of the Class D felony of driving while intoxicated beyond a reasonable doubt and later sentenced as related above. This appeal followed.

Defendant ultimately attacks the sufficiency of the evidence to support his sentence as a persistent offender. See State v. Gibson, 122 S.W.3d 121, 126 (Mo.App.2003). "The appellate court reviews the sufficiency of the evidence in a court-tried criminal case by applying the same standard used in a jury-tried case." State v. Anderson, 107 S.W.3d 447, 450 (Mo.App.2003). Trial courts have broad discretion over questions regarding relevance and admissibility of evidence. State v. Bradley, 57 S.W.3d 335, 340 (Mo.App.2001). We will not overturn those decisions unless the court has clearly abused its discretion. Id. Judicial discretion is abused only when the trial court's ruling is clearly against the logic of the circumstances and so arbitrary and unreasonable as to shock the sense of justice. State v. Moore, 88 S.W.3d 31, 36 (Mo.App.2002). Statutory interpretation, however, is a question of law which this Court reviews de novo. State v. Harney, 51 S.W.3d 519, 532 (Mo.App.2001).

When determining whether the judgment in a court-tried case is supported by the evidence, the appellate court considers whether there is sufficient evidence for a reasonable finder of fact to have found the defendant guilty beyond a reasonable doubt. State v. Bewley, 68 S.W.3d 613, 617 (Mo.App.2002) Evidence is "sufficient" when the trier of fact could reasonably find the issue in conformity with the verdict. Id.

Missouri law establishes that municipal DWI convictions may be used to prove a defendant's prior and persistent status. State v. Haskins, 950 S.W.2d 613, 615 (Mo.App.1997); § 577.023.14;⁵ see also State v. Meggs, 950 S.W.2d 608, 609-10 (Mo.App.1997).

Citing Gibson, 122 S.W.3d 121, Defendant argues that State's Exhibit 2 was not relevant and should not have been admitted because it failed to show that the municipal ordinance that Defendant violated had the same elements as set out in section 577.010, i.e., "operates a motor vehicle while in an intoxicated or drugged condition," and, therefore, the State's proof was insufficient to support an enhancement of his penalty as a persistent offender under section 577.023.

In Gibson, the appellate court determined that the Kansas City municipal ordinance making it illegal to be in physical control of a motor vehicle while under the influence of alcohol and could not be used to enhance the Gibson defendant's punishment under the persistent offender provisions of section 577.023.⁶ Id. at 126. That finding was based on the 1996 amendment to section 577.001.1, discussed in footnote 6, which removed the phrase "actual physical control" from the definition of either "drive," "driving," "operates," or "operating" under Chapter 577. The Gibson court determined that since state law no longer prohibited a person from being in actual physical control of a motor vehicle while intoxicated, the municipal violation charging that conduct could no longer be considered an intoxicated-related traffic offense that would trigger sentencing as a persistent offender under section 577.023. Id. at 128-29.

However, Gibson is distinguishable from this case on its facts. From our review of the "Complaint & Information" which also constitutes part of Exhibit 2, it reveals four boxes indicating the unlawful act for which a motorist may be cited. The options are: "(1) operate, (2) park, (3) A.C.M.V., or (4) with Haz. Mat." It is not clear from the record whether the term "A.C.M.V." stands for "Actual Control of a Motor Vehicle."

In Gibson, the defendant was cited for being in physical control of a vehicle while under the influence of alcohol. Gibson, 122 S.W.3d at 127. In the instant matter, however, Exhibit 2 reveals the deputy sheriff checked the box "operate", denoting the unlawful operation of a vehicle, which comports with the statutory definition of "driving," as defined in section 577.001.1.

As previously set out, section 577.010.1 provides that "[a] person commits the crime of `driving while intoxicated' if he operates a motor vehicle while in an intoxicated or drugged condition." The "Complaint & Information," written out by Deputy Archer, sets out that Defendant "did unlawfully operate" a "vehicle," "and then and there committed the following offense: Driving While Intoxicated." The verbiage on the citation appears to this Court to recount all the necessary elements of section 577.010.1 in its amended form. See Anderson, 107 S.W.3d at 450 ("the statutory definition of the term `operate' is found in [s]ection 577.001.1, which states that a person `operates' a motor vehicle by `physically driving or operating a motor vehicle.'").

Furthermore, we reject defendant's argument that the underlying municipal offense was not sufficiently proven because the State did not present evidence as to the content of the municipal driving while intoxicated ordinance Defendant pled guilty to violating. For the reasons stated below, no such proof was required in order for the State to make a prima facie case for enhanced punishment based on this prior municipal conviction.

Pursuant to the express language of section 577.023.14, a trial court is authorized to find that a defendant is a prior or persistent offender, as defined by this statute, based upon "evidence of convictions received by a search of the records of the Missouri uniform law enforcement system ["MULES"] maintained by the Missouri state highway patrol." Thus, MULES information alone is sufficient to prove the existence of a prior conviction. In our view, section 577.023.14 demonstrates clear legislative intent to establish the minimum evidentiary burden which must be met by the State in order to make a prima facie showing that a prior conviction qualifies as a predicate offense for purposes of enhanced punishment.

Because the municipal offense to which Defendant pled guilty involved alcohol, information...