State v. Shepherd

• Decision Date: 26 April 2022
• Docket Number: SC 99081
• Citation: 643 S.W.3d 346
• Parties: STATE of Missouri, Respondent, v. Timothy A. SHEPHERD, Appellant.
• Court: Missouri Supreme Court

643 S.W.3d 346

STATE of Missouri, Respondent,

v.Timothy A. SHEPHERD, Appellant.

No. SC 99081

Supreme Court of Missouri, en banc.

Opinion issued April 26, 2022

Shepherd was represented by Samuel Buffaloe of the public defender's office in Columbia, (573) 777-9977.

The state was represented by Garrick Aplin of the attorney general's office in Jefferson City, (573) 751-3321.

Paul C. Wilson, Chief Justice

Timothy Shepherd appeals his conviction for driving while intoxicated in which he was sentenced as a habitual offender. Shepherd argues the state failed to prove he was a habitual offender based solely on a certified copy of his Colorado driving record because the state introduced no facts underlying the Colorado convictions to show the conduct involved would qualify as intoxication-related traffic offenses ("IRTOs") in Missouri at the time of his current offense. This Court has jurisdiction, Mo. Const. art. V, sec. 10. The circuit court's judgment is vacated, and the case is remanded for resentencing.

Background

On March 21, 2017, Timothy Shepherd was involved in a single-vehicle accident in Warren County, Missouri, while driving after consuming about six beers. A blood test after the accident revealed Shepherd's blood alcohol content was 0.280 percent. Relevant to this appeal, Shepherd was charged with one count of the class B felony of driving while intoxicated as a habitual offender.¹ To prove Shepherd was a habitual offender, the state offered only a certified copy of Shepherd's Colorado driving record, which outlines seven prior convictions: four (involving conduct occurring in 1985, 1991, 2000, and 2003) for "driving while under the influence of alcohol and/or drugs," and three (involving conduct occurring in 1984, 1988, and 2001) for "driving while ability was impaired by alcohol and/or drugs."

Shepherd objected to the admission of his Colorado record as evidence that he was a habitual offender.² The circuit court overruled his objection and held the Colorado record sufficiently proved he was a habitual offender because it showed "[Shepherd] has been found guilty of driving while intoxicated in Boulder County, Colorado on seven different occasions."

After his bench trial, the circuit court found Shepherd guilty of the present offense of driving while intoxicated and sentenced him to 10 years’ incarceration as a habitual offender. Shepherd appeals, arguing the Colorado record – standing alone – was insufficient to prove beyond a reasonable doubt he was a habitual offender. This Court agrees.

Analysis

Driving while intoxicated is a class B misdemeanor. § 577.010.2(1).³ If the state proves the defendant is a "habitual offender" under section 577.010.2(6)(a), however, the offense is enhanced to a class B felony. As relevant to this appeal, a habitual offender is "a person who has been found guilty of ... five or more [IRTOs] committed on separate occasions."

§ 577.001(11)(a). When Shepherd committed the present DWI offense in March 2017, IRTOs were defined as:

[D]riving while intoxicated, driving with excessive blood alcohol content, driving under the influence of alcohol or drugs in violation of a county or municipal ordinance, or an offense in which the defendant was operating a vehicle while intoxicated and another person was injured or killed in violation of any state law, county or municipal ordinance, any federal offense, or any military offense[.]

§ 577.001(15). In other words, Missouri law contemplates four categories of conduct that qualify as IRTOs: (1) driving while intoxicated; (2) driving with excessive blood alcohol content; (3) driving under the influence of alcohol or drugs in violation of a county or municipal ordinance;⁴ and (4) operating a vehicle while intoxicated and another person was injured or killed in violation of any state law, county or municipal ordinance, any federal offense, or any military offense.⁵ Accordingly, the issue in this case is whether the state proved five or more instances of conduct that qualify under the first two applicable IRTO categories and, in particular, whether Shepherd's driving record from Colorado⁶ – without more – constitutes such proof. It does not.

First, Shepherd contends the state must satisfy the version of section 577.001(15) and the definitions of the words used in that section that were in effect at the time of his present offense rather than those in effect at the time of the prior Colorado offenses. This is correct. The enhancement provision in section 577.010.2(6)(a) and the definition provided in section 577.001(15) speak only at the time of the enhancement, i.e., at the time of Shepherd's present offense, and there is nothing in the plain language of section 577.001(15) suggesting otherwise. Accordingly, this Court holds that a prior conviction qualifies as an IRTO only if the conduct involved constituted "driving while intoxicated" (or another portion of the IRTO definition in section 577.001(15)) as defined at the time of the current offense for which the state seeks enhancement, not the time of the conduct underlying the prior conviction.

We now move to the question of whether Shepherd's Colorado conduct could qualify under any of the four applicable IRTO categories, as they were defined at the time of the present offense. As an initial matter, it is important to note that Shepherd's Colorado conduct underlying his convictions, which constitute violations of state law that did not involve the injuring or killing of another person, could not possibly fall under IRTO categories three or four, which contemplate violations of county or municipal ordinances and offenses involving the injuring or killing of another person, respectively. We must determine, therefore, whether Shepherd was convicted in Colorado of conduct that constitutes either "driving while intoxicated" or "driving with excessive blood alcohol content" – the remaining two IRTO definitions.⁷

In making this determination, it is necessary first to determine what is meant by "driving" in the IRTO statute. As used in chapter 577 at the time of Shepherd's present offense, the word "driving" means "physically driving or operating a vehicle or vessel." § 577.001(9). This does not include merely being in "actual physical control" of a vehicle. Cox v. Dir. of Revenue , 98 S.W.3d 548, 550 (Mo. banc 2003).⁸ Because IRTOs are defined in chapter 577, the definition of "driving" provided in section 577.001(9) applies to the use of that term in the IRTO definition provided in section 577.001(15), including its use in the phrases "driving while intoxicated" and "driving with excessive blood alcohol content." As a result, a prior offense occurring after 1996 that was based solely on the defendant being in physical control of a vehicle while intoxicated cannot qualify as an IRTO under the definition in effect at the time of Shepherd's present offense because it did not involve "driving" as that word was defined at the time of Shepherd's present offense. This distinction is the key to identifying the failure of the state's proof.

The Colorado statutes under which Shepherd was convicted in his prior offenses made no distinction between "driving" a vehicle while in a proscribed condition and merely being in "actual physical control" of that vehicle. Colorado's "driving under the influence" statute, Colo. Rev. Stat. § 42-4-1301(1)(a) (Supp. 1996), made it "unlawful for any person under the influence or while impaired by the use of alcohol, drugs, or both to be in ‘actual physical control’ of a vehicle." People v. Swain , 959 P.2d 426, 431 (Colo. 1998) (affirming the defendant's conviction for driving under the influence when found in a truck with keys in the ignition but the engine was not running).⁹ Accordingly, this Court concludes that – at all times relevant to this case – it was possible to violate Colorado's "driving under the influence" statute, Colo. Rev. Stat. § 42-4-1301(1)(a), either by driving a vehicle while under the influence of drugs or alcohol or by merely being in actual physical control of the vehicle while in that condition.

Colorado's "driving while impaired" statute, Colo. Rev. Stat. § 42-4-1301(1)(b) (Supp. 1996), also extends to merely being in actual physical control of the vehicle while impaired. Plainly, the word at issue in Swain (i.e., "drives") appears in both provisions. Moreover, the Colorado "driving while under the influence" and "driving while impaired" provisions are subsections of the same statute, and it is not credible that the Colorado Supreme Court would give "drives" one interpretation in the first subsection concerning "driving while under the influence" and a different interpretation to "drives" in the very next subsection concerning "driving while impaired." Indeed, Swain drew no distinction between the two anywhere in the opinion and addressed both in its concluding paragraph:

In sum, we hold that section 42-4-1301 makes it unlawful for any person under the influence or while impaired by the use of alcohol, drugs, or both to be in "actual physical control" of a vehicle. Accordingly, the judgment of the district court is reversed, and the cause is remanded to the district court with directions to reinstate the judgments of conviction and sentences imposed for DWAI and driving without a driver's license.

Swain , 959 P.2d at 431 (emphasis added).

As a result, every one of Shepherd's seven prior Colorado convictions, whether for "driving" under the influence or while impaired, could have been for driving a vehicle in either condition or for being in actual physical control of a vehicle in either condition. Only the former, however, satisfies the definition of an IRTO in effect at the time of Shepherd's present offense. In other words, the Colorado offenses prohibited conduct that constituted "driving" as that term was used in Missouri's IRTO statute and defined in section 577.001(9) at the time of Shepherd's present offense, but they also prohibited conduct that...