State v. Thomas, WD
| Citation | 969 S.W.2d 354 |
| Decision Date | 16 June 1998 |
| Docket Number | No. WD,WD |
| Parties | STATE of Missouri, Respondent, v. Walter H. THOMAS, Appellant. 53912. |
| Court | Court of Appeal of Missouri (US) |
Rosalynn Koch, Asst. Public Defender, Columbia, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Daniel G. Cierpiot, Asst. Atty. Gen., Jefferson City, for respondent.
Before ULRICH, C.J., P.J., and BRECKENRIDGE and SMART, JJ.
Walter Thomas appeals his conviction for driving while intoxicated, section 577.010, RSMo 1994, and sentence of three years imprisonment. Mr. Thoma's sole point on appeal is that the trial court erred in admitting into evidence Department of Revenue records reflecting two prior convictions for driving while intoxicated. He asserts that those records lacked foundation to establish the facts of the prior convictions because the records were competent only to certify proceedings of the administrative agency and were incompetent to prove the facts asserted by the records in a judicial proceeding. The judgment of conviction is affirmed.
Officer Marcus Smith was working pursuant to a grant issued by the State of Missouri for the purpose of arresting drunk drivers on June 4, 1995, at about 1:10 a.m. Officer Smith was driving eastbound on 9 th Street behind Walter Thomas's car within Kansas City, Missouri. Officer Smith stopped Mr. Thomas, administered a field sobriety test and arrested Mr. Thomas for driving while intoxicated in violation of section 577.010. Mr. Thomas contests neither the validity of the stop nor the validity of the arrest. Mr. Thomas agreed to take a breath test to determine the alcohol content within his blood; the test results showed that Mr. Thoma's blood then had a .121% blood alcohol content.
Mr. Thomas was charged with driving while intoxicated, section 577.010, RSMo 1994, as a prior offender. At trial, over Mr. Thomas's objection (contrary to the state's claim that Mr. Thomas failed to make such objection), the state introduced an affidavit from the Department of Revenue showing Mr. Thomas was found guilty of driving while intoxicated on June 5, 1990, and on September 24, 1991. Mr. Thomas did not present any evidence on his behalf. The jury found Mr. Thomas guilty of driving while intoxicated and the court sentenced Mr. Thomas as a prior offender to a term of three years imprisonment. This appeal followed.
PRIOR CONVICTIONS FOR DRIVING WHILE INTOXICATED
SATISFIED THE EVIDENTIARY REQUIREMENTS
As his sole point on appeal, Mr. Thomas argues that the trial court erred by admitting into evidence Department of Revenue records reflecting two prior convictions for driving while intoxicated. Mr. Thomas argues that the records lacked foundation to establish the facts of his prior convictions because the records were competent only to certify proceedings of the administrative agency and were incompetent to prove the facts asserted by the documents in a judicial proceeding. The state argues that Mr. Thomas failed to preserve his challenge to the administrative records on these grounds, and thus, Mr. Thomas's appeal must fail.
The state claims that Mr. Thomas failed to preserve the point. Whether Mr. Thomas preserved his claim for appeal is first determined. A party on appeal is held to the specific objections presented to the trial court. State ex rel. Selby v. Day, 929 S.W.2d 286, 288 (Mo.App.1996) (citing Robinson v. Empiregas Inc. of Hartville, 906 S.W.2d 829, 836 (Mo.App.1995). As the court in Selby noted:
Because an appellate court is not a forum in which new points will be considered, but is merely a court of review to determine whether the rulings of the trial court, as there presented, were correct, a party seeking the correction of error must stand or fall on the record made in the trial court, thus it follows that only those objections or grounds of objection which were urged in the trial court, without change and without addition, will be considered on appeal.
At trial, Mr. Thomas objected to the admission of the Department of Revenue records on numerous grounds including lack of foundation. He argued before the trial court that foundation was lacking because:
The certification only certified these are true and accurate records of the information they have at the Department of Revenue, it does not certify that the information contained with the records itself is actually truthful if [sic] itself. It certified they have a copy of this documentation at the State. There is no evidence here on the certification itself of the conviction for driving while intoxicated or the fact that the judge was a lawyer and, in fact, he was represented by counsel or waived his right to counsel. Second of all, there has been no proper foundation laid in regards to the documentation within that fact, the record here is a true and accurate record of the convictions themselves.
The thrust of Mr. Thomas's objection before the trial court was that the Department of Revenue records lacked proper foundation to establish the fact of his prior convictions for driving while intoxicated. Mr. Thomas's argument on appeal, that the records of the ...
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State v. Ellmaker
...introduce evidence that the convictions did not occur or were for conduct that no longer constitutes an IRTO. See State v. Thomas , 969 S.W.2d 354, 357 (Mo. App. W.D. 1998) ("The Department of Revenue records, therefore, explicitly established that Mr. Thomas was twice convicted of driving ......
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Edwards v. State
...and without addition, will be considered on appeal." State v. Davis , 348 S.W.3d 768, 770 (Mo. banc 2011) (quoting State v. Thomas , 969 S.W.2d 354, 355 (Mo. App. W.D. 1998) ). In other words, "[a] point on appeal must be based upon the same theory voiced in the objection at trial and an ap......
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