Simmons v. Director of Revenue

3 S.W.3d 897, 1999 Mo. App. LEXIS 2132, 1999 WL 969696
CourtMissouri Court of Appeals
DecidedOctober 26, 1999
DocketNo. 22743
StatusPublished
Cited by12 cases

This text of 3 S.W.3d 897 (Simmons v. Director of Revenue) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Simmons v. Director of Revenue, 3 S.W.3d 897, 1999 Mo. App. LEXIS 2132, 1999 WL 969696 (Mo. Ct. App. 1999).

Opinion

CROW, Presiding Judge.

On January 7, 1998, Corporal B.G. Matthews of the Missouri State Highway Patrol arrested Angela L. Simmons for driving while intoxicated. Matthews1 requested Simmons to submit to a chemical test of her breath for the purpose of determining the alcohol content of her blood. See: § 577.020.2 Simmons refused. • Consequently, the Director of Revenue (“Director”) revoked Simmons’s license to operate a motor vehicle for one year. See: § 577.041.

Simmons petitioned for a hearing under § 577.041.4. At the hearing, Director (represented by an assistant prosecuting attorney, § 577.041.4) presented one witness: Matthews. Simmons presented no evidence other than testimony adduced from Matthews by her lawyer on cross-examination.

The statute authorizing the hearing, § 577.041, provides, inter alia:

“4.... At the hearing the judge shall determine only:
(1) Whether or not the person was arrested;
(2) Whether or not the arresting officer had reasonable grounds to believe that the person was driving a motor vehicle while in an intoxicated condition; and
(3) Whether or not the person refused to submit to the test.
5. If the judge determines any issue not to be in the affirmative, he shall order the director to reinstate the license or permit to drive.”

Following the hearing, the trial court announced it would “take this matter under advisement[.]”

The trial court ultimately entered judgment setting aside Director’s revocation of Simmons’s license.3 The judgment was predicated on a finding that Matthews’s arrest of Simmons “was not based upon reasonable grounds to believe that [Simmons] was operating a motor vehicle while in an intoxicated condition.”

Director appeals from that judgment.

In Berry v. Director of Revenue, 885 S.W.2d 326 (Mo. banc 1994), Director revoked a driver’s license for one year pursuant to an earlier version of § 577.041. Id. There, as here, the trial court vacated the revocation and ordered reinstatement of the license. Id. On appeal by Director, the driver argued, inter alia, that the trial court implicitly found there were no reasonable grounds for the arresting officer to believe the driver was driving while intoxicated. Id. at 328.

The opinion in Berry explained that the trial court had the prerogative to accept or reject all, part, or none of the testimony, and that the judgment was to be affirmed under any reasonable theory supported by the evidence. Id. Nonetheless, the Supreme Court reversed the trial court because, according to the Supreme Court, there was no evidentiary support in the record for a finding that the arresting officer lacked reasonable grounds to arrest the driver for driving while intoxicated. Id. That is the issue framed by § 577.041.4(2) — the same issue the trial court in the instant case resolved against Director.

Accordingly, this court’s task is to determine whether Director is correct in maintaining there was no evidentiary support for the trial court’s finding that Matthews’s arrest of Simmons was not based [900]*900on reasonable grounds to believe she was operating a motor vehicle while in an intoxicated condition.

In the trial court, Simmons challenged the sufficiency of Director’s evidence in two respects. Simmons’s first attack was that Matthews’s testimony was insufficient to support a finding that he had reasonable grounds to believe Simmons was driving the vehicle.

Matthews recounted that he arrived at the scene of a “one-vehicle accident” at 12:55 a.m., January 7, 1998. The site was “on PP Highway, west of Poplar Bluff.”

When Matthews arrived, three people were there: two deputy sheriffs and Simmons. Simmons “was outside the vehicle”; the deputies “were conversing with her to make sure she was not injured.” Matthews’s testimony:

“Q. ... What did she tell you about the accident, or — if anything?
A. I don’t remember her saying anything about the accident, other than the fact that she was operating the vehicle.
Q. She indicated to you that she was driving the vehicle?
A. Yes, sir.”

Later, during cross-examination of Matthews by Simmons’s lawyer, this dialogue occurred:

“Q. ... Do you specifically remember asking her if she was driving that car that day?
A. I do not specifically remember me asking her. The deputies told me that she was driving.
Q. All right.
A. Okay. That — Yes. I realize that’s third person—
[Assistant prosecutor]: Your Honor, I’ll object to that response as to what the deputy said. That’s hearsay.[4]
THE COURT: Okay.
BY [Simmons’s lawyer]:
Q. ... Other than what other people might have told you, do you have any direct knowledge that she was operating the motor vehicle? Did you observe her operating the motor vehicle?
A. No, sir.”

Simmons did not move to strike Matthews’s testimony that the deputies told him Simmons was driving, nor did Simmons move to strike Matthews’s earlier testimony that Simmons indicated she was driving.

Assuming — without deciding •— that the trial court’s utterance, “Okay,” amounted to a sustention of the hearsay objection, this court points out that sustaining an objection after a witness answers a question does not have the effect of striking the answer in the absence of a motion to strike. Ashley v. Williams, 365 Mo. 286, 281 S.W.2d 875, 880[8] (1955). Where evidence that might have been excluded upon timely motion to strike is received without such motion, its probative worth and effect are for the trier of the facts. In re J.L.L., 402 S.W.2d 629, 633-34[1] (Mo.App.1966); Fellows v. Farmer, 379 S.W.2d 842, 846[2] (Mo.App.1964).

Furthermore, later in his testimony, Matthews asserted (without objection) that his report “states that [Simmons] did admit to driving.” Finally, Matthews’s testimony included this:

“Q. ... You can continue with any evidence that you have that she operated this vehicle while intoxicated.
A. Okay. A one-vehicle accident. She’s the owner of the vehicle. No one else is present. She admits to me that she is the driver.”

As reported earlier in this opinion, Matthews’s testimony was the only evidence [901]*901before the trial court. Simmons did not attack Matthews’s credibility.

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Bluebook (online)
3 S.W.3d 897, 1999 Mo. App. LEXIS 2132, 1999 WL 969696, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simmons-v-director-of-revenue-moctapp-1999.