State of Missouri v. James P. Golden

• Court: Missouri Court of Appeals
• Decided: January 31, 2023
• Docket: ED110113
• Status: Published

Opinion

In the Missouri Court of Appeals Eastern District DIVISION FIVE

STATE OF MISSOURI, ) No. ED110113 ) Respondent, ) Appeal from the Circuit Court ) of St. Charles County vs. ) ) JAMES P. GOLDEN, ) Honorable Daniel G. Pelikan ) Appellant. ) Filed: January 31, 2023

James Golden appeals his conviction for driving while intoxicated for which the trial court

sentenced him as a persistent offender. According to Golden, the State failed to prove he was a

persistent offender because the evidence presented of his previous convictions for driving while

intoxicated did not show conduct that qualified them as intoxication-related traffic offenses

(“IRTOs”) at the time of his current offense. The judgment is affirmed.

Factual and Procedural Background

The State charged Golden with the class E felony of driving while intoxicated based on an

incident that occurred on June 1, 2019 in O’Fallon, Missouri. The information alleged Golden

was a persistent offender in that he had two prior convictions for driving while intoxicated: a July

1996 conviction that arose from events in St. Charles, Missouri, and a 2007 conviction in municipal

court in Troy, Missouri. To prove at trial that Golden was a persistent offender, the State offered into evidence certified court records relating to those convictions, which included the charging

documents.

The jury found Golden guilty as charged. Based on the evidence regarding Golden’s two

prior convictions for driving while intoxicated, the trial court found him to be a persistent offender

under sections 577.0011 and 577.023 and sentenced him to four years in prison, retaining

jurisdiction under section 559.115 to place him on probation after successful completion of the

120-day institutional treatment program. This appeal follows.

Standard of Review

“It is the State’s burden to prove prior intoxicated-related traffic offenses beyond a

reasonable doubt.” State v. Craig, 287 S.W.3d 676, 681 (Mo. banc 2009). In reviewing a

challenge to the sufficiency of the evidence, our analysis is limited to “whether there was sufficient

evidence from which a reasonable [fact-finder] might have found the defendant guilty beyond a

reasonable doubt.” State v. Naylor, 510 S.W.3d 855, 859 (Mo. banc 2017) (quoting State v. Letica,

356 S.W.3d 157, 166 (Mo. banc 2011)). In reviewing a challenge to the sufficiency of the evidence

to sustain a criminal conviction, appellate courts do not weigh the evidence, but instead accept as

true all evidence tending to prove guilt along with all reasonable inferences supporting the verdict,

ignoring all contrary evidence and inferences. State v. Claycomb, 470 S.W.3d 358, 362 (Mo. banc

2015). “[A] claim that there is insufficient evidence to sustain a criminal conviction is preserved

for review without regard to whether it was raised below.” Id. at 359; see also State v. Benson,

646 S.W.3d 729, 732 (Mo. App. S.D. 2022).

1 Unless otherwise noted, all statutory references are to RSMo (2016), as updated through the 2019 Cumulative Supplement, the version in effect at the time of Golden’s present offense.

2 Discussion

Golden does not challenge the sufficiency of the evidence that he was driving while

intoxicated on June 1, 2019. He instead contends there was insufficient evidence to support the

trial court’s finding that he was a persistent offender. Specifically, Golden argues the State failed

to prove beyond a reasonable doubt that either of his prior convictions were for “driving” and,

therefore, those convictions could not qualify as IRTOs under section 577.001(15).2 We disagree.

Although driving while intoxicated is a class B misdemeanor under section 577.010.2(1),

the offense is enhanced to a class E felony if the State proves the defendant is a persistent offender

under section 577.010.2(3)(a). A persistent offender is “a person who has been found guilty of . .

. two or more [IRTOs] committed on separate occasions.” Section 577.001(18)(a). The State must

“prove beyond a reasonable doubt . . . not merely that [the prior] conviction occurred but also that

the conviction arose from conduct that meets the definition of an IRTO under Missouri law at the

time of the present offense.” State v. Shepherd, 643 S.W.3d 346, 351 (Mo. banc 2022). When

Golden committed the present offense in June 2019, four categories of conduct qualified 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 state law, county or municipal ordinance,

any federal offense, or any military offense,” 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.” Section 577.001(15); see also Shepherd, 643 S.W.3d

at 351.

The current definition of “driving”—which was in effect at the time of Golden’s present

offense—is “physically driving or operating a vehicle or vessel.” Section 577.001(9); see also

2 We conclude, contrary to the State’s assertion, that Golden preserved this argument for appellate review.

3 Shepherd, 643 S.W.3d at 350, 350 n.8. At the time of Golden’s July 1996 conviction, however,

the statutory definition of “driving” was “physically driving or operating or being in actual

physical control of a motor vehicle.” Section 577.001.1 (1994). “[A]ctual physical control” meant

that “even though the machine merely stands motionless, … a person keeps the vehicle in restraint

or [is] in a position to regulate its movements.” Cox v. Dir. of Revenue, 98 S.W.3d 548, 550 (Mo.

banc 2003) (alterations in original) (quoting State v. O’Toole, 673 S.W.2d 25, 27 (Mo. banc 1984)).

Effective August 28, 1996, the General Assembly narrowed the definition of “‘drive’, ‘driving’,

‘operates’ or ‘operating’” a motor vehicle by removing the phrase “or being in actual physical

control of” from the statute. 1996 Mo. Laws 593, 617; see also Cox, 98 S.W.3d at 550.

The issue in this case is whether the State presented sufficient evidence from which the

trial court could have reasonably found that both of Golden’s prior convictions for driving while

intoxicated were for “driving” a vehicle and therefore qualified as IRTOs. The trial court based

its determination that Golden was a persistent offender on State’s Exhibits 8 and 9, which were

the certified court records of Golden’s two prior convictions for driving while intoxicated.

With regard to Golden’s July 1996 conviction for driving while intoxicated, the State’s

evidence included a uniform complaint and summons that provided factual details about the

offense. Under the heading “Description of Violation,” the officer alleged that Golden “operated

motor vehicle in an intoxicated condition.” The uniform complaint and summons indicated the

location of the offense was upon or near “W/B 70 E of Zumbehl.” It also provided the officer with

four boxes to check to describe Golden’s unlawful conduct. The officer checked the box “operate”

and did not check the box “park.”

Similarly, the uniform citation relating to Golden’s 2007 municipal conviction for driving

while intoxicated in Troy, Missouri, alleged that “the facts supporting [the] belief” that Golden

4 committed the charged offense was that he was “operating mtr vehicle while intox.” The citation

also had a checked box indicating that Golden “did unlawfully” “operate/drive” a 1985 Dodge

R150. In doing so, the officer chose the box “operate/drive” and did not check the box “park.”

According to Golden, the State failed to prove his prior convictions involved “driving,”

which, again, is currently defined—and was at the time of his present offense—as “physically

driving or operating a vehicle or vessel.” Section 577.001(9) (emphasis added). We conclude,

however, that the trial court did not err in sentencing Golden as a persistent offender. Because the

charging documents for both of Golden’s prior convictions specifically alleged that he was

operating a vehicle when committing those offenses, there was sufficient evidence from which the

trial court could have reasonably drawn an inference that both of those convictions involved

“driving” (as defined by section 577.001 at the time of Golden’s present offense) and therefore

qualified as IRTOs. This conclusion is consistent with previous cases holding that similar wording

in a charging document can be sufficient to establish a defendant is a persistent offender. For

example, in State v. Miller, 153 S.W.3d 333, 337 (Mo. App. S.D. 2005), the court held that “[t]he

verbiage on the citation,” which included a checked box for “operate,” “denoting the unlawful

operation of a vehicle, which comport[ed] with the statutory definition of ‘driving,’ as defined in

section 577.001[],” was sufficient evidence to establish a qualifying conviction and persistent

offender status. Id.; see also State v. Thomas, 562 S.W.3d 359, 361 (Mo. App. S.D. 2018)

(emphasizing that the charging document included “a check-box averment that [the defendant]

unlawfully operated a specified vehicle, which [was] sufficient proof that she did so”).

With regard to his 1996 conviction, Golden stresses that the term “operates” was broadly

defined at the time of that incident as “physically driving or operating or being in actual physical

control of a motor vehicle.” See section 577.001 (1994). He argues the State failed to prove

5 beyond a reasonable doubt that his 1996 conviction qualifies as an IRTO because that conviction

could have been based on him simply being in “actual physical control” of a vehicle while

intoxicated—conduct not covered by the narrower definition of “operates” in effect at the time of

his present offense. See section 577.001(9). We conclude, however, that the trial court could have

reasonably inferred that by using the term “operated” to describe the violation, the officer intended

to specify which of the three actions prohibited by the statute—“physically driving,” “operating,”

or “being in actual physical control”—the officer was accusing Golden of having performed in

committing the offense. See State v. Borst, 643 S.W.3d 586, 593 (Mo. App. W.D. 2022) (quoting

State v. Shepard, 442 S.W.2d 58, 60 (Mo. banc 1969)) (“It has long been the rule that when a crime

may be committed by any of several methods, the information must charge one or more of the

methods, and the method or methods submitted in the verdict directing instruction must be among

those alleged in the information[.]”). And while the title of the charged crime was “driving while

intoxicated,” the uniform complaint and summons included a section for “Description of

Violation,” which allowed for elaboration on the method of the violation. In this section, the

officer described the offense as “operated [a] motor vehicle in an intoxicated condition,” and did

not in any way suggest that Golden was merely in “actual physical control” of the vehicle. See

section 577.010 (1994). The listed location of the offense as “W/B 70,” or westbound on Interstate

Highway 70, further supports the inference that Golden was operating the vehicle as opposed to

only being in actual physical control of it. Although the trial court could have drawn a different

conclusion from these facts and found that the use of the term “operated” in the charging language

was not intended to specifically identify which of the three acts prohibited by the statute Golden

had performed, our standard of review requires us to accept “as true all evidence tending to prove

guilt together with all reasonable inferences that support the finding.” Craig, 287 S.W.3d at 681.

6 Golden primarily relies on the Supreme Court of Missouri’s recent decision in Shepherd to

support his contention that these exhibits were insufficient to support a finding that he was a

persistent offender. We conclude, however, that Shepherd is distinguishable. In that case, the

defendant was convicted of driving while intoxicated and sentenced as a habitual offender, which

required the trial court to find the defendant had been convicted of five or more IRTOs. Id. at 348.

The only evidence the State introduced into evidence to prove the defendant was a habitual

offender was a copy of his Colorado driving record, which showed he had seven prior convictions

for either “driving while under the influence of alcohol and/or drugs” or “driving while ability was

impaired by alcohol and/or drugs.” Id. The Shepherd Court concluded that the driving record by

itself was insufficient to prove the defendant was a habitual offender because it failed to show that

at least five of his previous convictions met the definition of an IRTO under Missouri law at the

time of his current offense. Id. at 352-53. The Court emphasized that the Colorado statutes under

which the defendant had previously been convicted prohibited an intoxicated person from

“driving” as well as being in “actual physical control” of a vehicle. Id. at 350. In holding that the

driving record alone was insufficient to prove the defendant’s prior convictions qualified as

IRTOs, the Court stressed “[t]here was no evidence regarding the nature of the conduct underlying

[the defendant’s] Colorado convictions, i.e., whether he was convicted for actually driving while

in a proscribed condition or was merely convicted for being in actual physical control of a vehicle

while in such a condition.” Id. at 352. The Court noted that the driving record showed that three

of the defendant’s prior convictions involved accidents, which would have permitted the trial court

to infer that those convictions involved driving. Id. at 352-53. The defendant’s remaining four

prior convictions, however, provided no information from which the trial court could have

7 reasonably drawn an inference as to whether the defendant was driving or simply in “actual

physical control” of a vehicle. Id. at 353.

Here, the State did not merely offer evidence that Golden had been twice convicted of

driving while intoxicated; it produced the charging documents for those convictions, which

permitted the trial court to consider the particular conduct that formed the bases of those

convictions. Again, those charging documents specifically alleged that Golden was operating a

vehicle while committing the charged offenses of driving while intoxicated. The officers could

have described the offenses in terms that Golden had merely been “in actual physical control” of

a vehicle, but they instead stated he was operating one. There was sufficient evidence to support

the trial court’s finding that Golden was a persistent offender since both of his prior convictions

involved “driving” as defined by section 577.001 and therefore qualified as IRTOs at the time of

his present offense. See Miller, 153 S.W.3d at 337.

Golden also argues the evidence relating to his 2007 municipal conviction for driving

while intoxicated was insufficient to establish that conviction qualified as an IRTO because the

State did not offer the ordinance itself into evidence. The State, however, is not required to

introduce a municipal ordinance into evidence “to make a prima facie case for enhanced

punishment based on [a] prior municipal conviction.” Id. at 337-40. And Golden only speculates

that the municipal ordinance at issue contains a broader definition of “driving” than the current

version of the statute. See id. at 340 (“If Defendant believed [the] ordinance . . . did not actually

proscribe the act of driving while intoxicated in congruity with the then existing requirements . . .,

it was incumbent on him to introduce evidence to that effect.”).

In the absence of any evidence indicating that Golden’s municipal conviction for “driving

while intoxicated” was not for “driving” or “operating” a vehicle, it was not unreasonable for the

8 trial court to conclude that it was a qualifying conviction. See id. But even if additional evidence

was required to establish that the 2007 conviction qualified as an IRTO, the charging document

constituted sufficient proof because it indicated that Golden was operating a vehicle while

intoxicated.

Conclusion

The trial court did not err in sentencing Golden as a persistent offender under sections

577.001 and 577.023. The judgment is affirmed.

___________________________________ MICHAEL E. GARDNER, Chief Judge

Cristian M. Stevens, J., concurs. Julia M. Koester, Sp.J., concurs.