State v. Miller

153 S.W.3d 333, 2005 Mo. App. LEXIS 102, 2005 WL 119887
Missouri Court of Appeals·Decided January 21, 2005·No. No. 26160·Published·Cited by 14 cases

Opinions

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 [335]*335erred 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 Divi[336]*336sion 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 Exhibit 2 — 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 ordi[337]*337nance 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

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State v. Miller, 153 S.W.3d 333, 2005 Mo. App. LEXIS 102, 2005 WL 119887 (Mo. Ct. App. 2005).

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