State v. Nowicki

682 S.W.3d 410

STATE of Missouri, Respondent,

v.David Scott NOWICKI, Appellant.

No. SC 100041

Supreme Court of Missouri, en banc.

Opinion issued January 30, 2024

APPEAL FROM THE CIRCUIT COURT OF SALINE COUNTY, The Honorable Hugh Craig Harvey, Judge

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

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

Paul C. Wilson, Judge

David Scott Nowicki appeals his conviction for driving while intoxicated for which he was sentenced as a chronic offender. Nowicki argues the state failed to prove beyond a reasonable doubt that he was a chronic offender and, therefore, subject to a sentence enhancement. This Court has jurisdiction pursuant to article V, section 10 of the Missouri Constitution. Because the evidence was insufficient to prove beyond a reasonable doubt that each of Nowicki’s prior convictions was an intoxication- related traffic offense ("IRTO"), the circuit court’s judgment is vacated, and the case is remanded for resentencing.

BACKGROUND

On March 21, 2019, at approximately 2:40 a.m., Sergeant Dunfee of the Missouri State Highway Patrol ("MSHP") saw a vehicle partially off the roadway and in a ditch just off Interstate 70 in Saline County. Sergeant Dunfee stopped to help and found Nowicki unconscious behind the wheel. Sergeant Dunfee knocked on the car window, and Nowicki regained consciousness. Nowicki could not explain to Sergeant Dunfee how he ended up in the ditch. Sergeant Dunfee contacted MSHP Trooper Stevens and together they administered several field sobriety tests to Nowicki. After completing the tests, Sergeant Dunfee concluded Nowicki was impaired and arrested him. Trooper Stevens brought Nowicki to a local hospital for treatment. After being advised of his rights, Nowicki refused to submit to a chemical test of his blood.

At about 5 a.m., Trooper Stevens transported Nowicki to the Saline County jail. During his initial booking interview, Nowicki admitted he had been driving the vehicle but denied drinking or using drugs within the last 72 hours. Trooper Stevens contacted MSHP Sergeant Dillon, a drug impairment recognition expert, and explained what she had observed from the field sobriety tests. Sergeant Dillon concluded Nowicki was under the influence of a narcotic analgesic.

A jury trial was scheduled for June 22, 2021, to determine whether Nowicki was guilty of driving while intoxicated.¹ Pursuant to section 577.023.2,² before the jury trial began, the circuit court was required to determine whether, in the event the jury found Nowicki guilty of driving while intoxicated, Nowicki would be subject to an enhanced sentence due to prior convictions that qualified as IRTOs. The state sought to prove that Nowicki had four prior convictions in 1986, 1990, 1994, and 2005, and that each of these qualified as an IRTO. As a result, the state contended Nowicki should be sentenced as a chronic offender as defined in section 577.001(5), RSMo Supp. 2020. The circuit court found the state proved beyond a reasonable doubt that Nowicki had four prior IRTOs and would be sentenced as a chronic offender if the jury found him guilty of driving while intoxicated.

After trial, the jury found Nowicki guilty, The circuit court entered a judgment reflecting that guilty verdict and sentencing Nowicki as a chronic offender to five years in the department of corrections.³ Nowicki appeals the circuit court’s Judgment, arguing the state failed to prove beyond a reasonable doubt that each of his four prior convictions qualifies as an IRTO; therefore, it was error to sentence him as a chronic offender.

STANDARD OF REVIEW

[1] The state claims that, because Nowicki did not challenge the circuit court's finding he was a chronic offender in his motion for new trial, this Court can review his claim, if at all, only for plain error. This Court disagrees. A sufficiency of the evidence challenge, which is what Nowicki is asserting, does not need to be included in a motion for a new trial to preserve the claim for appeal. See Rule 29.11(d)(3) ("In jury tried cases, allegations of error to be preserved for appellate review must be included in a motion for a new trial except for questions as to ... the sufficiency of the evidence to sustain the conviction.").

The state argues the principle set out in Rule 29.11(d) applies only to claims that the evidence was insufficient to prove the elements of a crime but not to claims that the evidence was insufficient to prove facts enhancing the sentence. This distinction can matter in some circumstances,⁴ but the state is incorrect that it should matter when deciding the applicable standard of review. First, there is nothing in Rule 29.11(d) suggesting such a limitation. The "conviction" referred to includes both the finding of guilt and the sentence imposed. Second, at least one of the reasons for not requiring a contemporaneous objection concerning sufficiency of the evidence (or requiring that ground be included in the motion for new trial) is that the state should have to carry its burden of proof without prompting from the defendant. There is no reason why this should be true regarding the state’s obligation to prove the elements of the crime but not for the state’s obligation to prove the facts necessary for a sentencing enhancement. The state’s burden is the same. See § 577.023 ("A court shall find the defendant to be a … chronic offender if … [e]vidence is introduced that establishes sufficient facts pleaded to warrant a finding beyond a reasonable doubt …."). Moreover, a sentence enhanced on insufficient evidence is no less repugnant to society than a conviction obtained on insufficient evidence. An appellate court must scrutinize either type of claim, perhaps more than any other type of claim raised on appeal, for merit. And that merits review must be conducted without the thumb-on-the-scale effect the plain error standard can impose. Accordingly, because Nowicki challenges the sufficiency of the evidence to support the sentencing enhancement he received, this Court need not employ plain error review.

[2, 3] When reviewing a claim challenging the sufficiency of the evidence, this Court must make a de novo determination whether the evidence is sufficient to permit a reasonable fact-finder to find the necessary facts beyond a reasonable doubt. State v. Boyd, 659 S.W.3d 914, 925 (Mo. banc 2023). In doing so, this Court will accept as true all evidence tending to prove those facts and will draw all reasonable inferences in favor of finding those facts. State v. Collins, 648 S.W.3d 711, 718 (Mo. banc 2022).

ANALYSIS

[4] Driving while intoxicated with no prior offenses is a class B misdemeanor. § 577.010.2(1). The sentence can be enhanced, however, if the state proves that the defendant has one or more prior IR- TOs. § 577.010. If the state proves the defendant is a chronic DWI offender under section 577.010.2(5), the offense is enhanced to a class C felony. As relevant for this appeal, a chronic offender is a person who has been found guilty of four or more IRTOs committed on separate occasions. § 577.001(5)(a). An IRTO is defined as:

[D]riving while intoxicated, driving with excessive blood alcohol content, 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, 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). Therefore, the definition creates four categories of 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; 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.

State v. Shepherd, 643 S.W.3d 346, 349 (Mo. banc 2022). The state bears the burden to prove beyond a reasonable doubt each IRTO on which it relies to enhance the present offense of driving while intoxicated. § 577.023.1(2).

[5] This Court has held a prior conviction can qualify as an IRTO only "if the conduct involved constituted driving while intoxicated … 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."⁵ Shepherd, 643 S.W.3d at 350. At the time of Nowicki’s present offense, the definition of driving meant "physically driving or operating a vehicle." § 577.001(9). It does not include the alternative definition found in an earlier version of the statute, i.e., of "merely being in ‘actual physical control’ of a vehicle." Shepherd, 643 S.W.3d at 349; see also § 577.001.1. Therefore, the state must prove each of Nowicki’s potential IRTOs was for physically driving or operating a vehicle while intoxicated. Nowicki argues there was insufficient evidence to prove beyond a reasonable doubt that his 1986, 1990, or 1994 convictions⁶ qualified as IRTOs because the state failed to prove these convictions were for "driving" while intoxicated as that term was defined at the time of his present offense.

This Court faced a similar issue in Shepherd, in which the Court considered whether the state’s evidence (i.e., a certified copy of the defendant’s Colorado driving record showing prior convictions for driving while impaired) was sufficient to establish IRTOs beyond a reasonable doubt. Id. at 349-53. The Colorado statutes Shepherd violated in the potential IRTOs criminalized both driving and merely being in physical control of a vehicle. Id. at 351. Therefore, "every one of [the defendant’s] seven prior Colorado convictions, whether...