State v. Wilson

692 S.W.3d 54

STATE of Missouri, Respondent,

v.James Kip WILSON, Appellant.

ED 111611

Missouri Court of Appeals, Eastern District, DIVISION THREE.

Filed: June 25, 2024

Appeal from the Circuit Court of Lewis County, Case No. 17LE-CR00231-01, Honorable Matthew J. Wilson, Judge

FOR APPELLANT: Sarah E. Ernst, 425 East High Street, Jefferson City, MO 65101.

FOR RESPONDENT: Zeb J. Charlton, P.O. Box 899, Jefferson City, MO 65102.

Gary M. Gaertner, Jr., J.

Introduction

James Kip Wilson (Wilson) appeals from the judgment and sentence of the trial court convicting him of one count of driving while intoxicated. Wilson argues the trial court erred in finding him to be a habitual offender and in admitting certain evidence, and he challenges the sufficiency of the evidence supporting his conviction. We affirm.

Background

The State charged Wilson in 2017 as a prior and persistent offender and a habitual offender with one count of the class B felony of driving while intoxicated (DWI), pursuant to Section 577.010.2.¹ In November of 2018, Wilson filed a first motion to suppress, as relevant to the issues raised on appeal, the results of a portable breath test (PBT) and field sobriety tests administered before his arrest (2018 motion to suppress). In Wilson’s subsequent suggestions in support of his 2018 motion to suppress, he raised two additional claims, requesting the trial court suppress both (1) "all statements and answers provided to questions on the [alcohol influence report (AIR)] form" that Wilson made at the jail in response to law enforcement interrogation after Wilson had requested to speak with an attorney, and (2) evidence that he refused to take a breath test because he was not granted privacy to speak with his attorney about whether he should refuse the breath test.² The trial court denied Wilson’s 2018 motion to suppress. The trial court, however, later modified its ruling regarding the admission of the results of the PBT, clarifying that it would allow evidence that the PBT was administered and was positive for alcohol, but that the numerical result of the PBT was inadmissible.

In 2022, Wilson filed a motion in limine that sought to prevent the admission of two issues relevant to this appeal. First, Wilson sought in the written motion, supplemented by a second oral motion in limine at the hearing on the motion, to prevent the State from offering evidence of Wilson’s prior bad acts of operating a vehicle without a valid driver’s license or insurance. The trial court allowed reference to the arresting officer’s conversation with Wilson about his lack of driver’s license and registration but found inadmissible any reference to Wilson having had his driver’s license revoked or being on probation. Second, Wilson sought in the motion in limine, supplemented by a second motion to suppress (2022 motion to suppress), to prevent the State from admitting (1) any statements made by Wilson in response to questioning that occurred after Wilson had requested an attorney, and (2) Wilson’s refusal to submit to a breath test made after he was not granted privacy to consult with his attorney about whether to submit to a breath test. At a hearing on the 2022 motions, the trial court heard testimony from the arresting sergeant for the Missouri State Highway Patrol (the Sergeant) and Wilson. After the hearing in which Wilson stated he was not able to reach an attorney, Wilson’s counsel voluntarily withdrew the 2022 motion to suppress, stating, "I do not believe we can ethically ask the court to continue with it."

At the start of trial, the State offered six exhibits as evidence of Wilson’s prior DWI convictions. Wilson objected to Exhibits 1, 2, and 3 on the grounds that each exhibit did not include a copy of the signed judgment. The trial court admitted all six exhibits as evidence of Wilson’s prior DWI convictions over his objection, and, on this evidence, it found that Wilson was a habitual DWI offender and a prior and persistent offender.

At Wilson’s 2023 jury trial, the Sergeant testified as follows, using the AIR to refresh his recollection. The trial court admitted the AIR after Wilson’s counsel stated there was "No objection" to its admission, The Sergeant noticed a vehicle driving without license plates or registration, and he pulled over the driver of the vehicle, later identified as Wilson. The Sergeant approached the vehicle and asked Wilson for his driver’s license and insurance information. Wilson stated he did not have a driver’s license or insurance, and the Sergeant noted a moderate odor of intoxicants coming from inside the vehicle. The Sergeant took Wilson to his patrol vehicle, where the Sergeant noticed a moderate odor of intoxicants on Wilson’s breath and that Wilson’s eyes were glassy and bloodshot. As the Sergeant was preparing to perform a preliminary PBT on Wilson, Wilson admitted to having drunk three beers. Wilson’s PBT result was positive for alcohol. The Sergeant then had Wilson perform the horizontal gaze nystagmus (HGN) and walk-and-turn field sobriety tests. The results of both Wilson’s HGN test and walk-and-turn test displayed signs of impairment, and throughout their encounter, the Sergeant noted that Wilson’s balance was uncertain and swaying. The Sergeant then placed Wilson under arrest for DWI and read him his Miranda³ rights.

The Sergeant searched Wilson’s vehicle incident to his arrest, and the search revealed a 12-pack of beer with five beer cans remaining unopened and an open beer in the console that was still cold. While being transported to the jail, Wilson stated that he had drunk five beers, four in the last hour. At the jail, the Sergeant asked Wilson to submit to a certified breath test pursuant to Missouri’s implied consent law, but Wilson requested time to contact an attorney. The Sergeant allowed Wilson 20 minutes to contact an attorney and provided him with a telephone book and his cellular telephone, but Wilson was unable to reach an attorney. After waiting between 20 and 22 minutes, the Sergeant read Wilson the implied consent form again, and Wilson refused the breath test. At the close of the State’s evidence, Wilson moved for an acquittal, which the trial court denied.

Wilson presented testimony from an expert witness in DWI enforcement officer training and field sobriety testing. The expert witness had reviewed the Sergeant’s AIR and the dashboard camera videos of Wilson’s field sobriety tests. The expert witness testified to a variety of errors the Sergeant made in administering the field sobriety tests, and the expert witness concluded that in his opinion the results of the tests were not valid.

At the close of all evidence, Wilson again filed a motion for judgment of acquittal, which the trial court denied. The jury convicted Wilson of one count of DWI, and the trial court sentenced him to fifteen years in the department of corrections. This appeal follows.

Discussion

Wilson raises five points on appeal, and we address the points in order.

Point I

In his first point on appeal, Wilson argues the trial court erred in finding him to be a habitual offender because the State failed to present sufficient evidence to prove three of Wilson’s prior DWI convictions beyond a reasonable doubt. We disagree.

[1–3] DWI is a class B misdemeanor. Section 577.010.2(1). However, if the State proves the defendant is a habitual offender, then the DWI offense is enhanced to a class B felony. Section 577.010.2(6)(a). A habitual offender is a person who has been found guilty of five or more intoxication-related traffic offenses (IRTO) committed on separate occasions. Section 577.001(11)(a). This Court reviews a trial court’s findings of IRTOs for whether they were supported by substantial evidence. State v. Wheeler, 439 S.W.3d 241, 244 (Mo. App. W.D. 2014). We accept as true all evidence and reasonable inferences supporting the trial court’s conclusion, and we disregard contrary facts and inferences. Id. The State has the burden of proving prior IRTOs beyond a reasonable doubt. Id.

[4] The definition of an IRTO includes "driving while intoxicated, driving with excessive blood alcohol content, or driving under the influence of alcohol or drugs in violation of state law, [or] county or municipal ordinance." Section 577.001(15). Further, "driving" is defined as "physically driving or operating a vehicle." Section 577.001(9). The prior convictions for IRTOs must satisfy the version of chapter 577 and the definitions used therein in effect at the time of the present offense, not at the time of the prior convictions. State v. Shepherd, 643 S.W.3d 346, 349 (Mo. banc 2022). Accordingly, a court will find an individual to be a habitual offender if the State introduces evidence sufficient to establish beyond a reasonable doubt the defendant has five prior IRTOs, which, under the current law, is limited to offenses where the defendant was physically driving or operating a vehicle while intoxicated. Section 577.023.1(2); see also Sections 577.001(9), (15).

[5] Here, the State introduced six exhibits to prove Wilson’s status as a habitual offender. Wilson challenges only Exhibits 1 through 3. The State concedes on appeal that Exhibit 1 is not sufficient to establish a prior IRTO. Exhibit 1 consisted of a certified docket sheet for two misdemeanor charges for "DWI-alcohol" and driving while revoked, to which Wilson pled guilty in July of 1991 (1991 conviction). The State notes that, in 1991, the definitions in chapter 577 allowed a conviction for DWI either for "physically driving or operating" a vehicle or for "being in actual physical control of" a vehicle; however, in 1996, chapter 577 was modified to allow a DWI conviction only for "physically driving or operating" a vehicle. Prior DWI convictions based on the defendant being in "actual physical control of" a vehicle do not meet the current definitions and thus do not qualify as an ITRO. Shepherd, 643 S.W.3d at 350 ("prior offense that was based solely...