State of Missouri, Respondent, v. Ryan James, Appellant.

STATE OF MISSOURI, Respondent, v. RYAN JAMES, Appellant. ) ) ) ) ) ) ) ) ) No. ED113167

Appeal from the Circuit Court of Cape Girardeau County The Honorable Scott A. Lipke, Judge Introduction Ryan James ("Appellant") appeals the circuit court's judgment convicting him of one count of felony driving while intoxicated. The circuit court sentenced Appellant as a chronic offender to ten years' imprisonment. Appellant brings two points on appeal. In his first point, Appellant argues the State presented insufficient evidence to prove he was a chronic offender because his June 1996 conviction was not an intoxication-related traffic offense ("IRTO"). In his second point, Appellant argues the State presented insufficient evidence to prove he was intoxicated while operating a vehicle. This Court holds the State presented sufficient evidence proving Appellant's June 1996 conviction was an IRTO to support a finding he was a chronic offender for

2 sentencing enhancement. This Court further holds the State presented sufficient evidence establishing a temporal connection between Appellant's operation of the vehicle and his observed intoxication. Both points are denied. The circuit court's judgment is affirmed. Factual and Procedural History On January 1, 2023, City of Chaffee police officer Dylan Lands ("Lands") was traveling on Highway EE after his overnight shift ended at approximately 6:00 a.m. As he drove out of Chaffee toward Delta, Lands observed a pickup truck in a ditch on the side of the highway. Lands pulled over, approached the truck, and knocked on the window to get the driver's attention, but the man rocked back and forth before slumping over. Lands called 911. Missouri State Highway Patrol Trooper Ron Eakins ("Trooper Eakins") responded to the scene. Lands told Trooper Eakins what he observed and then left as he was outside of his jurisdiction and off duty. Trooper Eakins approached the truck. A man later identified as Appellant was asleep in the driver's seat with the truck running. No passengers were in the truck. Trooper Eakins tapped on the window, but Appellant did not wake up. Trooper Eakins opened the door and smelled a strong odor of intoxicants coming from inside the truck. The interior was extremely hot because the heat was set on high. Appellant was sweating profusely. The gearshift was in the drive position, and the rear left passenger tire was spinning slowly. There were six to ten empty beer cans in the truck's bed. Trooper Eakins reached inside the cab to put the truck in park, and Appellant awoke. Trooper Eakins asked Appellant if he had anything to drink. Appellant told him no. Appellant got out of

3 the truck, but was so unsteady on his feet Trooper Eakins had to assist him to his patrol car. Inside the patrol car, the dashboard camera captured Trooper Eakins' and Appellant's interaction. Trooper Eakins noticed a strong odor of intoxicants on Appellant's breath, his eyes were red, glassy, and watery, and his speech was slurred at times. Appellant explained he was trying to turn around and got stuck in a ditch. When Trooper Eakins again asked Appellant if he had anything to drink, Appellant stated he had "a few," which he clarified was "three or four." Appellant consented to performing three field sobriety tests, all of which indicated he was intoxicated. Trooper Eakins arrested Appellant for driving while intoxicated and transported him to the police station. Appellant consented to a breath test, which showed a blood alcohol content of .139%. Appellant explained he got off of work at midnight and was going to Chaffee to buy cigarettes. He stated he had "three to five" beers but did not know when he stopped drinking. Appellant admitted he was under the influence of alcohol and he was operating the truck. Appellant was charged with the class C felony of driving while intoxicated for operating a motor vehicle at or near Route EE while under the influence of alcohol. The State alleged Appellant was a chronic offender because he previously had been found guilty of four IRTOs, including a June 1996 conviction for driving while intoxicated. Before trial commenced, the circuit court found Appellant to be a prior offender and a chronic offender. The jury heard testimony from Lands, Trooper Eakins, and viewed the

4 dashboard camera footage. The jury convicted Appellant, and the circuit court sentenced him to ten years' imprisonment. This appeal follows. Additional facts will be adduced as needed to analyze Appellant's points on appeal. Standard of Review "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. Nowicki, 682 S.W.3d 410, 414 (Mo. banc 2024). "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." Id. Discussion Point One: Sufficiency of the Evidence to Prove Chronic Offender Status Party Positions In Point One, Appellant argues the State presented insufficient evidence to prove he was a chronic offender subject to sentence enhancement. Appellant claims there was insufficient evidence to prove beyond a reasonable doubt his June 1996 conviction was an IRTO because the State did not demonstrate he was "driving" as that term was used when he was charged with his current offense. The State argues it presented sufficient evidence Appellant's June 1996 conviction was for "operating" a vehicle which qualified as an IRTO.

5

Analysis Before a jur y trial begins, the circuit court must "determine whether, in the event the jury found [a defendant] guilty of driving while intoxicated, [he or she] would be subject to an enhanced sentence due to prior convictions" which qualify as IRTOs under section 577.023.2. 1 1 All statutory references are to RSMo 2016 unless otherwise stated. This Court recognizes Erlinger v. United States, 602 U.S. 821, 834, 144 S.Ct. 1840, 219 L.Ed.2d 451 (2024), holds a unanimous jury must find "virtually 'any fact' that 'increases the prescribed range of penalties to which a criminal defendant is exposed'" beyond a reasonable doubt. Id. (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)). Appellant did not object to the circuit court determining his chronic offender status below nor does he contest on appeal the circuit court's authority to make this determination. Because this issue has not been preserved or presented, this Court need not decide whether or how Erlinger applies to IRTO sentence enhancements. See Cope v. Parson, 570 S.W.3d 579, 586 (Mo. banc 2019) (holding appellate courts are "not authorized to issue advisory opinions."). Nowicki, 682 S.W.3d at 413. "The [S]tate bears the burden t o prove beyond a reasonable doubt each IRTO on which it relies to enhance the present offense of driving while intoxicated." Id. at 415. Driving while intoxicated is a class B misdemeanor. Section 577.010.2(1) RSMo. Cum. Supp. 2017. The driving while intoxicated offense is enhanced to a class C felony if the State proves a defendant is a chronic offender. Section 577.010.2(5)(a). A chronic offender is defined as "a person who has been found guilty of [f]our or more [IRTOs] committed on separate occasions. Section 577.001(5)(a). "[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 [S]tate seeks enhancement, not

6 the time of the conduct underlying the prior conviction.'" Nowicki, 682 S.W.3d at 415 (quoting State v. Shepherd, 643 S.W.3d 346, 350 (Mo. banc 2022)). At the time of Appellant's current offense, IRTO was defined to include "[d]riving while intoxicated, driving with excessive blood alcohol content, [and] driving under the influence of alcohol or drugs in violation of a state law...." Section 577.001(15); Shepherd, 643 S.W.3d at 349. Additionally, at the time of Appellant's current offense, "driving" and "operating" were defined as "physically driving or operating a vehicle...." Section 577.001(9). "This does not include merely being in 'actual physical control' of a vehicle[,]" as "driving" was defined in 1996 at the time of Appellant's June 1996 conviction. Shepherd, 643 S.W.3d at 350 (citing Cox v. Dir. of Revenue, 98 S.W.3d 548, 550 (Mo. banc 2003)). Hence, a prior offense based solely on Appellant "being in physical control of a vehicle while intoxicated" does not qualify as an IRTO. Id. To prove Appellant was a chronic offender, the State offered four exhibits de monstrating he had been found guilty of four or more IRTOs committed on separate occasions. Appellant only challenges on appeal the June 1996 conviction as being insufficient to constitute an IRTO. The State offered Exhibit 104, a certified driving record, which included a uniform complaint and summons ("ticket") issued on April 26,

1. The ticket provided factual details about the offense and had a handwritten officer

statement, "Operated a motor vehicle while in an intoxicated condition (prior offend)." The ticket stated the location of the offense was "Co. RD 244." The ticket also had boxes to check to describe conduct. The box "operate" was checked. The State also offered Exhibit 103, which was the information from this offense, charging Appellant with

7 committing "the class A misdemeanor of driving while intoxicated ... in that on or about the 26th day of April, 1996, in the County of Cape Girardeau ... [Appellant] operated a motor vehicle on County Road 244 while under the influence of alcohol...." Emphasis added. Appellant argues this evidence is insufficient to prove his June 1996 conviction is an IRTO for sentence enhancement because when he was convicted, the term "operate" was defined as "physically driving or operating or being in actual physical control of a motor vehicle." See Shepherd, 643 S.W.3d at 350 n.8 (emphasis removed). Appellant contends "there is nothing which can be gleaned from the use of the term 'operate' in the ticket and the charging document" because those documents do not demonstrate whether he "operated" the vehicle or was merely "in actual physical control" of it. Appellant relies on Shepherd, which rejected the State's evidence regarding a defendant's five Colorado convictions—supported only by a copy of the defendant's certified Colorado driving record—because "[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." Shepherd, 643 S.W.3d at 352 (emphasis in original). Appellant also relies on Nowicki, which found certain MULES records were "utterly silent" regarding "whether the conduct underlying the conviction would constitute 'driving while intoxicated' as defined in Missouri law at the time of [the defendant's] present offense." Nowicki, 682 S.W.3d at 418.

8 This Court rejected these same arguments in State v. Golden, 663 S.W.3d 829 (Mo. App. E.D. 2023). In Golden, the defendant was charged with driving while intoxicated as a persistent offender, and the State offered certified court records, including the charging documents, as evidence of the prior convictions to demonstrate they were IRTOs. Id. at 830. Relevant to Appellant's argument, one of the Golden defendant's prior convictions was a July 1996 conviction for driving while intoxicated. Id. at 831. The State's certified records included: a [ticket] that provided factual details about the offense. Under the heading "Description of Violation," the officer alleged [the defendant] "operated motor vehicle in an intoxicated condition." The [ticket] 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 [the defendant's] unlawful conduct. The officer checked the box "operate" and did not check the box "park." Id. at 831–32. The defendant contended the State failed to prove his prior conviction involved "driving" as currently defined because "the term 'operate' was broadly defined at the time of that incident as 'physically driving or operating or being in actual physical control of a motor vehicle.'" Id. at 832. Hence, the defendant argued his July 1996 conviction did not qualify "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." Id. The defendant also relied on Shepherd to argue the State's certified records were insufficient to support a finding he was a persistent offender. Id. at 833. Golden found Shepherd was distinguishable because in that case, "the Court stressed 'there was no evidence regarding the nature of the conduct underlying [the

9 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 833 (emphasis in original) (quoting Shepherd, 643 S.W.3d at 352). By contrast, the evidence presented in Golden allowed the circuit court to draw the reasonable inference "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 [the defendant] of having performed in committing the offense." Id. at 832. Golden further explained other reasonable inferences the circuit court could have drawn: And while the title of the charged crime was "driving while intoxicated," the [ticket] 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 [the defendant] 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 [the defendant] was operating the vehicle as opposed to only being in actual physical control of it. Id. at 832–33. Golden recognized, "Although the [circuit] court could have drawn a different conclusion from these facts ... 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.'" Id. at 833 (quoting State v. Craig, 287 S.W.3d 676, 681 (Mo. banc 2009)).

10 Golden is directly on point with the facts here. Both tickets contained almost identical information describing both defendants' conduct as "operated a motor vehicle in" or "while in an intoxicated condition." Both tickets had the box "operated" checked. Both tickets described the location of the offense as on a highway which further supported the inference of "operating" a motor vehicle. Under these facts and this Court's standard of review, the circuit court could have drawn the reasonable inference that the underlying conduct for Appellant's June 1996 conviction was operating a motor vehicle in an intoxicating condition as opposed to just being in actual physical control of it. Golden, 663 S.W.3d at 832–33. 2 2 To the extent Appellant argues Nowicki established a bright-line rule eliminating the possibility any driving while intoxicated-related conviction which predates the August 1996 statutory change can constitute an IRTO, this Court disagrees. Nowicki does not foreclose this possibility although it had the opportunity to do so nor did Nowicki overturn Golden which clearly held otherwise. The State presented sufficient evidence from which the trier of fact could find beyond a reasonable doubt Appellant was a chronic offender. The circuit court did not err in finding Appellant was a chronic offender and subject to sentence enhancement. Point One is denied. Point Two: Sufficiency of the Evidence to Prove Driving While Intoxicated Party Positions In Point Two, Appellant argues the State presented insufficient evidence to prove beyond a reasonable doubt he was driving while intoxicated because the State did not establish a temporal connection between him driving his truck and his consuming

11 alcohol. The State argues it presented sufficient evidence demonstrating Appellant was operating the truck when Trooper Eakins observed indicia of his intoxication. Analysis "A person commits the offense of driving while intoxicated if he or she operates a vehicle while in an intoxicated condition." Section 577.010.1. To sustain a driving while intoxicated conviction, "the State must prove through direct or circumstantial evidence not only that the defendant was intoxicated, but also that the defendant operated the vehicle while in this condition." State v. Swalve, 598 S.W.3d 682, 687 (Mo. App. E.D. 2020) (quoting State v. Lopez, 539 S.W.3d 74, 78 (Mo. App. E.D. 2017)). "Circumstantial evidence is evidence that gives rise to a logical inference that the fact exists" and is given "the same weight as direct evidence." State v. Wilson, 692 S.W.3d 54, 69 (Mo. App. E.D. 2024). Thus, "[t]he State may prove intoxication through circumstantial evidence and the testimony of witnesses who had a reasonable opportunity to observe the defendant." Id. (quoting Lopez, 539 S.W.3d at 78). "Missouri courts have held that the circumstances under which a defendant's vehicle is found and defendant's subsequent behavior may be circumstantial evidence of driving while intoxicated." State v. Parrish, 684 S.W.3d 752, 758 (Mo. App. E.D. 2024). Appellant concedes the State presented evidence he had been driving and evidence he was intoxicated, but argues there was no evidence presented he was driving while intoxicated. Appellant states neither officer provided any testimony as to how long he had been at his location or when he last consumed alcohol.

12 Appellant was charged with driving while intoxicated for operating a motor vehicle at or near Route EE while under the influence of alcohol. "[T]he bright-line test to operate a car [is] caus[ing] its motor to function." Parrish, 684 S.W.3d at 757 (quoting Cox, 98 S.W.3d at 550). "Once the key is in the ignition, and the engine is running, an officer may have probable cause to believe that the person sitting behind the steering wheel is operating the vehicle[,] even if that person is sleeping or unconscious." Id. at 757–58. In Parrish, the Western District found evidence was sufficient to demonstrate a defendant operated his vehicle while intoxicated when: (1) the officer found the defendant unconscious in the driver's seat; (2) the engine was running; (3) there were multiple beer cans present; (4) the defendant displayed several signs of intoxication including slurred speech, difficulty keeping his balance, and the odor of intoxicants in his car and on his breath; and (5) defendant's blood alcohol content was .130%. Parrish, 684 S.W.3d at 758. Here, as in Parrish, the S tate presented sufficient evidence for a reasonable jury to find Appellant operated his truck while intoxicated. Trooper Eakins found him unconscious in the driver's seat of his truck. The truck's engine was running, the gearshift was in the drive position, and the rear left passenger wheel was slowly spinning. The truck's bed contained six to ten beer cans. Both Appellant's truck cab and his breath had a strong odor of intoxicants. Appellant displayed several indicia of intoxication, including red, watery, glassy eyes, slurred speech, difficulty walking, and three field sobriety tests which indicated he was intoxicated. At the police station, Appellant admitted he was under the influence of alcohol, which was confirmed when his blood

13

alcohol content was found to be .139%, well over the legal limit. 3 3 In his reply brief, Appellant argues he could not have operated the vehicle in an intoxicated condition because the truck was stuck in the mud in a ditch, which prohibited him from being in a position to manipulate the truck's movement. This Court finds this argument unpersuasive because Cox declared "the bright-line test to operate a car [is] caus[ing] its motor to function" not that a defendant must be in a position to manipulate its movement. Cox, 98 S.W.3d at

1. Appellant relies on two cases which predate Cox,

which is a binding Supreme Court of Missouri precedent. Appellant also cites State v. Wessel, 371 S.W.3d 1, 3–4 (Mo. App. S.D. 2011), which does not aid his argument because in that case, the engine was running and the defendant was in a position to affect the vehicle's movements. This alone was sufficient to support a finding the defendant operated a motor vehicle. Id. Thus, the Stat e established a temporal connection between Appellant's operation of the truck and his observed intoxication. The S tate presented sufficient evidence from which the trier of fact could find beyond a reasonable doubt Appellant was driving while intoxicated. The circuit court did not err in entering judgment of conviction. Point Two is denied. Conclusion The circuit court's judgment is affirmed. Michael S. Wright, Pre siding Judge and Virginia W. Lay, Judge concur.