            IN THE MISSOURI COURT OF APPEALS
                    WESTERN DISTRICT

STATE OF MISSOURI,                               )
                                                 )
                                 Respondent,     )
                                                 )   WD78732
v.                                               )
                                                 )   OPINION FILED:
                                                 )   August 16, 2016
SIDNEY L. CLARK III,                             )
                                                 )
                                   Appellant.    )


                Appeal from the Circuit Court of Jackson County, Missouri
                          The Honorable Jack R. Grate, Judge

              Before Special Division: Zel M. Fischer, Special Judge, Presiding,
                   Mark D. Pfeiffer, Chief Judge, and Gary D. Witt, Judge

       Mr. Sidney L. Clark III (“Clark”) was convicted of the class C felony of driving while

intoxicated (“DWI”) as an aggravated offender and of operating a motor vehicle without a valid

license following a bench trial in the Circuit Court of Jackson County, Missouri (“trial court”).

Clark appeals, challenging the admission and the sufficiency of the evidence to support his DWI

conviction as an aggravated offender. We affirm.
                                   Factual and Procedural Background1

         On October 24, 2011, at 8:26 p.m., Missouri State Trooper Chadwick Kutzner observed a

vehicle approaching his vehicle from behind and traveling at a high rate a speed. Trooper

Kutzner activated his rear radar unit and determined the vehicle’s speed to be 90 miles per hour

in a 65 miles-per-hour zone. Once the vehicle passed Trooper Kutzner, he initiated a traffic stop

on the vehicle, a red Ford Taurus operated by Clark. The traffic stop yielded a DWI citation, the

underlying facts and conviction of which Clark does not contest.

         The State charged Clark with the class C felony of DWI, § 577.010,2 as an aggravated

offender, § 577.023.1(1)(a), because the State contended that he had previously been found

guilty of three intoxication-related traffic offenses.

         At the bench trial, Clark did not contest that one of his prior intoxication-related traffic

offenses—a 2008 DWI conviction from Sweet Springs, Missouri—could properly be considered

by the trial court for “aggravated offender” evidentiary purposes. And, while Clark did not

object to admission of exhibits reflecting his DWI convictions from Grandview, Missouri, and

Parkville, Missouri, he did contest that the trial court could consider either of those convictions

for “aggravated offender” evidentiary purposes.                  Clark also specifically objected to certain

portions of the State’s exhibits that contained within them alleged testimonial hearsay of law

enforcement officers relating to the factual basis for Clark’s convictions in the Grandview and

Parkville DWI convictions. Finally, Clark offered into evidence the Grandview and Parkville

DWI ordinances under which he was convicted.3


         1
           As here, when a case is tried to the court on stipulated evidence, “[w]e view the evidence in the light most
favorable to the verdict, and we ignore countervailing evidence.” State v. Todd, 183 S.W.3d 273, 275 (Mo. App.
W.D. 2005).
         2
           All statutory references are to the Revised Statutes of Missouri 2000, as supplemented.
         3
           The Grandview DWI ordinance stated: “No person who is under the influence of intoxicating liquor shall
drive or be in actual physical control of any vehicle or railroad train.” The Parkville DWI ordinance stated: “No
person shall drive, operate[,] or be in actual physical control of any vehicle while he is in an intoxicated condition.”


                                                           2
         The trial court admitted all of the evidence submitted by the State and Clark at trial,

overruled Clark’s motions for judgment of acquittal at the close of the State’s case and at the

close of all the evidence, found Clark guilty of the aggravated offender DWI charge, and

sentenced him to four years’ imprisonment with suspended execution of sentence and three

years’ probation.

         Clark timely appealed.

                                        Multifarious Point Relied On

         Clark asserts three grounds for error in one point relied on. Clark claims evidentiary

admission error, Confrontation Clause violations, and also makes a sufficiency-of-the-evidence

challenge. Our review of each of these claims is guided by a different standard of review: abuse

of discretion,4 de novo,5 and substantial evidence,6 respectively. Hence, Clark’s point relied on

is multifarious and illustrates the reason why appellate briefing rules prohibit it. “Multiple

claims of error in one point relied on render the point multifarious and violate Rule 84.04, made

applicable to briefs in criminal appeals by Rule 30.06(c).” State v. Robinson, 454 S.W.3d 428,

437 n.6 (Mo. App. W.D. 2015). Generally, multifarious points preserve nothing for appellate

review and are subject to dismissal. Id. However, because it is our preference to decide cases on

the merits where we are able to decipher the argument being made by the appellant without

becoming an advocate for the appellant, we are vested with the discretion to decline to dismiss

the appeal and, instead, to decide the legal issue we believe is being presented. We are electing

to exercise our discretion to do just that in this case. We caution appellant’s counsel, however,



         4
           “The admissibility of evidence lies within the sound discretion of the trial court and will not be disturbed
absent abuse of discretion.” State v. Pickering, 473 S.W.3d 698, 702 (Mo. App. W.D. 2015).
         5
           Whether a trial court’s ruling violates rights under the Confrontation Clause is a question of law that we
review de novo. See State v. Sauerbry, 447 S.W.3d 780, 784 (Mo. App. W.D. 2014).
         6
           In reviewing a sufficiency-of-the-evidence challenge, “we determine whether substantial evidence was
adduced to support the trial court’s finding.” State v. Wheeler, 439 S.W.3d 241, 244 (Mo. App. W.D. 2014).


                                                          3
that we may not exercise our discretion as liberally in the future and remind counsel that the

dictates of the appellate briefing rules are mandatory.

                                              Analysis

       At issue, both below and on appeal, is Clark’s challenge to the trial court’s ability to

consider the Grandview and Parkville DWI convictions for “aggravated offender” evidentiary

purposes. Clark does not contest that the State properly adduced evidence and proved that

Clark’s criminal history included these two DWI convictions from Grandview and Parkville. His

complaint, however, is that: (1) the officers’ statements in the respective Alcohol Influence

Reports (AIR) about the factual basis for the DWI convictions in the Grandview and Parkville

DWI convictions constitute inadmissible hearsay and (2) violate Clark’s Confrontation Clause

rights; and, finally, (3) without the officers’ testimonial hearsay observations contained within

the Grandview AIR and Parkville AIR, there was insufficient admissible evidence in the record

to support Clark’s enhanced DWI conviction.

       What Clark conveniently ignores in his appellate briefing is Clark’s non-hearsay

admissions contained within the State’s exhibits relating to his Grandview and Parkville DWI

convictions, which is separate and apart from any hearsay complaints about the officers’

statements.

                                    Aggravated Offender Status

       A DWI charge is a class B misdemeanor for the first offense. § 577.010.2. However, if

the defendant “[h]as pleaded guilty to or has been found guilty of three or more

intoxication-related   traffic   offenses,”   the       defendant   is   an   “aggravated   offender,”

§ 577.023.1(1)(a), and the charge can be enhanced to a class C felony, § 577.023.4.                An

“intoxication-related traffic offense” is defined in pertinent part as: “driving while intoxicated,




                                                    4
driving with excessive blood alcohol content, . . . or driving under the influence of alcohol or

drugs in violation of state law or a county or municipal ordinance[.]” § 577.023.1(4).

       The    procedure    in   a   case     involving   enhanced   sentencing    is   outlined   in

sections 577.023.7-15.    Section 577.023.16 is a “non-exclusive list of ways to show prior

convictions, pleas of guilty, or findings of guilt in intoxication-related traffic cases.” State v.

Mitchell, 403 S.W.3d 614, 615 n.1 (Mo. App. S.D. 2012). The statute authorizes the use of

evidence obtained “by a search of the records of the Missouri uniform law enforcement system,

including criminal history records from the central repository or records from the driving while

intoxicated tracking system (DWITS) maintained by the Missouri state highway patrol, or the

certified driving record maintained by the Missouri department of revenue.” § 577.023.16.

                                           Hearsay Evidence

       “A hearsay statement is any out-of-court statement that is used to prove the truth of the

matter asserted and that depends upon the veracity of the statement for its value.” State v. Tisius,

362 S.W.3d 398, 405 (Mo. banc 2012) (internal quotation omitted). A hearsay statement is

inadmissible unless it falls under a recognized hearsay exception. Id. at 406. Here, to the extent

the challenged documents contained hearsay within them, section 302.312 generally provides an

exception to the hearsay rule for certified records of the Department of Revenue.

Section 302.312.1 provides that “[c]opies of all papers, documents, and records lawfully

deposited or filed in the offices of the department of revenue . . . and copies of any records,

properly certified by the appropriate custodian or the director, shall be admissible as evidence in

all courts of this state[.]” “The plain language of section 302.312 provides that records of the

Department of Revenue are admissible in all Missouri courts.” State v. Thomas, 969 S.W.2d




                                                  5
354, 356 (Mo. App. W.D. 1998). Section 302.312 authorizes the evidentiary use of Department

of Revenue records without limitation, including in criminal proceedings. Id.

                              Confrontation Clause as a Separate Objection

         Though section 302.312 provides an exception to hearsay challenges relating to the

documents contemplated by section 302.312, the statute does not speak to separate objections to

certain information contained within the documents contemplated by section 302.312 that may

separately violate Confrontation Clause rights.

         In response, the State relies upon precedent in which courts have evaluated a driver’s

right to confront adverse witnesses in a civil license revocation proceeding within the context of

the Due Process Clause (U.S. CONST. amends. V, XIV and Mo. CONST. art. I, § 10). See

Doughty v. Dir. of Revenue, 387 S.W.3d 383 (Mo. banc 2013) (holding right to subpoena

witnesses satisfied due process protections in civil license revocation proceeding); Erskine v.

Dir. of Revenue, 428 S.W.3d 789 (Mo. App. S.D. 2014); Manzella v. Dir. of Revenue, 363

S.W.3d 393 (Mo. App. E.D. 2012).

         Here, however, the proceeding in question is a criminal case and the assertion of rights is

that of the Confrontation Clause7 (U.S. CONST. amend. VI and MO. CONST., art. I, § 18(a)).

“Crawford holds that testimonial hearsay (a subsection of all evidence that is hearsay), even if

qualified as an exception to the hearsay rule, cannot be admitted in a criminal case, as a general

rule, because of the Confrontation Clause.” State v. Minner, 311 S.W.3d 313, 319 (Mo. App.

         7
            The Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. CONST. amend. VI. The
Missouri Constitution has a similar guarantee that “in criminal prosecutions the accused shall have the right to . . .
meet the witnesses against him face to face.” MO. CONST. art. I, § 18(a). “The confrontation rights protected by the
Missouri Constitution are the same as those protected by the Sixth Amendment of the United States Constitution.”
State v. Schaal, 806 S.W.2d 659, 662 (Mo. banc 1991).
          In Crawford v. Washington, the United States Supreme Court held that when out-of-court statements are
“testimonial” in nature, they are inadmissible under the Confrontation Clause, unless: (1) the witness is unavailable
at the time of trial; and (2) the defendant had a prior opportunity to cross-examine him. 541 U.S. 36, 68, 124 S.Ct.
1354, 1374, 158 L. Ed. 2d 177 (2004).


                                                          6
W.D. 2010) (citing Crawford v. Washington, 541 U.S. 36, 68-69 (2004)).                                     See also

Melendez-Diaz v. Massachusetts, 557 U.S. 305, 324-25, 129 S.Ct. 2527, 2540, 174 L. Ed. 2d 314

(2009) (“[T]he Confrontation Clause imposes a burden on the prosecution to present its

witnesses, not on the defendant to bring those adverse witnesses into court. Its value to the

defendant is not replaced by a system in which the prosecution presents its evidence via ex parte

affidavits and waits for the defendant to subpoena the affiant if he chooses.”).

         Here, however, we need not decide whether the trial court improperly admitted evidence

from the Grandview AIR and Parkville AIR that may have contained testimonial hearsay by the

officers reporting their personal observations8 because the reports in question also included

Clark’s non-hearsay admissions—admissions that provided substantial evidence to support the

trial court’s judgment.

                                      Clark’s Non-Hearsay Admissions

         In State v. Isa, the defendant contended that comments made by her to a police officer at

the crime scene were inadmissible hearsay. 850 S.W.2d 876, 894 (Mo. banc 1993). The

Supreme Court concluded to the contrary—that the statements were non-hearsay admissions—

stating: “An admission is the statement . . . of a party that tends to incriminate or connect her

with the crime charged, or which manifests a consciousness of guilt. . . . Moreover, a statement

need not express an acknowledgment of guilt to qualify as an admission.” Id. But, to understand

the importance of Clark’s non-hearsay admissions contained within the records introduced at his

trial, one must understand his argument relating to the Grandview and Parkville DWI ordinances

and precedent commenting upon ordinances with similar language criminalizing DWI.


         8
            “In court-tried cases judges are given great latitude in the admission of evidence because of the
presumption that they will not give weight to incompetent evidence.” Worthington v. State, 166 S.W.3d 566, 573
(Mo. banc 2005). “Because of this, it is difficult to base reversible error on the erroneous admission of evidence in a
court-tried case.” Id. (internal quotation omitted).


                                                          7
       The crux of Clark’s argument is that because the Grandview and Parkville municipal

ordinances criminalize broader conduct than section 577.010.1, and because the State presented

no competent evidence of the facts underlying Clark’s DWI convictions in Grandview and

Parkville, the State failed to present sufficient evidence that those convictions could qualify as

intoxication-related offenses for sentence enhancement under section 577.023. Clark relies upon

State v. Gibson, 122 S.W.3d 121 (Mo. App. W.D. 2003).

       In Gibson, we determined that the Kansas City municipal ordinance making it illegal to

be in physical control of a motor vehicle while under the influence of alcohol could not be used

to enhance the defendant’s punishment under the persistent offender provisions of

section 577.023.   Id. at 130.    That finding was based on the 1996 amendment to former

section 577.001.1, which deleted the phrase “actual physical control” from the definition of

“drive,” “driving,” “operates,” or “operating” under Chapter 577.        Section 577.001.2 now

provides that “the term ‘drive’, ‘driving’, ‘operates’ or ‘operating’ means physically driving or

operating a motor vehicle.”      The Gibson court determined that since state law no longer

prohibited a person from being in actual physical control of a motor vehicle while intoxicated,

the municipal violation charging that conduct could no longer be considered an

intoxicated-related traffic offense that would trigger sentencing as a persistent offender under

section 577.023. 122 S.W.3d at 130. To be certain, though, the evidence in Gibson was clear

that the defendant had been charged for being in “physical control” of a vehicle while under the

influence of alcohol. Id.

       Conversely, in State v. Miller, 153 S.W.3d 333 (Mo. App. S.D. 2005), a case with similar

“actual physical control” language in the ordinance language criminalizing DWI, the evidence

submitted by the State concerning the municipal ordinance DWI conviction established that the




                                                8
deputy sheriff had checked the box “operate” on his citation denoting unlawful “operation” of a

vehicle in an intoxicated condition.         Id. at 337.     Likewise, the municipal citation that the

defendant was issued was denoted unlawful “operation” of a vehicle in an intoxicated condition.

Id. The Miller court concluded that the additional evidence (along with the conviction) indicated

that the defendant had not been cited or convicted of being in “actual physical control” of a

vehicle in an intoxicated condition rather than “operating” the vehicle in an intoxicated

condition. Id. Thus, the court concluded that the evidence surrounding the prior municipal

conviction appeared “to recount all the necessary elements of section 577.010.1[.]”

        The present case more closely resembles Miller than Gibson.

        Even if we do not consider any of the personal observations of the officers from

Grandview and Parkville documenting their observation of Clark’s driving or operation of his

vehicle in both circumstances that led to traffic stops and DWI convictions, we need look no

further than Clark’s non-hearsay admissions contained within the exhibits that included the

corresponding AIRs from Grandview and Parkview.

        In the Grandview9 AIR, Clark admitted that he had been “driving” his two male friends

who were in the car with him before being pulled over by the officer and after he had been

drinking “mixed drinks.” And, in the Parkville10 AIR record, Clark admitted that he had been

“operating” his vehicle after drinking “seven beers and one scotch on the rocks.”

        The unlawful operation or driving of a vehicle comports with the statutory definition of

“driving” as contemplated and defined in section 577.001.2.




        9
            The Grandview definitions ordinance did not define “drive,” though “driver” was defined as “every
person who drives or is in actual physical control of a vehicle or railroad train.” Here, Clark’s admission was
plainly and simply that he had been “driving” his friends, making him a “driver” by way of “driving” a vehicle.
         10
            The Parkville definitions ordinance did not define “operate” or “operator.”


                                                      9
        Accordingly, the State’s evidence was sufficient to prove that Clark had three prior

intoxication-related offenses11 and was an aggravated offender under section 577.023.1(1).

        Point denied.

                                               Conclusion

        The judgment of the trial court is affirmed.




                                                  Mark D. Pfeiffer, Chief Judge

Zel M. Fischer, Special Judge, and Gary D. Witt, Judge, concur.




        11
            Intoxication-related convictions were from Grandview, Parkville, and Sweet Springs (the prior DWI
conviction that was not contested by Clark as a prior intoxication-related offense).


                                                     10
