STATE OF MISSOURI,                         )
                                           )
       Plaintiff-Appellant,                )
                                           )
vs.                                        )      No. SD33492
                                           )
COURTNEY K. THOMPSON,                      )      Filed: April 8, 2015
                                           )
       Defendant-Respondent.               )

         APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY

                Honorable Daniel W. Imhof, Associate Circuit Judge

DISMISSED

       In this case, the State appeals from a docket entry which the parties

interpret as an order granting a motion to suppress evidence. However, the

docket entry is so vague that it does not, in fact, have the substantive effect of

suppressing evidence. Thus, we dismiss the appeal for lack of appellate

jurisdiction.

                     Factual and Procedural Background

       On September 28, 2013, at about 2:30 in the morning, Courtney K.

Thompson ("Defendant") was operating a passenger vehicle on Kansas

Expressway in Springfield, Missouri. Officer Andrew Webb ("Officer Webb")

stopped Defendant's vehicle, and ultimately Defendant was charged with driving
while intoxicated and failure to drive on the right half of the roadway. See

§§ 304.015, 577.010, RSMo Cum. Supp. (2014).

       Defendant filed a motion to suppress all the evidence obtained after the

traffic stop, arguing "[t]he initial stop was made without probable cause, and

without legal justification." At the hearing on the motion to suppress, the

evidence consisted of Officer Webb's testimony and the video recording from the

dash cam from Officer Webb's patrol car. Officer Webb testified that when he

first observed Defendant's vehicle the tires of the car had crossed into the other

lane of travel. The video did not show the tires crossing into the other lane of

travel. The parties vigorously disputed whether the evidence supported the

conclusion that Defendant's vehicle entered the other lane of travel so as to

provide justification for the traffic stop.

       The trial judge took the matter under advisement and later made a docket

entry regarding the motion to suppress. That docket entry stated:

       After reviewing the video, the court is unable to tell if [Defendant's]
       tires cross over into the inside lane of traffic, but that if they did —
       and the court does find the deputy credible at least in his belief that
       this happened — the movement of the vehicle was minor enough
       that the court believes suppressing the evidence for inadequate
       probable cause is consistent [with] the cases supplied by defense
       counsel — in evaluating whether [Defendant's] driving was
       "erratic", [sic] the court also notes there was no other traffic close to
       [Defendant][.]

The State appealed.

                                     Discussion

       "Although the parties have not raised the issue of jurisdiction, this [C]ourt

must address it sua sponte." State v. Lilly, 410 S.W.3d 699, 701 (Mo. App.

W.D. 2013) (quoting Maskill v. Cummins, 397 S.W.3d 27, 31 (Mo. App. W.D.

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2013)). Moreover, "[t]he right to appeal is purely statutory and, where a statute

does not give a right to appeal, no right exists." Id. (quoting Buemi v.

Kerckhoff, 359 S.W.3d 16, 20 (Mo. banc 2011)). Here, the State brings the

appeal pursuant to Section 547.200 which provides, in relevant part, that "[a]n

appeal may be taken by the state through the prosecuting or circuit attorney from

any order or judgment the substantive effect of which results in . . . [s]uppressing

evidence[.]" § 547.200.1(3), RSMo (2000). This statutory provision has been

narrowly construed. See, e.g., State v. Eisenhouer, 40 S.W.3d 916, 919 (Mo.

banc 2001) ("The mere exclusion of evidence based on a rule of evidence does not

have the substantive effect of a motion to suppress."); Lilly, 410 S.W.3d at 702

(dismissing an appeal for lack of jurisdiction where the trial court's order had the

effect of excluding rather than suppressing evidence).

       In the present case, the docket entry from which the State appeals does not

have the substantive effect of suppressing evidence because it is too vague. The

trial court's docket entry discusses Officer Webb's testimony, but its conclusion

with respect to that issue is unclear. The State suggests the trial court's entry is a

general finding that Officer Webb was credible. However, the trial court's precise

language—"the court does find the deputy credible at least in his belief that this

happened" (emphasis added)—suggests another meaning. The italicized

qualification can also suggest the trial court found Officer Webb was mistaken in

Officer Webb's honest belief that Defendant's tires crossed the center line. The

additional statements in the docket entry do not provide any further clarification.

The trial court simply discusses the case citations provided by Defendant's

attorney without making a definitive ruling regarding the motion to suppress.

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Rather, the trial court merely says suppression of the evidence would be

"consistent" with those cases. The trial court never makes a final determination

of whether to suppress or not suppress the evidence. Thus the docket entry

appears to be merely a record of the trial court's as yet incomplete thought

process regarding the motion to suppress. To find that this docket entry had the

substantive effect of suppressing or not suppressing evidence would require this

Court to supply language that simply is not contained in the docket entry.

       The trial court's docket entry does not meet the requirements for an

interlocutory appeal pursuant to Section 547.200.1(3), RSMo (2000). Where

there is no statutory authority for an appeal, this Court lacks jurisdiction to

consider the appeal. See Lilly, 410 S.W.3d at 701. "If this Court lacks

jurisdiction to entertain an appeal, the appeal must be dismissed." Id. (quoting

Walker v. Brownel, 375 S.W.3d 259, 261 (Mo. App. E.D. 2012)).

                                    Conclusion

       The appeal is dismissed.



MARY W. SHEFFIELD, P.J. – OPINION AUTHOR

NANCY STEFFEN RAHMEYER, J. – CONCURS

DON E. BURRELL, J. – CONCURS




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