                         MISSOURI COURT OF APPEALS
                             WESTERN DISTRICT


STATE OF MISSOURI,                           )
                                             )    WD76971
                   Respondent,               )
    v.                                       )    OPINION FILED:
                                             )
STEVEN WILLIAM SHOEMAKER,                    )    November 18, 2014
                                             )
                    Appellant.               )


             Appeal from the Circuit Court of Jackson County, Missouri
                       Honorable Jack Richard Grate, Judge

                      Before Division Three: Gary D. Witt, P.J.,
                     Joseph M. Ellis, and Thomas H. Newton, JJ.


                                        Summary

         Mr. Steven William Shoemaker appeals the convictions of driving a motor

vehicle with an excessive blood-alcohol content (BAC), § 577.012, 1 and driving

while revoked (DWR), § 302.321. We affirm in part and reverse in part.

                         Factual and Procedural Background

          In October 2009, at about 8 p.m., Detective Todd Hargis of the Independence

Police Department stopped Mr. Shoemaker on Interstate 70 for driving at an

excessive speed. Upon approaching Mr. Shoemaker‘s vehicle, Detective Hargis

smelled    ―the   odor   of   an   intoxicating   beverage.‖   The   detective    requested
1
  Statutory references are to RSMo 2000 and the Cumulative Supplement 2009, unless otherwise
stated.
identification; Mr. Shoemaker provided an insurance card and a business card.

Thereafter, the detective learned through police dispatch that Mr. Shoemaker‘s

license had been suspended, and that he had outstanding warrants. The detective

requested a second unit to the location for assistance. 2

       When the second unit arrived, Detective Hargis arrested Mr. Shoemaker for the

warrants. He also advised the assisting officer that he ―smelled the odor of alcohol‖

in Mr. Shoemaker‘s vehicle, and that he ―wanted him put in a secure area so he

couldn‘t have oral intake until [he] could . . . make contact with him.‖ The assisting

officer transported Mr. Shoemaker to the Independence Police Department.

       Detective Hargis made contact with Mr. Shoemaker in detention. He smelled

alcohol on Mr. Shoemaker‘s breath and asked him to perform the standard field

sobriety tests. After the detective explained the tests, Mr. Shoemaker stated that he

had ―bad knees‖ and wanted to speak to an attorney. Detective Hargis allowed him

twenty minutes to contact an attorney. Afterward, Mr. Shoemaker refused to submit

to the field sobriety tests.   However, he did submit to a breathalyzer test at 9:13 p.m.

– seventy-three minutes after the arrest – and after the detective read him the




2
  At the time of the stop, Detective Hargis was conducting traffic enforcement on the westbound
entrance ramp of Little Blue Parkway and I-70. He used a radar device to determine the speeds of
passing motorists.


                                               2
Missouri Implied Consent Law. 3 The breath sample resulted in a reading of .084.

          Detective Hargis completed an Alcohol Influence Report, which included

advising Mr. Shoemaker of Miranda 4 rights.                   Mr. Shoemaker agreed to answer

questions and admitted to driving the vehicle, but not to consuming alcohol.

          Mr. Shoemaker was charged by information with the Class D felony of driving

a motor vehicle with an excessive BAC as a persistent offender, § 577.012, which

was later amended 5 to a Class B misdemeanor. He was also charged with the Class A

misdemeanor of DWR, § 302.321.

           After a bench trial, Mr. Shoemaker was convicted of both charges. The trial

court sentenced him to 30 days of imprisonment for driving a motor vehicle with an

excessive BAC, and assessed a fine of $300. The trial court assessed an additional

fine of $300 for DWR. Mr. Shoemaker appeals.




3
    The Implied Consent Law, § 577.020, states, in relevant part:

          1. Any person who operates a motor vehicle upon the public highways of this state
          shall be deemed to have given consent to, subject to the provisions of sections
          577.019 to 577.041, a chemical test or tests of the person‘s breath, blood, saliva or
          urine for the purpose of determining the alcohol or drug content of the person's blood
          pursuant to the following circumstances:

          (1) If the person is arrested for any offense arising out of acts which the arresting
          officer had reasonable grounds to believe were c ommitted while the person was
          driving a motor vehicle while in an intoxicated or drugged condition.
4
    Miranda v. Arizona, 384 U.S. 436 (U.S. 1966).
5
  At trial, the State presented Exhibits Five and Six as evidence that Mr. Shoemaker should be found
guilty as a persistent offender. The exhibits consisted of certified copies of Mr. Shoemaker ‘s driving
record, which included a previous SIS conviction and a term of probation for Driving While
Intoxicated. The exhibits were missing indicia of whether Mr. Shoema ker had pled guilty or not
guilty. Therefore, the trial court deemed the documents ―facially deficient‖ for purposes of serving as
the sole evidence to enhance Mr. Shoemaker ‘s conviction, and neither document was admitted into
evidence.

                                                    3
                                  Standard of Review

      Our ―review is to determine whether substantial evidence was adduced to

support the trial court‘s finding.‖ State v. Collins, 413 S.W.3d 689, 696 (Mo. App.

S.D. 2013) (internal quotation marks and citation omitted).          When making a

determination of the sufficiency of evidence to support the conviction, we accept ―as

true all evidence tending to prove guilt together with all reas onable inferences that

support the finding.‖       Id. at 696-97.   We ignore ―[a]ll contrary evidence and

inferences.‖ Id. at 697 (internal quotation marks and citation omitted).

      ―When we are faced with a record of facts that supports conflicting inferences,

we must presume—even if it does not affirmatively appear in the record—that the

trier of fact resolved any such conflicts in favor of the prosecution and must defer to

that resolution.‖   State v. Bryan, 439 S.W.3d 781, 784 (Mo. App. S.D. 2014).

―Circumstantial evidence is given the same weight as direct evidence in considering

the sufficiency of evidence.‖ Id.

                                     Legal Analysis

      Mr. Shoemaker raises three points. In the first point, he argues that the trial

court erred in denying the motions for judgment of acquittal at both the close of the

State‘s evidence and the close of all evidence because the State ―failed to sustain its

burden of proof that [he] was physically operating or driving a motor vehicle‖ while

possessing ―an excessive blood alcohol content.‖       He claims that ―there was no

evidence‖ of his ―blood alcohol concentration‖ at the time that he physically operated

or drove a motor vehicle.




                                             4
      Section 577.012 states:

      1. A person commits the crime of ―driving with excessive blood alcohol
      content‖ if such person operates a motor vehicle in this state with eight -
      hundredths of one percent or more by weight of alcohol in such person‘s
      blood.

      2. As used in this section, percent by weight of alcohol in the blood shall
      be based upon grams of alcohol per one hundred milliliters of blood or
      two hundred ten liters of breath and may be shown by chemical analysis
      of the person's blood, breath, saliva or urine. For the purposes of
      determining the alcoholic content of a person's blood under this section,
      the test shall be conducted in accordance with the provisions of sections
      577.020 to 577.041.
      3. For the first offense, driving with excessive blood alcohol content is a
      class B misdemeanor.

Pursuant to section 577.012, ―proof of a numerical measure of blood alcohol content‖

is ―essential‖ to prove the offense of driving with an excessive BAC. State v. Martin,

103 S.W.3d 255, 263 (Mo. App. W.D. 2003). However, such proof ―is not essential in

a DWI case.‖ Id. Instead, ―to sustain a DWI conviction[,] the State must establish,

through direct or circumstantial evidence, the temporal connection between the

defendant‘s last operation of a motor vehicle and his observed intoxication.‖ State v.

Hatfield, 351 S.W.3d 774, 780 (Mo. App. W.D. 2011) (emphasis added).                M r.

Shoemaker cites to Hatfield, among other cases, in support of his argument that the

State failed to prove that he had an excessive BAC at the time he was driving.

      In Hatfield, an officer was dispatched to a scene where an impaired driver was

already separated from a parked vehicle upon the officer‘s arrival, and no evidence

existed to establish when the driver last operated the vehicle.      Id. at 777.    The

Hatfield court found that, ―[w]here intoxication is observed at a time separate from

the operation of a motor vehicle, a ‗factfinder cannot determine that one who is under

the influence of an alcoholic beverage at an established time was necessarily in that

                                          5
condition at some earlier unspecified moment without any evidence concerning the

length of the interval involved.‘‖ Id. (internal quotation marks and citation omitted).

          The Southern District recently addressed a very similar claim in Bryan. In

Bryan, the defendant challenged the sufficiency of the evidence supporting his

conviction of driving while intoxicated. 6 439 S.W.3d at 782.              The defendant argued

that, ―while he may have been shown to be intoxicated at some unknown time at least

an hour after a trooper was called to the accident scene, there were no signs of

intoxication at the accident scene and no evidence that Appellant had no access to

methamphetamine between the accident and his observed intoxication.‖                   Id.    The

Southern District summarized the evidence:

          [The defendant] collided with . . . one of the victim‘s cars . . . . The
          collision pushed the . . . car . . . into the oncoming . . . lane [], where it
          struck another vehicle and killed the second victim . . . . [A Sheriff and a
          Corporal] . . . met with [the defendant] approximately 40 [to] 45
          minutes after the accident. At that time[,] they observed behavior
          consistent         with              methamphetamine             intoxication.

Id. at 783. Though the defendant did not challenge evidence supporting impairment

at the time of the interview, he argued that there was ―no evidence‖ demonstrating

impairment at the time of the accident. Id. The defendant argued ―that the proof of

methamphetamine intoxication was too remote from the time of the accident to

provide sufficient evidence of intoxication at the time of the accident.‖               Id.   He

claimed that it was pure speculation and conjecture that [he] was impaired at the time

of the accident because he could have ingested methamphetamine in the hour that

may have transpired between the time of the accident and the time of the observations




6
    The intoxicating substance was methamphetamine, however, rather than alcohol.

                                                  6
by the Sheriff and Corporal, and the State did not provide any evidence that [the

defendant] did not have access to methamphetamine in that time period.

       Id. The Southern District rejected the defendant‘s claim, finding there to be a

reasonable inference 7 ―that the methamphetamine was already in his system at the

time of the accident.‖ Id. at 784. And, after having noted Chaney‘s requirement that

the court accept only those inferences supporting the ver dict and reject those that are

contrary, the Southern District affirmed the conviction. Id.

       Similarly, in State v. Scholl, 114 S.W.3d 304 (Mo. App. E.D. 2003), the

defendant argued that the evidence was insufficient to support the driving element of

DWI. Id. at 307. The evidence demonstrated that ―[the defendant] was seen driving

away from the party in his truck alone and, less than thirty minutes later, was found a

short distance down the road alone in the front seat of the truck, which had struck a

tree and deployed the driver-side airbag.‖ Id. The defendant argued that there was a

reasonable inference from the evidence that, ―in that short time between leaving the

party and being found, he switched drivers with some unknown person along the

road, who, after crashing [the defendant‘s] truck into a tree, positioned [the

defendant] to appear to have been the driver and fled before anyone arrived.‖                      Id.

7
  The Missouri Supreme Court has firmly rejected application of any rule ―that [places] the
prosecution . . . under an affirmative duty to disprove every reasonable hypothesis except that of
guilt.‖ State v. Chaney, 967 S.W.2d 47, 54 (Mo. banc 1998). Missouri courts employed such a rule,
known as the ―equally valid inferences rule.‖ Id. ―The equally valid inferences rule was unique to
Missouri and state[d] that, ‗[w]here two equally valid infe rences can be drawn from the same
evidence, the evidence does not establish guilt beyond a reasonable doubt.‘‖ Id. (quoting State v.
Roberts, 709 S.W.2d 857, 862 (Mo. banc 1986)). But ―[t]he equally valid inferences rule was
effectively abolished by State v. Grim,‖ 854 S.W.2d 403 (Mo. banc 1993). Id. ―The Court
in Grim noted that the equally valid inferences rule conflicts with and renders meaningless the
requirement that the appellate court presume that the trier of fact drew all reasonable infere nces in
favor of the verdict.‖ Id. (citing Grim, 854 S.W.2d at 413–14). ―Because the equally valid inferences
rule is at war with the due process standard governing an appellate court‘s review of the sufficiency
of evidence, the equally valid inferences rule sh ould no longer be applied.‖ Id. ―Rather, the standard
to be applied is the due process standard set forth in State v. Grim and Jackson v. Virginia,‖ 443 U.S.
307, 326 (U.S. 1979). Id.

                                                  7
The Eastern District rejected the defendant‘s argument, stating: ―While this inference

is not factually impossible, we cannot say that it is unreasonable to instead infer that

[the defendant] was driving up to and at the time of the accident.‖ Id.

      Here, in contrast to Hatfield, Mr. Shoemaker was stopped while driving,

placing him in the position of actively operating the vehicle.        Detective Hargis

testified that he smelled ―an intoxicating beverage‖ when he approached Mr.

Shoemaker‘s vehicle after stopping him for driving at an excessive speed.           The

detective later completed a lawful breathalyzer test with a well-functioning device

that he was certified and trained to use, which resulted in a reading that demonstrated

that Mr. Shoemaker‘s BAC was higher than the legal limit.            It has long been

recognized by this court that, after it is ingested, alcohol must be absorbed into the

blood stream. Hatfield, 351 S.W.3d at 778-79; see also State v. Davis, 217 S.W.3d

358, 361 (Mo App. W.D. 2007).          This process takes thirty to ninety minutes.

Hatfield, 351 S.W.3d at 779 (citing 2 Donald H. Nichols & Flem K. Whited III,

Drinking/Driving Litigation: Criminal and Civil §§ 14.3, 14.27 (1998)).             Mr.

Shoemaker had nothing to drink or smoke between the time of the stop and the

breathalyzer test that was administered seventy-three minutes later, which resulted in

the BAC reading slightly above the legal limit.

      There are at least two possible and reasonable inferences from the evidence:

(1) Mr. Shoemaker drank a sufficient quantity of alcohol close enough in time to his

arrest that it was still being absorbed at the time his BAC was assessed, implying that

his BAC was under .080 at the time he drove; or (2) Mr. Shoemaker consumed a

sufficient quantity of alcohol long enough before his arrest that the alcohol was in the



                                           8
process of being eliminated from his bloodstream, implying that his BAC was over

.080 at the time he drove.

      As noted supra, ―[a]n appellate court ‗faced with a record of historical facts

[supporting] conflicting inferences must presume—even if it does not affirmatively

appear in the record—that the trier of fact resolved any such conflicts in favor of the

prosecution, and must defer to that resolution.‘‖ State v. Chaney, 967 S.W.2d 47, 53-

54 (Mo. banc 1998) (quoting Jackson v. Virginia, 443 U.S. 307, 326 (1979)).

Therefore, we must presume that the trial court found that Mr. Shoemaker consumed

a sufficient quantity of alcohol long enough before his arrest that the alcohol was in

the process of being eliminated from his bloodstream, implying that his BAC was

over .080 at the time he drove.     Accordingly, applying as we must, the requisite

deference to the trial court‘s judgment, point one is denied.

      In the second point, Mr. Shoemaker argues that the trial court erred in denying

the motions for judgment of acquittal because the State ―failed to sustain its burden

of proof‖ that he was operating or driving a motor vehicle with a revoked license. He

claims that ―there was no evidence‖ that his license ha d been revoked, nor was there

―any evidence‖ that he ―knew or acted with criminal negligence in not knowing that

his license was revoked.‖ Mr. Shoemaker further argues that, because he provided an

insurance card to the detective, ―[o]ne might rightfully question how one whose

license is purported [sic] under sanction may qualify for vehicular liability coverage.‖

He claims that the State ―failed to prove through competent admissible evidence the

actual status of [his] Missouri driving privilege.‖ (Emphasis added.)




                                           9
      Section 302.321 states, in relevant part:

      1. A person commits the crime of driving while revoked if such person
      operates a motor vehicle on a highway when such person‘s license or
      driving privilege has been cancelled, suspended, or revoked under the
      laws of this state or any other state and acts with criminal negligence
      with respect to knowledge of the fact that such person‘s driving
      privilege has been cancelled, suspended, or revoked.

      2. Any person convicted of driving while revoked is guilty of a
      misdemeanor. A first violation of this section shall be punishable by a
      fine not to exceed three hundred dollars. A second or third violation of
      this section shall be punishable by imprisonment in the county jail for a
      term not to exceed one year and/or a fine not to exceed one thousand
      dollars.

(Emphasis added). To convict Mr. Shoemaker of driving while revoked, ―the State

must prove beyond a reasonable doubt that [his] license had been revoked , [he] acted

with criminal negligence with respect to knowledge of the fact that [his] driving

privilege had been revoked, and [he] was operating a motor vehicle on the highways

of the State while [his] license was revoked.‖ State v. Thenhaus, 117 S.W.3d 702,

703 (Mo. App. E.D. 2003).       Thus, ―the State [was required to] prove [that Mr.

Shoemaker] drove his car while either knowing or failing to be aware that his driving

privilege was revoked and such failure to be aware constituted a gross deviation from

the standard of care a reasonable person would exercise in the situation.‖        See

Collins, 413 S.W.3d at 700 (citing section 562.016.5).

      ―Section 562.016.5 provides [that] a person ‗acts with criminal negligence‘ or

is criminally negligent when ‗he fails to be aware of a substantial and unjustifiable

risk that circumstances exist or a result will follow, and such failure constitutes a

gross deviation from the standard of care which a reasonable person would exercise

in the situation.‘‖ Collins, 413 S.W.3d at 697. A ―defendant‘s mental state may be



                                          10
determined from evidence of the defendant‘s conduct before the act, from the act

itself, and from the defendant‘s subsequent conduct.‖ Id. (internal quotation marks

and citations omitted). Proof of criminal negligence as it pertains to a defendant‘s

knowledge that his driver‘s license was revoked may be based upon a review of his or

her driving record. Id.

          In this case, the State failed to adduce any evidence that Mr. Shoemaker was

aware of the revocation of his license at the time of the stop. For reasons previously

stated, Mr. Shoemaker‘s driving record was not admitted into evidence. 8 However,

the State contends that it may reasonably be inferred that Mr. Shoemaker was aware

that his license had been revoked because he did not produce it to Detective Hargis

when requested. Such an inference simply cannot stand on its own, absent additional

evidentiary support. See, e.g., State v. Berrey, 803 S.W.2d 37, 40 (Mo. App. W.D.

1990) (defendant‘s DWR conviction was affirmed, based on defendant‘s failure to

produce his license when stopped and a ―portion of the defendant‘s driving record

[that] was read into evidence‖). The sole evidence that Mr. Shoemaker‘s license was,

in fact, revoked was the hearsay statement of the dispatcher. Even assuming this

evidence was properly admitted over Mr. Shoemaker‘s objection, there was

absolutely no evidence that Mr. Shoemaker had ever been notified of the suspension

of his license or that he had any knowledge whatsoever that it was in fact suspended.

Thus, the State has failed to meet its burden. Accordingly, point two is granted.

          In the third point, Mr. Shoemaker argues that the trial court erred in overr uling

his objection to information provided to Detective Hargis from a police department

dispatcher about his driver‘s license status and the detective‘s associated testimony
8
    See supra note 5.

                                              11
because the dispatcher‘s information ―consisted of a hearsay statement upon a

hearsay statement‖ upon which the trial court ―erroneously and prejudicially‖ relied

as ―purported evidence of [his] driver‘s license status at the time of the stop.‖ He

claims that ―such reliance was outcome-determinative.‖

      Hearsay statements are ―out-of court statements used to prove the truth of the

matter asserted‖ and are generally inadmissible. State v. Douglas, 131 S.W.3d 818,

823 (Mo. App. W.D. 2004). However, such statements may be admissible of they fall

―within a recognized exception to the rule.‖     Id.   ―Such exceptions are justified

because their circumstances sufficiently guarantee the trustworthiness of the out-of-

court statement[,] even though not subject to cross-examination.‖          Id.   Most

pointedly, an ―officer may rely on information from police dispatch . . . and such

third-party statements are in general admissible to establish probable cause, even

though they are hearsay.‖ Tweedy v. Dir. of Revenue, 412 S.W.3d 389, 395 (Mo. App.

E.D. 2013). Furthermore, ―an arresting officer . . . can develop probable cause by

considering all the information known to the officer, including hearsay statements.‖

Neer v. Dep’t of Revenue, 204 S.W.3d 315, 322 (Mo. App. W.D. 2006). However,

―[i]f an out-of-court statement is not offered to prove the truth of the matter

asserted[,] but instead is offered to prove relevant background, then the statement is

not inadmissible hearsay.‖   State v. Dunn, 101 S.W.3d 922, 925 (Mo. App. S.D.

2003). Additionally, ―[s]tatements made by an out-of-court declarant that explain

subsequent conduct are admissible as supplying relevant background and continuity.‖

Id.




                                         12
       Here, Detective Hargis testified that he was informed by police dispatch that

Mr. Shoemaker‘s license had been revoked and that he had existing warrants. This

information, coupled with the odor of alcohol emanating from Mr. Shoemaker‘s

vehicle and Mr. Shoemaker‘s refusal to produce a valid driver‘s license, supported the

officer‘s finding of probable cause to detain Mr. Shoemaker for further investigation.

The   subsequent     statements     from    police   dispatch   were   thus   not   ―outcome

determinative‖; rather, these statements provided relevant background to support

suspicions that were already in existence. Thus, the trial court did not err in

overruling Mr. Shoemaker‘s objection. Point three is denied.

                                           Conclusion

       For the above reasons, we affirm the conviction of driving a motor vehicle

with an excessive BAC and reverse the conviction of DWR.



                                                     /s/ THOMAS H. NEWTON___
                                                     Thomas H. Newton, Judge


Witt, P.J., and Ellis, J. concur.




                                              13
