STATE OF MISSOURI,                         )
                                           )
                Respondent,                )
    v.                                     ) No. SD35854
                                           )
BERT LEE MACE,                             ) FILED: January 29, 2020
                                           )
                Appellant.                 )

          APPEAL FROM THE CIRCUIT COURT OF ST. CLAIR COUNTY
                         Honorable James K. Journey, Judge
AFFIRMED
         Charged with criminally-negligent DWI, Bert Mace did not testify or present
any evidence at trial. Jurors found him guilty in six minutes. His appeal brief,
raising nine points, flouts Rule 84.04 1 to a degree rarely seen:
            •   An inadequate but argumentative statement of facts ignores Rule
                84.04(c).
            •   Every point – all nine – violates Rule 84.04(d)(1).
                o “Given that a template is specifically provided for in Rule
                  84.04(d)(1), appellants simply have no excuse for failing to
                  submit adequate points relied on.” Scott v. King, 510 S.W.3d
                  887, 892 (Mo.App. 2017).
            •   Likewise, no point includes Rule 84.04(d)(5)’s required list of
                supporting authorities.



1Statutes cited are RSMo 2010 & supp. 2016; rules are Missouri Court Rules (2018). Rule
84.04 governs the form and content of briefs in criminal appeals. See Rule 30.06(a).
           •   The single, amalgamated argument section transgresses Rule
               84.04(e) in multiple respects:
                  o No point relied on is “restated at the beginning of the section
                    of the argument discussing that point.”
                  o The argument is not “limited to those errors included in the
                    ‘Points Relied On.’”
                  o No point’s supporting argument states whether, and if so
                    how the alleged error “was preserved for appellate review.”
                         •   This is noteworthy as the new-trial motion raised only
                             three points, but nine points are raised on appeal.
                  o Further, the argument does not state “the applicable
                    standard of review” as to any point.
        Mace compounds these failings by ignoring, except as to one unpreserved
point, the requirement that “[a]ll factual assertions in the argument shall have
specific page references to the relevant portion of the record on appeal, i.e., legal
file, transcript, or exhibits.”   Rule 84.04(e)(formerly Rule 84.04(i)).         “[T]he
importance of compliance with this rule cannot be overemphasized.” Shaw v.
Raymond, 196 S.W.3d 655, 659 n.2 (Mo.App. 2006). These references are our
tool to verify factual assertions made in support of the argument; otherwise we
would have to search the legal file, transcript, and exhibits for what we think may
verify those assertions. Id. “This would effectively thrust us into the role of an
advocate for [Mace], a role we cannot take.” Id.
       We should, and might, dismiss the appeal outright in other circumstances.
We proceed only because the state labored admirably to address Mace’s points
despite his failings; we are reluctant to cast aside that effort; and we must review
sufficiency-of-evidence challenges in any event. See State v. Claycomb, 470
S.W.3d 358, 361-62 (Mo. banc 2015).
                                    Background2
       A teenager (“Victim”) wearing music headphones was walking his dog at
night through a residential subdivision on graveled, unlighted Chisholm Trail
Drive (the “Road”). Mace, driving an ATV without operable headlights, struck

2We view the record and reasonable inferences most favorably to the verdict, disregarding
contrary evidence and inferences. State v. Jones, 479 S.W.3d 100, 105 (Mo. banc 2016).
                                           2
Victim and knocked his body 54 feet. Mace fell off the ATV, which tipped over,
beer cans scattering to the ground.
         Victim’s parents rushed out of their house to find Victim unconscious, blood
pooling under his head. Standing over him was Mace, smelling of alcohol, pushing
Victim and telling him to get up. Victim’s parents checked for a pulse and called
911. Mace said not to call 911; he “didn’t want the cops there.” Mace picked up the
beer cans, then tried to move the ATV and leave, but Victim’s father convinced him
otherwise.
         A trooper arrived, also smelled alcohol on Mace’s breath, heard his slurred
speech, observed his blank stare, administered three field-sobriety tests which
Mace failed, determined that Mace was intoxicated, arrested him for DWI, advised
him of the implied-consent law, and requested a blood draw. Mace refused. Mace
told the trooper that he was driving the ATV and hit the Victim, and later admitted
at a license revocation hearing, on oath, that he was drinking and driving that
night.
         The state charged Mace, a persistent offender, with class E felony DWI,
alleging that he acted with criminal negligence by operating a motor vehicle at
night without a headlight, injuring Victim.            See § 577.010.2(3)(b).       He was
convicted as stated above, and now appeals.
                  Sufficiency of the Evidence (Points 1-5, 9) 3
         We review sufficiency of evidence not by whether we think the state proved
guilt beyond a reasonable doubt, but whether, viewing the record most favorably
to the state, any rational fact-finder could have found the essential elements of the
crime beyond a reasonable doubt. Jones, 479 S.W.3d at 105.
         Mace states in Point 1 that “evidence suggests” he was not in actual physical
control of the ATV at the time of the accident. Yet his brief admits he was driving



3The state generously treated all six of these points as various challenges to the sufficiency
of the evidence subject to review “even if not briefed or not properly briefed” per
Claycomb, 470 S.W.3d at 361-62. We will do likewise even though Points 2-4 arguably
charge misapplication of law instead. Points 6-8 are other unpreserved claims without
any developed theory of manifest injustice or miscarriage of justice; we decline to review
these for plain error and discuss them no further.
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the ATV and he also admitted so that night. His contrary arguments ignore our
standard of review. Point denied.
       We also deny Point 5’s claim of insufficient evidence of intoxication, which
the state could prove through Mace’s physical manifestations of intoxication
summarized above. State v. Gittemeier, 400 S.W.3d 838, 841-42 (Mo.App.
2013). Mace’s contrary arguments again ignore our standard of review.
       Points 2-4 collectively assert that Mace cannot be guilty of DWI because an
ATV is not a “vehicle” or “motor vehicle” and the Road is not a highway or public
roadway. His reliance on State v. Slavens, 375 S.W.3d 915 (Mo.App. 2012) is
misplaced because Mace was not, for example, riding a dirt bike or lawn mower in
his own yard, or a golf cart on a privately-owned golf course. See id. at 917-20.
Instead Mace drove an ATV in a residential subdivision on a gravel road open to
and used by the public and emergency vehicles. “[A]ny street, if designated as a
thoroughfare or a way for travel, is understood to be a public roadway.”
Gittemeier, 400 S.W.3d at 844. “Regardless of type of motorized device, if a
person drives a non-traditional vehicle on a public road, such use can render that
vehicle a ‘motor vehicle.’” Id. “Because [Mace] drove his ATV on a road open to
the public, he created a ‘clear hazard to the traveling public.’” Id. Points denied.
       Finally, Point 9 charges that the evidence was insufficient to show Mace’s
criminal negligence. The jury was entitled to credit testimony that Mace was
intoxicated, driving at night on a dark unlit road without working headlights, and
going fast enough to knock Victim 54 feet, injuring him. Compare State v.
Stottlemyre, 752 S.W.2d 840, 844 (Mo.App. 1988)(driving while intoxicated at
night on dark road with no headlights at a high rate of speed was sufficient for
criminal negligence). Point denied. Judgment affirmed.


DANIEL E. SCOTT, P.J. – OPINION AUTHOR
JEFFREY W. BATES, J. – CONCURS
DON E. BURRELL, J. – CONCURS




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