STATE OF MISSOURI,
)
)
Respondent,
)
)
vs.
)
No. WD 76304
)
HENRY L. SUTTON,
)
)
Appellant.
)
__________________________________________________________________
APPEAL TO THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
FROM THE CIRCUIT COURT OF PETTIS COUNTY, MISSOURI
18TH JUDICIAL CIRCUIT, DIVISION 1
THE HONORABLE ROBERT L. KOFFMAN, JUDGE
__________________________________________________________________
APPELLANT’S BRIEF
__________________________________________________________________
Margaret M. Johnston, MOBar #45913
Attorney for Appellant
Woodrail Centre
1000 West Nifong
Building 7, Suite 100
Columbia, Missouri 65203
Telephone (573) 882-9855
FAX (573) 884-4793
maggie.johnston@mspd.mo.gov
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - November 04, 2013 - 03:24 PM GMT+00:00
IN THE
MISSOURI COURT OF APPEALS
WESTERN DISTRICT
__________________________________________________________________
Page
TABLE OF AUTHORITIES .................................................................................. 2
JURISDICTIONAL STATEMENT ....................................................................... 4
STATEMENT OF FACTS ..................................................................................... 5
POINT RELIED ON ............................................................................................ 11
ARGUMENT ........................................................................................................ 13
CONCLUSION .................................................................................................... 26
APPENDIX
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INDEX
Page
CASES:
In re Winship, 397 U.S. 358 (1970) ............................................................... 11, 19
State v. Keeler, 856 S.W.2d 928 (Mo. App. S.D. 1993) .................................... 19
State v. Botts, 151 S.W.3d 372 (Mo. App. W.D. 2004) ................................... 20
State v. Grim, 854 S.W.2d 403 (Mo. banc 1993)............................................... 20
State v. Whalen, 49 S.W.3d 181 (Mo. banc 2001) ............................................ 20
State v. Johnson, 81 S.W.3d 212 (Mo. App. S.D. 2002)................................... 20
State v. Thenhaus, 117 S.W.3d 702 (Mo. App. E. D. 2003)................. 11, 21, 26
State v. Seeler, 316 S.W.3d 920 (Mo. banc 2010) .................................. 11, 22-23
Campbell v. Labor and Indus. Relations Com'n, 907 S.W.2d 246
(Mo. App. W.D. 1995) .............................................................................. 23
Covert v. Fisher, 151 S.W3d 70 (Mo. App. E.D. 2004) .............................. 11, 24
Morris v. Blunt et al, 49 Utah 243, 161 P. 1127 (1916) ...............................23-24
CONSTITUTIONAL PROVISIONS:
United States Constitution, Amendment 14 .............................................. 11, 13
Missouri Constitution, Article I, § 10 ........................................................... 11-13
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TABLE OF AUTHORITIES
§ 227.250, RSMo 2000 .................................................................................... 12, 24
§ 301.010(19), RSMo Supp. 2009 .................................................................. 12, 22
§ 302.010(6), RSMo Supp. 2008 ................................................................... passim
§ 302.321, RSMo Supp. 2005 ........................................................................ passim
§ 477.070, RSMo 2000 ............................................................................................ 4
RULES:
Missouri Supreme Court Rule 29.11 (2013) ............................................... 12, 19
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STATUTES:
Appellant Henry L. Sutton appeals his conviction for the class D
felony of driving while revoked, § 302.321,1 following a court-tried case in
the Circuit Court of Pettis County, Missouri. He was sentenced by the
Honorable Robert L. Koffman to a $500.00 fine. This appeal involves no
issues reserved for the exclusive jurisdiction of the Missouri Supreme
Court, so jurisdiction lies in the Missouri Court of Appeals, Western
District. Article V, § 3, Mo. Const. (as amended 1982); § 477.070.
1
All statutory references are to RSMo Supp. 2010, unless otherwise
indicated.
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JURISDICTIONAL STATEMENT
Appellant Henry L. Sutton was charged by first amended
information with the class D felony of driving while revoked, § 302.321 (LF
11-12). 2 He filed a written waiver of his right to a jury trial, which was
accepted in open court by the trial judge (LF 10; Tr. 6-9). On January 24,
2013, at a bench trial before the Honorable Robert L. Koffman (LF 15-16),
the following evidence was presented:
On July 16, 2011, Cpl. Eric Keim of the Missouri State Highway
Patrol was dispatched to a motor vehicle accident on Highway 65
somewhere near the south edge of Sedalia in Pettis County, Missouri (Tr.
13-14). When Cpl. Keim arrived at the accident scene, he saw a Jeep
Liberty parked in the center lane, and about 20 feet in front of the Jeep was
a small, Isuzu flatbed truck also parked in the center lane (Tr. 14, 15). The
two vehicles had collided in the center lane, and there was damage to the
front end of the Jeep (Tr. 14, 20; State’s Exhibit No. 9). Both vehicles were
facing south and were in the general vicinity of the entrance to the high
school and to Elm Hills Boulevard (Tr. 14-15). Ms. Cisneros was the driver
2
All statutory references are to RSMo Supp. 2010, unless otherwise
indicated.
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STATEMENT OF FACTS
driver was injured (Tr. 17).
Henry told Cpl. Keim that he was working with a construction crew
(Park-Mark, Inc.) that was painting the turn arrows in the center lane,
which was closed off to traffic (Tr. 16, 24). He said that the crew was
moving northward as they continued to paint, and he was backing up to
stay with the crew when the Jeep pulled into the center lane behind him
(Tr. 16). Ms. Cisneros drove her Jeep too close to Henry’s truck and he
could not see it in his mirrors, so he backed into it (Tr. 16).
Twice earlier that day, Cpl. Keim had seen the work crew painting
the center arrows (Tr. 16, 21). When he saw the crew earlier, a truck like
Henry’s was at the north end of the work area, and another one was at the
south end; the trucks were about 100 yards apart, and crew members were
on foot in the center turn lane painting between the two trucks (Tr. 17, 21).
The vehicles had displayed activated, flashing, lighted arrow boards
directing traffic to go around them (Tr. 17, 18, 21).3 But Cpl. Keim did not
see any orange cones or other barriers that would prevent traffic from
going into the center lane (Tr. 18). Cpl. Keim believed that there were
3
The arrow boards were still activated when Cpl. Keim arrived at the
accident scene (Tr. 21).
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of the Jeep, and Henry was the driver of the Isuzu (Tr. 15-16). Neither
“Road Work Ahead,” but he did not see anything stating that any lane was
closed (Tr. 19, 22).
Cpl. Keim checked on Henry’s driving privileges and issued him a
citation for driving while revoked (Tr. 17-18). At trial, a certified copy of
Henry’s Department of Revenue driving record was submitted; it showed
that there had been “a 10-year minimum denial with eligibility to reinstate
in 2018” (Tr. 22).
The owner of Park-Mark, Inc., Mike Solomon, testified that his
company is a “niche road contractor” that puts stripes on the roads and
does other things related to traffic-control on highways (Tr. 25). Before
they start work on a road, traffic control plans have to be approved by the
Missouri Department of Transportation because the road has to,
essentially, “stop being a road in the particular area” (Tr. 31). In other
words, the State has to sanction any kind of road closing before Park-Mark
does any road work (Tr. 32).
Henry is an employee; he predominately installs tape when they are
striping the road (Tr. 25). The crew typically uses support trucks to carry
work supplies and lighted directional arrow boards mounted on them for
traffic control (Tr. 26). The purpose of the arrow boards is to keep other
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orange signs on the right shoulders stating something like “Work Zone” or
trucks, arrows, and signs used during the roadwork (Tr. 33). Solomon was
aware that Henry’s driver’s license was suspended on July 16, 2011, the
day that Henry was helping to install multiple turn arrows in a turn lane
(Tr. 27, 30).4
Henry testified that on July 16, 2011, he was foreman on the tape
crew for Park-Mark, Inc. (Tr. 39). Henry and three other crew members
were working on Highway 65 (Tr. 39). They were using two vehicles that
had flashing arrows informing drivers not to enter the work zone (Tr. 40).
They also had four sets of signs on each end of the work zone, and tall
cones on each side of the trucks (Tr. 40, 47). The first work sign said “Road
Construction Ahead,” and the second sign, which was 50-75 feet away,
said, “Center Lane Closed” (Tr. 41).
Henry knew that his driving privileges had been revoked (Tr. 42).
He testified that the only reason he drove the truck was because one of his
co-workers had moved the Isuzu truck on top of the arrow that they
4
Solomon was not allowed to testify that he believed that Henry could
operate the work vehicles for work purposes so long as he was in the work
zone, nor was Solomon allowed to testify that he told Henry that he could
legally operate one of the work trucks in the work zone (Tr. 27-28).
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drivers out of the closed work zone (Tr. 27). Solomon’s company owns the
of the way; he never drove out of the closed, center turn lane (Tr. 41, 45).5
While he was moving the truck, there was a flashing arrow telling people
not to enter the closed work zone (Tr. 42). Apparently, however, another
vehicle entered the center turn lane while he was backing up the truck, and
they collided (Tr. 42, 48, 50).
At the close of all the evidence, Henry’s motion for judgment of
acquittal was overruled (Tr. 51; LF 13-14, 16). Henry argued that he was
not driving on a “highway” because he had only driven in a closed work
zone; it was not open to the public (Tr. 51). Judge Koffman held that a
closed construction zone fell under the definition of “highway,” and thus
found Henry guilty (Tr. 65-67; LF 15-16).
In a Motion to Reconsider Judgment of the Court and for Judgment
of Acquittal, Henry again argued that a closed work zone such as the one
he was operating the work vehicle in did not meet the definition of
“highway” under § 302.010 ( “any public thoroughfare for vehicles ..), in
that a closed work zone is not a public thoroughfare (LF 17-18).
5
Henry was not allowed to testify that he believed he could operate a
work vehicle in a work zone (Tr. 42). Another worker had driven him to
the work site (Tr. 42).
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needed to install, so Henry moved the truck back 10 to 15 feet to get it out
sentenced by the court to a $500.00 fine (LF 22-23; Tr. 71). Notice of appeal
was timely filed, and this appeal follows (LF 24-26).
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The motion was overruled, and on March 26, 2013, Henry was
The trial court erred in overruling Henry’s motion for judgment of
acquittal at the close of all the evidence, in finding Henry guilty of
driving while revoked, § 302.321, and in entering judgment and sentence
for that offense, because this violated Henry’s right to due process of
law guaranteed by the 14th Amendment to the United States Constitution
and Article I, § 10 of the Missouri Constitution, in that § 302.321
prohibits a person from driving while his driving privileges are revoked
if such person is operating a motor vehicle on “a highway;” Henry was a
worker on a crew contracted by the Missouri Department of
Transportation to paint turn arrows in the center lane of a portion of
Highway 65, and he only drove the work truck backward a few yards in
the clearly-marked closed work zone; and a closed work zone is not a
“highway” because at the time it is closed, it is not a “public
thoroughfare.”
In re Winship, 397 U.S. 358 (1970);
State v. Seeler, 316 S.W.3d 920 (Mo. banc 2010);
Covert v. Fisher, 151 S.W3d 70 (Mo. App. E.D. 2004);
State v. Thenhaus, 117 S.W.3d 702 (Mo. App. E. D. 2003);
U.S. Const., Amend. 14;
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POINT RELIED ON
§§ 227.250, 301.010, 302.010 and 302.321; and
Rule 29.11.
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Mo. Const., Art. I, § 10;
The trial court erred in overruling Henry’s motion for judgment of
acquittal at the close of all the evidence, in finding Henry guilty of
driving while revoked, § 302.321, and in entering judgment and sentence
for that offense, because this violated Henry’s right to due process of
law guaranteed by the 14th Amendment to the United States Constitution
and Article I, § 10 of the Missouri Constitution, in that § 302.321
prohibits a person from driving while his driving privileges are revoked
if such person is operating a motor vehicle on “a highway;” Henry was a
worker on a crew contracted by the Missouri Department of
Transportation to paint turn arrows in the center lane of a portion of
Highway 65, and he only drove the work truck backward a few yards in
the clearly-marked closed work zone; and a closed work zone is not a
“highway” because at the time it is closed, it is not a “public
thoroughfare.”
Issue on Appeal
§ 302.321, RSMo Supp. 2005, provides, in pertinent part, that a
person commits the crime of driving while revoked if he operates a motor
vehicle on “a highway” when his license or driving privilege has been
revoked under the laws of this state, and acts with criminal negligence
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ARGUMENT
revoked.
§ 302.010(6), RSMo Supp. 2009, defines “highway” as: “any public
thoroughfare for vehicles, including state roads, county roads and public
streets, avenues, boulevards, parkways, or alleys in any municipality”
(emphasis added).
Henry was on a road crew that was taping or painting turn arrows
in the center lane, which was closed off to traffic. One truck was at the
north end of the work area and another one at the south end. The trucks
were about 100 yards apart, and crew members were on foot in the center
turn lane painting between the two trucks. The vehicles displayed
activated, flashing, lighted arrow boards directing traffic to go around
them. The purpose of the arrow boards is to keep other drivers out of the
closed work zone. There were orange signs on the right shoulders stating
something like “Work Zone” or “Road Work Ahead.” Before the crew
starts work on a road, traffic control plans have to be approved by the
Missouri Department of Transportation because the road has to essentially
stop being a road in the particular area. The State has to sanction any kind
of road closing to do road work.
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with respect to knowledge of the fact that his driving privilege has been
construction zone was because one of his co-workers had moved the truck
on top of the area where they needed to install an arrow. Henry moved
the truck back 10 to 15 feet to get it out of the way; he never drove out of
the closed, center turn lane. While he was moving the truck, there was a
flashing arrow on the truck warning other drivers not to enter the closed
work zone.
The trial court found Henry guilty because it believed that, although
it was a close question of law, a closed construction zone fell under the
definition of “highway.”
The question presented on this appeal is: Whether a closed work or
construction zone is a “public thoroughfare” when that portion of the road
is closed off to public traffic – through the use of such things as flashing
arrows directing traffic around the zone, and signs clearly stating that it is
a “Work Zone” – at the time the work is being performed?
Facts
Henry was charged with driving while revoked, § 302.321, RSMo
Supp. 2005 (LF 11-12). He was convicted after a bench trial before the
Honorable Robert L. Koffman (Tr. 65-67; LF 15-16).
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Henry testified that the only reason he drove the truck in the
to a motor vehicle accident on Highway 65 (Tr. 13-14). When Cpl. Keim
arrived at the accident scene, he saw a Jeep Liberty parked in the center
lane, and about 20 feet in front of the Jeep was a small, Isuzu flatbed truck,
also parked in the center lane (Tr. 14, 15). The two vehicles had collided in
the center lane (Tr. 20; State’s Exhibit No. 9).6 Henry was the driver of the
Isuzu; neither driver was injured (Tr. 15-17).
Henry told Cpl. Keim that he was working with a construction crew
(Park-Mark, Inc.) that was painting turn arrows in the center lane, which
was closed off to traffic (Tr. 16, 24). He said that the crew was moving
northward as they painted, and he was backing up to stay with the crew
when the Jeep pulled into the center lane behind him (Tr. 16). He did not
see the Jeep in his mirrors because it was too close to him, and he backed
into it (Tr. 16).
Twice earlier that day, Cpl. Keim had seen the work crew painting
the center arrows (Tr. 16, 21). When he saw the crew earlier, a truck like
Henry’s was at the north end of the work area and another one was at the
south end; they were about 100 yards apart, and crew members were on
6
The officer’s diagram of the collision, which was contained in State’s
Exhibit 9, is included in the Appendix (A-1).
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Cpl. Eric Keim of the Missouri State Highway Patrol was dispatched
The vehicles displayed activated, flashing, lighted arrow boards directing
traffic to go around them (Tr. 17, 18, 21). The arrow boards were still
activated when Cpl. Keim arrived at the accident scene (Tr. 21). But Cpl.
Keim did not see any orange cones or other barriers that would prevent
traffic from going into the center lane (Tr. 18). Cpl. Keim believed that
there were orange signs on the right shoulders stating something like
“Work Zone” or “Road Work Ahead,” but he did not see anything stating
that any lane was closed (Tr. 19, 22).
The owner of Park-Mark, Inc., Mike Solomon, testified that his
company is a “niche road contractor,” that puts stripes on roads and does
other things related to traffic-control on highways (Tr. 25). Before he starts
work on a road, traffic control plans have to be approved by the Missouri
Department of Transportation because the road has to “essentially” “stop
being a road in the particular area” (Tr. 31). In other words, the State has
to sanction any kind of road closing before Park-Mark does any road work
(Tr. 32).
Henry is an employee of Park-Mark, Inc.; he predominately installs
tape when they are striping the road (Tr. 25). The crew typically uses
support trucks to carry work supplies, and the trucks have lighted
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foot in the center turn lane painting between the two trucks (Tr. 17, 21).
purpose of the arrow boards is to keep other drivers out of the closed work
zone (Tr. 27). Solomon’s company owns the trucks, arrows, and signs used
during the roadwork (Tr. 33).
Henry testified that he was foreman on the tape crew for Park-Mark,
Inc. on the day of the accident (Tr. 39). Henry and three other crew
members were working on Highway 65, and were using two vehicles (Tr.
39-40). Both vehicles had flashing arrows informing drivers not to enter
the work zone (Tr. 40). They also had four sets of signs on each end of the
work zone, and tall cones on each side of the trucks (Tr. 40, 47). The first
work sign said “Road Construction Ahead,” and the second sign, which
was 50-75 feet away, said, “Center Lane Closed” (Tr. 41).
Henry testified that the only reason he drove the truck was because
one of his co-workers had moved it on top of the area where they needed
to paint an arrow, so Henry moved the truck back 10 to 15 feet to get it out
of the way; he never drove out of the closed, center turn lane (Tr. 41, 45).
While he was moving the truck, there was a flashing arrow on it warning
drivers not to enter the closed work zone (Tr. 42). Apparently, however,
another vehicle entered the center turn lane while he was backing up the
truck, and they collided (Tr. 42, 48, 50).
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directional arrow boards mounted on them for traffic control (Tr. 26). The
acquittal was overruled (Tr. 51; LF 13-14, 16). Henry argued that he was
not driving on a “highway” because he had only driven in a closed work
zone; it was not open to the public (Tr. 51). Judge Koffman held that a
closed construction zone fell under the definition of “highway” and thus
found Henry guilty (Tr. 65-67; LF 15-16).
In a Motion to Reconsider Judgment of the Court and for Judgment
of Acquittal, Henry again argued that a closed work zone such as the one
he was operating the work vehicle in did not meet the definition of
“highway” under § 302.010 ( “any public thoroughfare for vehicles ..), in
that a closed work zone is not a public thoroughfare (LF 17-18). This issue
is preserved for appeal. Rule 29.11(e).
Standard of Review
The due process clause protects a defendant against conviction
except upon proof beyond a reasonable doubt of every fact necessary to
constitute the crime with which he is charged. In re Winship, 397 U.S. 358,
364 (1970). The state is held to proof of the elements of the offense it
charged. State v. Keeler, 856 S.W.2d 928, 931 (Mo. App. S.D. 1993).
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At the close of all the evidence, Henry’s motion for judgment of
accepts as true all evidence and its inferences in a light most favorable to
the verdict. State v. Botts, 151 S.W.3d 372, 375 (Mo. App. W.D. 2004). The
Court disregards contrary inferences unless they are such a natural and
logical extension of the evidence that a reasonable juror would be unable
to disregard them. State v. Grim, 854 S.W.2d 403, 411 (Mo. banc 1993).
This Court may not supply missing evidence or give the State the benefit
of unreasonable, speculative, or forced inferences. State v. Whalen, 49
S.W.3d 181, 184 (Mo. banc 2001).
This same standard of review applies when this Court reviews a
motion for a judgment of acquittal. Botts, 151 S.W.3d at 375. In a courttried case, the sufficiency of the evidence is determined by the same
standard as in a jury-tried case. State v. Johnson, 81 S.W.3d 212 (Mo. App.
S.D. 2002).
A closed work zone is not a public thoroughfare.
§ 302.321 provides, in pertinent part, that a person commits the
crime of driving while revoked if he operates a motor vehicle on “a
highway” when his license or driving privilege has been revoked under the
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In reviewing a challenge to sufficiency of the evidence, this Court
knowledge of the fact that his driving privilege has been revoked.
§ 302.010(6) defines “highway” as, “any public thoroughfare for
vehicles, including state roads, county roads and public streets, avenues,
boulevards, parkways, or alleys in any municipality” (emphasis added).
If Henry was not driving on a “highway” (a “public thoroughfare”),
then he was not guilty of driving while revoked, and his conviction must
be vacated. State v. Thenhaus, 117 S.W.3d 702, 704 (Mo. App. E. D. 2003)
(state did not prove that the road was “public”).
When Henry was backing up the work truck just a few feet, he was
working with a construction crew that was painting the turn arrows in the
center lane, which was closed to traffic (Tr. 16, 24, 42). The truck that
Henry moved was at one end of the work zone, and another one was at the
other end about 100 yards away (Tr. 17, 21). Crew members were on foot
between the two trucks painting in the center turn lane (Tr. 17, 21). The
trucks displayed activated, flashing, lighted arrow boards directing traffic
to go around them and to not enter the closed work zone (Tr. 17, 18, 21, 27,
40, 42). There were orange signs on the right shoulder stating something
like “Work Zone” or “Road Work Ahead” (Tr. 19, 22). Henry testified
there were also four sets of signs on each end of the work zone, as well as
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laws of this state, and acts with criminal negligence with respect to
“Road Construction Ahead,” and the second sign, which was 50-75 feet
away, said, “Center Lane Closed” (Tr. 41).
Before the road crew starts work on a road, traffic control plans have
to be approved by the Missouri Department of Transportation because the
road has to essentially stop being a road in that particular area (Tr. 31).
The State has to sanction any kind of road closing before any road work
begins (Tr. 32).
The trial court held that a closed construction zone fell under the
definition of “highway” (Tr. 65-67). Judge Koffman conceded that it was a
“close case on the law,” but believed that he was bound by the Missouri
Supreme Court opinion in State v. Seeler, 316 S.W.3d 920 (Mo. banc 2010),
which held that a closed construction zone would still be part of a
highway, as defined in § 301.010, which uses the same definition for
highway as in § 302.010 (Tr. 66).
Seeler was an involuntary manslaughter case involving the
amendment of an information after evidence was presented, and the
amendment changed the charge from alleging that the defendant had
driven in a closed construction zone (and thereby left the highway’s rightof-way), to an allegation that the defendant drove into a lane closed to
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tall cones on each side of the trucks (Tr. 40, 47). The first work sign said,
defendant was prejudiced by this change because his defense was that the
center lane was part of the highway’s right-of-way, which would no longer
be a defense after the amendment. Id.
Thus, while the Seeler opinion did state, “[t]he closed construction
zone still would be part of the highway as defined in section 301.01,” that
partial sentence of the opinion was not essential to the court’s decision of
the issue before it, and thus was obiter dictum. 316 S.W.3d at 926; Campbell
v. Labor and Indus. Relations Com'n, 907 S.W.2d 246, 251 (Mo. App. W.D.
1995). Accordingly, the statement that “[t]he closed construction zone still
would be part of the highway,” was not controlling on the trial court and
is not controlling on this Court since it would be “unfair as well as
improper” to give permanent and controlling effect to “casual statements
outside the scope of the real inquiry.” Id.
Henry cannot find any cases interpreting whether a closed
construction zone is a “public thoroughfare,” but common sense would
indicate otherwise. As noted above, Henry is only guilty if he was driving
on a “highway,” § 302.321, which is further defined as a “public
thoroughfare,” § 302.010.
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traffic. Seeler, 316 S.W.3d at 926-927. The claim on appeal was that the
151 S.W3d 70, 76 (Mo. App. E.D. 2004). A “thoroughfare” is a “place or
way through which there is passing or travel. It becomes a ‘public
thoroughfare’ when the public have a general right of passage.” Morris v.
Blunt et al, 49 Utah 243, 161 P. 1127, 1131 (1916).
Here, the closed construction zone was not intended to be open to
the public. The signs and arrows specifically told the public not to drive
on the center lane and directed them around it. It was no longer open to
the public for right of use. The fact that workers were on foot in that area
of the road is further evidence that the lane was not open for vehicle
traffic. A closed work zone is not a “public thoroughfare” because the
public does not have a right of passage on it. Cf., § 227.250 (the State
Highway “commission shall have the power to close temporarily for the
purpose of construction or repair any portion of a state highway to public
use ….”). Because where Henry backed up the work truck was within the
closed work zone where he was working, he was not guilty of driving on a
“public thoroughfare,” and thus was not guilty of driving on a public
highway.
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The word “public” describes use, not ownership. Covert v. Fisher,
driving while revoked must be reversed, and his judgment vacated.
Thenhaus, 117 S.W.3d at 704.
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A closed work zone is not a “highway;” Henry’s conviction for
The evidence at trial was insufficient to convict Henry of driving
while revoked because he was only driving a few feet to move a work
vehicle in a closed work zone, and thus he was not driving on a public
thoroughfare. Henry’s conviction for driving while revoked must be
reversed, and his judgment vacated. Thenhaus, 117 S.W.3d at 704.
Respectfully submitted,
/s/ Margaret M. Johnston
_________________________________
Margaret M. Johnston, MOBar #45913
Attorney for Appellant
Office of State Public Defender
Woodrail Centre
1000 West Nifong
Building 7, Suite 100
Columbia, MO 65203
(573) 882-9855
FAX (573) 882-9468
maggie.johnston@mspd.mo.gov
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Electronically Filed - WESTERN DISTRICT CT OF APPEALS - November 04, 2013 - 03:24 PM GMT+00:00
CONCLUSION
I, Margaret M. Johnston, hereby certify to the following. The
attached brief complies with the limitations contained in Rule 84.06(b) and
Special Rule XLI. The brief was completed using Microsoft Word, Office
2010, in Book Antiqua size 13 point font, which is no smaller than Times
New Roman size 13 point font. Excluding the cover page, the signature
block, this certificate of compliance and service, and appendix, the brief
contains 4,503 words, which does not exceed the 15,500 words allowed for
an appellant’s brief.
On this 4th day of November, 2013, copies of Appellant’s Brief and
Appellant’s Brief Appendix were delivered through the Missouri e-Filing
System to Shaun Mackelprang, Assistant Attorney General, at
Shaun.Mackelprang@ago.mo.gov.
/s/ Margaret M. Johnston
_________________________________
Margaret M. Johnston
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Electronically Filed - WESTERN DISTRICT CT OF APPEALS - November 04, 2013 - 03:24 PM GMT+00:00
CERTIFICATE OF COMPLIANCE AND SERVICE