In the
Missouri Court of Appeals
Western District
_________________________________
STATE OF MISSOURI,
Respondent,
v.
HENRY SUTTON,
Appellant.
________________________________
Appeal from the Circuit Court of Pettis County
Eighteenth Judicial Circuit
The Honorable Robert L. Koffman, Judge
_________________________________
RESPONDENT’S BRIEF
_________________________________
CHRIS KOSTER
Attorney General
RICHARD A. STARNES
Assistant Attorney General
Missouri Bar No. 48122
P.O. Box 899
Jefferson City, MO 65102
Phone: (573) 751-3321
Fax: (573) 751-5391
richard.starnes@ago.mo.gov
ATTORNEYS FOR RESPONDENT
STATE OF MISSOURI
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No. WD76304
TABLE OF AUTHORITIES .................................................................................2
STATEMENT OF FACTS ....................................................................................3
ARGUMENT .........................................................................................................6
CONCLUSION ................................................................................................... 14
CERTIFICATE OF COMPLIANCE AND SERVICE ...................................... 15
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INDEX
Cases
State v. Chaney, 967 S.W.2d 47, 52 (Mo. banc 1998) ................................ 6-7, 13
State v. Seeler, 316 S.W.3d 920 (Mo. banc 2010)......................................... 11-12
Brooks v. City of Sugar Creek, 340 S.W.3d 201 (Mo. App., W.D. 2011) .......... 11
Covert v. Fisher, 151 S.W.3d 70 (Mo. App., E.D. 2004) ......................................8
K.H. v. State, 403 S.W.3d 720 (Mo. App., W.D. 2013)...................................... 10
State v. Ison, 270 S.W.3d 444 (Mo. App., W.D. 2008) ...................................... 11
State v. Potter, 72 S.W.3d 307, 312 (Mo. App., S.D. 2002)............................... 13
Morris v. Blunt et al, 161 P. 1127 (Utah 1916) ............................................... 8-9
Other Authorities
§ 227.250, RSMo 2000 ..........................................................................................9
§ 301.010, RSMo Cum. Supp. 2007 ................................................................... 10
§ 302.010, RSMo Cum. Supp. 2009 ............................................................... 7, 10
§ 302.010, RSMo Cum. Supp. 2012 ......................................................................7
§ 302.321, RSMo Cum. Supp. 2005 ......................................................................7
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TABLE OF AUTHORITIES
Appellant, Henry Sutton, was charged in the Circuit Court of Pettis
County as a prior and persistent offender with the class D felony of driving
while revoked (L.F. 11-12). This cause was tried by the court on January 24,
2013, the Honorable Robert L. Koffman presiding (L.F. 3).
The sufficiency of the evidence is at issue in this appeal. Viewed in the
light most favorable to the verdict, the following evidence was adduced:
Shortly after 10:00 a.m. on July 16, 2011, Missouri State Highway Patrol
Corporal Eric Keim was dispatched to the scene of a motor vehicle accident
on Highway 65 on the southern edge of Sedalia (Tr. 13-14). When he arrived,
he saw a small Jeep SUV parked in the center lane about 20 feet behind an
Isuzu flatbed truck in the same lane (Tr. 14). Both vehicles were facing south
(Tr. 14). The Jeep had front end damage; there was no visible damage to the
truck (Tr. 14-15).
Corporal Keim identified appellant as the driver of the flatbed truck
(Tr. 15). Appellant told the corporal that he was working with a road
construction crew that was painting turn arrows in the center lane (Tr. 16).
He said that the lane was closed to traffic (Tr. 16). Appellant admitted that
he was backing the truck up heading north when the Jeep pulled into the
center lane (Tr. 16). The Jeep stopped so close to the truck that appellant
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STATEMENT OF FACTS
the Jeep (Tr. 16).
Corporal Keim saw that the work crew had two trucks on either end of
the work site with signs with arrows directing traffic around the trucks (Tr.
17). There were no physical barricades blocking access to the center lane or
orange cones marking off the area as a work zone (Tr. 18). There were
warning signs designating the area as a work area, but nothing designating
the center lane as “closed” (Tr. 19). The painting crew was continually moving
as it worked (Tr. 18). The trucks were not Missouri Department of
Transportation trucks and therefore not marked as such, but belonged to a
private St. Louis company (Tr. 19).
Appellant’s license was revoked at the time of the accident under a tenyear denial which was not eligible for reinstatement until 2018 (Tr. 17-18,
22). Appellant was cited for driving while revoked (Tr. 17-18).
Appellant testified in his own defense, as well as calling the owner of
the company who was doing the road work at the time of the accident, to
support a defense that the portion of Highway 65 appellant was driving in
was not a “public highway” at the time work was being done in it (Tr. 24-50).
While the owner testified that the Department of Transportation has to
approve any plan for installing traffic control markings prior to the work and
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could not see the Jeep in his rear view mirrors, and therefore he backed into
not testify that the State had actually closed the center lane for the work
being done (Tr. 31-32). Appellant admitted that he was operating the truck,
that there was no other truck behind him, and that he knew his driving
privilege was revoked at the time (Tr. 41-42, 46-47). But he claimed that the
center lane was closed, that there was a sign stating that up at the scene, and
that there were cones set behind the truck (Tr. 40-41, 50).
Appellant was found guilty as charged (L.F. 15-16). The court imposed
a $500 fine (L.F. 22-23). This appeal followed.
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therefore “has to sanction any kind of road closings to do road work,” he did
The trial court did not err in denying appellant’s motion for
judgment of acquittal at the close of all of the evidence because there
was sufficient evidence that appellant was driving while revoked in
that the evidence showed that appellant was operating a motor
vehicle on a “highway” while his driving privilege was revoked.
Appellant claims that there was insufficient evidence to support his
conviction for driving while revoked, arguing that the evidence showed that
he only drove in a closed road work zone portion of the highway, which he
contends does not satisfy the statutory requirement that he drive on a
“highway” (App. Br. 13-24). But both the law and facts showed that appellant
was driving on a highway, and therefore there was sufficient evidence to
support his conviction.
In examining the sufficiency of the evidence, appellate review is limited
to a determination of whether there is sufficient evidence from which a
reasonable trier of fact might have found a defendant guilty beyond a
reasonable doubt. State v. Chaney, 967 S.W.2d 47, 52 (Mo. banc 1998). The
appellate court does not act as a “super juror” with veto powers, but gives
great deference to the trier of fact.
Id.
In applying the standard, the
appellate court accepts as true all of the evidence favorable to the state,
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ARGUMENT
evidence and inferences to the contrary. Id.
Appellant’s entire claim rests on his assertion that he was not guilty of
driving while revoked because he was driving in a “closed construction zone,”
which was not accessible to the public while closed and thus no longer a
“highway” under the driving while revoked statute (App. Br. 13-25). But
appellant’s claim is wrong under both the law (as a construction zone on a
highway is still a “highway”) and the facts (appellant was not driving in a
“closed construction zone” but on the publicly accessible highway). A person
commits the crime of driving while revoked if that person operates a motor
vehicle on a “highway” while his license or driving privilege has been
cancelled, suspended, or revoked and acts with criminal negligence with
respect to knowledge of the fact that his driving privilege has been cancelled,
suspended, or revoked. § 302.321.1, RSMo Cum. Supp. 2005. A “highway” is
“any public thoroughfare for vehicles, including state roads, county roads and
public
streets,
avenues,
boulevards,
parkways,
or
alleys
in
any
municipality[.]” § 302.010(6), RSMo Cum. Supp. 2009.1 The word “highway”
1The
definition is § 302.010(7) of the current version of the statute.
§ 302.010(7), RSMo Cum. Supp. 2012.
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including all favorable inferences drawn from the evidence, and disregards all
travel[.]” Covert v. Fisher, 151 S.W.3d 70, 77 (Mo. App., E.D. 2004).
There is no question that the street appellant was driving on when he
struck the other vehicle, Highway 65, is generally a “highway” under the
statute (Tr. 14). But under appellant’s reasoning, the highway ceased to be a
highway while the work crew appellant belonged to was working on the turn
lane markings because it was not open to the public (App. Br. 24). Even
assuming this section of the highway was a “closed construction zone,” there
is no authority for appellant’s conclusion that a highway ceases to be a
highway while the public is temporarily prevented from accessing a portion of
it due to road construction. The two authorities appellant suggests support
his interpretation of the statute—the Utah case of Morris v. Blunt et al, 161
P. 1127 (Utah 1916), and § 227.250, authorizing the State Highway
Commission to temporarily close portions of a highway to public use, actually
show that, even when closed, a highway is still a highway.
Morris was an appeal of a suit to quiet title and addressed whether a
portion of private land had become dedicated to use as a public highway.
Morris, 161 P. at 1131. Whether the property in question became a “public
highway” depended on whether it had been used as a “public thoroughfare.”
Id. The Utah Supreme Court stated that property is a “public thoroughfare”
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has “consistently been interpreted to apply to any street used for public
this case, the public had a general right of passage to the portion of Highway
65 at issue in this case; the portion was the left hand turn lane in the middle
of the highway. While that general right of passage may have been limited in
places at the specific time at issue due to road work, it did not change the
character of the highway as one where the public had a general right of
passage. Thus, under the definition of “highway” appellant relies on in
Morris, appellant was driving on a highway.
Likewise, the statute about road closings appellant relies on also
supports a conclusion that a closed portion of a highway is still a highway.
That statute, in relevant part, gives the State Highway Commission the
“power to close temporarily for the purpose of construction or repair any
portion of a state highway to public use.” § 227.250, RSMo 2000. The statute
does not indicate that any closed portion of a highway ceases to be considered
a highway. Instead, it continues to identify any closure as a “portion of a
state highway” and suggests that the temporary nature of any closure does
not change the existential nature of the highway. Thus, appellant’s reliance
on this statute does not support his claim that the closed portion of a highway
is not a highway.
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when “the public have a general right of passage.” Id. (emphasis added). In
has concluded that a closed portion of a “highway” under chapter 301 (defined
identically to the definition of “highway” in chapter 302) is still a highway
despite its temporary closure. In State v. Seeler, 316 S.W.3d 920 (Mo. banc
2010), the Court was discussing the meaning of the “highway’s right-of-way”
language in the involuntary manslaughter statute as it related to a closed
highway construction zone. Id. at 924, 926. The court stated, “The closed
construction zone still would be part of the highway as defined in section
301.010, but is it part of the right-of-way, an undefined term in this context?”
Id. at 926. The definition of “highway” in § 301.010 is identical to the
definition in § 302.010 at issue in this case. § 301.010(19), RSMo Cum. Supp.
2007; § 302.010(6), RSMo Cum. Supp. 2009. This Court presumes that all
statutes relating to the same subject matter are read in pari materia and
should be construed together, consistently, and harmoniously. K.H. v. State,
403 S.W.3d 720, 722 (Mo. App., W.D. 2013). Thus, as the Missouri Supreme
Court has deemed the closed portion of a highway to still be a “highway”
under a statute identical to § 302.010(6), that reasoning should apply here.
Appellant argues that Seeler should not be deemed binding in this case
because the Supreme Court’s reasoning was dicta. Statements are nonbinding dicta if they are not essential to the court’s decision of the issue
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Far more persuasive authority comes from our Supreme Court, which
2011). While the court’s interpretation of a “highway” under § 301.010 did not
directly lead to the Court’s finding, it was still an essential part of the
holding. The Court was examining an amendment to the charging document’s
language alleging the leaving of the “highway’s right-of-way” to language
alleging entering a highway construction zone “lane closed to traffic.” Seeler,
316 S.W.3d at 923. It found that removing the “highway’s right-of-way”
language changed the alleged offense so much that it prejudiced the defense,
which was based on the “right-of-way” language. Id. at 926-28. Thus, the
Court’s discussion of what constitutes a highway was relevant to its
discussion of what constituted a highway’s right-of-way. Therefore, the
Court’s interpretation of § 301.010 was an essential part of the reasoning
leading to the holding that the amendment prejudiced Seeler. As such, the
Court’s interpretation of the definition of “highway” was not dicta.
Further, even if the Court’s interpretation was dicta, “dicta can be
persuasive when supported by logic.” State v. Ison, 270 S.W.3d 444, 446 (Mo.
App., W.D. 2008). The Supreme Court’s interpretation is more logical than
the alternative. The Court’s interpretation is simply that if something is
generally a highway, it remains a highway even during temporary lack of
public access during road work. Appellant’s argument, unsupported by any
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before it. Brooks v. City of Sugar Creek, 340 S.W.3d 201, 212 (Mo. App., W.D.
if a portion is temporarily closed for road construction, even, as in this case, if
the remainder of the highway is still an open highway. While appellant’s
claims that “common sense would indicate” that a “highway” becomes “not a
highway” for the portion of time the public is not temporarily using it, the
opposite is true. One would not say a motor vehicle is not a motor vehicle
because it is sitting in a garage instead of being driven. One would not say
that a handgun is not a handgun when it is not being fired. In the same way,
a highway generally open for public use still exists as a highway even when
not being used as such at a given moment in time. Therefore, because the
logic of the alleged dicta in Seeler is persuasive, this Court should conclude as
the Supreme Court did in Seeler that even the temporarily closed portion of a
highway is still a highway under § 302.010(6).
Finally, even if appellant’s legal claim had any merit, appellant would
still not be entitled to relief, as the evidence showed that appellant was not
driving in a “closed construction zone” at the time of the accident. According
to Corporal Keim, there were no signs indicating that any portion of the road
(including the center lane) was closed to traffic2 (Tr. 19). There were no traffic
2
Appellant claimed in his testimony that there were signs stating
“Center Lane Closed” (Tr. 41). The court was under no obligation to believe
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authority, persuasive or otherwise, is that a highway ceases to be a highway
off the work zone and prevented anyone from entering the lane (Tr. 18). The
work trucks, with arrows pointing traffic around them, were the only
indicators of the boundaries of the work zone (Tr. 45). Because there were no
barriers or other markers closing the lane to traffic other than the work
trucks, at the time the other driver entered the center lane, it was not inside
the only part of the area that could be considered the “work zone”—the area
between the trucks. Thus, when appellant backed the truck into area already
occupied by the other vehicle, appellant was not driving inside the closed area
of highway, but moving the truck into an open area of the highway.
Therefore, under the facts in the light most favorable to the verdict, appellant
was not driving in a work zone, but on the open portion of the highway. As
such, there was sufficient evidence to support appellant’s conviction for
driving while revoked on a highway as defined by § 302.010.
For the foregoing reasons, appellant’s sole point on appeal must fail.
this self-serving testimony which conflicted with Corporal Keim’s testimony
(Tr. 19). State v. Potter, 72 S.W.3d 307, 312 (Mo. App., S.D. 2002)(“The trial
court is free to believe or disbelieve any testimony.”). This Court disregards
all evidence and inferences contrary to the verdict. Chaney, 967 S.W.2d at 52.
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cones or other barriers, other than the work trucks themselves, that marked
In view of the foregoing, appellant’s conviction and sentence should be
affirmed.
Respectfully submitted,
CHRIS KOSTER
Attorney General
/s/ Richard Starnes
RICHARD A. STARNES
Assistant Attorney General
Missouri Bar No. 48122
P. O. Box 899
Jefferson City, MO 65102
(573) 751-3321
Fax (573) 751-5391
Attorneys for Respondent
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CONCLUSION
I hereby certify:
1. That the attached brief complies with the limitations contained in
Supreme Court Rule 84.06 and WD Special Rule XLI, and contains 2,521
words as determined by Microsoft Word 2007 software; and
2. That a copy of this notification was sent through the eFiling system
on this 30th day of January, 2013, to:
Margaret Johnston
Office of the State Public Defender
Woodrail Center, Building 7, Suite 100
1000 West Nifong
Columbia, Missouri 65203
CHRIS KOSTER
Attorney General
/s/ Richard A. Starnes
RICHARD A. STARNES
Assistant Attorney General
Missouri Bar No. 48122
P.O. Box 899
Jefferson City, Missouri 65102
(573) 751-3321
Fax (573) 751-5391
richard.starnes@ago.mo.gov
Attorneys for Respondent
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CERTIFICATE OF COMPLIANCE AND SERVICE