IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICT. STATE OF MISSOURI, ) ) Respondent, ) ) vs. ) No. WD ) HENRY L. SUTTON, ) ) Appellant.

Transcription

1 IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICT STATE OF MISSOURI, ) ) Respondent, ) ) vs. ) No. WD ) HENRY L. SUTTON, ) ) Appellant. ) APPEAL TO THE MISSOURI COURT OF APPEALS WESTERN DISTRICT FROM THE CIRCUIT COURT OF PETTIS COUNTY, MISSOURI 18 TH 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 Telephone (573) FAX (573) maggie.johnston@mspd.mo.gov

2 INDEX Page TABLE OF AUTHORITIES... 2 JURISDICTIONAL STATEMENT... 4 STATEMENT OF FACTS... 5 POINT RELIED ON ARGUMENT CONCLUSION APPENDIX 1

3 TABLE OF AUTHORITIES 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) State v. Botts, 151 S.W.3d 372 (Mo. App. W.D. 2004) State v. Grim, 854 S.W.2d 403 (Mo. banc 1993) State v. Whalen, 49 S.W.3d 181 (Mo. banc 2001) State v. Johnson, 81 S.W.3d 212 (Mo. App. S.D. 2002) 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, Campbell v. Labor and Indus. Relations Com'n, 907 S.W.2d 246 (Mo. App. W.D. 1995) Covert v. Fisher, 151 S.W3d 70 (Mo. App. E.D. 2004)... 11, 24 Morris v. Blunt et al, 49 Utah 243, 161 P (1916) CONSTITUTIONAL PROVISIONS: United States Constitution, Amendment , 13 Missouri Constitution, Article I,

4 STATUTES: , RSMo , (19), RSMo Supp , (6), RSMo Supp passim , RSMo Supp passim , RSMo RULES: Missouri Supreme Court Rule (2013)... 12, 19 3

5 JURISDICTIONAL STATEMENT Appellant Henry L. Sutton appeals his conviction for the class D felony of driving while revoked, , 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 $ 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); All statutory references are to RSMo Supp. 2010, unless otherwise indicated. 4

6 STATEMENT OF FACTS Appellant Henry L. Sutton was charged by first amended information with the class D felony of driving while revoked, (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 ). 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 ). Ms. Cisneros was the driver 2 All statutory references are to RSMo Supp. 2010, unless otherwise indicated. 5

7 of the Jeep, and Henry was the driver of the Isuzu (Tr ). Neither 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). 6

8 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). Cpl. Keim checked on Henry s driving privileges and issued him a citation for driving while revoked (Tr ). 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 7

9 drivers out of the closed work zone (Tr. 27). Solomon s company owns the 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 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 ). 8

10 needed to install, 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). 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 ; 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 ( 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). 9

11 The motion was overruled, and on March 26, 2013, Henry was sentenced by the court to a $ fine (LF 22-23; Tr. 71). Notice of appeal was timely filed, and this appeal follows (LF 24-26). 10

12 POINT RELIED ON 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, , and in entering judgment and sentence for that offense, because this violated Henry s right to due process of law guaranteed by the 14 th Amendment to the United States Constitution and Article I, 10 of the Missouri Constitution, in that 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; 11

13 Mo. Const., Art. I, 10; , , and ; and Rule

14 ARGUMENT 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, , and in entering judgment and sentence for that offense, because this violated Henry s right to due process of law guaranteed by the 14 th Amendment to the United States Constitution and Article I, 10 of the Missouri Constitution, in that 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 , 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 13

15 with respect to knowledge of the fact that his driving privilege has been revoked (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. 14

16 Henry testified that the only reason he drove the truck in the 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, , RSMo Supp (LF 11-12). He was convicted after a bench trial before the Honorable Robert L. Koffman (Tr ; LF 15-16). 15

17 Cpl. Eric Keim of the Missouri State Highway Patrol was dispatched to a motor vehicle accident on Highway 65 (Tr ). 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 ). 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). 16

18 foot in the center turn lane painting between the two trucks (Tr. 17, 21). 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 17

19 directional arrow boards mounted on them for traffic control (Tr. 26). The 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 ). 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 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). 18

20 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 ; 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 ( 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). 19

21 In reviewing a challenge to sufficiency of the evidence, this Court 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 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 20

22 laws of this state, and acts with criminal negligence with respect to knowledge of the fact that his driving privilege has been revoked (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 21

23 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 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 ). 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 , which uses the same definition for highway as in (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 22

24 traffic. Seeler, 316 S.W.3d at The claim on appeal was that the 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 , 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, , which is further defined as a public thoroughfare,

25 The word public describes use, not ownership. Covert v. Fisher, 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., (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. 24

26 A closed work zone is not a highway; Henry s conviction for driving while revoked must be reversed, and his judgment vacated. Thenhaus, 117 S.W.3d at

27 CONCLUSION 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 (573) FAX (573) maggie.johnston@mspd.mo.gov 26

28 CERTIFICATE OF COMPLIANCE AND SERVICE 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 4 th 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 27