finding “State’s Exhibit 2 contained all of the information that would be entered into a MULES record concerning Defendant’s municipal conviction for driving while intoxicated. Simply put, the content of Springfield City Ordinance 106–205 would not be a part of that record,” and concluding, “If Defendant believed ordinance 106–205 did not actually proscribe the act of driving while intoxicated in congruity with the then-existing requirements of section 577.010, it was incumbent on him to introduce evidence to that effect”
How later courts described this case
- finding “State’s Exhibit 2 contained all of the information that would be entered into a MULES record concerning Defendant’s municipal conviction for driving while intoxicated. Simply put, the content of Springfield City Ordinance 106–205 would not be a part of that record,” and concluding, “If Defendant believed ordinance 106–205 did not actually proscribe the act of driving while intoxicated in congruity with the then-existing requirements of section 577.010, it was incumbent on him to introduce evidence to that effect”
- finding § 577.023 “demonstrates clear legislative intent to establish the minimum evidentiary burden” to establish predicate offenses for an enhanced conviction
- “In our view, [§] 577.023.14 [RSMo 2000] demonstrates clear legislative intent to establish the minimum evidentiary burden which must be met by the State in order to make a 'prima facie showing that a prior conviction qualifies as a predicate offense for purposes of enhanced punishment.”
- “In our view, section 577.023.149 demonstrates clear legislative intent to establish the minimum evidentiary burden which must be met by the State in order to make a prima facie showing that a prior conviction qualifies as a predicate offense for purposes of enhanced punishment.”
Written by the judges who cited it.
The opinion
JOHN E. PARRISH, Presiding Judge,
dissenting.
I respectfully dissent. In order for Zachary Miller (defendant) to be guilty of driving while intoxicated as a persistent offender, the state had to plead and prove he had two prior intoxication-related driving offenses. Defendant argues on appeal that the state failed to prove one of the two prior offenses it alleged defendant committed. I agree with defendant’s argument that the state did not prove one of the prior offenses.
One of the two prior offenses was a municipal ordinance violation from the City of Springfield, Missouri. However, the state presented no evidence of the content of the municipal ordinance in question. Without the ordinance having been put in. evidence, the trial court was left to speculate as to what conduct defendant committed with respect to the municipal ordinance violation. Without the ordinance having been in evidence, there was no showing that the municipal ordinance violation defendant committed was an intoxication-related driving offense. The only way to determine the content of a municipal ordinance is for it to be placed in evidence or for the parties to have stipulated as to its elements. As Rice v. *341 James, 844 S.W.2d 64 (Mo.App.1992), explains:
As a general rule a court may not take judicial notice of the existence or contents of ordinances. Consumer Contact Company v. State, Dept. of Revenue, 592 S.W.2d 782, 785 (Mo.banc 1980). Rather, the trial court may recognize an ordinance only if it is admitted into evidence or stipulated to by the parties. Queen of Diamonds, Inc. v. Quinn, 569 S.W.2d 317, 319 (Mo.App.1978).
Id. at 68. See also University City v. MAJ Investment Corp., 884 S.W.2d 306, 307 (Mo.App.1994). This did not occur.
The principal opinion suggests this shortcoming is overcome by the language of the citation that was issued to defendant. I disagree. It is the ordinance that establishes the elements of the offense for which defendant was previously convicted. The language of the citation is a non se-quitur other than for the purpose of comparing its language at the trial for the municipal ordinance violation with the language of the ordinance in order to ascertain that the elements of the municipal offense have been correctly charged.
The principal opinion further suggests that because a conviction could be proven by a record maintained in MULES, and the same information that would have been submitted to MULES was available from the citation, the citation was sufficient to prove the municipal violation. The fallacy of this is that no MULES record was used to prove the municipal violation in question. The trial court was provided no proof that a MULES record existed.
The state failed to prove defendant was a persistent offender. I would reverse the conviction and remand the case to the trial court to permit the state the opportunity to prove the municipal conviction on which it relied was an intoxication-related driving offense and, if the state meets that burden, to sentence defendant as a persistent offender. If the state cannot meet its burden, defendant should be sentenced as a prior offender.