Missouri Court of Appeals
                                              Southern District
                                                  Division Two


STATE OF MISSOURI,                                            )
                                                              )
           Plaintiff-Respondent,                              )
                                                              )
vs.                                                           )       No. SD34083
                                                              )
SHEENA DARLENE CORDELL,                                       )       Filed November 1, 2016
                                                              )
           Defendant-Appellant.                               )

                   APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY

                                         Honorable Calvin R. Holden

AFFIRMED

           A jury found Sheena Darlene Cordell (“Defendant”) guilty of driving on September 20,

2012, while intoxicated. See section 577.010. 1 The trial court sentenced her to four years’

imprisonment in the Department of Corrections. The trial court suspended execution of that

sentence and placed Defendant on probation for five years. Defendant timely appeals.

           Before trial, the State offered Defendant’s “Missouri Driver Record” certified by the

Missouri Department of Revenue (“DOR”) showing Defendant’s “current Driver History

Information recorded with the [DOR] as of December 4, 2013[,]” as evidence of her previous

intoxication-related traffic offenses (“IRTO”) and the basis for sentencing Defendant as an



1
    References to section 577.010 are to RSMo Cum.Supp. 2010, unless otherwise noted.

                                                         1
aggravated offender. Her driver record shows, as pertinent here:




       ***




The trial court admitted Defendant’s driver record over Defendant’s objections and found that

Defendant was an “aggravated offender.”

       Defendant’s sole point relied on does not challenge the admission of her driver record,

but rather asserts that the trial court erred in finding she was an aggravated offender because “the

State failed to produce sufficient evidence . . . that the acts underlying the two municipal

convictions were acts specifically prohibited under Missouri’s driving while intoxicated statutes,

§§ 577.001 and 577.010[.]”

                                           Standard of Review

       “It is the State’s burden to prove prior [IRTOs] beyond a reasonable doubt.” State v.

Craig, 287 S.W.3d 676, 681 (Mo. banc 2009). The standard of review for this court-tried issue

is the same as in a jury-tried case. Id.

                                                   2
                    In reviewing a claim that there was not sufficient evidence to sustain a
           criminal conviction, this Court does not weigh the evidence but, rather, accepts as
           true all evidence tending to prove guilt together with all reasonable inferences that
           support the verdict, and ignores all contrary evidence and inferences. This Court
           asks only whether there was sufficient evidence from which the trier of fact
           reasonably could have found the defendant guilty.

State v. Claycomb, 470 S.W.3d 358, 362 (Mo. banc 2015) (internal quotation marks and citations

omitted). The State may prove its case by presenting direct or circumstantial evidence. State v.

Plopper, 489 S.W.3d 848, 849–50 (Mo.App. 2016). Upon appellate review, circumstantial

evidence is given the same weight as direct evidence and the fact finder may make reasonable

inferences from the evidence presented. Id. at 850.

                                                   Discussion

           Driving while intoxicated in violation of section 577.010 is punishable for a first offense

as a class B misdemeanor. Section 577.010.2. If the offender is an aggravated offender,

however, it is punishable as a class C felony. Section 577.023.4. 2 “An ‘aggravated offender’ is

a person who [h]as pleaded guilty to or been found guilty of three or more” IRTOs. Section

577.023.1(1)(a).

           As pertinent here, section 577.023.1(4) defines an IRTO as, “driving while intoxicated[.]”

In determining whether a previous offense qualifies as an IRTO it must involve conduct sought

to be deterred at the time of the present offense. State v. Gibson, 122 S.W.3d 121, 129 (Mo.App.

2003). As of the date of Defendant’s current charge for driving while intoxicated, “[a] person

commits the crime of ‘driving while intoxicated’ if he operates a motor vehicle while in an

intoxicated or drugged condition.” Section 577.010.1. “Operates” means “physically driving or

operating a motor vehicle.” Section 577.001.2. 3



2
    References to section 577.023 are to RSMo Cum.Supp. 2012, unless otherwise noted.
3
    References to section 577.001 are to RSMo Cum.Supp. 2005, unless otherwise noted.

                                                         3
        Based on the above and because the only evidence in the record supporting any prior

offenses is Defendant’s DOR-certified driver record, the issue presented by Defendant in this

appeal is whether that driver record showing Defendant’s two prior municipal “Court

Convictions” for “DRIVING WHILE INTOXICATED” is sufficient evidence from which the

trial court reasonably could have found the existence of those convictions and that the conduct

giving rise to those convictions was for physically driving or operating a motor vehicle while in

an intoxicated or drugged condition, see sections 577.010.1 and 577.001.2. We hold that it is

sufficient.

        First, previous cases have found such records are sufficient circumstantial evidence to

support a finding of the existence of an IRTO for driving while intoxicated. State v. Collins, 328
S.W.3d 705, 708 n.4 (Mo. banc 2011) (certified DOR driver record, which plainly listed prior

convictions for driving while intoxicated, establishes that defendant pleaded guilty to or was

found guilty of those offenses); State v. Mitchell, 403 S.W.3d 614, 615 (Mo.App. 2012) (DOR’s

driver record, listing four DWI convictions, supports chronic offender status); State v. Thomas,

969 S.W.2d 354, 357 (Mo.App. 1998) (DOR records of two municipal convictions for driving

while intoxicated supported finding of two IRTOs for driving while intoxicated).

        Second, “[p]rior to 2010, Section 577.023.16 did not mention Missouri Department of

Revenue certified driver records. However, in 2010, the legislature amended the subsection to

include the certified driver records of the Department of Revenue to prove evidence of prior

conviction.” State v. Rattles, 450 S.W.3d 470, 472-73 (Mo.App. 2014) (citations omitted) (DOR

driver record showed three prior convictions for “DRIVING WHILE INTOXICATED”). The

statute now states: “Evidence of a prior conviction . . . in an intoxication-related traffic offense

. . . shall include but not be limited to . . . the certified driving record maintained by the Missouri



                                                   4
department of revenue.” Section 577.023.16 (emphasis added). “[B]y adding the Missouri

Department of Revenue certified driving records to the documents listed in the statute, the

legislature has specifically indicated Missouri Department of Revenue certified driving records

contain all the information necessary to prove the existence of a prior conviction for purposes of

sentence enhancement.” Rattles, 450 S.W.3d at 474. 4

         Finally, we turn to Defendant’s argument that her DOR-certified driver record is not

sufficient because it does not exclude the possibilities that, (1) in addition to criminalizing

driving or operating a motor vehicle while in an intoxicated condition, the driving-while-

intoxicated ordinance underlying either or both municipal convictions at that time might have

criminalized other conduct, such as being in actual physical control of a vehicle while

intoxicated, and (2) it was for this other conduct that she was convicted. This argument

miscomprehends the nature of the State’s burden of proof and the use of circumstantial evidence

to satisfy that burden.

         The State is required to produce sufficient evidence from which the fact finder can at

least reasonably infer the existence of a particular fact necessary for conviction. Claycomb, 470
S.W.3d at 362. A reasonable inference is by definition based upon circumstantial evidence,

which the State may rely upon to make its prima facie case. Plopper, 489 S.W.3d at 849–50.

Circumstantial evidence is not required to be “irreconcilable with the innocence of the accused”

or “inconsistent with any reasonable theory of [defendant’s] innocence.” State v. Grim, 854
S.W.2d 403, 405-407 (Mo. banc 1993) (circumstantial evidence rule, as articulated and partially


4
 Defendant contends that Rattles does not control this case because in Rattles, this court “rejected a claim that the
State’s exhibits were insufficient to prove Rattles’ status as an aggravated offender because they showed the
convictions occurred on the same date as the offenses” and “that is not the claim made on this appeal[.]” Although
Rattles may have involved a separate claim of error concerning the certified driver record, the court’s holding that
section 577.023.16 is statutory authorization for the trial court to find that there is sufficient evidence of prior
offenses is still controlling in this case. The State’s brief sets forth this view of the holding in Rattles, and
Defendant chose not to file a reply brief arguing otherwise.

                                                          5
quoted here, rejected as a standard for reviewing the sufficiency of the evidence); State v.

Mitchell, 442 S.W.3d 923, 930 (Mo.App. S.D. 2014) (circumstantial evidence need not be

absolutely conclusive of guilt, nor demonstrate the impossibility of innocence); State v.

Rinehart, 383 S.W.3d 95, 103 (Mo.App. W.D. 2012) (circumstantial evidence need not be

conclusive of guilt, nor must it exclude every hypothesis of innocence); State v. Mosby, 341
S.W.3d 154, 156 (Mo.App. E.D. 2011) (circumstantial evidence need not be absolutely

conclusive of guilt, nor must the evidence demonstrate the impossibility of innocence). 5

         The circumstantial evidence before the trial court here is Defendant’s DOR driver record

that shows, according to DOR records, Defendant has three prior “Court Convictions” for

“DRIVING WHILE INTOXICATED.” This evidence supports an inference by the trial court

that Defendant had three such convictions by the respective identified courts and that

Defendant’s conduct giving rise to those “DRIVING WHILE INTOXICATED” convictions

comported with physically driving a motor vehicle while in an intoxicated condition, as set forth

and defined in sections 577.010.1 and 577.001.2, respectively, and thereby met the definitional

requirement of an IRTO under section 577.023.1(4) for “driving while intoxicated.” Drawing

such an inference was reasonable. See Collins, 328 S.W.3d at 708; Rattles, 450 S.W.3d at 474;

Mitchell, 403 S.W.3d 615; Thomas, 969 S.W.2d at 357; section 577.023.16. Stated another

way, we cannot say here that it was unreasonable for the trial court to infer that a conviction for

“driving while intoxicated” was a conviction for driving while intoxicated. 6




5
  The cases cited in this paragraph addressed our standard of review for sufficiency of the evidence in the context of
the factual basis supporting a finding of guilt, rather than in the context of the factual basis supporting enhanced
punishment. We see no legal basis or logical reason, however, to conclude that this standard is not identical in both
contexts, and Defendant cites us to no relevant legal authority otherwise.
6
  “This does not mean driving records are conclusive, irrefutable, or adequate in all cases.” Mitchell, 403 S.W.3d at
615.

                                                          6
       Defendant’s reliance upon State v. Gibson, 122 S.W.3d 121 (Mo.App. 2003) and State v.

Coday, No. WD77619, 2016 WL 1579254 (Mo.App. Apr. 19, 2016), to argue otherwise is

misplaced. Each is distinguishable, primarily because neither considered the sufficiency of a

certified DOR “Missouri Driver Record” showing a prior conviction in Missouri for “driving

while intoxicated.”

                                            Decision

       Defendant’s point is denied and the trial court’s judgment of conviction is affirmed.



GARY W. LYNCH, P.J. – OPINION AUTHOR

NANCY STEFFEN RAHMEYER, J. – concurs

DANIEL E. SCOTT, J. – concurs




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