Court of Appeals of Missouri, Western District, Special Division
from the Circuit Court of Clay County, Missouri The Honorable
K. Elizabeth Davis, Judge
Before: Zel M. Fischer, Special Judge, Presiding, and Karen
King Mitchell and Cynthia L. Martin, Judges.
King Mitchell, Judge.
a jury trial, Gary Pylypczuk appeals his conviction of
driving while intoxicated in violation of §
577.010. Pylypczuk argues that the circuit court
improperly admitted evidence of his status as a persistent
intoxication-related traffic offender because the evidence
was not properly authenticated. We agree. Accordingly, we
reverse the sentence imposed by the court and remand for jury
sentencing for the class B misdemeanor of driving while
was charged in the Circuit Court of Clay County, as a
persistent offender, with driving while intoxicated in
violation of § 577.010. A persistent offender is "a
person who has pleaded guilty to or has been found guilty of
two or more intoxication-related offenses." §
577.023.1(5)(a). Generally, driving while intoxicated is a
class B misdemeanor, but if a defendant is found to be a
persistent offender, the offense is enhanced to a class D
felony. §§ 577.010.2, 577.023.3.
trial, the State intended to use two separate pieces of
evidence, Exhibit 2 and Exhibit 3, to show Pylypczuk's
previous offenses. Each exhibit contained only one alleged
prior intoxication-related offense. Therefore, the State
could not prove Pylypczuk's persistent offender status
unless the court admitted both exhibits. Exhibit 3 was
admitted into evidence without objection. Pylypczuk objected,
however, to Exhibit 2, which purported to be a record taken
from the Missouri Uniform Law Enforcement System's
Driving While Intoxicated Tracking System (DWITS). Exhibit 2
was neither certified nor accompanied by any kind of business
record affidavit, and the State offered no witnesses to
testify as to the exhibit's origin or authenticity. The
only indication of the exhibit's origin was the
prosecutor's representation to the court and web
addresses on the face of the exhibit suggesting it was pulled
by the prosecutor's office from a Department of Public
Safety webpage. Pylypczuk argued that Exhibit 2 was
inadmissible because it lacked authentication insofar as
there was no witness testifying to its authenticity, it bore
no signature or seal, and it did not appear to be either an
original document or a copy of an original document.
response to Pylypczuk's objection, the State claimed that
§ "577.023 allows [the DWITS record] to be admitted
[without any foundation] to prove a prior conviction."
Pylypczuk disagreed, arguing that, despite permitting the use
of such documents, nothing in the statute eliminated the need
for the document to be authenticated before it could be
admitted. After considering the arguments, the circuit court
allowed the exhibit into evidence and found "beyond a
reasonable doubt that [Pylypczuk] has two prior
convictions." Accordingly, Pylypczuk was no longer
entitled to an advisory sentence from the jury.
close of trial, the jury found Pylypczuk guilty of driving
while intoxicated. The court held a sentencing hearing on May
18, 2016, wherein Pylypczuk was sentenced under the class D
felony range of punishment. Pylypczuk appeals. He does not
challenge the jury's finding of guilt. Instead, he
alleges only that the trial court erred in admitting Exhibit
2, and therefore his offense was improperly classified as a
class D felony.
trial court has broad discretion in ruling on the
admissibility of evidence." State v. Mays, 501
S.W.3d 484, 488 (Mo. App. W.D. 2016) (citing State v.
Joyner, 458 S.W.3d 875, 880 (Mo. App. W.D. 2015)).
"We thus review the trial court's decisions
regarding the admission of the evidence for an abuse of that
discretion." Id. (citing Joyner, 458
S.W.3d at 880). "The trial court abuses its discretion
if its ruling is clearly against the logic of the
circumstances and is so arbitrary and unreasonable as to
shock the sense of justice and indicate a lack of careful
consideration." Joyner, 457 S.W.3d at 880.
"The '[lower] court's admission of evidence will
be sustained as long as it is sustainable under any
theory.'" Mays, 501 S.W.3d at 489 (quoting
State v. Merrill, 990 S.W.2d 166, 170 (Mo. App. W.D.
argues that "the trial court erred in admitting into
evidence [S]tate's [E]xhibit 2 and thereafter relying
upon the same to enhance [Pylypczuk's] offender status
because [S]tate's [E]xhibit 2 lacked
authentication." We agree.
State argues that § 577.023.16 eliminated the need for
the State to authenticate the document prior to admission.
This is an issue of statutory construction, "a question
of law, not fact, and the lower court's ruling on a
question of law is not a matter of judicial discretion."
State v. Laplante, 148 ...