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State v. Pylypczuk

Court of Appeals of Missouri, Western District, Special Division

August 15, 2017


         Appeal 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.

          Karen King Mitchell, Judge.

         Following a jury trial, Gary Pylypczuk appeals his conviction of driving while intoxicated in violation of § 577.010.[1] 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 intoxicated.


         Pylypczuk 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.

         At 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.

         In 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.

         At the 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.

         Standard of Review

         "The 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. 1999)).


         Pylypczuk 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.

         The 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 ...

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