IN THE MISSOURI COURT OF APPEALS

WESTERN DISTRICT __________________________________________________________________ STATE OF MISSOURI, ) ) Respondent, ) ) vs. ) No. WD 76304 ) HENRY L. SUTTON, ) ) Appellant. ) __________________________________________________________________

APPEAL TO THE MISSOURI COURT OF APPEALS WESTERN DISTRICT

FROM THE CIRCUIT COURT OF PETTIS COUNTY, MISSOURI 18TH 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 65203 Telephone (573) 882-9855 FAX (573) 884-4793 maggie.johnston@mspd.mo.gov

Electronically F

iled - WE

ST

ER

N D

IST

RIC

T C

T O

F A

PP

EA

LS - N

ovember 04, 2013 - 03:24 P

M G

MT

+00:00

1

INDEX

Page

TABLE OF AUTHORITIES .................................................................................. 2

JURISDICTIONAL STATEMENT ....................................................................... 4

STATEMENT OF FACTS ..................................................................................... 5

POINT RELIED ON ............................................................................................ 11

ARGUMENT ........................................................................................................ 13

CONCLUSION .................................................................................................... 26

APPENDIX

Electronically F

iled - WE

ST

ER

N D

IST

RIC

T C

T O

F A

PP

EA

LS - N

ovember 04, 2013 - 03:24 P

M G

MT

+00:00

2

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) .................................... 19

State v. Botts, 151 S.W.3d 372 (Mo. App. W.D. 2004) ................................... 20

State v. Grim, 854 S.W.2d 403 (Mo. banc 1993)............................................... 20

State v. Whalen, 49 S.W.3d 181 (Mo. banc 2001) ............................................ 20

State v. Johnson, 81 S.W.3d 212 (Mo. App. S.D. 2002) ................................... 20

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, 22-23

Campbell v. Labor and Indus. Relations Com'n, 907 S.W.2d 246

(Mo. App. W.D. 1995) .............................................................................. 23

Covert v. Fisher, 151 S.W3d 70 (Mo. App. E.D. 2004) .............................. 11, 24

Morris v. Blunt et al, 49 Utah 243, 161 P. 1127 (1916) ............................... 23-24

CONSTITUTIONAL PROVISIONS:

United States Constitution, Amendment 14 .............................................. 11, 13

Missouri Constitution, Article I, § 10 ........................................................... 11-13

Electronically F

iled - WE

ST

ER

N D

IST

RIC

T C

T O

F A

PP

EA

LS - N

ovember 04, 2013 - 03:24 P

M G

MT

+00:00

3

STATUTES:

§ 227.250, RSMo 2000 .................................................................................... 12, 24

§ 301.010(19), RSMo Supp. 2009 .................................................................. 12, 22

§ 302.010(6), RSMo Supp. 2008 ................................................................... passim

§ 302.321, RSMo Supp. 2005 ........................................................................ passim

§ 477.070, RSMo 2000 ............................................................................................ 4

RULES:

Missouri Supreme Court Rule 29.11 (2013) ............................................... 12, 19

Electronically F

iled - WE

ST

ER

N D

IST

RIC

T C

T O

F A

PP

EA

LS - N

ovember 04, 2013 - 03:24 P

M G

MT

+00:00

4

JURISDICTIONAL STATEMENT

Appellant Henry L. Sutton appeals his conviction for the class D

felony of driving while revoked, § 302.321,1 following a court-tried case in

the Circuit Court of Pettis County, Missouri. He was sentenced by the

Honorable Robert L. Koffman to a $500.00 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); § 477.070.

1 All statutory references are to RSMo Supp. 2010, unless otherwise

indicated.

Electronically F

iled - WE

ST

ER

N D

IST

RIC

T C

T O

F A

PP

EA

LS - N

ovember 04, 2013 - 03:24 P

M G

MT

+00:00

5

STATEMENT OF FACTS

Appellant Henry L. Sutton was charged by first amended

information with the class D felony of driving while revoked, § 302.321 (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.

13-14). 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. 14-15). Ms. Cisneros was the driver

2 All statutory references are to RSMo Supp. 2010, unless otherwise

indicated.

Electronically F

iled - WE

ST

ER

N D

IST

RIC

T C

T O

F A

PP

EA

LS - N

ovember 04, 2013 - 03:24 P

M G

MT

+00:00

6

of the Jeep, and Henry was the driver of the Isuzu (Tr. 15-16). 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).

Electronically F

iled - WE

ST

ER

N D

IST

RIC

T C

T O

F A

PP

EA

LS - N

ovember 04, 2013 - 03:24 P

M G

MT

+00:00

7

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. 17-18). 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

Electronically F

iled - WE

ST

ER

N D

IST

RIC

T C

T O

F A

PP

EA

LS - N

ovember 04, 2013 - 03:24 P

M G

MT

+00:00

8

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 50-75 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. 27-28).

Electronically F

iled - WE

ST

ER

N D

IST

RIC

T C

T O

F A

PP

EA

LS - N

ovember 04, 2013 - 03:24 P

M G

MT

+00:00

9

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. 65-67; 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 § 302.010 ( “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).

Electronically F

iled - WE

ST

ER

N D

IST

RIC

T C

T O

F A

PP

EA

LS - N

ovember 04, 2013 - 03:24 P

M G

MT

+00:00

10

The motion was overruled, and on March 26, 2013, Henry was

sentenced by the court to a $500.00 fine (LF 22-23; Tr. 71). Notice of appeal

was timely filed, and this appeal follows (LF 24-26).

Electronically F

iled - WE

ST

ER

N D

IST

RIC

T C

T O

F A

PP

EA

LS - N

ovember 04, 2013 - 03:24 P

M G

MT

+00:00

11

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, § 302.321, and in entering judgment and sentence

for that offense, because this violated Henry’s right to due process of

law guaranteed by the 14th Amendment to the United States Constitution

and Article I, § 10 of the Missouri Constitution, in that § 302.321

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;

Electronically F

iled - WE

ST

ER

N D

IST

RIC

T C

T O

F A

PP

EA

LS - N

ovember 04, 2013 - 03:24 P

M G

MT

+00:00

12

Mo. Const., Art. I, § 10;

§§ 227.250, 301.010, 302.010 and 302.321; and

Rule 29.11.

Electronically F

iled - WE

ST

ER

N D

IST

RIC

T C

T O

F A

PP

EA

LS - N

ovember 04, 2013 - 03:24 P

M G

MT

+00:00

13

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, § 302.321, and in entering judgment and sentence

for that offense, because this violated Henry’s right to due process of

law guaranteed by the 14th Amendment to the United States Constitution

and Article I, § 10 of the Missouri Constitution, in that § 302.321

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

§ 302.321, 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

Electronically F

iled - WE

ST

ER

N D

IST

RIC

T C

T O

F A

PP

EA

LS - N

ovember 04, 2013 - 03:24 P

M G

MT

+00:00

14

with respect to knowledge of the fact that his driving privilege has been

revoked.

§ 302.010(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.

Electronically F

iled - WE

ST

ER

N D

IST

RIC

T C

T O

F A

PP

EA

LS - N

ovember 04, 2013 - 03:24 P

M G

MT

+00:00

15

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, § 302.321, RSMo

Supp. 2005 (LF 11-12). He was convicted after a bench trial before the

Honorable Robert L. Koffman (Tr. 65-67; LF 15-16).

Electronically F

iled - WE

ST

ER

N D

IST

RIC

T C

T O

F A

PP

EA

LS - N

ovember 04, 2013 - 03:24 P

M G

MT

+00:00

16

Cpl. Eric Keim of the Missouri State Highway Patrol was dispatched

to a motor vehicle accident on Highway 65 (Tr. 13-14). 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. 15-17).

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).

Electronically F

iled - WE

ST

ER

N D

IST

RIC

T C

T O

F A

PP

EA

LS - N

ovember 04, 2013 - 03:24 P

M G

MT

+00:00

17

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

Electronically F

iled - WE

ST

ER

N D

IST

RIC

T C

T O

F A

PP

EA

LS - N

ovember 04, 2013 - 03:24 P

M G

MT

+00:00

18

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.

39-40). 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 50-75 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).

Electronically F

iled - WE

ST

ER

N D

IST

RIC

T C

T O

F A

PP

EA

LS - N

ovember 04, 2013 - 03:24 P

M G

MT

+00:00

19

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. 65-67; 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 § 302.010 ( “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).

Electronically F

iled - WE

ST

ER

N D

IST

RIC

T C

T O

F A

PP

EA

LS - N

ovember 04, 2013 - 03:24 P

M G

MT

+00:00

20

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 court-

tried 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.

§ 302.321 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

Electronically F

iled - WE

ST

ER

N D

IST

RIC

T C

T O

F A

PP

EA

LS - N

ovember 04, 2013 - 03:24 P

M G

MT

+00:00

21

laws of this state, and acts with criminal negligence with respect to

knowledge of the fact that his driving privilege has been revoked.

§ 302.010(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

Electronically F

iled - WE

ST

ER

N D

IST

RIC

T C

T O

F A

PP

EA

LS - N

ovember 04, 2013 - 03:24 P

M G

MT

+00:00

22

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 50-75 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. 65-67). 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 § 301.010, which uses the same definition for

highway as in § 302.010 (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 right-

of-way), to an allegation that the defendant drove into a lane closed to

Electronically F

iled - WE

ST

ER

N D

IST

RIC

T C

T O

F A

PP

EA

LS - N

ovember 04, 2013 - 03:24 P

M G

MT

+00:00

23

traffic. Seeler, 316 S.W.3d at 926-927. 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 301.01,” 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,” § 302.321, which is further defined as a “public

thoroughfare,” § 302.010.

Electronically F

iled - WE

ST

ER

N D

IST

RIC

T C

T O

F A

PP

EA

LS - N

ovember 04, 2013 - 03:24 P

M G

MT

+00:00

24

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., § 227.250 (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.

Electronically F

iled - WE

ST

ER

N D

IST

RIC

T C

T O

F A

PP

EA

LS - N

ovember 04, 2013 - 03:24 P

M G

MT

+00:00

25

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 704.

Electronically F

iled - WE

ST

ER

N D

IST

RIC

T C

T O

F A

PP

EA

LS - N

ovember 04, 2013 - 03:24 P

M G

MT

+00:00

26

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 65203 (573) 882-9855 FAX (573) 882-9468 maggie.johnston@mspd.mo.gov

Electronically F

iled - WE

ST

ER

N D

IST

RIC

T C

T O

F A

PP

EA

LS - N

ovember 04, 2013 - 03:24 P

M G

MT

+00:00

27

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 4th 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

Electronically F

iled - WE

ST

ER

N D

IST

RIC

T C

T O

F A

PP

EA

LS - N

ovember 04, 2013 - 03:24 P

M G

MT

+00:00