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State v. Mayer10/5/1999
This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.
Missouri Court of Appeals Eastern District
Appeal From: Circuit Court of Jefferson County, Hon. Dennis J. Kehm
Citation:
Opinion Vote: AFFIRMED. Russell, C.J., and Crahan, J., concur.
Opinion:
A jury found the defendant guilty of felony murder in the second degree pursuant to section 565.021.1(2) RSMo 1994. The underlying felony offense was driving while intoxicated, normally a misdemeanor but elevated to the statues of a class D felony because of multiple prior convictions for that same offense. Section 577.023.3. The jury also found the defendant guilty of eight other offenses relating to the automobile accident in issue, but the defendant asserts error only on the murder conviction. The court sentenced him to 20 years imprisonment on the murder count and to consecutive sentences aggregating 22 years and 6 months on the other counts, so that his maximum period of confinement would be 42 years and 6 months. After considering the numerous points and subpoints briefed, we affirm.
The trial court instructed the jury on the elements of driving while intoxicated, and then instructed as follows:
. . . if you find . . .
First, that defendant committed driving while intoxicated as defined in Instruction No. 7, and
Second, that the defendant collided his vehicle, in which Amanda Beiter was riding, with another vehicle, killing Amanda Beiter, and
Third, that Amanda Beiter was killed as a result of the perpetration of that driving while intoxicated, then you will find the defendant guilty under Count I of Murder in the Second Degree . . .
The defendant complains about this instruction solely on the ground that it requires no jury finding as to the existence of prior convictions for driving while intoxicated. He argues that the existence of these convictions is an essential element of the class D felony of driving while intoxicated and that, under the authority of United States v. Gaudin, 115 S.Ct. 2310 (1995), due process requires that the jury be instructed on all essential elements of the offense. He asserts that the Judge may not give any kind of instruction that would amount to a finding of fact as to the existence of an essential element.
The state responds by pointing to the legion cases holding that the court may determine the existence of prior convictions without jury input when the statutes provide for enhanced sentencing. See e.g. State v. Adams, 808 S.W.2d 925, 933 (Mo. App. 1991). The defendant counters that those cases do not apply because they refer only to the enhancement of the sentence and do not change the nature of the offense by adding an essential element.
The same point has been presented to at least two panels of the Court of Appeals, but not resolved by either, because the respective courts found that it had been insufficiently preserved. State v. Brown, No. WD55422 (Mo. App. May 25, 1999); State v. Pembleton, 978 S.W.2d 352 (Mo. App. 1998). The latter case holds that there is no plain error, but such an answer does not establish the absence of reversible error properly preserved.
Our courts have regularly held that the court rather than the jury should determine the existence of prior convictions. The difference between prior convictions for purposes of enhancement and prior convictions as an element of the offense charged is more superficial than real. These convictions are matters of judicial record. They may be established to a moral certainty by certified copies of these records. The ju
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