MISSOURI COURT OF APPEALS

WESTERN DISTRICT

STATE OF MISSOURI,

 Respondent,

 v.

STEVEN WILLIAM SHOEMAKER,

 Appellant.

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WD76971

OPINION FILED:

November 18, 2014

Appeal from the Circuit Court of Jackson County, Missouri 

Honorable Jack Richard Grate, Judge

Before Division Three: Gary D. Witt, P.J., 

Joseph M. Ellis, and Thomas H. Newton, JJ.

Summary

Mr. Steven William Shoemaker appeals the convictions of driving a motor 

vehicle with an excessive blood-alcohol content (BAC), § 577.012,1and driving

while revoked (DWR), § 302.321. We affirm in part and reverse in part.

Factual and Procedural Background

 In October 2009, at about 8 p.m., Detective Todd Hargis of the Independence 

Police Department stopped Mr. Shoemaker on Interstate 70 for driving at an 

excessive speed. Upon approaching Mr. Shoemaker‘s vehicle, Detective Hargis 

smelled ―the odor of an intoxicating beverage.‖ The detective requested 

 

1

Statutory references are to RSMo 2000 and the Cumulative Supplement 2009, unless otherwise 

stated.
2

identification; Mr. Shoemaker provided an insurance card and a business card. 

Thereafter, the detective learned through police dispatch that Mr. Shoemaker‘s 

license had been suspended, and that he had outstanding warrants. The detective

requested a second unit to the location for assistance.2 

When the second unit arrived, Detective Hargis arrested Mr. Shoemaker for the 

warrants. He also advised the assisting officer that he ―smelled the odor of alcohol‖ 

in Mr. Shoemaker‘s vehicle, and that he ―wanted him put in a secure area so he 

couldn‘t have oral intake until [he] could . . . make contact with him.‖ The assisting 

officer transported Mr. Shoemaker to the Independence Police Department. 

Detective Hargis made contact with Mr. Shoemaker in detention. He smelled 

alcohol on Mr. Shoemaker‘s breath and asked him to perform the standard field 

sobriety tests. After the detective explained the tests, Mr. Shoemaker stated that he 

had ―bad knees‖ and wanted to speak to an attorney. Detective Hargis allowed him 

twenty minutes to contact an attorney. Afterward, Mr. Shoemaker refused to submit 

to the field sobriety tests. However, he did submit to a breathalyzer test at 9:13 p.m. 

– seventy-three minutes after the arrest – and after the detective read him the 

 

2 At the time of the stop, Detective Hargis was conducting traffic enforcement on the westbound 

entrance ramp of Little Blue Parkway and I-70. He used a radar device to determine the speeds of 

passing motorists. 
3

Missouri Implied Consent Law.3 The breath sample resulted in a reading of .084. 

Detective Hargis completed an Alcohol Influence Report, which included 

advising Mr. Shoemaker of Miranda4rights. Mr. Shoemaker agreed to answer 

questions and admitted to driving the vehicle, but not to consuming alcohol. 

Mr. Shoemaker was charged by information with the Class D felony of driving 

a motor vehicle with an excessive BAC as a persistent offender, § 577.012, which 

was later amended5to a Class B misdemeanor. He was also charged with the Class A 

misdemeanor of DWR, § 302.321. 

After a bench trial, Mr. Shoemaker was convicted of both charges. The trial

court sentenced him to 30 days of imprisonment for driving a motor vehicle with an 

excessive BAC, and assessed a fine of $300. The trial court assessed an additional 

fine of $300 for DWR. Mr. Shoemaker appeals.

 

3 The Implied Consent Law, § 577.020, states, in relevant part: 

1. Any person who operates a motor vehicle upon the public highways of this state 

shall be deemed to have given consent to, subject to the provisions of sections 

577.019 to 577.041, a chemical test or tests of the person‘s breath, blood, saliva or 

urine for the purpose of determining the alcohol or drug content of the person's blood 

pursuant to the following circumstances: 

(1) If the person is arrested for any offense arising out of acts which the arresting 

officer had reasonable grounds to believe were committed while the person was 

driving a motor vehicle while in an intoxicated or drugged condition.

4Miranda v. Arizona, 384 U.S. 436 (U.S. 1966).

5 At trial, the State presented Exhibits Five and Six as evidence that Mr. Shoemaker should be found 

guilty as a persistent offender. The exhibits consisted of certified copies of Mr. Shoemaker‘s driving 

record, which included a previous SIS conviction and a term of probation for Driving While 

Intoxicated. The exhibits were missing indicia of whether Mr. Shoema ker had pled guilty or not 

guilty. Therefore, the trial court deemed the documents ―facially deficient‖ for purposes of serving as 

the sole evidence to enhance Mr. Shoemaker‘s conviction, and neither document was admitted into 

evidence.
4

Standard of Review

Our ―review is to determine whether substantial evidence was adduced to 

support the trial court‘s finding.‖ State v. Collins, 413 S.W.3d 689, 696 (Mo. App. 

S.D. 2013) (internal quotation marks and citation omitted). When making a 

determination of the sufficiency of evidence to support the conviction, we accept ―as 

true all evidence tending to prove guilt together with all reasonable inferences that 

support the finding.‖ Id. at 696-97. We ignore ―[a]ll contrary evidence and 

inferences.‖ Id. at 697 (internal quotation marks and citation omitted). 

―When we are faced with a record of facts that supports conflicting inferences,

we must presume—even if it does not affirmatively appear in the record—that the 

trier of fact resolved any such conflicts in favor of the prosecution and must defer to 

that resolution.‖ State v. Bryan, 439 S.W.3d 781, 784 (Mo. App. S.D. 2014). 

―Circumstantial evidence is given the same weight as direct evidence in considering 

the sufficiency of evidence.‖ Id.

Legal Analysis

Mr. Shoemaker raises three points. In the first point, he argues that the trial 

court erred in denying the motions for judgment of acquittal at both the close of the 

State‘s evidence and the close of all evidence because the State ―failed to sustain its 

burden of proof that [he] was physically operating or driving a motor vehicle‖ while 

possessing ―an excessive blood alcohol content.‖ He claims that ―there was no 

evidence‖ of his ―blood alcohol concentration‖ at the time that he physically operated 

or drove a motor vehicle. 
5

Section 577.012 states:

1. A person commits the crime of ―driving with excessive blood alcohol 

content‖ if such person operates a motor vehicle in this state with eighthundredths of one percent or more by weight of alcohol in such person‘s 

blood. 

2. As used in this section, percent by weight of alcohol in the blood shall 

be based upon grams of alcohol per one hundred milliliters of blood or 

two hundred ten liters of breath and may be shown by chemical analysis 

of the person's blood, breath, saliva or urine. For the purposes of 

determining the alcoholic content of a person's blood under this section, 

the test shall be conducted in accordance with the provisions of sections 

577.020 to 577.041. 

3. For the first offense, driving with excessive blood alcohol content is a 

class B misdemeanor. 

Pursuant to section 577.012, ―proof of a numerical measure of blood alcohol content‖ 

is ―essential‖ to prove the offense of driving with an excessive BAC. State v. Martin, 

103 S.W.3d 255, 263 (Mo. App. W.D. 2003). However, such proof ―is not essential in 

a DWI case.‖ Id. Instead, ―to sustain a DWI conviction[,] the State must establish, 

through direct or circumstantial evidence, the temporal connection between the 

defendant‘s last operation of a motor vehicle and his observed intoxication.‖ State v. 

Hatfield, 351 S.W.3d 774, 780 (Mo. App. W.D. 2011) (emphasis added). Mr. 

Shoemaker cites to Hatfield, among other cases, in support of his argument that the 

State failed to prove that he had an excessive BAC at the time he was driving. 

In Hatfield, an officer was dispatched to a scene where an impaired driver was 

already separated from a parked vehicle upon the officer‘s arrival, and no evidence 

existed to establish when the driver last operated the vehicle. Id. at 777. The 

Hatfield court found that, ―[w]here intoxication is observed at a time separate from 

the operation of a motor vehicle, a  ̳factfinder cannot determine that one who is under 

the influence of an alcoholic beverage at an established time was necessarily in that 
6

condition at some earlier unspecified moment without any evidence concerning the 

length of the interval involved.‘‖ Id. (internal quotation marks and citation omitted). 

The Southern District recently addressed a very similar claim in Bryan. In 

Bryan, the defendant challenged the sufficiency of the evidence supporting his 

conviction of driving while intoxicated.6 439 S.W.3d at 782. The defendant argued 

that, ―while he may have been shown to be intoxicated at some unknown time at least 

an hour after a trooper was called to the accident scene, there were no signs of 

intoxication at the accident scene and no evidence that Appellant had no access to 

methamphetamine between the accident and his observed intoxication.‖ Id. The 

Southern District summarized the evidence:

[The defendant] collided with . . . one of the victim‘s cars . . . . The 

collision pushed the . . . car . . . into the oncoming . . . lane [], where it 

struck another vehicle and killed the second victim . . . . [A Sheriff and a 

Corporal] . . . met with [the defendant] approximately 40 [to] 45 

minutes after the accident. At that time[,] they observed behavior 

consistent with methamphetamine intoxication. 

Id. at 783. Though the defendant did not challenge evidence supporting impairment 

at the time of the interview, he argued that there was ―no evidence‖ demonstrating 

impairment at the time of the accident. Id. The defendant argued ―that the proof of 

methamphetamine intoxication was too remote from the time of the accident to 

provide sufficient evidence of intoxication at the time of the accident.‖ Id. He 

claimed that it was pure speculation and conjecture that [he] was impaired at the time 

of the accident because he could have ingested methamphetamine in the hour that 

may have transpired between the time of the accident and the time of the observations 

 

6

The intoxicating substance was methamphetamine, however, rather than alcohol.
7

by the Sheriff and Corporal, and the State did not provide any evidence that [the 

defendant] did not have access to methamphetamine in that time period.

Id. The Southern District rejected the defendant‘s claim, finding there to be a 

reasonable inference7―that the methamphetamine was already in his system at the 

time of the accident.‖ Id. at 784. And, after having noted Chaney‘s requirement that 

the court accept only those inferences supporting the verdict and reject those that are 

contrary, the Southern District affirmed the conviction. Id. 

Similarly, in State v. Scholl, 114 S.W.3d 304 (Mo. App. E.D. 2003), the 

defendant argued that the evidence was insufficient to support the driving element of 

DWI. Id. at 307. The evidence demonstrated that ―[the defendant] was seen driving 

away from the party in his truck alone and, less than thirty minutes later, was found a 

short distance down the road alone in the front seat of the truck, which had struck a 

tree and deployed the driver-side airbag.‖ Id. The defendant argued that there was a 

reasonable inference from the evidence that, ―in that short time between leaving the 

party and being found, he switched drivers with some unknown person along the 

road, who, after crashing [the defendant‘s] truck into a tree, positioned [the 

defendant] to appear to have been the driver and fled before anyone arrived.‖ Id. 

 

7

The Missouri Supreme Court has firmly rejected application of any rule ―that [places] the 

prosecution . . . under an affirmative duty to disprove every reasonable hypothesis except that of 

guilt.‖ State v. Chaney, 967 S.W.2d 47, 54 (Mo. banc 1998). Missouri courts employed such a rule, 

known as the ―equally valid inferences rule.‖ Id. ―The equally valid inferences rule was unique to 

Missouri and state[d] that,  ̳[w]here two equally valid inferences can be drawn from the same 

evidence, the evidence does not establish guilt beyond a reasonable doubt.‘‖ Id. (quoting State v. 

Roberts, 709 S.W.2d 857, 862 (Mo. banc 1986)). But ―[t]he equally valid inferences rule was 

effectively abolished by State v. Grim,‖ 854 S.W.2d 403 (Mo. banc 1993). Id. ―The Court 

in Grim noted that the equally valid inferences rule conflicts with and renders meaningless the 

requirement that the appellate court presume that the trier of fact drew all reasonable infere nces in 

favor of the verdict.‖ Id. (citing Grim, 854 S.W.2d at 413–14). ―Because the equally valid inferences 

rule is at war with the due process standard governing an appellate court‘s review of the sufficiency 

of evidence, the equally valid inferences rule should no longer be applied.‖ Id. ―Rather, the standard 

to be applied is the due process standard set forth in State v. Grim and Jackson v. Virginia,‖ 443 U.S. 

307, 326 (U.S. 1979). Id. 
8

The Eastern District rejected the defendant‘s argument, stating: ―While this inference 

is not factually impossible, we cannot say that it is unreasonable to instead infer that 

[the defendant] was driving up to and at the time of the accident.‖ Id.

Here, in contrast to Hatfield, Mr. Shoemaker was stopped while driving, 

placing him in the position of actively operating the vehicle. Detective Hargis 

testified that he smelled ―an intoxicating beverage‖ when he approached Mr. 

Shoemaker‘s vehicle after stopping him for driving at an excessive speed. The 

detective later completed a lawful breathalyzer test with a well-functioning device 

that he was certified and trained to use, which resulted in a reading that demonstrated 

that Mr. Shoemaker‘s BAC was higher than the legal limit. It has long been 

recognized by this court that, after it is ingested, alcohol must be absorbed into the 

blood stream. Hatfield, 351 S.W.3d at 778-79; see also State v. Davis, 217 S.W.3d 

358, 361 (Mo App. W.D. 2007). This process takes thirty to ninety minutes. 

Hatfield, 351 S.W.3d at 779 (citing 2 Donald H. Nichols & Flem K. Whited III, 

Drinking/Driving Litigation: Criminal and Civil §§ 14.3, 14.27 (1998)). Mr. 

Shoemaker had nothing to drink or smoke between the time of the stop and the 

breathalyzer test that was administered seventy-three minutes later, which resulted in 

the BAC reading slightly above the legal limit. 

There are at least two possible and reasonable inferences from the evidence: 

(1) Mr. Shoemaker drank a sufficient quantity of alcohol close enough in time to his 

arrest that it was still being absorbed at the time his BAC was assessed, implying that 

his BAC was under .080 at the time he drove; or (2) Mr. Shoemaker consumed a 

sufficient quantity of alcohol long enough before his arrest that the alcohol was in the 
9

process of being eliminated from his bloodstream, implying that his BAC was over

.080 at the time he drove.

As noted supra, ―[a]n appellate court  ̳faced with a record of historical facts 

[supporting] conflicting inferences must presume—even if it does not affirmatively 

appear in the record—that the trier of fact resolved any such conflicts in favor of the 

prosecution, and must defer to that resolution.‘‖ State v. Chaney, 967 S.W.2d 47, 53-

54 (Mo. banc 1998) (quoting Jackson v. Virginia, 443 U.S. 307, 326 (1979)). 

Therefore, we must presume that the trial court found that Mr. Shoemaker consumed 

a sufficient quantity of alcohol long enough before his arrest that the alcohol was in 

the process of being eliminated from his bloodstream, implying that his BAC was 

over .080 at the time he drove. Accordingly, applying as we must, the requisite 

deference to the trial court‘s judgment, point one is denied.

In the second point, Mr. Shoemaker argues that the trial court erred in denying 

the motions for judgment of acquittal because the State ―failed to sustain its burden 

of proof‖ that he was operating or driving a motor vehicle with a revoked license. He 

claims that ―there was no evidence‖ that his license had been revoked, nor was there 

―any evidence‖ that he ―knew or acted with criminal negligence in not knowing that 

his license was revoked.‖ Mr. Shoemaker further argues that, because he provided an

insurance card to the detective, ―[o]ne might rightfully question how one whose 

license is purported [sic] under sanction may qualify for vehicular liability coverage.‖ 

He claims that the State ―failed to prove through competent admissible evidence the 

actual status of [his] Missouri driving privilege.‖ (Emphasis added.)
10

Section 302.321 states, in relevant part:

1. A person commits the crime of driving while revoked if such person 

operates a motor vehicle on a highway when such person‘s license or 

driving privilege has been cancelled, suspended, or revoked under the 

laws of this state or any other state and acts with criminal negligence 

with respect to knowledge of the fact that such person‘s driving 

privilege has been cancelled, suspended, or revoked. 

2. Any person convicted of driving while revoked is guilty of a 

misdemeanor. A first violation of this section shall be punishable by a 

fine not to exceed three hundred dollars. A second or third violation of 

this section shall be punishable by imprisonment in the county jail for a 

term not to exceed one year and/or a fine not to exceed one thousand 

dollars. 

(Emphasis added). To convict Mr. Shoemaker of driving while revoked, ―the State 

must prove beyond a reasonable doubt that [his] license had been revoked, [he] acted 

with criminal negligence with respect to knowledge of the fact that [his] driving 

privilege had been revoked, and [he] was operating a motor vehicle on the highways 

of the State while [his] license was revoked.‖ State v. Thenhaus, 117 S.W.3d 702, 

703 (Mo. App. E.D. 2003). Thus, ―the State [was required to] prove [that Mr. 

Shoemaker] drove his car while either knowing or failing to be aware that his driving 

privilege was revoked and such failure to be aware constituted a gross deviation from 

the standard of care a reasonable person would exercise in the situation.‖ See 

Collins, 413 S.W.3d at 700 (citing section 562.016.5).

―Section 562.016.5 provides [that] a person  ̳acts with criminal negligence‘ or 

is criminally negligent when  ̳he fails to be aware of a substantial and unjustifiable 

risk that circumstances exist or a result will follow, and such failure constitutes a 

gross deviation from the standard of care which a reasonable person would exercise 

in the situation.‘‖ Collins, 413 S.W.3d at 697. A ―defendant‘s mental state may be 
11

determined from evidence of the defendant‘s conduct before the act, from the act 

itself, and from the defendant‘s subsequent conduct.‖ Id. (internal quotation marks 

and citations omitted). Proof of criminal negligence as it pertains to a defendant‘s 

knowledge that his driver‘s license was revoked may be based upon a review of his or 

her driving record. Id.

In this case, the State failed to adduce any evidence that Mr. Shoemaker was 

aware of the revocation of his license at the time of the stop. For reasons previously 

stated, Mr. Shoemaker‘s driving record was not admitted into evidence.

8

 However, 

the State contends that it may reasonably be inferred that Mr. Shoemaker was aware 

that his license had been revoked because he did not produce it to Detective Hargis 

when requested. Such an inference simply cannot stand on its own, absent additional 

evidentiary support. See, e.g., State v. Berrey, 803 S.W.2d 37, 40 (Mo. App. W.D. 

1990) (defendant‘s DWR conviction was affirmed, based on defendant‘s failure to 

produce his license when stopped and a ―portion of the defendant‘s driving record 

[that] was read into evidence‖). The sole evidence that Mr. Shoemaker‘s license was,

in fact, revoked was the hearsay statement of the dispatcher. Even assuming this 

evidence was properly admitted over Mr. Shoemaker‘s objection, there was 

absolutely no evidence that Mr. Shoemaker had ever been notified of the suspension 

of his license or that he had any knowledge whatsoever that it was in fact suspended. 

Thus, the State has failed to meet its burden. Accordingly, point two is granted.

In the third point, Mr. Shoemaker argues that the trial court erred in overruling 

his objection to information provided to Detective Hargis from a police department 

dispatcher about his driver‘s license status and the detective‘s associated testimony 

 

8

See supra note 5.
12

because the dispatcher‘s information ―consisted of a hearsay statement upon a 

hearsay statement‖ upon which the trial court ―erroneously and prejudicially‖ relied 

as ―purported evidence of [his] driver‘s license status at the time of the stop.‖ He 

claims that ―such reliance was outcome-determinative.‖ 

Hearsay statements are ―out-of court statements used to prove the truth of the 

matter asserted‖ and are generally inadmissible. State v. Douglas, 131 S.W.3d 818, 

823 (Mo. App. W.D. 2004). However, such statements may be admissible of they fall 

―within a recognized exception to the rule.‖ Id. ―Such exceptions are justified 

because their circumstances sufficiently guarantee the trustworthiness of the out-ofcourt statement[,] even though not subject to cross-examination.‖ Id. Most 

pointedly, an ―officer may rely on information from police dispatch . . . and such 

third-party statements are in general admissible to establish probable cause, even 

though they are hearsay.‖ Tweedy v. Dir. of Revenue, 412 S.W.3d 389, 395 (Mo. App. 

E.D. 2013). Furthermore, ―an arresting officer . . . can develop probable cause by 

considering all the information known to the officer, including hearsay statements.‖ 

Neer v. Dep’t of Revenue, 204 S.W.3d 315, 322 (Mo. App. W.D. 2006). However, 

―[i]f an out-of-court statement is not offered to prove the truth of the matter 

asserted[,] but instead is offered to prove relevant background, then the statement is 

not inadmissible hearsay.‖ State v. Dunn, 101 S.W.3d 922, 925 (Mo. App. S.D. 

2003). Additionally, ―[s]tatements made by an out-of-court declarant that explain 

subsequent conduct are admissible as supplying relevant background and continuity.‖ 

Id.
13

Here, Detective Hargis testified that he was informed by police dispatch that 

Mr. Shoemaker‘s license had been revoked and that he had existing warrants. This 

information, coupled with the odor of alcohol emanating from Mr. Shoemaker‘s 

vehicle and Mr. Shoemaker‘s refusal to produce a valid driver‘s license, supported the 

officer‘s finding of probable cause to detain Mr. Shoemaker for further investigation. 

The subsequent statements from police dispatch were thus not ―outcome 

determinative‖; rather, these statements provided relevant background to support 

suspicions that were already in existence. Thus, the trial court did not err in 

overruling Mr. Shoemaker‘s objection. Point three is denied.

Conclusion

For the above reasons, we affirm the conviction of driving a motor vehicle 

with an excessive BAC and reverse the conviction of DWR.

/s/ THOMAS H. NEWTON___

Thomas H. Newton, Judge

Witt, P.J., and Ellis, J. concur.