IN THE MISSOURI COURT OF APPEALS

WESTERN DISTRICT

STATE OF MISSOURI,

Respondent,

v.

DEAN ALAN RIGSBY,

Appellant.

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WD82018

FILED: November 19, 2019

Appeal from the Circuit Court of Johnson County

The Honorable Chad N. Pfister, Judge

Before Special Division: Thomas H. Newton, P.J., and

Alok Ahuja and Thomas N. Champan, JJ.

Dean Rigsby was convicted of driving while intoxicated following a bench 

trial in the Circuit Court of Johnson County. The court found that Rigsby was a 

persistent offender based on his prior convictions for driving-related offenses in 

2005 and 2006 in Illinois. The court therefore entered a conviction for a class D 

felony, and sentenced Rigsby accordingly. Rigsby appeals. He argues that the 

circuit court erred in finding him to be a persistent offender, because the offense of 

which he was convicted in 2005 does not qualify as an “intoxication-related traffic 

offense” under § 577.023.1(4).

1 We agree. Rigsby’s conviction and sentence for 

driving while intoxicated are reversed, and the case is remanded to the circuit court 

for entry of a conviction of driving while intoxicated as a class B misdemeanor, and 

resentencing accordingly.

 

1 Unless otherwise indicated, statutory citations refer to the 2000 edition of the 

Revised Statutes of Missouri, as updated through the 2015 noncumulative supplement.
2

Factual Background

On March 10, 2016, just before 11:00 p.m., Officer Ryan Easley of the 

Warrensburg Police Department observed a Ford F-150 truck drive past his vehicle 

without any headlights on.2 Officer Easley then observed the truck roll through a 

stop sign without coming to a complete stop. Officer Easley conducted a traffic stop.

Rigsby was driving the truck. When he approached the vehicle, Officer 

Easley smelled the odor of alcohol and noticed that Rigsby’s eyes were bloodshot 

and glassed over. Rigsby was nonresponsive and confused when Officer Easley 

asked for his driver’s license and proof of insurance. Once Officer Easley secured 

Rigsby’s Illinois driver’s license, a records check revealed that it had been revoked.

After being read his Miranda3 rights, Rigsby stated that he had consumed 

three “Millers” that evening. Officer Easley requested that Rigsby step out of the 

truck. As Rigsby exited, he stumbled and held on to the vehicle for balance. After 

Rigsby failed multiple field sobriety tests, Officer Easley placed him under arrest. 

Rigsby was transported to the police station, where he refused to cooperate with a 

breath test.

The State charged Rigsby with two counts: the class D felony of driving while 

intoxicated as a persistent offender; and a misdemeanor count of driving while his 

license was revoked.

Rigsby waived his right to a jury trial. Before evidence was presented, the 

circuit court conducted a hearing concerning Rigsby’s status as a persistent 

offender. At the hearing the State presented two exhibits, which were admitted 

without objection, concerning Rigsby’s previous Illinois convictions. Exhibit 1 

addressed Rigsby’s 2006 conviction for driving under the influence of alcohol in St. 

 

2 By the time of trial, Officer Easley was employed as a Deputy with the 

Jackson County Sheriff’s Department.

3 Miranda v. Arizona, 384 U.S. 436 (1966).
3

Clair County, Illinois. Exhibit 2 contained 80 pages of records relating to Rigsby’s

2005 conviction in Johnson County, Illinois, for driving with marijuana in his 

breath, blood, or urine.

In addition to Exhibit 2, the State called Illinois State Police Captain Greg 

Kilduff to testify regarding Rigsby’s 2005 conviction. Captain Kilduff testified that 

on March 18, 2005, at a little after 10:00 p.m., he observed a vehicle pull into the 

parking lot of a gas station which was closed near Goreville, Illinois. Captain 

Kilduff made contact with the occupants of the vehicle because he thought 

“somebody was going to try to break in or [the occupants] were up to something.”

Rigsby was the vehicle’s driver; he was accompanied by a passenger. Captain 

Kilduff testified that he “smelled a strong odor of burnt cannabis” when he 

approached the vehicle. He testified that Rigsby “had somewhat of a sleepy 

appearance,” “his eyes were glassy,” and that his speech “was kind of slow and thick 

tongued.” Rigsby failed multiple field sobriety tests. A preliminary breath test was

negative for alcohol.

After obtaining Rigsby’s consent, Captain Kilduff searched the vehicle and 

found a little over fourteen grams of cannabis along with rolling papers. The 

vehicle’s passenger stated that the cannabis was his, and that “he had smoked 

cannabis about two hours prior to the stop with Mr. Rigsby.” Rigsby was then 

arrested for driving with cannabis in his system.

Based on the State’s exhibits and Captain Kilduff’s testimony, the circuit 

court found beyond a reasonable doubt that Rigsby was a persistent offender due to 

his two prior Illinois convictions.

The circuit court then held a bench-trial and found Rigsby guilty of both 

driving while intoxicated and driving while revoked. The circuit court imposed a 

three-year sentence for the driving while intoxicated conviction, but suspended the 
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execution of the sentence and placed Rigsby on probation for five years. The court 

imposed a $250 fine for the driving while revoked count.

Rigsby appeals. On appeal, he challenges only his conviction and sentence 

for driving while intoxicated.

Standard of Review

We review the sufficiency of the evidence in a court-tried 

criminal case under the same standard used in a jury-tried case. The 

State has the burden to prove prior intoxication-related traffic offenses 

beyond a reasonable doubt. Under section 577.023, the State need only 

present sufficient facts to support a finding beyond a reasonable doubt 

the defendant either pled guilty or was found guilty of two prior 

intoxication related traffic offenses. In making that determination, we 

accept as true all evidence to prove the prior offenses together with all 

reasonable inferences that support the circuit court’s finding.

State v. Coday, 496 S.W.3d 572, 574 (Mo. App. W.D. 2016) (citations and internal 

quotation marks omitted).

Analysis

Rigsby argues that the circuit court erred in convicting him of driving while 

intoxicated as a persistent offender, because his 2005 Johnson County, Illinois 

conviction does not qualify as an “intoxication-related traffic offense.” Rigsby does 

not dispute the circuit court’s finding that his 2006 conviction constitutes an 

“intoxication-related traffic offense.”

At the time of Rigsby’s Missouri offense, a first offense of driving while 

intoxicated was classified as a class B misdemeanor. § 577.010.2(1). If the 

defendant was proved to be a persistent offender, however, the offense was 

enhanced to a class D felony. § 577.023.3. A “persistent offender” was defined as

“[a] person who has pleaded guilty to or has been found guilty of two or more 

intoxication-related traffic offenses.” § 577.023.1(5)(a). 

The relevant statutes provided that “[a]n ‘intoxication-related traffic offense’ 

is driving while intoxicated . . . or driving under the influence of alcohol or drugs in 
5

violation of state law or a county or municipal ordinance.” § 577.023.1(4). Section 

577.023.16 provided that “[a] plea of guilty or a finding of guilt . . . in any 

intoxication-related traffic offense in a state, county or municipal court or any 

combination thereof shall be treated as a prior plea of guilty or finding of guilt for 

purposes of this section.”

In order to determine whether Rigsby’s 2005 Illinois offense qualifies as an 

“intoxication-related traffic offense,” we must determine if it is the equivalent of one 

of the crimes listed in the definition of an “intoxication-related traffic offense” in 

§ 577.023.1(4). To do so we apply the Missouri-law definitions of the listed offenses, 

as those offenses were defined at the time of Rigsby’s current offense. State v. 

Gibson, 122 S.W.3d 121, 128–30 (Mo. App. W.D. 2003); State v. Brown, 97 S.W.3d 

97, 103 (Mo. App. W.D. 2002).

In this case, Rigsby’s 2005 conviction in Johnson County, Illinois, was for 

“[d]riving while under the influence of alcohol, other drug or drugs, intoxicating 

compound or compounds or any combination thereof” in violation of 625 Ill. Comp. 

Stat. Ann. § 5/11-501 (2005). The title of that offense – standing alone – might 

suggest that the offense qualified as an “intoxication-related traffic offense.” The 

name given to the offense is not controlling, however. In State v. Coday, a 

defendant had previously pleaded guilty in Kansas to the offense of “driving while 

under [the] influence of alcohol and/or drugs” in violation of Kan. Stat. Ann. § 8-

1567. 496 S.W.3d at 576. The title of the Kansas offense suggested that the 

defendant’s prior conviction fell within § 577.023.1(4)’s definition of an 

“intoxication-related traffic offense.” See id. at 575-76. Despite the offense’s title, 

Coday held that it did not constitute an “intoxication-related traffic offense.” The 

Court noted that, under Kansas law, the offense could be committed if an 

intoxicated individual “operate[d] or attempt[ed] to operate” a motor vehicle. Id. at 

574 (quoting Kan. Stat. Ann. § 8-1567(a) (emphasis added by Coday)). In Missouri, 
6

however, “convictions for ‘attempting to operate’ a vehicle while intoxicated do not 

constitute intoxication-related traffic offenses.” Id. at 576. Accordingly, “the fact 

that the State's exhibits showed that Coday pled guilty to two offenses of ‘driving 

while under influence of alcohol and/or drugs’ in violation of Kan. Stat. Ann. § 8–

1567 did not establish beyond a reasonable doubt that Coday did in fact operate a 

vehicle while under the influence of alcohol and drugs.” Id. Because the State 

presented no additional evidence to establish that the defendant’s Kansas 

convictions were based on his actual operation of a vehicle, “there was no evidence 

upon which the circuit court could base its finding that [the defendant] was a 

persistent DWI offender,” and that finding was reversed. Id. at 578.

In this case, the record before the trial court contained evidence which 

conclusively demonstrated that, despite its title, the offense of which Rigsby was 

convicted did not qualify as an intoxication-related traffic offense. At the time of 

Rigsby’s conviction in 2005, 625 Ill. Comp. Stat. Ann. § 5/11-501(a) provided:

(a) A person shall not drive or be in actual physical control of 

any vehicle within this State while:

(1) the alcohol concentration in the person’s blood or 

breath is 0.08 or more based on the definition of blood and 

breath units in Section 11-501.2;

(2) under the influence of alcohol;

(3) under the influence of any intoxicating compound 

or combination of intoxicating compounds to a degree that 

renders the person incapable of driving safely;

(4) under the influence of any other drug or 

combination of drugs to a degree that renders the person 

incapable of safely driving;

(5) under the combined influence of alcohol, other drug 

or drugs, or intoxicating compound or compounds to a degree 

that renders the person incapable of safely driving; or

(6) there is any amount of a drug, substance, or 

compound in the person’s breath, blood, or urine resulting 

from the unlawful use or consumption of cannabis listed in 
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the Cannabis Control Act, a controlled substance listed in the 

Illinois Controlled Substances Act, or an intoxicating compound 

listed in the Use of Intoxicating Compounds Act.

(Emphasis added.) The documents contained in State’s Exhibit 2 make clear that 

Rigsby was convicted in 2005 of violating subsection (a)(6). Thus, he was convicted 

for driving or being in actual physical control of a vehicle while “there [was] any 

amount of a drug . . . in [his] breath, blood or urine resulting from the unlawful use 

or consumption of cannabis . . . .” § 5/11-501(a)(6).

The Illinois Supreme Court has held that the offense of which Rigsby was 

convicted in 2005 did not require that he in fact be impaired by the presence of 

cannabis in his body. The Court explained that subsection (a)(6) “creates an 

absolute bar against driving a motor vehicle following the illegal ingestion of any 

cannabis or controlled substance. This is without regard to physical 

impairment.” People v. Fate, 636 N.E.2d 549, 551 (Ill. 1994) (emphasis added); see 

also People v. Rodriguez, 926 N.E.2d 390, 392–94 (Ill. App. 2009).

In Missouri, by contrast, an individual can be convicted of driving under the 

influence of a drug only if that person is impaired by the drug. In Missouri, “[a]

person commits the crime of ‘driving while intoxicated’ if he operates a motor 

vehicle while in an intoxicated or drugged condition.” § 577.010.1. “‘Drugged 

condition’ has been equated with ‘intoxicated condition’ and, as a result, the two 

terms may be used interchangeably.” State v. Honsinger, 386 S.W.3d 827, 830 (Mo. 

App. S.D. 2012) (citation omitted). Section 577.001.3 provides that “a person is in 

an ‘intoxicated condition’ when he is under the influence of alcohol, a controlled 

substance, or drug, or any combination thereof.” § 577.001.3. In Missouri, “‘[u]nder 

the influence . . .’ has long been described as ‘[a]ny intoxication that in any manner 

impairs the ability of a person to operate an automobile.’” State v. Hoy, 219 S.W.3d 

796, 801 (Mo. App. S.D. 2007). “Intoxication under Missouri’s statute requires proof 

that the consumption of alcohol or drugs interferes or impairs the defendant’s 
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ability to properly operate an automobile.” Rocha v. Dir. of Revenue, 557 S.W.3d 

324, 327 (Mo. App. W.D. 2018) (citing State v. Schroeder, 330 S.W.3d 468, 475 (Mo.

2011)).

Thus, Rigsby was convicted in 2005 of an Illinois offense which is defined 

“without regard to physical impairment.” Fate, 636 N.E.2d at 551. In Missouri, 

however, an individual can only be convicted of driving while intoxicated or driving 

under the influence of alcohol or drugs if the individual’s consumption of alcohol or 

drugs “interferes [with] or impairs the defendant’s ability to properly operate an 

automobile.” Rocha, 557 S.W.3d at 327. Rigsby’s 2005 Illinois offense did not 

contain all of the elements of the Missouri offenses of driving while intoxicated or 

driving under the influence of alcohol or drugs. Because Rigsby’s 2005 Illinois 

conviction lacked the essential element of impairment, that conviction cannot 

constitute an “intoxication-related traffic offense” within the meaning of 

§ 577.023.1(4).

To avoid this result, the State attempts to rely on extrinsic evidence of the 

circumstances surrounding Rigsby’s 2005 offense, including information derived 

from police reports and other documents, and from the testimony of the arresting 

officer, Captain Greg Kilduff. The State relies on this evidence to argue that the 

underlying facts would have satisfied Missouri’s “impairment” standard, even 

though impairment was not an element of the offense to which Rigsby actually 

pleaded guilty.

It is not appropriate to consider facts beyond those actually underlying a 

prior conviction, to determine if the prior offense constitutes an “intoxication-related 

traffic offense.” The definition of a “persistent offender” focuses on whether the

defendant “has pleaded guilty to or has been found guilty of two or more 

intoxication-related traffic offenses.” § 577.023.1(5)(a). The focus is on the offense to 

which Rigsby pleaded guilty – not some other, hypothetical offense which the 
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underlying facts might have supported. Coday recognizes that only the facts 

necessary to establish the offense of conviction are relevant: to determine whether 

a foreign offense constitutes an intoxication-related traffic offense, “we must 

determine whether the acts constituting the foreign conviction constitute the 

commission of [a listed] crime under Missouri law.” 496 S.W.3d at 576 (emphasis 

added; citation omitted); see also State v. Hill, 839 S.W.2d 605, 608 (Mo. App. W.D. 

1992) (“the test is whether the acts committed during the commission of the 

foreign crime would constitute the commission of one of the crimes mentioned in” 

a recidivism statute; emphasis added; citation omitted).

Here, Rigsby did not plead guilty in 2005 to driving while impaired, and 

impairment was not one of “the acts constituting the foreign conviction.” The fact 

that the State may have been able to prove additional facts, beyond those 

underlying the offense to which Rigsby pleaded guilty, is irrelevant in determining 

whether Rigsby pleaded guilty in 2005 to an “intoxication-related traffic offense.” 

In a criminal case, prosecutors or law enforcement may frequently have knowledge 

of facts which would support charging a defendant with different, additional, or 

more serious offenses than the charges of which a defendant is ultimately convicted. 

This is particularly true where a defendant pleads guilty. A central aspect of plea 

bargaining is that the State may choose to reduce the charges against a defendant –

even though greater or additional charges are factually warranted – in order to 

induce a guilty plea. In order to determine whether a defendant is a “persistent 

offender” under § 577.023.1(5)(a), the critical question is the nature of the charges 

to which the defendant actually pleaded guilty; the inquiry is not whether the 

prosecution could potentially have proven the elements of different, additional, or 

more serious offenses. The “persistent offender” inquiry is not an opportunity for 

the State to retry the facts underlying a defendant’s prior convictions.
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The approach to recidivism determinations taken in the Missouri cases is 

similar to the approach taken by federal courts in applying recidivism provisions in 

federal statutes. In that context, the Supreme Court of the United States has held 

that a statute’s reference to a defendant’s prior “convictions” “supports the inference 

that Congress intended the sentencing court to look only to the fact that the 

defendant had been convicted of crimes falling within certain categories, and not to

the facts underlying the prior convictions.” Taylor v. United States, 495 U.S. 

575, 600 (1990) (emphasis added). Under this “categorical” approach, the court 

must look “to the elements of the statute of conviction, not to the facts of each 

defendant’s conduct.” Id. at 601 (emphasis added). As we recently explained, 

The U.S. Supreme Court has interpreted the use of words such as 

“conviction” and “element” to indicate that Congress meant for the 

statutory definition to cover a generic offense, implicating the 

categorical or modified categorical framework, which eschews 

looking to a conviction’s circumstances. Because the categorical 

approach looks squarely at the elements of the offense of conviction, a 

reviewing court is precluded from examining the circumstances 

underlying the prior conviction.

Peters v. Jackson Cnty. Sheriff, 543 S.W.3d 85, 88–89 (Mo. App. W.D. 2018) 

(emphasis added; citations and internal quotation marks omitted).

The Supreme Court in Taylor explained that the “factual approach” (on which 

the State attempts to rely in this case) would raise significant administrative and 

equity concerns:

[T]he practical difficulties and potential unfairness of a factual 

approach are daunting. In all cases where the Government alleges 

that the defendant’s actual conduct would fit the [definition of a 

relevant offense], the trial court would have to determine what that 

conduct was. In some cases, the indictment or other charging paper 

might reveal the theory or theories of the case presented to the jury. 

In other cases, however, only the Government’s actual proof at trial 

would indicate whether the defendant’s conduct constituted [a relevant 

offense]. Would the Government be permitted to introduce the trial 

transcript before the sentencing court, or if no transcript is available, 

present the testimony of witnesses? Could the defense present 
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witnesses of its own and argue that the jury might have returned a 

guilty verdict on some theory that did not require a finding that the 

defendant committed [all of the elements of the relevant crime]? If the 

sentencing court were to conclude, from its own review of the record, 

that the defendant actually committed a [relevant offense], could the 

defendant challenge this conclusion as abridging his right to a jury 

trial? Also, in cases where the defendant pleaded guilty, there often is 

no record of the underlying facts. Even if the Government were able to 

prove those facts, if a guilty plea to a lesser . . . offense was the result 

of a plea bargain, it would seem unfair to impose a sentence 

enhancement as if the defendant had pleaded guilty to [the greater 

relevant offense].

495 U.S. at 601–02.

Under both Missouri law and federal law, a trial court may go beyond the 

specific elements of the prior offense, and review the underlying facts, in only one 

circumstance: where the statute defining the prior offense provides that the offense 

could be committed in multiple ways, only some of which would support a recidivist 

finding. Thus, Coday recognized that some further factual inquiry would be 

appropriate where the Kansas statute under which the defendant was previously 

convicted criminalized both an intoxicated person’s operation and attempted 

operation of a motor vehicle, but only actual operation would constitute an 

intoxication-related traffic offense. The Court explained that, “[i]n such 

circumstances, when a foreign conviction encompasses acts outside of those 

prohibited by Missouri statutes, the test is whether the acts committed during the 

commission of the foreign crime would qualify as an intoxication-related traffic 

offense under section 577.023.” 496 S.W.3d at 576 (citation omitted). Taylor

recognized the same possibility, with respect to a prior conviction of burglary:

We think the only plausible interpretation of [the federal 

recidivism statute] is that . . . it generally requires the trial court to 

look only to the fact of conviction and the statutory definition of the 

prior offense. This categorical approach, however, may permit the 

sentencing court to go beyond the mere fact of conviction in a narrow 

range of cases where a jury was actually required to find all the 

elements of generic burglary. For example, in a State whose burglary 

statutes include entry of an automobile [which would not qualify as a 
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relevant prior conviction] as well as a building, if the indictment or 

information and jury instructions show that the defendant was 

charged only with a burglary of a building, and that the jury 

necessarily had to find an entry of a building to convict, then the 

Government should be allowed to use the conviction for enhancement.

495 U.S. at 602 (footnote omitted).

This is not a case in which the exception to the categorical approach is 

applicable. The statute under which Rigsby was convicted in 2005, 625 Ill. Comp. 

Stat. Ann. § 5/11-501(a)(6), does not provide for multiple means in which the offense 

could be committed, some of which involve impairment and others not. Instead, the 

Illinois Supreme Court has held that a defendant could be convicted under 

subsection (a)(6) “without regard to physical impairment.” Fate, 636 N.E.2d at 551. 

This is not a case in which the State sought to prove how Rigsby committed his 

2005 offense, among multiple possible methods. Instead, the State sought to prove 

additional facts which were unnecessary, and unrelated, to the crime to which 

Rigsby pleaded guilty. As we have explained above, the State’s attempt to relitigate the circumstances underlying Rigsby’s 2005 Illinois conviction was 

improper.

We accordingly hold that the circuit court erroneously found that Rigsby’s 

2005 Illinois conviction was for an “intoxication-related traffic offense.” The circuit 

court’s finding that Rigsby was a “persistent offender” must accordingly be vacated. 

Rigsby does not qualify as a “prior offender” either, because the definition of a prior 

offender requires that the defendant’s previous conviction have occurred “within 

five years of the occurrence of the intoxication-related traffic offense for which the 

person is charged.” § 577.023.1(6). Although Rigsby does not dispute that his 2006 

conviction in St. Clair County, Illinois satisfies the statutory definition of an 

“intoxication-related traffic offense,” that offense did not occur within five years of 

Rigsby’s current offense, and it therefore cannot provide the basis for a “prior 
13

offender” finding. Rigsby could properly be convicted and sentenced, therefore, only 

of the base offense of driving while intoxicated as a class B misdemeanor.

Conclusion

Rigsby’s conviction and sentence of the class D felony of driving while 

intoxicated is reversed. The case is remanded to the circuit court for entry of a 

conviction of the class B misdemeanor of driving while intoxicated, and 

resentencing accordingly. Rigsby’s conviction and sentence for driving while 

revoked is unaffected by this opinion.

_____________________________

Alok Ahuja, Judge

All concur.