HARVEY v. DIRECTOR OF REVENUE (2012)

DISSENTING OPINION

The majority affirms the judgment reinstating Harvey's driving privileges by presuming that the trial court “found the [breath] test results to be unreliable in this particular instance.” Maj. Op. at 9. But we know—for two separate reasons—that the trial court made no such finding. I cannot join the majority in pretending that the trial court simply made a weight-of-the-evidence determination. I respectfully dissent.

I.

The first reason we know that the trial court did not find the test results unpersuasive is because the trial court said why it was ruling as it did. At the conclusion of trial, the court gave a detailed on-the-record explanation of the basis for its ruling. The court's concluding remarks (which include factual findings) make clear that the court entered judgment for Harvey because that result was required by Hurt v. Director of Revenue, 291 S.W.3d 251 (Mo.App.S.D.2009)—not because the court made a factual finding concerning the reliability of the breath test results. The Court stated:

I did find Sergeant Daniel to be very honest and forthright with what he had to say under oath and what he did and didn't know regarding the issue of whether or not Petitioner had tobacco in his mouth. He testified that he didn't think Petitioner had it in his mouth, and I believed him, but he admits he never looked into Petitioner's mouth nor did he ask if he had anything in Petitioner's mouth.

I will also say that I find the Petitioner to be very credible. The Court, after hearing his testimony and observing the Petitioner, the Court believes that he did have tobacco in his mouth at the time that he took the test, and the Court will make that factual finding.

So I believe both witnesses. The officer didn't know, and this gentleman tells me he did, and I believe him.

Respondent's expert testified that he had seen no scientific study that dealt with whiskey/bourbon in tobacco, but he did make some very interesting comparisons with other similar studies, which the Court did find very interesting.

The Court did read several cases that ․ counsel pointed out were pertinent, and the case that does stand out in this case is the Hurt decision. The facts in Hurt were very similar to the instant case. It appears the law in Missouri at this point is contained in the Hurt decision, and therefore, following the law in Hurt, judgment will be in favor of Petitioner.

I would ask that you please get me a proposed judgment entry․

I am the first to admit that I may be wrong on this, and if I am, you take me up and you show me. I am just going on what the law—but the law states to me as of right now that is what it is.

(Emphasis added.)

We may properly consider these comments in determining the basis of the trial court's judgment. We faced a strikingly similar situation in another en banc decision less than five years ago: Gholson v. Director of Revenue, 215 S.W.3d 229 (Mo.App.W.D.2007) (en banc). Gholson was a driver's license revocation case much like this one. In Gholson, the parties disputed whether the trial court had ordered reinstatement of driving privileges solely because the arresting officer failed to maintain continuous face-to-face contact with the driver throughout the fifteen-minute observation period, or instead whether the judgment could be affirmed by presuming that the trial court had also found that the driver placed gum in his mouth during the observation period (as the driver had testified). This Court stated that “[t]he basis on which the circuit court overturned the director's revocation is the central issue in this case.” Id. at 230.

In Gholson, the trial court's judgment stated only that the Director had failed to establish that police conducted a proper fifteen-minute observation. After judgment was entered, the Director filed a motion to clarify the judgment, to have the trial court decide whether or not the driver had, in fact, put gum in his mouth during the observation period, as the driver claimed. At a post-judgment hearing, the Director's counsel explained his reason for requesting clarification:

[M]y concern is that on appeal, and particularly since I didn't request findings of fact upfront—which in hindsight I probably should have—but on appeal the facts are generally deemed to be held in accordance with the result reached. And the Court of Appeals could readily say, well, the court could have found that he did in fact put gum in his mouth, and so ․ Revenue loses, without getting in to interpret it any further.

Id. at 232. The circuit court refused to make a specific finding concerning whether the driver had in fact put gum into his mouth during the observation period, explaining that the sole basis of its ruling was the failure to carefully monitor the driver for fifteen minutes:

THE COURT: ․ [W]hat I intend to hold [is] that my view of the evidence was ․ that the observation period was not specifically complied with. And that alone, under my interpretation of Carr [v. Director of Revenue, 95 S.W.3d 121 (Mo.App.W.D.2002) ], is enough for the Petitioner to win. In other words, that for the State to win they have to show they've complied with it.

Id.

In these circumstances, the Gholson majority held that the driver could not argue for affirmance on the basis of a presumed factual finding that he had put gum into his mouth, even though the record would have supported such a finding:

The circuit court tussled with the director over the need for clarifying the basis for its judgment because it correctly surmised that it had made the basis for its ruling quite clear. It had ruled for Gholson only because Drummond had not watched Gholson face-to-face for 15 minutes as the circuit court perceived our ruling in Carr to require. It did not find that Gholson had placed gum in his mouth. It merely found that Gholson had an opportunity to put gum in his mouth.

“[A] trial judge's oral comments, although not part of the court's judgment, may be considered as an explanation of the judgment[.]”

Although the parties did not request the circuit court to make findings of fact or conclusions of law, we may consider the circuit court's explanations in determining what evidence the circuit court rejected. Indeed, the Supreme Court has held that, “when no request is made of the court in a court-tried case to make specific findings of fact or conclusions of law and they are voluntarily given, such findings and conclusions do form a proper basis for assigning error and should be reviewed.” Graves v. Stewart, 642 S.W.2d 649, 651 (Mo. banc 1982).

Id. at 234 (emphasis added; other citations omitted).¹ Gholson is not alone in holding that a trial court's oral statements may be considered to explain the basis for its judgment. See, e.g., Hudson v. Dir. of Revenue, 216 S.W.3d 216, 225 (Mo.App.W.D.2007); Est. of Rogers v. Battista, 125 S.W.3d 334, 341 (Mo.App.E.D.2004); In re Benson, 124 S.W.3d 79, 84 n. 2 (Mo.App.S.D.2004); Milligan v. Wilson, 78 S.W.3d 215, 221 (Mo.App.W.D.2002)² ; St. Pierre v. Dir. of Revenue, 39 S.W.3d 576, 578 n. 5 (Mo.App.S.D.2001).³ These courts obviously did not consider their approach to be inconsistent with Rule 73.01(c)'s directive that “[a]ll fact issues upon which no specific findings are made shall be considered as having been found in accordance with the result reached.”

Saunders v. Bowersox, 179 S.W.3d 288 (Mo.App.S.D.2005), cited by the majority, is not to the contrary. In Saunders, the trial court entered two separate judgments at different times, revoking a defendant's probation on two separate criminal convictions. Id. at 290. The first probation-revocation judgment explicitly referred to only one of the charges. The State nevertheless argued that the first judgment had in fact revoked probation on both convictions, based on oral comments by the trial court when the first judgment was entered. Id. at 293. The State thus sought to use oral statements to significantly enlarge the relief afforded in the first judgment. In those circumstances, the Southern District invoked the rule that “other parts of a record, such as oral statements by the trial judge, cannot be used to contradict an unambiguous judgment.” Id. Here, however, the trial court's statements do not contradict, but simply explain, its judgment; the present situation is thus completely unlike Saunders . Moreover, consistent with Gholson, Saunders itself recognizes that “ ‘[t]he court may consider such [oral] comments so long as they do not oppose, dispute, or impeach the judgment and are not used as a substitute for the judgment.’ “ Id. at 294 (citation omitted). Matter of Fulton, 863 S.W.2d 931 (Mo.App.W.D .1993), also cited by the majority, likewise recognizes that oral comments may be considered “as an explanation of the order or judgment.” Id. at 933.

Although the majority recognizes that a number of prior cases have held that a trial court's oral explanation of a ruling may be considered on appeal, it points out that “[n]o case has ever held, or remotely implied, that consideraton of gratuitous oral comments made by the trial court is required.” Maj. Op. at 7. I accept that this is a matter of the appellate court's discretion, not a mandate. But there are persuasive reasons to exercise our discretion to consider the trial court's explanatory oral remarks in this case. The court's comments are unequivocal and unambiguous, and reliance on those remarks would not modify the relief awarded by the judgment. The court's oral explanation is not tentative or preliminary, but was made by the court at the conclusion of trial, after considering counsel's closing arguments, and shortly before execution of the written judgment later the same day. The trial court clearly expected that its oral statements would form the basis for appellate review: it stated that it was “mak[ing] ․ factual finding[s],” and understood that its legal determination (i.e., that Hurt was binding upon it) would be reviewed by this Court.

Indeed, the record here is so clear that Harvey's counsel admitted at oral argument that the trial court ruled in Harvey's favor because it considered itself bound by Hurt. Counsel conceded that the court made no finding as to the reliability of the breath test results, and that she was not seeking affirmance on the basis of such presumed findings.

The fundamental holding of Gholson is that this Court may look to the trial court's on-the-record oral explanations of its judgment, and will not affirm a judgment by relying on “presumed findings of fact” which the court plainly did not make. Gholson cannot fairly be distinguished from this case; the fact is, the result the majority reaches here is necessarily inconsistent with, and effectively overrules, this recent en banc decision. I see no justification for refusing to follow Gholson 's sensible approach.

II.

Beyond what is said above, there is a second reason why we cannot rely on a presumed factual finding here: under the law governing at the time, the trial court could not have made the finding the majority now attributes to it.⁴

At the time of trial, the admissibility and evidentiary value of the breath test results were governed by Coyle v. Director of Revenue, 181 S.W.3d 62 (Mo. banc 2005). Coyle held that, if a breath test was conducted by a permitted operator, on approved equipment, in accordance with the Department of Health's regulations, the results of that test established a prima facie case of intoxication, which could not be disregarded unless the driver came forward with rebuttal evidence “that raises a genuine issue of fact regarding the validity of the blood alcohol test results.” Id. at 64–65; see also Verdoorn v. Dir. of Revenue, 119 S.W.3d 543, 546–47 (Mo. banc 2003). Although this aspect of Coyle was later overruled by White v. Director of Revenue, 321 S.W.3d 298, 306 (Mo. banc 2010), Coyle stated the controlling legal standards when the trial court decided this case.

The majority opinion does not question whether the breath test satisfied the Department of Health's regulations. If we assume regulatory compliance, however, the breath test results could be disregarded under Coyle only if Harvey presented “additional evidence showing that [the chewing tobacco in his mouth] affected the validity of the blood alcohol test results.” 181 S.W.3d at 66. Harvey did not present such rebuttal evidence. Like the driver in Coyle, Harvey “presented no evidence as to the effect of [chewing tobacco in the mouth] on blood alcohol test results, nor is the effect of [chewing tobacco] on blood alcohol test results a matter subject to judicial notice.” Id. Absent such evidence, under Coyle the trial court was not “free to assess the credibility and weight to be afforded to the ․ breath tests,” and “f[i]nd the test results to be unreliable in this particular instance.” Maj. Op. at 9.

The majority contends that, prior to White, Coyle had been “effectively” overruled by York v. Director of Revenue, 186 S. W.3d 267 (Mo. banc 2006), and Guhr v. Director of Revenue, 228 S .W.3d 581 (Mo. banc 2007). Maj. Op. at 10–11.⁵ But neither York nor Guhr cites Coyle. More importantly, York and Guhr addressed a different issue. Neither case involves the admissibility or evidentiary weight of breath test results; instead, both cases address whether a law-enforcement officer had probable cause for making an arrest. The fact that Guhr and York held that a trial court may disbelieve the Director's evidence of probable cause is distinct from the trial court's freedom to disregard breath test results: unlike evidence of probable cause, the admissibility and evidentiary value of breath test results are governed in large measure by statute. See §§ 577.020.3 and .4, 577.026, 577.037.1 and .4, RSMo. Therefore, the fact that certain pre-White decisions involving probable-cause determinations had held (without citing Coyle) that a trial court was free to disbelieve the Director's evidence, does nothing to suggest that Coyle had been “effective[ly] overrul [ed].” Maj. Op. at 11. No trial court before White would have considered itself free to disregard breath test results in the manner the majority suggests, contrary to the Missouri Supreme Court's then-controlling decision addressing that precise issue.

Unless the majority is willing to presume that the trial court was clairvoyant, and forecast the decision in White three months before it was handed down, there is no basis to conclude that the court made the weight-of-the-evidence finding on which the majority now relies.

Conclusion

The standard of appellate review does not require us to blind ourselves to what the record so clearly reveals, and instead engage in an exercise in make-believe. This is particularly true where the trial court would have been legally barred from making the factual findings the majority now hypothesizes. This Court obviously cannot make its own factual findings concerning the persuasiveness of the breath test results; nor can it evade this restriction by falsely imputing such findings to the trial court. The judgment must properly stand or fall on the basis on which it was decided: that the presence of chewing tobacco in Harvey's mouth during the observation period was “oral intake” prohibited by the Department of Health's regulations. Because the majority does not address that issue, however, any discussion of it in this opinion would not alter the result; I accordingly leave the “oral intake” issue for another day.

FOOTNOTES

1.  Much like the majority today, the dissent in Gholson argued that, despite the trial court's oral comments, this Court could affirm the reinstatement of Gholson's driving privileges on the basis of a presumed finding that he had, in fact, put gum in his mouth. According to the dissent, “[t]he ‘explanations' uttered by a judge after rendering a judgment in a court tried case, where no findings or conclusions had been requested, should not be the foundation for now reversing and setting aside that judgment.” Id . at 235 (Lowenstein, J., dissenting). That view was rejected by the majority opinion.

2.  Overruled on other grounds, Verdoorn v. Dir. of Revenue, 119 S.W.3d 543, 546–47 (Mo. banc 2003).

3.  I am confident that in countless other cases we have referred to comments from the bench to identify the rationale for a trial court's decision, without feeling the need to even justify the reference. To cite only one recent example, see Estate of Nelson, No. WD73957, 2012 WL 912782, at *1 (Mo.App.W.D. March 20, 2012) (relying on trial court's oral explanation to conclude that a judgment denied the State's Medicaid reimbursement claim on legal grounds, not due to disbelief of the State's evidence).

4.  The majority points out that “the Director does not raise the novel claim” I outline in § II. Maj. Op. at 10. That is hardly surprising, however: the Director has appealed the ruling the trial court actually made—that Hurt required a ruling in Harvey's favor. Harvey has not argued for affirmance based on the presumed finding the majority now attributes to the trial court. Quite the contrary: Harvey's counsel conceded at oral argument that no such finding was made. The Director's failure to argue against affirmance on the basis of presumed factual findings is therefore perfectly understandable. If anything is “novel” here, it is the basis on which the majority now affirms the trial court's judgment, which will no doubt be greeted with considerable surprise by the litigants, and by the trial court.

5.  The majority also contends that Furne v. Director of Revenue, 238 S.W.3d 177 (Mo.App.W.D.2007), recognized this “effective[ ] overrul [ing]” of Coyle. Maj. Op. at 11. Furne's precedential value is questionable, however: by the time of its issuance, one member of the three-judge division had left the Court and therefore did not participate in the decision, while another “concur[red] in result only.” Furne, 238 S.W.3d at 182. Thus, the Furne opinion represented the views of only a single member of this Court.