State v. Benson, SD37023

CourtCourt of Appeal of Missouri (US)
Writing for the CourtJACK A. L. GOODMAN, J.
PartiesSTATE OF MISSOURI, Respondent, v. SANDRA K. BENSON, Appellant.
Docket NumberSD37023
Decision Date09 June 2022

STATE OF MISSOURI, Respondent,
v.

SANDRA K. BENSON, Appellant.

No. SD37023

Court of Appeals of Missouri, Southern District, First Division

June 9, 2022


APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Thomas E. Mountjoy, Judge.

OPINION

JACK A. L. GOODMAN, J.

Sandra Benson appeals her conviction of driving with excessive blood alcohol content ("BAC"). Section 577.012.[1] Benson's sentence was enhanced to a class E felony because she is a persistent offender. Benson contends: (1) the state failed to prove beyond a reasonable doubt she drove with a BAC 0f .08% or more, and (2) the prior intoxication-related offenses the state used to establish her status as a persistent offender were not qualifying convictions. We affirm.

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Background

On April 30, 2017, a Highway Patrol trooper observed a vehicle's driver-side tires cross over the double yellow lines on the pavement three times. Suspecting driver impairment, the trooper initiated a traffic stop. The driver, Benson, smelled of alcohol, exhibited indicators of intoxication, and admitted she had been drinking vodka. A portable breath test showed Benson's BAC was above the legal limit for driving.

Benson was arrested and, after being informed of Missouri's implied consent law, agreed to take a breath test. The test showed Benson had a BAC of eighty-two-thousandths of one percent (.082%), slightly above the legal limit.

At a bench trial, the state's evidence included, among other things, records of maintenance reports for the breath instrument used to determine Benson's BAC. Three calibration tests performed on the machine during the month before Benson's arrest all registered 0.101% on a standard 0.100% solution. Three calibration tests performed within a week after Benson's arrest registered 0.098%, 0.099%, and 0.099% on a standard 0.100% solution. The acceptable range for the test results was up to +/- 0.005% (inclusive).

Without objection, the court also received certified records of Benson's prior convictions for driving while intoxicated in violation of § 577.010 RSMo. (2000). In September 2003, Benson pleaded guilty in the Willard Municipal Division of Greene County Circuit Court. In February 2005, Benson pleaded guilty in the Associate Division of Greene County Circuit Court.

The trial court found Benson guilty and sentenced her to four years in the Missouri Department of Corrections. The trial court then suspended the execution of her sentence and placed her on probation for five years, with special conditions including no

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consumption or possession of alcohol and a mandatory ignition interlock device on her vehicle.

Discussion

As relevant here, "A person commits the offense of driving with excessive blood alcohol content if such person operates . . . [a] vehicle while having eight-hundredths of one percent or more by weight of alcohol in his or her blood[.]" Section 577.012.1(1). Benson does not contest that she was operating a vehicle, only the sufficiency of the evidence that she had a BAC of 0.08% or more. She argues that the breath test machine's acceptable operating range is 0.005% in either direction and the actual calibration test results varied by 0.003%, so it is possible her true BAC was 0.079% or lower. Her argument misses the mark and ignores the manner in which an appellate court must view the evidence on appeal.

Our standard of review in this bench-tried case is the same as in review of a jury-tried case. State v. Shaw, 592 S.W.3d 354, 357 (Mo. banc 2019). A review for sufficient evidence is guided by this question: if the evidence tending to prove guilt and reasonable inferences that support the verdict are accepted as true, is there sufficient evidence from which a reasonable fact-finder might have found the defendant guilty beyond a reasonable doubt? Id.; State v. Gilmore, 537 S.W.3d 342, 344 (Mo. banc 2018). "When, as in this case, the circuit court does not make specific findings of fact, we 'must assume that all facts were found in...

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