State v. Besendorfer
| Decision Date | 02 September 2014 |
| Docket Number | No. WD 76818.,WD 76818. |
| Citation | 439 S.W.3d 831 |
| Court | Missouri Court of Appeals |
| Parties | STATE of Missouri, Respondent, v. Marvin D. BESENDORFER, Appellant. |
Chris Koster, Attorney General, Evan J. Buchheim, Assistant Attorney General, Jefferson City, MO, for Respondent.
Kent Denzel, Assistant Public Defender, Columbia, MO, for Appellant.
Before Division I: MARK D. PFEIFFER, Presiding Judge, and LISA WHITE HARDWICK and KAREN KING MITCHELL, Judges.
Marvin D. Besendorfer (“Besendorfer”) appeals his conviction for driving while intoxicated (“DWI”) following a bench trial in the Circuit Court of Bates County, Missouri (“trial court”).1 Besendorfer challenges the sufficiency of the evidence to support his conviction. We affirm.
The State charged Besendorfer by information with one count of class B felony DWI as a chronic offender. The parties appeared for trial on May 24, 2011, and announced an agreement under which the State would reduce the DWI charge to a class D felony and Besendorfer would waive his right to a jury trial. After accepting both the agreement and the jury-trial waiver, the trial court conducted a bench trial. The arresting officer and the officer who interviewed Besendorfer at the jail testified for the State; Besendorfer and his girlfriend testified for the defense. The evidence presented at trial, viewed in the light most favorable to the judgment and ignoring all contrary evidence and inferences, State v. Burns, 359 S.W.3d 558, 560 (Mo.App. W.D.2012), showed the following:
On the evening of December 1, 2006, in freezing temperatures and snowy conditions, a Missouri State Highway Patrol trooper was patrolling Missouri Highway 18 when he observed a black pick-up truck partially off the roadway in a ditch in a five-foot-deep snow bank. Tracks on the road showed that the truck had been traveling south on a gravel road, turned west onto Highway 18, and then slid across the road into the ditch. As the trooper passed the vehicle, he noticed that the interior lights were on and there was vapor coming from the exhaust. The trooper returned to the vehicle, exited his patrol car and could hear the engine running as he approached the vehicle on foot. In fact, Besendorfer would later admit that he may have been the one to have started the engine and turned the interior lights on and he knew that he was the one that had “turned the heat up” in the truck. The truck's radio was also on. The trooper observed that there were no tracks showing footprints originating from the vehicle or the roadside. When the trooper looked inside, he saw Besendorfer lying on his right side on the bench seat, asleep, with his feet near the brake and gas pedals. The trooper made contact with Besendorfer and ultimately asked him to step out of the vehicle and to accompany the trooper back to the trooper's patrol car. Besendorfer turned off the ignition to the car3 and exited his vehicle.
Besendorfer was clearly intoxicated. He admitted to drinking at least a twelve-pack of beer at a friend's house; his speech was slurred; he swayed as he walked to the patrol car; the smell of alcohol was on his breath; his eyes were glassy and bloodshot; and he failed numerous field sobriety tests. In fact, Besendorfer admitted at trial that he was intoxicated at all relevant times involving the operation of his vehicle that night. As Besendorfer admits in his appellate briefing:
[Besendorfer] admitted drinking at least a 12–pack of beer that night, and that he was intoxicated. If he drove the truck to where it got stuck, he did so while intoxicated.
App. Reply Br. 13. Besendorfer claims, however, that he had not driven the truck, instead claiming in his appellate briefing:
There was only evidence that [Besendorfer] was in the truck, sleeping, and that the engine was running. That is not evidence that he drove [the truck] there.... [T]he State did not prove beyond a reasonable doubt that Mr. Besendorfer drove—or operated—the vehicle while intoxicated.
App. Reply Br. 13 (emphasis in Besendorfer's Reply Brief). Besendorfer, along with his girlfriend, testified that Besendorfer had not driven the truck that evening. Instead, it was Besendorfer's girlfriend who had dropped Besendorfer off at his friend's house to consume large amounts of alcohol between 6:00 p.m. and 9:30 p.m., then picked Besendorfer up in the truck after Besendorfer's evening of binge drinking, and then drove the truck in such a way to cause it to leave the roadway. After doing so, Besendorfer claims that because he had “a bad leg,” he sent his girlfriend out in the snow and freezing temperatures to walk three to five miles to their house to retrieve another vehicle and to come back and pick him up. This, in the face of Besendorfer's testimony that the reason he did not call anyone else to come pick up he and his girlfriend after the wreck was because he did not want anyone out on the dangerous road conditions.
Needless to say, the trial court did not find the testimony of Besendorfer or his girlfriend credible,4 denied Besendorfer's motions for judgment of acquittal at the close of the State's evidence and at the close of all the evidence, and found Besendorfer guilty of DWI. Besendorfer timely appeals, challenging the sufficiency of the evidence to support his conviction.
Our review of the sufficiency of the evidence for a criminal conviction in a court-tried case is determined by the same standard as in a jury-tried case: whether or not there was sufficient evidence from which the trier of fact could have reasonably found guilt. State v. Sladek, 835 S.W.2d 308, 310 (Mo. banc 1992). “In determining whether or not there is evidence sufficient to support a finding of guilt, an appellate court may not weigh the evidence but accepts as true all evidence tending to prove guilt together with all reasonable inferences that support the verdict, and all contrary evidence and inferences are ignored.” Id.
In his sole point on appeal, Besendorfer asserts that:
The trial court erred in overruling Mr. Besendorfer's motion for judgment of acquittal at the close of all the evidence, and in entering judgment on the verdict of guilty of driving while intoxicated, because the rulings violated Mr. Besendorfer's right to due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, Section 10 of the Missouri Constitution, in that the evidence was insufficient to establish beyond a reasonable doubt that Mr. Besendorfer drove or operated the truck while intoxicated, because he merely slept in a vehicle with the engine running, and while he may have manipulated the heater and even started the engine, there was no evidence that he caused the truck to function as a vehicle, that is, as more than a place to stay warm while waiting for another ride.
Besendorfer acknowledges that there was no dispute that he was intoxicated when the trooper made contact with him. But he argues that the State failed to prove that he was operating the truck when it was stuck in the snow with the engine running. Besendorfer admits that he slept in the truck with the engine running and may have started the engine and manipulated the heater but claims that the evidence did not show that he caused the truck to function as a vehicle. Besendorfer appears to argue that there was no evidence that he placed the truck in motion. However, operation of a motor vehicle does not require motion.
“A person commits the crime of ‘driving while intoxicated’ if he operates a motor vehicle while in an intoxicated or drugged condition.” § 577.010.1.6 The offense requires proof of two elements: (1) the defendant operated a motor vehicle, and (2) was intoxicated while doing so. State v. Davis, 217 S.W.3d 358, 360 (Mo.App. W.D.2007). The first element is defined in section 577.001.2 as “physically driving or operating a motor vehicle.” The Missouri Supreme Court has adopted the dictionary definition of “operate”: “ ‘to cause to function usually by direct personal effort: work (~a car).’ ” Cox v. Dir. of Revenue, 98 S.W.3d 548, 550 (Mo. banc 2003) (quoting Webster's Third New International Dictionary 1581 (1993)). Section 577.001 permits “operating a motor vehicle” to be established by circumstantial evidence. State v. Chambers, 207 S.W.3d 194, 197 (Mo.App. S.D.2006) ; Baptist v. Lohman, 971 S.W.2d 366, 368 (Mo.App. E.D.1998).
In Cox, the Supreme Court evaluated the following fact pattern:
Cox, 98 S.W.3d at 549. On those facts, in a driver's license revocation civil proceeding, the court concluded that the officer had probable cause to believe that Cox was “operating” the vehicle. Id. at 550–51.
While Besendorfer correctly asserts that “probable cause” in a civil proceeding does not equate with a finding of guilt beyond a reasonable doubt in a criminal proceeding, it cannot be ignored that the facts of Cox —which are extremely similar to the facts of the present case—are relevant to any fact finder's determination—whether civil or criminal—on the issue of what evidence may support a finding of “operation” of a motor vehicle.
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