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State v. Besendorfer

Court of Appeals of Missouri, Western District, First Division

September 2, 2014

STATE OF MISSOURI, Respondent,
v.
MARVIN D. BESENDORFER, Appellant

Appeal from the Circuit Court of Bates County, Missouri. The Honorable James K. Journey, Judge.

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. Lisa White Hardwick and Karen King Mitchell, Judges, concur.

OPINION

Page 832

Mark D. Pfeiffer, Presiding Judge

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.

Factual and Procedural Background [2]

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,

Page 833

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 tat 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 car[3] 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 ...

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