Missouri Court of Appeals Southern District
In Division STATE OF MISSOURI, ) ) Plaintiff-Respondent, ) ) vs. ) No. SD37373 ) BENNY LYNN JOHNSON, ) Filed: August 4, 2023 ) Defendant-Appellant. )
APPEAL FROM THE CIRCUIT COURT OF STODDARD COUNTY
The Honorable Joe Z. Satterfield, Judge
AFFIRMED
Benny Lynn Johnson appeals the trial court’s judgment convicting him of three
counts of driving while intoxicated resulting in death and two counts of leaving the scene
of an accident following a jury trial in the Circuit Court of Stoddard County. Mr.
Johnson raises three points on appeal focusing on his two convictions for leaving the
scene of an accident. Mr. Johnson argues in Points I and II that the trial court plainly
erred and violated his right to be free from double jeopardy by accepting two jury
verdicts for two counts of leaving the scene of an accident and sentencing him on both
counts. In Point III, Mr. Johnson argues that the trial court abused its discretion by not
1 granting his request for a mistrial due to juror misconduct. Finding no merit to any of his
points relied on, we affirm the trial court’s judgment.
Points I and II: The Trial Court did not Plainly Err in Accepting the Jury’s Verdicts and Sentencing Mr. Johnson on Two Separate Counts for Leaving the Scene of an Accident.
Mr. Johnson argues in Points I and II that his two convictions for leaving the
scene of an accident violate the double jeopardy clause. Because both points are
sufficiently similar, we address them together. In Point I, Mr. Johnson argues section
577.0601 includes a single unit of prosecution tied to each single accident. In Point II, he
argues that leaving the scene of one accident is a continuing course of conduct offense
under section 556.041. He argues that by convicting him twice of leaving the scene of an
accident, he received multiple punishments for the same offense. We disagree.
Facts Pertinent to Points I and II
On July 4, 2017, Ms. T.S. took her three children, 12-year-old T.S., 10-year-old
P.S., and two-year-old J.V., to watch the fireworks show in Malden. On her way back to
the house where she was staying, she got a flat tire and pulled over on the side of a
narrow rural road.
Ms. T.S. and the children waited for help to arrive in their black minivan with the
flashers on. When Ms. T.S.’s boyfriend, Mr. D.V., and J.V.’s great-grandmother, Ms.
J.R., arrived, Ms. J.R. parked her Chevy Cruze, a “small tan car,” behind Ms. T.S.’s
minivan. It became apparent they did not have the tools necessary to repair the tire, so
they decided to leave in Ms. J.R.’s car and come back in the morning to fix the flat tire.
1 References throughout are to section 577.060, RSMo 2016. All other statutory references are to RSMo Cum.Supp. 2022, unless otherwise indicated.
2 Ms. J.R. got into the driver’s seat and Mr. D.V. got into the passenger’s seat. T.S.
and P.S. had entered the backseat from the driver’s side, but Ms. J.R.’s car had fireworks
in the backseat and clutter needed to be repositioned for Ms. T.S. and her three children
to fit. Ms. T.S. told T.S. and P.S. to get out so they could rearrange themselves. Ms. T.S.
was holding J.V. outside the vehicle as P.S. and T.S. were moving out of the car. As
soon as T.S. got “from like halfway through the back driver’s seat[,]” there was a “giant
flashing light[,]” and she ducked. She could hear glass shattering everywhere.
Mr. Johnson’s truck struck Ms. J.R.’s car as well as Ms. T.S., J.V., and P.S., who
were all still outside the vehicle. Ms. J.R.’s car was totaled, and Ms. T.S., J.V., and P.S.
died near instantly. T.S. saw J.V. was in front of Ms. J.R.’s car in front of the headlights
with one leg amputated. P.S. was laying motionless on the ground next to the car. The
force from the crash propelled Ms. T.S.’s body some distance down the road.
Mr. Johnson kept driving his truck after the accident and did not attend to anyone
at the scene. Brant Bristow, an off-duty EMT, came upon the accident in his truck. Mr.
Johnson passed Mr. Bristow before the accident, driving erratically, and, as the two
vehicles approached “two amber lights flashing” on the side of the road, Mr. Bristow
heard a loud sound and immediately stopped. He exited his truck and noticed P.S. was
laying on the ground at the door of the car. Mr. Bristow then called 911, assessed the
scene, checked for pulses on Ms. T.S. and J.V., and went back to check on P.S. After
checking on P.S., he went back to where Ms. T.S. was laying. He looked off into the
field and saw Mr. Johnson’s truck sitting there with its headlights on, “going from reverse
to drive, reverse to drive.” Mr. Bristow “holler[ed]” and asked if he was okay. Mr.
Johnson turned the truck’s headlights off and lit a cigarette. Mr. Johnson never replied.
3 Officer Josh Roberts arrived on the scene and saw Mr. Johnson standing in the
middle of the field. After calling out to Mr. Johnson to come towards the roadway
multiple times with no response, Mr. Johnson started walking towards him. Mr. Johnson
complained of back and shoulder pain and asked Officer Roberts if he could sit behind
Officer Roberts’s patrol car. Mr. Johnson told Officer Roberts he had two to three beers.
Officer Roberts could smell alcohol “very strongly” coming from Mr. Johnson’s person
when he was talking to him and suspected him of driving under the influence. Corporal
Todd Watson with the Missouri State Highway Patrol questioned Mr. Johnson, and Mr.
Johnson admitted he was in the truck involved in the crash. Corporal Watson conducted
field sobriety tests on Mr. Johnson to determine intoxication, arrested him for driving
while intoxicated, and obtained a warrant for a blood sample from Mr. Johnson. The
results of the blood sample test confirmed Mr. Johnson’s blood alcohol content was still
0.138 percent six hours after hitting Ms. J.R.’s car, Ms. T.S., and her family.
The State charged Mr. Johnson with five felony counts: three for killing J.V., Ms.
T.S., and P.S. by operating a motor vehicle while under the influence of alcohol and two
for leaving the scene of an accident without stopping and providing contact information.
One leaving the scene of an accident charge was connected to Mr. Johnson’s accident
that resulted in injury to J.V. and the other was based on damaging Ms. J.R.’s car. A jury
found him guilty on all counts, and the trial court imposed a thirty-eight-year prison
sentence, including two consecutive four-year terms for each leaving the scene of an
accident charge.
4 Standard of Review
Mr. Johnson did not raise a double jeopardy issue at trial, nor did he preserve
Points I and II for appellate review. This Court may nonetheless employ a plain error
review of double jeopardy allegations under Rule 30.20.2 “Rule 30.20 is the exclusive
means by which an appellant can seek review of any unpreserved claim of error and said
claim—no matter if it is statutory, constitutional, structural, or of some other origin—is
evaluated by this Court’s plain error framework without exception.” State v. Brandolese,
601 S.W.3d 519, 530 (Mo. banc 2020). Plain error review is discretionary, and this Court
will not review a claim under this standard unless it “facially establishes substantial
grounds for believing that manifest injustice or miscarriage of justice has resulted.” Id. at
526 (quoting State v. Clay, 533 S.W.3d 710, 714 (Mo. banc 2017)). The burden of proof
falls on the criminal defendant to show manifest injustice entitling the defendant to plain
error review. Id. at 526. The alleged error must be evident, obvious, and clear. State v.
Minor, 648 S.W.3d 721, 731 (Mo. banc 2022).
Double Jeopardy and Legislative Intent
The double jeopardy clause of the United States Constitution provides that no
person shall “be subject for the same offence to be twice put in jeopardy of life or
limb[.]” U.S. CONST. amend. V. This protects criminal defendants against two
different situations: (1) successive prosecutions for the same offense after acquittal or
conviction; and (2) multiple punishments for the same offense. Currier v. Virginia, 138
S.Ct. 2144, 2150 (2018); State v. Hardin, 429 S.W.3d 417, 421 (Mo. banc 2014). The
United States Constitution’s Fourteenth Amendment applies these protections to state
2 All rule references are to Missouri Court Rules (2023).
5 prosecutions. Benton v. Maryland, 395 U.S. 784, 794 (1969). Mr. Johnson argues his
rights were violated because he received multiple punishments for one offense, leaving
the scene of an accident.
Courts generally determine whether multiple charges constitute the same offense
by considering whether each offense necessitates “proof of a fact which the other does
not.” Blockburger v. United States, 284 U.S. 299, 304 (1932); State v. Liberty, 370
S.W.3d 537, 546 (Mo. banc 2012). If no additional proof is required for one offense in
one count versus another offense charged in a second count, then charging a criminal
defendant with the same offense twice violates constitutional double jeopardy
protections. State v. Good, 851 S.W.2d 1, 3 n.2 (Mo. App. S.D. 1992). “But when a
defendant’s conduct is continuous, involves more than one item or involves more than
one victim, the test more appropriately is focused on the conduct the legislature intended
to proscribe under the statute.” Liberty, 370 S.W.3d at 546. If the legislature intended
cumulative punishments to be possible, then there is no double jeopardy issue when a
defendant is charged more than once for the same conduct. State v. McTush, 827 S.W.2d
184, 186 (Mo. banc 1992).
Missouri courts understand the Missouri General Assembly’s intent by
ascertaining what “unit of prosecution” is provided under an applicable criminal statute.
Horsey v. State, 747 S.W.2d 748, 751 (Mo. App. S.D. 1988) (en banc); Section 556.041.
Missouri courts also infer legislative intent by using the plain meaning of a statute’s
words. State v. Knox, 604 S.W.3d 316, 320 (Mo. banc 2020). We presume every word
in the text has meaning and understand that there is no superfluous language. State v.
Johnson, 524 S.W.3d 505, 511 (Mo. banc 2017). If a criminal statute so provides, a
6 single course of conduct or transaction may incur several units of prosecution such that a
person can be charged with multiple crimes without violating double jeopardy. State v.
Thompson, 147 S.W.3d 150, 160 (Mo. App. S.D. 2004). Conversely, the rule of lenity
requires this Court to read criminal statutes in favor of the accused when they do not
unambiguously allow multiple prosecutorial units. Liberty, 370 S.W.3d at 547. We find
no such ambiguity here.
Analysis
A person commits the offense of leaving the scene of an accident when:
(1) Being the operator of a vehicle or vessel involved in an accident resulting in injury or death or damage to property of another person; and
(2) Having knowledge of such accident he or she leaves the place of the injury, damage or accident without stopping and giving [specified contact] information to the other party or to a law enforcement officer[.]
Section 577.060.1 (emphasis added). “An” is an indefinite article used before singular
words with a vowel sound in place of the article “a.” The legislature’s use of “an” means
one offense of leaving the scene is tied to a single accident. State v. Harris, 153 S.W.3d
4, 8 (Mo. App. W.D. 2005) (“For this reason, Missouri courts interpreting various
criminal statutes using the word ‘a’ to specify the allowable unit of prosecution have
uniformly held that there was no double jeopardy violation when the defendant was
prosecuted and punished for multiple violations of the same statute.”); State v. Nichols,
865 S.W.2d 435, 437 (Mo. App. E.D. 1993) (“The plain and ordinary meaning of the
word ‘a’ is the singular ‘one.’”). The several instances of the disjunctive “or” further
indicate one violates section 577.060 each time he or she leaves the scene of an accident
because each single accident can result in injury or death or property damage alone. See
7 State v. Acevedo, 339 S.W.3d 612, 617 (Mo. App. S.D. 2011) (“The disjunctive ‘or’ in its
ordinary sense marks an alternative generally corresponding to the term ‘either.’”)
(internal citation omitted). Reading all of these terms together, a criminal defendant
violates section 577.060 each time he or she leaves the scene of a different accident
resulting in death, injury, or property damage.
Applied to the events of July 4, 2017, a jury could have found Mr. Johnson
committed the offense of leaving the scene of an accident when he struck J.V., which
resulted in J.V.’s death, and then drove away, and again when he struck and totaled Ms.
J.R.’s car and continued driving.3 Though people may refer to the entire sequence of
events as one “accident” in common parlance, each distinct impact was a separate
accident under section 577.060.
This understanding, that a defendant commits a separate offense of leaving the
scene of an accident for each qualifying accident he or she flees, conforms with existing
case law. In State v. Brown, a driver was charged with two counts of leaving the scene
of an accident after he hit two boys who were walking single file alongside a street. 547
S.W.2d 217, 218-19 (Mo. App. St.L.D. 1977). The defendant argued, just as Mr.
Johnson does here, that there was only one single accident constituting a distinct offense
and that he could not be charged with two counts of leaving the scene of an accident
connected to harming both children. Id. at 219. The court disagreed: “One accident
occurred when [the defendant’s] automobile struck [one boy’s] newscart, driving the cart
3 The record on appeal does not indicate why the State charged Mr. Johnson with only two counts of leaving the scene of an accident and did not attempt to prosecute him for leaving the scene of the accidents resulting in the deaths of Ms. T.S. and P.S.
8 into [him] and thereby injuring him. A second accident occurred when [the defendant’s]
vehicle struck and injured [the other boy]. Each impact constituted an accident.” Id. at
220. Missouri courts have since cited to Brown without questioning its holding. See,
e.g., State v. Childs, 684 S.W.2d 508, 511 (Mo. App. E.D. 1984) (finding no double
jeopardy violation from a conviction for three counts of forcible rape for acts perpetrated
over five hours); see also State v. Campbell, 551 S.W.2d 940, 942 (Mo. App. St.L.D.
1977) (finding no double jeopardy violation from a conviction for two counts of assault
with intent to do great bodily harm without malice). We find that the logic of Brown
applies here. Two different accidents occurred: the first, when Mr. Johnson struck J.V.
and the second, when Mr. Johnson struck Ms. J.R.’s car. He then left the scene of both
accidents, thereby creating the foundation for two counts under section 577.060.
Mr. Johnson argues his case is more similar to the facts in State v. Baker and
urges us to apply the same analysis here. 850 S.W.2d 944 (Mo. App. E.D. 1993). In
Baker, the defendant was convicted of four counts of possessing weapons in a prison. Id.
at 946. The charging statute forbade the bringing of “any” weapon into a correctional
facility. Section 217.360, RSMo 1986 (repealed, effective January 1, 2017). The
defendant argued his counsel was ineffective for failing to raise a double jeopardy
defense and that the motion court erred in denying his Rule 29.15 motion for post-
conviction relief without an evidentiary hearing. Baker, 850 S.W.2d at 947. Because the
word “any” in the criminal statute imparted ambiguity, the court determined it was
ambiguous as to the allowable unit of prosecution. Id. at 948. Therefore, double
jeopardy would have been a valid defense and the defendant was entitled to an
evidentiary hearing on his claim of ineffective assistance of counsel. Id.
9 Section 577.060, however, does not use the term “any” when describing a
qualifying accident. It is then not ambiguous as to the allowable units of prosecution and
allows for multiple prosecutions for each single accident. If section 577.060 read
“leaving the scene of any accident,” we might agree Baker supports Mr. Johnson’s
argument. Instead, section 577.060 refers to “an accident” resulting in a singular “injury
or death or damage to property.” A crime accordingly occurs each time a driver leaves
“an” accident, not “any” accident. Striking a mother, two children, and a vehicle on the
side of the road may have been one tragedy, but it was also multiple “accidents” under
section 577.060.
In Point II, Mr. Johnson alternatively argues that charging him with two counts of
leaving the scene of an accident violated double jeopardy protections under section
556.041 because leaving the scene of an accident is a continuing course of conduct
offense. This statute states, “When the same conduct of a person may establish the
commission of more than one offense he or she may be prosecuted for each such
offense.” Section 556.041. However, a “person may not . . . be convicted of more than
one offense if . . . [t]he offense is defined as a continuing course of conduct and the
person’s course of conduct was uninterrupted[.]” Section 556.041(4). Mr. Johnson
admits he “has been unable to find any Missouri case directly on point” but offers that
leaving the scene of an accident “may be most akin” to a continuing course of conduct
offense. His reliance on analogy under plain error review does not convince us there is
any evident, obvious, and clear error.
Section 556.041 only prohibits the conviction for multiple offenses for the same
conduct when the legislature has separately defined an offense as a continuing course of
10 conduct offense or when a criminal statute does not specify the allowable unit of
prosecution. State v. French, 79 S.W.3d 896, 899 (Mo. banc 2002) (“Only where the
charging statute is silent as to the unit of prosecution must recourse be made to
Missouri’s general cumulative punishment statute, sec. 556.041, RSMo.”); Thompson,
147 S.W.3d at 160 (saying the same). The statute does not apply here because the
legislature has not defined the crime of leaving the scene of an accident as a continuing
course of conduct offense, and, as previously discussed, section 577.060 is not
ambiguous and includes multiple units of prosecution for each qualifying accident that a
defendant leaves.
Mr. Johnson also relies on Good, 851 S.W.2d at 2. A jury found the criminal
defendant in Good guilty of two counts of resisting arrest: one for threatening an
arresting officer with a knife and another count for drawing a second knife to accost a
second officer who arrived to assist the first. Id. The defendant argued her convictions
violated double jeopardy and section 556.041 because both counts were based on an
uninterrupted, continuing course of conduct. Id. at 2-3. We agreed because “the gist of
the offense is the resistance by the defendant and not the number of officers involved.”
Id. at 6. However, Good is distinguishable because it addresses a different criminal
statute. Whereas section 577.060 provides a person “commits the offense of leaving the
scene of an accident” each time the person leaves the scene of an accident “resulting in
injury or death or damage to property[,]” section 575.150 criminalizes the single act of
resisting “the arrest” regardless of the number of officers present. Section 577.060
(emphasis added); Section 575.150, RSMo 2000. As case law had already determined
when we decided Good, “[t]he gravamen of the offense [of resisting arrest] is resisting an
11 arrest, not flight from a law enforcement officer.” Good, 851 S.W.2d at 5-6 (quoting
State v. Long, 802 S.W.2d 573, 575 (Mo. App. S.D. 1991)). Section 575.150 focuses on
a defendant’s actions and not “upon how many officers were attempting to arrest the
defendant[.]” Id. at 6. Missouri precedent on the offense of leaving the scene of an
accident, on the other hand, shows it permits multiple units of prosecution. Brown, 547
S.W.2d at 220.
Mr. Johnson has supplied nothing further to make us question the holding in
Brown. Given Mr. Johnson’s admission that he has found no Missouri case law
“directly on point” to support his argument that leaving the scene of an accident is a
continuing course of conduct offense, we find no plain error in his convictions.
Points I and II are denied.
Point III: The Trial Court did not Abuse its Discretion by Overruling Mr. Johnson’s Request for a Mistrial due to Juror Misconduct when the Alleged Misconduct at Issue Amounted to an Exchange of Pleasantries.
Facts Pertinent to Point III
Following a break during the trial, Mr. Johnson informed the trial court that two
of his nieces saw Sergeant Pulley from the Missouri Highway Patrol, one of the State’s
witnesses who had just testified in the trial, speaking with a juror in the courthouse
parking lot. The trial court called Sergeant Pulley and the juror into the courtroom to
testify about their encounter. Sergeant Pulley said he had not realized he was speaking to
a juror and explained that their conversation was not about Mr. Johnson’s trial. The juror
had called out to Sergeant Pulley because she thought she recognized him. By
coincidence, the juror knew Sergeant Pulley’s twin brother as a referee for youth
volleyball. Both Sergeant Pulley and the juror testified that their conversation did not
12 stray from the topic of their mutual relationship with Sergeant Pulley’s brother, and they
only spoke for mere moments.
Mr. Johnson moved for a mistrial. The trial court saw the interaction as small talk
and denied Mr. Johnson’s motion.
Standard of Review
A trial court has great discretion to conduct trial proceedings, and this Court will
not disturb its rulings at trial absent a showing of an abuse of discretion. State v.
Downum, 598 S.W.3d 189, 199 (Mo. App. S.D. 2020). That discretion extends to the
trial court’s rulings on accusations of juror misconduct. State v. Smith, 944 S.W.2d 901,
921 (Mo. banc 1997) (“A trial court’s ruling as to the existence of juror misconduct will
not be disturbed absent a finding of abuse of discretion on review.”); State v. Dunn, 21
S.W.3d 77, 83 (Mo. App. S.D. 2000) (saying the same). A mistrial is a drastic remedy
and should only be used where the resulting prejudice cannot be remedied. State v.
Schneider, 736 S.W.2d 392, 400 (Mo. banc 1987). A criminal defendant seeking a new
trial on the basis of juror misconduct must establish that said misconduct actually
occurred. Dunn, 21 S.W.3d at 84. Only then must the State affirmatively demonstrate
that jurors were not improperly influenced or otherwise engaged in misconduct that
deprived the defendant of his right to a fair and impartial jury. Id. Allegations of juror
misconduct alone are not self-proving. Smith, 944 S.W.2d at 921.
Mr. Johnson argues, based on State v. Friend, the trial court abused its discretion
in overruling his motion for a mistrial because even “innocent visiting” between a
witness and juror should be avoided. 607 S.W.2d 902, 904 (Mo. App. S.D. 1980). This
13 Court held in Friend that a trial court did not abuse its discretion in refusing to grant a
mistrial after it learned that a prosecuting witness spoke to a juror during a recess about
an incident that occurred during the break of the trial where a deputy sheriff knocked a
cigarette out of the mouth of another juror. Id. The trial court did not grant the mistrial
because the juror and witness did not discuss the merits of the defendant’s case or trial
proceedings. Id.; see also State v. Eaton, 504 S.W.2d 12, 21-22 (Mo. 1973) (holding a
trial court did not abuse its discretion in failing to grant a mistrial where a juror spoke to a
complaining witness but there was “no showing that anything relating to the case on trial
was discussed during the conversation or that any prejudice to appellant’s rights
resulted”). The same reasoning applies in Mr. Johnson’s case.
In this case, there was no evidence that the topic of the conversation between
Sergeant Pulley and the juror was related at all to the trial. “When matters are ‘casual,
brief and totally unrelated to anything associated with the trial,’ there is no prejudice to
the defendant.” Hanna v. State, 398 S.W.3d 125, 132 (Mo. App. S.D. 2013) (quoting
State v. Baum, 714 S.W.2d 804, 811 (Mo. App. S.D. 1986)). Here, the juror thought she
recognized the sergeant, and they talked briefly about his brother. Mr. Johnson presented
nothing additional contradicting the juror’s and Sergeant Pulley’s affirmations, and Mr.
Johnson suffered no prejudice. The trial court independently reviewed the accusation of
juror misconduct and did not believe mistrial was warranted. The trial court did not
abuse its discretion in overruling Mr. Johnson’s motion for mistrial given that the juror
and sergeant’s conversations amounted to mere pleasantries. Id. at 133 (“An exchange of
‘pleasantries’ does not automatically result in ‘grievous prejudice’ to a defendant
requiring trial court grant of the drastic remedy of a mistrial.”).
14 Point III is denied.
Conclusion
The trial court’s judgment convicting Mr. Johnson of his charges is affirmed.
JENNIFER R. GROWCOCK, J. – OPINION AUTHOR
JACK A. L. GOODMAN, C.J. – CONCURS
MARY W. SHEFFIELD, J. – CONCURS