State v. Cupp
| Docket Number | 125,743 |
| Decision Date | 22 November 2023 |
| Parties | State of Kansas, Appellee, v. Coby Landon Cupp, Appellant. |
| Court | Kansas Court of Appeals |
NOT DESIGNATED FOR PUBLICATION
Appeal from Crawford County District Court; LORI BOLTON FLEMING judge. Oral argument held September 19, 2023.
Amy M Ross and Robert E. Myers, of Columbus, for appellant.
Steven J. Obermeier, assistant solicitor general, and Kris W Kobach, attorney general, for appellee.
Before COBLE, P.J., MALONE and WARNER, JJ.
After a late-night single vehicle accident, the State charged Coby Landon Cupp with alternative crimes: one count of driving under the influence (DUI), second offense, with a blood alcohol content (BAC) of 0.08 or higher; and an alternative count of DUI, second offense, incapable of safely operating a vehicle. After the jury found him guilty of both offenses the district court convicted him only on Count 1. Cupp appeals his conviction, raising evidentiary challenges, challenges to the jury verdict form, and a sufficiency of the evidence issue. After review, we affirm his conviction. Exigent circumstances existed to justify the warrantless draw of Cupp's blood, and the admission of one deputy's testimony regarding the temperature of Cupp's truck engine block was harmless even if it may have been erroneous. Furthermore, the district court entered only one conviction despite the jury's findings on both alternative counts; and sufficient evidence supported Cupp's DUI conviction and validated the denial of his motion for acquittal at the close of trial.
Testimony at Cupp's trial outlined the events which underlie his conviction. At 12:44 a.m. on September 29, 2019, Deputy Tim Milburn of the Crawford County Sheriff's Office responded to a one-vehicle accident. When Deputy Milburn located the reported accident, he saw a red GMC Sierra pickup truck against the tree line in the east ditch. It appeared the truck had gone off the road and struck a tree, as the truck's front end was smashed.
Deputy Milburn made his way off the roadway to the truck, opened the passenger's side door, and found a man lying in the passenger seat with his feet on the driver's side floorboard. Specifically, the vehicle's occupant was facing toward the dash with his upper legs toward the driver's side floorboard, feet under the steering wheel but his torso slumped over with his head toward the passenger's side. The man was nonresponsive to the deputy's questions; to Deputy Milburn, he appeared to be unconscious upon first contact.
The deputy then retrieved a wallet from the man's pocket determined him to be Cupp, and noticed Cupp had bleeding from his face. Cupp's glasses were up in the dash area closer to the passenger's side, and in the dust, the deputy saw a smudge on the dash to the right of the stereo system. Based on these observations, Deputy Milburn deduced it was possible that Cupp had hit his face on the dash. The deputy continued to assess whether Cupp was awake, but Cupp remained nonresponsive to questions. So, Deputy Milburn leaned down to determine if Cupp was still breathing. When he did so, he determined Cupp was still breathing and at the same time could smell the odor commonly associated with alcohol coming from Cupp's breath. Deputy Milburn described Cupp's breathing as "snoring type breathing." Deputy Nathan Swartz, who was also dispatched to the scene and arrived after Deputy Milburn, described Cupp as
While assessing the scene, Deputy Swartz witnessed an open can of beer on the floorboard in a koozie, which was still cold with condensation on the beer can.
Based on the odor of alcohol, the open container, and the circumstances of the accident, Deputy Milburn believed Cupp might be intoxicated. Deputy Milburn called for the paramedics and, while waiting for them to arrive, prepared supplies for a blood draw because he figured he would likely be drawing Cupp's blood due to his facial injuries and his need for medical treatment, which may have included helicopter transport. A life flight helicopter had been requested due to Cupp's injuries, but the helicopter declined making the flight because of the weather. Further details of the exact weather conditions were neither evident in the record nor discussed at trial.
The paramedics arrived, assessed Cupp, moved him from the truck to the ambulance, and started treating him. Once Cupp was moved into the ambulance, Deputy Milburn read Cupp the Implied Consent Advisory Form, the DC-70, and asked Cupp if he consented to the blood draw. Cupp was nonresponsive to this question. Deputy Milburn requested a paramedic perform the blood draw. Jacob Ward, a paramedic with the Crawford County EMS, drew the blood sample.
This blood sample was sent to the Kansas Bureau of Investigation (KBI) for testing. According to the KBI report, the level of ethyl alcohol in Cupp's blood sample was 0.29 grams per 100 milliliters of blood. Similarly, a forensic toxicologist testified at trial that the blood sample was positive for ethyl alcohol at a concentration of 0.29 grams per 100 milliliters of blood.
Deputy Swartz noticed the truck was inoperable with significant damage to the front end. The front passenger's side of the hood was bunched up, and Deputy Swartz put his hand in to feel the engine block area. He felt that the engine block was "a little bit warm." The deputy testified feeling the engine block to assess its temperature was something that he routinely did as a deputy because it was a good indication of whether the vehicle had been there for a while or not. Based on his feeling of the engine block and his prior experiences, Deputy Swartz testified that the truck had "been driven within a few hours probably."
Prior to the deputy offering his conclusion on when the vehicle had last been operated, Cupp's attorney objected to the testimony arguing, The State countered that the "question is based upon the witness['] own experiences which he has laid foundation for." The district court allowed Deputy Swartz to "testify based upon [his] prior experiences and the facts of this case."
At trial, Cupp testified in his own defense. He denied operating the truck. He testified that day he walked from his house to a restaurant for lunch, where he met a man who introduced himself as Nate. According to Cupp, Nate offered to give him a ride home to his residence, and they went there in Nate's vehicle. The pair socialized on Cupp's porch, and at some point, they decided to go to the local casino. However, Nate's vehicle was low on gas, so they took Cupp's son's truck (the vehicle that was ultimately crashed). Before leaving his home, Cupp grabbed a beer "to go" because he did not want to pay the prices charged for a beer at the casino.
Cupp testified that he was not driving the truck, rather Nate was driving. Cupp was not wearing his seatbelt. He recalled that while Nate was driving, the truck went airborne and hit two trees, one on each side of the truck, and the collision "almost shoved the motor in [their] laps." He did not know what caused the truck to leave the road because he was looking down at his phone just before the truck left the roadway. According to Cupp, Nate offered to help Cupp walk home, but Cupp could not walk because he "was too injured." So, Nate left Cupp in the truck, and Cupp called 911. He recalled his injuries at trial:
Cupp testified he tried to get out of the passenger's side but could not open the door. He said he was able to get out of the driver's side "and that's when [he] encountered the officers." He stated he was waiting for the ambulance and spoke with Deputy Milburn but could not recall anything of their conversation. Cupp testified that he remembered being in a great deal of pain, so he went back to the truck to lay in the seat until the ambulance arrived. He testified that he smelled so much of alcohol because when the truck made impact with the trees, his beer spilled everywhere.
Cupp did not call Nate as a witness. Deputy Milburn testified during rebuttal there was no one at the scene named Nate except Deputy Swartz, and it did not appear there had been anyone outside of the truck prior to when he arrived on the scene. The deputy testified, contrary to Cupp, that the first contact he had with Cupp was opening the passenger's side door and seeing him laying unresponsive in the truck. Unfortunately, the jury did not have the benefit of Deputy Milburn's bodycam video footage to reconcile these contradictory versions of events. The deputy was not wearing his bodycam because it was elsewhere downloading evidence. However, Deputy Swartz' bodycam video footage was introduced as evidence at trial.
The State brought alternative charges against Cupp-each a variation of DUI. The complaint alleged that Cupp operated a motor vehicle while sustaining a BAC of at least 0.08 grams second offense, in violation of K.S.A. 8-1567(a)(1). In the alternative, the State alleged Cupp operated a motor vehicle while under the influence of alcohol to a degree that rendered him incapable of safely driving a vehicle, second offense,...
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