State v. Fortner
| Decision Date | 07 October 2014 |
| Docket Number | No. ED 100156.,ED 100156. |
| Citation | 451 S.W.3d 746 |
| Parties | STATE of Missouri, Plaintiff/Respondent, v. Theresa FORTNER, Defendant/Appellant. |
| Court | Missouri Court of Appeals |
James C. Ochs, Ochs & Klein, P.C., Clayton, MO, Patrick T. Ochs, Co–Counsel, Ochs & Klein, P.C., Clayton, MO, for appellant.
Gregory L. Barnes, Assistant Attorney General, Jefferson City, MO for respondent.
Theresa Fortner (Defendant) appeals from the judgment entered upon her convictions following a bench trial for second-degree felony murder, first-degree endangering the welfare of a child, and armed criminal action. Defendant was sentenced as a prior and persistent offender to concurrent terms totaling twelve and one-half years' imprisonment. On appeal, Defendant challenges the seizure of a blood sample obtained by law enforcement, the admission of her blood alcohol test results, and the sufficiency of the evidence to support her convictions for child endangerment and armed criminal action. We affirm.
Viewed in the light most favorable to the State, the evidence shows that around 9:00 a.m., on July 4, 2011, Defendant was sitting in her car with her 19–month–old granddaughter, B.H., in the parking lot of her apartment complex in Arnold, Missouri. Defendant called her sister, Jennifer Outlaw, and said that she had been up since 5:00 a.m. and that B.H. was in the car. Defendant also told Outlaw that she had been drinking. Outlaw told Defendant not to drive and to take B.H. back to the apartment and give her to C.H. (B.H.'s mother).1 At that point, Defendant ended the conversation and proceeded to drive her Toyota Camry, with B.H. in the back seat, onto I–55 highway heading northbound toward St. Louis. At approximately 9:15 a.m., Defendant exited the highway at Loughborough Avenue and lost control of the car. The car struck a deflector, a one–way street sign, a tree, and then crossed through a residential yard before colliding into a brick house and landing “flipped up” and backwards against a tree. An eyewitness reported that the Camry was traveling at such a high rate of speed that two of its wheels were off the ground as it was coming off the highway exit. Both Defendant and B.H. were seriously injured and transported to the hospital. B.H. died the next day as a result of the injuries she sustained in the accident. Data recovered from the Camry's air bag control module showed that in the 4.4 seconds before the air bags deployed, Defendant accelerated from approximately 65 mph to over 67 mph and the brakes were never applied.
Police also found four empty wine bottles in the car following the accident.
Defendant arrived at the hospital at approximately 9:52 a.m. In accordance with an order issued by the treating physician at 10:29 a.m., medical personnel drew two blood samples from Defendant. One sample was taken to the hospital lab while the second sample remained in the emergency room. Shortly after the accident, Officer Todd Grimes, a St. Louis police officer, who had initially responded to the scene of the accident, was sent to the hospital to speak with Defendant. Officer Grimes read Defendant the Miranda2 warnings, as well as the provisions of Missouri's “implied consent” law, § 577.020, RSMo.3 After indicating that she understood, Defendant gave her consent for the officer to obtain a blood sample to determine her blood alcohol level. Due to the condition of Defendant's veins as a result of receiving a blood transfusion, medical personnel were unable to draw an additional blood sample from Defendant. Instead, Officer Grimes was given Defendant's previously drawn blood sample that was still in the emergency room. Officer Grimes took the blood sample to the police lab and it was sent to the toxicology lab for testing on July 6, 2011. A gas chromatography test conducted on the blood sample revealed that Defendant's blood alcohol content was .226 percent, more than twice the legal limit.
Defendant was subsequently charged by substitute information in lieu of indictment with second-degree felony murder, and, in the alternative, first-degree involuntary manslaughter, armed criminal action based on the felony murder charge, and, in the alternative, armed criminal action based on the involuntary manslaughter charge, and first-degree endangering the welfare of a child. Defendant waived her right to a jury trial and filed a motion to suppress the results of her blood alcohol test, which the trial court overruled. At trial, the blood test results were admitted into evidence over objection. Defendant was found guilty of second-degree felony murder, first-degree endangering the welfare of a child, and armed criminal action, and sentenced to concurrent terms totaling twelve and one-half years' imprisonment. Defendant filed a motion for new trial, which was denied. Defendant now appeals.
In her first point, Defendant contends that the trial court erred by overruling the motion to suppress the results of her blood alcohol test, and objections to its admission at trial, because her blood sample was collected for “medical purposes” and its seizure by a law enforcement officer violated her constitutional rights against unreasonable searches and seizures.4 Specifically, Defendant complains that Officer Grimes did not obtain a warrant or her consent before seizing the blood sample.
In reviewing a trial court's ruling on a motion to suppress, our inquiry is limited to determining whether the decision is supported by substantial evidence, and we will reverse the ruling only if it is clearly erroneous. State v. Goff, 129 S.W.3d 857, 862 (Mo. banc 2004). The trial court's ruling is clearly erroneous if we are left with a definite and firm belief that a mistake has been made. State v. Leavitt, 993 S.W.2d 557, 560 (Mo.App.W.D.1999). “We consider the evidence presented at the pretrial hearing, as well as any additional evidence presented at trial.” State v. Dillard, 158 S.W.3d 291, 297 (Mo.App.S.D.2005). The evidence is viewed in the light most favorable to the trial court's ruling. Id. We defer to the trial court's factual findings and credibility determinations, but we review questions of law de novo. State v. Rousan, 961 S.W.2d 831, 845 (Mo. banc 1998).
In her motion to suppress, Defendant claimed that although she “impliedly consented” to having her blood drawn by medical personnel while being treated for her injuries, that consent was “limited” to use for medical purposes only. Defendant further claimed that she had a “privacy interest” with respect to the blood sample. At the hearing on the motion to suppress, defense counsel asserted that because the blood sample was obtained based on Defendant's implied consent, a warrant or her additional consent was required before the blood sample could be lawfully seized.
In support of this contention, Defendant relies on State v. Copeland, 680 S.W.2d 327 (Mo.App.S.D.1984). Defendant's reliance on that case is misplaced. In Copeland, the Court addressed the issue whether an unconscious person's implied consent to receive medical treatment following an accident, which included a blood sample being drawn by hospital personnel for medical purposes, was protected by the “physician-patient privilege.” Id. at 329 ; see § 491.060(5), RSMo 1978. The Court specifically held that the law in effect at the time the defendant's blood was taken prevented the blood test results from being used against him in a criminal proceeding. Id.
Subsequent to Copeland, the legislature enacted § 577.037, which creates an exception to the physician-patient privilege with respect to the admissibility of blood alcohol test results in proceedings involving alcohol-related driving offenses.5 In addition, the Court in Copeland specifically noted that there was no probable cause to believe that the defendant had committed an alcohol-related offense because no alcoholic containers were found in the defendant's vehicle and there was no evidence of improper driving. Id. at 331. By contrast, in this case, the officers found empty wine bottles in Defendant's car after the accident and an eyewitness reported that Defendant was driving at such a high rate of speed coming off the exit that two of the car's wheels left the ground. Further, the evidence demonstrated that Defendant did not apply the car's brakes while exiting the highway, and instead, accelerated, striking several objects before plowing through a yard and colliding into a house. Moreover, in overruling Defendant's motion to suppress the blood test results, the trial court found that Copeland did not apply to the facts of this case, in part, because the State's theory was not based on “implied consent,” but rather that Defendant voluntarily consented to having her blood tested.
A similar issue was addressed by this Court's Southern District in State v. Waring, 779 S.W.2d 736, 739 (Mo.App.S.D.1989). In that case, the defendant was charged with involuntary manslaughter after driving his truck while intoxicated and causing an accident that resulted in a fatality. On appeal, the defendant challenged the admissibility of his blood alcohol test results, claiming that he had a “privacy interest” in his blood sample drawn for “medical purposes” that was protected by the “physician-patient” privilege, and therefore, the results of a blood alcohol test conducted on the blood sample were inadmissible. Id. at 739–40. The defendant also claimed that because the blood test was not obtained pursuant to the provisions of the implied consent law, the test results were inadmissible. Id. at 740. In rejecting these arguments, the Court found that the defendant's blood sample was not protected by the physician-patient privilege because § 577.037.1 provides an exception to the privilege and allows...
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