State v. Putney

• Decision Date: 27 October 2015
• Docket Number: No. ED 102420,ED 102420
• Citation: 473 S.W.3d 210
• Parties: State of Missouri, Respondent, v. George F. Putney, Appellant.
• Court: Missouri Court of Appeals

473 S.W.3d 210

State of Missouri, Respondent,

v.George F. Putney, Appellant.

No. ED 102420

Missouri Court of Appeals, Eastern District, DIVISION FOUR .

FILED: October 27, 2015

Paul J. D'Agrosa, 7710 Carondelet, Suite 200, Clayton, MO 63105, for appellant.

Chris Koster, Evan J. Buchheim, P.O. Box 899, Jefferson City, MO 65102, for respondent.

KURT S. ODENWALD, Judge

Introduction

Appellant George Putney ("Putney") appeals from the judgment of the trial court entered following a bench trial. The trial court found Putney guilty on two counts: leaving the scene of a motor vehicle accident (Count I) and first-degree involuntary manslaughter (Count II). Putney argues that the trial court erred in denying his motion for judgment of acquittal. Putney contends there was insufficient evidence to find, beyond a reasonable doubt, that he was driving while in an intoxicated condition at the time of the accident. Accordingly, Putney argues that his conviction under Count II should be overturned. Because the evidence and reasonable inferences therefrom, though circumstantial, are sufficient to support a finding that Putney operated his vehicle while in an intoxicated condition at the time of the accident, we affirm the judgment of the trial court.

Factual and Procedural History

On January 26, 2012, Putney went to Arena Bar for lunch around noon. Arena Bar was located at the 5600 block of West Park in the City of St. Louis. Lisa Kehm ("Kehm") owned the bar with her husband. Kehm waited on Putney that day, Kehm recognized Putney as she had known him for twenty years, was one of his good friends, and Putney was a regular customer at the bar. Kehm served Putney two cans of Pepsi and lunch. Kehm denied serving Putney any alcohol. Kehm also stated that no one else served Putney alcohol while she was at the bar. Kehm left the bar after her shift, which ended about 2:00 or 2:30 P.M. Putney was still at the bar when Kehm left. Putney's credit-card receipt from that afternoon was timestamped at 4:11 P.M. While the receipt was not itemized, Kehm testified that Putney's lunch would have cost $10, and his two sodas were $2 each, for a total of around $14. According to the receipt, Putney's bill was $33.40. At the time, a glass of beer was $3, and mixed drinks were $4.25. There was no testimony as to what Putney consumed after Kehm left around 2:30 P.M.

Putney was later seen a short distance away at St. James the Greater Catholic Church, in the Dogtown neighborhood of the City of St. Louis, coaching youth basketball. Putney conducted the practice in his dress shirt, dress slacks, and dress shoes. Susan Faccaro ("Faccaro"), the mother of a child on the team, was at the practice and noticed Putney demonstrating basketball moves. At one point, Faccaro saw her son on the ground and Putney standing over him. Another time, she saw Putney blocking Emeric, another boy on the team, to the ground. Faccaro noticed Putney was having an obvious problem with his balance during the practice and was more "aggressive" and "physical" with the ten-year-old boys than usual. In a discussion after practice, Faccaro found Putney to be more "happy" and "excitable" than usual, though she had only talked to him a few times. Putney was talking fast and repeating himself. Faccaro thought Putney was "acting weird." Faccaro and Chris Prichard (another parent) pulled Emeric's father, Joseph Finn ("Finn"), aside. According to Finn, Faccaro and Prichard "brought up that they thought [Putney] perhaps was intoxicated." Finn was not at the basketball practice but he arrived after practice to pick up his son. Finn interacted with Putney and noticed a "tint" of alcohol on Putney's breath. Finn did not notice anything unusual about his demeanor and did not believe Putney was drunk. Putney told another basketball coach that he was going back to Arena Bar at approximately 5:35 P.M.

Eliza Coriell ("Coriell") was also a server at Arena Bar. Coriell testified that she started her shift around 6:15 P.M. She could not remember whether Putney was there when she began her shift. Coriell did not serve Putney any drinks, but did remember serving him water. Coriell did not notice anything unusual. At some point, Putney left Arena Bar and stopped by Jack in the Box. A Jack–in–the–Box receipt found in Putney's vehicle was timestamped at 7:23 P.M.

At approximately 7:35 P.M., Kayla Taylor ("Taylor") was driving eastbound on Clayton Road, near Mason Road in west St. Louis County. Taylor saw a sudden movement from a westbound vehicle. The westbound vehicle, a GMC Envoy, travelled into the eastbound lane. Taylor did not see the actual collision because her view was obscured by the vehicle in front of her, but the westbound Envoy collided with an eastbound Volvo in the eastbound lane. Mark Cusumano ("Cusumano") was a passenger in a vehicle near the scene. Cusumano immediately exited his vehicle and approached the accident scene. The driver of the Volvo ("Victim") was nonresponsive. Cusumano testified that the driver of the Envoy repeatedly tried to start his engine. Concerned that starting the Envoy would ignite spilled fluids at the accident scene, Cusumano yelled at the driver to stop. Several other bystanders also attempted to stop the driver. The driver managed to start his engine and drove westward, slowly. The driver nearly hit Cusumano's vehicle while leaving the scene. Cusumano identified Putney as the driver.

Putney drove for a short distance westbound on Clayton Road until he again crossed over the center line. Putney's vehicle came to a rest, facing westbound, in a drainage ditch on the eastbound side of the road. Three witnesses testified that they saw Putney around this time. Joshua Levey ("Levey") knew Putney personally through business. Levey first saw Putney in his vehicle just after the accident; Putney appeared to be driving away. Levey, who made a U-turn to go a different route because traffic blocked the road, noticed the same vehicle stopped on the side of the road. Andrew Purtell ("Purtell") was also a motorist in the area. He noticed a man in dark pants and a dress shirt running away from the accident on the side of the road towards Weidman Road. Purtell had to swerve to avoid hitting the man. Kathleen Kramer–Smith ("Kramer–Smith") was headed east on Clayton at around 8:00 P.M. Kramer–Smith noticed a man in a grassy area wearing a dress shirt and slacks. Kramer–Smith testified:

Well, what caught my attention mainly was the manner in which [the man] was moving. He was very—[h]e seemed distressed, and he was moving in a rather awkward fashion. His hands were kind of up, like he was bracing for a fall. Not real controlled is what I thought. And there was kind of a teetering in his walk, a fast-paced walk.... Side to side.

Police officers arrived on the scene about 7:40 P.M., roughly five minutes after the accident. The officers found the Volvo still sitting in the eastbound lane on Clayton Road, and they found the Envoy a short distance away in a drainage ditch. Police found Victim inside the Volvo. Victim was non responsive at the scene, and was pronounced dead at the hospital. The cause of death was blunt trauma to the chest.

Detectives, accident reconstructionists, and crime-scene technicians soon arrived to reconstruct the scene. Road conditions were dry that night. The technicians found fluid spots at the scene of the accident. The Volvo had heavy front-end damage. The Envoy also had significant front-end damage, but the tires were still inflated and in good condition. The speed limit on Clayton Road, a two-lane road with little shoulder, was thirty-five miles per hour. Detectives searched the Envoy's crash data retrieval system, which revealed that the Envoy was travelling at forty-two miles per hour at the time of the crash. No brakes were applied in the eight seconds leading up to the crash. The crash data retrieval system also showed constant pressure on the throttle; there was no increase or decrease in pressure on the throttle in the seconds before the crash.

The team processed the rest of the scene around the Envoy, which was mired in mud. A single dress shoe was found lying on the ground. Inside the Envoy, officers found Putney's wallet, a hamburger, onion rings, and other items from Jack in the Box. As mentioned above, the receipt from Jack in the Box was timestamped at 7:23 P.M. The interior of the Envoy smelled of alcohol and airbag material. The team also found a styrofoam cup in the middle console, which contained a pink liquid. The cup resembled the cups used by Arena Bar. Emily Smelser ("Smelser"), a criminalist with the Missouri State Highway Patrol Crime Lab, conducted an alcoholic beverage analysis on the pink liquid inside the cup. The results of the liquid were 5.41% ethanol by volume positive, and 4.31% by weight. These measurements allowed Smelser to conclude that the liquid inside the cup was an alcoholic beverage, though the testing could not specify the type of alcohol.

Officers ran the plates on the Envoy and determined that it was registered to Putney. Officers were immediately dispatched to Putney's residence. Putney was not home. Putney's wife answered the door and agreed to call Putney. Putney answered his cell phone and talked to Officer Janet Nisbet ("Officer Nisbet"). Putney assured Officer Nisbet that he was nearby, and that he would come home. About an hour later, Putney's wife called him again. Putney answered, said he did not need a ride, and hung up after his wife asked him when he was coming home. Officers waited at Putney's house for four hours, but Putney never came home. At 10:56 P.M., Putney called police in response to urgent voicemail messages police left on his cell phone. Putney told the officers he would turn himself in, but not until later, and hung up.

Police were able to "ping" Putney's cell phone. The phone's location was near Putney's brother's house in south St. Louis County. When police arrived at Putney's brother's house, the lights...