State v. Weaver

• Docket Number: 20220182-CA
• Decision Date: 21 December 2023
• Parties: State of Utah, Appellee, v. Christopher Weaver, Appellant.
• Court: Utah Court of Appeals

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2023 UT App 154

State of Utah, Appellee,
v.
Christopher Weaver, Appellant.

No. 20220182-CA

Court of Appeals of Utah

December 21, 2023

Fifth District Court, St. George Department The Honorable Keith C. Barnes No. 201501532

Nicolas D. Turner, Attorney for Appellant

Sean D. Reyes and Emily Sopp, Attorneys for Appellee

Judge Amy J. Oliver authored this Opinion, in which Judges Ryan M. Harris and Ryan D. Tenney concurred.

OPINION

OLIVER, Judge

¶1 The State charged Christopher Weaver with criminal automobile homicide after he slammed his speeding pickup truck into a stopped car at a red light, killing the young driver. A jury acquitted Weaver of criminal automobile homicide and instead convicted him of the lesser included charge of negligent automobile homicide. Weaver appeals that conviction on three grounds: (1) his trial counsel rendered constitutionally ineffective assistance by stipulating to an improper Allen charge, see Allen v. United States, 164 U.S. 492 (1896), (2) the trial court wrongly admitted text messages between him and his estranged wife, and (3) there was insufficient evidence he had been impaired while driving. We reject these arguments and affirm his conviction.

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BACKGROUND^[1]

¶2 On a clear October morning in 2019, Weaver was driving to work on I-15 in his lifted Ford F-350 pickup truck when an eyewitness observed him swerving in and out of his lane "excessively." That same morning, twenty-year-old Kelly^[2] was on her way to hike in Zion National Park after visiting her grandmother during fall break. Weaver took an exit at 72 miles per hour and sped past the flashing yellow light warning of a stoplight ahead. Weaver later claimed he intended to turn left at the intersection to go to the gas station, but he did not enter the empty left-turn lane. Instead, he smashed his truck into the back of Kelly's compact car-which was stopped at the red light-at 57 miles per hour. The impact slammed Kelly's car into the truck in front of her and spun her car until it stopped sideways in the traffic lane.

¶3 Several witnesses rushed to help Kelly and Weaver. Kelly was severely injured in the crash and died shortly after witnesses managed to remove her from her car. Weaver requested to be taken to a hospital, where he was diagnosed with a concussion and treated for a nasal fracture. No field sobriety tests were conducted at the crash site.

¶4 Approximately three and a half hours after the crash, Weaver's blood was drawn at the hospital, and the toxicology report showed he had 46 nanograms per milliliter of oxycodone in his system. Weaver had told emergency responders multiple times that he had taken a sleeping aid that day, but he did not

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disclose taking any opioids. To treat his chronic back pain, Weaver had a prescription for oxycodone and oxymorphone.

¶5 Two days earlier, on October 9, Weaver had texted his estranged wife to ask if she wanted him to "pee in a cup" before he picked up their son. She responded that he did not need to, so long as he promised not to drive their son with "anything" in his system because it was "not worth any kind of risk." Weaver promised he would not drive with "stuff" in his system. In a text to his wife on October 10, Weaver admitted to drinking "2 shots and a beer." On October 11, the morning of the crash, Weaver's wife texted him at 5:28 a.m. to see if he could drive their son to school. Weaver did not respond until 8:49 a.m.-several hours before the crash-and apologized for missing the text. His wife replied she was worried he had been "taking drugs" and was "too asleep" to hear his phone. Weaver told her he had only taken sleeping pills.

¶6 After the crash, Weaver was charged with criminal automobile homicide, a second-degree felony, and speeding, an infraction. Prior to trial, Weaver filed a motion in limine seeking to exclude the text messages between him and his wife, as well as his pre-crash internet searches for "[b]est synthetic urine for sale," the rules on refilling prescriptions, and substance abuse therapy. In response, the State filed a motion in limine seeking to introduce into evidence Weaver's internet searches; the text messages between him and his wife on October 9 and October 10; and two items found in Weaver's truck after the crash-a rolled-up dollar bill with white residue and an open alcohol container. Following a hearing on the motions, the court ruled that the October 10 text about drinking, the rolled-up dollar bill, and open alcohol container were inadmissible. However, the court found the October 9 texts about Weaver's offer to "pee in a cup" were "relevant to whether [Weaver] acted with criminal negligence" because they showed "his consciousness of the risk associated with having anything in his system that could impair his driving."

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¶7 At trial, the State's first witness (Eyewitness) testified he had been driving behind Weaver on I-15 and paying close attention to Weaver's "good-looking black Ford truck" because his "hobby is lifted trucks." Eyewitness testified about Weaver's "excessive[] swerving," describing it as follows:

[A]t first, [Weaver] was going into the shoulder of the road . . . by a good 18 inches, maybe two feet, [and] his tires were over that white line. And he drifted over, stayed that way for a few seconds, drifted back into the lane, and then he started drifting back into the left lane

Now, he did that several times. He'd go back into the left lane, . . . [and] he went back over to the right, went again 18 to 24 inches into the shoulder, but he seemed to be excessively leaning towards the left, the center line. And he kept getting further out each time.

At one point in time just before . . . the Hurricane exit, half of his truck was in the-the other person's lane . . . . And I noticed that because his center differential was over the dotted line. And there were several cars that needed to pass him that were moving faster than him on the freeway, and they saw what he was doing, and they just held back.

Eyewitness "wouldn't move past him either" and stayed behind Weaver. Eyewitness, having taken the same exit off the freeway, saw Weaver's truck smash into Kelly's car and described trying to render aid to both Weaver and Kelly.

¶8 The State's next witness was the forensic toxicologist (Toxicologist) who analyzed Weaver's toxicology report. She testified that Weaver's blood sample, taken over three and a half

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hours after the crash, showed he had 46 nanograms per milliliter of oxycodone in his system. She explained how oxycodone is a central nervous system depressant with "common impairment effect[s]"-including "sleepiness, fatigue, dizziness, and drowsiness"-so the oxycodone packaging warns not to operate heavy machinery, "such as driving." On the issue of impairment, Toxicologist explained how it "is difficult to predict the impairment" caused by oxycodone "based on blood concentration alone" and that someone "within the therapeutic range . . . may also feel the impairment that comes with" the drug. Toxicologist opined the "best way to determine impairment" on an individual basis is by "eyewitness testimony of the accident" or by a "field sobriety test." On cross-examination, Toxicologist confirmed that the amount of oxycodone in Weaver's blood was within the therapeutic range.

¶9 The State then called a Utah Highway Patrol officer (Officer) specially trained in road accident reconstruction. He testified that Weaver's truck contained a crash data retrieval system that measures the car's velocity and speed to know when to deploy the airbags, giving the last five seconds of "precrash data." From that data and his analysis of the crash, he determined Weaver's truck was going 72 miles per hour four seconds before impact and calculated the speed at impact was 57 miles per hour. This information showed that Weaver was "not braking very hard" in the few seconds before impact.

¶10 Next, the State called various medical personnel who treated Kelly and Weaver. The emergency room physician testified that Weaver was alert and "oriented to person, place, and time" when he arrived at the hospital, and confirmed that Weaver did not list oxycodone among the medications he was taking.

¶11 The State then sought to introduce the text messages between Weaver and his wife from October 9 and October 11. Weaver's attorney (Trial Counsel) objected. After taking a brief recess, the court affirmed that it had previously ruled in its

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written order that the October 9 texts-where Weaver's wife told him it was "not worth any kind of risk" for him to drive with their son with "anything in [his] system"-were admissible. The court also orally ruled that the October 11 texts-where Weaver's wife expressed her concern he was "taking drugs" and was "too asleep" to hear his phone-were also admissible because they showed Weaver's "consciousness of the risk associated with having anything in his system that could impair his driving" and were therefore "relevant to whether he acted with criminal negligence." The State introduced the texts as Exhibit 26 and had the texts read aloud to the jury.

¶12 After the State rested, Trial Counsel moved for a directed verdict on the criminal automobile homicide charge. Trial Counsel asserted the State had not met its burden of proof on the element of impairment. See Utah Code § 76-5-207(2)(a)(ii)(B) (requiring proof the actor "is under the influence of . . . any drug . . . to a degree that renders the actor incapable of safely operating a vehicle"). Trial Counsel pointed out Weaver's blood draw showed the amount of oxycodone in his system was within the therapeutic range and there is "no other evidence that was put on of impairment." In response, the State claimed there was "ample evidence that [Weaver] was under the influence of oxycodone," referencing Eyewitness's account of Weaver's erratic driving...