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STATE OF MISSOURI, Plaintiff/Respondent
vs.
ANTHONY TODD, Defendant/Appellant.
 
Case:
No. 69076
 
Location:
COURT OF APPEALS OF MISSOURI, EASTERN DISTRICT, DIVISION ONE
 
Date:
October 29, 1996, Filed
 
Court:
James R. Reinhard Court Dowd Jr. J. and Gaertner J. concur.
 
Author:
The Hon. Justice James R. Reinhard
 

Defendant appeals after he was convicted of two counts of involuntary manslaughter SEC. 565.024 RSMo 1986 and one count of second degree assault SEC. 565.060.1(4) RSMo Supp. 1993. Court sentenced him in accordance with the jury's assessment to three consecutive thirty day terms of imprisonment and a $5 000 fine for each conviction. Court suspended execution of the fines and ordered five years probation. We affirm.

The evidence reveals that at approximately 7:30 p.m. on August 13 1993 defendant Ron Edgar Ron Byer Rick Baum and Christopher Anderson met at Edgar's home in High Ridge Missouri. Because their float trip plans were canceled they decided to go to Russell Wall's house. Defendant age 18 at the time drove his white Chevrolet Blazer and Edgar Byer and Anderson rode with him. Byer was dropped off at his home and the other three stopped at a liquor store to buy beer and some Jack Daniels' coolers.

After arriving at Wall's house defendant joined in a drinking game called "Cardinal." Anderson described the rules of the Cardinal game as "someone does a pattern or something and then the other person has to follow it. If they don't get it right they drink." Because defendant played badly he had to drink a lot of beer and subsequently vomited.

At some time prior to midnight or 12:30 a.m. Matheson Friemon saw defendant stumble stagger and speak in a slurred manner as if he were drunk. Furthermore at some point during the evening defendant and Anderson left Wall's home and drove to a liquor store to buy a case of beer.

At approximately 1:00 or 1:30 a.m. on August 14 1993 defendant Anderson Wall and Edgar left Wall's house and went to the home of Kim Thayer. Defendant drove and the others were passengers in his vehicle. Thayer was not home when they arrived so they went to a nearby party at Tim Gardner's house. After staying a short while they returned to Thayer's home.

When they left Thayer's residence defendant got in the driver's seat and Edgar got in the passenger's seat. Anderson sat in the rear left seat and Wall sat in the rear right seat. On their way to take Wall home defendant drove to the drive-through window at Hardee's and ordered food. When defendant left Hardee's he turned west on Highway 30. Anderson testified that defendant "accelerated pretty fast" when he left Hardee's parking lot and pulled onto Highway 30.

At approximately 4:45 a.m. defendant entered the intersection of Highway 30 and BB. His truck struck a lane directional sign located on a concrete island which separated the "right turn only" lane from the through lanes of traffic. The truck then struck the concrete base of a traffic signal post. The force of the impact caused the hood the front bumper a tire and an axle to fly off of the truck.

A witness to the accident Michelle Bauer heard a loud bang and saw "a white truck crossing Highway 30." She testified that the truck was traveling fast and that it "wasn't on the ground." Although there was testimony at trial about the presence of fog Bauer did not remember any fog or wet pavement at the scene of the accident and there was no evidence that anything obstructed the intersection.

After the accident Edgar and Wall did not have any vital signs of life and they both died at the scene from head injuries. Defendant and Anderson however exited the vehicle without assistance. Anderson was hospitalized for two days and treated for head ankle and wrist injuries. Defendant was also taken to the hospital following the accident. While defendant was being examined for injuries his blood was drawn for testing. At trial an affidavit from Barnes Hospital attached to a copy of defendant's laboratory report was offered and received into evidence. According to the laboratory test results his blood alcohol content at 6:00 a.m. was one hundred and ten milligrams per deciliter or .11 grams per hundred milliliters of blood.

Dr. Mary Case the medical examiner for Jefferson County St. Louis County St. Charles County and Franklin County testified for the state. She did a residency training in pathology and is one of approximately five doctors in the country to be board certified in anatomical pathology neuropathology and forensic pathology. Dr. Case was qualified as an expert witness. She explained that defendant's blood alcohol test revealed .11% blood-alcohol. She also testified that his alcohol content would have been higher when the accident occurred at 4:45 a.m. Dr. Case stated that she is vaguely familiar with the blood testing procedures of Barnes Hospital. She testified that Barnes uses clinical pathology methods and tests the plasma rather than the whole blood. According to Dr. Case a slightly different result may occur if the whole blood is tested. The variation may be between 10-20%.

Dr. Case also testified that anyone with a blood alcohol percentage above 08% is intoxicated and "no longer safely able to operate a motor vehicle." Dr. Case stated that alcohol primarily affects the central nervous system. It impairs one's attention memory comprehension learning abilities and the ability to make critical judgments. Alcohol also impedes a person's visual acuity slows one's reaction time affects balance and coordination and causes drowsiness. Dr. Case testified that in her opinion defendant was "under the influence of alcohol that he was intoxicated and that in terms of safely operating a motor vehicle he would be impaired."

Defendant called several witnesses. John Koenig the technical supervisor in the clinical chemistry laboratory at Barnes Hospital testified about the laboratory worksheet and test results that were prepared from defendant's blood test. Koenig described the method that Barnes laboratory uses to run ethyl alcohol assays. He stated that the records indicate the blood was taken from defendant and that his alcohol content was one hundred and ten milligrams per deciliter.

Defendant also called Thayer. She testified that the four men arrived at her house around 1:30 or 2:00 a.m. and stayed approximately two hours. During this time she did not notice anyone drinking alcohol. She and Wall however were talking in the living room and the others were in the kitchen.

Mary Johnson a Hardee's employee took defendant's food order spoke with him and served him food on August 14 1996 at approximately 4:00 a.m. She testified that she did not smell alcohol on defendant or notice any other evidence of alcohol.

Troy Smith testified that he was at Wall's house and that defendant did not appear intoxicated. He stated that defendant only drank a small amount of beer before vomiting during the drinking game.

Defendant testified that he did not consume any alcohol before arriving at Wall's house. Defendant admitted however that from approximately 8:30 p.m. to 1:45 a.m. he drank about six or seven beers. He drank two beers at Wall's house before playing "Cardinal " two beers during the game one beer after the game while he was still at Wall's home one-half of a beer the first time they went to Thayer's home and one-half of a beer at Gardener's party.

Defendant testified that they left Thayer's house around 4:00 a.m. He stopped at Hardee's on the way home and then drove westbound on Highway 30. Defendant testified that on other occasions he had driven westbound on Highway 30 through the intersection of Highway BB. He denied however that he had driven through the area during adverse weather conditions such as fog.

Defendant testified that Highway 30 was covered with patches of heavy fog on August 14 1996. Therefore he drove using the white guide line located on the right side of the road. He saw an "orange haze " which turned out to be the intersection of Highway 30 and BB. When defendant noticed that he was in a "right turn only" lane he tried to veer left to get in the through lane. Defendant stated that he did not notice that he was in the wrong lane until he was approximately five feet away from a sign located on a concrete island which separated the "right turn only" lane from the through lane. He hit this traffic sign and then hit the concrete base of a light post.

Defendant's witness Richard Brown a design engineer for the Missouri Highway and Transportation Department said that according to an accepted definition of "roadway " the concrete island is not located in or on the roadway. In addition Brown testified that the intersection's design was within standard norms.

Defendant testified that after the accident he relied on the trained doctors lab technicians and nurses at Barnes Hospital to test and diagnose what was wrong with him. He stated that they did a good job he did not know of any mistakes they made and to his knowledge the test results were correct.

On appeal defendant claims that the state failed to make a submersible case. He partially relies on the alleged erroneous admission of Exhibit 34 which was the laboratory report setting forth the results of defendant's blood alcohol test. Thus before discussing the issue of submissibility we address his evidentiary point. That point states:

The trial court erred in admitting into evidence the result of a blood alcohol test under the Uniform Business Records as Evidence Act RSMo. SEC.692 without requiring the state to lay some statutory or common law foundation of validity or accuracy prior to the admission of such test result for the reason that RSMo. SEC.020 through SEC.041 make mandatory the literal compliance with certain methods and procedures prerequisite to admission of such a blood alcohol test result and the state failed to introduce evidence upon which the trial court could have found validity and/or accuracy in such test result.

The state claims that the Missouri implied consent law is not the exclusive means to admit blood alcohol test results and urges that the prosecutor laid a sufficient foundation for admission of the document under the business records exception. *fn1 Defendant concedes that the proper foundation was laid for admitting the hospital record under the Uniform Business Records Act SEC.692 RSMO Supp.1993. Defendant urges however that after the proper foundation for a hospital record is shown an additional foundation is required for the admission of a blood alcohol test. It appears that a Missouri court has not addressed this specific issue.

We note that at trial defendant objected properly to the lack of foundation for admitting the blood test result. We also note that the trial court considered this issue. The state recognized the requirements of Missouri's implied consent law and stated that it was not proceeding under the implied consent law but was offering the test result under the business records as evidence law.

Ordinarily when we review cases involving the admission of blood alcohol test results the following factual scene is presented: a law enforcement officer has pulled over the driver of a vehicle or has discovered a driver at an accident scene; that driver has consented to a blood alcohol test; and the officer has taken that person to a location where the blood test is performed pursuant to the officer's direction. Once the proper foundation is laid at trial the blood test evidence is admissible and if the blood alcohol content is ten-hundredths of one percent or more this is prima facie evidence that the person was intoxicated. See SEC. 577.037 RSMo Supp.1993. In the present case however the blood test was performed during the medical diagnosis and treatment of defendant. It was not conducted at the request or direction of a law enforcement officer nor for the purpose of litigation.

Missouri's implied consent law provides that chemical analysis of a person's blood "to be considered valid under the provisions of sections 577.020 to 577.041 shall be performed according to methods approved by the state division of health by licensed medical personnel or by a person possessing a valid permit issued by the state division of health for this purpose." SEC. 577.020.3 RSMO 1986. According to the Missouri Department of Health's provisions however "only those laboratories or persons performing analysis of blood . . . at the direction of a law enforcement officer acting under the provisions of sections 577.020-577.039 RSMO and 577.041 RSMO -- are subject to the rules in this chapter." MO. CODE REGS. tit. 19 SEC. 20-30.011(1) (1996). Similarly the requirements for performance of the blood alcohol tests set forth in SEC. 577.029 RSMO 1986 apply to licensed physicians registered nurses or trained medical technicians "acting at the request and direction of the law enforcement officer."

According to the plain language of the statute and regulations the requirements and protection provided by the implied consent law do not apply to all blood tests offered as evidence but only those offered pursuant to Chapter 577. Thus we consider whether the evidence in the present case which was not offered under Chapter 577 is admissible under the Uniform Business Records Act.

The business records as evidence law provides that a record of an act condition or event is competent evidence if three requirements are met: (1) the custodian or qualified witness testifies to its identity and mode of preparation; (2) it was made in the regular course of business at or near the time of the act condition or event; and (3) in Court's opinion the sources of information method and time of preparation justify its admission. SEC. 490.680 RSMO 1986. The Missouri Supreme Court in Baugh v. Life & Casualty Ins. Co. 307 S.W.2d 660 (Mo. 1957) recognized that properly prepared hospital records are admissible in the same manner as other business records.

Section 490.692.1 RSMO Supp.1993 of the uniform business records as evidence law further provides that records "admissible under sections 490.660 to 490.690 shall be admissible as a business record . . . upon the affidavit of the person who would otherwise provide the prerequisites. . . ."Thus SEC. 490.692 provides a way to admit records into evidence without any additional direct testimony. See Cannon v. Director of Revenue 895 S.W.2d 302 304-05 (Mo. App. E.D. 1995). This court notes that the affidavit attached to defendant's blood test result was signed by the custodian of records at Barnes Hospital and is substantially the same as the example provided by SEC. 490.692.3 RSMO Supp.1993.

Although we have found no Missouri cases addressing the question at hand courts in other states have confronted similar issues. These cases support the admission of defendant's blood alcohol test as a business record.

In State v. Garlick 313 Md. 209 545 A.2d 27 (Md. 1988) the defendant was treated by an emergency room physician for injuries after an automobile accident and that doctor ordered a toxicological screen of defendant's blood and urine. Id. at 28. The results of this test showed the presence of phencyclidine (PCP). Id. At trial defendant objected to the admission of the emergency room report because it referenced the hospital laboratory test results. The Garlick court stated that "once it is clear that the hospital record was made in 'the regular course of business' and the recorded transactions are 'pathologically germane to treatment' the record is admissible as an exception to the hearsay rule." Id. at 33 (citing Old v. Cooney Detective Agency 215 Md. 517 138 A.2d 889 893 (Md. 1958)). Court held that the entry into defendant's hospital record of his PCP-positive laboratory test result was "pathologically germane" to treatment and that it was "completely admissible without the presence of the laboratory technician as [a] witness." 313 Md. at 33-34.

The Garlick court went on to note that:

It would have been of little utility and of great inconvenience to summon every doctor nurse or technician who examined [defendant] took his pulse and blood pressure drew or screened his urine and blood. Many hospital tests and procedures are performed routinely and their results are relied upon to make life and death decisions.

313 Md. at 35.

In State v. Martorelli 136.N.J. Super. 449 346 A.2d 618 (N.J. Super. Ct. App. Div. 1975) the court confronted the admissibility of a blood test which the trial court had relied upon in finding defendant guilty. Defendant's sole contention was that the hospital's laboratory report with the blood test result "was inadmissible because it does not detail the nature of the test which was utilized nor 'the expertise or competency of the person performing the test.'" Id. at 620. The defendant argued that the report was not admissible "in the absence of the technician as a witness subject to cross-examination." Id.

The New Jersey court noted that "personal knowledge by the entrant-declaring is not a prerequisite for admissibility" under the business records exception and "a statement within the record does not independently have to fall within one of the traditional hearsay exceptions" if the source of the information and method of preparation justify admitting it into evidence. Id. at 620-21. The Martorelli court stated that "it is beyond dispute that a hospital performs blood tests within the regular course of its business." Id. at 621.

According to the New Jersey court

Not all diagnostic findings are admissible. The degree of complexity of such procedures is the crucial issue. As observed by Professor McCormick 'the admissibility of ordinary diagnostic findings customarily based on objective data and not usually presenting more than average difficulty of interpretation is usually conceded.' McCormick Evidence (2ed. 1972) SEC. 313 at 732). . . . To require those who perform tests which are relatively simple to appear in court and testify would work a hardship on an already overburdened medical system.

Id. at 621. The Martorelli court found that the administering of a blood test is a relatively simple procedure. Intoxication is determined by the amount of alcohol in the brain and because brain tissue cannot be tested "blood analysis offers the simplest and most reliable method of ascertaining the level of intoxication." Id.

We believe the reasoning in these cases is persuasive. Our review of Missouri cases involving the admission of hospital records reveals a liberal construction of the business records exception. See Baugh 307 S.W.2d at 665 (although entries in medical records are not conclusive admissibility of the records is governed by business records exception); Melton v. St. Louis Public Service Co. 363 Mo. 474 251 S.W.2d 663 (Mo. 1952) (hospital record which was prepared during treatment of injury was kept in the regular course of business and was admissible as business record); White v. American Republic Ins. Co. 799 S.W.2d 183 (Mo. App. S.D.1990) (hospital records are readily admissible as business records provided there is a showing of (1) identity (2) mode and time of preparation and (3) that it was made in regular course of business); Miller v. Engle 724 S.W.2d 637 (Mo. App. W.D.1986) (medical records are admissible in evidence under the Business Records Act). Furthermore the results of analyses and laboratory tests are admissible data found within hospital records. Johnson v. Creative Restaurant Management 904 S.W.2d 455 459 (Mo. App. W.D. 1995).

In the case at hand the evidence consisted of the numerical result of a hospital blood test. No effort was made to admit hospital records with conclusions regarding the test result. Evidence regarding conclusions and opinions was introduced through the testimony of Dr. Case. We hold that defendant's blood test result was properly admitted as a business record.

In defendant's second point on appeal he alleges that the trial court erred in overruling defendant's motion for judgment of acquittal in that: (1) "there was insufficient competent evidence of defendant's intoxication at the time of the accident to prove beyond a reasonable doubt that defendant operated a motor vehicle while in an intoxicated condition . . .;" and (2) "there was insufficient evidence to prove beyond a reasonable doubt that defendant drove with criminal negligence in causing the accident."

In reviewing a challenge to the sufficiency of the evidence this court considers the evidence and all reasonable inferences arising therefrom in the light most favorable to the verdict. State v. Rush 862 S.W.2d 936 939 (Mo. App. E.D. 1993). Contrary inferences are disregarded. Id. This court does not weigh the evidence nor determine the credibility of the witnesses. State v. Garrett 829 S.W.2d 622 624 (Mo. App. S.D.1992). The test is whether the evidence was sufficient to make a submissible case from which rational jurors could have found defendant's guilt beyond a reasonable doubt. Id.

The state had the burden to prove beyond a reasonable doubt that defendant was "(1) an intoxicated driver who (2) operated a motor vehicle with criminal negligence (3) causing the death of another." State v. Middaugh 802 S.W.2d 570 572 (Mo. App. W.D.1991).

Defendant does not contend that there was a failure of proof regarding the deaths of Wall and Edgar or the injury to Anderson. He does however challenge the state's evidence of intoxication and criminal negligence.

"'Intoxicated condition' means under the influence of alcohol a controlled substance or drug or any combination thereof." SEC. 565.002(4) RSMO 1986. According to the state's evidence defendant's blood alcohol content was .11 grams per hundred milliliters of blood. Dr. Case testified that defendant's blood alcohol content would have been higher when the accident occurred at 4:45 a.m. She also testified that anyone with a blood alcohol percentage above .08% is intoxicated and "no longer safely able to operate a motor vehicle."

Anderson testified that while at Wall's residence he witnessed defendant drinking beer and subsequently vomiting. Freimon testified that before he left Wall's residence at around midnight or 12:30 a.m. he saw defendant drinking beer. Freimon also noticed that defendant stumbled and slurred his speech. At trial defendant admitted that he drank about six or seven beers over the course of the evening. This testimony coupled with the result of the blood sample test was sufficient evidence to conclude that defendant was intoxicated.

Section 562.016.5 RSMO 1986 defines "criminal negligence" as the failure "to be aware of a substantial and unjustifiable risk that circumstances exist or a result will follow" and such conduct amounts to a "gross deviation from the standard of care which a reasonable person would exercise in the situation." Although intoxication does not alone support a manslaughter conviction it serves as a factor which the tries of fact in determining whether criminal negligence exists may consider in connection with other evidence. Garrett 829 S.W.2d at 627.

According to the state's evidence defendant was the driver of a vehicle as it proceeded west on Highway 30. The vehicle struck a lane directional sign located on a concrete island which separated the "right turn only lane" from through lanes of traffic. The truck then struck the concrete base of the traffic signal post. An eyewitness testified that the vehicle was off the ground as it crossed the intersection. Although there was testimony about the presence of fog there was no evidence that anything obstructed the intersection. Defendant's witness Richard Brown said that the concrete island is not located in or on the roadway and that the intersection's design was within standard norms.

This case is similar to State v. Garrett supra. In Garrett an intoxicated driver traveling only about 35 miles per hour in a 55 miles per hour zone struck a caution sign located 4 1/2 feet from the end of a bridge and then hit the curb of the bridge. 829 S.W.2d at 625-26. The vehicle was found upside down in the water and the passenger died at the scene. 829 S.W.2d at 625. There was nothing obstructing the bridge or preventing someone "exercising ordinary caution or standard care [from] approaching the bridge and crossing it without danger." 829 S.W.2d at 627. A jury convicted defendant of involuntary manslaughter and on appeal the Southern District held there was sufficient evidence to support the verdict. 829 S.W.2d at 624 628.

In another similar case State v. Dagley 793 S.W.2d 420 (Mo. App. W.D.1990) two men parked their vehicle on the right shoulder of a two-lane highway after a wheel had fallen off. Because of the shoulder's narrowness the driver's side of the vehicle extended about a foot into the highway's westbound lane. Id. at 421. While driving his truck the defendant struck the disabled vehicle killing the two men. The defendant's blood alcohol level was .16 percent. Id. at 423. After he was convicted of two counts of involuntary manslaughter he appealed alleging that there was not sufficient evidence of his criminal negligence. Id. at 424.

The Dagley court noted that Missouri law requires every person to operate a motor vehicle with the highest degree of care. Id. All drivers have the duty to "exercise unusual caution in extraordinary situations." Id. Because the defendant failed to notice the risk and take action to avoid hitting the disabled vehicle this constituted "a gross deviation from the standard of care reasonable persons . . . would have exercised." Id. at 425. The appellate court found that jurors could reasonably have found beyond a reasonable doubt that the defendant's actions constituted criminal negligence. Id.

In the present case defendant's evidence showed an unusual intersection but he had traveled through it on other occasions. The fog which defendant argues contributed to the accident necessitated that defendant use additional caution as to both lookout and speed. As stated in Garrett a "jury could properly infer . . . that in view of . . . defendant's intoxication his operation of the vehicle at any speed involved a substantial and unjustifiable risk of death or personal injury. Garrett 829 S.W.2d at 628.

The evidence was sufficient to prove beyond a reasonable doubt that defendant was intoxicated and that he drove with criminal negligence. Defendant's point has no merit.

Judgment affirmed.

James R. Reinhard Court

Dowd Jr. J. and Gaertner J. concur.

 
Notes:

*fn1 This court previously observed that the implied consent law is "at best confusing and at worst contradictory." State v. Kummer 741 S.W.2d 285 288 n. 2 (Mo. App. E.D. 1987). Although a Missouri court has not decided whether the implied consent law is the exclusive means of introducing blood test results other cases have in dicta made reference to the issue. See State v. Vaughn 759 S.W.2d 98 101 (Mo. App. S.D.1988); Kummer 741 S.W.2d at 288 (citing State v. Peters 729 S.W.2d 243 (Mo. App. 1987)). See also State v. Waring 779 S.W.2d 736 (Mo. App. S.D.1989) (where blood sample was drawn by emergency room physician result of blood alcohol test seized under valid search warrant was admissible despite defendant's claim that blood test was not taken pursuant to implied consent law and was not admissible).

In addition other states have discussed the issue and decided that in certain situations blood test evidence is admissible without compliance with department of health requirements or the state's implied consent law. See e.g. Weaver v. State 290 Ark. 556 720 S.W.2d 905 (Ark. 1986) (holding blood test ordered by emergency room physician for use in treating patient need not comply with requirements of state health department and could be admitted under the Arkansas rules of evidence); State v. Lendway 519 So. 2d 725 (Fla. Dist. Ct. App. 1988) (holding that blood test evidence may be admitted so long as Florida's traditional predicates for admissibility are satisfied).