RICHARD COWLES v. COMMONWEALTH OF KENTUCKY (2010)

NOT TO BE PUBLISHED

AFFIRMING

Richard Alvin Cowles appeals from a final judgment of the Hardin Circuit Court.   A jury convicted Cowles of wanton endangerment in the second degree, operating a motor vehicle under the influence, speeding, failure to signal, and improper passing.   He was sentenced to eight months' imprisonment and fined $1300.   For the following reasons, we affirm.

As rush hour approached on Aug. 8, 2007, Cowles drove his motorcycle toward his home after drinking at a bar with a friend.   While traveling in the opposite direction, Kentucky State Police (KSP) Trooper Michael Garyantes clocked Cowles by radar as traveling at a speed of 85 m.p.h. in a 55 m.p.h. speed zone.   Garyantes immediately turned his cruiser around, activated his lights and siren, and began pursuing Cowles.

When Cowles entered one of the busiest intersections in the county, he encountered two staggered vehicles in the two lanes in front of him.   Cowles passed one vehicle and then switched lanes, without signaling, to pass the other vehicle.   At this point, Garyantes' radar showed Cowles was traveling at 90 m.p.h.

With his lights and siren still activated, Garyantes continued to pursue Cowles, who turned around and looked at him.   Garyantes signaled for Cowles to pull over, yet Cowles instead turned into a residential area, where he traveled at approximately 45-50 m.p.h. in a 25 m.p.h. speed zone.   At the top of a hill, Cowles pulled over, turned off his engine, and dismounted his motorcycle.

Garyantes exited his patrol car and approached Cowles, noticing a strong odor of alcohol on him.   Garyantes then conducted three field sobriety tests, which Cowles failed.   Garyantes, who said Cowles admitted to consuming beer, described Cowles as uncooperative and verbally combative.   Cowles was arrested and taken to Hardin Memorial Hospital, where a blood sample was drawn.   Subsequent testing revealed a blood alcohol (B.A.) level of 0.22.

On appeal, Cowles first asserts that the trial court erred by admitting the results of the B.A. test into evidence, as the Commonwealth failed to lay a proper foundation for its admittance.   We disagree.

Cowles was convicted of operating a motor vehicle while under the influence of alcohol in violation of KRS 189A.010, which provides, in pertinent part:

(1) A person shall not operate or be in physical control of a motor vehicle anywhere in this state:

(a) Having an alcohol concentration of 0.08 or

more as measured by a scientifically reliable test

or tests of a sample of the person's breath or blood taken within two (2) hours of cessation of operation or physical control of a motor vehicle;

[or]

(b) While under the influence of alcohol[.]

KRS 189A.103 addresses the procedures for taking breath, blood, or urine samples for purposes of KRS Chapter 189A. KRS 189A.103(6) provides:  “Only a physician, registered nurse, phlebotomist, medical technician, or medical technologist not otherwise prohibited by law can withdraw any blood of any person submitting to a test under this section[.]”  KRS 189A.103(3)(a) further provides:  “Tests of the person's breath, blood, or urine, to be valid pursuant to this section, shall have been performed according to the administrative regulations promulgated by the secretary of the Justice and Public Safety Cabinet[.]”  500 KAR  Double 8:030 § 2(3)(a) in turn specifies, for purposes of such tests:  “Ethyl alcohol (ethanol) shall not be used to clean the skin where a blood sample is to be collected.”

Cowles argues not only that Garyantes' identification of the individual who drew his blood as a medical technician was hearsay, but also that the Commonwealth failed to show that a non-alcoholic solution was used to clean his arm prior to drawing the blood.   He further insinuates that the tests results were contaminated or inaccurate because the individual who drew his blood was being supervised by another individual and had some difficulty drawing the blood.   Cowles contends that, as a result, a proper foundation was not laid for admittance of the B.A. test results into evidence.

The Commonwealth relies on Matthews v. Commonwealth, 44 S.W.3d 361 (Ky.2001), in averring that Garyantes' testimony in fact establishes compliance with the procedures and regulations concerning B.A. tests.   In Matthews, testimony revealed that the defendant was traveling the wrong way on an interstate at night and at a high rate of speed, reeked of alcohol, and was combative, incoherent, and slurring in his speech.  Id. at 364.   A KSP laboratory analyst introduced the results of the defendant's B.A. test at trial, which showed a B.A. level of 0.25.  Id. at 363.   Since the Commonwealth was unable to locate the individual who drew the defendant's blood, the officer who witnessed the blood draw testified regarding the procedures which were followed.   Although the officer could recall only the first name of the individual who drew the blood, he testified that he was familiar with the prescribed procedures for B.A. tests, and that the individual had prepared the defendant's arm with betadine, a non-alcoholic solution.   Id. When the Commonwealth moved to introduce the lab report into evidence, the defendant objected to the Commonwealth's lack of foundation for the reading, “namely the credentials of the nurse who drew the blood.”  Id.

The Kentucky Supreme Court rejected the defendant's foundational argument, noting:

It is more reasonable to interpret the purposes of the statute and regulations concerning the credentials of the individual drawing the blood as giving a presumption of regularity.   It is presumed that those individuals mentioned in the statute and regulations will perform the procedures properly;  however, they are not the only persons in the world who can draw blood accurately.   Here, the proper procedures were followed.   Moreover, to reject this evidence in the absence of any indication whatsoever of contamination or inaccuracy would place form over substance.

․ While a proper foundation may not have been laid, and the Commonwealth may have been remiss in failing to prove that a registered nurse drew the blood, the record contains sufficient admissible evidence to sustain the conviction.

Even if the evidence was erroneously admitted, it was harmless error ․ given the other evidence of [the defendant's] impairment due to alcohol that was introduced.

Id. at 364.

Applying the “presumption of regularity” articulated by the Matthews court to the case at hand, Garyantes' identification of the individual who drew the blood as “Campbell,” a medical technician employed by the hospital, and the lab results which reflected that the blood was collected by one “Campbell,” sufficiently establishes that Cowles' blood was drawn by an individual qualified to do so and in a manner comporting with the procedures and regulations concerning these tests.   We find Cowles' insinuation that the results of the test were inaccurate or contaminated insufficient to rebut this presumption, and further decline to address his hearsay argument since no authority was provided, pursuant to CR  Double 76.12, in support of this claim.

Moreover, any error which might have occurred in admitting the B.A. test results into evidence was harmless.   Given the other evidence of Cowles' impairment due to alcohol which was introduced, we have no reason to believe that the jury would have found differently.   The Commonwealth presented evidence that Cowles drove at a high rate of speed, improperly passed other vehicles, failed to signal, smelled of alcohol, and was verbally combative toward the arresting officers.   Moreover, Cowles failed three field sobriety tests, admitted to having consumed beer earlier in the day, and was considered intoxicated by a trained police officer.   As the Matthews court noted:  “What it really boils down to is that if upon consideration of the whole case this court does not believe there is a substantial possibility that the result would have been any different, the irregularity will be held non-prejudicial.”  Id.

Furthermore, “a DUI conviction could be sustained without evidence procured by use of a device for measuring intoxication.”  Commonwealth v. Wirth, 936 S.W.2d 78, 81 (Ky.1996);  see also Commonwealth v. Hicks, 869 S.W.2d 35, 37 (Ky.1994) (holding that a DUI conviction may be sustained upon the testimony of the police, without resort to various devices);  Allen v. Commonwealth, 817 S.W.2d 458, 461 (Ky.App.1991) (holding that a conviction may be sustained without evidence procured by use of a device for measuring intoxication).   Here, the evidence, even in the absence of the B.A. test results, was sufficient to sustain Cowles' conviction.   We thus affirm the court's judgment with respect to Cowles' first assignment of error.

Second, Cowles argues that the court erred by denying his motion for a directed verdict on the charge of first-degree wanton endangerment.   He maintains that the Commonwealth failed to prove all the elements of the offense, and that the court's failure to grant his motion for a directed verdict resulted in his being prejudiced when the jury allegedly reached a compromise verdict and convicted him of second-degree wanton endangerment.   In other words, he speculates that the jury likely would not have convicted him of wanton endangerment at all, had the first-degree wanton endangerment charge not been submitted for its consideration.

Cowles' argument is without merit.   The Kentucky Supreme Court has stated the rule with respect to directed verdicts as follows:

On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth.   If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given.   For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.

Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky.1991).  “On appellate review of the denial of a directed verdict, the test is whether, ‘under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal.’ ”   Ramsey v. Commonwealth, 157 S.W.3d 194, 196 (Ky.2005) (quoting Commonwealth v. Sawhill, 660 S.W.2d 3, 4-5 (Ky.1983)).

This appeal requires us to examine whether the evidence was sufficient to permit a reasonable juror to believe, beyond a reasonable doubt, that Cowles was guilty of wanton endangerment in the first degree.  KRS 508.060(1) defines the offense as occurring “when, under circumstances manifesting extreme indifference to the value of human life, [a person] wantonly engages in conduct which creates a substantial danger of death or serious physical injury to another person.”  KRS 501.020(3) further provides:

A person acts wantonly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstances exist.   The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.   A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts wantonly with respect thereto.

Cowles contends that the Commonwealth failed to prove he created a danger to anyone other than himself, or to present evidence of the risk to occupants of vehicles if struck by his motorcycle.   However, we are not persuaded that Matthews, 44 S.W.3d 361 (Ky.2001), and Ramsey, 157 S.W.3d 194 (Ky.2005), support his claim, despite his argument to the contrary.

In Matthews, evidence was produced to show that the defendant drove on the wrong side of an interstate at a high rate of speed, resulting in collisions with other vehicles.   In addition to other charges, the defendant was charged with wantonly endangering the driver of a car which was located near the accident scene and which was hit by collision debris.   The Kentucky Supreme Court reversed the defendant's conviction of wanton endangerment as unsupported by sufficient evidence.   In particular, the record contained no evidence that the alleged victim of the wanton endangerment was in fact in the vehicle or otherwise at the scene at the time of the collision, so as to have been endangered by the defendant's conduct.   See Matthews, 44 S.W.3d at 364-65.   In the present case, however, Cowles was charged with wantonly endangering the occupants of vehicles which were traveling on the road and which obviously contained potential victims.   Since the facts of the case at bar are clearly distinguishable from Matthews, we decline to extend the reasoning therein to the matter before us.

The application of Ramsey to the matter before us does not compel a different conclusion.   In Ramsey, evidence was presented to show that the intoxicated defendant drove his vehicle with his ten year-old son as a passenger.   The Kentucky Supreme Court upheld the defendant's wanton endangerment conviction, emphasizing that the minor child, unlike an adult, did not have the capability to determine whether to ride with his drunken father.   See Ramsey, 157 S.W.3d at 198.   Here, as Cowles was charged with wantonly endangering occupants of other vehicles, rather than passengers of his own vehicle, we find his reliance on Ramsey unpersuasive.

Finally, aside from any discussion of whether the trial court's failure to grant a directed verdict was harmless because the jury did not convict Cowles of first-degree wanton endangerment, we conclude that the court did not err by denying Cowles' motion for a directed verdict as to that charge since our review of the record discloses that the evidence was sufficient to induce a reasonable juror to believe beyond a reasonable doubt that Cowles was guilty.

The judgment of the Hardin Circuit Court is affirmed.

ALL CONCUR.

VANMETER, JUDGE: