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Coomer v. Commonwealth

Court of Appeals of Virginia

April 4, 2017

CRYSTAL ANN COOMER
v.
COMMONWEALTH OF VIRGINIA

         FROM THE CIRCUIT COURT OF LEE COUNTY Tammy S. McElyea, Judge

          Charles L. Bledsoe for appellant.

          Donald E. Jeffrey, III, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Present: Judges Humphreys, Petty and Chafin Argued at Lexington, Virginia

          OPINION

          ROBERT J. HUMPHREYS JUDGE

         Crystal Ann Coomer ("Coomer") appeals the May 24, 2016 decision by the Circuit Court of Lee County (the "trial court") convicting her of felony child endangerment, in violation of Code § 18.2-371.1(B)(1), a Class 6 felony. Coomer's single assignment of error is that the trial court erred in finding that she "committed a willful act or omission that was gross, wanton, and culpable as to show a disregard for human life."

         I. Background

         On December 7, 2015, a grand jury of Lee County indicted Coomer for felony child endangerment, in violation of Code § 18.2-371.1, such that on or about August 17, 2015, she did "commit a willful act or omission in the care of [a child under eighteen years of age] so gross and wanton as to show a reckless disregard for human life." On February 2, 2016, Coomer was tried in a bench trial.

         In summary, the Commonwealth's evidence at trial was that on August 17, 2015, Coomer and her fiancé, Eric Parsons ("Parsons"), went out for "date night" to Rooster's Pub. At Rooster's Pub, Coomer and Parsons enjoyed dinner and a pitcher of beer. After dinner, they ordered a second pitcher of beer and planned to remain at Rooster's Pub to play games. However, shortly after ordering the second pitcher of beer Coomer received a telephone call from her twenty-two-month-old daughter's babysitter informing Coomer that the babysitter and the babysitter's boyfriend were "having issues" and the babysitter needed to leave. Coomer arranged to meet the babysitter at the Double Kwik convenience store near Leeman Field to pick up her twenty-two-month-old daughter.

         As soon as she received the phone call, Coomer quit drinking alcohol, ate french fries, and waited approximately twenty minutes before driving to the Double Kwik convenience store. Coomer estimated that she and her fiancé had consumed about a pitcher and a half of beer. Coomer arrived at the convenience store without incident.

         Coomer left the convenience store with her fiancé and twenty-two-month-old daughter in the car and traveled along Route 421 in Lee County toward her home in St. Charles, Virginia. The posted speed was 55 m.p.h. Coomer estimated that she was traveling about 35 to 40 m.p.h. and had about a car length between her and the car in front of her. It was dark and raining.

         Susan Lanningham ("Lanningham") was driving the car in front of Coomer. Lanningham explained that due to the weather conditions that night she was travelling at an approximated speed of 45 m.p.h. Then, upon the realization that "the blacktop dropped off" because the roadway was being prepared to be resurfaced with new asphalt, Lanningham tapped her brakes to accommodate for the road conditions. Lanningham stressed that she did not slam her brakes, instead, she "merely slowed down." Coomer testified that Lanningham had suddenly slammed on her brakes, and immediately Coomer hit her brakes, but they locked up.

         Coomer struck the rear bumper of Lanningham's vehicle. There was no damage apparent to either vehicle. At the time she was struck, Lanningham estimated that she was traveling between 35 and 45 m.p.h. She reiterated that the roads were wet and that "it's very curvy up through there." After the collision, Lanningham exited her vehicle and called the police.

         Trooper Munsey ("Munsey") of the Virginia State Police arrived at the scene of the accident at approximately 9:33 p.m. Upon arrival, Munsey placed Coomer in his vehicle to investigate the incident. At that time, he detected "an odor of alcohol about her person."[1]

         Coomer told Munsey that she was the driver of the vehicle. Munsey asked Coomer if she had anything to drink that night. Coomer replied that she had consumed two beers about two hours before the accident. Then, Munsey administered the following three field sobriety tests: the horizontal gaze nystagmus ("HGN") test, the nine step walk and turn test, and the one-legged stand test. Coomer was unable to sufficiently pass the field sobriety tests to Munsey's satisfaction. However, on cross-examination, Munsey answered, "I mean, it wasn't one of those where I had to, you know, help support her."

         After failing the field sobriety tests, Coomer was offered and accepted a preliminary breath test. The breath test recorded Coomer's blood alcohol content ("BAC)" to be .097. Munsey arrested Coomer for driving under the influence of alcohol ("DUI"). At the Sheriff's office, Munsey offered Coomer a blood or breath test. Coomer took the breath test, also known as an intoxilyzer test, which revealed a .09 BAC.

         Even though Coomer was arrested for DUI, Munsey did not create an accident report because there was no damage to either vehicle.[2] Further, because the vehicles had been moved to the shoulder, Munsey could not tell if Coomer had to slam on her brakes or had lost control. Munsey did not think speed was a factor. Additionally, Munsey testified that the twenty-two-month-old child was asleep when he arrived at the scene and remained asleep during his investigation. Coomer also testified that her daughter slept through the entire incident.

         Dr. James Kuhlman ("Dr. Kuhlman"), a forensic toxicologist with the Department of Forensic Science ("DFS"), testified via telephone from the DFS laboratory in Roanoke. The trial court declared Dr. Kuhlman an expert in the field of toxicology. Dr. Kuhlman testified that the examination of Coomer's breath certificate blood analysis showed a BAC level of .09 grams per 210 liters of breath. Then, he described the typical side effects of alcohol intoxication from a .09 BAC.

Typical effects of a blood or breath alcohol at .09, in terms of driving, would be you would get some effect on what is known as divided attention. Divided attention in terms of driving an automobile is that driving is a multi-tasking event that you must, when you're driving, visually survey the road that you're travelling on. Those signals from your vision going to your brain to make those decisions, and then those are relayed through the nerves to the hands and feet, such as, you know, steer to keep ...

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