THE CIRCUIT COURT OF LEE COUNTY Tammy S. McElyea, Judge
Charles L. Bledsoe for appellant.
E. Jeffrey, III, Senior Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
Present: Judges Humphreys, Petty and Chafin Argued at
J. HUMPHREYS JUDGE
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."
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.
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 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.
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.
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.
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
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."
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
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.
though Coomer was arrested for DUI, Munsey did not create an
accident report because there was no damage to either
vehicle. 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
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 ...