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State v. Osborn

Court of Appeals of Missouri, Western District, Third Division

April 16, 2019


          Appeal from the Circuit Court of Boone County, Missouri The Honorable Jeff Harris, Judge

          Before: Gary D. Witt, Presiding Judge, Cynthia L. Martin, Judge, Anthony Rex Gabbert, Judge



         Nathaniel Osborn appeals a judgment entered upon a jury verdict finding him guilty of two counts of assault in the second degree pursuant to Section 565.060.[1] He asserts one point on appeal. He contends that the circuit court erred in overruling his motion to suppress any evidence and testimony related to a warrantless blood draw and in admitting evidence of the same over his objection at trial. We reverse and remand for a new trial.


         The facts, in the light most favorable to the verdict, are as follows.[2] On the evening of February 19, 2015, a mother and daughter were waiting at a red light on a highway exit ramp. The light turned green, and the mother proceeded to turn left when a car driven by Nathanael Osborn ran a red light at the intersection and struck her car. Both cars were spun around in the collision. Trey Olson, whose car was immediately behind the victims' cars, witnessed the accident. After the collision, Olson exited his vehicle and approached the two cars and, as he approached Osborn's car, he could smell the odor of beer coming from the car.

         Because Osborn may have been intoxicated, Officer Nathan Turner, a member of the driving while intoxicated unit, was dispatched to the accident to assist in the investigation. Officer Turner had made approximately 600 DWI arrests over his career, of which, roughly fifty to sixty involved assault charges similar to those in this case. When Officer Turner arrived at the scene of the accident, Osborn and the mother and daughter had already been transported to the hospital. Officer Turner first made contact with Osborn at the hospital approximately forty-five minutes after the accident had occurred. Osborn was initially unresponsive to both medical personnel and Officer Turner, but he began responding to Office Turner after a few minutes.

         Osborn's tongue had been injured in the collision which made it impossible for him to speak intelligibly, so Officer Turner asked Osborn to respond to his questions with a "thumbs up" for "yes" and a "thumbs down" for "no." When Officer Turner asked Osborn if he had been drinking, Osborn made a hand gesture which Officer Turner interpreted to mean "just a little bit." Officer Turner then asked Osborn if he would consent to a preliminary breath test. Osborn responded with a "thumbs up." Osborn's preliminary breath test indicated the presence of alcohol. Officer Turner testified that at this point he believed Osborn had intoxicants in his system, and he left the hospital room to contact his supervisor.

         After Officer Turner left the room to consult with his supervisor, Osborn was taken from the room for medical treatment. Officer Turner again made contact with Osborn after he was returned to the room, roughly an hour after their initial interaction. Officer Turner had decided that he was going to place Osborn under arrest for driving while intoxicated, and he was going to read Osborn the implied consent law before requesting a blood sample. However, Osborn was once again unresponsive to both Officer Turner and medical personnel. Because Osborn was unresponsive, Officer Turner did not read implied consent, but he asked a nurse to obtain a blood sample. Subsequent testing of this sample by the Missouri Highway Patrol indicated that Osborn's blood alcohol content ("B.A.C.") was .161. As part of his investigation, Officer Turner later obtained a search warrant for the hospital's own emergency records which included a toxicology report indicating the alcohol level in Osborn's blood.

         Osborn was charged with two counts of assault in the second degree under 565.060 RSMo.[3] Osborn moved to suppress evidence of the warrantless blood draw conducted by Officer Turner. At the evidentiary hearing, the foregoing evidence was adduced. In her argument before the trial court, the prosecutor made no mention of exigent circumstances or any other exception to the warrant requirement. Rather, the prosecutor argued that the warrantless search was justified by Missouri's implied consent laws. Osborn argued that he did not consent to the search, that it was unlawful and violated his constitutional rights, and that it did not fit within any exception to the warrant requirement. After taking the motion under advisement, the trial court later overruled the motion through a docket entry. Osborn entered and then later withdrew a guilty plea at which point, per Osborn's request, the judge assigned to the case recused himself and the case was transferred to Division IV for further proceedings.

         At the jury trial, Officer Turner again testified as to his investigation of the collision. Defense counsel asked the court for a continuing objection regarding evidence of the blood draw "to track through the rest of the trial." Defense counsel renewed his objection later during Officer Turner's testimony when the prosecutor moved to admit the warrantless blood draw into evidence. The trial court admitted the state's evidence "over the Defendant's objection." Officer Turner next testified that he did obtain a search warrant for the hospital's medical records pertaining to Osborn, and the prosecutor moved to admit the hospital records into evidence. In a sidebar, defense counsel conceded that the records themselves were admissible, but he objected to Officer Turner testifying as to the actual contents of those records as Officer Turner was not a medical professional qualified to interpret those records. The trial court agreed. The records were admitted, but Officer Turner did not discuss the records' contents. [4]

         The prosecutor called the forensic chemist who tested the blood samples obtained by Officer Turner as part of her employment with the state's crime lab. She explained how she tested Osborn's blood sample to determine his B.A.C. and that the B.A.C. was determined to be .161. The prosecutor then attempted to elicit testimony from the chemist that would explain the contents of the hospital medical records. The hospital's toxicology report measured the ethyl alcohol on Osborn's blood in milligrams per deciliter or "mg/dL" rather than the statutory alcohol concentration levels in the blood determined by hundredths of one percent or more by weight. See Sections 302.505, 302.510, and 577.012 RSMo. Defense counsel objected to the chemist's testimony based on a lack of foundation or demonstrated qualifications. The trial court sustained defense counsel's objection and the State made no further effort to provide testimony or other evidence to convert the hospital records from the alcohol level measured in "mg/dL" to the percentage of alcohol by weight set forth in Missouri statutes.[5]

         After the close of evidence, Osborn moved for acquittal and his motion was denied. The jury convicted Osborn of both counts of assault in the second degree. In Osborn's motion for a new trial he once again argued that the court erred in allowing evidence of ...

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