State v. Ruggiero

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NOT DESIGNATED FOR PUBLICATION

No. 116,831


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

EDWARD LEO RUGGIERO,
Appellant.


MEMORANDUM OPINION

Appeal from Butler District Court; JANETTE L. SATTERFIELD, judge. Opinion filed May 25, 2018.
Affirmed.

Rick Kittel, of Kansas Appellate Defender Office, for appellant.

Brett D. Sweeney, assistant county attorney, and Derek Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., GREEN, J., and HEBERT, S.J.

PER CURIAM: After a two-day trial in Butler County, a jury convicted Edward Leo
Ruggiero of one count of driving under the influence (DUI) of alcohol or drugs. He was
sentenced to 12 months' probation with an underlying 12-month prison sentence. On
appeal, Ruggiero argues that insufficient evidence existed to support his conviction
because the evidence did not show he was impaired to the extent that he could not drive
safely. For reasons discussed later, we conclude a reasonable jury could find that he was
guilty beyond a reasonable doubt of DUI. As a result, we affirm.

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On November 3, 2013, around 2 p.m., Ruggiero was involved in a vehicular
collision in Douglass, Kansas. Ruggiero's 2002 Dodge truck collided with a legally
parked 2013 Ford pickup. The force of the collision tore off a front wheel of Ruggiero's
truck. The truck then traveled through a front yard and then crashed into a house. Alan
Butcher, the owner of the 2013 Ford pickup was watching a Chiefs' football game on his
television when the collision occurred. When he went outside, Butcher saw that the back
end of his truck had been damaged. Moreover, he also saw that Ruggiero's truck had
ended up in the front yard of a house across the street. He walked over to Ruggiero and
asked him if he was alright. Brian Little, the owner of the house, also came outside and
saw the damage to his yard and house; he then walked over to Ruggiero to make sure he
was alright and to tell him to stay where he was. Both Butcher and Little saw that
Ruggiero was bleeding from his head and he seemed to be "out of it." Moreover, they
noticed that his speech seemed to be slow. Eventually, Butler County Deputy Sheriff
Thomas Gresham and emergency medical services (EMS) arrived at the collision.

As a result of the collision, the State later charged Ruggiero with DUI. Ruggiero
pled not guilty to the DUI charge.

At trial, the State presented testimony from several witnesses and also admitted
several exhibits, including the lab results of Ruggiero's blood test and photos of the
collision scene. Ruggiero provided the jury with a list of all the medications he had been
prescribed since 2008.

Deputy Sheriff Gresham was the first to testify at trial. He described the scene of
the collision and the extensive damage done to both trucks and the house. He testified
that the speed limit of the residential neighborhood was 25 mph but made no inference as
to the speed Ruggiero was traveling when he slammed into Butcher's parked truck.
Deputy Sheriff Gresham also testified that when he walked up to Ruggiero, he noticed
that "[t]he defendant had some blood on his face . . . and . . . a small cut above the right
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eye . . . [and] the entire right side of his face, the cheek, the forehead, around the eye and
around the mouth was swelling." When asked by defense counsel about his experience
with car accidents in which a person receives a head injury, Deputy Sheriff Gresham
agreed that such injuries could cause an individual to have slurred speech and to have a
lack of balance. Furthermore, Deputy Sheriff Gresham also agreed that EMS had taken
Ruggiero from the scene particularly quickly due to his lack of balance and head injury.

According to Deputy Sheriff Gresham, Ruggiero explained that he was driving a
few blocks from his home when "his identification badge had fallen somewhere in his
truck onto the floor; that he reached down to grab it and struck the truck in the process of
doing that." Deputy Sheriff Gresham saw that Ruggiero had his boots on the wrong feet
and that Ruggiero "had some slurred speech that [Sheriff Gresham] knew not to be
normal for him" because of his previous interaction with Ruggiero. When asked by
Deputy Sheriff Gresham for medical information he could give to the medical attendant,
Samantha Harris, Ruggiero's fiancée, told Deputy Sheriff Gresham that Ruggiero "was on
the second day of taking a new antidepressant that caused his speech to be slurred." She
also listed a number of other medications Ruggiero was taking around that time. Deputy
Sheriff Gresham eventually requested a blood draw be done on Ruggiero. In explaining
this decision, Deputy Sheriff Gresham stated:

"Due to the things that I observed on scene. Primarily his shoes being on backwards and
cinched up tight. And his slurred speech. The knowledge that he took several
medications, some of which were for pain and for depression. And the fact that the
accident had occurred. And at that time what I believed to be the severity of his injuries
with him, for lack of better term, slipping in and out of consciousness. I requested the
blood dr[a]w for those reasons."

Trooper Aaron McGuire of the Kansas Highway Patrol was asked to obtain the
blood sample. Trooper McGuire drove to the hospital and read the implied consent
advisories to Ruggiero while he was on a stretcher and left a copy of the advisories on his
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leg. Ruggiero was unconscious or semiconscious when the implied consent notice was
read to him by Trooper McGuire. Trooper McGuire asked that one of the medical
personnel draw the blood. The blood draw was completed around 3 p.m. The blood
sample was sent to the Kansas Bureau of Investigation (KBI) laboratory where it was
tested by forensic scientist, Gretchen Crow.

Crow has a Bachelor of Science degree in chemistry and was working for the KBI
as a forensic toxicologist when Ruggiero's blood sample arrived for testing. Crow
testified about her lab report, which was properly admitted into evidence. The report
showed that Ruggiero tested positive for the presence of Lorazepam, Methocarbamol,
Guaifenesin, Tramadol, N-Desmethyltramadol, Venlafaxine, Desmethylvenlafaxine,
Sertraline, and Ibuprofen. Crow testified that Lorazepam is a central nervous system
(CNS) depressant used as an antianxiety or sedative drug. Adverse effects of Lorazepam
can be "sedation, dizziness, weakness and poor coordination." Methocarbamol is also a
CNS depressant and muscle relaxant. Guaifenesin is a benign metabolite of
Methocarbamol and does not cause impairment. Tramadol is an analgesic used to treat
pain and may cause dizziness. N-Desmethyltramadol is a metabolite of Tramadol and
does not cause impairment. Venlafaxine is an antidepressant and does not alone cause
driving impairment, but with other CNS depressants may increase the risk for
impairment. Desmethylvenlafaxine is a metabolite of Venlafaxine and does not cause
impairment. Sertraline is an antidepressant that may cause dizziness which can be
accentuated if taken with other CNS depressants. Ibuprofen is an over-the-counter
painkiller.

Importantly, Crow testified that no quantitative data was listed in her lab report.
She explained that this is because there is no presumptive level of impairment unlike, for
example, the statutorily presumptive impairment level of .08 for alcohol consumption.
She further explained: "If [the KBI] did quantitate drugs it would be for clinical purposes
only to see whether someone's at a sub therapeutic, therapeutic, toxic or lethal dose."
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Throughout Crow's testimony, she explained only the possible effect each drug had on
the average human body but did not testify as to how the drug affected Ruggiero
individually. Specifically, she stated: "These are just in general what the drugs can do."
Crow could not say if the levels of substances in Ruggiero's blood influenced him to the
extent that he could not drive safely. Additionally, she could not say whether the levels of
the drugs in Ruggiero's system were therapeutic or less than therapeutic.

The State also called Butcher to testify. Butcher testified that after hearing a noise,
he went outside and saw that his truck had been pushed about 10 feet from where it was
originally parked. He immediately saw that the tailgate end of the truck had been
damaged. Butcher testified that when he reached Ruggiero, he was "pretty much out of it"
and was bleeding from his forehead. He stated that Ruggiero was "[t]ired a little bit, but
he was kind of—he was out of it. Like he was either knocked out or I mean there was
something." When pressed by the State, Butcher explained that he believed Ruggiero had
a head injury. Similar to Deputy Sheriff Gresham, Butcher testified that Ruggiero told
him that the collision was caused by reaching to the truck's floorboard for his fallen
employee ID badge.

After Butcher, Little testified as to what he saw concerning the collision. Little
described the scene and the damage to his property. When he saw the damage, Little
described being "really scared that whoever was driving was going to be in a really,
really bad shape or dead." Little further explained that Ruggiero "had a cut above . . . his
left eye . . . he was talking kind of slow . . . [and] he had his boots on the wrong feet."
Little also told the jury that the boots were laced and tied tightly. Little also testified that
Ruggiero asked Little to take his holstered gun on his hip from him. Little then put the
gun in the back of Ruggiero's truck.

Little's wife, Royann Little, testified that she thought Ruggiero had asked that the
gun be taken from him to make everyone "aware [t]hat it was there and so there wasn't
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any problems." She gave a similar physical description of the damage as her husband did
and explained that she was concerned Ruggiero may have been drinking but did not smell
alcohol. She corroborated her husband's testimony that Ruggiero's boots were on the
wrong feet and tightly laced. Moreover, she told the officers at the scene she thought that
was odd.

The State also called Harris, Ruggiero's fiancée, to testify. Harris was at work
passing out medications as a nurse at a nursing home on the day of the collision. Harris
told the jury that Deputy Sheriff Gresham was incorrect when he testified that she told
him that Ruggiero's speech was slurred because of new medication he was taking. She
further testified that Ruggiero had been taking his prescribed medications for a while and
tolerated them well.

Ruggiero testified in his own defense. He told the jury that he lived about five
houses from the collision and he was leaving town to visit his family the day of the
collision. In explaining his reason for the collision, Ruggiero stated:

"I have a little cutout on the dashboard where you could put your cell phones or
whatever.
"And had my phone in there. The phone rang . . . . I pulled my phone out of that
little cubby hole. That's where I keep my ID for work. It fell on the floor. And with my
phone still in my hand I just bent over to pick it up and that's the last thing I remember."

He testified that upon waking up from the accident, he was in a driveway up against a
house and was confused as to how he got there. He then spoke with the owner of the
house and handed him his gun. He remembered telling the people who ran to check on
him that he had picked up his ID badge when the collision occurred. He then told the
same version to Deputy Sheriff Gresham. He walked around the vehicle until Deputy
Sheriff Gresham told him to get back in the truck.

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Ruggiero testified that he still takes several medications that were prescribed to
him after his four military tours in Iraq. The medications are prescribed for his anxiety,
panic attacks, depression, and chronic injuries. Ruggiero further testified that he did not
take Lorazepam the day of the accident. He also stated that he had "no doubt whatsoever"
in his confidence to drive safely that day. Ruggiero stated that, in the past, he has
discontinued use of any drugs that he did not tolerate very well.

Defense counsel asked Ruggiero before trial to put the boots he wore on the day of
the collision on the wrong feet. In his testimony, Ruggiero stated that "[t]hey wouldn't go
on. They were painful and uncomfortable." He further stated that he would have noticed
immediately if the boots had been put on the wrong feet and denied that they were on the
wrong feet the day of the collision.

After deliberating for about two hours, the jury found Ruggiero guilty of DUI.

Was Ruggiero's Conviction Supported By Sufficient Evidence?

The only issue Ruggiero argues on appeal is that there was insufficient
evidence presented at trial to support a conviction of driving under the influence of
drugs.

"'When the sufficiency of evidence is challenged in a criminal case, this court
reviews the evidence in a light most favorable to the State to determine whether a rational
fact-finder could have found the defendant guilty beyond a reasonable doubt.' [Citation
omitted.]" State v. Rosa, 304 Kan. 429, 432-33, 371 P.3d 915 (2016). "'In making a
sufficiency determination, the appellate court does not reweigh evidence, resolve
evidentiary conflicts, or make determinations regarding witness credibility. [Citations
omitted.]'" State v. Dunn, 304 Kan. 773, 822, 375 P.3d 332 (2016). A guilty verdict will
be reversed only in rare cases where the testimony is so incredible that no reasonable
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fact-finder could find the defendant guilty beyond a reasonable doubt. State v. Matlock,
233 Kan. 1, 5-6, 660 P.2d 945 (1983).

Ruggiero was convicted of DUI under K.S.A. 2013 Supp. 8-1567(a)(3) which
states: "Driving under the influence is operating or attempting to operate any vehicle
while . . . under the influence of any drug or combination of drugs to a degree that
renders the person incapable of safely driving a vehicle." (Emphasis added.) Ruggiero
argues that the State failed to prove that he was under the influence of a drug or drugs to
the extent that he was incapable of safely driving a vehicle beyond a reasonable doubt.

"[A] DUI conviction, like any conviction, can be supported by direct or
circumstantial evidence." State v. Perkins, 296 Kan. 162, 167, 290 P.3d 636 (2012).
"Circumstantial evidence may support a conviction, if such evidence provides a basis
from which a reasonable factfinder may reasonably infer the existence of the fact in
issue." State v. Darrow, No. 109,397, 2014 WL 1887629, at *2 (Kan. App. 2014)
(unpublished opinion), aff'd 304 Kan. 710, 716, 374 P.3d 673 (2016).

The physical facts, which no one disputes, showed that the crash happened during
daylight on a residential street where the speed limit was 25 mph. In addition, on the day
of the collision, there was no rain, no reduced visibility, or no physical obstructions in the
street. Moreover, the street was a paved surface. The physical facts further showed that
Ruggiero slammed his truck into the rear end of Butcher's legally parked truck with such
force that Ruggiero completely knocked off one of the front wheels to his truck. Even
after colliding into Butcher's truck, Ruggiero's truck still had enough energy to travel
through Brian and Royann Little's front yard. It dug a trench as it went through their yard,
and his truck eventually slammed into the garage door of their home, damaging Royann's
car that was parked inside the garage.

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Ruggiero's only explanation for the collision was that he was a few blocks from
his home when he fumbled and dropped his employee ID badge to the floor of his truck
and, when he bent down to retrieve his ID badge, he slammed his truck into the rear end
of Butcher's truck. He paraded these facts before the jury in assigning a complete
explanation as to the cause for the collision.

Nevertheless, Deputy Sheriff Gresham witnessed and testified to Ruggiero's
obvious signs of impairment on the day of the collision. Deputy Sheriff Gresham
immediately noticed Ruggiero's slurred speech. He knew Ruggiero's speech was slurred
because he was familiar with Ruggiero's regular speech based on previous interactions
with him. Harris also conceded that Ruggiero's newest medication had been causing him
to have slurred speech. This concession further undercuts Ruggiero's argument that any
trauma to his head during the collision caused his slurred speech. Moreover, he saw that
Ruggiero was wearing his boots, tightly laced, on the wrong feet. Brian and Royann
Little also testified they saw that Ruggiero was wearing his boots, tightly laced, on the
wrong feet.

In addition, the State introduced expert testimony as to pharmacological properties
of drugs in Ruggiero's system. Although the forensic scientist could not say if any of the
drugs she found in Ruggiero's system could have impaired his ability to safely drive, she
testified that she found the drug Lorazepam in his blood. She testified that this drug is
used as a sedative and as an antianxiety medication. She further testified that Lorazepam
can cause dizziness, weakness, and poor coordination. She also testified that
Methocarbamol, a muscle relaxer, and Tramadol, an analgesic and a central nervous
system depressant, were found in Ruggiero's system. Methocarbamol can cause dizziness,
drowsiness, and light headedness. Tramadol can cause dizziness.

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Finally, based on Ruggiero's own testimony as to the cause of the collision, he has
conceded the fact that he was clearly distracted by something before the collision
occurred.

When reviewing the previously described evidence of impairment, Ruggiero
disputes only the evidence that his boots were on the wrong feet when the collision
occurred. Indeed, Ruggiero testified that he tried to put the boots that he wore on the day
of the collision on his wrong feet before trial, but "[t]hey wouldn't go on. They were
painful and uncomfortable." One must ask this question: What would be the motive of
three disinterested witnesses to each falsely or mistakenly testify that Ruggiero was
wearing his boots on the wrong feet the day of the collision? The record is devoid of any
motive for them to do so. Moreover, the testimony of a disinterested witness, all things
being equal, is preferred to that of an interested witness.

Here, the fact that Ruggiero was wearing his boots on the wrong feet impressed
itself upon the memory of Deputy Sheriff Gresham, Brian Little, and Royann Little
because it was unusual. Indeed, it impressed itself upon Royann's memory so much so
she shared with the other law enforcement officers at the scene that she thought it was
odd that Ruggiero was wearing his boots on the wrong feet.

Ruggiero's complete denial that he was wearing his boots on the wrong feet
presented the jurors with a conundrum over who they believed: Ruggiero or the three
disinterested witnesses. While passing on the credibility of witnesses and the weight of
the evidence produced, the jurors were free to believe all, part, or none of the evidence.
Quite clearly the jury did not believe Ruggiero with respect to his explanation as to what
caused the collision. Indeed, if the jury did not believe Ruggiero's explanation for the
collision, his explanation would have been valueless in the eyes of the jurors in
explaining a satisfactory cause for the collision. Thus, the jury would have been left with
only the undisputed facts, previously described, surrounding the collision. When those
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facts are viewed in the light most favorable to the State, a rational fact-finder could have
found Ruggiero guilty beyond a reasonable doubt of DUI.

Affirmed.

* * *

ARNOLD-BURGER, C.J., dissenting: I respectfully dissent. I do not believe there
was sufficient evidence when viewed in the light most favorable to the State from which
a rational fact-finder could have found the defendant guilty beyond a reasonable doubt.
State v. Rosa, 304 Kan. 429, 432-33, 371 P.3d 915 (2016). The majority has done an
excellent job of setting forth the facts so I will not restate them here except to summarize
the sum total of evidence against him in a few short sentences.

Edward Leo Ruggiero collided with a parked car. He suffered a serious head
injury that required he be rushed to the hospital, frequently lapsing in and out of
consciousness. When he was conscious, his speech was slurred and he seemed confused.
His boots were laced up on the wrong feet. A blood test indicated that he had drugs in his
system. But the State was unable to present any evidence regarding the quantity of drugs
in his system and the effect it would have had on him. How could one possibly conclude
beyond a reasonable doubt from such minimal evidence that Ruggiero was under the
influence of drugs to the extent that he was incapable of safely operating his vehicle?
That was what the State was required to prove beyond a reasonable doubt. The State
presented no evidence about the quantity of drugs in his system. We do not know if it was
equal to, less than, or more than a therapeutic dose. We do not know if it was more than a
trace amount, only that it was a detectable amount. No one alleges that he was illegally
taking any of the drugs noted in his system. The only piece of evidence that could not be
equally explained by a serious head injury was the fact that his boots were on the wrong
feet. None of the State's witnesses could separate the effects of a head injury from the
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effects of drug use. Nor because of the lack of evidence of the quantity of drugs in his
system, could anyone conclude that it was his drug use that affected his driving. I simply
do not find that this is even a close call. I would reverse the conviction as unsupported by
the evidence.