Rogers v. State

1

2023 Ark.App. 207

KIMBERLY ROGERS APPELLANT v. STATE OF ARKANSAS APPELLEE

No. CR-22-568

Court of Appeals of Arkansas, Division IV

April 12, 2023

APPEAL FROM THE SALINE COUNTY CIRCUIT COURT [NO. 63CR-20-735] HONORABLE BRENT DILLON HOUSTON, JUDGE

Lassiter & Cassinelli, by: Michael Kiel Kaiser, for appellant.

Leslie Rutledge, Att'y Gen., by: Rebecca Kane, Ass't Att'y Gen., for appellee.

ROBERT J. GLADWIN, JUDGE

Kimberly Rogers appeals her convictions on charges of Class D felony first-degree endangering the welfare of a minor, in violation of Arkansas Code Annotated section 5-27-205(a)(1) (Supp 2021); and misdemeanor driving while intoxicated (DWI), in violation of Arkansas Code Annotated section 5-65-103(a)(1) (Repl. 2016). She challenges the sufficiency of the evidence supporting the endangering-the-welfare-of-a-minor and DWI convictions.

I. Facts and Procedural History

Rogers was charged with first-degree endangering the welfare of a minor and DWI on October 26, 2020, after she had allegedly been intoxicated while driving her route as a schoolbus driver to drop students off after school on August 27, 2020.

On March 14, 2022, Rogers filed a pretrial motion to dismiss the charge of endangering the welfare of a minor. She argued that convictions for that offense and DWI would violate the intent of the legislature in enacting the DWI sentencing enhancement codified at Arkansas Code Annotated section 5-65-111(a)(1)(B) (Supp. 2021) under which the sentence for a DWI conviction pursuant to section 5-65-103 may be enhanced if a passenger under the age of sixteen is in the vehicle at the time of the offense. She stated that the offense of endangering the welfare of a minor generally prohibits such conduct and that the DWI sentencing enhancement prohibits a specific instance of that offense; accordingly, the former must yield to the sentencing enhancement in section 5-65-111(a)(1)(B). The circuit court found that Rogers was charged with two separate and distinct offenses and denied the motion to dismiss. A bench trial was held on March 15, and just before trial, the circuit court found that Rogers's motion for partial dismissal was premature unless or until she was convicted of both offenses.

The evidence at the bench trial established that on August 27, 2020, Rogers was employed as a school-bus driver by Bryant Public Schools and was assigned the bus route designed to transport special-needs children attending the elementary school and high school. On that day, Rogers had one adult aide and thirteen student passengers on the school bus when she drove off the road, hit a speed-limit sign, and landed in a ditch.

A one-and-a-half-hour audio and video recording taken by the camera mounted inside the front of the school bus indicates that Rogers's movements that day were slow, her speech was slurred and sometimes unintelligible, her head occasionally nodded, she seemed confused, and she drove twice in reverse gear after missing a turn. Rogers's supervisor, Scott Curtis, testified that Rogers's speech in the video was different than the way she normally spoke.

The adult aide assigned to assist Rogers, Tiffani Newborn, testified that she was frightened by the way Rogers was driving on the day of the incident. She recalled that Rogers took a student to the wrong house and illegally drove the bus in reverse gear. Newborn explained that because of her unstable behavior, she suspected that Rogers was impaired by alcohol or drugs. Newborn recalled that when Bryant Police Officer Austin Kennedy arrived at the scene of the wreck, she told him that she thought Rogers was impaired.

Officer Kennedy described Rogers as being very defensive and agitated at the scene. He testified that her slurred speech and mannerisms led him to believe she was impaired, so he took her to the Bryant Police Department for further testing. Rogers's blood-alcohol test did not indicate that she was impaired by alcohol, which lead Officer Kennedy to suspect that she was impaired by a narcotic.

Bryant Police Officer Bill Hutto, a certified drug-recognition expert, administered a twelve-step drug-influence examination on Rogers. He explained the reason for the test, how he administered it, and the results of each of the twelve steps. Officer Hutto testified that Rogers told him that she was taking the following prescription medications: Adderall for her adult attention-deficit disorder; Lexapro and Klonopin for anxiety; Soma for her sleep disorder; and the anti-inflammatory medications Mobic and Armour. During examination, Officer Hutto noted that Rogers's speech was slurred, she had balance and memory issues, she was lightheaded, and she was suffering from a headache.

Officer Hutto opined that, on the basis of his examination, Rogers had ingested a high dose of Klonopin, which is the brand name for clonazepam-a long-acting benzodiazepine. He explained that clonazepam is a medication that slows brain activity, and it is administered with a label on the prescription bottle warning the patient that it will impair the ability to operate machinery or drive safely. He concluded that the amount of Klonopin Rogers had ingested exceeded the medical therapeutic dosage and prevented her from safely operating the school bus.

Rogers was placed under arrest, and prior to transporting her to the Saline County Jail, Officer Kennedy searched her belongings and discovered several loose prescription pills in her purse that were later determined to be Klonopin.

Mary Heffington with the Arkansas State Crime Laboratory testified that she analyzed the urine sample taken from Rogers on the day of the accident. The analysis showed that Rogers was positive for amphetamine, nicotine, meprobamate, caffeine, carisoprodol, fluconazole, citalopram/escitalopram, desmethylcitalopram/desmethylescitalopray, and methamphetamine. The toxicology tests did not confirm the presence of benzodiazepine; however, Heffington explained that this was common due to the chemistry of the drug. During her experience, she had never seen a toxicology test return positive for benzodiazepine.

Rogers testified on her own behalf at trial and explained that she had been prescribed several medications for various conditions and that she took those medications consistent with her prescriptions and her experience with them on the date in question. Rogers specifically acknowledged that she took Klonopin and drove the school bus thirty minutes later. Rogers testified she had never previously used methamphetamine. She testified that she was drug tested regularly in her employment and had never failed a drug screen. Rogers also stated that her doctor never advised her to refrain from driving while using her prescription medications.

Regarding other factors that day, Rogers also noted that she had recently had a lapband procedure and had vomited up her lunch earlier that day. She also had a brace on her leg that she had been using for at least two years prior to the accident.

During her testimony, Rogers attributed the accident to the weather, noting that the students were dismissed from school earlier than normal that day due to the threat of a tropical storm, which was expected to cause torrential rain and high winds in the area. Rogers explained that it was only the fourth day of school, making the situation very chaotic. Rogers testified that she could hear the tornado sirens going off.

Rogers explained that the bus's front tire had slipped off the road at a major drop off in the roadway, causing the accident at issue. The bus was too heavy to get out of the spot where it became stuck following the accident. Rogers emphasized that she did not try to do anything that would put the children on the bus at risk while she was driving.

At the close of the State's case and at the close of all of the evidence, Rogers moved for dismissal on the endangering-the-welfare-of-a-minor charge, challenging the State's proof that she had engaged in conduct that created a substantial risk of death or serious physical injury, which the circuit court denied. At the close of the State's evidence, Rogers challenged the State's proof that she was intoxicated; however, at the close of all of the evidence, she challenged the State's proof of the culpable mental state for DWI. The circuit court also denied the motions for dismissal as to the DWI charge.

The circuit court then found Rogers guilty of both counts. A sentencing hearing was held on May 6, and Rogers was sentenced to one day in jail with credit for time served and a $1,000 fine for DWI; six years' probation with 120 days in the county jail as a condition of that probation and a $1,500 fine for the endangering-the-welfare-of-a-minor charge. The sentencing order was filed on May 10, and Rogers filed a timely notice of appeal on May 6, which is treated as being filed on May 11 pursuant to Ark. R. App. P.-Crim. 2(b)(1)) (2022).

II. Discussion

A. Endangering the Welfare of a Minor in the First Degree

Under section 5-27-205(a)(1), a person commits the offense of first-degree endangering the welfare of a minor if "being a parent, guardian, person legally charged with care or custody of a minor, or a person charged with the supervision of a minor, he or she purposely: . . . [e]ngages in conduct creating a substantial risk of death or serious physical injury to a minor." Pursuant to Arkansas Code Annotated section 5-2-202(1) (Repl. 2013), "[a] person acts purposely with respect to his or her conduct or a result of his or her conduct when it is the person's conscious object to engage in conduct of that nature or to cause the result[.]" And Arkansas Code Annotated section 5-1-102(21) (Supp. 2021) defines "serious physical injury" as "physical injury that creates...