Heather Renee Jones v. Commonwealth of Virginia ( 2024 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Decker, Judges O’Brien and Causey
UNPUBLISHED
Argued by videoconference
HEATHER RENEE JONES
MEMORANDUM OPINION* BY
v. Record No. 1687-23-3 CHIEF JUDGE MARLA GRAFF DECKER
OCTOBER 8, 2024
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ROANOKE COUNTY
Charles N. Dorsey, Judge
Aaron B. Houchens (Aaron B. Houchens, P.C., on briefs), for
appellant.
David A. Stock, Assistant Attorney General (Jason S. Miyares,
Attorney General, on brief), for appellee.
A jury found Heather Renee Jones guilty of aggravated involuntary manslaughter, driving
under the influence, maiming while driving under the influence, and maiming while driving
under the influence resulting in permanent impairment. She challenges the trial court’s
admission of certain evidence and the sufficiency of the evidence to support her convictions.
After reviewing the record and the relevant case law, we conclude that the trial court did not
abuse its discretion by admitting the challenged evidence. Also, the evidence was sufficient to
prove that Jones was driving under the influence and acted with criminal negligence.
Consequently, we affirm the convictions.
*
This opinion is not designated for publication. See Code § 17.1-413(A).
BACKGROUND1
Jones’s convictions arise from a tragic car accident. In May 2020, Jerry Broughman was
driving with his two young daughters when Jones veered into his lane and crashed her car into
his car. Broughman died at the scene of the accident, and both daughters sustained serious
injuries.
After the crash, Jones was transported to a hospital. Sergeant Mark Banks with the
Roanoke County Police Department followed the ambulance there. At the hospital, Banks spoke
with Jones and then arrested her for driving under the influence.2 The sergeant informed Jones
of the implied consent law, and she agreed to a blood test. Hospital personnel drew her blood,
and testing showed that Jones had buprenorphine, fentanyl, and morphine in her system.3
Sergeant Banks later obtained a search warrant to access her hospital medical records.
Jones was charged with aggravated involuntary manslaughter, driving with a revoked
license, driving under the influence, maiming while driving under the influence, and maiming
while driving under the influence resulting in permanent and significant physical impairment.
See Code §§ 18.2-36.1(B), -51.4, -266. She pleaded guilty to driving with a revoked license and
not guilty to the other charges.
1
We view the evidence in the light most favorable to the Commonwealth. Hicks v.
Commonwealth, 71 Va. App. 255, 261 n.2 (2019) (reviewing the admissibility of evidence);
Peters v. Commonwealth, 66 Va. App. 743, 745 n.1 (2016) (reviewing the sufficiency of the
evidence); see Hill v. Commonwealth, 297 Va. 804, 808 (2019) (reviewing the denial of a motion
to suppress).
2
The audio recording of the interview was played for the jury and admitted into
evidence.
3
The amounts were less than .00050 mg/L of buprenorphine, between .003 and .010
mg/L of fentanyl, and between .003 and .011 mg/L of morphine. Buprenorphine is “used to treat
heroin addiction.”
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Jones sought to have her medical records suppressed, but the trial court ultimately
admitted them.4 She also asked the trial court to exclude the results of her blood draw, arguing
that the sample was taken in violation of Code § 18.2-268.5, but the court denied that motion as
well. At trial, Dr. Trista Wright, a supervisor at the Virginia Department of Forensic Science,
testified as an expert in forensic toxicology. Wright spoke about the results of the blood analysis
she conducted. She opined, over Jones’s objections, about the effects that the levels of narcotics
found in Jones’s blood would have on a person’s motor skills and driving ability.
After the presentation of the evidence, Jones made a motion to strike. She argued that the
Commonwealth failed to prove that she was under the influence of the narcotics in her system or
that she acted with criminal negligence. The trial court denied the motion.
The jury convicted Jones of the charged offenses. See Code §§ 18.2-36.1(B), -51.4, -266.
She was sentenced to a total of thirty-five years and twenty-four months of incarceration, with
twenty years suspended.
ANALYSIS
I. Admissibility of Evidence
On appeal, a trial court’s decision to admit or exclude evidence is reviewed for an abuse
of discretion. Jefferson v. Commonwealth, 298 Va. 1, 10 (2019). The “bell-shaped curve of
reasonability” underpinning appellate review for an abuse of discretion “rests on the venerable
belief that the judge closest to the contest is the judge best able to discern where the equities lie.”
Commonwealth v. Barney, 302 Va. 84, 94 (2023) (quoting Sauder v. Ferguson, 289 Va. 449, 459
(2015)). “A reviewing court can conclude that an abuse of discretion occurred only when
reasonable jurists could not differ about the correct result.” Howard v. Commonwealth, 74
4
The trial court initially granted Jones’s motion to suppress her medical records, finding
that the first search warrant Sergeant Banks obtained lacked probable cause. Banks then
obtained another search warrant based on new information.
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Va. App. 739, 753 (2022). To the extent this analysis requires interpretation of “statute[s] or the
Rules of the Supreme Court, these are questions of law . . . review[ed] de novo.” Commonwealth
v. Herring, 288 Va. 59, 66 (2014) (quoting Woodard v. Commonwealth, 287 Va. 276, 280
(2014)).
Jones challenges the admissibility of three different categories of evidence. First, she
argues that the court erred by admitting the undisclosed opinions of Dr. Trista Wright. Second,
she contends that the blood draw results were inadmissible because her blood sample was taken
in violation of Code § 18.2-268.5. Third, she challenges the admission of her medical records.
A. Opinion Evidence
In the trial court, the judge issued a discovery order requiring the Commonwealth to
provide a list of its expert witnesses at least ten days before trial, along with any written report or
“a written summary of expert opinion testimony the Commonwealth intends to use at trial.” The
order also noted that “[p]roviding a copy of a certificate of analysis” would “satisfy” the
disclosure requirements. The Commonwealth designated Dr. Wright as a toxicology expert. The
disclosure specified that she prepared the certificate of analysis of Jones’s blood, but it did not
identify details of her expected testimony. A copy of the certificate of analysis was included
with the disclosure.
At trial, Dr. Wright first testified about the results of the blood analysis. She also
described the effects the drugs detected in Jones’s blood can have on a person. Wright explained
that, generally, taking morphine and fentanyl causes “dizziness, drowsiness, slurred speech, poor
coordination, slowed reaction times, [and] difficulty performing divided attention tasks, . . .
includ[ing] driving.” She further noted that the particular fentanyl level found in Jones’s blood
might cause “central nervous system depression.” Dr. Wright clarified that the fentanyl
concentration in Jones’s blood was “fairly elevated” and could even be “lethal” for an
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inexperienced user. She explained that the effect “depends on the individual” because
“individuals [who] are considered tolerant users” due to prior drug use “may not have as many
observable effects.” She testified that, even so, a user who had developed a tolerance would
exhibit a “slowed” “reaction time.” Wright also explained that buprenorphine, fentanyl, and
morphine combined would have a greater depressant effect on a user’s central nervous system
“than any of these drugs by [themselves].”
Jones objected to Wright’s testimony about the “generic effects” of fentanyl at the level
found because it went beyond the scope of her expert witness designation. The trial court noted
that under Rule 3A:11(b)(4)(B), providing a copy of the certificate of analysis satisfied the
Commonwealth’s disclosure obligation. It concluded that the authority relied on by Jones
applied only to civil cases, not criminal ones, and overruled the objection.
On appeal, Jones again argues that the testimony was inadmissible because it exceeded
the scope of the Commonwealth’s disclosure during discovery. She points to Rule 3A:11, which
applies to discovery in criminal cases.5 Rule 3A:11(b)(4)(A) provides that a court may order the
Commonwealth to disclose its “intent to introduce expert opinion testimony at trial or
sentencing.” In addition, the court can order the disclosure of “any written report of the expert
witness setting forth the witness’s opinions and the bases and reasons for those opinions, or if
there is no such report, a written summary of the expected expert testimony setting forth the
witness’s opinions and the bases and reasons for those opinions.” Rule 3A:11(b)(4)(A). The
5
In a civil case, a party can require the other party to identify expected expert witnesses
and “to state the substance of the . . . opinions to which the expert is expected to testify.” Rule
4:1(b)(4)(A)(i); see Rule 4:0(a) (noting that the rules in part four apply to civil cases). We
recognize that in a civil case, exclusion is ordinarily the appropriate remedy for an expert opinion
that is not properly disclosed. See Emerald Point, LLC v. Hawkins, 294 Va. 544, 555 (2017);
Mikhaylov v. Sales, 291 Va. 349, 360-61 (2016). We decline the appellant’s invitation to apply
civil authority in a criminal case because the two types of cases are expressly treated differently
by the Rules of the Supreme Court. See Rules pt.1 app., form 3 § III.
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rule also states that “[p]roviding a copy of a certificate of analysis from the Virginia Department
of Forensic Science . . . signed by . . . the person performing the analysis or examination[]
satisfies” the requirements of this subpart. Rule 3A:11(b)(4)(B).
Based on a plain reading of the rule, the Commonwealth satisfied the requirements by
disclosing the certificate of analysis prepared by Dr. Wright. Jones disagrees with this
interpretation, arguing instead that the submission of a certificate of analysis allowed for
testimony limited to “chemical tests and forensic examinations.” However, just as an appellate
court may not add words when interpreting a statute, it cannot add words when interpreting the
Rules of the Supreme Court. See, e.g., Kenner v. Commonwealth, 299 Va. 414, 430 (2021)
(applying the plain language of Rule 3A:17); Herring, 288 Va. at 69 (applying the plain
language of Rule 5A:12(c)(1)(ii)); Henthorne v. Commonwealth, 76 Va. App. 60, 67 (2022)
(recognizing the principle of statutory construction that a court may not add language to a
statute). Based on the clear language of Rule 3A:11, the Commonwealth complied with the
criminal discovery rules and the court order in this case by identifying Wright and providing the
certificate of analysis.6
Consequently, the trial court did not abuse its discretion by allowing testimony from
Dr. Wright about general effects of the drugs found in Jones’s blood sample based on the levels
detected and documented in the certificate of analysis.
6
We note that an “[a]dmission of relevant and material evidence at trial [that] was not
previously disclosed as required by a discovery order . . . is not reversible error absent a showing
of prejudice.” Conway v. Commonwealth, 12 Va. App. 711, 716 (1991) (en banc). “To show
prejudice, the defendant must demonstrate how timely disclosure would have changed his trial
strategy or affected the outcome of the trial.” Smoot v. Commonwealth, 37 Va. App. 495, 502
(2002). Here, defense counsel conferred with Dr. Wright before trial and had the opportunity to
cross-examine her. See Davis v. Commonwealth, 230 Va. 201, 204 (1985) (“When a discovery
violation does not prejudice the substantial rights of a defendant, a trial court does not err in
admitting undisclosed evidence.”).
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B. Blood Draw Results
There was some ambiguous evidence before the trial court as to who actually drew
Jones’s blood. The certificate of blood withdrawal reflects that the blood was taken by “Kim
Manns / Justin Strowbridge.” Kim Manns was a registered nurse, and Justin Strowbridge was an
“emergency room technician or paramedic” at the hospital. During the blood draw, they were
both in the room with Jones, along with Sergeant Mark Banks.
Manns testified that she did not specifically remember conducting a blood draw on Jones.
She generally remembered drawing blood from someone and having Strowbridge assist with an
ultrasound machine to locate a vein. Manns, however, did not remember if the subject of the
blood draw was Jones. Strowbridge remembered being “called to the room” to use the
ultrasound machine to look for a vein in Jones’s arm. But he testified that he did not insert the
needle to draw Jones’s blood, nor did he remember if Manns was the person who did so.
Sergeant Banks testified that Manns attempted the blood draw three times before Strowbridge
brought an ultrasound machine into the room. Banks specifically recalled that Strowbridge
inserted the needle and drew Jones’s blood. The sergeant filled out the cards identifying the
time, date, jurisdiction, his name, and his badge number, and said Manns attached those cards to
the blood vials.
Jones made a motion to exclude the results of the blood draw. She argued that the
evidence suggested that Strowbridge drew her blood and he was unqualified to do so under the
language of the statute. The trial court held that regardless of whether Manns or Strowbridge
drew the blood, it was done in compliance with or, at the very least, in substantial compliance
with the statute. It therefore denied the motion to exclude the results of the blood draw.
Code § 18.2-268.5 provides that “[f]or purposes of this article, only a physician,
registered nurse, licensed practical nurse, phlebotomist, graduate laboratory technician or a
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technician or nurse designated by order of a circuit court acting upon the recommendation of a
licensed physician . . . shall withdraw blood for the purpose of determining its . . . alcohol and
drug content.” Here, the record demonstrates that Manns and Strowbridge worked together to
conduct the blood draw, although it was unclear as to which of the two individuals actually
inserted the needle and drew the blood. Manns was a registered nurse, specifically authorized by
Code § 18.2-268.5 to take a blood sample. Strowbridge, on the other hand, was an emergency
room technician or paramedic, job titles not specifically referenced in the statute.
Code § 18.2-268.5 relates to “procedural” steps and is “not substantive” in nature. See
Code § 18.2-268.11. And, significantly, it states that “[s]ubstantial compliance” with the statute
is “sufficient.” Id. At the time of the blood draw, Strowbridge was trained on how to draw
blood from an arm vein. Also, he had drawn blood more than 2,000 times and was enrolled in
his third semester of the four required to obtain his license as a registered nurse.
Based on the evidence taken as a whole, the Commonwealth established that either
Manns drew the blood in compliance with Code § 18.2-268.5 or Strowbridge drew the blood in
substantial compliance with the statute.7 For this reason, the trial court acted within its discretion
by admitting the results of the blood draw.8
7
Regarding Code § 18.2-268.2, it is worth noting that “[f]ailure to comply with any steps
or portions thereof shall not of itself be grounds for finding the defendant not guilty, but shall go
to the weight of the evidence.” Code § 18.2-268.11. A “defendant may ‘introduce evidence on
[her] own behalf to show noncompliance with the aforesaid procedures or any part thereof, and
that as a result [her] rights were prejudiced.’” Cutright v. Commonwealth, 43 Va. App. 593, 600
(2004) (quoting Code § 18.2-268.11). Therefore, the remedy for any noncompliance resulting
from Strowbridge’s withdrawal of the blood is not, as Jones suggests, exclusion of the blood
draw results.
8
Below, the trial court relied on the unpublished opinion in Elliott v. Commonwealth, No.
1549-09-2, slip op. at 8, 2010 Va. App. LEXIS 364, at *13 (Sept. 7, 2010), and held that
Strowbridge met the definition of a phlebotomist under Code § 18.2-268.5. We do not reach this
ruling in light of our holding. See Commonwealth v. White, 293 Va. 411, 419 (2017).
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C. Medical Records
Before trial, Sergeant Banks obtained Jones’s medical records from the hospital through a
magistrate-issued search warrant. Jones asked the trial court to suppress those records.
Concluding that the affidavit supporting the search warrant did not establish probable cause, the
court granted that motion and suppressed the evidence.
After the court granted the motion, Sergeant Banks completed a new affidavit, with new
information, and obtained a second search warrant for Jones’s medical records. Jones objected
to the admission of the records based on hearsay and also made a second motion to suppress, but
the court admitted the records. On appeal, Jones challenges these rulings.
1. Hearsay
Jones contends that the medical records were inadmissible hearsay. She posits that the
records were not properly authenticated because “Manns testified that she could not vouch for
the accuracy of the information contained in the hospital records relating to the blood draw.”
Jones believes that, based on Manns’s testimony, the records were not trustworthy and could not
be admitted as business records.
“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.” Va. R. Evid.
2:801(c). Such evidence “is inadmissible unless it falls within one of the recognized exceptions”
to the rule against hearsay. Melick v. Commonwealth, 69 Va. App. 122, 133 (2018) (quoting
McDowell v. Commonwealth, 48 Va. App. 104, 109 (2006)).
“The burden of establishing a statement or document that is otherwise inadmissible
hearsay falls within a recognized exception . . . is borne [by] the proponent of the statement or
document,” in this case the Commonwealth. Id. “The proponent must establish the elements of
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the exception by a preponderance of the evidence.” Id. at 133-34 (noting a deferential standard
of review for predicate factual findings underlying an admissibility determination).
An exception to the rule against hearsay exists for certain records, typically characterized
as business records. Va. R. Evid. 2:803(6). For a record to qualify for this exception, it must
meet particular foundational requirements. Id. Pertinent to the issue here, the business record
exception applies only if “neither the source of information nor the method or circumstances of
the preparation indicate a lack of trustworthiness.”9 Va. R. Evid. 2:803(6)(E). See generally Va.
R. Evid 2:901 (requiring that evidence, to be admissible, must “support a finding that the thing in
question is what [the] proponent claims”).
Manns, who entered notes in the document, testified about her responsibility to enter
information in a patient’s medical record. She explained that a registered nurse’s legal duties
include accurately and promptly recording all of the medical care provided to a patient. See
generally 18 Va. Admin. Code 85-20-26(C) (requiring medical practitioners to “maintain timely,
accurate, legible, and complete patient records”). Her testimony met the evidentiary threshold of
trustworthiness required to admit records of regularly conducted activity. See, e.g., Melick, 69
Va. App. at 143-44 (affirming admission of transaction records). The testimony from Manns
that she could not ascertain the accuracy of the notes she took in Jones’s medical file because she
could not remember the events from two years earlier was a factor for the trial court to consider
in weighing admissibility but did not render the records per se inadmissible.10 Instead, the trial
court acted within its discretion by determining that the threshold requirements that registered
nurses accurately and promptly prepare complete medical records regarding the care of their
9
The other foundational requirements are not at issue in this case. See Va. R. Evid.
2:803(6).
10
Manns was one of several individuals who entered information into Jones’s medical
records.
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patients was sufficient to establish the trustworthiness of the records. See Church v.
Commonwealth, 71 Va. App. 107, 122 (2019) (“Once th[e] threshold for proving admissibility
has been met, any [alleged] gaps in the evidence are relevant to the trier of fact’s assessment of
its weight . . . .”).
Consequently, the trial court did not abuse its discretion by concluding that the
circumstances surrounding the preparation of the medical records established that they were
trustworthy and met the parameters for admissibility under the business records exception to the
rule against hearsay.
2. Motion to Suppress
Jones suggests that when the trial court initially suppressed her medical records under the
exclusionary rule, that ruling became the law of the case and the court could not revisit the issue
of the admission of those records. She argues alternatively that the exclusionary rule barred the
records because they were derivative evidence.
On appeal of a trial court’s denial of a motion to suppress, the appellant bears the burden
of showing that the ruling was reversible error. Jones v. Commonwealth, 277 Va. 171, 177-78
(2009). In evaluating the trial court’s determination, the appellate court is “‘bound by [its]
findings of historical fact unless “plainly wrong,”’ and we ‘give due weight to the inferences
drawn from those facts’ by the trial judge.” Salahuddin v. Commonwealth, 67 Va. App. 190, 202
(2017) (quoting McGee v. Commonwealth, 25 Va. App. 193, 198 (1997) (en banc)). “[W]e
review de novo the trial court’s application of defined legal standards to the particular facts of a
case.” Ferguson v. Commonwealth, 52 Va. App. 324, 334 (2008) (emphasis omitted); see
Durham v. Commonwealth, ___ Va. ___, ___ (Aug. 1, 2024).
Jones argues that the trial court was bound by its ruling on the first motion to suppress
because it was the law of the case. Under the law-of-the-case “doctrine, ‘when a party fails to
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challenge a decision rendered by a court at one stage of litigation, that party is deemed to have
waived her right to challenge that decision during later stages of the “same litigation.”’” Stacey
v. Commonwealth, 73 Va. App. 85, 94 (2021) (quoting Miller-Jenkins v. Miller-Jenkins, 276 Va.
19, 26 (2008)). The doctrine also applies to a jury instruction when neither party objects to it.
See, e.g., Smith v. Commonwealth, 296 Va. 450, 461-62 (2018); Spell v. Commonwealth, 72
Va. App. 629, 635 (2020). Contrary to the appellant’s suggestion, however, the doctrine does
not affect a trial court’s authority to reconsider a ruling. See, e.g., Commonwealth v. McBride,
302 Va. 443, 451 (2023) (holding that a trial court can revisit a verbal ruling on a motion to
strike barring double jeopardy restrictions); Robbins v. Robbins, 48 Va. App. 466, 474 (2006)
(“[A] trial court . . . can, to put it plainly, ‘change its mind while the matter is still pending.’”
(quoting Pinkard v. Pinkard, 12 Va. App. 848, 853 (1991))).
Here, the trial court initially suppressed the medical records obtained through the first
search warrant because the affidavit in support of that warrant did not state facts sufficient to
establish probable cause. In that affidavit, Sergeant Banks provided simply that Jones was
involved in a car accident that killed another driver. After the blood analysis was completed,
Banks, with additional significant information, again sought a search warrant. The new affidavit
he submitted in support provided the new information that the results of Jones’s blood analysis
showed measurable levels of certain controlled narcotics and that she was criminally charged.
The magistrate issued the new search warrant under new facts. Based on the second warrant, the
trial court found probable cause and allowed the medical records into evidence.
Jones posits that when the trial court “suppressed the medical records seized [under] the
original search warrant,” the “ruling became the law of the case” and the court could not revisit
its earlier ruling. First, we note that the ruling before us—the trial court’s denial of Jones’s
second motion to suppress evidence—stemmed from a new affidavit, a new search warrant, and
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a new motion to suppress. But, even if we were to accept Jones’s proposition that by denying the
second motion to suppress, the court revisited an earlier ruling rather than considered a new
issue, the law-of-the-case doctrine did not prevent it from reconsidering its decision. See Daily
Press, LLC v. Commonwealth, 301 Va. 384, 404 n.12 (2022) (holding that the law-of-the-case
doctrine does not limit a trial court’s authority to reconsider its earlier rulings); In re Brown, 295
Va. 202, 224 (2018) (“The law-of-the-case doctrine has no binding effect on a trial court prior to
an appeal.” (quoting Robbins, 48 Va. App. at 474)).
Jones further contends that the exclusionary rule should apply because admitting the
evidence “rendered meaningless” “the deterrent effect of the prior Fourth Amendment violation.”
Jones does not allege that Sergeant Banks acted in bad faith. Instead, she protests that “the
Commonwealth was permitted to simply fix errors and circumvent the Fourth Amendment
violations.”
“Ordinarily, evidence obtained as the result of an unlawful search is subject to
suppression under the exclusionary rule.” Commonwealth v. Jones, 267 Va. 532, 535 (2004).
The judicially created rule “prevents evidence obtained in violation of the [F]ourth [A]mendment
from being used against an accused.” Redmond v. Commonwealth, 57 Va. App. 254, 261 (2010)
(quoting Commonwealth v. Ealy, 12 Va. App. 744, 750 (1991)). This rule, however, is an
extreme remedy that courts do not apply lightly. The Supreme Court of the United States has
made clear that the “exclusion [of evidence] ‘has always been our last resort, not our first
impulse.’” Herring v. United States, 555 U.S. 135, 140 (2009) (quoting Hudson v. Michigan,
547 U.S. 586, 591 (2006)). Accordingly, “[t]he rule’s costly toll upon truth-seeking and law
enforcement objectives presents a high obstacle for those urging [its] application.” Id. at 141
(second alteration in original) (quoting Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 364-65
(1998)).
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By extension, “the exclusionary rule also prohibits the introduction of derivative
evidence . . . that is the product of the primary evidence, or that is otherwise acquired as an
indirect result of the unlawful search.” Murray v. United States, 487 U.S. 533, 536-37 (1988).
Evidence is not derivative if it is discovered due to an independent source and if the challenged
evidence inevitably would have been discovered regardless of the unlawful action. Ealy, 12
Va. App. at 754. Similarly, the exclusionary rule does not apply if the connection between the
challenged evidence and the unlawful search is “attenuated [so] as to dissipate the taint.” Id.(quoting Murray, 487 U.S. at 537) (noting that the derivative evidence principle is the foundation
of the fruit-of-the-poisonous tree doctrine). The question underpinning this analysis “is whether
the challenged evidence was” obtained “‘by exploitation of [the initial] illegality or instead by
means sufficiently distinguishable to be purged of the primary taint.’” Segura v. United States,
468 U.S. 796, 804-05 (1984) (alteration in original) (quoting Wong Sun v. United States, 371
U.S. 471, 488 (1963)). “The independent source doctrine works to put the Commonwealth in the
same position it would have been in if there was no police error or misconduct.” Carlson v.
Commonwealth, 69 Va. App. 749, 760 (2019).
Here, the medical records were obtained through the second search warrant based on an
independent source—the results of Jones’s blood analysis. That analysis was not conducted
because of any exploitation of an initial illegality. Jones does not dispute that Sergeant Banks
provided sufficient facts in the second affidavit to support a finding of probable cause based on
the results of the blood analysis. The execution of the second warrant left the Commonwealth in
the same position that “it would have been” in if Sergeant Banks had not initially submitted a
deficient warrant. See id. The initial unlawful request for access to the medical records did not
contribute to Banks obtaining them later through the second independent search warrant.
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For these reasons, the medical records, obtained legally through the second warrant, were
not derivative evidence subject to the exclusionary rule. As a result, the trial court did not err by
denying the second motion to suppress and allowing the medical records into evidence.
III. Sufficiency of the Evidence
Jones challenges proof that she drove under the influence of narcotics and that her actions
rose to the level of criminal negligence.
In reviewing the sufficiency of the evidence to support a conviction, this Court will
affirm the decision unless the trial court was plainly wrong or the conviction lacked evidence to
support it. See Commonwealth v. Garrick, 303 Va. 176, 182 (2024); Hogle v. Commonwealth,
75 Va. App. 743, 752-53 (2022). “If there is evidentiary support for the conviction, ‘the reviewing
court is not permitted to substitute its own judgment, even if its opinion might differ from the
conclusions reached by the finder of fact at the trial.’” Hogle, 75 Va. App. at 753 (quoting Chavez
v. Commonwealth, 69 Va. App. 149, 161 (2018)). When conducting this review, the “appellate
court does not ‘ask itself whether it believes that the evidence at the trial established guilt beyond a
reasonable doubt.’” Barney, 302 Va. at 97 (quoting Williams v. Commonwealth, 278 Va. 190, 193
(2009)). In the end, “[t]he only ‘relevant question is . . . whether any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.’” Garrick, 303 Va. at
182 (alterations in original) (quoting Barney, 302 Va. at 97).
Some other fundamental principles apply in a sufficiency review. It is the function of the
trier of fact to determine the credibility of witnesses and the weight afforded the testimony of
those witnesses. See Henderson v. Commonwealth, 77 Va. App. 250, 270 (2023), aff’d, 303 Va.
212 (2024). Further, we “do[] not distinguish between direct and circumstantial evidence, as the
fact finder . . . ‘is entitled to consider all of the evidence, without distinction, in reaching its
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determination.’” Commonwealth v. Moseley, 293 Va. 455, 463 (2017) (quoting Commonwealth v.
Hudson, 265 Va. 505, 513 (2003)).
Jones appeals her convictions for driving under the influence, aggravated manslaughter, and
maiming of another as a result of driving while intoxicated. See Code §§ 18.2-36.1(B), -51.4, -266.
In Jones’s case these offenses required proof that the accident occurred while Jones was under the
influence of narcotics. In addition, the convictions for aggravated manslaughter and maiming as a
result of driving while intoxicated required proof that her conduct was “so gross, wanton, and
culpable as to show a reckless disregard for human life.” See Code §§ 18.2-36.1(B), -51.4(A)-(B).
This level of conduct constitutes criminal negligence. See Wyatt v. Commonwealth, 47 Va. App.
411, 416 (2006). Jones argues that the evidence did not prove she drove under the influence of
narcotics nor that she acted with criminal negligence. We address these evidentiary challenges in
turn.
A. Under the Influence
Jones suggests the Commonwealth did not exclude the reasonable hypothesis of
innocence that she was not under the influence of narcotics since there was no direct evidence
that she was substantially impaired at the time of the crash.
“The only requirement” in a circumstantial case is that the Commonwealth “put on
enough circumstantial evidence such that a reasonable [fact finder] could have rejected [the]
defendant’s [hypothesis] of innocence.” Davis v. Commonwealth, 65 Va. App. 485, 502 (2015).
The reasonable-hypothesis principle “is ‘simply another way of stating that the Commonwealth
has the burden of proof beyond a reasonable doubt.’” Moseley, 293 Va. at 464 (quoting Hudson,
265 Va. at 513). “[M]erely because [a] defendant’s theory of the case differs from that taken by
the Commonwealth does not mean that every reasonable hypothesis consistent with [her]
innocence has not been excluded.” Edwards v. Commonwealth, 68 Va. App. 284, 301 (2017)
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(second alteration in original) (quoting Haskins v. Commonwealth, 44 Va. App. 1, 9 (2004)).
And “[w]hether an alternate hypothesis of innocence is reasonable is a question of fact,” which
“is binding on [the appellate court] unless plainly wrong.” Maust v. Commonwealth, 77
Va. App. 687, 700 (2023) (en banc) (first alteration in original) (quoting Wood v.
Commonwealth, 57 Va. App. 286, 306 (2010)).
Simply stated, the fact finder “determines which reasonable inferences should be drawn
from the evidence[] and whether to reject as unreasonable the hypotheses of innocence advanced
by a defendant.” Moseley, 293 Va. at 464. “[T]he question,” therefore, “is not whether ‘some
evidence’ support[ed] the hypothesis, but whether a rational factfinder could have found the
incriminating evidence render[ed] the hypothesis of innocence unreasonable.” James v.
Commonwealth, 53 Va. App. 671, 682 (2009) (quoting Emerson v. Commonwealth, 43 Va. App.
263, 277 (2004)).
Turning to the element of whether a driver was under the influence in violation of Code
§ 18.2-266, “[t]he thrust of the statutory scheme is to prohibit . . . driving where the driver’s
ability” to safely operate a vehicle is “impaired” due to consumption of alcohol, narcotics, or
other intoxicants. See Hogle, 75 Va. App. at 753 (quoting Thurston v. City of Lynchburg, 15
Va. App. 475, 483 (1992)). One method by which the Commonwealth can prove this element is
by establishing that the person’s ingestion of narcotics was “enough . . . to ‘so affect [her]
manner, disposition, speech, muscular movement, general appearance or behavior, as to be
apparent to observation.’” See id. at 753-54 (quoting Thurston, 15 Va. App. at 483). “In
determining whether a defendant was under the influence, a factfinder considers ‘all of the
evidence of [her] condition at the time of the alleged offense.’” Id. at 754 (quoting Leake v.
Commonwealth, 27 Va. App. 101, 109 (1998)).
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The blood analysis revealed that Jones had ingested buprenorphine, fentanyl, and
morphine. Dr. Wright testified that the three substances taken together would have a cumulative
depressant effect on a person’s central nervous system. She also explained that typically
someone who had taken morphine or fentanyl would exhibit “dizziness, drowsiness, slurred
speech, poor coordination, slowed reaction times, [and] difficulty performing divided attention
tasks,” including driving. Dr. Wright stated that the level of fentanyl found in Jones’s blood
could even be lethal. She opined that how the substances affect a person depends on the
individual. Notably, Dr. Wright explained that a “tolerant user[]” may not exhibit as many
observable effects but still would have a slowed reaction time. When Sergeant Banks spoke with
Jones at the hospital, he noted “[s]he appeared drowsy with droopy eyelids” and had constricted
pupils. Banks described Jones’s demeanor as “depressed,” “mellow,” and “not very awake.”
The jury was able to hear the tone of Jones’s voice in the audio recording of their conversation.
It was entitled to conclude from all the evidence that the narcotics impaired Jones’s ability to
safely operate a vehicle and therefore that she was under the influence of narcotics at the time of
the crash.
Jones points to evidence to the contrary. Witnesses at the scene of the accident did not
notice that Jones had any balance, coordination, or speech issues right after the accident. When
Sergeant Banks encountered Jones at the hospital, she performed adequately on the field sobriety
tests. Nevertheless, the jury considered this testimony along with the other evidence and
concluded that her driving ability was impaired when the collision occurred. Evidence in the
record supported this finding. See Garrick, 303 Va. at 187 (“The appellate standard of review
precludes an appellate court from drawing inferences that were rejected by the factfinder . . . .”).
On this record, the evidence was sufficient to support the jury’s finding that Jones was
driving under the influence when she crashed her vehicle into Broughman’s.
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B. Criminal Negligence
Jones also contends that the Commonwealth did not establish that she was criminally
negligent because the evidence did not prove that she was substantially impaired.
To establish the offenses of aggravated manslaughter and maiming as a result of driving
while intoxicated, the Commonwealth was required to demonstrate criminal negligence by proving
that Jones’s conduct was “so gross, wanton, and culpable as to show a reckless disregard for human
life.” See Code §§ 18.2-36.1(B), -51.4(A)-(B). “[W]hether a defendant’s conduct is criminally
negligent is usually a question for the trier of fact, unless reasonable minds could not differ.”
Coomer v. Commonwealth, 67 Va. App. 537, 546 (2017) (quoting Carosi v. Commonwealth, 280
Va. 545, 556 (2010)).
The criminal negligence element requires proof of “a causal connection between the
driver’s” ingestion of drugs and the accident. See Wyatt, 47 Va. App. at 417 (considering the
element in the context of Code § 18.2-36.1(B)). “The mere happening of an accident, coupled
with evidence that the offender had been drinking” or ingesting narcotics “and that the accident
was [her] fault, does not prove criminal negligence as a matter of law.” See id. at 418; see also
Zirkle v. Commonwealth, 189 Va. 862, 868 (1949) (“[T]he negligence required to be proven in a
criminal proceeding must be more than the lack of ordinary care and caution.”); Coomer, 67
Va. App. at 547, 551 (rejecting “the proposition that voluntary intoxication standing alone is
sufficient to constitute criminal negligence for the purpose of felony child neglect”). Even so,
evidence of impairment is “relevant to a determination of the degree of the defendant’s
negligence.” See Wyatt, 47 Va. App. at 418 (quoting Essex v. Commonwealth, 228 Va. 273, 283
(1984)).
When a driver is impaired from alcohol or drugs, “dangerous conduct” “tends” to be
“more dangerous.” See id. (quoting Essex, 228 Va. at 283). This is so because a driver who is
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intoxicated or under the influence “has dulled [her] perceptions, blunted [her] skill, and slowed
[her] reflexes in advance.” Id. (quoting Essex, 228 Va. at 283). “The same reckless driving is
more dangerous . . . than it would be if [she] were sober, and [her] conduct is therefore more
culpable.” Id. (quoting Essex, 228 Va. at 283).
Jones decided to drive despite having ingested three substances that, combined, had a
cumulative depressant effect on her central nervous system. Both morphine and fentanyl slow
reaction times and impair a person’s driving ability. The level of fentanyl found in Jones’s blood
was even potentially lethal. Later, when Sergeant Banks spoke with Jones at the hospital, she
appeared “drowsy with droopy eyelids,” and her pupils were constricted. Dr. Wright testified
that tolerant users may not exhibit observable effects but still would have slow reaction times.
In conducting our analysis on appeal, “[t]he only ‘relevant question’” for the Court to
consider “‘is . . . whether any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.’” Garrick, 303 Va. at 182 (alterations in original) (quoting
Barney, 302 Va. at 97). As an “appellate court,” we “may neither find facts nor draw inferences
that favor the losing party that the factfinder did not.” See id. The evidence here supports a
finding of a causal connection between Jones’s impairment from her drug use and driving her car
into oncoming traffic so as to prove criminal negligence. Cf. Coomer, 67 Va. App. at 550(reversing conviction where “nothing . . . other than the consumption of alcohol . . . suggest[ed] any
negligence on [the defendant’s] part”). The testimony established that the drugs in her system
slowed her reaction time and made driving more difficult. Jones chose to drive despite her
impairment and then failed to maintain control of her vehicle. On a wet road and around a curve,
she was driving 51 mph, above the suggested posted speed of 40 mph. Jones veered her car
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almost entirely into the lane of oncoming traffic, causing the impact.11 “This evidence supports a
finding that, at the very least,” Jones “should have known [her] behavior was reasonably calculated
to produce injury.” See Wyatt, 47 Va. App. at 421.
This record, viewed in the light most favorable to the Commonwealth, supports the jury’s
finding that Jones acted with gross, wanton, and culpable conduct demonstrating a reckless
disregard for human life.
CONCLUSION
The trial court acted within its discretion by allowing the testimony of Dr. Wright about
the generic effects of buprenorphine, morphine, and fentanyl. The court did not err in admitting
the blood draw results. In addition, the trial court acted appropriately in admitting the medical
records into evidence. Finally, the evidence was sufficient to prove that Jones was driving under
the influence and acted with criminal negligence. For these reasons, we affirm the convictions.
Affirmed.
11
Most of the front of Jones’s vehicle was crushed, supporting the inference that the
impact was almost entirely head on.
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