City of Wichita v. Rice, 71245

• Decision Date: 13 January 1995
• Docket Number: No. 71245,71245
• Citation: 889 P.2d 789,20 Kan.App.2d 370
• Court: Kansas Court of Appeals
• Parties: CITY OF WICHITA, Kansas, Appellee, v. Michael D. RICE, Appellant.

Page 789

889 P.2d 789

20 Kan.App.2d 370

CITY OF WICHITA, Kansas, Appellee, v. Michael D. RICE, Appellant.

No. 71245.

Court of Appeals of Kansas.

Jan. 13, 1995.

Syllabus by the Court

1. When a defendant challenges the sufficiency of the evidence, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. The appellate court cannot pass on the credibility of witnesses or weigh conflicting evidence.

2. K.S.A.1993 Supp. 22-3609(4), which provides generally that the hearing on an appeal to a district court from a municipal court conviction "shall be to the court unless a jury trial is requested," does not require that the hearing on an appeal from a municipal court traffic infraction conviction be before a jury. K.S.A.1993 Supp. 22-3404(5), a more specific statute than K.S.A.1993 Supp. 22-3609(4), requires trials to the court in traffic infraction cases, including appeals of municipal court traffic infraction convictions.

3. Ordinarily, under the law of the case doctrine, once an issue is decided by the court, it should not be relitigated or reconsidered unless it is clearly erroneous or would cause manifest injustice. However, a court retains the inherent power to review its own proceedings to correct errors or prevent injustices until a final judgment is entered. The court retains that power even when the same issue is presented to a different judge of the same court in the same case.

4. Under the facts of this case, although the trial court should have taken judicial notice of the city ordinances and the provisions of the Manual on Uniform Traffic Control Devices incorporated in them under K.S.A. 60-409, the error was harmless because defendant was permitted to present evidence on the ordinances and the manual.

Thomas W. Young and Stephen M. Kerwick of Foulston & Siefkin, Wichita, for appellant.

Sharon L. Dickgrafe, Asst. City Atty., Gary E. Rebenstorf, City Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Before GREEN, P.J., and BRAZIL, J., and JAMES J. SMITH, District Judge, assigned.

OPINION

JAMES J. SMITH, District Judge, Assigned:

This misdemeanor criminal action arises from a traffic citation charging defendant, Michael Rice, with running a stop sign. Defendant appeals the trial court's ruling denying his motion for judgment of acquittal, the trial court's refusal to grant him a jury trial, and the trial court's refusal to take judicial notice of a municipal ordinance. We affirm.

While driving north on Faulkner Street in Wichita, defendant failed to stop at an intersection marked by a stop sign and collided with a vehicle passing through the intersection on Franklin Street. Defendant conceded that he did not stop but contended he could not stop before entering the intersection because foliage blocked his view of the sign until he was too close to the intersection to stop.

Defendant was tried and convicted in municipal court of running a stop sign. He appealed to the trial court and requested a jury trial. After the case was placed on the jury trial court docket, the City moved for its removal from the docket, arguing that defendant was not entitled to a jury trial on a traffic offense. The court denied the motion, but the City renewed the motion on the day of trial some months after the original decision when the case was assigned to a different judge. This time, the trial judge granted the City's motion, and defendant's appeal of his municipal court conviction was tried to the court.

There was conflicting evidence on whether the sign was visible to northbound drivers. The driver of one of the other cars involved in the accident was familiar with the area and she returned to the intersection before a city work crew trimmed the foliage around the sign. She testified that although the sign was partially covered by foliage, it was "very visible." She estimated that the top third of the sign was obscured by foliage, but that the red was visible behind the leaves. The bottom two-thirds of the sign, including the word "stop," however, was not blocked.

The police officer who investigated the accident testified that the sign was 15 feet south of the intersection and was visible from 40 feet away, a total of 55 feet from the intersection. She testified that from further back, trees partially blocked the sign from the view of northbound drivers. She testified that the streets were wet and defendant told her he was going 25 miles per hour.

Defendant presented evidence that foliage obscured the sign from the view of northbound drivers. The resident living in the fourth house south of the intersection on the west side of the street testified that foliage blocked the view of the sign from the south and that she had observed many northbound cars go through the intersection without stopping. She had advised the City of the problem not long before the accident, and the morning after the accident a work crew trimmed the foliage. From her side of the street, 200 feet from the intersection, she could only see the white rim at the bottom of the sign and a small amount of the red. She had not, however, driven through the intersection around the time of the accident. Consequently, she could not say how much of the sign was obscured from the view of drivers.

Defendant testified that the sign was completely obscured until he was 40 to 45 feet from it. An engineer called as an expert by defendant testified that it would have taken 66 feet to stop after seeing the sign at 25 miles per hour and 88 feet at 30 miles per hour. Defendant argued that he could not be convicted of running a stop sign that could not be seen until it was too late to stop before the intersection. The trial court found the sign was not obscured from view and found defendant guilty.

Defendant first contends there was insufficient evidence to sustain his conviction. He argues that under the Code of the City of Wichita, a driver cannot be convicted of running a stop sign that is obscured from view until it is too late to stop before an intersection and that uncontroverted evidence established the sign was not visible from far enough away to permit him to stop before the intersection.

Section 11.20.020 of the Code of the City of Wichita provides that "all traffic control signs, signals and devices shall conform to the 'Manual on Uniform Traffic Control Devices,' " and that devices conforming to the manual "shall be official traffic-control devices." The manual provides that an effective traffic control device should command attention, give adequate time for proper response, be kept in proper position, and be clean and legible. The manual also provides that care should be taken that weeds, trees, and shrubbery do not obscure the face of the sign. Section 11.20.030 of the City Code provides that no provisions of the traffic control ordinance "for which official traffic-control devices are required shall be enforced against an alleged violator if at the time and place of the alleged violation an official device is not in proper position and sufficiently legible to be seen by an ordinarily observant person."

Defendant's argument might have merit if the evidence that the sign was not visible from far enough away to permit northbound drivers to stop was in fact uncontroverted. However, the testimony of the driver of the car struck by defendant conflicts with defendant's evidence. The other driver had an opportunity to see the sign before the foliage around the sign was trimmed. She testified that although the sign was partially covered by foliage, it was "very visible from the south." She estimated that the top third of the sign was obscured by foliage, but stated that the red was visible behind the leaves and the bottom two-thirds of the sign was not blocked.

When a defendant challenges the sufficiency of the evidence, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Timley, 255 Kan. 286, 307-08, 875 P.2d 242 (1994). The court cannot pass on the credibility of witnesses or weigh conflicting evidence. State v. Van Winkle, 254 Kan. 214, 225, 864 P.2d 729 (1993), cert. denied --- U.S. ----, 114 S.Ct. 2168, 128 L.Ed.2d 890 (1994). Although the other driver was not a disinterested witness and although her testimony was controverted by other witnesses, it was sufficient to support the conviction.

Defendant next contends he was entitled to a jury trial under K.S.A.1993 Supp. 22-3609(4), which provides that the hearing on an appeal to the district court from a municipal court conviction "shall be to the court unless a jury trial is requested." The City argues defendant was not entitled to a jury trial because K.S.A.1993 Supp. 22-3404(5) provides that the trial of "traffic infraction cases shall be to the court."

Whether the enactment of K.S.A.1993 Supp. 22-3404(5) eliminated jury trials in appeals of municipal ordinance traffic infractions is an issue of first impression. In the one case citing the statute, State v. Chapman, 15 Kan.App.2d 643, 814 P.2d 449 (1991), we held only that it did not apply retroactively to an infraction charged before the statute took effect. The issue is one of statutory...