State v. Hazlett

• Decision Date: 26 September 2014
• Docket Number: 109,999.
• Citation: 334 P.3d 910 (Table)
• Parties: STATE of Kansas, Appellant, v. Kevin James HAZLETT, Appellee.
• Court: Kansas Court of Appeals

334 P.3d 910 (Table)

STATE of Kansas, Appellant

v.Kevin James HAZLETT, Appellee.

109,999.

Court of Appeals of Kansas.

Sept. 26, 2014.

Tony A. Potter, county attorney, and Derek Schmidt, attorney general, for appellant.

Patrick H. Dunn, of Kansas Appellate Defender Office, for appellee.

Before SCHROEDER, P.J., McANANY, J., and LARSON, S.J.

MEMORANDUM OPINION

PER CURIAM.

This is an appeal by the State of Kansas pursuant to K.S.A. 22–3602(b) from the district court's dismissal of two reckless aggravated battery charges against Kevin James Hazlett.

The court below held the State failed to show probable cause that Hazlett drove his vehicle recklessly when causing a left of center line head-on collision that seriously injured Adrianna Nickelson and Steven Nickelson.

We hold that under all the facts and circumstances and for the reasons hereinafter stated, the district court erred in dismissing the two counts of aggravated battery to which Hazlett had previously been bound over to face after a preliminary examination.

Factual and Procedural Background

The testimony in the preliminary hearing indicated that as evening approached on May 14, 2012, Hazlett was driving a pickup west from Hill City in Graham County, Kansas, on U.S. 24, a two-lane highway.

Jerry Isakson was driving about 100 yards behind Hazlett. Isakson would later tell Highway Patrol Trooper Phil Henrickson that Hazlett “was in and out of his lane of traffic, left of center, back and forth.”

Approaching Hazlett's vehicle driving at approximately 60 mph in the eastbound lane of Highway 24 was a pickup being driven by 14–year–old Adrianna who was accompanied by her father, Steven. Adrianna did not have a driver's license or a learner's permit.

Adrianna stated that she noticed Hazlett's pickup approaching in the westbound lane. She reported “[t]he closer we got to each other I saw the pickup move over into my lane. By the time it was getting closer I gripped the steering wheel tight.”

Steven told Adrianna to go into the westbound lane. He could see Hazlett “had his head looking down.” Steven then saw Hazlett's “head pop up,” and Hazlett tried to swerve back into the westbound lane.

Hazlett did not make it, colliding head on with Adrianna and Steven in the eastbound lane, slightly over center. The evidence conflicted on whether Adrianna had swerved back into the eastbound lane or whether she never fully left it. The pickups were nearly destroyed.

All three occupants were flown to hospitals. Adrianna and Steven suffered multiple broken bones

and could not remember the impact. The investigation uncovered no evidence Hazlett was under the influence of alcohol or drugs.

When Trooper Henrickson and other officers examined Hazlett's pickup, Hazlett's cell phone “was going off.” The officers located it on the driver's side floorboard of the pickup, near the gas pedal. It was a “slider type phone with the key pad on it,” the key pad was slid open and the phone was turned on.

The cell phone was searched pursuant to a warrant and it showed the last text message sent or received by Hazlett was “before the vehicle left Hill City.” Trooper Henrickson testified one could use a cell phone in a number of ways—for example, to access a menu, view text messages, or view past calls. Trooper Henrickson identified as a cause of the collision that Hazlett “may have been using a cell phone at the time of the wreck.”

The State charged Hazlett with two counts of aggravated battery, a severity level 5 person felony in violation of K.S.A. 21–5413(b)(2)(A), one count of reckless driving, an unclassified misdemeanor in violation of K.S.A. 8–1566, and one count of driving left of center, a traffic infraction in violation of K.S.A. 8–1514(a).

The Honorable Jessie A. Thompson, Graham County magistrate judge, conducted the preliminary hearing. After receiving the evidence summarized above, the magistrate judge found there was probable cause to believe that felonies had been committed and Hazlett was the person who committed the felonies and bound Hazlett over on both reckless aggravated battery charges.

Hazlett subsequently moved to dismiss both felony charges, arguing this “was a traffic accident,” that “[m]ere inattentive driving is not sufficient,” and “there was no evidence whatsoever that [his] cell phone was in use.”

The district court reviewed a transcript of the preliminary hearing, solicited briefs from the parties, and framed the issue as “whether the evidence presented at the preliminary hearing was sufficient to establish reckless conduct.” The district court's written decision analyzed many of the cases cited by the parties and made specific factual conclusions and held:

“The testimony at the preliminary hearing was that defendant was moving in and out of his lane of traffic, left of center, back and forth prior to the collision and the point of impact was just a little over the center line. The testimony was also that defendant's head was down just prior to the impact and that his open phone was found on the floorboard. There is, however, no evidence that defendant was speeding, no evidence that he was impaired in any way, no evidence that his head was down for an extended period of time, and no evidence that he was doing anything with the phone at any time between leaving Hill City and the collision. The evidence was that the last text message was prior to defendant leaving Hill City. Although he was moving left of center and back to his own lane between Hill City and the collision there were no text messages either sent or received during that time. There is no evidence that defendant was consciously disregarding a substantial and unjustifiable risk nor was there evidence that defendant disregarding that risk was a gross deviation from the reasonable standard of care. Even though the Court is required to view facts in [a] light most favorable to the State, and even though the State is not required to prove recklessness at the preliminary hearing, the State must present some evidence of recklessness. The State has failed to meet its burden.”

The district court dismissed the two reckless aggravated battery charges. The State dismissed the other two charges and filed a timely K.S.A. 22–3602(b) appeal to our court.

Analysis of Appellate Issues

Was there sufficient evidence presented to the district court at the preliminary hearing to allow the case to proceed to trial?

The State contends that driving an automobile on a Kansas highway in the wrong lane numerous times while not looking at the road is reckless behavior when there are no circumstances to justify such action.

Hazlett argues that the district court correctly concluded after analyzing the facts that briefly moving out of one's lane of traffic, by itself, cannot under Kansas law constitute recklessness.

Standards of review

The standards of review in appeals such as the one before us was recently set forth in State v. Washington, 293 Kan. 732, 733–34, 268 P.3d 475 (2012), in the following manner:

“Under K.S.A. 22–2902(3), the magistrate at a preliminary hearing examines the evidence to determine (1) whether a crime has been committed and (2) whether there is probable cause to believe that the accused committed the crime. State v. Valladarez, 288 Kan. 671, 677, 206 P.3d 879 (2009). The evidence need not prove guilt beyond a reasonable doubt, only probable cause. State v. Sherry, 233 Kan. 920, 935, 667 P.2d 367 (1983). ‘Probable cause at a preliminary examination signifies evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused's guilt.’ State v. Berg, 270 Kan. 237, 238, 13 P.3d 914 (2000) (citing State v. Puckett, 240 Kan. 393, Syl. ¶ 1, 729 P.2d 458 [1986] ). In determining if this standard is satisfied, the judge at a preliminary hearing must draw inferences favorable to the prosecution from the evidence presented and should not be concerned with sufficiency of the evidence to support a conviction. State v.. Bockert, 257 Kan. 488, 492, 893 P.2d 832 (1995) ; Sherry, 233 Kan. at 935. Even where the evidence is weak, the defendant should be bound over for trial if the evidence tends to disclose that the offense charged was committed and that the defendant committed it. Berg, 270 Kan. at 238.”

Additionally, Justice Luckert in Washington noted that “[t]he sufficiency of a preliminary examination may be challenged only by a motion to dismiss filed in the district court. ‘Failure to challenge in this manner amounts to waiver.’ State v. Butler, 257 Kan. 1043, 1059–60, 897 P.2d 1007 (1995).” Washington, 293 Kan. at 734. And “[o]n appeal from that ruling, an appellate court reviews the district court's probable cause finding at a preliminary hearing de novo. See State v. Fredrick, 292 Kan. 169, 171, 251 P.3d 48 (2011).” Washington, 293 Kan. at 734. Thus, we do not consider any of the factual findings the district court made.

An attempt was made in State v. Harris, 266 Kan. 610, 614, 975 P.2d 227 (1999), to change the standard of review to that applicable to negative findings or to require appellate courts to view the evidence in the light most favorable to the party prevailing below. Our Supreme Court refused to adopt either argument and continued the standard stated in State v. Phelps, 266 Kan. 185, 193, 967 P.2d 304 (1998), which was quoted in Harris in the following manner:

“ ‘ “The function of a judge or magistrate at a preliminary hearing is not to determine the wisdom of the prosecuting attorney's decision to file and pursue charges against the defendant. Nor is it the function of the judge to conclude that there should be no prosecution because the possibility of a conviction may be remote or virtually nonexistent. [Citation omitted.] The sole question before the judge or magistrate at the conclusion of a preliminary hearing is the same question an appellate court is faced with upon de novo review: whether the evidence is sufficient to cause a person of ordinary prudence and

...