State v. Patton

• Decision Date: 11 September 2020
• Docket Number: No. 120,434,120,434
• Parties: STATE of Kansas, Appellee, v. Dwayne Lynn PATTON, Appellant.
• Court: Kansas Court of Appeals

475 P.3d 14

STATE of Kansas, Appellee,

v.Dwayne Lynn PATTON, Appellant.

No. 120,434

Court of Appeals of Kansas.

Opinion filed September 11, 2020

Shannon S. Crane, of Hutchinson, for appellant.

Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.

Before Warner, P.J., Standridge and Gardner, JJ.

Standridge, J.:

Following a jury trial, Dwayne Lynn Patton was convicted of one count of felony driving under the influence (DUI). At sentencing, the district court found this was Patton's fourth or subsequent DUI conviction and sentenced him to 12 months in jail. Patton appeals, arguing that the prosecutor committed prosecutorial error by misstating the evidence presented at trial in closing arguments and that the district court erred in using two of his prior out-of-state DUI convictions to enhance his sentence in this case. Because the prosecutor did not commit reversible error and because the district court properly included Patton's prior out-of-state DUI convictions in enhancing his sentence, we affirm the jury's verdict and Patton's sentence.

FACTS

At about 9:30 a.m. on January 1, 2016, Master Trooper Steven Morris pulled Patton over for driving 81 miles per hour in a 70 mile-per-hour zone. After initiating contact with Patton, Morris suspected that Patton had been drinking alcohol. Specifically, Morris smelled alcohol coming from Patton's vehicle and observed that Patton's eyes were bloodshot and glazed over. And Patton told Morris that he had been drinking the night before. As a result, Morris initiated a DUI investigation and conducted three standard field sobriety tests: the horizontal gaze nystagmus test

, the walk-and-turn test, and the one-leg stand test. Before performing the walk-and-turn test, Patton informed Morris that he recently had broken his right foot but that he should be able to perform the test. Nevertheless, Patton failed the tests, and Morris asked him to submit to a preliminary breath test. Patton refused to do so. Morris then arrested Patton and transported him to the Reno County Jail. At the jail, Morris provided Patton with a copy of the implied consent advisory and read it aloud to him. Morris asked Patton to submit to a breathalyzer, and he refused.

On November 22, 2016, the State charged Patton with one count of felony DUI (a fourth or subsequent offense) pursuant to K.S.A. 2015 Supp. 8-1567(a)(3), one count of driving with a suspended license, and one count of speeding. The case proceeded to a jury trial on September 11, 2018. Just before its case-in-chief, the State dismissed the driving while suspended and speeding charges and proceeded only with the DUI charge.

At trial, the State called Master Trooper Morris as its lone witness. Through Morris, the State introduced evidence to support its theory that Patton had been driving under the influence of alcohol to a degree that rendered him incapable of safely driving a vehicle. Specifically, Morris testified that he noticed Patton initially pulled over too close to the fog line such that Morris had to ask Patton to pull over further off the shoulder, Morris smelled alcohol coming from Patton's vehicle, Morris observed that Patton's eyes were bloodshot and glazed over, and Patton told Morris that he had been drinking the night before. Morris only testified about conducting two of the standard field sobriety tests on Patton: the walk-and-turn test and the one-leg stand test. Morris said that while Patton advised he recently had broken his right foot, Morris noticed Patton did not have any issues walking outside of his vehicle, Patton did not limp or use his car to steady himself, and Patton expressly said he was able to complete the tests.

Morris testified that of the eight impairment clues he looks for during the walk-and-turn test, he observed five: Patton started the test before he was instructed to do so, he stopped during the test, he stepped off of the line, he raised his arms to maintain his balance, and he took the wrong number of steps. Morris stated that when two or more clues are present during the walk-and-turn test, there is a likelihood that the subject's blood alcohol content (BAC) is above 0.08. Morris then testified that of the four impairment clues he looks for during the one-leg stand test, he observed three: Patton hopped around, he kept putting his foot down, and he raised his arms to maintain his balance. Again, Morris noted that when two or more clues are present during the one-leg stand test, there is a likelihood that the subject's BAC is above 0.08. Morris also said that he stopped the one-leg stand test because he worried that Patton might hop out into traffic. Morris testified that he could smell alcohol coming from Patton's person while he transported Patton to the Reno County Jail. Morris told the jury that Patton refused to submit to a breathalyzer when they arrived at the jail. Based on his observations, Morris testified that he believed Patton was under the influence of alcohol to a degree that he could not safely operate his vehicle.

On cross-examination, Morris admitted that he only planned on ticketing Patton for speeding because Patton did not exhibit any other unsafe driving signs such as swerving, crossing the lines, or making improper turns. He also said that he could not smell alcohol on Patton when Patton was outside of his vehicle and that other things like allergies can cause bloodshot and watery eyes. When asked by defense counsel, Morris agreed that standard field sobriety test indicators only establish a likelihood—not a certainty—that an individual's BAC is over 0.08.

After the State rested its case-in-chief, Patton moved for dismissal, arguing that the State failed to meet its burden. The district court noted that the State's case was "certainly a weak" one, but it found that the trooper's testimony established a prima facie case sufficient to reach the jury. Patton presented no additional evidence.

During closing arguments, the prosecutor said:

"On New Year's Day, 2016, the defendant had been drinking alcohol. He had been drinking enough alcohol that he smelled like alcohol. He had consumed so much that he could not stand on one foot. He could not even listen and follow instructions and walk in a straight line. He was under the influence to the point that he parked right by the fog line on the road so that the trooper would have to stand in the road in order to talk to him during the traffic stop."

The prosecutor also argued:

"An element of driving under the influence is not that the defendant was actually driving erratically. The standardized field sobriety tests showed that the defendant was under the influence. He lacked coordination, motor skills, and the ability to listen and follow simple instruction. The [S]tate asks that you find the defendant guilty of driving under the influence."

Patton's attorney did not object at any point during the prosecutor's closing remarks. Instead, Patton's attorney focused on discrediting the State's case during her closing arguments—specifically pointing out how there was no indication Patton was driving unsafely other than his speeding, how he could not complete the field sobriety tests because his injured foot affected his balance, and how the other indicators of intoxication in this case could have been caused by other factors. After the State's rebuttal, the case was submitted to the jury, and the jury later returned a guilty verdict.

A presentence investigation (PSI) report was filed on October 24, 2018. Patton's criminal history worksheet showed seven prior DUI convictions: an April 1987 Kansas conviction, two June 2001 Kansas convictions, a January 2003 Kansas conviction, a January 2003 Oklahoma conviction, a January 2007 Missouri conviction, and an August 2010 Kansas conviction.

Patton's sentencing hearing took place on October 26, 2018. The district court first addressed Patton's posttrial motion for judgment of acquittal. It denied the motion, noting that while it was "a close case," the State presented sufficient evidence to support the guilty verdict. The State then recommended a 12-month jail sentence as this was Patton's fourth or subsequent DUI conviction. Patton's attorney did not object to this characterization. The district court sentenced Patton to 12 months in county jail and ordered him to pay the statutory fine of $2,500 plus any costs of the action.

ANALYSIS

Prosecutorial error

Patton claims the prosecutor erred by twice misstating the evidence presented at trial in her closing arguments. We use a two-step process to analyze claims of prosecutorial error. To determine whether error has occurred, we first must decide whether "the act complained of falls outside the wide latitude afforded to prosecutors to conduct the State's case in a way that does not offend the defendant's constitutional right to a fair trial." State v. Chandler , 307 Kan. 657, Syl. ¶ 6, 414 P.3d 713 (2018). If error is found, we then must determine whether the error prejudiced the defendant's due process rights to a fair trial. 307 Kan. 657, Syl. ¶ 6, 414 P.3d 713. In evaluating this potential prejudice, we use the traditional harmlessness inquiry in Chapman v. California , 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). State v. Sherman , 305 Kan. 88, 109, 378 P.3d 1060 (2016). Under this inquiry, prosecutorial error is harmless "if the State can demonstrate ‘beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e. , where there is no reasonable possibility that the error contributed to the verdict.’ " 305 Kan. at 109, 378 P.3d 1060 (quoting State v. Ward , 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 [2011] ).

In his brief, Patton argues that the prosecutor committed reversible error twice in her closing argument by misstating the evidence presented at trial. The State maintains no error occurred in the first...