State v. Stevens

• Decision Date: 28 July 2006
• Docket Number: No. 94,187.,94,187.
• Citation: 138 P.3d 1262
• Parties: STATE of Kansas, Appellee, v. Ray STEVENS, Appellant.
• Court: Kansas Court of Appeals

138 P.3d 1262

STATE of Kansas, Appellee, v. Ray STEVENS, Appellant.

No. 94,187.

Court of Appeals of Kansas.

July 28, 2006.

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Heather Cessna, of Kansas Appellate Defender Office, for appellant.

Razmi M. Tahirkheli, assistant county attorney, John Gutierrez, county attorney, and Phill Kline, attorney general, for appellee.

Before PIERRON, P.J., GREEN and JOHNSON, JJ.

GREEN, J.

Ray Stevens appeals his conviction of driving or attempting to drive under the influence of alcohol in violation of K.S.A.2005 Supp. 8-1567(a)(3). Stevens raises seven issues on appeal: (1) that the trial court erred in not granting his motion for a new trial; (2) that the trial court erred in allowing breath test results into evidence without granting him a continuance; (3) that there was insufficient evidence to prove that he committed the crime in Crawford County; (4) that the trial court erred in failing to require the State to elect either operating or attempting to operate under the influence of alcohol as its theory of prosecution, and he was denied his right to a unanimous jury verdict; (5) that the trial court erred in allowing Stevens' statements to be admitted into evidence; (6) that there was cumulative error; and (7) that the trial court erred in assessing the reimbursement of attorney fees. We affirm in part, reverse in part, and remand with directions.

Stevens' conviction in this case stemmed from events that occurred on the afternoon of April 18, 2004. Officer Dave Justice, who was on patrol duty in Pittsburg, Kansas, was called to a residence at 118 West Madison concerning a criminal trespass complaint. Within minutes of receiving the dispatch, Justice arrived at the residence and saw a Jeep parked in the street. Two people were in the front seat. Justice saw Stevens get out of the driver's side of the Jeep, stumble, and walk unsteadily towards the residence.

Justice yelled to Stevens several times, but Stevens did not respond. Stevens continued towards the residence and knocked on the door. Justice then walked behind Stevens and yelled to him. Stevens turned around and walked towards Justice. Justice asked Stevens to move closer to the street to speak with him. Justice told Stevens about a criminal trespass complaint that a resident had filed against him the previous day.

While speaking with Stevens, Justice smelled a strong odor of alcohol emanating from Stevens. When Justice asked Stevens if he had been drinking, Stevens admitted that he had been drinking. Justice asked Stevens why he had gotten out of the driver's side of the Jeep, but Stevens would not respond. After other officers arrived at the location, Justice spoke with the passenger in the Jeep. Justice saw two alcohol beverage cans in the cup holders in the Jeep. Justice also saw a brown paper bag containing what appeared to be a liquor bottle with a broken seal inside the Jeep. When Justice asked what was in the paper bag, the passenger handed it to him. The paper bag contained a half-empty 375 milliliter bottle of whiskey.

After discovering these items, Justice told Stevens that he suspected that Stevens was under the influence of alcohol. During their conversation, Stevens admitted to driving the Jeep to the residence. Stevens agreed to undergo field sobriety testing. Justice attempted to perform three different field sobriety tests; however, Stevens either did not cooperate or refused to complete the tests. After refusing to complete the third field sobriety test, Stevens stated that he was driving, that Justice was going to do what he wanted, and that to "go ahead and get through with it."

Justice placed Stevens under arrest and took him to the police station where his breath was tested. Although Stevens agreed to take the breath test, he initially refused to blow into the breath testing machine. When Stevens finally blew into the breath testing machine, he failed to blow enough air for a full sample. The breath testing machine registered a deficient sample with a .205 alcohol concentration.

Stevens was charged with operating or attempting to operate a vehicle under the influence of alcohol in violation of K.S.A.2005 Supp. 8-1567(a)(3) and transporting an open container of alcoholic beverage in violation of K.S.A. 8-1599. The jury convicted Stevens of the operating or attempting to operate a vehicle under the influence of alcohol charge and acquitted him of the open container charge. Stevens moved for a judgment of acquittal or, alternatively, a new trial. Stevens alleged several errors that occurred during the course of his case. In a detailed written order, the trial court denied Stevens' motion for judgment of acquittal or new trial.

Motion for New Trial

First, Stevens argues that the trial court erred in denying his motion for a new trial based on the admission of the deficient breath test results into evidence. Whether to grant or deny a motion for a new trial is a matter which lies within the sound discretion of the trial court, and an appellate court reviews that decision under an abuse of discretion standard. State v. Flynn, 274 Kan. 473, 513, 55 P.3d 324 (2002).

Moreover, Stevens' argument requires this court to interpret various statutory provisions. Interpretation of a statute is a question of law over which an appellate court's review is unlimited. We are not bound by the trial court's interpretation of a statute. See State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003).

Before trial, Stevens moved to suppress his deficient sample breath test results, arguing in part that such results were not reliable evidence. The trial court denied Stevens' motion to suppress, stating that there was insufficient evidence at the time to establish whether the breath test results should be excluded. The State introduced the deficient sample breath test results into evidence at trial during Officer Roughton's testimony. Stevens objected on the ground that the State had not presented any evidence that the test had been conducted properly. Finding that the State had laid a proper foundation, the trial court overruled Stevens' objection and admitted the test results into evidence.

In moving for a new trial, Stevens cited State v. Herrman, 33 Kan.App.2d 46, 99 P.3d 632 (2004), where this court held that a deficient sample breath test could not be admitted as "other competent evidence" during a prosecution under K.S.A. 8-1567(a)(1). In denying Stevens a new trial, the trial court distinguished Herrman, stating that Stevens was prosecuted under subsection (a)(3), not subsection (a)(1), of K.S.A.2005 Supp. 8-1567. The trial court determined that partial sample breath test results are admissible evidence as long as a defendant was not prosecuted under subsection (a)(1) of K.S.A.2005 Supp. 8-1567.

K.S.A.2005 Supp. 8-1567(a)(3), the subsection under which Stevens was convicted, states in relevant part: "No person shall operate or attempt to operate any vehicle within this state while . . . under the influence of alcohol to a degree that renders the person incapable of safely driving a vehicle." K.S.A. 8-1005 discusses the evidence that can be used in a criminal proceeding against a defendant who has been charged with driving under the influence of alcohol. K.S.A. 8-1006(a) states that "[t]he provisions of K.S.A. 8-1005, and amendments thereto, shall not be construed as limiting the introduction of any other competent evidence bearing upon the question of whether or not the defendant was under the influence of alcohol or drugs, or both." (Emphasis added.)

Under K.S.A.2005 Supp. 8-1013(f), "`[o]ther competent evidence' includes: (1) Alcohol concentration tests obtained from samples taken two hours or more after the operation or attempted operation of a vehicle; and (2) readings obtained from a partial alcohol concentration test on a breath testing machine." (Emphasis added.) K.S.A.2005 Supp. 8-1013(f)(2) states that "other competent evidence" includes a partial alcohol concentration test. A deficient sample test is only a partial test of the Intoxilyzer 5000 and, therefore, is akin to a partial alcohol concentration test. As a result, a deficient sample falls within the definition of other competent evidence under K.S.A.2005 Supp. 8-1013(f)(2). Similarly, in State v. Maze, 16 Kan.App.2d 527, 533-34, 825 P.2d 1169 (1992), which was a criminal proceeding for driving under the influence of alcohol, this court determined that a deficient sample reading was admissible as other competent evidence under K.S.A. 8-1013(f)(2) and K.S.A. 8-1006(a).

Because a deficient sample breath test is included within the meaning of other competent evidence under K.S.A.2005 Supp. 8-1013(f)(2), and because other competent evidence is admissible under K.S.A. 8-1005 and 8-1006 in criminal proceedings for driving under the influence of alcohol, it is apparent that Stevens' deficient sample breath test result was admissible in his prosecution under K.S.A.2005 Supp. 8-1567(a)(3).

Nevertheless, continuing with his argument contained in his motion for a new trial, Stevens cites to Herrman to support his contention that the deficient sample breath test results were inadmissible evidence. In Herrman, the defendant was convicted under K.S.A. 8-1567(a)(1), which states that an individual shall not operate or attempt to operate any vehicle in Kansas while "[t]he alcohol concentration in the person's blood or breath as shown by any competent evidence, including other competent evidence, as defined in paragraph (1) of subsection (f) of K.S.A. 8-1013, and amendments thereto, is .08 or more." (Emphasis added.) This court applied the legal maxim expressio unius est exclusio alterius (the inclusion of one thing implies the exclusion of another) to conclude that "the intent of the legislature was to limit other competent evidence to only paragraph (1) of subsection (f) of K.S.A. 8-1013 and exclude all others."...