State v. Stevens, No. 94,187.

CourtUnited States State Supreme Court of Kansas
Writing for the CourtNuss
Citation172 P.3d 570,285 Kan. 307
PartiesSTATE of Kansas, Appellee, v. Ray J. STEVENS, Appellant.
Decision Date07 December 2007
Docket NumberNo. 94,187.
172 P.3d 570
285 Kan. 307
STATE of Kansas, Appellee,
v.
Ray J. STEVENS, Appellant.
No. 94,187.
Supreme Court of Kansas.
December 7, 2007.

[172 P.3d 575]

Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause, and Heather Cessna, of the same office, was on the briefs for appellant.

Brian P. Duncan, assistant county attorney, argued the cause, and Razmi M. Tahirkheli, assistant county attorney, John Gutierrez, county attorney, and Phill Kline, attorney general, were on the briefs for appellee.

The opinion of the court was delivered by NUSS, J.


Ray Stevens appeals his conviction for operating or attempting to operate his vehicle under the influence of alcohol. The Court of Appeals affirmed his conviction, with one judge dissenting. See State v. Stevens, 36 Kan.App.2d 323, 138 P.3d 1262 (2006). We granted Stevens' petition for review and the State's cross-petition for review; our jurisdiction is pursuant to K.S.A. 20-3018(b).

Between Stevens and the State, they present seven issues on appeal. Those issues, and our accompanying holdings, are as follows:

1. Did the district court err in failing to require the State to elect either (a) operating or (b) attempting to operate as the theory of prosecution, thus depriving Stevens of his right to a unanimous jury verdict? No.

2. Did the district court err in refusing to grant Stevens' motion for a new trial based on the admission of the deficient breath test results? No.

3. Did the district court err in refusing to grant a continuance based upon the State's failure to produce records of the deficient breath sample as well as the maintenance records of the Intoxilyzer 5000? No.

4. Does sufficient evidence support Stevens' conviction for driving under the influence in Crawford County? Yes.

5. Did the district court err in admitting Stevens' confession into evidence? No.

6. Did cumulative error deprive Stevens of his right to a fair trial? No.

7. Did the district court err in ordering Stevens to pay attorney fees to the Board of Indigents' Defense Services (BIDS) before taking into account his financial situation? Yes.

Accordingly, the judgment of the district court is affirmed regarding issues 1-6; the judgment regarding issue 7 is reversed and remanded for further proceedings as directed in the opinion. We affirm the Court of Appeals.

FACTS

During the afternoon of April 18, 2004, Officer Dave Justice of the Pittsburg Police Department was called to a residence for a criminal trespass complaint. Upon arrival, Justice saw a Jeep parked in the street with two people sitting in its front seat. As he approached, he saw Ray Stevens exit the driver's side and stumble toward the rear of the Jeep in the direction of the residence.

172 P.3d 576

Justice unsuccessfully attempted to get Stevens' attention as he walked toward the front door of the residence. While Stevens knocked, Justice moved directly behind him and again yelled to get his attention. As Stevens turned around, Justice informed him that the resident of the house did not want him on the property.

Justice noticed a strong odor of alcohol coming from Stevens. When asked, Stevens admitted he had been drinking. He refused, however, to explain why he got out of the driver's side of the Jeep. After backup arrived, Justice approached the Jeep to contact the passenger. Justice then saw alcoholic beverage cans in both the driver's side and passenger's side door cup holders. He also noticed a brown paper bag that appeared to contain a liquor bottle with the seal broken. When the passenger handed Justice the bag, he discovered it contained a half-empty bottle of whiskey. The Jeep key was in the ignition.

At that time, Justice believed that Stevens was under the influence of alcohol. According to Justice, Stevens stated that he had driven the vehicle to the residence. Initially, Stevens agreed to take a field sobriety test. Justice first asked Stevens to touch the top of Justice's pen with his right index finger. Stevens smirked and attempted to touch the pen with his small finger; however, he missed the pen. When Justice asked him to redo the test, Stevens was able to touch the pen with the correct finger. Justice then asked Stevens to follow a pen with his eyes. Stevens, however, only focused on Justice and refused to follow the pen. Stevens also refused to complete balance tests.

Justice placed Stevens under arrest and took him to the police station. There, after Justice read Stevens the implied consent advisory, Stevens submitted to an Intoxilyzer 5000 test. Although Stevens agreed to take the breath test, he initially refused to blow into the machine. When Stevens did blow, he failed to provide enough air for a sufficient sample. According to the machine printout, Stevens blew a "deficient sample" with a .205 blood alcohol concentration.

The next day Stevens was charged with operating or attempting to operate a motor vehicle while under the influence of alcohol in violation of K.S.A.2006 Supp. 8-1567(a)(3), and transporting an open container of alcoholic beverage in violation of K.S.A. 8-1599.

The same day, defense counsel filed a motion to suppress the breath test. The court denied the motion on present showing, allowing Stevens to later raise the issue.

The case proceeded to jury trial on September 23, 2004. Prior to voir dire, defense counsel asked that the State be required to choose its theory of prosecution, i.e., either operating or attempting to operate a vehicle while under the influence. The court, however, allowed the State to proceed under both theories.

Over defense counsel's objection, the court also admitted the deficient sample breath test results during the testimony of Sergeant David Roughton, the sergeant in charge of records and maintenance for the Intoxilyzer 5000.

Stevens was convicted of operating or attempting to operate a vehicle while under the influence of alcohol but was acquitted of the open container charge. Stevens moved for a judgment of acquittal or, alternatively, for a new trial; the district court denied the motions. He was subsequently sentenced to 12 months' probation with an underlying jail term of 12 months.

A majority of a Court of Appeals panel affirmed Stevens' conviction. The majority held: (1) The deficient breath test was admissible to establish a conviction under K.S.A.2006 Supp. 8-1567(a)(3); (2) the district court did not err in refusing to grant a continuance or new trial based upon the deficient sample; (3) driving or attempting to drive while under the influence is an alternative means situation and the evidence was sufficient to support either means; (4) Stevens' voluntary statements to the officer that he had been drinking and, later, that he had driven to the residence were elicited during the investigational phase and not while Stevens was in custody; (5) there was no cumulative error; and (6) a district court is unable to adequately determine a defendant's ability to pay attorney fees to BIDS when it fails to first tax a specific amount claimed by BIDS.

172 P.3d 577

Because of the BIDS issue, the majority remanded the case for further proceedings. Then Judge, now Justice, Johnson dissented, arguing the evidence was insufficient to support the conviction upon the alternative means of attempting to operate a vehicle. Stevens, 36 Kan.App.2d at 344-48, 138 P.3d 1262.

ANALYSIS

Issue 1: The district court did not err in failing to require the State to elect either (a) operating or (b) attempting to operate as the theory of prosecution.

Stevens argues that the district court erred in failing to require the State to elect its theory of prosecution, thus depriving him of his right to a unanimous jury verdict. "This court exercises unlimited review over issues of jury unanimity. [Citation omitted.]" State v. Kesselring, 279 Kan. 671, 678, 112 P.3d 175 (2005).

The trial court allowed the State to proceed under a charge of operating or attempting to operate a motor vehicle while under the influence of alcohol in violation of K.S.A. 2006 Supp. 8-1567(a)(3), which provides in relevant part:

"(a) No person shall operate or attempt to operate any vehicle within this state while:

(3) under the influence of alcohol to a degree that renders the person incapable of safely driving a vehicle."

Consistent with the statute, the jury was instructed as follows:

"The defendant is charged with the crime of operating or attempting to operate a vehicle while under the influence of alcohol. The defendant pleads not guilty.

"To establish this charge, each of the following claims must be proved:

1. That the defendant drove or attempted to drive a vehicle;

2. That the defendant, while driving or attempting to drive, was under the influence of alcohol to a degree that rendered him incapable of safely driving a vehicle; and

3. That this act occurred on or about the 18th day of April 2004, in Crawford County, Kansas." (Emphasis added.)

As noted by the Court of Appeals, Stevens did not object to the instruction. 36 Kan.App.2d at 336, 138 P.3d 1262. In fact, he suggested a similar instruction. Further, he did not request a unanimity instruction, nor did he object to the failure to give it. This court uses a clearly erroneous standard to review a party's failure to object to a given instruction and to review a trial court's failure to give an instruction where the party neither requested it nor objected to its omission. K.S.A.2006 Supp. 22-3414(3); State v. Cooperwood, 282 Kan. 572, 581, 147 P.3d 125 (2006). Instructions are clearly erroneous only if the appellate court is firmly convinced that there is a real possibility that the jury would have rendered a different verdict if the trial error had not occurred. Cooperwood, 282 Kan. at 581, 147 P.3d 125. But obviously if there is no error, there is no need to apply the clearly erroneous standard. See generally State v. Sappington, 285 Kan. 158, 163-65, 169 P.3d 1096 (2007).

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90 practice notes
  • State v. Schreiner, No. 104,149.
    • United States
    • Court of Appeals of Kansas
    • November 4, 2011
    ...as the record contains sufficient evidence to support each means. See Wright, 290 Kan. 194, Syl. ¶ 2, 224 P.3d 1159; State v. Stevens, 285 Kan. 307, 316, 172 P.3d 570 (2007). Should evidence be lacking on one of the means, however, then a guilty verdict fails for insufficient evidence even ......
  • State v. Buck-Schrag, No. 121,203
    • United States
    • United States State Supreme Court of Kansas
    • December 18, 2020
    ...burden the fees would impose. 286 Kan. at 852, 190 P.3d 207.This court also vacated an order for attorney fees in State v. Stevens , 285 Kan. 307, 330-31, 172 P.3d 570 (2007). There, the sentencing court ordered the defendant to generally pay attorney fees and then inquired about his monthl......
  • State v. Brown, No. 103,842.
    • United States
    • United States State Supreme Court of Kansas
    • August 24, 2012
    ...retrial upon the means for which there was sufficient evidence—operating a vehicle while under the influence), aff'd in part, rev'd in part285 Kan. 307, 172 P.3d 570 (2007). Instead, the court applied a harmless error analysis, albeit without specifically identifying it as such. See Dixon, ......
  • State v. Rojas–Marceleno, No. 102,702.
    • United States
    • United States State Supreme Court of Kansas
    • September 21, 2012
    ...the evidence is sufficient to support each means alleged by the State and included in the jury instructions. See, e.g., State v. Stevens, 285 Kan. 307, 316–19, 172 P.3d 570 (2007) (concluding the crime of driving under the influence is an alternative means crime before considering whether t......
  • Request a trial to view additional results
90 cases
  • State v. Schreiner, No. 104,149.
    • United States
    • Court of Appeals of Kansas
    • November 4, 2011
    ...as the record contains sufficient evidence to support each means. See Wright, 290 Kan. 194, Syl. ¶ 2, 224 P.3d 1159; State v. Stevens, 285 Kan. 307, 316, 172 P.3d 570 (2007). Should evidence be lacking on one of the means, however, then a guilty verdict fails for insufficient evidence even ......
  • State v. Buck-Schrag, No. 121,203
    • United States
    • United States State Supreme Court of Kansas
    • December 18, 2020
    ...burden the fees would impose. 286 Kan. at 852, 190 P.3d 207.This court also vacated an order for attorney fees in State v. Stevens , 285 Kan. 307, 330-31, 172 P.3d 570 (2007). There, the sentencing court ordered the defendant to generally pay attorney fees and then inquired about his monthl......
  • State v. Brown, No. 103,842.
    • United States
    • United States State Supreme Court of Kansas
    • August 24, 2012
    ...retrial upon the means for which there was sufficient evidence—operating a vehicle while under the influence), aff'd in part, rev'd in part285 Kan. 307, 172 P.3d 570 (2007). Instead, the court applied a harmless error analysis, albeit without specifically identifying it as such. See Dixon, ......
  • State v. Rojas–Marceleno, No. 102,702.
    • United States
    • United States State Supreme Court of Kansas
    • September 21, 2012
    ...the evidence is sufficient to support each means alleged by the State and included in the jury instructions. See, e.g., State v. Stevens, 285 Kan. 307, 316–19, 172 P.3d 570 (2007) (concluding the crime of driving under the influence is an alternative means crime before considering whether t......
  • Request a trial to view additional results

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