State v. Ward, 54887

• Decision Date: 26 March 1983
• Docket Number: No. 54887,54887
• Citation: 660 P.2d 957,233 Kan. 144
• Parties: STATE of Kansas, Appellant, v. Wayne WARD, Appellee.
• Court: Kansas Supreme Court

Page 957

660 P.2d 957

233 Kan. 144

STATE of Kansas, Appellant, v. Wayne WARD, Appellee.

No. 54887.

Supreme Court of Kansas.

March 26, 1983.

Syllabus by the Court

1. Conviction of even the gravest offense may be sustained by circumstantial evidence.

2. A conviction of driving under the influence of intoxicating liquor (K.S.A. 8-1567) may be sustained although based solely on circumstantial evidence.

3. Under the totality of the circumstances herein, the trial court is held to have abused its discretion in excluding all evidence of defendant's intoxication at time of arrest and in dismissing the case as a result of said exclusion.

Allen Angst, of Bengtson, Waters & Thompson, Chartered, Junction City, argued the cause, and Roger D. Thompson, Junction City, of the same firm, was on the brief for appellee.

John McNish, Asst. County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief for appellant.

McFARLAND, Justice:

This is an appeal by the prosecution from the district court's dismissal of the driving under the influence of intoxicating liquor (K.S.A. 8-1567) charge against defendant Wayne Ward.

The facts may be summarized as follows: On January 27, 1982, a state trooper was advised by a motorist of an automobile stuck in a ditch beside old Highway 40 in Dickinson County. The trooper proceeded to the described location and observed the referred-to vehicle. The automobile's engine was running and the lights were on. Defendant was behind the steering wheel in what appeared to the trooper to be a highly intoxicated condition. A single empty beer can was in the vehicle and no other containers for alcoholic beverages were in or near the vehicle. There were no passengers in the vehicle or other vehicles in the vicinity. Further, there were no businesses purveying alcoholic beverages in the area. The rural location was 15 miles from defendant's home.

The trooper was soon joined by two fellow troopers who formed like impressions of defendant's intoxicated condition. In investigating the scene the officers noted fresh spin marks in the mud by the vehicle's rear tires. These tire tracks were visible in the mud and could be followed from the ditch up to and across a private residential yard and then to a gravel road. This road connected to old Highway 40, but the vehicle's path could not be followed on the hard surface. The road was described as being "L" shaped. Apparently the short side of the "L" intersects old Highway 40 with the long side running parallel to said highway. The road ends at the residential yard. The vehicle was mired in the ditch between the yard and the highway.

Defendant was charged with driving under the influence of intoxicating liquor (K.S.A. 8-1567) and was convicted thereof in a trial before a district magistrate judge. Defendant appealed his conviction to the district court. Prior to trial the court granted defendant's motion in limine and directed the State could not introduce any evidence of "the level of intoxication, the physical condition, or the appearance of the defendant Wayne Ward at the time of his arrest." The motion in limine was granted on July 30, 1982. Jury trial was already scheduled for August 4, 1982. On August 3, 1982, the trial court sustained defendant's Motion for Directed Verdict and dismissed the case. Obviously this was a misnomer as a verdict may not be directed in contemplation of a future jury trial. In actuality, the trial court was simply dismissing the complaint based on its conclusion the State could not prevail with virtually all of its evidence excluded. The dismissal is appealable pursuant to K.S.A. 22-3602(b)(1).

The State has duly perfected this appeal which encompasses the propriety of the in limine ruling ultimately resulting in the dismissal of the case. The parties agree that jeopardy had not attached at the time of the dismissal and that double jeopardy is not an issue herein.

The State contends the trial court abused its discretion in holding all evidence pertaining to defendant's intoxication at the time of arrest was inadmissible. We agree.

This court has consistently held a conviction of even the gravest offense may be sustained by circumstantial evidence. State v. Morton, 230 Kan. 525, 530, 638 P.2d 928 (1982); State v. Henderson, 226 Kan. 726, 731, 603 P.2d 613 (1979); State v. White & Stewart, 225 Kan. 87, 99, 587 P.2d 1259 (1978); and State v. Johnson, 223 Kan. 185, 187, 573 P.2d 595 (1977).

Specifically, this court has held a driving under the influence of intoxicating liquor conviction may be sustained although based solely on circumstantial evidence. State v. Fish, 228 Kan. 204, 612 P.2d 180 (1980); State v. Dill, 182 Kan. 174, 319 P.2d 172 (1957); and State v. Hazen, 176 Kan. 594, 272 P.2d 1117 (1954).

In State v. Dill, 182 Kan. 174, 319 P.2d 172 an issue was raised as to whether the trial...