State v. Zeiner

Citation515 P.3d 736
Decision Date26 August 2022
Docket Number122,682
Parties STATE of Kansas, Appellee, v. Ty R. ZEINER, Appellant.
CourtUnited States State Supreme Court of Kansas

Kelly J. Trussell, of Sloan, Eisenbarth, Glassman, McEntire & Jarboe L.L.C., of Topeka, argued the cause and was on the briefs for appellant.

Natalie Chalmers, assistant solicitor general, argued the cause, and Derek Schmidt, attorney general, was with her on the briefs for appellee.

The opinion of the court was delivered by Stegall, J.:

Ty Zeiner was convicted of driving while under the influence (DUI) after he was found by Deputy Starkey asleep in the driver's seat of his SUV and parked alongside a gravel road. Because the district court committed a reversible error in the jury instructions by failing to properly define the word "operate" as used in K.S.A. 2021 Supp. 8-1567(a), we reverse his DUI conviction and remand the case for a new trial with proper jury instructions.

Around 3:15 a.m. on November 18, 2018, a person driving home in rural Marion County noticed a white SUV parked, with its headlights on and motor running, alongside the gravel road several miles east of the city of Marion. On this morning, the temperature was in the 20s, the wind was blowing about 15 mph, and it was spitting snow. Acting out of a general concern for safety, the person pulled alongside the SUV and observed the driver, Zeiner, asleep in the driver's seat. The person then called his father for advice, and the father called the local sheriff's office. Deputy Larry Starkey responded to the call and arrived at the scene at 3:33 a.m.

When Deputy Starkey arrived, the SUV's motor had been turned off, though the radio and headlights were still on. Deputy Starkey immediately recognized the sleeping driver as Zeiner. Deputy Starkey tapped on the SUV's window and woke Zeiner up. Zeiner was in the driver's seat. He was wearing no seatbelt, made no attempt to move, stop, or shift the vehicle, or take any other action that indicated he was attempting to control the movement or future movement of the SUV.

Zeiner fumbled with the door handle and opened it to talk to Deputy Starkey. Deputy Starkey immediately noticed a smell of alcohol on Zeiner's breath. Zeiner initially denied drinking any alcohol, then quickly amended his story to say that he had consumed a couple of drinks with dinner earlier that evening. Zeiner explained that around 6:30 the previous evening he had drank two beers at Radius Brewing in Emporia, then drove to Strong City to meet his friend, John Maddox, at Ad Astra Food and Drink. Maddox later testified that he could not remember if Zeiner drank alcohol at Ad Astra but said Zeiner did not appear intoxicated during the roughly hour-long time they were there together. We do not know what time Zeiner left Ad Astra or how much, if any, alcohol Zeiner consumed while with Maddox.

Zeiner explained that he had been driving home from Ad Astra when he began to feel very tired and he decided to pull over. Zeiner was only 3 miles from his house. Zeiner asked Deputy Starkey a few times if he could simply drive home and let Deputy Starkey follow him there to ensure he made it safely. Deputy Starkey said no. Zeiner then asked if he could start his SUV to run the heater because it was cold outside. Deputy Starkey obliged, provided Zeiner promised not to try to drive away.

Based on his past interactions with Zeiner, Deputy Starkey suspected Zeiner was intoxicated because he appeared unusually "slow" and had "glassy eyes." Deputy Starkey subsequently asked Zeiner to perform two field sobriety tests: the "walk and turn" test and the "one-leg stand" test. Because of the cold weather, Deputy Starkey asked Zeiner to perform the tests using his patrol truck as a shield from the wind. Zeiner was wearing only a dress jacket for warmth and hard-soled dress shoes during the tests, and he repeatedly complained about how cold he felt. Zeiner attempted the one-leg stand test four times and failed. During this test, Zeiner missed a number while counting, put his foot down, and generally had trouble maintaining balance. During the walk and turn test he was docked on the pivot-turn and did not walk heel-to-toe or in a true straight line.

After finishing the tests, Deputy Starkey arrested Zeiner and the pair moved into the cab of his patrol truck to talk. Zeiner agreed to allow Deputy Starkey to search his vehicle. Upon this search, Deputy Starkey found an unopened beer bottle in the console, an empty bottle of the same brand of beer on the passenger floorboard, and several matching bottlecaps on the floor of the SUV. Zeiner denied knowing that the empty bottle was in the truck, though he admitted he knew about the sealed bottle. Deputy Starkey did not search the area around the truck for additional bottles to match the caps found on the floorboard or ask Zeiner if he had been drinking the beer in the car.

Deputy Starkey then took Zeiner to the sheriff's office and administered three breath tests. The first test at 4:51 a.m. rendered no readable sample because Zeiner failed to blow into the machine properly. The second test at 5:24 a.m. rendered a deficient sample, still reading .134. The third test at 5:39 a.m. rendered another deficient sample which read .145.

In his official drug and alcohol incident report, Deputy Starkey did not check any of the boxes that state he had witnessed any unsafe operation or signs of impairment, including fumbling, repeating words, false information, bloodshot eyes, watery eyes, glazed eyes, droopy eyes, slowness to respond, slurred speech, hiccupping, excitability, indifference, use of profanity, insults, carefree attitude, acting cocky, combative, sleepy, abusive, or antagonistic. Rather, Deputy Starkey just stated that Zeiner was acting unusually slow based on Deputy Starkey's past interactions with Zeiner.

Upon this evidence, the State charged Zeiner with a second time DUI offense under K.S.A. 2021 Supp. 8-1567(a)(1) (breath-alcohol concentration of at least 0.08) and, in the alternative, K.S.A. 2021 Supp. 8-1567(a)(3) (incapable of safely driving due to intoxication). The State also charged him with transporting liquor in an open container.

K.S.A. 2021 Supp. 8-1567(a)(3) states that "[d]riving under the influence is operating or attempting 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." The parties below have disputed the meaning of the term "operate" in the statute throughout this case.

At trial, Zeiner properly objected to the jury instructions, arguing for an instruction that clearly defined "operate" as used in the statute to mean "drive." The trial judge denied this request and opted for the broader language as used in the PIK, although the trial judge specifically recognized during sentencing that this case raised a difficult and substantial instructional issue.

The jury found Zeiner guilty of both DUI charges and not guilty of transporting liquor in an open container. Zeiner appealed the DUI convictions, and the Court of Appeals reversed his conviction under K.S.A. 2021 Supp. 8-1567(a)(1) because the district court improperly admitted the partial breath test samples as evidence. State v. Zeiner , No. 122,682, 2021 WL 2386047, at *3 (Kan. App. 2021) (unpublished opinion). The State did not appeal that reversal to this court.

The Court of Appeals affirmed Zeiner's DUI conviction under K.S.A. 2021 Supp. 8-1567(a)(3). 2021 WL 2386047, at *5, 7. In upholding this conviction, the Court of Appeals held the jury instruction was erroneous but that the error was harmless:

"[R]esolution of this case does not turn on whether Zeiner attempted to operate or drive his vehicle after he pulled over to the side of the road. Zeiner freely admitted that he drove his vehicle from Strong City to the place where Starkey found him. Because this evidence was undisputed, there is no reasonable probability that the district court's failure to define ‘operate’ as ‘drive’ affected the jury's verdict." 2021 WL 2386047, at *7.

The Court of Appeals also held that the evidence was sufficient to support the jury's guilty verdict on this count. We agree that the evidence was sufficient, but we find the instructional error is not harmless beyond a reasonable doubt.

DISCUSSION

Zeiner challenges both the sufficiency of the evidence and the lower court's ruling on harmless error. We examine each of these issues in turn.

There was sufficient evidence presented at trial to convict Zeiner of a DUI under K.S.A. 2021 Supp. 8-1567(a)(3).

"When a criminal defendant challenges the sufficiency of the evidence used to support a conviction, an appellate court looks at all the evidence ‘in a light most favorable to the State to determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt.’ A reviewing court ‘generally will "not reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations." [Citations omitted.]" State v. Harris , 310 Kan. 1026, 1030, 453 P.3d 1172 (2019).

A reviewing court need only look to the evidence in favor of the verdict to determine whether the essential elements of a charge are sustained. State v. Rice , 261 Kan. 567, 585-86, 932 P.2d 981 (1997). It is only in rare cases where the testimony is so incredible that no reasonable fact-finder could find guilt beyond a reasonable doubt that a guilty verdict will be reversed. State v. Torres , 308 Kan. 476, 488, 421 P.3d 733 (2018) ; State v. Matlock , 233 Kan. 1, 5-6, 660 P.2d 945 (1983).

When evaluating the type of evidence before the court, we often state that even the gravest offense can be based entirely on circumstantial evidence. State v. Banks , 306 Kan. 854, 858-59, 397 P.3d 1195 (2017). Sufficient circumstantial evidence does not need to exclude every other reasonable conclusion to support a conviction. State v. Logsdon , 304 Kan. 3, 25, 371 P.3d 836 (2016).

On the other hand,...

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4 cases
  • State v. Spilman
    • United States
    • Court of Appeals of Kansas
    • July 7, 2023
    ...... evidentiary conflicts, or make credibility determinations, a. reviewing court need only look at the evidence in favor of. the verdict to determine whether the essential elements of a. charge are sustained. State v. Zeiner , 316 Kan. 346,. 350, 515 P.3d 736 (2022). The State must provide evidence. sufficient to support each element of a charged offense. Hilyard , 316 Kan. at 330. . .          To. convict Spilman of the lesser included offense of involuntary. ......
  • State v. Garcia-Oregel
    • United States
    • Court of Appeals of Kansas
    • June 9, 2023
    ......at 995. And, while the physical. condition of the vehicle does not appear to be a part of the. equation here, it is true that a person must be. "operating or attempting to operate" a vehicle as. part of the DUI offense. K.S.A. 8-1567. See, e.g., State. v. Zeiner , 316 Kan. 346, 353, 515 P.3d 736 (2022). (finding "'an "attempt to operate" under. the DUI statute means an attempt to move the. vehicle.'"); State v. Darrow , 304 Kan. 710,. Syl. ¶ 1, 374 P.3d 673 (2016) (some movement of the. vehicle is required); Jarmer v. ......
  • Jarmer v. Kan. Dep't of Revenue
    • United States
    • Court of Appeals of Kansas
    • January 13, 2023
    ...... Supreme Court has interpreted the term "operate" in. the DUI statute to mean "drive." See, e.g.,. State v. Zeiner, 316 Kan. 346, Syl. ¶ 2, 515. P.3d 736 (2022);. . 3. . State v. Darrow, 304 Kan. 710, Syl. ¶ 1, 374. P.3d ......
  • State v. Miller
    • United States
    • Court of Appeals of Kansas
    • September 1, 2023
    ...whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt."'" State v. Zeiner, 316 Kan. 346, 350, 515 P.3d 736 (2022). Appellate courts do not reweigh evidence, evaluate witness credibility, or resolve evidentiary conflicts. 316 Kan. at 350. A conviction ......

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