State v. Everest

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No. 102,720

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ARVIND EVEREST,
Appellant.


SYLLABUS BY THE COURT

1.
The contemporaneous objection rule applies in order to preserve for appellate
review a claim that a witness improperly commented upon the credibility of a criminal
defendant as considered in State v. Elnicki, 279 Kan. 47, 105 P.3d 1222 (2005).

2.
Testimony that defendant was observed driving in an erratic fashion is not
required to support a conviction of driving while under the influence of alcohol. Evidence
of incapacity to drive safely can be established through sobriety tests and other means.

3.
To sustain a conviction of obstruction of official duty the State must prove: (1) the
person obstructed was an identified law enforcement officer carrying out an official duty;
(2) the defendant knowingly and willingly obstructed or opposed that officer in the
performance of that duty; (3) the defendant knew or should have known the person he or
she opposed was a law enforcement officer; and (4) the defendant's action substantially
hindered or increased the burden of the officer in carrying out his or her official duty.
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4.
The act of providing false identification during the course of a criminal
investigation can result in obstruction of official duty. However, in order for a defendant
to be found guilty of obstruction of official duty under K.S.A. 21-3808, it must be shown
that the act of the defendant substantially hindered or increased the burden of the officer
in carrying out his or her official duty.

5.
Under the facts presented, the defendant providing a false name to the
investigating officer did not substantially hinder or increase the burden of the officer in
carrying out his official duty.

Appeal from Johnson District Court; STEPHEN R. TATUM, judge. Opinion filed May 13, 2011.
Affirmed in part and reversed in part.

Jonathan Laurans, of Kansas City, Missouri, for appellant.

Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Steve Six,
attorney general, for appellee.

Before STANDRIDGE, P.J., MCANANY, J., and KNUDSON, S.J.

MCANANY, J.: Arvind Everest was convicted of driving under the influence of
alcohol (DUI), driving while suspended, and felony obstruction of official duty. This was
Everest's fifth DUI conviction. He appeals his current DUI conviction and his conviction
for felony obstruction of official duty. We affirm Everest's DUI conviction but reverse
his conviction for felony obstruction of official duty.

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Officer Jonathan Rankin stopped Everest's vehicle late at night for not having a
properly illuminated license tag. The stop, Everest's arrest, and the subsequent events at
the police station were preserved on video.

At the scene of the traffic stop Everest lied to Rankin about his identity when
asked. Everest had no driver's license. He exhibited bloodshot and watery eyes and
smelled of alcohol. Everest denied having anything to drink. Rankin contacted dispatch to
search for police records of the person Everest claimed to be. Dispatch reported no record
of any such person.

Rankin then returned to Everest who was still in his vehicle. Everest was unsteady
on his feet when he exited his vehicle. He failed all but one of the field sobriety tests he
was given. Rankin arrested Everest for DUI and then searched Everest's car, where he
found an identification card showing Everest's true name and date of birth. When
confronted, Everest initially denied his true identity but eventually admitted who he was.

At the police station Rankin attempted to give Everest an Intoxilyzer breath test,
but the test could not be performed because Everest provided an insufficient breath
sample. Though Everest claimed this was because he was having an asthma attack, a
paramedic observed no wheezing or other signs of asthma and noted that Everest's lung
sounds were normal and his oxygen saturation level was an adequate 98 percent. The
paramedic did note, however, the odor of alcohol on Everest's breath and his "glossy"
eyes. When taken to the hospital Everest refused to submit to a blood-alcohol test.

The day before trial Everest's counsel was provided a copy of the DVD of events
at the scene and at the police station. When the State offered the DVD into evidence,
Everest's counsel responded:

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"As long as this is a redacted DVD, I have no objection. However, if it is not
redacted or if during the redacting process inadmissible material can still be heard or
seen, I have a continuing objection to that.
"And if that occurs, I will more than likely move for a mistrial. I just want the
record to be clear on that."

The State responded:

"It's a redacted copy. It's an exact copy of what I provided to [defense counsel]
yesterday. And he has had an opportunity to review this same copy—version of this copy.
I don't believe there is anything on there that's improper."

The DVD was admitted into evidence but it was only played for the jury from the
beginning to the 1:48 mark. Everest lodged no objection to the DVD during or after its
showing. The jury convicted Everest, and he now appeals.

Credibility Testimony

Everest claims, for the first time on appeal, that the district court erred in failing to
sua sponte declare a mistrial on the grounds that Rankin's observations in the recording
about Everest's credibility violated the principle expressed in State v. Elnicki, 279 Kan.
47, Syl. ¶ 3, 105 P.3d 1222 (2005) (improper to admit the testimony of one witness
expressing an opinion on the credibility of another witness).

Everest concedes in oral argument that Rankin's statements prior to the 1:48 mark
on the DVD do not warrant a mistrial under Elnicki. Everest's theory is that the DVD was
sent back to the jury room with the other exhibits during the jury's deliberations and the
jury must have viewed the balance of the DVD which contained the statements from
Rankin that warranted a mistrial.
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There are two problems with this theory. First, it is premised upon pure
speculation. There is nothing in the record to support the claim that the jury ever viewed
the balance of the DVD after the 1:48 mark. We do not know whether a DVD player was
available in the jury room. We have no record of the jurors asking for one.

Second, Everest raised no objection to admission of the DVD. The
contemporaneous objection rule applies to alleged Elnicki violations. See State v.
Anthony, 282 Kan. 201, 213-14, 145 P.3d 1 (2006). Everest never moved the court for a
mistrial based upon the DVD having been shown to the jury. Further, the issue was not
raised in Everest's motion for new trial. There is nothing to indicate whether the district
judge was ever made aware of what the DVD contained after the 1:48 mark when the
jury's viewing of it during the trial ended.

Everest relies on cases prior to State v. King, 288 Kan. 333, 349, 204 P.3d 585
(2009), to support our considering this issue notwithstanding his failure to assert a
contemporaneous objection. However, in King the court made clear:

"[E]videntiary errors shall not be reviewed on appeal unless a party has lodged a timely
and specific objection to the alleged error at trial. . . .

". . . From today forward, in accordance with the plain language of K.S.A. 60-
404, evidentiary claims—including questions posed by a prosecutor and responses to
those questions during trial—must be preserved by way of a contemporaneous objection
for those claims to be reviewed on appeal." 288 Kan. 349.

See also State v. Dukes, 290 Kan. 485, 487-88, 231 P.3d 558 (2010) (court has
consistently been refusing to review evidentiary issues without contemporaneous
objections even if the issue involves a fundamental right). The trial court "must be
provided the specific objection so it may consider as fully as possible whether the
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evidence should be admitted and therefore reduce the chances of reversible error." State
v. Richmond, 289 Kan. 419, 429, 212 P.3d 165 (2009).

The more recent decision in State v. Becker, 290 Kan. 842, 235 P.3d 424 (2010),
does not support Everest's claim to an exception to the contemporaneous objection rule.
Unlike in Becker, the record here does not disclose that Everest's counsel was "duped"
into not objecting to admission of claimed objectionable testimony. Here, Everest's
counsel had the opportunity to view the video in advance of trial and raise any objection
to its contents. No objection was raised. Everest's Elnicki claim has not been preserved
for appeal.

Sufficiency of DUI Evidence

Next, Everest argues there was insufficient evidence to support his conviction of
felony DUI based upon him being under the influence of alcohol to a degree that
rendered him incapable of driving safely.

In considering this claim we examine the evidence in the light more favoring the
State to determine if a rational factfinder could have found Everest guilty beyond a
reasonable doubt. See State v. Trautloff, 289 Kan. 793, 800, 217 P.3d 15 (2009). In doing
so we do not reweigh the evidence, pass on the credibility of witnesses, or resolve
conflicts in the evidence. State v. Hayden, 281 Kan. 112, 132, 130 P.3d 24 (2006).
Further, the defendant's guilt can be based entirely upon circumstantial evidence and the
reasonable inferences drawn from such evidence. See State v. Scaife, 286 Kan. 614, 618-
19, 186 P.3d 755 (2008).

Everest claims that the State presented no evidence that he was driving in an
erratic manner. However, "[e]vidence of incapacity to drive safely can be established
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through sobriety tests and other means. Observed erratic driving is not a requirement for
conviction of driving while under the influence of alcohol." State v. Blair, 26 Kan. App.
2d 7, Syl. ¶ 2, 974 P.2d 121 (1999).

Everest smelled of alcohol when stopped. His eyes were bloodshot and watery. He
had difficulty finding his identification and proof of insurance. He was unable to
successfully recite the alphabet. He failed the officer's numbers test. He swayed while the
officer checked his eyes. He failed the walk-and-turn test and the one-leg stand test. He
provided an insufficient breath sample for testing. This was evidence the jury could
consider in determining whether Everest was inebriated. K.S.A. 2006 Supp. 8-1001(i);
State v. Wahweotten, 36 Kan. App. 2d 568, 591, 143 P.3d 58 (2006), rev. denied 283
Kan. 933 (2007). A paramedic noted that Everest smelled of alcohol and had glossy eyes.
The cumulative effect of all this evidence was to provide ample support for the jury's
finding that Everest was under the influence of alcohol to a degree that rendered him
incapable of safely driving. Accordingly, we affirm Everest's DUI conviction.

Sufficiency of Obstruction of Official Duty Evidence

Next, Everest argues that the evidence was insufficient to support his conviction of
obstruction of official duty. This conviction was based on the fact that Everest gave
Rankin a false first name and date of birth. Everest claims that his actions did not
substantially hinder Officer Rankin or increase Rankin's burden in carrying out his
official duty. We review the evidence in the same manner as we reviewed the DUI
evidence against Everest.

K.S.A. 21-3808(a) defines obstructing official duty as "knowingly and
intentionally obstructing, resisting or opposing any person authorized by law to serve
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process in the service or execution or in the attempt to serve or execute any writ, warrant,
process or order of a court, or in the discharge of any official duty."

Whether a defendant obstructed official duty depends on the facts of each case. To
sustain a conviction the State must prove: (1) the person obstructed was an identified law
enforcement officer carrying out an official duty; (2) the defendant knowingly and
willingly obstructed or opposed that officer in the performance of that duty; (3) the
defendant knew or should have known the person he or she opposed was a law
enforcement officer; and (4) the defendant's action substantially hindered or increased the
burden of the officer in carrying out his or her official duty. See K.S.A. 21-3808(a); State
v. Parker, 236 Kan. 353, 364-65, 690 P.2d 1353 (1984). See also Pattern Instruction for
Kansas (PIK) Crim. 3d 60.09. The jury was given an instruction consistent with these
elements.

Kansas courts have held that the act of providing false identification during the
course of a criminal investigation can result in obstruction of official duty. See State v.
Latimer, 9 Kan. App. 2d 728, 687 P.2d 648 (1984). In this appeal, however, Everest
challenges whether his act of providing false identifying information to Rankin
substantially hindered or increased the burden of Rankin in carrying out his official duty.

K.S.A. 21-3808 does not contain the statutory element that the act of the defendant
substantially hindered or increased the burden of the officer in the performance of the
officer's official duty. However, in Parker our Supreme Court declared: "In order for a
defendant to be found guilty of obstruction of official duty under K.S.A. 21-3808, it must
be shown that the act of the defendant substantially hindered or increased the burden of
the officer in carrying out his official duty." 236 Kan. 353, Syl. ¶ 5.

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After Parker, Kansas courts have consistently required the State to prove the
additional element that the act of the defendant substantially hindered or increased the
burden of the officer in the performance of the officer's official duty. See, e.g., State v.
Lee, 242 Kan. 38, 43, 744 P.2d 845 (1987); State v. Frazier, 12 Kan. App. 2d 164, 168,
736 P.2d 956 (1987); State v. McCoy, No. 101,149, unpublished opinion filed July 23,
2010, rev. denied October 20, 2010; State v. Robinson-Bey, No. 98,614, unpublished
opinion filed August 22, 2008.

Everest argues that his act of providing a false name to Rankin did nothing to
impede Rankin's investigation of the defective license tag or the DUI. Rankin testified
that Everest's false first name did not hinder his ability to administer the field sobriety
tests "[b]esides the time delay." Only about 3 minutes passed while Rankin took the false
information from Everest, checked with dispatch, and returned to Everest's vehicle to
continue the DUI investigation. Following the completion of that investigation, which
was not dependent upon knowing Everest's true identity, Rankin arrested Everest for DUI
and then searched Everest's car and found an identification card showing Everest's true
name and date of birth.

In State v. Payne, No. 102,337, unpublished opinion filed November 5, 2010, rev.
denied January 18, 2011, the defendant gave a false name at the time of his arrest. When
the jail staff processed and fingerprinted Payne, his true name was discovered. As a result
of the false identification, the officer had to rewrite his arrest reports. A panel of this
court held that the officer's act of rewriting his reports satisfied the requirement of
substantially hindering or increasing the burden on the officer.

Here, however, we find no substantial evidence that Everest substantially hindered
or increased Rankin's burden in carrying out his investigation. Although Everest's act of
falsely identifying himself is the same act that led to convictions in Latimer and Payne,
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Everest's true identity was quickly established when Rankin discovered Everest's
identification cards, which was before Everest's misidentification caused any substantial
burden to Rankin.

We are duty bound to follow Parker, absent some indication the court is departing
from it. See State v. Merrills, 37 Kan. App. 2d 81, 83, 149 P.3d 869, rev. denied 284 Kan.
949 (2007). There is no indication that our Supreme Court is departing from its holding in
Parker. We find no evidence to support the necessary element that Everest's actions
substantially hindered Rankin or increased Rankin's burden in carrying out his official
duty of investigating Everest for DUI and for not having a properly illuminated license
tag. Accordingly, we reverse this conviction.

Everest raises additional issues regarding the classification of the obstruction
charge as a felony and regarding a jury instruction that related solely to the obstruction
charge. Because we are reversing Everest's obstruction conviction, these remaining issues
are now moot.

Affirmed in part and reversed in part.