IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 86,320
STATE OF KANSAS,
Appellee,
v.
MICHAEL L. JENKINS,
Appellant.
SYLLABUS BY THE COURT
1. When the sufficiency of the evidence in a criminal case is challenged, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.
2. Mere proof of driving in an impaired condition is by itself insufficient to rise to the level of reckless conduct as defined at K.S.A. 21-3201(c). However, proof of an impaired condition, plus proof of the realization of the imminence of danger caused by driving while in an impaired condition, is sufficient.
3. Under the facts of this case, the State presented sufficient evidence to sustain the defendant's conviction of involuntary manslaughter, which required proof that the unintentional killing of a human being was committed recklessly.
4. When reviewing challenges to jury instructions, the appellate court is required to consider all the instructions together, read as a whole, and not isolate any one instruction. If the instructions properly and fairly state the law as applied to the facts of the case, and a jury could not reasonably have been misled by them, the instructions do not constitute reversible error even if they are in some way erroneous.
5. In a criminal action, the district court must instruct the jury on the law applicable to the defendant's theories for which there is supporting evidence.
6. Under the facts of this case, there was no reason to specifically instruct the jury that merely driving in an impaired condition cannot rise to the level of reckless conduct. The jury was properly instructed on the definition of recklessness and the State presented sufficient evidence of the defendant's recklessness. There is no indication in the record that the State's theory at trial relied on the defendant's impaired condition alone.
7. Under the facts of this case, there was no evidence to support the instruction on the defendant's theory his impaired condition rendered him unable to control his actions at the time he began driving.
8. The admission of evidence lies within the sound discretion of the trial court. An appellate court's standard of review regarding a trial court's admission of evidence, subject to exclusionary rules is abuse of discretion. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. One who asserts that the court abused its discretion bears the burden of showing such abuse of discretion.
9. Three requirements must be met in order to introduce evidence under K.S.A. 60-455: (1) The evidence is relevant to prove one of the facts specified in the statute; (2) the fact is a disputed, material fact; and (3) the probative value of the evidence outweighs its potential prejudice.
10. Under the facts of this case, evidence of the defendant's prior collisions caused by his impaired condition supplied relevant evidence of his knowledge of the imminent danger to other motorists.
11. Merely holding a valid drivers license cannot be a defense under K.S.A. 21-3203(2)(d) to a prosecution for involuntary manslaughter. The defense provided under K.S.A. 21-3203(2)(d) requires an official interpretation of the statute defining the crime. The issuance of a drivers license is not an interpretation of what constitutes reckless behavior, but is rather the execution of administrative duties required by statute. Reliance on such a defense is further undermined when the information provided upon which the alleged official interpretation was made was provided by the defendant and is inaccurate.
12. When there is a conflict between a statute dealing generally with a subject and another statute dealing specifically with a certain phase of it, the specific statute controls unless the legislature intended to make the general act controlling.
13. In a criminal prosecution for making false information under K.S.A. 2000 Supp. 21-3711, the trial court did not err by failing to require the State to prosecute the defendant under K.S.A. 2000 Supp. 8-260(a)(5), which is based upon a driver's license application, renewal, or replacement. The submission of medical forms regarding the defendant's propensity to experience seizures was authorized under K.S.A. 8-245(a) for imposing reasonable restrictions licensees and does not fall within the definition of driver's license application, renewal, or replacement.
14. K.S.A. 2000 Supp. 74-2012, which makes the records of the Division of Vehicles confidential, does not provide a privilege enabling the criminal defendant to exclude such records in a false information criminal prosecution based on the defendant's submission of those records. K.S.A. 2000 Supp. 74-2012 is not intended to protect a criminal defendant from a prosecution based on the submission of false information.
Appeal from Sedgwick district court, REBECCA L. PILSHAW, judge. Opinion filed February 1, 2002. Affirmed.
Craig Shultz, of Law Office of Craig Shultz, P.A., of Wichita, argued the cause and was on the briefs for appellant.
Debra S. Peterson, assistant district attorney, argued the cause, and Nola Foulston, district attorney, and Carla J. Stovall, attorney general, were with her on the brief for appellee.
The opinion of the court was delivered by
BRAZIL, J.: Michael Jenkins appeals his jury conviction of two counts of involuntary manslaughter and one count of making false information following a traffic collision on August 19, 1999, involving two fatalities. While initially charged with two counts of second-degree murder and two counts of making false information, the jury settled on the lesser included offense of involuntary manslaughter. The State's theory at trial was that Jenkins recklessly drove the day of the collision, knowing his propensity for epileptic seizures would endanger other drivers.
Jenkins' vehicle collided with the back of Sherri Kim Yauk's vehicle as Yauk was stopped at a red light. The collision caused the deaths of Yauk's two children, Brett and Laura. Prior to the collision, one witness observed Jenkins driving 5 to 20 miles over the speed limit of 40 miles per hour. Jenkins never slowed before colliding with Yauk.
Mindy Johnson, who was working as a traffic accident investigator the day of the accident, testified Jenkins said "he was driving, he felt dizzy, and the next thing he knew, he had been involved in an accident."
Officer Steven Kenney tested Jenkins following the collision to determine whether Jenkins was under the influence of any medications or was otherwise impaired. His evaluation, which included field sobriety tests, breath tests, and blood and urine tests, revealed that Jenkins was not under the influence of any substances.
Jenkins testified he learned about his epilepsy in 1974 or 1975, but that it did not affect his driving until 1990.
The State presented evidence of Jenkins' involvement in seven prior automobile accidents during the period beginning in 1990 to February 26, 1999.
August 16, 1990
Jenkins, who was involved in an accident, left the scene, but was later found. According to Officer Willard Buffin, Jenkins said that "he had felt faint, had noticed some rubbing of something on his vehicle as he was driving, had pulled over and realized he had been involved in an accident, and was on his way home to report the accident when he was stopped by an officer."
Following the collision, Jenkins saw Gina Kader, a medical doctor. Jenkins testified he told Dr. Kader about the collision, which he thought was caused by a seizure.
April 9, 1992
Jenkins "rear-ended" a truck. Jenkins' contemporaneous statement was that he "[w]as driving north on Hillside and felt light headed. Didn't realize I had accident until pulled from my vehicle. I had seizure and was involved in accident." Dr. Kader, who was contacted by a traffic accident investigator, indicated that she believed the accident was caused by a seizure.
May 29, 1992
The police report in this accident included Jenkins' own description of the accident: "I was east bound on Kellogg in the center lane and felt myself starting to have a seizure. I was in traffic and couldn't get pulled off the road. Next I realized I had been in an accident and pulled off of Kellogg, inspected vehicle as officer pulled up." Jenkins testified that he told Dr. Kader about the April 9 and May 29, 1992, accidents as well.
Jenkins wanted a second opinion, and went to see Mark Mandelbaum, a medical doctor, around late August 1992 or early September 1992. According to Dr. Mandelbaum, Jenkins reported "having up to eight seizures a month" and that he had recently been in an automobile collision. Dr. Mandelbaum testified that he recommended Jenkins not drive, but Jenkins indicated he was going to continue to do so.
January 27, 1993
Jenkins' wrote the following after this accident: "Arriving home from work & felt dizzy, tried to get off K-15. I started to pull off onto a driveway. That is the last thing I remember until someone was pulling me out of wrecked vehicle."
March 22, 1993
Jenkins was involved in an accident with Candace Flattick. Trooper Mark Wright testified Jenkins said he had had a seizure prior to the accident. After the collision, Wright checked Jenkins' driving record and discovered that Jenkins had a history of traffic collisions. When confronted with the prior collisions, Jenkins "indicated . . . that he had had seizures." After discovering this information, Wright sent a letter to the Department of Revenue (DOR) to express his concerns about Jenkins' driving record. The DOR sent a letter, dated April 7, 1993, to Jenkins asking him to see a physician for an evaluation.
Jenkins testified he again saw Dr. Kader following the March 22, 1993 collision. Presumably, in response to the DOR's letter, Jenkins testified he told Dr. Kader of his prior collisions and that he believed them to have been caused by his seizures. Dr. Kader recommended Jenkins not drive. The DOR in its June 2, 1993, letter revoked Jenkins' license "until we receive an acceptable medical report which indicates that you have remained seizure free for six (6) full months, that you are medically capable of operating a motor vehicle safely, and that you should be granted driving privileges." Jenkins testified he had gone a year without a driver's license into 1994.
Dr. Kader's notes of September 14, 1993, point out that Jenkins "resents not being able to drive." Dr. Kader's notes from April 6, 1994, revealed that she felt Jenkins' "seizures [were] well controlled." Jenkins signed a medical form April 19, 1994, on which he wrote the following remarks: "In March of 1993 I had a seizure and caused an accident. I have not had any seizures since then. I have taken medication for epilepsy for 22 years."
In response to a different question on the same form, Jenkins affirmatively responded to the question of whether he had experienced or had been treated for blackout spells, dizzy spells, epilepsy, seizures, loss or alteration of consciousness. However, Jenkins failed to complete the follow up question required by the form requesting the date of his last such episode. On the condition that Jenkins submit annual medical reports, Jenkins' license was reinstated on June 2, 1994. The medical form Jenkins signed dated January 19, 1995, also failed to list the date of Jenkins' last episode. Dr. Kader also failed to answer on the form whether, in her professional opinion, Jenkins was physically or mentally capable of safely operating a motor vehicle. As a result of the 1995 medical form, the DOR continued Jenkins' license.
According to Jenkins' testimony, he again began to experience seizures toward the end of 1995. About this time Jenkins first began seeing Dr. Rizwan Hassan, a neurologist. Dr. Hassan evaluated Jenkins on January 19, 1996. Jenkins testified he told Dr. Hassan about the prior collisions. Dr. Hassan testified Jenkins said he was averaging one to two "spells" per month. On the medical form Jenkins filled out dated January 19, 1996, Jenkins indicated he had not experienced "blackout spells, dizzy spells, epilepsy, seizures, loss or alteration of consciousness." The part of the form filled in by Dr. Hassan disclosed that Jenkins had had a seizure on January 16, 1996. Dr. Hassan based this disclosure on what Jenkins had stated. The DOR in its April 1, 1996, letter informed Jenkins of its decision to not allow him to drive and again revoked his driving privileges.
Jenkins testified Dr. Hassan prescribed medication which was effective in controlling the seizures. Jenkins submitted another medical form dated August 23, 1996. Jenkins admitted to having a loss of consciousness within the past 3 years and indicated the last such loss of consciousness was January 19, 1996. Dr. Hassan indicated on the form that the date of Jenkins' last unconscious episode was January 19, 1996. As a result of this medical form, the DOR permitted Jenkins to reapply for a driver's license on September 9, 1996. He passed a full driver's examination test and restricted driving privileges were reinstated.
December 20, 1996
According to Trooper Jimmy Atkinson:
"[Jenkins] was traveling in a westerly direction on Harry Street, and there's a grassy area of the embankment which runs down to I-135. Appears that he lost consciousness, traveled down the embankment, still in a westerly direction, and went into northbound traffic--at that time it was rush hour--and collided into one vehicle, kept going. And the one vehicle that he collided, collided into another vehicle which was in the inside lane, and I believe Mr. Jenkins' vehicle thereafter traveled maybe a couple hundred feet before coming to rest."
Jenkins described, in his contemporaneous written statement, what he remembered from the accident: "I was driving west on Harry Street just east of I-35 when I felt light headed. The next I remember was being involved in an accident just south of Harry on I-35."
Jenkins had to complete another medical form dated February 21, 1997. While admitting to (1) having an accident; (2) having had his license revoked; and (3) having a blackout spell, dizzy spell, epilepsy, seizure, loss or alteration of consciousness within the past 3 years, he did not indicate the date of his last such episode. His driving privileges were thereafter continued, with an annual medical report being required.
On February 15, 1999, Jenkins signed another medical form. He indicated his last date of "blackout spells, dizzy spells, epilepsy, seizures, loss or alteration of consciousness" was in November 1996.
February 26, 1999
Patricia Byers, a traffic accident investigator, described this wreck as a rearend collision involving three vehicles. Jenkins was driving one of the vehicles. Byers talked with Jenkins after the accident and Jenkins described the event as follows: "He told me he wasn't feeling well; that he was light-headed and had felt dizzy and had been trying to pull his vehicle over before the accident, and he didn't remember anything past turning off--turning onto Douglas Street."
Jenkins had possession of the medical form he signed on February 15, 1999, until as late as March 2, 1999. Dr. Hassan did not sign the form until March 3, 1999. Dr. Hassan indicated on the form that January 1996 was Jenkins' last episode. Dr. Hassan testified that Jenkins had failed to mention the February 26, 1999, incident. Based on this medical form, the DOR again continued Jenkins' driving privileges.
Dr. Hassan testified Jenkins did mention the February 26, 1999, collision during an appointment on August 6, 1999, but that Jenkins claimed there was no seizure involved. Jenkins visited Dr. Hassan again on September 26, 1999, and confessed that he had two seizures on August 19, 1999.
I. SUFFICIENCY OF THE EVIDENCE
Jenkins argues the State failed to present sufficient evidence to support his convictions of involuntary manslaughter. This court in State v. Jamison, 269 Kan. 564, 571, 7 P.3d 1204 (2000), explained the standard of review for sufficiency of evidence:
"When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. [Citation omitted.]"
The jury convicted Jenkins of the version of involuntary manslaughter requiring proof of the unintentional killing of a human being committed recklessly. See K.S.A. 2000 Supp. 21-3404(a). The trial court instructed the jury on the following definition of recklessness:
"Reckless conduct means conduct done under circumstances that show a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of that danger. The terms 'gross negligence,' 'culpable negligence,' 'wanton negligence' and 'wantonness' are included within 'reckless.'"
The above definition is substantially similar to the definition of "reckless conduct" found at K.S.A. 21-3201(c).
Based on the State's theory, the issue is whether a rational factfinder could have found that Jenkins demonstrated a realization of the imminence of danger and a conscious and unjustifiable disregard of that danger when he decided to drive his car prior to the fatal collision.
Jenkins argues that his history of accidents caused by seizures was not sufficient evidence to support the jury's verdict. Jenkins relies on State v. Huser, 265 Kan. 228, 959 P.2d 908 (1998). This court in Huser reviewed the State's appeal from the trial court's dismissal of two counts of reckless aggravated battery. The Huser court affirmed the district court, holding that evidence of driving under the influence does not, standing alone, amount to reckless behavior. 265 Kan. at 234.
The Huser court relied on and quoted extensively from State v. Mourning, 233 Kan. 678, 664 P.2d 857 (1983). The Mourning court considered whether reckless driving and driving under the influence of alcohol or drugs were the same offense for double jeopardy purposes. The Mourning court concluded that the two crimes required different evidence. 233 Kan. at 681. In its analysis, the Mourning court addressed the State's argument that "any time a person under the influence of alcohol or drugs operates a vehicle he does so in willful or wanton disregard for the safety of others." 233 Kan. at 682. The Mourning court rejected this argument by pointing out that driving under the influence only requires driving when impaired, not swerving or driving recklessly. 233 Kan. at 682.
Jenkins would have this court interpret Huser as standing for the proposition that there can be no criminal liability for reckless behavior anytime a person drives knowing he or she suffers from any condition that might preclude his or her ability to safely operate a vehicle. Such cannot be the law. The better interpretation of Huser is simply that the mere proof of driving under the influence is insufficient to prove recklessness.
The State has presented sufficient evidence of recklessness. The State's evidence showed that Jenkins' history of past accidents was caused by his susceptibility to seizures. The State provided evidence of seven such accidents. This case is different from Huser. In Huser, there was no evidence that the defendant had a conscious disregard for a known danger.
The Huser court also pointed out that "[o]ne's behavior is only reckless if he or she realizes that his or her conduct creates imminent danger to another person but consciously and unjustifiably disregards the danger. [See K.S.A. 21-3201(c).]" 265 Kan. at 234. Jenkins' seven prior collisions provided sufficient evidence to show that Jenkins knew of the imminent danger he created for other motorists.
Based on Huser, Jenkins is correct to note that driving in an impaired condition is alone insufficient evidence of recklessness. Had the seizure been Jenkins' first, he would not have had any criminal liability because he would not have had any reason to believe he was putting other motorists in danger by driving. Here, the jury understandably found that Jenkins knew of the imminent danger before driving and consciously disregarded it. The seizure was not a surprise to Jenkins.
II. LACK OF CAPACITY
Jenkins argues the trial court erred in failing to instruct the jury (1) that the mere act of driving with an epileptic condition without proof of an additional act of recklessness cannot satisfy the State's burden; and (2) that it is an absolute defense if the jury would find that Jenkins suffered from an epileptic seizure and was, therefore, unable to control his actions.
The court in State v. Mitchell, 269 Kan. 349, 355, 7 P.3d 1135 (2000), explained the analysis for reviewing jury instructions:
"When reviewing challenges to jury instructions, we are required to consider all the instructions together, read as a whole, and not to isolate any one instruction. If the instructions properly and fairly state the law as applied to the facts of the case, and a jury could not reasonably have been misled by them, the instructions do not constitute reversible error even if they are in some way erroneous. [Citation omitted.]"
In a criminal action, the district court must instruct the jury on the law applicable to the defendant's theories for which there is supporting evidence. State v. Barnes, 263 Kan. 249, 265, 948 P.2d 627 (1997).
Jenkins requested the following instruction:
"The mere act of driving in an impaired condition cannot, as a matter of law, satisfy the requirements of recklessness as defined in these instructions. The State must prove an independent act of recklessness beyond that of knowing one has or may have a condition of impairment in their driving."
The trial court refused to give the instruction. Jenkins stated in his brief on appeal that the issue here was linked to his prior arguments regarding reckless conduct and provided no further analysis beyond pointing out how the trial court should have instructed the jury on the defendant's theory of the case.
The State first argues that it provided proof of the following additional indicia of recklessness: (a) Jenkins' prior accidents; (b) his decision to drive after being warned not to; and (c) his failure to report past seizures while driving. Second, the State responds by pointing out how Jenkins' attorney nevertheless argued the theory that the mere act of driving while in an impaired condition cannot meet the reckless standard.
As our analysis of the first issue suggests, the act of recklessness was Jenkins' decision to drive knowing his propensity to have seizures. The State proved this recklessness through Jenkins' prior collisions, Jenkins' decision to drive despite being warned by Dr. Mandelbaum and Dr. Kader not to drive, and Jenkins' failure to report seizures to Dr. Hassan and the DOR. All these facts show Jenkins' knowledge of his impaired condition and, thereby, his knowledge of his danger to other motorists. It is not clear how Jenkins could believe the State was trying to rely on the "mere act of driving while in an impaired condition." On the contrary, Jenkins' requested instruction was inappropriate because the State did not rely on the mere act of driving while in an impaired condition. The State offered evidence of an impaired condition, plus sufficient evidence of Jenkins' knowledge that such condition would be dangerous to others and that he disregarded such danger.
Second, Jenkins argues it was error for the trial court to refuse to give the following instruction:
"If you find that the defendant suffered from a seizure or epileptic attack at the time of the alleged commission of the offenses charged, and was therefore unable to control his actions at that time, that is an absolute defense to the charges brought against him and you must find the defendant not guilty."
The State's theory is that Jenkins' criminal act occurred before the seizure--that Jenkins' criminal actions were performed while he was in complete control. Thus, unfortunately, while in complete control, his actions were not guided by his knowledge that his actions would become out of control. He knew he could potentially lose physical control over his body because he had had seven prior collisions all related to or caused by seizures. It is this disregard for the danger to other motorists that the State is citing as the relevant criminal act.
The State is relying on a theory in this case that Jenkins is unable or unwilling to accept. This theory is that the act of driving knowing the propensity for seizures amounts to reckless behavior. Jenkins relies on Huser to support his position that the law of Kansas does not permit the State to use this theory. Huser does not support this position. Furthermore, other jurisdictions have accepted the theory used by the State in this case.
The court in Com. v. Cheatham, 419 Pa. Super. 603, 611-12, 615 A.2d 802 (Pa. Super. 1992), summarized the issue as follows:
"An epileptic seizure while driving and an ensuing fatal accident is an example law school textbooks use to distinguish cases in which there is no criminal culpability from those in which there is criminal responsibility. See S. Kaddish and S. Schulhofer, Criminal Law and its Processes, p. 195 (Little, Brown and Co. 1989). The case most often cited is People v. Duchenne, 2 N.Y.2d 133, 157 N.Y.S.2d 558, 138 N.E.2d 799 (1956). In that case, Duchenne killed four children when he lost control of his car during an epileptic seizure. The question before the Duchenne court was whether the evidence was sufficient to indict. Duchenne argued the state had no evidence of the mens rea required to indict for involuntary manslaughter. The New York court held that, assuming the truth of the indictment as it must on demurrer, Duchenne knew he was subject to epileptic seizures. That knowledge and the choice to drive, the court said, amounted to culpable negligence. The court distinguished Duchenne's behavior from that of a person for whom the seizure was unexpected. An unexpected attack, the court reasoned, is altogether different, suggesting a lack of criminal culpability. Cf. Malcolm v. Patrick, 147 So.2d 188, cert. denied 148 So.2d 278 (Fla. App. Div.1962) (tort liability depends on foreknowledge of epilepsy).
"The defining difference between the epileptic who drives with the knowledge that he or she is seizure prone and the unsuspecting epileptic who drives is choice. One chooses to take the risk; the other does not know he is taking the risk. The Pennsylvania Supreme Court defined criminal culpability in terms of choice in Commonwealth v. Hicks, 502 Pa. 344, 466 A.2d 613 (1983), as pertaining to drivers who know or should know that death is a probable consequence of their violations of the Motor Vehicle Code and who 'should reasonably anticipate that their conduct is likely to produce death.'"
Because the State's theory in this case was that Jenkins' criminal act took place before the seizure, the district court properly left out the requested instruction on Jenkins' purported defense.
III. EVIDENCE OF THE DEFENDANT'S PRIOR ACCIDENTS
Third, Jenkins argues the trial court erred in allowing evidence of his prior accidents. The admission of evidence lies within the sound discretion of the trial court. State v. Lumley, 266 Kan. 939, 950, 976 P.2d 486 (1999). An appellate court's standard of review regarding a trial court's admission of evidence, subject to exclusionary rules, is abuse of discretion. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. One who asserts that the court abused its discretion bears the burden of showing such abuse of discretion. 266 Kan. at 950.
Evidence of a prior crime or civil wrong is admissible to prove his or her knowledge under K.S.A. 60-455.
This court in State v. Simkins, 269 Kan. 84, 92, 3 P.3d 1274 (2000), described the general rule governing admission of evidence under K.S.A. 60-455:
"Three requirements must be met in order to introduce evidence under K.S.A. 60-455: (1) The evidence is relevant to prove one of the facts specified in the statute; (2) the fact is a disputed, material fact; and (3) the probative value of the evidence outweighs its potential prejudice. If the requirements for admission are met, the scope of appellate review is limited to whether the trial court abused its discretion. [Citation omitted.]"
Jenkins argues evidence of the prior collisions was "clearly irrelevant." Furthermore, Jenkins argues the prejudicial effect of the prior collisions outweighed what the probative value the prior collisions could have provided. The thrust of Jenkins argument is that it was unfair to prove his behavior was reckless when he was in compliance with state licensing requirements.
The trial court did not abuse its discretion in admitting evidence of Jenkins' prior collisions. The prior collisions were relevant because they demonstrated Jenkins' knowledge through a pattern of accidents. The State had the burden to prove to the jury Jenkins drove realizing the imminence of danger to other motorists. See K.S.A. 21-3201(c). This burden was satisfied by proof of the prior collisions, which Jenkins admitted were caused by seizures.
Jenkins also argues that the trial court erred in failing to instruct the jury as follows:
"It is a defense to the charge made against the defendant if the defendant reasonably believed that his conduct did not constitute a crime and the defendant acted in reliance upon an official interpretation of th