State v. Burket

1

NOT DESIGNATED FOR PUBLICATION

No. 117,821

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CASEY M. BURKET,
Appellant.

MEMORANDUM OPINION


Appeal from Saline District Court; JARED B. JOHNSON, judge. Opinion filed September 7, 2018.
Affirmed.

Julie McKenna, of McKenna Law Office, P.A., of Salina, for appellant.

W. Brad Sutton, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt,
attorney general, for appellee.

Before GREEN, P.J., PIERRON and BUSER, JJ.

PER CURIAM: Casey M. Burket appeals his convictions for driving under the
influence (DUI) and transporting liquor in an open container. He argues the district court
erred in denying his motion to suppress because the officer who stopped him did not have
reasonable suspicion. He also contends the district court erred in admitting a beer can and
photographs of beer cans into evidence because the labels were inadmissible hearsay. We
affirm.

Around 6 p.m. on May 27, 2016, Trooper Cole McGee of the Kansas Highway
Patrol was eastbound on Pacific Avenue, waiting to turn left onto Third Street in Salina.
He noticed a Chevy Suburban stopped in the westbound lane of Pacific. The Suburban
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had the right-of-way, and McGee saw no reason for the Suburban to be stopped. The
driver of the Suburban waved McGee on, and McGee turned left.

As he was turning left, McGee saw that the Suburban's front passenger did not
have his seatbelt fastened. According to McGee, the passenger was leaning forward. This
made it easy for him to see that the passenger's seatbelt was not across his chest. McGee
could also see the straps hanging from the "B-pillar, which is where the seat belt hangs
from."

McGee turned around and made a traffic stop. He identified the Suburban's driver
as Burket. McGee told Burket the reason for the stop. Burket responded that his
passenger, Shawn League, was not wearing the seatbelt correctly. League had the seatbelt
on, but it was behind his back.

While talking to Burket, McGee noticed a "very strong" odor of alcohol coming
from the Suburban. Burket had slurred speech, and some of his answers did not make
sense. He also fumbled with his insurance card. McGee looked inside the Suburban and
saw several beer cans, some of which were open.

After Burket submitted to the standard field sobriety tests and a preliminary breath
test, McGee arrested him for DUI. Before leaving the scene of the stop, McGee took
photos of the cans inside the car. He noted 16 open containers. McGee took the open
containers and noticed that some still had liquid inside of them. The liquid smelled like
alcohol and "had the brown tint that beer usually has." An unopened beer can also sat
between the driver's seat and the front passenger seat. That can was still cold and
sweating.

The State charged Burket with one count of driving under the influence under
K.S.A. 2015 Supp. 8-1567, and one count of transportation of liquor in an open container
under K.S.A. 2015 Supp. 8-1599.
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Before trial, Burket moved to suppress the results of his breath test. He argued
McGee did not have reasonable suspicion for the traffic stop. The district court held a
hearing on Burket's motion.

At the hearing, League testified he had put his seatbelt on when he first got into
the Suburban. He always wore his seatbelt when he rode with Burket, because Burket
would not start the car until League had fastened his seatbelt. The seatbelt was properly
fastened when McGee stopped them. League explained that the seatbelt comes out of the
seat's right shoulder, so it would not have been dangling even if he had not fastened it.

League said that Burket stopped at the intersection for safety. There was a bus
stopped in front of them, and McGee was in the other lane. Because of this, Burket did
not have enough room to continue through the intersection.

Burket testified he never starts his car until his passengers have fastened their
seatbelt. He explained the passenger seatbelt came out of the seat itself and had a
retractable spring so it went into the seat when not worn. Burket stated League puts the
seatbelt under his right arm.

Burket said he stopped at the intersection because he did not believe it was safe to
continue driving. A bus had stopped on the side of the road, and McGee was in the other
lane. He did not think his Suburban could fit between the bus and McGee's patrol car, so
he let McGee turn left first. He was not in the intersection when he stopped. McGee never
told Burket he had committed a traffic violation by stopping and letting McGee turn first.
McGee did talk to League about the seatbelt.

McGee testified that there were no adverse weather conditions that day. He did not
remember a bus being in that area. He also did not remember if the road was wide enough
that a Suburban could pass between two other vehicles.
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The video from McGee's patrol car showed it was still light outside at the time of
the stop. The video from McGee's windshield showed a bus heading the opposite
direction of McGee's patrol car. The bus had its hazard lights on as it passed McGee. The
bus did not reappear in the video from McGee's rear window. Burket's Suburban then
stopped before the intersection for a few seconds, and Burket motioned for McGee to
make his turn.

The district court held that McGee had reasonable suspicion to stop Burket's car
on two bases. First, McGee had reasonable suspicion to stop Burket because League had
not properly fastened his seatbelt. The court noted that McGee could see that League was
not wearing his seatbelt properly during the turn. The court held that because the seatbelt
went behind League's shoulder, McGee could have reasonably believed that the seatbelt
was dangling from the B-pillar.

Second, the district court found that McGee had reasonable suspicion that Burket
was violating the law by stopping in the street. The court noted that Burket was not
breaking the law, because he had to stop to avoid hitting the bus or McGee. But the court
held, "I do find that that was a reasonable mistake of fact and law, namely law, by
[McGee], and that would not negate his reasonable suspicion to conduct the stop."

McGee and League both testified at the jury trial. During McGee's testimony, the
State entered a can and photos of the cans in Burket's car into evidence. Burket objected,
arguing the labels on the cans were hearsay and not relevant because the State had not
established whether there was beer inside it. The district court denied Burket's relevancy
objection, finding it went to weight and not admissibility.

The court also denied the hearsay objection:

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"As to the hearsay I've reviewed . . . [State v. Gubbels, No. 96,431, 2007 WL 2580501
(Kan. App. 2007) (unpublished opinion)]. It's an unpublished opinion. Interestingly
enough it does indicate that the label on a beer bottle is hearsay and that it would need to
fit within the hearsay exception under Kansas statutes. We can dispense with the
confrontation clause issue that was referenced by [defense counsel] because this is not
testimonial evidence. It is not litigation or any type of criminal charges. Simply imprinted
by label, imprinted writing on a metal can that's silver and the color of the writing is red
and white with some graphics and other normal indicia of alcohol and beer. Quite frankly
I just disagree with [Gubbels]. It's unpublished.
. . . .
"And I find the result to not be on point with the issue of hearsay. Specifically the
idea of hearsay is for the legislature to craft provisions that would protect the integrity of
evidence essentially by ensuring reliability and having certain situations where that could
be ensured in admitting it based on those type[s] of very narrowly tailored exceptions.
This is an actual physical item. It is not being offered to prove the truth of the matter
asserted just based on writing. The jury has the can that appears to be a similar shape and
size of a beer can, it's silver, it has a tab opening, the tab is removed, the writing on it is
normal reliable indicia of a beer manufacturer and everyone in this room can agree that
alone is insufficient for a conviction of possession of alcohol or transporting alcohol in an
open container. . . ."

Defense counsel later presented League with the can admitted as State's Exhibit
#1. League identified it as a beer can. He also testified there were beer and pop cans in
the back of Burket's car. League explained that Burket collected cans and tabs for
recycling.

The jury convicted Burket of DUI and transporting an alcoholic beverage in an
open container. The district court sentenced him to 6 months in jail, but suspended that
sentence and placed Burket on 12 months' probation. Burket appeals.

On appeal, Burket argues the district court erred in denying his motion to
suppress. He contends that neither he nor League were violating any law when McGee
drove past. For this reason, McGee could not have had reasonable suspicion.
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We use a bifurcated standard when reviewing a district court's decision on a
motion to suppress. We review the district court's fact-findings to determine whether
substantial competent evidence supports them. In reviewing these fact-findings, we do
not reweigh the evidence or assess the credibility of witnesses. We review the district
court's ultimate legal conclusion using a de novo standard. State v. Patterson, 304 Kan.
272, 274, 371 P.3d 893 (2016).

When reviewing traffic stops, we must determine if the officer had reasonable
suspicion for the stop.

"The Fourth Amendment to the United States Constitution guarantees '[t]he right
of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures . . . .' See also Kan. Const. Bill of Rights § 15. A
traffic stop is considered a seizure of the driver. State v. Thompson, 284 Kan. 763, 773,
166 P.3d 1015 (2007). To comply with the Fourth Amendment, the officer conducting the
stop 'must '''have a reasonable and articulable suspicion, based on fact, that the person
stopped has committed, is committing, or is about to commit a crime.' [Citation
omitted.]"' 284 Kan. at 773.
"Reasonable suspicion is a lower standard than probable cause. 'What is
reasonable depends on the totality of circumstances in the view of a trained law
enforcement officer.' State v. Martinez, 296 Kan. 482, 487, 293 P.3d 718 (2013). In
determining whether reasonable suspicion exists, the court must:
"'[J]udge the officer's conduct in light of common sense and ordinary human
experience. [Citation omitted.] "Our task . . . is . . ." . . . to determine whether the totality
of the circumstances justify the detention. [Citation omitted.] We make our determination
with deference to a trained law enforcement officer's ability to distinguish between
innocent and suspicious circumstances, [citation omitted], remembering that reasonable
suspicion represents a "minimum level of objective justification" which is "considerably
less than proof of wrongdoing by a preponderance of the evidence." [Citations omitted.]'
296 Kan. at 487." City of Atwood v. Pianalto, 301 Kan. 1008, 1011, 350 P.3d 1048
(2015).

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A passenger's failure to wear a properly fastened seatbelt when the car is in motion
violates Kansas law. K.S.A. 2017 Supp. 8-2503(a)(1). Stopping a car on a two-way
roadway when the car's right-hand wheels are more the 12 inches from the right-hand
curb also violates Kansas law. K.S.A. 8-1572; see also K.S.A. 8-1472 ("'Stop' or
'stopping' when prohibited means any halting, even momentarily, of a vehicle, whether
occupied or not, except when necessary to avoid conflict with other traffic or in
compliance with the directions of a police officer or traffic-control sign or signal."). An
officer's observation of a traffic violation may provide reasonable suspicion for a traffic
stop. State v. Moore, 283 Kan. 344, 350, 154 P.3d 1 (2007).

At the district court level, Burket argued that League had properly fastened his
seatbelt, so McGee could not have reasonable suspicion on that basis. On appeal, Burket
does not contest that League was not wearing his seatbelt properly. Instead, he argues that
the car was not in motion when McGee saw League's seatbelt was not properly fastened.
He contends League was not violating the statute, because the car was not in motion.

Burket raises this argument for the first time on appeal without explaining why we
should address it. He has thus waived and abandoned this argument. See State v. Godfrey,
301 Kan. 1041, 1044, 350 P.3d 1068 (2015). That said, neither party disputes that
Burket's car was not in motion when McGee drove past. Because this fact is undisputed,
the determination of whether McGee had reasonable suspicion is only a question of law
which we may address for the first time on appeal. See State v. Thurber, 308 Kan. 140,
153, 420 P.3d 389 (2018); State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014).

Burket is perhaps correct that League was not violating the law at the exact
moment McGee saw him. But the standard of reasonable suspicion requires only that a
trained officer would reasonably suspect, based on articulable facts, that a person has
committed, is committing, or is about to commit a crime. See Pianalto, 301 Kan. at 1011.
Because Burket stopped only momentarily, McGee could reasonably suspect that League
did not unfasten and refasten his seatbelt during that brief time. This is particularly so
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because McGee did not report seeing League unfasten his seatbelt after the car stopped.
McGee thus had reasonable suspicion that League had committed or was about to commit
a violation of K.S.A. 2017 Supp. 8-2503(a). See State v. Martynowicz, No. 109,056,
2013 WL 5303557, at *4 (Kan. App. 2013) (unpublished opinion) (finding officer had
reasonable suspicion for traffic stop after seeing driver and passenger without seatbelts on
while stopped at an intersection).

The district court found that McGee had reasonable suspicion to stop Burket
because Burket was stopped in the road. The court noted that Burket had not committed a
traffic violation because he needed to stop to avoid the bus. But the court found that
McGee made a reasonable mistake of law when he determined that Burket stopped
illegally.

As a point of clarification, Burket argued at the district court level, and again
argues on appeal, that he did not violate K.S.A. 8-1571. That statute prohibits stopping or
parking a car in some locations "[e]xcept when necessary to avoid conflict with other
traffic." But McGee did not cite Burket for violating K.S.A. 8-1571. Instead, he cited
Burket for violating K.S.A. 8-1572. That statute requires that any car stopped or parked
on a two-way roadway be within 12 inches of the right-hand curb. K.S.A. 8-1572.

K.S.A. 8-1572 does not expressly provide an exception for stopping to avoid
traffic. That said, the Uniform Act Regulating Traffic defines stopping as "any halting,
even momentarily, of a vehicle, whether occupied or not, except when necessary to avoid
conflict with other traffic or in compliance with the directions of a police officer or
traffic-control sign or signal." K.S.A. 8-1472. Burket lawfully stopped his car to avoid
the bus in front of him.

Burket reasons that because he stopped legally, McGee could not have had
reasonable suspicion he had stopped illegally. But the district court found that although
Burket was legally stopped, this did not negate McGee's reasonable suspicion because
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McGee had made a reasonable mistake of law. Burket does not address this point in his
brief, so he has waived and abandoned any argument that the district court erred in
finding so. See State v. Williams, 303 Kan. 750, 758, 368 P.3d 1065 (2016).

Still, the district court was correct that reasonable suspicion can arise based on an
officer's reasonable mistake of fact or law. See Pianalto, 301 Kan. at 1013. Because
either a reasonable mistake of fact or law may support reasonable suspicion, it may seem
unnecessary to characterize the officer's mistake as one or the other. But a mistake's
characterization can affect the analysis on whether that mistake was objectively
reasonable. 301 Kan. at 1014. The correct characterization of McGee's mistake is thus a
threshold determination.

Here, the district court determined McGee made a mistake of law rather than fact.
While the facts here do "have a flavor of both a mistake of fact and one of law," McGee's
mistake may best be categorized as one of fact. See Pianalto, 301 Kan. at 1015. McGee
was not mistaken that Burket could legally stop if necessary to avoid hitting the bus; he
was mistaken when he testified that the bus was not there. See 301 Kan. at 1014-15; State
v. Miller, 49 Kan. App. 2d 491, 496, 308 P.3d 24 (2013) (holding officer made mistake of
fact because he "wasn't mistaken that it would have been illegal for [the defendant] to go
around those officers [blocking traffic from entering an interstate]; he was mistaken
factually that those officers were still in place").

While the district court may have incorrectly characterized McGee's mistake as
one of law, we may still uphold the district court's decision if right for the wrong reasons.
See Phillips, 299 Kan. at 493. We must therefore determine if McGee's mistake of fact
was objectively reasonable. Here, facts support both sides of the argument. On the one
hand, the bus drove past McGee with its hazard lights on seconds before McGee saw
Burket stopped in the road. On the other hand, the bus stopped behind McGee, and
McGee testified he did not know about the bus. This is a close call, but McGee's mistake
was a reasonable one. McGee said he did not know about the bus, and the stopped bus
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was not in his direct line of sight. If, however, McGee had testified he knew about the bus
stop or Burket had stopped closer to the bus, the outcome might be different.

Next, Burket argues the district court erred in admitting a beer can and
photographs of beer cans into evidence because the labels on the cans were hearsay. The
standard of review for the admission or exclusion of evidence depends on the level of
discretion that the district court exercises in deciding whether to admit the evidence. State
v. Bowen, 299 Kan. 339, 348, 323 P.3d 853 (2014). If the issue on appeal is a challenge
to the district court's legal basis for the admission or exclusion of evidence, the appellate
standard of review is de novo. 299 Kan. at 348-49. Burket is claiming the district court
had no legal basis to admit the hearsay statements on the labels, so our standard of review
is de novo.

Hearsay evidence is "[e]vidence of a statement which is made other than by a
witness while testifying at the hearing, offered to prove the truth of the matter stated."
K.S.A. 2017 Supp. 60-460. Hearsay evidence is generally inadmissible unless it falls
within a recognized exception. K.S.A. 2017 Supp. 60-460. For hearsay, a statement may
be oral, written, or nonverbal conduct intended as a substitute for words in expressing the
matter stated. K.S.A. 60-459(a).

Burket cites State v. Gubbels, 2007 WL 2580501, to support his argument. The
district court convicted Gubbels of transporting an open container at a bench trial. On
appeal, Gubbels argued the court erred in admitting into evidence the police officer's
testimony about the labels on the open containers. The Gubbels court held that the label
on a container of alcohol is hearsay if admitted to prove the contents of the container.
2007 WL 2580501, at *2.

Ultimately, the Gubbels court found that alcohol labels do not fall within a hearsay
exception. 2007 WL 2580501, at *3. The court explained,

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"We believe that it would be stretching the hearsay exception in Kansas to say that the
labels on alcohol bottles are 'a list, register, periodical or other published compilation' and
are exceptions to the hearsay law. Therefore, we do not believe that the exception applies
to the bottle labels even though alcoholic beverages are also subject to Kansas and federal
laws." 2007 WL 2580501, at *3.

Here, the district court disagreed with Gubbels, and found that the label on a can is
not hearsay. Because Gubbels is an unpublished opinion, it is not binding precedent. The
district court did not necessarily err in declining to follow it. See Supreme Court Rule
7.04(g)(2)(A) (2018 Kan. S. Ct. R. 45).

Even so, it is impossible to determine definitively if the district court did err in
admitting the can and photos of the cans. The record here does not include the challenged
exhibits, nor did Burket request their addition. And no one testified as to what the
statements on the label were. Burket was responsible for providing a record showing
prejudicial error. State v. Sisson, 302 Kan. 123, 128, 351 P.3d 1235 (2015). Without the
exhibits or some proffer of their content, we must presume the district court did not err.
302 Kan. at 128; see State v. Bishop, 264 Kan. 717, 726, 957 P.2d 369 (1998) (finding
defendant could not prove district court committed reversible error in admitting
document that was not an original because defendant had not included document in
record); State v. Wood, 196 Kan. 599, 606, 413 P.2d 90 (1966) (declining to address
argument that testimony was hearsay when testimony was not in record).

Even if the district court had erred in admitting the exhibits, any error was
harmless. Burket argues that the exhibits were necessary to show that the cans contained
beer and not cereal malt beverage. He contends that transporting an open container of
cereal malt beverage does not violate K.S.A. 2017 Supp. 8-1599. But Burket is wrong on
this point.

K.S.A. 2017 Supp. 8-1599(b) prohibits transporting any alcoholic beverage in any
vehicle on a highway or street. This statute defines alcoholic beverage as "any alcoholic
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liquor, as defined by K.S.A. 41-102 . . . or any cereal malt beverage, as defined by K.S.A.
41-2701." K.S.A. 2017 Supp. 8-1599(b). The plain language of the statute shows the jury
could have convicted Burket for transporting an open container of alcoholic liquor,
including beer, or cereal malt beverage. See K.S.A. 2017 Supp. 41-102(b), (c), (e);
K.S.A. 2017 Supp. 41-2701(a).

The State presented sufficient evidence, other than the labels, that the cans had
alcohol in them. McGee testified the cans still had liquid in them when he stopped
Burket. He stated the liquid smelled like alcohol and had the same brown tint as beer.
League also testified that the can admitted into evidence was a beer can and that Burket
had beer cans in his car. As a result, any error in admitting the challenged exhibits was
harmless. See Gubbels, 2007 WL 2580501, at *3-4 (finding any error in admitting bottle
labels was harmless because officer's and defendant's testimonies were sufficient to prove
the bottles had alcohol in them).

Affirmed.