State v. Craven

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NOT DESIGNATED FOR PUBLICATION

No. 119,656

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

GLENN CRAVEN,
Appellant.


MEMORANDUM OPINION

Appeal from Johnson District Court; BRENDA M. CAMERON, judge. Opinion filed July 5, 2019.
Affirmed.

Michael Page Jr., of Olathe, for appellant.

Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before SCHROEDER, P.J., GREEN and POWELL, JJ.

PER CURIAM: Glenn Craven appeals the denial of his motion to suppress evidence
resulting in his convictions for driving under the influence (DUI), possessing a firearm
under the influence of alcohol or drugs, and transporting an open container. He argues the
law enforcement officer lacked reasonable suspicion to request he perform a preliminary
breath test (PBT) and probable cause to arrest him. Accordingly, he claims the district
court should have suppressed the evidence supporting his DUI arrest. Upon review of the
record, we disagree with Craven. We affirm.

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FACTS

In April 2017, Olathe Police Officer John Forcier responded to a call from an
AT&T store. The store's employees advised dispatch a man who smelled of alcohol
entered the store, acted upset, swore, and caused a scene. The employees observed the
man leave the store and get in a silver Toyota Tacoma, and they gave police the license
plate number. After Forcier arrived on the scene, he located the vehicle directly in front
of the AT&T store.

Forcier observed the vehicle's engine was running and its daytime running lights
were on. Forcier found Craven sitting in the driver's seat of the vehicle talking on the
phone. Forcier contacted Craven and obtained his driver's license. Forcier returned to his
patrol vehicle to run a record's check and to wait for a backup officer. Forcier returned to
Craven and requested Craven perform field sobriety tests. Craven, upon questioning,
admitted he drank one beer that day. Forcier noted Craven appeared unsteady on his feet
when exiting the vehicle as well as appearing slow in walking with officers to an open
area a short distance away. Craven informed Forcier he had injured his back several
months before and that he had prescription medication for this condition.

Forcier began administering several field sobriety tests. He administered the
horizontal-gaze nystagmus test and smelled alcohol. Next, Forcier had Craven perform
the walk-and-turn test. Forcier later testified on the walk-and-turn test two or more clues
of impairment indicate the person has a blood-alcohol content (BAC) over the legal limit
of .08. Craven showed five clues, including loss of balance during the instruction phase,
beginning the test too soon, taking an incorrect number of steps, making an improper
turn, and failing to touch heel-to-toe on one of his steps. Craven next performed the one-
leg-stand test. Two clues of impairment on this test indicate a BAC over the legal limit.
Craven exhibited one clue of impairment: swaying while performing the test.

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Next, because Craven mentioned taking pain medication, Forcier had Craven
perform the "Romberg" test, which tests for drug impairment. The Romberg test does not
entail validated clues for alcohol impairment and it is not a standard field sobriety test.
Forcier observed Craven swaying and tremors in his eyelids, which are possible
indications of drug use.

Based upon the totality of these circumstances, Forcier determined Craven was
impaired and should not be driving. Forcier asked Craven to submit to a PBT, but Craven
refused. At this point, Forcier arrested Craven. Craven's BAC breath test at the police
station registered .144. After Craven's arrest, officers searched his vehicle and found a
loaded handgun in the door pocket and an open container of beer. The State charged
Craven with DUI, possession of a firearm while under the influence of alcohol or drugs,
and transporting an open container.

Craven filed a motion to suppress the evidence gathered following his arrest;
however, the motion is not included in the record on appeal. The district court held
hearings on the motion on November 2, 2017, and January 3, 2018. Forcier testified and
the State played the video from Forcier's in-car camera. The video is not included in the
record on appeal. The district court found Forcier's personal observations and the results
of the field sobriety tests provided reasonable suspicion to request the PBT and probable
cause to arrest Craven. The district court denied the motion to suppress.

At a bench trial based on stipulated facts, the district court found Craven guilty on
all counts.

ANALYSIS

On appeal, Craven argues Forcier lacked reasonable suspicion to believe he was or
had been attempting to operate his vehicle under the influence of alcohol or drugs.
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Because the district court found otherwise in denying his motion to suppress, Craven
asserts this was error.

The standard of review for a district court's decision on a motion to suppress has
two parts. First, the appellate court reviews the district court's factual findings to
determine whether they are supported by substantial competent evidence. Next, the
appellate court reviews the district court's ultimate legal conclusion under a de novo
standard. State v. Hanke, 307 Kan. 823, 827, 415 P.3d 966 (2018). Whether reasonable
suspicion exists is a question of law to which the appellate court applies the same
standard of review. City of Wichita v. Molitor, 301 Kan. 251, 264-65, 341 P.3d 1275
(2015). Substantial competent evidence is that which possesses both relevance and
substance and which furnishes a substantial basis in fact from which the issues can
reasonably be resolved. State v. Sharp, 289 Kan. 72, 88, 210 P.3d 590 (2009).

If a law enforcement officer has reasonable suspicion to believe a person has been
operating or attempting to operate a vehicle while under the influence of alcohol or drugs
or both alcohol and drugs, the officer may request the person submit to a PBT. K.S.A.
2018 Supp. 8-1012(b). Whether the officer has the statutorily required reasonable
suspicion to request a PBT is determined by examining the totality of the circumstances
which existed at the time of the request. The driver's performance on field sobriety tests
occurring before the PBT must be included in the officer's totality of circumstances
examination. Molitor, 301 Kan. at 265. In exercising the totality of circumstances test for
reasonable suspicion, an appellate court should not assess each factor or piece of
evidence in isolation. The court must fully integrate potential exculpatory evidence into
its totality of the circumstances calculus. 301 Kan. at 265-66.

The district court denied the motion to suppress because Forcier had reasonable
suspicion to request the PBT and probable cause to arrest Craven. The district court
found Craven had either driven or was attempting to drive his vehicle because the engine
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was running, the running lights were on, and Craven was the only one in the vehicle. The
district court noted AT&T employees reported Craven smelled of alcohol while in their
store and they called police because they believed he was intoxicated. Additionally, the
district court mentioned Craven admitted he had a beer and was "slow and unsteady."
Regarding the field sobriety tests, the district court referenced the police video and
Forcier's testimony, finding Craven lacked balance and he showed five of eight clues of
intoxication during the walk-and-turn test. The court also found Craven showed one clue
for intoxication from the one-leg-stand—Craven swayed during the test.

Craven argues the district court ignored exculpatory evidence when it denied his
motion to suppress, thereby violating the rule set forth in Molitor which requires
integration of both inculpatory and exculpatory evidence in the totality of the
circumstances calculations. See 301 Kan. at 265-66. Craven supports this argument by
stating he "submitted to three field sobriety tests, performing satisfactorily on two of the
three tests." Additionally, he says the totality of the circumstances required the district
court to consider his recent back surgery and no witnesses having testified to actually
witnessing his unsafe operation of the vehicle. This forms the basis of Craven's argument
on appeal, and it raises the question of whether the district court overlooked or gave
inadequate consideration to evidence Craven believes to be exculpatory. However, when
factored into a totality of the circumstances analysis, this evidence does not change the
outcome of Craven's motion being denied.

Our Supreme Court recognizes field sobriety tests as providing an objective
analysis of whether a driver's blood alcohol content is over the legal limit, and viewing
results of these tests in conjunction with an officer's subjective observations provides the
basis for a totality of the circumstances evaluation. See Molitor, 301 Kan. at 266-68.
After smelling alcohol on Craven, Forcier administered three additional tests to Craven—
the walk-and-turn test, one-leg-stand test, and the Romberg test. Forcier noted five out of
eight clues of impairment on the walk-and-turn test which, based on his training,
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indicated an impairment over the legal limit. On the one-leg-stand-test, Craven exhibited
one of four clues. The Romberg test is used to test for drug impairment and is not a
standard field sobriety test. In applying this test, Forcier did not look for validated clues
of impairment but rather applied it because Craven mentioned having a prescription for
medication following recent back surgery.

Although Craven on appeal asserts he performed satisfactorily on two of three
field sobriety tests, realistically, only two of the tests were for alcohol impairment. The
Romberg test was not used to assess Craven's alcohol use. This leaves the walk-and-turn
test and one-leg-stand test as objective assessments of his alcohol impairment level, and
Forcier testified to viewing these tests in totality with one another to evaluate Craven's
possible impairment. The tests themselves are not evaluated using a pass or fail standard
but rather are looked at to establish validated clues of impairment. Even conceding
Craven performed satisfactorily on the one-leg-stand test, he still exhibited fives clues of
impairment on the walk-and-turn test, and no single test's results should be viewed in
isolation. See 301 Kan. at 265-66. The record reflects both Forcier and the district court
took the results of all the tests into account in their totality of the circumstances analysis
as required by Molitor. See 301 Kan. at 265.

Contrary to Craven's claims, Forcier possessed sufficient information prior to the
field sobriety tests indicating Craven had operated or was about to operate his vehicle
while under the influence of drugs or alcohol. Employees at the AT&T store reported
Craven smelled of alcohol and caused a scene. When Forcier arrived at the store to
investigate, he linked the vehicle matching the employees' description in the parking lot
with Craven in the driver's seat. The engine was running and the daytime running lights
were on. During the initial part of their encounter, Craven told Forcier he had one beer.
Viewing these prior events in conjunction with the results of the field sobriety tests
results in both subjective and objective observations Craven was impaired. See 301 Kan.
at 266-68.
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The other two potentially exculpable factors mentioned by Craven on appeal—his
recent back surgery and lack of any witness testimony of unsafe operation of his
vehicle—do not change the totality of circumstances calculation. Craven's brief provides
no elaboration of how or why these assertions would defeat Forcier's observations and the
district court's findings.

Craven's recent back surgery and prescription for medication were taken into
account by Forcier when he administered the Romberg test. The Romberg test is for drug
impairment, not alcohol impairment. Forcier administered it looking for clues of drug
impairment. At the point he applied the Romberg test, Forcier testified to taking into
account the odor of alcohol, admission of drinking alcohol, possible use of prescription
medication, five of eight clues on the walk-and-turn test and one of four clues on the one-
leg-stand test. The totality of the other clues formed the basis to arrest Craven.

Craven also asserts the fact no witnesses testified to seeing him unsafely operate
his vehicle. This assertion lacks relevance. Forcier only needed reasonable suspicion to
believe Craven attempted to operate his vehicle while under the influence to request the
PBT. See K.S.A. 2018 Supp. 8-1012(b). Forcier's observation Craven was sitting in the
driver's seat in his vehicle with the engine running and daytime running lights on was
sufficient to constitute attempting to operate the vehicle. A second witness would be
unnecessary. Circumstantial evidence supports the fact he had been and was about to
operate his vehicle. Even the gravest of crimes can be supported by circumstantial
evidence. State v. Darrow, 304 Kan. 710, 716, 374 P.3d 673 (2016).

To arrest a person for driving while intoxicated, an officer must possess probable
cause. Sloop v. Kansas Dept. of Revenue, 296 Kan. 13, 20, 290 P.3d 555 (2012). Probable
cause means a reasonable belief that a specific crime has been or is being committed and
that the defendant committed the crime. 296 Kan. at 20. To form probable cause, Forcier
was not required to establish guilt beyond a reasonable doubt or even prove guilt is more
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probable than not. 296 Kan. at 20. It is sufficient if the information leads a reasonable
officer to believe guilt is more than a possibility. 296 Kan. at 20. Based on Forcier's
observations, he had both reasonable suspicion and probable cause to believe Craven was
about to commit a crime by operating or attempting to operate his vehicle while
intoxicated. Given the totality of the circumstances, the district court did not err in
denying the motion to suppress.

Affirmed.