State v. Klein

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NOT DESIGNATED FOR PUBLICATION

No. 119,004


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

RONNI KLEIN,
Appellant.


MEMORANDUM OPINION

Appeal from Johnson District Court; JAMES CHARLES DROEGE, judge. Opinion filed August 2,
2019. Affirmed.

Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.

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

Before ARNOLD-BURGER, C.J., ATCHESON, J., and BURGESS, S.J.

PER CURIAM: In a bench trial, the Johnson County District Court found Defendant
Ronni Klein guilty of driving under the influence, a felony violation of K.S.A. 2016
Supp. 8-1567 because of her past convictions. On appeal, Klein contends the State
presented insufficient evidence to support the guilty finding. Given our standard of
review calling for an evaluation of the evidence deferential to the fact-finder's conclusion,
we affirm. The evidence, though largely circumstantial, was sufficient to establish Klein's
guilt.
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FACTUAL AND PROCEDURAL HISTORY

Both at trial and on appeal, the critical issue was whether Klein attempted to or did
operate a motor vehicle. Nobody has seriously disputed that Klein was intoxicated when
Shawnee Police Officer Kassie Taulbert confronted and arrested her or that a breath test
showed her to be well over the legal limit. We recount the evidence in that light.

About 8:15 p.m. on Halloween 2016, Taulbert was dispatched to investigate a
report of a drunk driver leaving Pegah's restaurant in Shawnee. The dispatcher identified
the vehicle involved as a black Infiniti.

As Taulbert passed a convenience store and gas station on the way to the
restaurant, she saw a black Infiniti with the engine running parked in front of the store.
Taulbert parked in the lot and walked toward the Infiniti. Klein then came out of the
building and got into the driver's seat of the Infiniti. At trial, Taulbert testified that she
saw Klein reach toward a center console and place her hand on the gearshift. At almost
the same time, Taulbert knocked on the driver's side window. Taulbert testified that Klein
stopped and never shifted the Infiniti out of park. While being cross-examined during the
trial, Taulbert acknowledged that at the preliminary hearing she described Klein as
reaching for a gearshift on the steering column.

In response to Taulbert's knock, Klein either rolled down the window or opened
the door and said, "I'm sorry, I'm driving for him because he can't." Klein indicated she
was referring to Luke Gates, who had been sitting in the front passenger seat.

Taulbert noted that Klein had a strong odor of alcohol on her breath and displayed
physical indicators of intoxication. In response to a question, Klein said she had drunk
two beers, identifying the brand, about four hours earlier and quickly added that she also
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had a shot of whiskey. According to Taulbert, Klein performed poorly on several tests to
measure her mental acuity and physical coordination.

Taulbert arrested Klein at the convenience store and transported her to the local
police station. Klein agreed to take an evidentiary breath test on an Intoxilyzer 9000. The
test was administered at 9:35 pm. and showed Klein had a blood-alcohol concentration of
.20.

Taulbert later questioned Klein after advising her of her Miranda rights. See
Miranda v. Arizona, 384 U.S. 436, 479, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Klein
told Taulbert she did all of her drinking at home between 11 a.m. and 6:45 p.m. and then
drove to the restaurant. Klein also said she planned to drive home from the convenience
store. During the trial, Taulbert initially testified that Klein said she drove from the
restaurant to the convenience store but later hedged on the clarity of the admission. On
direct examination, Taulbert testified this way:

"Q. Did you ask Ms. Klein if she had driven that vehicle?
"A. I did.
"Q. And what did she have to say?
"A. She stated that she did drive the vehicle.
"Q. Did she mention when or kind of where she was driving the vehicle?
"A. That they went to Pegah's at 5354 Roberts.
"Q. Did she say how they got from Pegah's to that gas station?
"A. That she was driving the vehicle."

But on cross-examination, Taulbert testified:

"Q. Okay. Let's talk about the questioning at the station. . . . [Y]ou asked her if
she had been operating the vehicle; right?
"A. Yes.
"Q. But you didn't ask her what time?
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"A. Not to my recollection.
"Q. Okay. And you said that she had admitted that she was driving from Pegah's
to the gas station?
"A. She stated she was driving home.
"Q. Okay. So you didn't ask the specific question of did you leave Pegah's and
drive to the gas station?
"A. No."

The State charged Klein with operating or attempting to operate a motor vehicle in
violation of K.S.A. 2016 Supp. 8-1567 based on her blood-alcohol level as tested within
three hours afterward or, alternatively, based on evidence showing she was incapable of
safely doing so. Under K.S.A. 2016 Supp. 8-1567, an attempt to drive is treated the same
as actually driving under the influence. They carry identical punishments and both count
as past convictions in fixing the statutory punishment for a repeat offender.

Klein gave up her right to a jury trial, and the district court heard the case on
September 19, 2017. The State's case principally rested on Taulbert's testimony. Klein did
not testify in her own defense. At the conclusion of the evidence, the district court found
Klein guilty of attempting to operate and, alternatively, actually operating the Infiniti in
violation of K.S.A. 2016 Supp. 8-1567.

At a later hearing, the district court denied Klein's motion for new trial and
sentenced Klein to a 12-month jail term but released her on probation because she had
been in custody for 134 days awaiting trial. The district court fined Klein $1,750, the
minimum amount required for a third conviction. Klein has appealed.

LEGAL ANALYSIS

On appeal, Klein challenges the sufficiency of the evidence supporting her
conviction. The standard of appellate review is well established. An appellate court
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examines the evidence presented at trial in a light most favorable to the prevailing party,
here the State, and then determines whether that evidence is sufficient to permit a rational
fact-finder to conclude that the defendant committed the charged offense beyond a
reasonable doubt. In assessing the evidence, an appellate court does not reweigh
evidence, resolve conflicts in the evidence, or pass on the credibility of witnesses.
Circumstantial evidence may provide the basis for a conviction so long as the inferences
drawn from the circumstances are reasonable. State v. Lowery, 308 Kan. 1183, 1236, 427
P.3d 865 (2018).

Broadly speaking, the State must prove two elements under K.S.A. 8-1567 to
convict a defendant of DUI: (1) operating or attempting to operate a motor vehicle; and
(2) being under the influence of alcohol, drugs, or both, consistent with any of several
statutory criteria. See State v. Ahrens, 296 Kan. 151, 160-61, 290 P.3d 629 (2012).
Operating refers to the essential function of a motor vehicle in moving the driver and any
passengers or cargo from one place to another. The term is the equivalent of driving. 296
Kan. at 160 (characterizing that element of K.S.A. 8-1567 as "driving"). So sitting in a
parked car with the engine running and the heater on or the stereo blasting is not itself
operating the vehicle for purposes of K.S.A. 8-1567. An attempt to operate requires the
defendant to do something immediately proximate and preparatory to driving. Shifting a
vehicle from park to drive with the engine running would be an example. Unlocking the
car door to sit in the driver's seat would not.

The intoxication element may be proved by showing the driver was incapable of
safely driving a motor vehicle because of his or her consumption of alcohol, drugs, or
some combination of those inebriants. That's, perhaps, the most elemental form of DUI.
But the Legislature has adopted two proxies for intoxication that are legally sufficient to
support a conviction if the driver is otherwise operating or attempting to operate a
vehicle: (1) having a blood or breath alcohol concentration of .08 or greater at the time of
operation; or (2) having a blood or breath alcohol concentration of .08 or greater within
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three hours after operation. K.S.A. 2016 Supp. 8-1567(a)(1)-(2). Those standards do not
require the State to prove the inability to operate the vehicle safely—simply exceeding
the proscribed alcohol level is enough. See Ahrens, 296 Kan. at 160.

In this appeal, both sides look primarily at whether the evidence sufficiently
supported the district court's decision that Klein attempted to operate the Infinti while
under the influence based on the circumstances Taulbert observed in the parking lot and
the related evidence. So we start there.

At trial, Taulbert testified the engine of the Infiniti was running when Klein came
out of the convenience store and got in the driver's seat. She also said she saw Klein
reach for and touch the gearshift on the console. Taulbert explained that neither the
gearshift nor anything else on the console controlled any ancillary functions of the
vehicle, such as the lights or the wipers. Although Klein's lawyer pointed out and
Taulbert agreed that she had testified at the preliminary hearing that the gearshift
appeared to be on the steering column, the district court essentially credited the officer's
trial testimony.

That credited evidence alone arguably would support a finding that Klein
attempted to operate (or drive) the Infiniti. The vehicle was in park, and the only reason
Klein would have grabbed the gearshift would have been to shift from park into drive or
reverse, preparatory to leaving the parking lot. Klein stopped when Taulbert knocked on
the window. So nobody knows as a matter of historical fact what Klein was going to do
because she never did it. But if she had intended to remain in the parking lot, she would
not have had to fiddle with the gearshift to turn off the engine or for some other reason
consistent with staying put. Klein, of course, offered no benign explanation of her actions
either to Taulbert at the time or to the court during the trial.

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We do not, however, rest our conclusion on just that evidence. If that were the
State's case on attempted operation, it would be the proverbial close one. The line
between sufficiently proximate conduct to support a conviction for an attempt and
conduct too remote isn't easily drawn. But we don't have to do that here.

Klein's statements to Taulbert substantially strengthen the inferences that
reasonably may be taken from all of the circumstances. Immediately after Taulbert
knocked on the window, Klein explained that she was driving because Gates, the
passenger, wasn't able to. The statement was one of present intent, and Klein plainly
didn't convey that neither she nor Gates was fit to drive, so they were going to wait at the
convenience store until they sobered up. Later that evening after she had been arrested,
Klein explained to Taulbert that she was driving home. Again, Klein's comment
illuminates what she intended to do before Taulbert interrupted her.

The trial evidence collectively was enough to support the charge of attempting to
operate a motor vehicle under the influence, especially given the district court's
announced credibility determinations. The results of Klein's breath test furnished more
than adequate evidence of intoxication—so much so, Klein doesn't dispute that aspect of
the State's proof.

Even if we were mistaken in assessing the sufficiency of the evidence as
supporting Klein's conviction for attempting to operate the Infiniti, the district court also
found Klein guilty for actually operating the vehicle. That finding, if properly supported,
is legally adequate to uphold the conviction. We now turn to that aspect of the case and
the evidence.

On this point, Klein's statements to Taulbert, including her chronology of her
activities, establish her proscribed operation of the Infiniti. Klein told Taulbert she did all
of her drinking that day—the beers and the whiskey—before she drove with Gates to the
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restaurant. So the district court knew she did not have any more liquor at the restaurant.
According to Taulbert, Klein said she and Gates left for the restaurant sometime after
6:45 p.m. At trial, Taulbert testified that the breath test was administered to Klein at 9:35
p.m. and showed her to be well over the .08 limit proscribed in K.S.A. 2016 Supp. 8-
1567(a). Based on her own undisputed admissions, Klein drove to the restaurant less than
three hours before she took a breath test that established she had an alcohol concentration
over .08. The evidence, therefore, supports the elements of a DUI violation for operating
a motor vehicle under K.S.A. 2016 Supp. 8-1567(a)(2). The district court properly found
Klein guilty on the alternative charge of driving under the influence. In reaching that
conclusion, we need not and do not parse Taulbert's less than crystalline testimony as to
whether Klein admitted driving from the restaurant to the convenience store. Whether
Klein did so or not is legally superfluous.

Affirmed.