State v. Spencer

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NOT DESIGNATED FOR PUBLICATION

No. 117,643

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JUSTIN SPENCER,
Appellant.


MEMORANDUM OPINION

Appeal from Osage District Court; TAYLOR J. WINE, judge. Opinion filed October 19, 2018.
Conviction reversed, sentence vacated, and case remanded with directions.

Malcolm L. Copeland, of Topeka, for appellant.

Brandon L. Jones, county attorney, and Derek Schmidt, attorney general, for appellee.

Before ATCHESON, P.J., HILL, J., and STUTZMAN, S.J.

PER CURIAM: At the conclusion of a bench trial in the Osage County District
Court, Justin Spencer was found guilty of driving under the influence (DUI), second
offense, a class A misdemeanor. Spencer's conviction was based on an amended charge
that he violated K.S.A. 2017 Supp. 8-1567(a)(2) by driving with a breath alcohol content
greater than .08, measured within three hours of the time the time he drove. Spencer
claims he was arrested without a warrant or probable cause, rendering his breath alcohol
test results inadmissible. He also argues the district court should not have allowed the
State to amend the charge against him after the close of evidence. Because we agree the
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district court should not have allowed the late amendment, we reverse and set aside
Spencer's conviction and remand to the district court with directions as specified below.

FACTS AND PROCEDURAL BACKGROUND

At about 10:54 p.m. on July 12, 2014, Matthew Johnson, a Carbondale police
officer, was conducting stationary traffic enforcement when he stopped a vehicle that did
not have a working tag light. Johnson did not observe any traffic infractions or anything
else about the way the vehicle was driven that suggested the driver was under the
influence of alcohol or drugs. Of three in the vehicle, Spencer was identified as the
driver. When Johnson walked up to the vehicle he saw an open bottle of beer in the pouch
behind the front passenger seat and also noticed several open packages of beer. When
Johnson asked, Spencer denied he had been drinking. Later, however, Spencer admitted
to drinking around 1 p.m. Up to that point, Johnson said he had not made any
observations consistent with Spencer being under the influence of alcohol. Spencer had
no difficulty providing his driver's license, no bloodshot eyes, and no slurred speech or
difficulty communicating. Nevertheless, Johnson asked the occupants to step out of the
vehicle.

On the basis of the open container of alcohol, Johnson conducted standardized
field sobriety tests (SFSTs) on Spencer. Johnson evaluated Spencer as failing the walk-
and-turn test, showing four clues out of seven possible. Johnson also had Spencer
perform the one-leg-stand test. He marked Spencer for two clues of impairment out of
four on that test, with two or more clues showing possible impairment. Johnson also
asked Spencer to submit to a preliminary breath test (PBT). Officer Johnson told Spencer
he did not have a right to refuse the test and refusal could result in a separate charge.
Spencer agreed and the testing device showed his breath alcohol content was .097.
Johnson said Spencer displayed poor coordination and an inability to follow basic
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instructions throughout the encounter. He also smelled the odor of alcohol on Spencer's
breath.

Johnson arrested Spencer after the SFSTs and the PBT, having concluded Spencer
was unable to safely operate a vehicle. Johnson later conducted an evidentiary breath test
using an Intoxilyzer 8000 at the Osage County Sheriff's Office. That test showed a breath
alcohol concentration of .082, just over the legal threshold. Spencer then admitted he had
consumed a couple of beers at a restaurant shortly before Johnson stopped him. The State
charged Spencer with DUI—second offense.

Spencer filed a motion to suppress the evidence gathered after the stop, including
Johnson's observations during the SFSTs, the PBT results, and the Intoxilyzer results.
Spencer argued Johnson lacked reasonable suspicion to justify the stop and did not have
probable cause to arrest him. The district court denied the motion.

Spencer filed another motion to suppress the PBT results in light of the Kansas
Supreme Court's decision in State v. Nece, 303 Kan. 888, 367 P.3d 1260 (2016). The
motion was founded on Johnson's statements to Spencer that Kansas law required him to
submit to a test to determine the presence of alcohol or drugs, that Spencer did not have a
constitutional right to refuse the test, and that refusal could result in being charged with a
separate crime which carried criminal penalties greater than or equal to the penalties for
DUI. Nece held that a person's consent to a breath-alcohol test is not freely and
voluntarily given if the consent is given following a written and oral advisory informing
the person that he or she may be charged with a separate crime for refusing the test. 303
Kan. at 888-89. Again, the district court denied the motion.

Spencer chose to be tried by the court. After both parties had presented their
evidence and rested, in the rebuttal portion of the State's closing argument, the State
moved to amend its complaint to charge Spencer under K.S.A. 2017 Supp. 8-1567(a)(2),
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often referred to as a per se violation, for having a breath test result over .08, measured
within three hours of driving. The original complaint charged Spencer with violating
K.S.A. 2017 Supp. 8-1567(a)(1), which required proof of an alcohol concentration in
excess of .08 at the time of driving. Over objection by Spencer's counsel, the district
court allowed the amendment.

Although the district court denied Spencer's motion to suppress the PBT, the judge
said he would not consider the PBT in determining probable cause, then found that
probable cause existed to arrest Spencer. The court relied upon the evidence that Johnson
smelled the odor of alcohol and observed an open container in the vehicle, that Spencer
admitted to drinking alcohol, and that he failed the SFSTs. The court concluded Spencer
was guilty of DUI, second offense.

The district court sentenced Spencer in March 2017, although there are some
elements of ambiguity within that sentence. The sentencing journal entry shows the court
imposed a sentence of 12 months in the county jail, although it also represents that "[o]f
the . . . total sentence 7 Months are Suspended" and, elsewhere, "7 Months Suspended"
from the "Sentence Imposed." These parts of the journal entry are inconsistent with
K.S.A. 2017 Supp. 21-6603(h), which defines "suspension of sentence" as "a procedure
under which a defendant, convicted of a crime, is released by the court without imposition
of sentence." (Emphasis added.) The sentencing journal entry also shows Spencer was
ordered to serve the 3,600 hours of his 12-month sentence, with work release permitted
after 48 hours, but also directs 12 months of supervised probation, which would not apply
if the 3,600 hours were to be served.

Spencer timely appeals.



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ANALYSIS

Spencer appeals on the basis of two issues: (1) lack of probable cause for his
arrest; and (2) error by the district court when it granted the State's motion to amend the
complaint.

Probable cause

Spencer argues Johnson lacked probable cause to support his arrest, which made
the subsequent Intoxilyzer result inadmissible. The State acknowledges the question is a
close call but argues the evidence was sufficient to meet the probable cause threshold.

We apply "a bifurcated standard when reviewing a district court's suppression of
evidence." State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012). We review the district
court's factual findings to determine whether they are supported by substantial competent
evidence and exercise de novo review of any legal conclusions. 293 Kan. at 862.
"Substantial evidence is . . . evidence that a reasonable person might accept as sufficient
to support a conclusion." 293 Kan. at 862.

"To be lawful, a warrantless arrest must be supported by probable cause." Sloop v.
Kansas Dept. of Revenue, 296 Kan. 13, 20, 290 P.3d 555 (2012). The Kansas Supreme
Court has defined probable cause as follows:

"Probable cause is the reasonable belief that a specific crime has been or is being
committed and that the defendant committed the crime. State v. Abbott, 277 Kan. 161,
164, 83 P.3d 794 (2004). Existence of probable cause must be determined by
consideration of the information and fair inferences therefrom, known to the officer at the
time of the arrest. Bruch, 282 Kan. at 775-76. Probable cause is determined by evaluating
the totality of the circumstances. State v. Hill, 281 Kan. 136, 146, 130 P.3d 1 (2006). As
in other totality of the circumstance tests, there is no rigid application of factors and
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courts should not merely count the facts or factors that support one side of the
determination or the other. State v. McGinnis, 290 Kan. 547, 552-53, 233 P.3d 246
(2010); see Smith, 291 Kan. at 515." Allen v. Kansas Dept. of Revenue, 292 Kan. 653,
656-57, 256 P.3d 845 (2011).

Since Spencer does not challenge the district court's factual findings, the only
question is whether the evidence supported the legal conclusion reached by the court. The
district court heard evidence that: Spencer was not observed driving erratically; was not
slurring his speech or having difficulty communicating; had no difficulty getting out of
the car; and neither fumbled with his driver's license nor had bloodshot eyes. However,
Spencer denied drinking although Johnson smelled alcohol on his breath and Johnson
also found an open bottle of beer and several open packages of beer in the vehicle.
Additionally, based on Johnson's evaluation, Spencer failed both of the SFSTs that were
administered. And, in Johnson's opinion, Spencer displayed both poor coordination and
an inability to follow basic instructions.

A reasonable person may accept the combined odor, admitted consumption, open
container, and failed field sobriety tests as evidence supporting the district court's
probable cause finding. While this evidence may not lead to an indisputable conclusion in
favor of probable cause, that is not our standard. We find substantial evidence did support
the district court's conclusion that Johnson had probable cause to arrest Spencer.

Amendment of the complaint

The district court's decision to grant the State's motion to amend its complaint is
the second issue Spencer presents. Specifically, Spencer contends that allowing the State
to amend its complaint after the close of evidence and after his counsel's argument
prejudiced his substantial rights, since he had based his defense on the charge he violated
K.S.A. 2017 Supp. 8-1567(a)(1).
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The baseline for our consideration of Spencer's claim is established by the
statutory authority granted to a district court by K.S.A. 22-3201(e): "The court may
permit a complaint or information to be amended at any time before verdict or finding if
no additional or different crime is charged and if substantial rights of the defendant are
not prejudiced." We review a decision to allow an amendment for abuse of discretion.
State v. Bischoff, 281 Kan. 195, 205, 131 P.3d 531 (2006). "Discretion is abused only
when no reasonable person would take the view adopted by the district court." 281 Kan.
at 205.

Spencer does not principally contend the State's amendment alleged a different
crime. Instead, he concentrates on the effect of the amendment on his substantial rights.
He argues each of the subsections of K.S.A. 2017 Supp. 8-1567 requires a defendant to
prepare and argue his or her case in a different way. Spencer was stopped by Johnson on
June 12, 2014. At that time the relevant sections read:

"(a) Driving under the influence is operating or attempting to operate any vehicle
within this state while:
(1) The alcohol concentration in the person's blood or breath as shown by any
competent evidence, including other competent evidence, as defined in paragraph (1) of
subsection (f) of K.S.A. 8-1013, and amendments thereto, is .08 or more;
(2) the alcohol concentration in the person's blood or breath, as measured within
three hours of the time of operating or attempting to operate a vehicle, is .08 or more."
K.S.A. 2013 Supp. 8-1567.

Spencer notes K.S.A. 2017 Supp. 8-1567(a)(1) requires the State to prove he operated a
vehicle while the alcohol concentration in his blood or breath was .08 or more—that is, it
was .08 or more at the time he was driving. K.S.A. 2017 Supp. 8-1567(a)(2), however,
requires no evidence of alcohol concentration contemporaneous with the act of driving.
Instead, it more broadly allows the State to prove the excessive alcohol concentration was
measured at any time within three hours of driving.
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Spencer maintains he prepared to defend the 8-1567(a)(1) charge and tried the
case on that basis. Based on the State's charge as it stood during the trial, Spencer notes
he made no objection to admission of the .082 breath alcohol result from the Intoxilyzer
test, since the State presented no evidence to connect that level of alcohol to the time
when he was actually driving. Spencer asserts: "The only way to defeat [a charge under
K.S.A. 8-1567(a)(2)] is to show that the Intoxilyzer was not working correctly; the officer
was not operating the machine properly; that the officer did not follow protocol; and
other limited factors." He argues he pursued none of those defenses because they were
not part of his defense of the charge under 8-1567(a)(1).

In the same vein, Spencer states he voiced no objection to the State's failure to
present the records custodian with the log for the Intoxilyzer that was used for his test and
the machine's maintenance records—his defense did not involve showing faults in the
machine's certification, use, or maintenance. As a result, Spencer says he "conceded that
the test at 12:20 a.m. [on July 13, 2014] was .082," because the time he was driving was
10:54 p.m.—on the other side of midnight—and "[t]here was no evidence introduced that
[his] BAC at 10:54 p.m. on July 12, 2014, was over .080."

In response, the State argues the amendment did not change the crime charged and
did not prejudice Spencer because the open file policy of the prosecutor's office allowed
Spencer full discovery from the initiation of the case. As a result, Spencer had the
Intoxilyzer results from the start and "[i]t was clear throughout the case that the State
intended to use the results from that test as evidence against the defendant." The State
acknowledges it "made a mistake in charging the wrong subsection" but concludes
Spencer's substantial rights were not impacted since he knew the evidence the State
intended to use at trial.

In State v. Wade, 284 Kan. 527, 161 P.3d 704 (2007), the defendant went to trial
on charges alleging first-degree murder based on alternative theories of premeditation
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and felony murder—with aggravated burglary as the inherently dangerous felony—and a
separate charge of aggravated burglary. When defense counsel pointed out the aggravated
burglary charge was defective because it did not specify the felony that was the motive
for the unauthorized entry, the State responded that first-degree murder was the missing
element, and the State later incorporated a premeditated first-degree murder motive into
its initial instruction for that count.

At the trial, Wade defended by claiming his entry into the house where the
shooting occurred was authorized based on prior practice and he had not intended to
shoot the victim, only scare her, but she moved into the line of fire. After the evidence
was closed, the State moved to amend the complaint/information to add aggravated
assault as an alternative predicate felony for the felony murder and aggravated burglary
charges. The district court then instructed the jury that the aggravated burglary required
unauthorized entry with intent to commit either premeditated first-degree murder or
aggravated assault inside the house.

On the understanding that the aggravated burglary charge was based on the alleged
intent to commit premeditated first-degree murder after entry, Wade elected to testify that
he did not intend to shoot the victim. Wade argued the district court's post-evidence
amendment to the aggravated burglary instruction, adding aggravated assault as an
alternative intended felony after entry to the house, broadened the scope of the charges he
faced and violated his right to due process. The Kansas Supreme Court agreed,
observing:

"The modified instruction permitted by the trial court relieved the State of its obligation
to prove a premeditated intent to kill as an element of aggravated burglary. Rather, the
State could meet its burden by convincing the jury that Wade entered the Coffman house
with the intent to scare Juul with the handgun, which, of course, was exactly what Wade
had admitted on the witness stand. In other words, the erroneous instruction, adding
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aggravated assault as an alternative ulterior felony, transformed Wade's defense
testimony into an after-the-fact confession." (Emphasis added.) 284 Kan. at 535-36.

The court, which reversed Wade's aggravated burglary conviction and remanded for a
new trial, commented: "We do not change the rules of engagement, after the fact, to
dilute the State's burden and make a conviction more likely. The integrity of the process
is the cornerstone of our criminal justice system." 284 Kan. at 537.

Spencer similarly faced a change in the rules after the case had been concluded.
He had made important choices concerning his defense to the charge as it stood before
trial, when the trial began, when it ended, and when his counsel had his last chance to
argue on his behalf. After it became too late for Spencer to make different choices, the
district court's decision to allow the State's amendment considerably decreased the burden
on the State. In his closing, Spencer argued the State had failed to present any evidence
that his alcohol concentration at the time he drove was in excess of .08. The State
apparently perceived some vulnerability and belatedly asked for an amendment—to the
per se charge. When the district court granted leave to amend the charge, Spencer found
himself in Wade's position, because the strategic trial decision to allow admission of the
Intoxilyzer result without challenge essentially became a confession to the new charge.

We find the district court abused its discretion when it granted the State's motion
to amend the charge from K.S.A. 2017 Supp. 8-1567(a)(1) to K.S.A. 2017 Supp. 8-
1567(a)(2). The amendment prejudiced Spencer's substantial rights to a degree that
requires reversal. Spencer's conviction must be vacated, and the case must be remanded
with directions. Specifically, on remand the district court must decide whether the
evidence the State presented at the original trial proved beyond a reasonable doubt that
Spencer violated K.S.A. 2017 Supp. 8-1567(a)(1).

Conviction reversed, sentence vacated, and case remanded with directions.