State v. Stoddard

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NOT DESIGNATED FOR PUBLICATION

No. 117,886

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

STACEY LYNN STODDARD,
Appellant.


MEMORANDUM OPINION

Appeal from Riley District Court; MERYL D. WILSON, judge. Opinion filed June 22, 2018.
Affirmed.

Andy Vinduska, of Manhattan, for appellant.

Bethany C. Fields, deputy county attorney, Barry R. Wilkerson, county attorney, and Derek
Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., POWELL and GARDNER, JJ.

PER CURIAM: A jury found Stacey Lynn Stoddard guilty of attempting to drive a
motor vehicle while under the influence of alcohol (DUI). See K.S.A. 2017 Supp. 8-
1567(a)(3). She timely appeals, arguing that the evidence was insufficient to support the
conviction. For the reasons stated below, we affirm the conviction.




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Factual and procedural background

K.S.A. 2017 Supp. 8-1567(a)(3) prohibits operating, or attempting to operate, a
motor vehicle under the influence of alcohol to a degree that renders the person incapable
of safely operating a vehicle. Stoddard does not deny that she was intoxicated but instead
argues insufficient evidence shows she was attempting to operate a vehicle.

The evidence at trial established that Stoddard made two attempts to start a car.
Cody Nederhoff testified that on June 29, 2016, around 2:45 p.m. on his way to work, he
came upon a vehicle that was off the road and resting against a light pole. When he
approached the car, he saw Stoddard in the driver's seat, trying to restart the car. She got
out of the car, stumbled, and could not keep her balance. Based on his observations,
Nederhoff believed she was intoxicated and called the police.

Stoddard returned to the car and again tried to start it. Nederhoff testified that he
"heard it turn over, but it sounded dead" and it did not start while he was there. When law
enforcement officers arrived, they found the car still resting against the light pole, but
Stoddard was not in it. They eventually found her in a nearby ditch with a large flathead
screwdriver in her hand. An officer testified that the ignition in the car had been altered
so that it could be started with a tool such as a screwdriver instead of a key. Officers
arrested Stoddard after she refused to perform field sobriety tests.

The State charged Stoddard with the following: operating a motor vehicle under
the influence of alcohol and, in the alternative, attempting to operate a motor vehicle
under the influence of alcohol; operating a motor vehicle not equipped with an ignition
interlock device as required by her driver's license restriction; and failing to report an
accident involving property damage, a count it later dropped.

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A jury found Stoddard guilty of the attempting to operate DUI count and acquitted
her of the other charges. During its deliberations, the jury asked the court to define
"attempt" and "operate" as used in the instructions. After consultation with counsel, the
court replied that "operate" should be construed to mean "drive" and that an attempt to
operate requires "(1) the intent to operate; (2) an overt act towards the perpetration of the
crime; and (3) failure to operate." The court's definitions are consistent with caselaw and
with K.S.A. 2017 Supp. 21-5301(a) which lists the elements of attempt.

Standard of review

To the extent Stoddard challenges the sufficiency of the evidence, we determine
"whether, after reviewing all the evidence 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." State v. Ward, 292 Kan. 541, 581, 256 P.3d 801
(2011). To the extent Stoddard argues that the facts do not constitute an attempt to
operate a vehicle, this presents an issue of statutory interpretation which is a question of
law over which we have unlimited review. State v. Collins, 303 Kan. 472, 473-74, 362
P.3d 1098 (2015).

Stoddard first argues that she did not attempt to operate a vehicle as that term was
defined by our Supreme Court in State v. Darrow, 304 Kan. 710, 374 P.3d 673 (2016).
There, our Supreme Court held that "attempt to operate" requires an attempt to move the
vehicle. 304 Kan. at 714. In Darrow, the defendant was found asleep in a vehicle parked
in a pasture with its engine running. When law enforcement officers woke the defendant,
she fumbled with the gear shift lever. Our Supreme Court stated that because the engine
was running, "the vehicle was ready to move upon the engagement of the transmission."
304 Kan. at 718. The defendant's fumbling with the gear shift lever was "an overt act
toward engaging the transmission, which was arguably the last act needed to legally
'drive' the vehicle"—that is, to make it move. 304 Kan. at 719. The court affirmed the
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conviction of attempting to operate a motor vehicle while under the influence. 304 Kan.
at 720.

Stoddard asserts that because the cases cited in Darrow were cases in which the
vehicles were running, that is a necessary condition to find an attempt to move a vehicle.
While the court there observed that the fact that a vehicle engine is running when a
defendant is found asleep at the wheel is "'almost always sufficient to constitute
operation' [of a vehicle while under the influence]," it did not state that the engine must
be running to find an attempt to operate. 304 Kan. at 720 (quoting 1 Erwin, Defense of
Drunk Driving Cases § 1.02[1][c] [2016]). A fact may be sufficient for conviction
without being necessary for conviction.

We found that a running engine was not necessary in City of Wichita v. Logan, No.
115,385, 2017 WL 5617106 (Kan. App. 2017) (unpublished opinion), the only case to
date applying Darrow on this point. In Logan, officers found the intoxicated defendant
behind the wheel of his vehicle in the middle of the road. The engine was not running,
but the keys were in the ignition. We found that this was sufficient circumstantial
evidence from which a jury could infer that he was attempting to operate a vehicle under
the influence. Logan, 2017 WL 5617106, at *4.

We do not read Darrow as requiring the engine to be running. In any event,
answering that question is not necessary here because we have direct evidence that
Stoddard twice attempted to start the engine—first when Nederhoff approached and then
a second time when Stoddard returned to the vehicle after getting out and stumbling
around. Although the keys were not in the ignition, Stoddard was found holding a
screwdriver that the jury could have inferred she used in the altered ignition in place of a
key.

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Stoddard also raises a defense that it was factually and legally impossible to
attempt to drive the car because the car did not start and could not have been driven. But
impossibility is not a defense to a charge of attempt. K.S.A. 2017 Supp. 21-5301(b). In
State v. Adame, 45 Kan. App. 2d 1124, 1129, 257 P.3d 1266 (2011), we found sufficient
evidence of attempt to operate even though the vehicle would not start because "it is
reasonable to conclude that [defendant] would have driven the vehicle had he been able
to start it."

The above facts viewed in the light most favorable to the State, and the reasonable
inferences from those facts, are sufficient for a reasonable jury to find beyond a
reasonable doubt that Stoddard attempted to operate the car.

Affirmed.