State v. Tuders

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NOT DESIGNATED FOR PUBLICATION

No. 113,163

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

GRANT R. TUDERS,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JOSEPH BRIBIESCA, judge. Opinion filed March 11, 2016.
Affirmed.

Carl F.A. Maughan and Sean M.A. Hatfield, of Maughan Law Group LC, of Wichita, for
appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before GREEN, P.J., BUSER, J., and HEBERT, S.J.

Per Curiam: Grant R. Tuders raises two issues in this direct appeal from his
conviction by a jury of misdemeanor driving under the influence (DUI). He first argues
that the trial court erred by not dismissing the case against him as a sanction for the
State's failure to produce a dashcam video of the events leading up to his arrest. He also
argues that the evidence was insufficient to support his conviction.
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Finding no reversible error in the trial court's ruling regarding sanctions and
further finding the evidence sufficient to support the jury verdict, we affirm the
conviction and sentence.

Factual and Procedural Background

At 3:45 a.m. on February 23, 2013, Sedgwick County Sheriff's Deputy Joel
Sutherland responded to a dispatch and found 62-year-old Tuders in the driver's seat of a
pickup truck that had slid off the road at a large curve and come to rest in a snow-covered
ditch. The roads were clear of any snow or debris, but it was extremely cold. Sutherland
asked Tuders if he was injured and needed medical attention. A vulgar Tuders responded
that he was fine and told Sutherland to go away. During his ensuing conversations with
Tuders, Sutherland observed several indicators that Tuders might be under the influence
of alcohol, including: a strong odor of alcohol coming from his person; slurred speech;
bloodshot, watery eyes; ongoing vulgar and aggressive behaviors; and instability on his
feet. Sutherland asked whether Tuders had been drinking. Tuders responded that he had
been drinking beer at the casino "prior to driving, but he was not currently drinking."

Shortly thereafter, Deputies Eric Slay and Andrew Dodge arrived at the scene to
take over the DUI investigation. Still agitated, Tuders also admitted to Slay that he had
been drinking that night and that he had slid off the road on his way back from the casino.
During their investigation, both Slay and Dodge noticed the same indicators of
intoxication Sutherland had noticed. As a result, Deputy Dodge repeatedly asked Tuders
to submit to standardized field sobriety tests. Tuders eventually agreed to take the tests
but constantly interrupted and talked over Dodge as he explained the instructions. Once
he finally performed the walk-and-turn test, Tuders exhibited six out of the eight known
clues of intoxication, which led Dodge to opine that Tuders was not capable of safely
operating a vehicle. Dodge eventually abandoned his attempts to explain the one-leg
stand test since Tuders continued to talk over and ignore Dodge's instructions and grew
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more belligerent and antagonistic. Dodge then arrested Tuders for DUI. At that point,
Dodge noticed Tuders had apparently urinated on himself. Inability to control bodily
functions is another indicator of intoxication. Tuders' belligerence continued as Dodge
and Slay drove him to the jail. He even flipped Dodge off as he pulled over and tried to
adjust Tuders' handcuffs to ease his complaints they were too tight.

Once at the police station, a still-argumentative Tuders submitted to a breath test.
Due to the manner in which Tuders was blowing into the Intoxilyzer 8000 breath test
machine, he never gave a sufficient volume of breath to complete the test. While this
rendered the samples deficient, it did not necessarily affect their accuracy or reliability.
During the first test, Tuders never blew long enough for the machine to register a value,
i.e., the machine read .00. During the second test, however, he blew enough for the
machine to read a breath alcohol content of .109. Consequently, Slay also opined that
Tuders was incapable of safely operating a vehicle.

Based on this investigation, the State ultimately asked a jury to convict Tuders of
misdemeanor DUI and driving at a speed too fast for the road conditions. During the 4-
day jury trial, Tuders extensively cross-examined the State's witnesses regarding the
evidence outlined above. In his own defense, he also presented the testimony of a friend,
who said he played chess that night with Tuders into the early morning hours and had not
seen Tuders drink for a long time. Tuders also testified that when he arrived at the casino
early that morning before his accident, they had already stopped serving alcohol.

The six-member jury found Tuders guilty of DUI and not guilty of driving at a
speed too fast for the road conditions. The trial court subsequently sentenced Tuders to 1
year in jail and a fine of $1,250. The court then placed Tuders on probation for 12
months, ordering him to serve 178 of those days on house arrest after he served 48 hours
in jail.

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Invited Error Precludes Tuders' Challenge to the Trial Court's Discovery Sanction

In his first issue on appeal, Tuders complains the trial court should have dismissed
the prosecution against him as a sanction for the State's failure to preserve a dashcam
video recording of the events at the scene of his accident. The State suggests that we need
not reach the merits of Tuders' complaints because he invited any error by specifically
requesting the discovery sanction imposed by the trial court.

The State's obligation to disclose information during discovery is governed in part
by K.S.A. 2015 Supp. 22-3212. See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10
L. Ed. 2d 215 (1963). When an issue arises concerning the State's failure to comply with
its obligations, the statute provides: "[T]he court may order [the State] to permit the
discovery or inspection of materials not previously disclosed, grant a continuance, or
prohibit the party from introducing in evidence the material not disclosed, or it may enter
such other order as it deems just under the circumstances." (Emphasis added.) K.S.A.
2015 Supp. 22-3212(i). Accordingly, an appellate court reviews a trial court discovery
order, including an order granting or refusing to grant sanctions, using an abuse of
discretion standard. See State v. Johnson, 297 Kan. 210, 215-16, 301 P.3d 287 (2013)
(the court noted: "The draconian remedy of dismissal for a discovery violation is
obviously a matter of judicial discretion. See Canaan v. Bartee, 272 Kan. 720, Syl. ¶ 3,
35 P.3d 841 [2001] [where noncompliance with discovery order is due to inability rather
than bad faith, severe sanction of dismissal or default probably inappropriate].").

This issue arose in this case because, as the trial court ultimately found, there were
two video recordings, only one of which the prosecutor provided to Tuders prior to trial.
The prosecutor had requested the Sheriff's Office to provide all videos tied to Tuders'
case. The Sheriff's Office responded by providing the State a videotape of the
administration of Tuders' Intoxilyzer breath test conducted at the police station following
his arrest for DUI. The State produced that video to Tuders. After the jury had been
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sworn in but before opening statements, Tuders questioned whether there might also be a
dashcam video recording from the scene of Tuders' arrest. The issue came up as the
deputies viewed the Intoxilyzer video in counsel's presence. At Tuders' request, the trial
court dismissed the jury early for the day and allowed Tuders to call several witnesses
from the Sheriff's Office to determine if there was another video, and, if so, what
happened to it. Some of those witnesses were unsure whether a second video existed.
Others suggested that based on their usual procedures, a video would have been recorded
by the dashcam of the arresting Deputy's patrol vehicle. However, for unknown reasons
no such video could be found in the systems on which such videos are usually stored.
One of the State's witnesses—who described himself as the "go-to guy" for the system on
which such videos are now stored for the Sheriff's Office—testified that his "best guess"
for why only Tuders' Intoxilyzer video was found on the system for the date in question
was that videos were lost during a transfer of data from one server to another.

Tuders had initially mentioned in passing an intent to move to dismiss if there was
a discovery violation, but at the close of the hearing, he instead requested the court
suppress the Intoxilyzer video as a sanction to place him on "equal footing" with the
State. Although Tuders voiced concerns regarding the Sheriff Office's video recording
and storage systems, he acknowledged that he would not be able to prove the bad faith
necessary to justify the court's discretionary dismissal of the case.

The trial court noted Tuders' concession that there was no bad faith but found the
situation to be "fundamentally unfair" and "violative of due process." Thus, over the
objection of the State, the district court granted Tuders' request to suppress the
Intoxilyzer video and ordered that the videos could not be mentioned during the trial.

Despite acknowledging in his brief that he got the relief which he requested from
the trial court, Tuders now urges this court to find that the trial court erred in failing to
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dismiss the case. In response, the State suggests that the doctrine of invited error should
preclude our consideration of Tuders' new claim.

The doctrine of invited error generally precludes a litigant from affirmatively
asking a trial judge to rule in a particular manner and then seeking reversal of an adverse
judgment based on that particular ruling. The rule is succinctly set forth in State v. Smith,
232 Kan. 128, Syl. ¶ 2, 652 P.2d 703 (1982): "Where a party procures a court to proceed
in a particular way and invites a particular ruling, he is precluded from assailing such
proceeding and ruling on appellate review." See State v. Verser, 299 Kan. 776, 784, 326
P.3d 1046 (2014); State v. Schreiner, 46 Kan. App. 2d 778, 788, 264 P.3d 1033 (2011),
rev. denied 296 Kan. 1135 (2013).

Here, as the State suggests, Tuders made a conscious strategic trial decision in
asking the trial court to sanction the State for failure to retain and produce the dashcam
video by suppressing the subsequent Intoxilyzer video. Given the wide discretion
accorded to the trial court in fashioning an appropriate sanction, suppression was a
reasonable alternative available to remedy the situation. Although Tuders later expressed
regret at having had the Intoxilyzer video suppressed, therefore precluding him from
using it to cross-examine the State's witnesses, this acknowledgment further reinforces
the contention that he had sought the court's ruling as part of a conscious trial strategy,
albeit one which backfired to some extent.

This situation presents a proper platform for application of the invited error
doctrine. Since Tuders did, indeed, specifically request and "invite" the court's
suppression ruling, thereby receiving the very discovery sanction he requested, he cannot
now complain that the trial court's failure to dismiss the prosecution was error. The
judgment of the trial court is affirmed.


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The Evidence Was Sufficient to Support Tuders' Conviction

Tuders also somewhat briefly and summarily challenges the sufficiency of the
evidence to sustain his conviction. In reviewing the sufficiency of the evidence to sustain
a criminal conviction, this court determines whether all the evidence, viewed in a light
most favorable to the prosecution, was sufficient for a rational factfinder to have found
the defendant guilty beyond a reasonable doubt; this court cannot reweigh the evidence or
asses credibility. See State v. Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014).

Tuders first complains that some of the indicators of his intoxication cited by the
deputies were "suspect." In particular, Tuders contends his bloodshot, watery eyes could
be explained by the bitter cold weather that morning. He also states that his false teeth
were known to cause slurred speech. But these matters went solely to the weight to be
afforded the evidence. Jurors, not appellate courts, weigh the evidence. See State v.
Drayton, 285 Kan. 689, 710, 175 P.3d 861 (2008) (citing State v. Gibson, 246 Kan. 298,
303, 787 P.2d 1176 [1990] ["It is the jury's prerogative to determine the weight to be
given the evidence and the reasonable inferences to be drawn from the evidence."]). The
jury was instructed that in order to convict Tuders of DUI, it had to find he was "under
the influence of alcohol to a degree that render[ed him] incapable of safely driving a
vehicle." See K.S.A. 2015 Supp. 8-1567(a)(3). Tuders' brief argument on appeal
concerning these two indicators of intoxication disregards the abundance of other
evidence of his intoxication. As the trial court pointed out in denying Tuders' motion for
acquittal, that evidence included the strong odor of alcohol on his person, his agitation,
his admission he had been drinking, and his unsteadiness as he exited and then stood
outside of his pickup. Tuders also failed the field sobriety test that he completed, he
remained argumentative and profane throughout, and he apparently urinated on himself
during the course of the investigation.

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Tuders further complains that a reasonable factfinder could not conclude from the
two deficient breath samples that Tuders was driving with a blood alcohol content (BAC)
above the legal limit. Again, the State was not obligated to prove Tuders had a BAC of
.08 or above for the jury to find Tuders guilty of DUI. Granted, the trial court did instruct
the jury it "may consider" breath test results of .08 or more "in determining whether the
defendant was under the influence of alcohol to a degree that rendered him incapable of
safely driving a vehicle." However, that same instruction cautioned:

"The test result is not conclusive, but it should be considered by you along with all other
evidence in this case.
"You are further instructed that evidence derived from a breath test does not
reduce the weight of any other evidence on the question of whether the defendant was
under the influence of alcohol."

The State clearly presented sufficient evidence from which the jury could
conclude beyond a reasonable doubt that Tuders was under the influence of alcohol to a
degree that rendered him incapable of safely driving a vehicle.

Affirmed.