Opinion
No. 107,073.
2012-12-21
STATE of Kansas, Appellee, v. Rowdan ROSSING, Appellant.
Appeal from Clay District Court; Paul E. Miller, Judge. Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Richard E. James, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Clay District Court; Paul E. Miller, Judge.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Richard E. James, county attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., MALONE and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Rowdan Rossing was convicted of driving under the influence of alcohol (DUI), his fifth offense, and transporting an open container. He appeals his convictions and sentencing. First, Rossing contends the district court abused its discretion by allowing a law enforcement officer to give opinion testimony that Rossing was too intoxicated to safely operate a vehicle. Second, Rossing claims the district court erred in instructing the jury on reasonable doubt. Third, Rossing argues that the district court's sentencing journal entry that memorialized the imposition of a 12–month postrelease supervision period as part of the DUI sentence is an illegal sentence because the district court did not orally impose it at the sentencing hearing. We affirm the convictions. The sentence imposed upon Rossing's conviction for DUI, however, is vacated and the case is remanded with directions.
Factual and Procedural Background
Late in the day on January 8.2011, Officer Steve Squires received a call from the dispatcher advising him that a driver of a white Chrysler LeBaron was possibly intoxicated. Within 15 minutes, the officer found an unoccupied white Chrysler LeBaron parked in a trailer park with the engine operating and its lights illuminated. Squires surveiled the vehicle.
A short time later, the vehicle left the trailer park and began traveling down a road that did not have a marked center line. As Officer Squires followed, he observed the car weave back and forth several times across the center of the roadway. The officer then observed the vehicle nearly sideswipe a truck parked on the street, stop, and then continue down the street, weaving back and forth about a half-a-car width in either direction. In sum, Officer Squires observed the vehicle weave back and forth about 10 times, crossing the center of the road two or three times.
Officer Squires activated his emergency lights, but the vehicle did not stop. He also used his vehicle's air horn a few times and activated his siren, but the vehicle did not stop until it arrived at a house trailer. Officer Squires made contact with the driver Rossing, as he exited his vehicle.
As Rossing spoke with Officer Squires, the officer smelled an odor of alcohol and noticed that Rossing had bloodshot eyes and slurred speech that was barely understandable. Squires had known Rossing for at least 10 years, and this slurred speech was unusual. Rossing was also unsteady on his feet, wobbling back and forth.
Rossing was asked to perform field sobriety tests. During the alphabet test, Rossing correctly recited the letters to G but then claimed that he couldn't continue because he had a cold. Officer Squires asked Rossing to count backwards from 30 and perform the one-leg-stand test, but Rossing said that he could not perform those tests. Rossing attempted the heel-to-toe step test. According to Officer Squires:
“The first step he took was he missed heel-to-toe. And then on the second step his—I believe his left foot crossed over in front of his right foot almost tripping him and he almost fell. And he stopped the test at that time and did not continue.”
Officer Seth Louks, who responded to the scene, confirmed the odor of alcohol about Rossing and noticed his slurred speech. He also noticed that Rossing had trouble walking and maintaining his balance. At least one time, according to the officer, Rossing had to lean against a vehicle to avoid falling.
Rossing was arrested for DUI. A search of his vehicle yielded a beer can on the rear floorboard with some liquid in it. The floorboard was wet and smelled of alcohol. Initially, Rossing denied drinking but later admitted that he had consumed “a beer earlier.” Officer Squires provided Rossing with a copy of the implied consent advisory form and read it to him, but Rossing refused to consent to an evidentiary breath test.
A jury convicted Rossing, as charged, with DUI and transporting an open container. At sentencing, the district court ordered Rossing to serve concurrent sentences of 207 days for each offense. Credit was given for the 207 days Rossing had spent in jail awaiting disposition of this case. A $2,500 fine was also imposed as part of the DUI sentence. Rossing was released to the custody of the Kansas Department of Corrections for disposition of a detainer in an unrelated case. He filed a timely appeal.
Opinion Testimony Regarding Intoxication
At trial, Officer Squires testified that he had been a police officer since 1996 and had investigated well over 100 DUI cases. The prosecutor then asked, “[B]ased on your training and experience do you believe Mr. Rossing was too intoxicated to safely operate a motor vehicle on that day?” Defense counsel objected on the basis that the question “invades the province of the jury.” After the court overruled the objection, Squires responded, “Yes, sir, I believed he was too intoxicated to be operating a motor vehicle.”
On appeal, Rossing contends the district court erred by allowing Officer Squires to state his opinion that Squires was too intoxicated to safely operate a motor vehicle. According to Rossing, the officer's opinion constituted inadmissible opinion testimony because “[Officer] Squires invaded the province of the jury and testified as to one of the ultimate issues in the case.”
The admissibility of opinion testimony under K.S.A. 60–456 is typically a matter of the district court's discretion. As a result, our appellate review is usually governed by an abuse of discretion standard. See State v. Kendall, 274 Kan. 1003, 1012–13, 58 P.3d 660 (2002). An abuse of discretion occurs when the action is arbitrary, fanciful, or unreasonable, and an abuse of discretion means that no reasonable person would have taken the action of the district court. State v. Sellers, 292 Kan. 117, 124, 253 P.3d 20 (2011). The party asserting the district court abused its discretion bears the burden of showing such abuse of discretion. State v. Wells, 289 Kan. 1219, 1226, 221 P.3d 561 (2009).
In this particular case, however, Rossing raises a mixed issue of fact and law based upon interpretation of the language of K.S.A. 60–456. Statutory interpretation is a question of law and this court's review on appeal is unlimited. State v. White, 279 Kan. 326, 332, 109 P.3d 1199 (2005). Moreover, our Supreme Court has instructed that “even abuse of discretion standards can sometimes more accurately be characterized as questions of law requiring de novo review.” 279 Kan. at 332. Under these unique circumstances we will exercise de novo review.
K.S.A. 60–456 governs the admissibility of opinion testimony. It states:
“(a) If the witness is not testifying as an expert his or her testimony in the form of opinions or inferences is limited to such opinions or inferences as the judge finds (a) may be rationally based on the perception of the witness and (b) are helpful to a clearer understanding of his or her testimony.
“(b) If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.
“(c) Unless the judge excludes the testimony he or she shall be deemed to have made the finding requisite to its admission.
“(d) Testimony in the form of opinions or inferences otherwise admissible under this article is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of the fact.” (Emphasis added.)
Before considering the meaning of this statute, a few general rules regarding statutory construction are in order. The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010). An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meaning. State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010). When a statute is plain and unambiguous, an appellate court does not speculate regarding the legislative intent behind it and will not read into the statute something not readily found in it. 291 Kan. at 216.
Applying these guidelines to the simple language of K.S.A. 60–456 results in the conclusion that Kansas law plainly and clearly allows testimony in the form of an opinion which “embraces the ultimate issue or issues to be decided by the trier of fact.” K.S.A. 60–456(d).
With specific reference to DUI cases, our Supreme Court has determined that under K.S.A. 60–456, witnesses may give opinions regarding whether a defendant could operate a vehicle safely because of intoxication. Kendall, 274 Kan. at 1012–13;City of Dodge City v. Hadley, 262 Kan. 234, 936 P.2d 1347 (1997). In Hadley, two officers testified they believed that Hadley was under the influence of alcohol and unable to safely operate a vehicle. Our Supreme Court stated that “[t]he officer's testimony as to the defendant's sobriety and his ability to safely operate the motor vehicle was based on personal observations and expertise as a police officer, and we find no abuse of discretion in allowing the testimony.” 262 Kan. at 242.
In Kendall, the defendant argued that the officer's testimony that he was under the influence of alcohol was an opinion of guilt and should have been only for determination by the jury. Our Supreme Court reaffirmed its decision in Hadley and extended its holding to the opinion testimony of lay witnesses: “Here, as in Hadley, Officer Henderson did not opine that Kendall was guilty of a crime. Officer Henderson simply stated that, in his opinion, “Kendall was under the influence of alcohol.” Kendall, 274 Kan. at 1013. The court stated this “type of testimony is acceptable even though it embraces the ultimate issue to be decided by the jury .” 274 Kan. at 1013. However, a witness cannot testify that in his or her opinion the defendant is guilty. State v. Steadman, 253 Kan. 297, 304, 855 P.2d 919 (1993).
Rossing acknowledges this precedent, but he argues that Hadley was incorrectly decided. In particular, he argues Hadley cannot be reconciled with cases interpreting K.S.A. 60–456 that predate Kendall and Hadley, such as State v. Bressman, 236 Kan. 296, 302–03, 689 P.2d 901 (1984). Rossing argues:
“Just as in Bressman, where the doctor's testimony that a victim had been raped necessarily passed on the credibility of the victim's testimony, in the present case, Squires' testimony that Mr. Rossing was intoxicated to an extent that he could not safely operate a vehicle, of necessity, passed upon the credibility of the State's case.”
We are not persuaded. First, we are duty bound to follow precedent from the Kansas Supreme Court absent some indication that the court is departing from its previous position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. –––– (May 4, 2012). We have no indication from our Supreme Court that Kendall and Hadley are no longer good law. Second, unlike Bressman, Kendall and Hadley are DUI cases factually specific to the case under review. Third, unlike Bressman, Officer Squires did not impermissibly testify regarding an alleged victim's credibility. The officer merely opined regarding Rossing's ability to safely drive a vehicle given his intoxicated state. Whether considered as a lay or expert witness, Officer Squires' opinion testimony was properly based on his training and experience and his personal observations of Rossing's behavior and driving ability. See K.S.A, 60–456(a) and (b). Moreover, this eyewitness opinion testimony undoubtedly was helpful to the jury in clearly understanding the officer's observations of Rossing's personal behavior and driving actions. See K.S.A. 60–456(a).
Based upon a plain reading of K.S.A. 60–456 and our Supreme Court's precedent set forth in Kendall and Hadley, we conclude the district court did not abuse its discretion in admitting the opinion testimony of Officer Squires.
Reasonable Doubt Instruction
Next, Rossing contends the district court committed reversible error by improperly instructing the jury on reasonable doubt. As a result, Rossing complains that the State's burden of proof was diluted.
At the conclusion of trial, the district court instructed the jury:
“The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant guilty.” (Emphasis added.)
The jury was also instructed that in order to find Rossing guilty of DUI and transporting an open container the State must prove each of the separate elements of the two crimes.
Rossing did not raise this instructional issue before the district court at trial. This fact informs our standard of review:
“K.S.A. 22–3414(3) establishes a preservation rule for instruction claims on appeal. It provides that no party may assign as error a district court's giving or failure to give a particular jury instruction, including a lesser included crime instruction, unless: (a) that party objects before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds for objection; or (b) the instruction or the failure to give the instruction is clearly erroneous. If an instruction is clearly erroneous, appellate review is not predicated upon an objection in the district court.” State v. Williams, 295 Kan. 506, Syl. ¶ 3, 286 P.3d 195 (2012).
In the determination of whether an instruction or a failure to give an instruction was clearly erroneous, see K.S.A. 22–3414(3), the reviewing court must first determine whether there was any error at all. 295 Kan. 506, Syl. ¶ 4. To make that determination, “the appellate court must consider whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record.” 295 Kan. 506, Syl. ¶ 4. If the reviewing court concludes the district court erred in giving or failing to give a challenged instruction, the clearly erroneous analysis moves to a reversibility inquiry, wherein the court assesses “whether it is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred.” 295 Kan. 506, Syl. ¶ 5. “The party claiming a clearly erroneous instruction maintains the burden to establish the degree of prejudice necessary for reversal.” 295 Kan. 506, Syl. ¶ 5.
At the outset, the instruction Rossing now objects to is identical to the approved PIK Crim.3d 52.02 instruction on reasonable doubt except for one word. The approved instruction substitutes the word “each” in place of the word “any,” as found in the last sentence of the instruction given in this case.
As Rossing acknowledges, our court has rejected a similar legal argument in State v. Beck, 32 Kan.App.2d 784, 88 P.3d 1233,rev. denied 278 Kan. 847 (2004). Beck challenged a reasonable doubt jury instruction in which the word “any” was used in the final sentence of the instruction. Beck argued that the use of the word “any” allows for a conviction even if there are insufficient facts to support each element of the crime. At the time of Beck's trial, this language was recommended in PIK Crim.3d 52.02.
In Beck, this court rejected the defendant's challenge to the language in the jury instruction:
“Again, Beck is focusing on one word of the instruction in isolation from its context. The word ‘any’ is used consistently in the instruction. The sentence immediately preceding the language Beck finds objectionable states: ‘If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty.’ (Emphasis added.) We reject Beck's argument that the word ‘any,’ as used in this context, could somehow create ambiguity or result in Beck being convicted if only one element of the crime is proven. Furthermore, Instruction No. 11, listing the elements of the crime of aggravated escape from custody, contains the language: ‘To establish this charge, each of the following claims must be proved....’ (Emphasis added.) This language negates any potential confusion that may have been caused by the use of the word ‘any’ in Instruction No. 6.” 32 Kan.App.2d at 787–88.
After this court's decision in Beck, the PIK committee modified the reasonable doubt instruction at PIK Crim.3d 52.02 and substituted the word “each” in place of the word “any” in the last sentence of the instruction. Although this alteration provides the most accurate test for reasonable doubt and the giving of the current instruction is the best practice, our Supreme Court had previously held that the prior version of PIK Crim.3d 52.02 accurately reflected the law and properly advised the jury in a criminal case on reasonable doubt. See State v. Clark, 261 Kan. 460, 474–75, 931 P.2d 664 (1997).
Rossing claims “[t]he use of the word ‘any’ in the final sentence of the instruction told the jury that, in order to find Mr. Rossing guilty, it had only to find proof beyond a reasonable doubt of one of the State's claims, thus diluting the State's burden of proof.” Rossing's argument is identical to the argument in Beck. As in Beck, any potential confusion was negated by the instruction detailing the elements of the two crimes charged. The jury was instructed in those two instructions that in order to find Rossing guilty the State must prove each of the separate elements of DUI and transporting an open container.
For authority, Rossing cites Miller v. State, No. 103,915, 2012 WL 401601 (Kan.App.2012) (unpublished opinion), petition for review filed February 22, 2012. Miller claimed that his counsel was constitutionally deficient for failing to raise an issue based on the reasonable doubt instruction given at his trial. In Miller, however, the court transposed the words “each” and “any” in the jury instruction. This court found that such a transposition “turns proof beyond a reasonable doubt inside out and permits the State to convict with patently insufficient evidence.” 2012 WL 401601, at *2. Rossing admits that the instruction in the present case is different than the instruction the Miller court held was structural error.
In State v. Womelsdorf, 47 Kan.App.2d 307, 274 P.3d 662 (2012), petition for review filed May 10, 2012, our court denied a challenge to a reasonable doubt jury instruction identical to the instruction given in this case. Womelsdorf also cited Miller. However, as pointed out by the Womelsdorf court, the instruction in Miller was different from the instruction challenged by the defendant in one key way:
“The instruction in Miller followed the Kansas pattern jury instruction, PIK Crim.3d 52.02, except that it transposed the words ‘each’ and ‘any.’ [Citation omitted.] As the Miller court stated, the switch substantially changed the meaning of the jury instruction so that it ‘tells jurors they should acquit Miller only if they have reasonable doubt about each claim or element the State must prove. And it tells them they should convict Miller if they hold no reasonable doubt as to any of those claims.’ [Citation omitted.] The Miller court found that this was a clear misstatement of the law and directly affected a fundamental constitutional right. [Citation omitted.] Ultimately, the Miller court reversed the denial of the K.S.A. 60–1507 motion and remanded with directions to give the movant a new trial. [Citation omitted.]” Womelsdorf, 47 Kan.App.2d at 331.
However, the Womelsdorf court distinguished the instruction given in the present case from that given in Miller. It held:
“Applying the reasoning in Beck and considering the jury instructions given at Womelsdorf's trial as a whole, rather than isolating any one instruction, we find that the instructions were substantially correct and the jury could not reasonably have been misled by them. The reasonable doubt instruction given by the district court at Womelsdorf's trial was not a clear misstatement of the law, as was the situation in Miller. We conclude that the reasonable doubt instruction provided in Womelsdorf's case, while not the best practice, was not clear error. Accordingly, Womelsdorf is not entitled to a new trial based on the jury instructions.” Womelsdorf, 47 Kan.App.2d at 334.
See also State v. Myers, No. 105,252, 2012 WL 2476978, at *9 (Kan.App.2012) (unpublished opinion) (adopting the reasoning in Beck ), petition for review filed July 23, 2012; State v. Kling, No. 106,361, 2012 WL 2045375, at *3 (Kan.App.2012) (unpublished opinion) (following Beck ), petition for review filed July 2, 2012.
We conclude that Beck and its progeny, Womelsdorf, Myers, and Kling are dispositive of this instructional issue. While the reasonable doubt instruction given in this case was in error, we conclude it did not constitute clear error. The jury instructions detailing the elements of the crime and advising the jury that the State must prove each of the elements clarified any possible confusion regarding the State's burden of proof. Considering the jury instructions as a whole, the instructions were substantially correct and we are not “firmly convinced that the jury would have reached a different verdict had the instruction error not occurred.” See Williams, 295 Kan. 506, Syl. ¶ 5. Accordingly, Rossing is not entitled to a reversal of his convictions based on the reasonable doubt instruction given to the jury in this case.
Sentencing
At sentencing, the district court did not mention imposing any postrelease supervision period as part of Rossing's DUI sentence. The sentencing journal entry, however, indicated that the district court had imposed a postrelease supervision term of 12 months.
For his final issue on appeal, Rossing contends his DUI sentence is illegal because the district court did not include a postrelease supervision period as part of the sentence orally pronounced in court. Rossing proposes that the case be remanded for resentencing so that a complete sentence can be imposed. The State concedes that the case should be remanded for resentencing.
Whether a sentence is illegal within the meaning of K.S.A. 22–3504 is a question of law over which an appellate court has unlimited review. State v. LaBelle, 290 Kan. 529, 532, 231 P.3d 1065 (2010). A court may correct an illegal sentence at any time. K.S.A. 22–3504(1). A sentence that is not orally pronounced in open court is ambiguous with respect to the time and manner in which it is to be served and thus illegal. See State v. Howard, 287 Kan. 686, Syl. ¶ 4, 198 P.3d 146 (2008).
This issue is controlled by K.S.A.2010 Supp. 21–4704(e)(2) and State v. Arrocha, 42 Kan.App.2d 796, 798, 217 P.3d 467 (2009). Under K.S.A.2010 Supp. 21–4704(e)(2), the sentencing court must orally pronounce the complete sentence, which includes any postrelease supervision period, at the sentencing hearing. But failure to “pronounce the period of postrelease supervision shall not negate the existence of such period of postrelease supervision.” K.S.A.2010 Supp. 21–4704(e)(2). In Arrocha, our court determined the appropriate remedy was to remand for resentencing so that a complete sentence could be imposed in open court. 42 Kan.App.2d at 798.
Accordingly, the convictions are affirmed. Rossing's DUI sentence is vacated, and the matter is remanded to the district court for pronouncement of a complete DUI sentence in open court in the presence of the defendant.