Opinion
No. 107,032.
2013-05-10
STATE of Kansas, Appellee, v. Manuel G. HERNANDEZ, Appellant.
Appeal from Finney District Court; Philip C. Vieux, Judge. Rick Kittel, of Kansas Appellate Defender Office, for appellant. Megan Massey, assistant county attorney, John P. Wheeler, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Finney District Court; Philip C. Vieux, Judge.
Rick Kittel, of Kansas Appellate Defender Office, for appellant. Megan Massey, assistant county attorney, John P. Wheeler, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., GREEN and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Manuel G. Hernandez appeals following his conviction for driving under the influence of alcohol (DUI), his fourth or subsequent offense. He argues his conviction should be reversed on two grounds: (1) the district court erred in instructing the jury on reasonable doubt and (2) DUI is an alternative means crime, and the State failed to present sufficient evidence to support each of the means upon which he was charged. Finding no error, we affirm.
Facts
On April 17, 2010, Kansas Highway Patrol Trooper Herbert Bradley was traveling west on Highway 50 in Finney County, Kansas, when he observed a maroon Plymouth heading east on the highway. Bradley's radar indicated that the Plymouth was speeding, so he followed the car as it turned off the highway and stopped at a private residence.
Upon making contact with the driver, Hernandez, Bradley could smell an odor of alcohol coming from Hernandez' breath. Bradley asked Hernandez to exit his car and have a seat in the patrol car. Once inside the patrol car, Bradley noticed “an overwhelming smell” of alcohol coming from Hernandez and that Hernandez' eyes were bloodshot and watery. Hernandez admitted to drinking six to eight beers that day. Bradley then had Hernandez perform standardized field sobriety tests. During each test, Hernandez demonstrated indicators consistent with a person who was under the influence of alcohol and/or drugs. Bradley transported Hernandez to the Law Enforcement Center, where Hernandez ultimately refused to take an Intoxilyzer breath test.
Hernandez was subsequently charged with fourth or subsequent DUI, refusal of a preliminary breath test, and speeding. He later entered guilty pleas to refusal of a preliminary breath test and speeding. The case proceeded to jury trial on the DUI charge, where Hernandez was found guilty.
The district court sentenced Hernandez to 180 days in the county jail for the DUI and imposed fines on the traffic infractions.
Analysis
Hernandez raises two issues on appeal. First, he contends the district court committed reversible error by improperly instructing the jury on reasonable doubt. Second, he claims that DUI is an alternative means crime and the State failed to present sufficient evidence to support each of the means upon which he was charged. We address each of these issues in turn.
I. Reasonable Doubt Instruction
Hernandez argues for the first time on appeal that the reasonable doubt instruction provided to the jury was erroneous and violated his constitutional rights, which resulted in structural error. The jury instruction at issue, which was identical to the pre–2005 version of Pattern Jury Instructions, PIK Crim.3d 52.02, stated:
“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 made 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 made by the State, you should find the defendant guilty.” (Emphasis added.)
This instruction is identical to the post–2005 approved PIK Crim.3d 52.02 jury instruction except for one word:
“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 made by the State, you must find the defendant not guilty; if you have no reasonable doubt as to the truth of each of the claims made by the State, you should find the defendant guilty.” (Emphasis added.)
At trial, Hernandez did not object to the use of this instruction. As such, our standard of review is informed by K.S.A.2012 Supp. 22–3414(3) and State v. Williams, 295 Kan. 506, 286 P.3d 195 (2012) (appellate analysis of a jury instruction issue requires [1] determination of whether the issue can be reviewed, [2] whether error occurred, and [3] whether the error requires reversal). Under K.S.A.2012 Supp. 22–3414(3), the failure to object to an instruction does not prevent appellate review but requires a determination that the instruction is clearly erroneous before relief can be granted. Because the lack of objection does not bar our consideration of Hernandez' arguments, we turn to the question of whether there was error, i.e., whether the subject instruction was legally and factually appropriate. See Williams, 295 Kan. 506, Syl. ¶ 4.
To that end, Hernandez asserts that the district court erred by using the word “any” in both portions of the instruction. Instead, Hernandez contends “each” should have been substituted for the second “any,” which would make the last sentence read as follows: “[I]f you have no reasonable doubt as to the truth of each of the claims made by the State, you should find the defendant guilty.” (Emphasis added.) It is Hernandez' contention that the instruction is not legally appropriate, because the second use of the word “any” caused the State's burden of proof to be diluted and, therefore, his constitutional rights—the requirement of proof beyond a reasonable doubt under the Fifth Amendment to the United States Constitution and the right to a jury trial under the Sixth Amendment—to be violated. In support of his argument, Hernandez relies heavily on Miller v. State, No. 103,915, 2012 WL 401601 (Kan.App.2012) (unpublished opinion), rev. granted ––– Kan. –––– (March 4, 2013).
As correctly observed by Hernandez, in 2005 the pattern instruction committee changed the PIK instruction used in this case from the any/any language to the any/each language Hernandez argues is constitutionally necessary. The amendment was in response to the Court of Appeals' decision in State v. Beck, 32 Kan.App.2d 784, 88 P.3d 1233,rev. denied 278 Kan. 847 (2004). See PIK Crim. 4th 51.010; see also Comment, PIK Crim.3d 52.02 (2004 Supp.) (“The Committee has also changed the word ‘any’ to ‘each’ in the last sentence of the instruction in order to be consistent with the instructions throughout PIK Crim.3d which state, ‘To establish this charge, each of the following claims must be proved....’ ”). In Beck, however, the Court of Appeals rejected an argument that the any/any language created error; it simply found the any/each wording was preferable. Beck, 32 Kan.App.2d at 787.
Critical to resolution of the issue presented by Hernandez, the holding in Beck was recently approved by our Supreme Court in State v. Herbel, No. 103,558, 296 Kan. ––––, 299 P.3d 292, 2013 WL 1365348, at *17 (April 5, 2013). Citing Beck, the Kansas Supreme Court in Herbel rejected an identical argument to the one presented by Hernandez in this appeal and concluded the pre–2005 any/any version of the PIK instruction, while “not the preferred instruction, it was legally appropriate.” Herbel, 2013 WL 1365348, at * 17. We are duty bound to follow Kansas Supreme Court precedent absent some indication that the court is departing from its previous position. State v. Jones, 44 Kan.App.2d 139, 142, 234 P.3d 31 (2010), rev. denied 292 Kan. 967 (2011).
Because Hernandez presents no other argument regarding the legal or factual appropriateness of this instruction, we conclude the reasonable doubt instruction in this case was not erroneous.
II. Sufficiency of the Evidence
Hernandez argues that he was deprived of his statutory right to a unanimous jury verdict because the State charged him with alternative means of committing the crime of DUI but failed to present sufficient evidence to support both means. Specifically, Hernandez claims that the State charged him with “operat [ing] or attempt[ing] to operate a motor vehicle while under the influence of alcohol,” but failed to present sufficient evidence that he attempted to operate the vehicle. Hernandez concedes that the jury was instructed only that he “drove a vehicle,” but claims that because the State charged him with “operat[ing] or attempt[ing] to operate a motor vehicle,” it was required to prove both of these means.
As Hernandez points out, the language in the instruction provided to the jury did not include the “attempted to operate” language included in the charging document. Therefore, the State was not required to prove that Hernandez both operated and attempted to operate a vehicle while under the influence of alcohol. See State v. Ahrens, 296 Kan. 151, 160, 290 P.3d 629 (2012); State v. Brown, 295 Kan. 181, 196–97, 284 P.3d 977 (2012). Hernandez does not challenge the sufficiency of the evidence that he operated a vehicle while under the influence of alcohol, and the record demonstrates sufficient evidence of such operation. Thus, there is no merit to Hernandez' claim of insufficient evidence to support his DUI conviction.
Even if the instruction had included the “attempted to operate” language, however, our Supreme Court held in Ahrens that K.S.A.2008 Supp. 8–1567(a) does not contain alternative means of committing the crime of DUI. There, the court applied the framework of Brown and concluded that the legislature did not intend to create alternative means of committing DUI by placing the disjunctive “or” between the term “operate” and the phrase “attempt to operate” in K.S.A.2008 Supp. 8–1567(a). Ahrens, 296 Kan. at 160. Instead, the court reasoned that the term “operate” and the phrase “attempt to operate” merely describe the factual circumstances in which a material element of the crime of DUI— i.e., driving—may be proven. 296 Kan. at 160 (quoting Brown, 295 Kan. at 196–97). We are duty bound to follow Kansas Supreme Court precedent absent some indication that the court is departing from its previous position. Jones, 44 Kan.App.2d at 142. Thus, even if the “operate or attempt to operate” language in the complaint was also included in the jury instruction, such language does not set forth alternative means of committing the crime of DUI.
Affirmed.