Opinion
No. 108,302.
2013-05-10
STATE of Kansas, Appellee, v. Gerald James MILLER, Appellant.
Appeal from Leavenworth District Court; Gunnar A. Sundby, Judge. Edward C. Gillette, Michael S. Mogenson, and Grant M. Reichert, of Gillette Law Firm, P.A., of Mission, for appellant. Adam Y. Zentner, of county attorney's office, and Derek Schmidt, attorney general, for appellee.
Appeal from Leavenworth District Court; Gunnar A. Sundby, Judge.
Edward C. Gillette, Michael S. Mogenson, and Grant M. Reichert, of Gillette Law Firm, P.A., of Mission, for appellant. Adam Y. Zentner, of county attorney's office, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., HILL and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
Gerald Miller was convicted at trial of a DUI offense. The district court sentenced him for a third-time DUI offense, which is a felony. He now appeals, arguing that the district court erred in:
• Failing to apply the 2011 amendments to the Kansas DUI statute retroactively, which would have meant that his Topeka Municipal Court DUI diversion agreement from 1996 wouldn't be considered and he would have been sentenced for a misdemeanor DUI offense, not a felony;
• Failing to exclude the 1996 Topeka DUI because the record doesn't clearly show either that he was advised of his right to counsel or that the Topeka municipal DUI ordinance in 1996 prohibited the same conduct our DUI statute now prohibits—a requirement for counting a past DUI offense for sentencing on a later offense.
• Not accepting Miller's testimony that he had gotten stuck in wintry weather and had only drunk significant quantities of alcohol after he got stuck and was no longer driving.
But we find no error here. Defendants are normally sentenced based on the law in effect at the time the crime is committed—not based on changes made later—and the legislature gave no indication that the 2011 amendments to the Kansas DUI statute should be applied when sentencing for crimes already committed before the amendment. As to the 1996 Topeka DUI offense, we can take judicial notice of Topeka's ordinances, and its 1996 DUI ordinance prohibited the same conduct as our DUI statute does today. We also find that evidence of Miller's valid waiver of a right to counsel isn't required on a diversion agreement for which Miller didn't serve jail time, and even if it were, the record shows an adequate advisory to Miller of his right to counsel and his waiver of that right. Finally, Miller's argument about the evidence at trial simply asks us to reweigh the evidence, which is not our role. The district court found Miller's testimony not to be credible, and there is sufficient evidence supporting the district court's factual conclusion that Miller was operating his car while intoxicated.
Factual and Procedural Background
On December 10, 2009, a Leavenworth County sheriff's deputy responded to an apparent car crash at around 5 o'clock in the afternoon. Dispatch received the call from a farmer who said that two men wanted the farmer to pull them out of a ditch. When the deputy arrived on the scene, he saw a four-wheel-drive Jeep Wrangler sitting in the northbound ditch facing south. The Jeep was partially stopped in the roadway. The deputy described the embankment as “pretty steep” and noted that the driver's side was almost touching the embankment, making the driver's-side door inaccessible. The deputy estimated the temperature at 25 to 30 degrees and described the gravel road as being covered by “[a]t most probably a quarter of an inch” of packed snow.
Two men—Miller and Jeffrey Jacobs—were at the scene. Miller admitted that he had been driving the Jeep but denied crashing into the ditch. The deputy testified about the “odor of an alcoholic beverage” coming from Miller while Miller was “staggering around.” Miller initially denied having had anything to drink. But Miller then said he'd had two drinks and later said he'd had four beers. Miller said he drank the beers at Jacobs' house. The deputy did not observe any cans or alcohol containers surrounding the Jeep, although he later conceded that he did not thoroughly walk around the scene.
Miller agreed to perform field-sobriety tests. The field-sobriety tests were administered on a patch of gravel that was generally clear of snow. During the walk-and-turn test, the deputy saw Miller lose his balance during the instruction phase several times before Miller said he “couldn't do the test” because of his “peripheral vision.” The deputy testified that Miller appeared to be losing his balance rather than slipping. During the one-leg-stand test, the deputy said, Miller swayed while balancing, did not count out loud as instructed, and repeatedly dropped his foot after about 3 seconds. At trial, defense counsel stipulated that Miller did “horribly” on the field-sobriety tests—“I mean, it's obvious.” After those tests, Miller refused to submit to a preliminary breath test.
The deputy then arrested Miller, having formed the opinion that Miller was under the influence of alcohol to a degree that rendered him incapable of safely driving. The deputy said he based this opinion on Miller's balance, coordination, multitasking ability, statement that he didn't have any peripheral vision, and the fact that Miller appeared to have crashed in the ditch. Miller was eventually charged with DUI and refusal of a preliminary breath test.
Throughout the encounter, the deputy had to repeat several instructions. The deputy also reported that Miller exhibited wide variations in mood after his arrest: “He would go from laughing and being somewhat sociable to screaming and cussing at me and then just kind of back and forth....”
At trial, the judge watched a video of the encounter in open court. The deputy conceded that the road was very slick and that Miller could have attempted to brake, causing the car to slide into the ditch. The deputy also agreed that there was not a high-speed or high-force impact.
Miller testified that at around 2 o'clock, he and Jacobs had pulled over to the side of the road after spotting a deer. But then, he said, the Jeep couldn't get out of the ditch and became stuck due to the snow. Miller said that at this point he had only consumed a single beer at lunch. Miller said that he and Jacobs remained with the Jeep for around 3 hours before walking to a nearby farmhouse to seek aid. Miller testified that while they were stuck he drank three beers and a pint of vodka. Miller said he threw the empty containers on the side of the road away from the Jeep.
Miller explained that Jacobs could not testify because he had died several months earlier. The court admitted a letter between Miller and Miller's attorney from earlier that year; the letter from the attorney to his client noted that Jacobs “is hopefully going to be present with you to testify that you drank a certain portion of alcohol, specifically vodka, as well as 4 beers, after you had the accident and obviously not while you were either operating or attempting to operate a vehicle.”
After hearing all the evidence, the judge clearly stated his conclusion that Miller's testimony wasn't credible: “[F]rankly, I just don't believe you, Mr. Miller. I just don't believe the facts that you've recited are believable.” The court found that there was no credible evidence that the alcohol was consumed after the accident. The judge concluded by explaining what he believed had occurred, based on the testimony he found credible:
“[T]here's no explanation for why [Miller] would not be able to drive down the roadway when a car was able to drive down that roadway but for the impairment of alcohol; that [Miller was] incapable of realizing how close [he] was getting to the ditch and then how to react as [he] got close to the ditch and, in fact, then went into the ditch, because no one would purposely park like that.
....
“1 believe this alcohol was consumed prior to [the accident], and, therefore, impaired your ... ability to operate that motor vehicle safely....”
Accordingly, the court found Miller guilty of DUI and refusal of a preliminary breath test.
DUI sentences can be greater if the person has had prior DUI offenses. The State offered evidence on three prior convictions, all occurring before 2001. One of the prior convictions was shown by a one-page document—a diversion agreement—indicating that Miller had entered into a diversion agreement in Topeka Municipal Court for a DUI charge in 1996. The document said that “[t]he defendant [Miller] understands [he] has the following rights in this case,” followed by a listing of his right to a speedy trial, his right to a jury trial, and “the right to be represented at all stages of this case by a lawyer of [his] own choosing or, if without funds with which to hire a lawyer and found by the Court to be indigent, by a court-appointed lawyer.” The agreement followed that listing of rights by stating that “the defendant[,] by signing this agreement, knowingly and voluntarily gives up these rights, including the right to a lawyer.” While the handwriting on the form is barely legible, the agreement appears to contain Miller's signature but not the signature of a defense attorney. There is something written at the top after “Defense Attorney,” but it is not legible from the copy in the record; Miller contends that the writing reads “pro se.” The agreement does not contain a judge's signature but does contain a stamp from the Topeka Municipal Court certifying that it is contained within that court's records.
Miller objected to the admission of two of the three convictions. In a written decision, the court excluded evidence of a prior Texas conviction but allowed evidence of the two other convictions, including the 1996 diversion agreement from Topeka Municipal Court. Accordingly, the court sentenced Miller as a third-time DUI offender over Miller's objections. Miller received an underlying jail sentence of 1 year with probation granted after 90 days. Miller has appealed to this court.
Analysis
I. The District Court Did Not Err in Failing to Retroactively Apply K.S.A.2011 Supp. 8–1567.
Under the 2011 amendments to the Kansas DUI statute, to determine whether a conviction is a first, second, third, fourth, or subsequent conviction, “only convictions occurring on or after July 1, 2001, shall be taken into account.” K.S.A.2011 Supp. 8–1567(j)(3). In contrast, at the time of Miller's most recent offense, in 2009, the statute provided that “any [DUI] convictions occurring during a person's lifetime shall be taken into account when determining the sentence to be imposed.” (Emphasis added.) K .S.A.2009 Supp. 8–1567(o)(3). Determining whether the 2011 amendment should be applied when sentencing for a DUI offense that occurred in 2011 is a matter of statutory interpretation, a legal question that we determine independently, without any required deference to the district court. See State v. Mason, 294 Kan. 675, 676, 279 P.3d 707 (2012).
Whether to apply the 2011 amendment when sentencing Miller is important because none of his past DUI offenses—all of which took place before 2001—would be considered. That would make the 2009 offense a first-offense DUI, which is a misdemeanor, rather than a third-offense DUI, which is a felony. See K.S.A.2009 Supp. 8–1567(d), (f)(1). The penalties for the first-offense, misdemeanor DUI are—not surprisingly—less than those for the third-offense, felony DUI.
But the general rule in Kansas is that a defendant is sentenced based on the law in effect when the crime was committed. State v. Williams, 291 Kan. 554, 559, 244 P.3d 667 (2010); State v. Walker, 277 Kan. 849, 850, 89 P.3d 920 (2004). As a policy matter, “having the penalty parameters for an offense ‘fixed as of the date of the commission of the offense is fair, logical, and easy to apply.’ “ Williams, 291 Kan. at 560 (quoting State v. Vandervort, 276 Kan. 164, 180, 72 P.3d 925 [2003] ). In addition, a statute generally operates prospectively (applying only to future events) unless the language of the statute clearly makes the statute retroactive. The only exception to this rule is if the statutory change is procedural or remedial in nature and does not prejudicially affect the parties' substantive rights. Williams, 291 Kan. at 557.
Miller argues that the 2011 amendment regarding which past DUI offenses would count should be considered procedural and remedial. But a panel of this court rejected arguments similar to those raised by Miller in State v. Reese, 48 Kan.App.2d 87, 91, 283 P.3d 233 (2012), petition for rev. filed September 4, 2012. The Reese decision thoroughly considered retroactive application of the amendment and rejected retroactivity as inconsistent with settled Kansas authority considering changes in sentencing statutes. 48 Kan.App.2d at 88–91. Several panels of this court have since agreed with the Reese analysis. See State v. Hungerford, No. 108,200, 2013 WL 781143 (Kan.App.2013) (unpublished opinion); State v. Florez, No. 107,678, 2013 WL 781133 (Kan.App.2013) (unpublished opinion), petition for rev. filed March 29, 2013; State v. Ulrich, No. 107,785, 2012 WL 5869662, at *1–4 (Kan.App.2012) (unpublished opinion), petition for rev. filed December 17, 2012; State v. Loredo, No. 108,073, 2012 WL 5205761, at *1 (Kan.App.2012) (unpublished opinion); State v. Eberlein, No. 107,050, 2012 WL 5205609, at *1 (Kan.App.2012) (unpublished opinion), petition for rev. filed November 16, 2012; State v. Stuart, No. 106,963, 2012 WL 4795599, at *7 (Kan.App.2012) (unpublished opinion), petition for rev. filed November 1, 2012; State v. Schmidt, No. 107,581, 2012 WL 4121132, at *1 (Kan.App.2012) (unpublished opinion); see also State v. Thacker, No. 107,464, 2012 WL 3136812, at *1–2 (Kan.App .2012) (unpublished opinion), petition for rev. filed August 22, 2012 (decided before Reese; refusing to apply 2011 amendments retroactively). So do we.
In Reese, this court agreed with the district court's finding that the amendment to the “look-back” statute was a substantive change in the law that should not be applied retroactively. 48 Kan.App.2d at 90–91. The Reese court concluded it should apply the Kansas Supreme Court's finding from Williams, 291 Kan. at 557, that a statutory amendment modifying the severity of punishment for a conviction affects the defendant's substantive rights, and therefore only operates prospectively. Reese, 48 Kan.App.2d at 90.
Furthermore, the Reese court rejected an argument that under the plain language of the statute, the date of sentencing should be used to determine which version of the statute to apply. 48 Kan.App.2d at 89–90. The Reese court based its decision on the fact that the legislature explicitly provided for retroactive application of some provisions within the act in which this amendment to the “look-back” statute was included, so the legislature's failure to explicitly provide for retroactive application for K.S.A.2011 Supp. 8–1567(j)(3) meant it intended the “look-back” change to be applied prospectively only. Reese, 48 Kan.App.2d at 90–91.
Finally, the Reese court rejected an argument that the statute should be retroactively applied simply because the defendant should receive the benefit of a sentencing amendment that would lessen his sentence. 48 Kan.App.2d at 91. The court rejected this argument because the Kansas Supreme Court has not recognized a rule that would apply a statute retroactively for this reason. 48 Kan.App.2d at 91; see Ulrich, 2012 WL 5869662, at *9.
Miller also cites Dorsey v. United States, 567 U.S. ––––, 132 S. Ct 2321, 183 L.Ed.2d 250 (2012), a case not discussed in Reese, in support of his position that the amendments should be applied retroactively. In Dorsey, the United States Supreme Court held that the more lenient penalties of the Fair Sentencing Act of 2010 applied to those offenders who committed an offense before the Act's effective date but were sentenced after the effective date. 132 S.Ct. at 2326 (analyzing federal sentencing statute that reduced penalties for crimes related to crack cocaine). The Court came to this conclusion despite the absence of express congressional intent, finding that there was a “ ‘fair implication’ “ of its intent based on an analysis of several factors. 132 S.Ct. at 2335.
But there's a significant difference between the federal Sentencing Reform Act of 1984 and Kansas law. As the Dorsey Court noted, the federal Sentencing Reform Act (later amended by the Fair Sentencing Act) expressly states that the federal sentencing guidelines “ ‘in effect on the date the defendant is sentenced’ “ control regardless of when the offense occurs. 132 S.Ct. at 2331 (quoting 18 U.S.C. § 3553[a][4][A][ii][2006] ). And there was a specific finding in the Fair Sentencing Act that previous sentences for crimes related to crack cocaine were “unfairly long” compared to sentences for crimes related to powder cocaine. Dorsey, 132 S.Ct. at 2333. These two factors contributed to the Court's conclusion that there was a “ ‘fair implication’ “ of congressional intent for lower mandatory minimums to apply to post-Act sentencing of pre-Act offenders. 132 S.Ct. at 2332–35.
The Kansas Legislature didn't include any similar provisions in our DUI statutes, and a panel of this court recently held that Dorsey was inapplicable to an argument like the one Miller makes here:
“First, the [Fair Sentencing Act] is very specific legislation and not an across the board change in the jurisprudence of the retroactive or prospective application of new legislation depending on whether the legislation is procedural or substantive. Second, we are not dealing with a disparate sentencing scheme between two different forms of cocaine. Third, there are provisions in the changes to the DUI laws that were expressly made retroactive—the calculation of prior[ ] DUI convictions was not one of them. Dorsey is not applicable to the instant case.” Ulrich, 2012 WL 5869662, at *9.
Once again, we agree.
The Reese and Ulrich courts' reasoning is sound and persuasive. Miller does not present any persuasive new arguments that were not addressed in Reese, Ulrich, and other cases examining retroactivity of an amended statute. The amendment to K.S .A.2011 Supp. 8–1567(j)(3) does not apply retroactively, and Miller was not entitled to be sentenced under the amended statute.
II. The District Court Did Not Err in Considering Miller's Prior Diversion Agreement as a DUI Conviction.
Next, Miller argues that the district court erred in admitting Miller's prior DUI diversion agreement to enhance his current DUI charge. Miller claims that the State did not prove that Miller's diversion agreement (1) contained a knowing and intelligent waiver of his right to counsel and (2) was charged under a similar standard to K.S.A. 8–1567. a. Even Though Miller Had No Counsel in the Prior Diversion Case, It Still May Be Used Here to Enhance His Punishment on a New DUI Conviction.
Miller contends on appeal that the Topeka diversion cannot be considered—and thus result in increased punishment for his current DUI offense—because the record doesn't clearly show that he made a valid waiver of his right to an attorney. But there are two problems with his argument.
First, under the terms of Miller's diversion agreement, he was not required to serve any jail time. Both the United States Supreme Court and the Kansas Supreme Court have held that even an uncounseled misdemeanor conviction that does not result in incarceration may be considered in determining a defendant's criminal history—and thus his or her potential punishment—in a later case. Nichols v. United States, 511 U.S. 738, 746–47, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994); State v. Delacruz, 258 Kan. 129, 135–36, 899 P.2d 1042 (1995).
Miller makes no claim that he served any jail time in connection with the Topeka offense, and our record does not suggest that he did. Rather, our record shows a diversion agreement that provided for the payment of fees, fines, and court costs; alcohol education and potential alcohol treatment; and general good behavior—but no jail time. Only if Miller would have failed on diversion could he have ended up in the adjudicative proceedings at which there would have been a possibility of some jail time. Cf State v. Youngblood, 288 Kan. 659, Syl. ¶ 2, 206 P.3d 518 (2009) (noting that the right to counsel applies “at the stage of the proceedings where guilt is adjudicated ... and the prison sentence determined.”). So even if Miller didn't make a valid waiver of any right to counsel in the Topeka case, the diversion agreement may still be considered. And a diversion agreement for DUI counts as a prior conviction. See K.S.A.2009 Supp. 8–1567(o).
Second, even if there had been some jail time on the Topeka case, thus taking the case out of the rule announced in Nichols and Delacruz, our record still contains an adequate waiver of Miller's right to counsel. In In re Habeas Corpus Application of Gilchrist, 238 Kan. 202, 708 P.2d 977 (1985), a case involving a municipal-court trial (rather than diversion agreement), our Supreme Court provided a form of certification that a municipal court could use to show that there had been a proper waiver of the right to counsel. The diversion agreement in our case provides equivalent information.
The Gilchrist court recognized that because municipal courts are not courts of record, there will be no transcript of any conversation occurring between the defendant and the judge regarding the defendant's right to counsel. 238 Kan. at 207. That was the basis for the court's suggested form of a certification that could be made by the municipal judge to demonstrate that an appropriate waiver of rights had been made:
“I hereby certify that the above named person has been fully informed of the charges against him or her and of the accused's right to have counsel, either retained or appointed, to represent the accused at the proceedings before this Court and that the accused has executed the above waiver in my presence, after its meaning and effect have been fully explained to the accused, this ____ day of ____, 19 ____.
JUDGE OF THE MUNICIPAL COURT.” 238 Kan. at 212.
Even so, municipal courts are not required to use the exact waiver form provided in Gilchrist for a waiver to be effective. See State v. Hughes, 290 Kan. 159, 168–69, 224 P.3d 1149 (2010).
Miller emphasizes that there's no certification from a judge here. That's the case because the diversion agreement was between the city prosecutor and Miller, and no court involvement was required if Miller complied with the agreement. But the language in the diversion agreement advised Miller of the right to counsel, and he explicitly waived that right:
“The defendant understands he/she has the following rights in this case: The right to a speedy arraignment; the right to a trial to the Court, and if convicted, the right to appear before the District Court and have the case tried anew before a jury; the right to a speedy trial as provided by Kansas statutes and the Kansas and U.S. Constitutions; the right to be represented at all stages of this case by a lawyer of his/her own choosing or, if without funds with which to hire a lawyer and found by the Court to be indigent, by a court-appointed lawyer. Knowing these rights, the defendant, by signing this agreement, knowingly and voluntarily gives up these rights, including the right to a lawyer if not represented by one in this case.” (Emphasis added.)
The Gilchrist certification would show that Miller knew of his right “to have counsel, either retained or appointed,” 238 Kan. at 212, and the diversion agreement told him that. Under these circumstances, we do not believe that a separate certification by a judge—or an appearance in front of the judge to have him or her explain what was already provided to the defendant in writing—was required.
b. The Municipal DUI Ordinance Prohibited the Same Acts as the Current Kansas DUI Statute.
For a prior DUI conviction to count as a prior offense, the law underlying the conviction must prohibit the same acts that our present DUI statute prohibits. At the time of Miller's offense, K.S .A.2009 Supp. 8–1567(o) provided that entering into a diversion agreement in lieu of further criminal proceedings for a violation of either the state statute or a city ordinance prohibiting the same acts counts as a prior “conviction” under the statute. Here, the diversion agreement in the record does not state what statute or ordinance it was obtained under. Instead, the agreement simply refers to a DUI charge. Miller argues that the State did not prove what standard was used under the Topeka DUI ordinance then in effect, so the diversion agreement cannot be used to enhance the sentence.
But this court may take judicial notice of relevant city ordinances even if the trial court failed to do so. See K.S.A. 60–412(c) (reviewing court in its discretion may judicially notice any matter listed in K.S.A. 60–409 even though not judicially noticed by the trial court); Goodwin v. City of Kansas City, 244 Kan. 28, 30–31, 766 P.2d 177 (1988) (Kansas Supreme Court applied K.S.A. 60–412 and took judicial notice of zoning ordinances not added to the record by either party). Topeka has adopted the Standard Traffic Ordinances for Kansas Cities, Topeka Municipal Code Section 10.15.010 (2012), and it prohibited the same conduct that the applicable DUI statute prohibited at the time of Miller's diversion agreement.
In 1996, the Topeka DUI ordinance read:
“(a) No person shall operate or attempt to operate any vehicle within this city while:
(1) The alcohol concentration in the person's blood or breath as shown by any competent evidence, including other competent evidence, is .08 or more;
(2) The alcohol concentration in the person's blood or breath as measured within two hours of the time of operating or attempting to operate a vehicle, is .08 or more;
(3) Under the influence of alcohol to a degree that renders the person incapable of safely driving a vehicle;
(4) Under the influence of any drug or combination of drugs to a degree that renders the person incapable of safely driving a vehicle; or
(5) Under the influence of a combination of alcohol and any drug or drugs to a degree that renders the person incapable of safely driving a vehicle.” Standard Traffic Ordinance for Kansas Cities, art. 6, sec. 30(a), p. 30 (1995 ed.).
This part of the ordinance contains virtually identical language to the DUI statute applicable at the time of Miller's current offense. See K.S.A.2009 Supp. 8–1567(a). Thus, the Topeka DUI ordinance prohibits the same acts as K.S.A.2009 Supp. 8–1567(a).
Miller cites two unpublished opinions in which our court held past municipal convictions could not be counted, but neither is similar to Miller's case. In State v. Wood, No. 105, 128, 2012 WL 718928, at *2 (Kan.App.2012) (unpublished opinion), rev. denied 296 Kan. –––– (February 28, 2013), and State v. McClain, No. 104,263, 2011 WL 3795476, at *4 (Kan.App.2011) (unpublished opinion), rev. denied 293 Kan. –––– (February 3, 2012), panels of this court held that a 1985 Lenexa DUI ordinance and a 1978 Overland Park DUI ordinance, respectively, did not prohibit the same acts as the Kansas DUI statute. Therefore, the prior DUI convictions did not enhance the sentence for the current DUI charge. Wood, 2012 WL 718928, at *2;McClain, 2011 WL 3795476, at *4. But in both Wood and McClain, the municipal ordinances were worded significantly broader than the present Kansas DUI statute. See Wood, 2012 WL 718928, at *2;McClain, 2011 WL 3795476, at *4. In contrast, here the language in the 1995 Topeka ordinance is nearly identical to the applicable Kansas DUI statute. Because there is no doubt that the ordinance prohibited the same acts as K.S.A.2009 Supp. 8–1567(a), Miller's diversion agreement was properly used to enhance his sentence.
III. Sufficient Evidence Supported Miller's Current DUI Conviction.
Miller's final argument is that the evidence was insufficient to support his conviction. According to Miller, no evidence contradicted Miller's testimony that he only became drunk after the Jeep became stuck in the snow. Additionally, Miller claims that the district court improperly shifted the burden of proof to Miller by noting that testimony of a deceased witness and evidence of discarded alcohol containers might have been helpful to Miller's defense. a. A Reasonable Fact–Finder Could Have Found Miller Guilty of DUI.
When the sufficiency of evidence is challenged in a criminal case, we must look at all the evidence in a light most favorable to the prosecution (since the trial court, which was charged with fact-finding, found in its favor) and determine whether a rational fact-finder could have found the defendant guilty beyond a reasonable doubt. State v. Frye, 294 Kan. 364, 374–75, 277 P.3d 1091 (2012). As a general rule, we do not reweigh the evidence or the credibility of witnesses. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011). It is only in rare cases where the testimony is so incredible that no reasonable fact-finder could have found guilt beyond a reasonable doubt that a guilty verdict will be reversed. See, e.g., State v. Matlock, 233 Kan. 1, 5–6, 660 P.2d 945 (1983). A verdict may be supported by circumstantial evidence, if such evidence provides a basis from which the fact-finder may reasonably infer the existence of the fact in issue, and the evidence need not exclude every other reasonable conclusion or inference. State v. Scaife, 286 Kan. 614, 618, 186 P.3d 755 (2008).
Because Miller is essentially asking the court to reweigh his testimony, Miller is arguing that no reasonable fact-finder could have found him guilty beyond a reasonable doubt. See Matlock, 233 Kan. at 5–6. Certainly, if the judge believed Miller's testimony, Miller could have been found not guilty. There is no direct evidence that Miller was drunk before he crashed the Jeep. But the judge made it exceedingly clear that he did not believe Miller's testimony. Miller contends that “ ‘ “[u]ncontradicted evidence which is not improbable or unreasonable cannot be disregarded ... unless it is shown to be untrustworthy; and such uncontradicted evidence should ordinarily be regarded as conclusive.” ‘ “ Sullivan v. Kansas Dept. of Revenue, 15 Kan.App.2d 705, 708, 815 P.2d 566 (1991) (quoting Home Life Ins. Co. v. Clay, 13 Kan.App.2d 435, 444, 773 P.2d 666,rev. denied 245 Kan. 783 [1989] ), disapproved on other grounds by Sloop v. Kansas Dept. of Revenue, 296 Kan. 13, 290 P.3d 555 (2012). But here, the judge expressly found that Miller's testimony was improbable and unreasonable. In Sullivan, unlike here, the district court did not expressly pass on the credibility of the testimony at issue. Because here the district court clearly judged Miller's credibility to be lacking, the court did not “ arbitrarily disregard the only evidence presented.” (Emphasis added.) See Sullivan, 15 Kan.App.2d at 708. Despite the lack of direct evidence against him, a reasonable fact-finder could have found beyond a reasonable doubt that Miller was drunk when he crashed the Jeep. b. The District Court Did Not Shift the Burden to Miller to Prove His Innocence.
Miller's contention that the district court shifted the burden to Miller to prove his innocence is unsupported by a common-sense reading of the record. Before finding Miller guilty, the judge observed: “It is unfortunate [that Jacobs] is not with us today, because I think that would have been of great benefit to the Court....” The court also noted: “Obviously, somebody went back to the scene and took pictures of the vehicle, but nobody pointed out any post-accident consumption by pointing out cans or bottles.” Based on these comments, Miller contends that “the Court was refusing to believe [Miller] unless a deceased witness was produced” and was requiring Miller to produce the leftover bottles to prove his innocence. (Emphasis added.)
The court did not shift any burden to Miller or suggest that Miller had an obligation to prove his own innocence. Miller's interpretation of those comments exaggerates what was actually said. In the comments at issue, the court simply observed the deficiencies in Miller's defense compared to the evidence presented by the State. As noted above, the fact-finder may weigh the credibility of a witness and convict based on circumstantial evidence. See Hall, 292 Kan. at 859;Scaife, 286 Kan. at 618. Thus, the district court did not shift the burden to Miller or otherwise act improperly.
The district court's judgment is affirmed.