Opinion
112,577.
07-10-2015
STATE of Kansas, Appellee, v. John SIGG, Appellant.
Linus A. Thuston, of Chanute, for appellant. Christopher Phelan, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Linus A. Thuston, of Chanute, for appellant.
Christopher Phelan, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., HILL and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
John Sigg appeals his conviction from the Allen County District Court, claiming that the district court erred in denying his motion for judgment of acquittal. But Sigg failed to preserve his motion by reasserting it at the close of all the evidence. Nevertheless, Sigg correctly contends that there was insufficient evidence to convict him of speeding in a construction zone. Thus, we reverse his conviction.
Shortly after noon on April 15, 2014, Roy Smith—an undersheriff employed by the Allen County Sheriff Department—stopped a black Dodge pickup that was driving west on U.S. Highway 54 between Gas and Iola, Kansas. Officer Smith wrote the driver—Sigg—a speeding citation. The citation alleged that Officer Smith had used a radar gun to determine that Sigg was driving 62 mph in a 45 mph construction zone.
Four months later on August 18, 2014, a district magistrate judge conducted a bench trial. At trial, Officer Smith testified that the location where Sigg was stopped was “a placard construction area zone and had been for several months.” However, Officer Smith never testified regarding a sign indicating a lower speed limit. On crossexamination, Smith agreed that construction workers had to take out various signs next to the road in order to widen the highway.
At the close of the State's evidence, Sigg moved for judgment of acquittal, arguing that there was no testimony of a posted speed limit on the day of the stop. The judge denied the motion. In doing so, the judge reasoned, “the undersheriff testified that the speed limit was 45 miles an hour. The only way he could have known that, as far as I'm concerned, is it would have to have been posted.”
Afterward, Sigg testified that he had been travelling the stretch of road between Rock Creek Bridge and Iola since the 1960's and believed the speed limit at the location where he was stopped to be 65 mph. Furthermore, Sigg testified that after he received the speeding citation, he drove the stretch again and could not find a sign indicating the speed limit. In addition, Sigg's son testified that he regularly drives on the same stretch of Highway 54 where his father was ticketed and also believed the speed limit to be 65 mph. Moreover, Sigg's son testified that on the day that his father was ticketed, he drove the stretch and did not see a posted speed limit sign.
At the close of all the evidence, Sigg did not renew his motion for judgment of acquittal. Ultimately, the judge found Sigg guilty and ordered a fine of $174 as well as court costs. Thereafter, Sigg timely appealed to this court.
On appeal, Sigg first contends that the district court erred by denying his motion for acquittal. The Kansas Supreme Court has held, however, that when a defendant unsuccessfully moves for judgment of acquittal at the close of the State's evidence and then presents evidence on his or her behalf, the defendant waives any error in denial of the motion. State v. Blue, 225 Kan. 576, 578, 592 P.2d 897 (1979). Our Supreme Court later modified the rule to provide that a defendant does not waive error if the defendant presented only rebuttal evidence that was confined to the substance and credibility of the testimony by the witnesses for the State or codefendant and did not attempt to refute any elements of proof adduced in the State's case. State v. Copes, 244 Kan. 604, 610–11, 772 P.2d 742 (1989). In addition, Copes stated that “[i]f the motion for acquittal is renewed after the close of all of the evidence, the trial court should consider all of the evidence in ruling upon that motion.” 244 Kan. at 607.
Here, the record indicates that Sigg did not renew his motion for judgment of acquittal at the close of all the evidence. In addition, his testimony—as well as that of his son—attempted to refute Officer Smith's claim that a speed limit was posted. Hence, Sigg was required to renew his motion for acquittal in order for the judge to review all the evidence that was presented. See Copes, 244 Kan. at 607 ; see also State v. Murdock, 286 Kan. 661, 670, 187 P.3d 1267 (2008) ; State v. Mitchell, No. 108,912, 2014 WL 113441, at *4 (Kan.App.) (unpublished opinion), rev. denied 301 Kan.–––– (2014).
Notwithstanding, Sigg also contends that there was insufficient evidence to convict him of speeding in a construction zone. When reviewing the sufficiency of the evidence, we review all the evidence in the light most favorable to the prosecution and must be convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014). In doing so, we do not reweigh evidence, resolve evidentiary conflicts, or determine a witness' credibility. 299 Kan. at 525.
Under K.S.A. 8–1559(c), “[t]he secretary of transportation may establish the speed limit within a road construction zone, as defined in K.S.A. 8–1458a, and amendments thereto, upon any highway under the jurisdiction of the secretary, and the speed limit shall be effective when appropriate signs giving notice thereof are erected. ” (Emphasis added.) In State v. Lichty, No. 93,739, 2006 WL 538279 (Kan App.2006) (unpublished opinion), a panel of this court reversed a speeding conviction where a driver had entered I–435 from Parallel Parkway in Wyandotte County between posted signs designating that the stretch of road was a construction zone and that the speed limit was 55 mph. In doing so, the panel found:
“In view of the caveat of K.S.A. 8–1559(c) that a lower speed limit in a construction zone shall be effective only when appropriate signs giving notice thereof are erected, a rational factfinder could not have found beyond a reasonable doubt that [the driver] was guilty of speeding in a construction zone.” 2006 WL 538279, at *3.
Similarly, in the present case, there is no evidence in the record of a sign notifying drivers of a lower speed limit at the location where Sigg was stopped. Although Officer Smith testified that the location of the stop was in “a placard construction area zone,” he never identified the location of any signs indicating a lower speed limit. Although the State characterizes the evidence as conflicting, the issue presented in this appeal is not whether the construction zone was unmarked. Rather, the issue is whether there is any evidence of a speed limit sign that notified drivers—such as Sigg—of a lower speed limit. Perhaps there were such signs but there is simply nothing in the record to tell us so.
We, therefore, conclude that there is insufficient evidence in the record to support a conviction for speeding in a construction zone.
Reversed.