State v. Perkins (Supreme Court)

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 103,735

STATE OF KANSAS,
Appellee,

v.

THOMAS PERKINS,
Appellant.


SYLLABUS BY THE COURT

1.
The legislature did not intend to create alternative means of committing the crime
of driving under the influence under K.S.A. 2008 Supp. 8-1567(a) by placing the
disjunctive "or" between the term "operate" and the phrase "attempt to operate."

2.
The legislature employed the phrase "operate or attempt to operate" to describe the
factual circumstances sufficient to establish a material element of driving under the
influence—i.e., driving.

3.
The inclusion of the "operating or attempting to operate" language from the
driving under the influence statute in jury instructions does not create a jury unanimity
problem and does not demand application of the super-sufficiency requirement.

4.
In prosecuting a driving under the influence charge, the State may, but is not
required to, prove both sets of factual circumstances that may support the driving element
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of the offense—i.e., that a defendant operated a vehicle while under the influence of
alcohol or attempted to operate a vehicle while under the influence of alcohol.

5.
A driving under the influence conviction, like any conviction, can be supported by
circumstantial evidence.

Review of the judgment of the Court of Appeals in 46 Kan. App. 2d 121, 257 P.3d 1283 (2011).
Appeal from Norton District Court; WILLIAM B. ELLIOTT, judge. Opinion filed December 21, 2012.
Judgment of the Court of Appeals affirming the district court on the single issue subject to our review is
affirmed in part and reversed in part. Judgment of the district court on that issue is affirmed.

Joanna Labastida, of Kansas Appellate Defender Office, argued the cause and was on the brief
for appellant.

R. Douglas Sebelius, county attorney, argued the cause, and Steve Six, attorney general, was with
him on the brief for appellee.

The opinion of the court was delivered by

MORITZ, J.: We granted Thomas Perkins' petition for review of the Court of
Appeals' decision affirming his conviction for driving under the influence of alcohol
(DUI). Perkins claims he was deprived of his right to a unanimous jury verdict because
the State charged him with alternative means of committing DUI, the jury was instructed
on both means, and the State failed to present sufficient evidence to establish both means
on which the jury was instructed.

Relying on State v. Ahrens, 296 Kan. ___, ___ P.3d ____ (No. 103,662, filed
December 21, 2012), we reverse the Court of Appeals' determination that the phrase
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"operate or attempt to operate" in K.S.A. 2008 Supp. 8-1567(a) creates alternative means
of committing a crime. Instead, as we held in Ahrens, that phrase merely describes the
factual circumstances supporting the "driving" element of the offense. And because
"operating a vehicle" and "attempting to operate a vehicle" are not alternative means, the
State was not required to prove both sets of factual circumstances. Slip op. at 12-13.
Here, Perkins concedes the State presented sufficient proof that Perkins operated the
vehicle while under the influence of alcohol; therefore we need not consider whether the
Court of Appeals properly concluded the evidence of an attempt to operate the vehicle
also was sufficient, and we affirm his DUI conviction.

FACTUAL AND PROCEDURAL BACKGROUND

Kansas Highway Patrol Trooper Phil Henrickson was on patrol in Norton County
when he saw a truck parked on the shoulder of the highway. Henrickson noticed the
passenger door was open and decided to stop to make a safety check. As he did so, he
saw a man, later identified as Gage Hoft, get out of the passenger side of the truck, walk
around the back of the truck, and approach the driver's side of the truck.

Henrickson approached Hoft and asked him if everything was okay. Hoft told
Henrickson he was going to drive because the driver, later identified as Perkins, was
having back problems. Henrickson attempted to speak with Perkins, who was seated in
the driver's seat. Perkins did not respond to Henrickson but instead got out of the truck,
walked around to the passenger side, and sat in the passenger seat. According to
Henrickson, Perkins appeared to be under the influence of alcohol as he staggered around
the truck. Henrickson also observed three open containers of alcohol in the front seat of
the truck. Henrickson requested Perkins' driver's license and proof of insurance, which
Perkins had difficulty providing. Based on his observations, Henrickson began a DUI
investigation.
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After Perkins failed preliminary sobriety tests and demonstrated "very slurred"
speech and "bloodshot and droopy" eyes, Henrickson arrested Perkins for DUI and
transporting an open container. At some point during the investigation, Perkins told
Henrickson that he had had too much to drink, that he had been on his way home,
"heading over the line, speeding," and Hoft was going to drive the rest of the way home.

The State charged Perkins with three crimes: unlawfully operating or attempting
to operate a vehicle while under the influence of alcohol in violation of K.S.A. 2008
Supp. 8-1567(a), transporting an open container of alcoholic beverage in violation of
K.S.A. 2008 Supp. 8-1599, and driving while suspended (DWS) in violation of K.S.A.
2008 Supp. 8-262.

Perkins testified at trial, admitting he was intoxicated the day of his DUI arrest and
that he had also taken hydrocodone, but he denied driving or attempting to drive that day.
Hoft and Perkins both testified that Hoft had been driving the truck but pulled over to the
side of the road so Perkins could vomit. Both men claimed that after Perkins vomited on
the passenger side floorboard, Hoft pulled over and Perkins moved to the driver's seat so
Hoft could clean up the floorboard. However, Henrickson and another officer who
arrived as backup both testified they observed no signs of regurgitation in or near the
truck.

Regarding the DUI charge, the jury was instructed as follows:

"INSTRUCTION NO. 7

"The defendant is charged with the crime of operating or attempting to operate a
motor vehicle while under the influence of alcohol. The defendant pleads not guilty.
"To establish this charge, each of the following claims must be proved:
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1. That the defendant drove or attempted to drive a vehicle;
2. That the defendant, while driving or attempting to drive, was under the
influence of alcohol to a degree that rendered him incapable of safely driving a vehicle;
and
3. That this act occurred on or about the 20th day of June 2009, in Norton
County, Kansas." (Emphasis added.)

"INSTRUCTION NO. 8

"The term 'to operate' as used in K.S.A. 8-1567 means 'to drive.' In order for a
person to be convicted of operating a motor vehicle while under the influence of alcohol,
the State must prove that the accused drove or attempted to drive a motor vehicle while in
an intoxicated condition.
"An attempt is any overt act toward the perpetration of a crime done by a person
who intends to commit such crime but fails in the perpetration thereof or is prevented or
intercepted in executing such crime." (Emphasis added.)

The jury convicted Perkins as charged, and Perkins directly appealed to the Court
of Appeals.

Court of Appeals' Decision

Perkins claimed the State alleged alternative means of proving both the DUI and
DWS convictions but failed to prove all of those means, requiring reversal of both
convictions. The panel concluded the State failed to prove the alternative means of
committing DWS and reversed that conviction. State v. Perkins, 46 Kan. App. 2d 121,
132-33, 257 P.3d 1283, rev. granted 293 Kan. ___ (2011).

Relying on State v. Stevens, 285 Kan. 307, 316, 172 P.3d 570 (2007), the panel
first concluded that K.S.A. 2008 Supp. 8-1567(a) contains alternative means of
committing the crime of DUI: (1) operating a vehicle while under the influence of
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alcohol or (2) attempting to operate a vehicle while under the influence of alcohol.
Perkins, 46 Kan. App. 2d at 122-23. Then, citing State v. Wright, 290 Kan. 194, Syl. ¶ 2,
224 P.3d 1159 (2010), the panel found the State was required to present sufficient
evidence to support both means and if it failed to do so, the panel was required to reverse
the conviction. 46 Kan. App. 2d at 123. After analyzing the evidence of attempt and the
meaning of the phrase "attempt to operate," the panel ultimately concluded the State
presented sufficient evidence that Perkins attempted to operate his vehicle while under
the influence of alcohol in violation of 8-1567(a) and affirmed his conviction. 46 Kan.
App. 2d at 127.

Perkins filed a petition for review challenging the panel's affirmance of his DUI
conviction. We granted his petition for review, obtaining jurisdiction under K.S.A. 20-
3018(b).

We note that the State did not cross-petition the panel's reversal of Perkins' DWS
conviction. Therefore, we will not consider the panel's ruling on that issue. But see State
v. Suter, 296 Kan. ___, ___ P.3d ___ (No. 103,164, filed December 21, 2012), slip op. at
18 (affirming panel's decision finding DWS statute did not contain alternative means).

DISCUSSION

In his petition for review, Perkins maintains he was deprived of his statutory right
to a unanimous jury verdict because the State charged him with alternative means of
committing DUI, the jury was instructed on both means, but the State failed to present
sufficient evidence to support both means. Specifically, Perkins argues the State failed to
present sufficient evidence that he attempted to operate the vehicle while he was under
the influence of alcohol. However, Perkins concedes the State presented sufficient
evidence that Perkins actually drove the vehicle.
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In reviewing the panel's decision, we must first determine whether K.S.A. 2008
Supp. 8-1567(a) contains alternative means of committing the crime. That task is made
much simpler in light of our recent opinion in Ahrens. There, applying the rubric of State
v. Brown, 295 Kan. 181, 284 P.3d 977 (2012), we concluded 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, slip op. at 12. Instead, we reasoned 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. Ahrens, slip op. at 13 (quoting Brown, 295
Kan. at 196-97).

Based on Ahrens, we hold that the jury in this case was not instructed on
alternative means with respect to the DUI charge and therefore the State was not required
to prove that Perkins both operated and attempted to operate a vehicle while under the
influence. See Ahrens, slip op. at 13; Brown, 295 Kan. at 196-97.

Further, Perkins concedes the State presented sufficient evidence that he operated
the vehicle while under the influence. Our review of the evidence confirms that the
State's proof more than confirms this concession. In so holding, we note that a DUI
conviction, like any conviction, can be supported by direct or circumstantial evidence.
See, e.g., State v. Ward, 292 Kan. 541, 581, 256 P.3d 801 (2011) (reiterating that a
conviction of even the greatest offense can be based entirely on circumstantial evidence),
cert. denied 132 S. Ct. 1594 (2012); State v. Kendall, 274 Kan. 1003, 1009, 58 P.3d 660
(2002) (noting that a DUI conviction may be supported by direct or circumstantial
evidence); State v. Fish, 228 Kan. 204, 210, 612 P.2d 180 (1980) ("Proof of driving does
not require an eyewitness to the driving. It may be shown by circumstantial
evidence . . . .").
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In conclusion, we reverse the panel's decision finding that K.S.A. 2008 Supp. 8-
1567(a) states alternative means of committing the crime of DUI. Further, because the
State presented sufficient evidence that Perkins operated a vehicle while under the
influence, we affirm the panel's decision to affirm Perkins' DUI conviction without
considering the panel's conclusion that the State presented sufficient evidence of an
attempt to operate.

Judgment of the Court of Appeals on the issue subject to our review is affirmed in
part and reversed in part. Judgment of the district court on that issue is affirmed, and
Perkins' conviction is affirmed.