State v. Baker

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NOT DESIGNATED FOR PUBLICATION

No. 120,411

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ANTHONY JOSEPH BAKER,
Appellant.


MEMORANDUM OPINION

Appeal from Edwards District Court; BRUCE T. GATTERMAN, judge. Opinion filed December 20,
2019. Affirmed.

Terry J. Malone, of Williams-Malone, P.A., of Dodge City, for appellant.

Kurtis Wiard, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before BUSER, P.J., SCHROEDER and WARNER, JJ.

PER CURIAM: Anthony Baker appeals his conviction for driving under the
influence, arguing the State failed to present sufficient evidence to prove he was
intoxicated to an extent that rendered him incapable of safely driving. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Officer Zane Martin pulled over Baker in Edwards County, Kansas, for failing to
use his turn signal. Officer Martin told Baker why he had stopped him and observed that
Baker's eyes were watery and bloodshot. Baker fumbled with his wallet for about two
minutes as he tried to retrieve his driver's license. Officer Martin asked Baker if he had
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consumed any alcohol before driving, and Baker stated he had not. Baker consented to
undergo standardized field sobriety tests. While stepping out of his truck to perform the
tests, Baker admitted to having drunk a beer earlier in the evening.

During the field sobriety tests, Officer Martin noted several indicators suggesting
Baker's intoxication. On the walk-and-turn test, Baker could not keep his balance during
the instructions phase, stepped off the line, failed to touch his heel to his toe several
times, and took eight steps instead of nine. During the one-leg-stand test, Baker put his
foot down several times and swayed significantly.

Baker also consented to a preliminary breath test. Officer Martin arrested Baker,
and another officer, Officer Jeremy Jarvis, took Baker to a hospital. Although Officer
Martin stated he has trouble smelling alcohol during traffic stops, Officer Jarvis smelled
alcohol emanating from Baker while taking him to the hospital. Once at the hospital,
Baker refused to consent to a blood draw.

The State charged Baker with driving under the influence of alcohol. After a bench
trial, the district court found him guilty. The court sentenced Baker to a suspended five-
day sentence, followed by one year of probation, and assessed a $1,250 fine.

On appeal, Baker claims the court lacked sufficient evidence to convict him of
driving under the influence. In particular, Baker claims the State did not present evidence
that he was under the influence of alcohol to a degree that rendered him incapable of
safely driving.

DISCUSSION

When a defendant challenges the sufficiency of the evidence to support his or her
conviction, an appellate court will not set that conviction aside for insufficient evidence if
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the court is convinced a rational fact-finder could have found the defendant guilty beyond
a reasonable doubt. State v. Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018). In
making this determination, appellate courts "'review[] all the evidence in a light most
favorable to the prosecution.'" 307 Kan. at 668. We "'do not reweigh evidence, resolve
evidentiary conflicts, or make witness credibility determinations.'" 307 Kan. at 668.

Nevertheless, "there must be evidence supporting each element of a crime." State
v. Kettler, 299 Kan. 448, 471, 325 P.3d 1075 (2014). The State bears the burden of
proving each element. In doing so, the State need not rely on direct evidence. Instead,
circumstantial evidence may be sufficient to support a conviction. Chandler, 307 Kan.
657, Syl. ¶ 3. A guilty verdict—even for the gravest of crimes—may be supported
entirely by circumstantial evidence as long as there is evidence as to each element of the
crime and an evidentiary basis for any reasonable inferences by the fact-finder. State v.
Lowery, 308 Kan. 1183, 1236, 427 P.3d 865 (2018). Circumstantial evidence need not
exclude every other reasonable conclusion to be sufficient. State v. Logsdon, 304 Kan. 3,
25, 371 P.3d 836 (2016).

Driving under the influence is defined, in relevant part, as "operating or attempting
to operate any vehicle within this state while . . . under the influence of alcohol to a
degree that renders the person incapable of safely driving a vehicle." K.S.A. 2018 Supp.
8-1567(a)(3). To find Baker guilty, the district court was required to find: (1) Baker
operated the vehicle (2) while he was under the influence of alcohol to an extent
rendering him incapable of safely driving (3) in Edwards County, Kansas. See PIK Crim.
4th 66.010 (2018 Supp.). The only dispute in this appeal is whether there was sufficient
evidence of the second element—whether Baker was incapable of safely driving his
truck.

The evidence presented at trial showed Baker's eyes were bloodshot and watery.
He fumbled with his wallet for about two minutes before he was able to retrieve his
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license. He smelled like alcohol. He failed the standard sobriety tests in numerous
ways—failing to keep his balance, stepping off the line, failing to touch his heel to his
toe, and miscounting steps during the walk-and-turn test, and swaying significantly
during the one-leg-stand test. And Officer Martin observed Baker fail to use his turn
signal twice while he was driving.

Baker does not argue that he passed these sobriety tests. Instead, he argues that
each of these facts can give rise to innocent inferences that might negate his guilt. He
argues that because the State failed to produce evidence refuting each of the innocent
explanations he provides, the evidence was insufficient to convict him of DUI. We
disagree.

It is not our role on appeal to reweigh the evidence or reassess credibility. Instead,
in order to give proper deference to the important role the fact-finder plays in evaluating
the testimony and other evidence presented below, we review the evidence—and
reasonable inferences drawn therefrom—in the light most favorable to the State. See
State v. Kane, 57 Kan. App. 2d __, __ P.3d __, (No. 119,749, filed November 27, 2019),
slip op. at 6. This court has previously recognized several of the indicators in Baker's case
as evidence of impairment. See State v. Wahweotten, 36 Kan. App. 2d 568, 570, 143 P.3d
58 (2006) (defendant's bloodshot eyes and slurred speech); State v. Moore, 35 Kan. App.
2d 274, 283, 129 P.3d 630 (2006) (defendant's difficulty communicating, delayed actions,
and odor of alcohol); State v. Huff, 33 Kan. App. 2d 942, 945-46, 111 P.3d 659 (2005)
(defendant's erratic driving, bloodshot eyes, fumbling to find his driver's license, and the
odor of alcohol formed a substantial basis for his conviction).

We conclude that the evidence presented at trial provides ample bases that Baker
was under the influence of alcohol to such an extent that he was incapable of safely
driving. That Baker smelled like alcohol and had watery, bloodshot eyes suggests he had
been drinking. That he struggled to find his license in his wallet and failed to follow
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instructions during the field sobriety tests suggests he was inebriated. That he had trouble
keeping his balance and swayed significantly suggests he was significantly intoxicated—
and could not safely drive his truck. Accord Logsdon, 304 Kan. at 25 (circumstantial
evidence "'tends to prove a fact in issue by proving other events or circumstances which,
according to the common experience of mankind, are usually or always attended by the
fact in issue'"). These reasonable inferences are sufficient to support Baker's conviction.

Affirmed.