State v. Barry

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NOT DESIGNATED FOR PUBLICATION

No. 119,033

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

BRENT M. BARRY,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JEFFREY E. GOERING, judge. Opinion filed March 1, 2019.
Affirmed in part, reversed in part, and vacated in part.

Rick Kittel, of Kansas Appellate Defender Office, for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before MALONE, P.J., HILL, J., and WALKER, S.J.

PER CURIAM: Brent M. Barry appeals his convictions of driving under the
influence (DUI) and improper stopping or parking following a bench trial on stipulated
facts. Barry claims the district court erred by allowing the State to amend the information
to add the DUI charge. He also claims there was insufficient evidence to support his
convictions. As the State concedes, the stipulated facts contained insufficient evidence to
support Barry's conviction of improper stopping or parking, so we reverse that conviction
and vacate the fine. But we otherwise affirm the district court's judgment.

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FACTS

On October 11, 2015, Sedgwick County Deputy Sheriff Tyler Brooks responded
to a suspicious character call and found Barry in the driver's seat of a Toyota Corolla
parked "in the middle of the roadway" with its lights on. Barry was the sole occupant of
the car, and he was slumped over with his face pressed against the steering wheel. Brooks
noticed Barry had vomit and saliva coming out of his mouth. Brooks knocked on the car's
window, and Barry woke up and "attempted to start the car and put it in gear," but the
car's battery was dead, so it would not start. When Brooks asked Barry to step out of the
car, he observed that Barry smelled strongly of alcohol; he slurred his speech; his eyes
were watery and bloodshot; he had difficulty balancing and leaning against the car; and
he had difficulty answering questions. Barry refused a preliminary breath test (PBT),
refused to undergo field sobriety testing, and refused to complete an intoxilyzer test.

On January 5, 2016, the State filed an information charging Barry with one count
of refusing to submit to a test to determine the presence of alcohol or drugs in violation of
K.S.A. 2015 Supp. 8-1025; one count of refusing to take a PBT in violation of K.S.A.
2015 Supp. 8-1012; and one count of improper stopping, standing, or parking in violation
of K.S.A. 8-1569. A few weeks after the State filed its information against Barry, the
Kansas Supreme Court issued its opinion in State v. Ryce, 303 Kan. 900, Syl. ¶ 12, 368
P.3d 342 (2016), holding that K.S.A. 2014 Supp. 8-1025 was facially unconstitutional.

On May 4, 2016, the State filed an amended information adding a charge of felony
DUI. A few weeks later, Barry filed a motion to strike the DUI count, arguing that the
amendment added a new crime and prejudiced his substantial rights. The district court
held a hearing on the motion on June 24, 2016. After hearing arguments of counsel, the
district court denied Barry's motion, finding that he was not prejudiced by the additional
charge and noting that the case had not yet been scheduled for a preliminary hearing.
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Several months later, on November 29, 2016, Barry waived his right to a
preliminary hearing. On December 20, 2016, Barry filed a motion to dismiss the charge
of refusing to submit to a test to determine the presence of alcohol or drugs in violation of
K.S.A. 2015 Supp. 8-1025, relying on the holding in Ryce that the statute criminalizing
such a refusal was facially unconstitutional. On August 11, 2017, the district court
granted Barry's motion and dismissed the charge of refusing to submit to a test to
determine the presence of alcohol or drugs.

The parties agreed to submit the matter to the court for a bench trial on stipulated
facts. On November 15, 2017, at the bench trial, Barry again moved for dismissal of the
DUI count alleging that the State had improperly amended the information. The district
court again denied the motion, incorporating by reference its prior ruling on the matter.
The district court then considered the stipulated facts which provided:

"If this matter proceeded to trial, the State would present testimony from
Sedgwick County Deputy Tyler Brooks. Deputy Brooks would testify that he responded
to a suspicious character call and located a car in the middle of the roadway at 103rd and
87th St. West. Deputy Brooks found Brent Barry, the sole occupant of the parked Toyota
Carolla [sic], in the driver's seat and slumped over the steering wheel. The Corolla was
parked in the middle of the road with lights on. The car was inoperable due to a dead
battery and could not be started. Deputy Brooks observed Mr. Barry to have vomit and
saliva coming out of his mouth with his face pressed against the steering wheel. Deputy
Brooks knocked on the window to wake Mr. Barry who woke up and attempted to start
the car and put it in gear. Deputy Brooks asked Mr. Barry to step out of the car. Deputy
Brooks observed that Mr. Barry had a strong odor of alcohol coming from his person,
slurred speech, bloodshot watery eyes, balance problems, difficulty with answering
questions, and leaning on the vehicle. Mr. Barry was offered a preliminary breath test and
field sobriety testing, which he refused. Mr. Barry was asked to complete an intoxilyzer
test and refused."

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The district court found Barry guilty on all counts, including the DUI, refusing a
PBT, and improper stopping or parking. On December 20, 2017, the district court
sentenced Barry to 12 months in jail, including 180 days of post-imprisonment
supervision and a $2,500 fine for the DUI, and the court fined Barry $195 for refusing to
take a PBT and $75 for improper stopping or parking. Barry timely appealed.

AMENDED INFORMATION

On appeal, Barry renews his claim that the district court erred by allowing the
State to amend the information to add the DUI charge. The State contends that the district
court did not abuse its discretion by allowing the new charge.

"The State may, with the district court's leave, amend an information 'at any time
before verdict . . . if no additional or different crime is charged and if substantial rights of
the defendant are not prejudiced.' K.S.A. 22-3201(e)." State v. Dupree, 304 Kan. 377,
386, 373 P.3d 811 (2016). Kansas appellate courts review a district court's decision
whether to allow an amendment to an information for abuse of discretion. State v.
Calderon-Aparicio, 44 Kan. App. 2d 830, 848, 242 P.3d 1197 (2010). A district court
abuses its discretion if its judicial action is arbitrary, fanciful, or unreasonable, or if its
judicial action is based upon an error of fact or law. State v. Jenkins, 308 Kan. 545, 557,
422 P.3d 72 (2018).

Barry contends that the requirements of K.S.A. 22-3201(e) were not satisified
because the amended information allowed the State to charge an additional crime and
prejudiced his substantial rights. The State concedes that it "did charge a new crime with
the addition of DUI to the amended complaint," but it argues that Barry's claim of error
still fails because the amendment did not prejudice his substantial rights.

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As the State points out, the Kansas Supreme Court has interpreted the language in
K.S.A. 22-3201(e). "In interpreting this statute, [our Supreme Court] has held that even
the charging of a different crime may be allowed by an amendment to a complaint before
trial, provided the substantial rights of the defendant are not prejudiced." State v.
Bischoff, 281 Kan. 195, 205, 131 P.3d 531 (2006) (citing State v. Woods, 250 Kan. 109,
Syl. ¶ 1, 825 P.2d 514 [1992], and State v. Niblock, 230 Kan. 156, 163, 631 P.2d 661
[1981]). Unless there is some indication that our Supreme Court is departing from its
previous position, this court must follow Kansas Supreme Court precedent. State v.
Williams, 55 Kan. App. 2d 389, 391, 416 P.3d 1024 (2018).

In Niblock, our Supreme Court considered an argument much like the one Barry
now asserts. Ten days after the State filed its original complaint against the defendant, it
filed an amended complaint, adding a count of aggravated assault. The defendant argued
that "the trial court erred in approving the amended complaint because the approval was
done without a court hearing and because the amendment added a different crime." 230
Kan. at 163. Our Supreme Court interpreted language identical to K.S.A. 22-3201(e) and
reasoned:

"The inquiry under the statute is whether prejudice has occurred to the appellant.
'Prior to trial, the prosecution is given wide discretion in amending the information as to
form and substance.' The statute does not explicitly require that a hearing be held prior to
the decision to amend a complaint. The absence of such a hearing is not error. It was not
error to allow the prosecutor to add a different crime, and appellant fails to show that he
was prejudiced, which he must do in order to obtain reversal on those grounds. [Citations
omitted.]" 230 Kan. at 163.

Like the defendant in Niblock, Barry has articulated no particular prejudice to his
substantial rights caused by the amendment. Instead, he asserts that the State had an
improper motive for adding the new charge because our Supreme Court had declared
K.S.A. 2014 Supp. 8-1025 facially unconstitutional in Ryce, resulting in the dismissal of
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the charge against Barry for refusing to submit to a test to determine the presence of
alcohol or drugs. Barry provides no legal authority to support his assertion that the State's
motive for the amendment makes any difference. In any event, Barry fails to persuade us
that the amendment was based on an improper motive by the State, and we focus our
inquiry on whether Barry's substantial rights were prejudiced by the amendment.

Barry also generally discusses a criminal defendant's constitutional right to have a
meaningful opportunity to present a full and complete defense. But he does not explain
how the amendment to the information in this case impaired his exercise of that right.
Here, the State filed its amended information adding the felony DUI charge six months
before Barry waived his preliminary hearing. The district court did not hold the bench
trial until almost one year after the preliminary hearing waiver. There is simply nothing
in the record to support Barry's claim that the amended information prejudiced his
substantial rights or impaired his ability to present a full and complete defense to the DUI
charge. Based on K.S.A. 22-3201(e) and binding precedent interpreting the language of
that statute, we conclude the district court did not abuse its discretion by allowing the
State to amend the information to add the DUI charge.

SUFFICIENCY OF THE EVIDENCE

Barry also claims there was insufficient evidence to support his conviction for
DUI and his conviction for improper stopping or parking. Barry does not challenge his
conviction for refusing to take a PBT.

"'When the sufficiency of the evidence is challenged in a criminal case, this court reviews
the evidence in a light most favorable to the State to determine whether a rational
factfinder could have found the defendant guilty beyond a reasonable doubt.' 'Appellate
courts do not reweigh evidence, resolve evidentiary conflicts, or make witness credibility
determinations.' [Citations omitted.]" State v. Lloyd, 308 Kan. 735, 741, 423 P.3d 517
(2018).
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Improper stopping or parking

Barry contends that the State failed to present sufficient evidence to support his
conviction of improper stopping or parking in violation of K.S.A. 8-1569(a). Barry
asserts that the stipulated facts presented to the district court showed that his vehicle was
stopped in the middle of the roadway "with no indication that there was an obstructed
portion of any of the highway." Barry asserts that the applicable statute obligated the
State to prove that his "vehicle was parked in a way that did not leave an unobstructed
width of the highway opposite it for free passage of other vehicles." The State concedes
that Barry is correct, and our review of the record supports Barry's assertion. Thus, we
reverse Barry's conviction for improper stopping or parking, and we vacate the $75 fine
associated with the conviction.

DUI

K.S.A. 2018 Supp. 8-1567(a)(3) states: "Driving under the influence is 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." Barry
argues that (1) the State did not present sufficient evidence to show that he was incapable
of safely operating the vehicle and (2) the DUI conviction cannot stand because his car
was inoperable due to a dead battery, so he could not have operated the vehicle. We will
address Barry's arguments in reverse order.

Barry argues that there was insufficient evidence to support the conclusion that he
operated or attempted to operate his vehicle. In support, Barry cites State v. Darrow, 304
Kan. 710, 714, 374 P.3d 673 (2016), in which our Supreme Court held that in the context
of the DUI statute, "to 'operate' means to 'drive'; 'driving' requires movement of the
vehicle; therefore, 'operating' requires movement of the vehicle, and an 'attempt to
operate' means an attempt to move the vehicle." Barry contends that because he could not
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have moved the Corolla even if he had tried due to its dead battery, he could not have
"moved" or "attempted to move" the vehicle, as required for a DUI conviction.

This court has rejected the argument that a DUI conviction cannot stand simply
because the defendant's vehicle is inoperable. In State v. Penland, No. 91,718, 2004 WL
2496811 (Kan. App. 2004) (unpublished opinion), the appellant argued that he could not
have operated or attempted to operate the car because it was inoperable due to a broken
axle that was not discovered until the day after the incident. This court found that the
defendant, who was revving the engine and spinning the tires to try to get his car out of a
ditch, was attempting to operate the car even though the car would not move because of
the broken axle. 2004 WL 2496811, at *3. Thus, this court concluded the evidence was
sufficient to support the DUI conviction. 2004 WL 2496811, at *3.

Here, there was evidence that Barry attempted to operate his car on the night in
question. The stipulated facts state that when Brooks knocked on the car's window, Barry
"woke up and attempted to start the car and put it in gear." As this court noted in
Penland, the fact that Barry could not start the car due to a dead battery is irrelevant to
whether he attempted to move the car. Simply put, "[i]t is not necessary to show [actual]
movement to establish an attempt to operate a vehicle under the influence of alcohol."
State v. Adame, 45 Kan. App. 2d 1124, 1129, 257 P.3d 1266 (2011).

We next address Barry's argument that the State did not present sufficient evidence
to show that he was incapable of safely operating the vehicle. Barry argues that the lack
of field sobriety test results and blood test results make it impossible for a rational fact-
finder to conclude beyond a reasonable doubt that he was impaired by alcohol to a degree
that he was incapable of safely operating the vehicle.

As the State points out, a "defendant's guilt can be based entirely upon
circumstantial evidence and the reasonable inferences drawn from such evidence." State
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v. Everest, 45 Kan. App. 2d 923, 927, 256 P.3d 890 (2011). Here, when Brooks interacted
with Barry, Barry was slumped over, he had vomit and saliva coming out of his mouth,
he smelled strongly of alcohol, his eyes were watery and bloodshot, he had difficulty
balancing, and he had difficulty answering questions. Barry also refused to submit to a
test to determine the presence of alcohol or drugs, and a "person's refusal [to take such a
test] shall be admissible in evidence against the person at any trial on a charge arising out
of the alleged operation or attempted operation of a vehicle while under the influence of
alcohol or drugs, or both." K.S.A. 2018 Supp. 8-1001(n). Considered in the light most
favorable to the State, the evidence was sufficient for a rational fact-finder to conclude
beyond a reasonable doubt that Barry was under the influence of alcohol to a degree that
rendered him incapable of safely driving. Thus, we conclude there was sufficient
evidence to support Barry's DUI conviction.

Affirmed in part, reversed in part, and vacated in part.