State v. Hastings

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NOT DESIGNATED FOR PUBLICATION

No. 112,221

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

KAROLYN G. HASTINGS,
Appellant.


MEMORANDUM OPINION

Appeal from Shawnee District Court; NANCY E. PARRISH, judge. Opinion filed November 6,
2015. Affirmed in part, reversed in part, and remanded with directions.

Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.

Jodi Litfin, assistant district attorney, Kyle Edelman, assistant district attorney, Chadwick J.
Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.

Before ATCHESON, P.J., SCHROEDER, J., and HEBERT, S.J.

Per Curiam: Karolyn G. Hastings was convicted by a jury of driving under the
influence (DUI). On appeal, Hastings argues there was insufficient evidence to support
the jury's verdict. She also appeals her sentence, arguing that the district court erred by
considering a 1997 DUI conviction when scoring her current conviction as a third DUI.

While we find that the evidence was sufficient to support the verdict and affirm
the conviction, we find the district court erred by considering the 1997 DUI conviction
when scoring the current conviction, and we remand for resentencing.
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FACTUAL AND PROCEDURAL BACKGROUND

On May 5, 2010, at 2:15 a.m., Deputy James Loghry witnessed a pickup truck pull
out of the turnaround lane; it continued to travel south. As the truck turned, it went into
the outside lane, overcorrected back into the inside lane, and then returned to the outside
lane.

Deputy Loghry maintained a constant distance as he followed the truck. He
estimated the truck was traveling at 30 miles per hour in a 55-mile-per-hour zone. The
truck weaved back and forth several times, and Deputy Loghry decided to perform a
traffic stop. First, Deputy Loghry activated his lights, but the driver of the truck did not
immediately respond. Next, he activated his sirens; it took a half mile to stop the truck.
When the truck stopped, it failed to pull over to the shoulder; instead the driver stopped
the truck in the middle of the southbound lane. Deputy Loghry waited for a support
officer before making contact with the driver.

Deputy Loghry identified the driver as Karolyn Hastings. During his contact with
Hastings, Deputy Loghry observed an odor of alcohol coming from her person. He also
noticed Hastings' eyes were bloodshot and "[h]er speech was very slow and sort of
slurred and mumbled." Hastings also appeared to be moving slower than Deputy Loghry
would normally expect. Deputy Loghry then asked Hastings if she had had anything to
drink; she said she had a small amount. He asked Hastings to perform the standardized
field sobriety tests, but she refused.

After Hastings declined to perform the field sobriety tests, Deputy Loghry asked
her to step out of the vehicle. Hastings was unstable and appeared to have slight difficulty
maintaining her balance. Deputy Loghry arrested Hastings and placed her in the patrol
car. Deputy Loghry then read the implied consent form to Hastings. He asked her to
submit a breath test, but she refused.
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The State charged Hastings with one count driving under the influence of alcohol
or drugs, one count driving while suspended, and one count no liability insurance.
Hastings pled guilty to driving while suspended and no liability insurance. A jury
convicted Hastings of driving under the influence.

Prior to sentencing, Hastings objected to the use of her 1997 DUI conviction for
sentencing enhancement purposes. She argued K.S.A. 2011 Supp. 8-1567 applied
retroactively and only convictions occurring on or after July 1, 2001, should be taken into
account. The district court declined to apply K.S.A. 2011 Supp. 8-1567 to Hastings and
counted her 1997 DUI conviction; the district court found her current conviction was a
third DUI offense for sentencing purposes.

The district court sentenced Hastings to serve 90 days in jail as a condition of a
12-month probation term with a 12-month underlying jail sentence. The district court also
ordered Hastings to pay a $2,050 fine; she was fined $1,750 for the DUI conviction and
$300 for the no liability insurance conviction. The district court also authorized
community service in lieu of fees and fines. Hastings timely appeals.

Sufficient evidence supports the jury verdict.

Hastings claims that since the only evidence presented by the State was Deputy
Loughry's testimony regarding his observations, the evidence was not sufficient to prove
that she was under the influence of alcohol to a degree that rendered her incapable of
safely driving. The State presented no evidence of the results of any standardized field
sobriety tests, breath tests, or blood tests.




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Standard of Review

When the sufficiency of the evidence is challenged in a criminal case, this court
reviews 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
determining whether there is sufficient evidence to support a conviction, the appellate
courts generally will not reweigh the evidence or make witness credibility
determinations. 299 Kan. at 525. It is only in rare cases where the testimony is so
incredible that no reasonable factfinder could find guilt beyond a reasonable doubt and
that a guilty verdict be reversed. 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 factfinder may reasonably infer the existence of the fact in issue.
However, the evidence need not exclude every other reasonable conclusion or inference.
State v. Brooks, 298 Kan. 672, 689, 317 P.3d 54 (2014). A conviction of even the gravest
offense can be based on circumstantial evidence. 298 Kan. at 689; see State v. Perkins,
296 Kan. 162, 167, 290 P.3d 636 (2012) (noting DUI convictions can also be supported
by direct or circumstantial evidence).

"Under the Due Process clause of the 14th Amendment, no person may be
convicted of a crime unless every fact necessary to establish the crime with which he is
charged is proven beyond a reasonable doubt." State v. Switzer, 244 Kan. 449, 450, 769
P.2d 645 (1989) (citing In re Winship, 397 U.S. 358, 368, 90 S. Ct. 1068, 25 L. Ed. 2d
368 [1970]).




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The Evidence

Hastings committed this DUI offense in May 2010. K.S.A. 2009 Supp. 8-1567(a)
provides: "No person shall operate or attempt to operate any vehicle within this state
while: . . . (3) under the influence of alcohol to a degree that renders the person incapable
of safely driving a vehicle."

At the trial, Deputy Loghry was the only witness who testified. He testified he
observed the truck pull out of the turnaround and overcorrect itself; he said it was unusual
but not uncommon for people to overcorrect on a turn. He said he paced the vehicle and
estimated it was going 30 miles per hour when the posted speed limit was 55 miles per
hour. He witnessed the truck weave "four to five times each direction that it went clear to
the outside of the lane." He testified, "[The truck] would cross the center dotted line and
also cross the fog line on the outside to travel onto the median and back into the lane."
When asked how much the vehicle swerved, he said, "[I]t went from a tire to half the
vehicle to eventually the entire vehicle went into a turn lane and back into the lane it was
traveling in." After observing the infractions, he decided to pull over the truck.

Deputy Loghry activated his lights and sirens; he was able to pull the driver over
after a half mile. He said that, generally, people pull over to the right as far as possible,
but the driver of the truck just stopped in the southbound lane of travel. Once he made
contact with the driver, he was able to identify her as Hastings.

Deputy Loghry told the jury what he observed when he made personal contact
with Hastings. He said he could smell alcohol coming from her, she had bloodshot eyes,
her speech was "very slow and sort of slurred or mumbled," and she seemed to be
moving slower than what was normally expected. When he asked if she had anything to
drink, Hastings said she had "[a] little bit or a small amount." He offered Hastings the
opportunity to perform the standardized field sobriety tests, but she refused. He then
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asked her to step out of the car, and she appeared to be slightly unstable. He arrested
Hastings for DUI; he placed her in handcuffs and put her in the back of a patrol car. He
did not believe Hastings could safely operate a vehicle.

After placing Hastings in the patrol car, Deputy Loghry read the implied consent
form to her and asked her to submit a breath test, but she declined to do this as well.
K.S.A. 2014 Supp. 8-1001(k)(7) provides: "[R]efusal to submit to testing may be used
against the person at any trial on a charge arising out of the operation or attempted
operation of a vehicle while under the influence of alcohol or drugs, or both." Because
Hastings refused to submit to a breath test, this information was appropriately put before
the jury; the lack of results was evidence for the jury to consider. The jury was free to
imply and conclude that Hastings refused the tests because the results would have been
unfavorable.

On cross-examination, Deputy Loghry testified that fatigued and emotional drivers
also weave in the lanes, and the traffic infractions may not be alcohol related. He also
said Hastings was not breaking the law when she was driving 30 miles per hour. He said
he was not familiar with the nature of Hastings' speech; he did not have any difficulty
communicating with her; she was cooperative and responsive to all questions; and she
was not inappropriate or disoriented.

After weighing the evidence and determining the credibility of Deputy Loghry, the
jury found Hastings guilty of DUI. Looking at all of the evidence in a light most
favorable to the State and considering the jury's verdict, there was sufficient evidence to
find Hastings was under the influence of alcohol to a degree that rendered her incapable
of safely driving a vehicle.



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The district court erred by scoring Hastings' conviction as a third DUI.

Hastings argues the district court erred by counting a 1997 DUI conviction when it
scored her current conviction as her third DUI. She contends K.S.A. 2011 Supp. 8-
1567(j)(3) applies retroactively, and the district court erred by failing to apply the newly
enacted look-back provision. She supports her argument with our Supreme Court's
holding in State v. Reese, 300 Kan. 650, Syl., 333 P.3d 149 (2014):

"K.S.A. 2011 Supp. 8-1567(j)(3) provides that the sentencing court is to take into account
only those prior driving under the influence (DUI) convictions that occurred on or after
July 1, 2001, and make the determination at the time of sentencing whether the current
conviction is a first, second, third, fourth, or subsequent offense for purposes of imposing
a sentence enhancement. Accordingly, the provisions of K.S.A. 2011 Supp. 8-1567(j)(3)
apply to all persons who are sentenced for DUI on or after the July 1, 2011, effective date
of the amended statute."

Hastings was sentenced on November 30, 2012. The amended look-back period
applied to Hastings pursuant to Reese, and the 1997 DUI conviction should not have been
considered for sentence enhancement purposes. The State concedes that in light of Reese,
it was error to count Hastings' 1997 DUI. The current conviction should have been her
second DUI for sentencing purposes. The State argues that this issue is moot because
Hastings has served the balance of her sentence.

As a general rule, an appellate court does not decide moot questions or render
advisory opinions. The mootness doctrine is one of court policy, which recognizes that
the court's role is to determine real controversies relative to the legal rights of persons and
properties that are actually involved in the particular case properly brought before it and
to adjudicate those rights so that the determination will be operative, final, and
conclusive. State v. Montgomery, 295 Kan. 837, 840, 286 P.3d 866 (2012).

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The State argues this issue is moot because "[Hastings] has served the balance of
the sentence in this case and was not ordered to serve a period of post-release
supervision." The State provided this court with a letter in accordance with Supreme
Court Rule 2.042 (2014 Kan. Ct. R. Annot. 18). The letter stated Hastings was discharged
on September 24, 2014. The State also contends that "because Hastings was convicted of
driving under the influence in 10CR001637, at the same time as the current case, she
would ultimately still have a felony record even if the case were remanded for sentencing
in compliance with Reese."

Because mootness is a doctrine of court policy, which was developed through
court precedent, appellate review of the issue is unlimited. State v. Hilton, 295 Kan. 845,
849, 286 P.3d 871 (2012).

The State's argument fails. Our Supreme Court has held: "An appeal will not be
dismissed for mootness, unless it is clearly and convincingly shown the actual
controversy has ended, the only judgment that could be entered would be ineffectual for
any purpose, and it would not impact any of the parties' rights." McAlister v. City of
Fairway, 289 Kan. 391, 400, 212 P.3d 184 (2009); Montgomery, 295 Kan. at 840-41.
Furthermore, our Supreme Court has found:

"Challenging the efficacy of a conviction is simply a different proposition than is
presented here. The possible collateral consequences of a conviction are 'too obvious to
declare [an] appeal [of the conviction] moot simply because defendant cannot be
subjected to additional jail time.' [Citation omitted.] The impact of a conviction is
tangible and immediate.

"For instance, a conviction is immediately added to the defendant's criminal
history score and will thereafter accompany the defendant as a fact that speaks for itself.
The criminal history score will be a fact that subsequent courts must use to calculate
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future sentences; a district court cannot exercise its discretion to disregard a prior
conviction." Montgomery, 295 Kan. at 842.

In this case, the district court sentenced Hastings to a felony DUI and scored this
as a third DUI conviction. According to K.S.A. 2014 Supp. 8-1567(b)(1)(B), Hastings'
current conviction should have been a class A nonperson misdemeanor. When the district
court sentenced Hastings in this case, it also sentenced Hastings in the case the State
referred to on appeal. There, the district court found that was Hastings' fourth DUI
conviction. According to K.S.A. 2014 Supp. 8-1567 that conviction is a nonperson
felony. While the second case—or the fourth DUI—is not before this court, it is worth
noting that if Hastings' third DUI is not changed, then Hasting would have two felony
convictions on her record. Thus, our decision herein impacts a substantial right, and the
State is incorrect; the sentencing issue is not moot.

Hastings' sentence is reversed and remanded with directions to resentence without
reference to the 1997 conviction.

Affirmed in part, reversed in part, and remanded with directions.