State v. Meitler

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NOT DESIGNATED FOR PUBLICATION

No. 115,668

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,

v.

TROY B. MEITLER,
Appellee.


MEMORANDUM OPINION

Appeal from Reno District Court; TRISH ROSE, judge. Opinion filed September 15, 2017. Appeal
denied.

Andrew R. Davidson, assistant district attorney, Keith Schroeder, district attorney, and Derek
Schmidt, attorney general, for appellant.

Gregory D. Bell, of Bell and Robinson LLC, of Hutchinson, for appellee.

Before MALONE, P.J., PIERRON and BRUNS, JJ.

MALONE, J.: Troy Meitler was charged with driving under the influence (DUI),
involuntary manslaughter committed in the commission of DUI, and reckless aggravated
battery arising from a motor vehicle accident on February 10, 2012. Following the State's
presentation of evidence, Meitler moved for judgment of acquittal which the district court
granted as to the involuntary manslaughter charge. The State voluntarily dismissed the
remaining charges and brings this appeal on a question reserved by the prosecution as to
the district court's grant of acquittal on the involuntary manslaughter charge. For reasons
we will endeavor to explain in this opinion, we deny the State's appeal.
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FACTUAL AND PROCEDURAL BACKGROUND

This case arises from a tragic fatality motor vehicle accident on February 10,
2012, in Reno County, Kansas. The underlying facts and procedural history of the case
are set out in detail in a previous published opinion of this court related to a pretrial
suppression issue. State v. Meitler, 51 Kan. App. 2d 308, 347 P.3d 670 (2015).

"On February 10, 2012, in Reno County, Trooper Stephen A. Morris of the
Kansas Highway Patrol responded to the scene of a two-vehicle accident. Upon his
investigation, Trooper Morris determined Meitler was the driver of the car who left his
lane of traffic, crossed the centerline, and caused the fatality collision. Although Trooper
Morris discovered no evidence of alcohol or drug impairment at that time, he also did not
observe any roadway features, conditions, or debris to explain why Meitler crossed the
centerline into oncoming traffic causing the collision. Meitler was flown to a Wichita
hospital because of the severity of his injuries.
"Trooper Morris requested a Sedgwick County-assigned trooper go to the
hospital to obtain a sample of Meitler's blood. Trooper John Maier went to the hospital.
Trooper Maier was informed by the dispatcher that Meitler was involved in a fatality
accident and had been deemed the at-fault driver. Trooper Maier placed a copy of the
implied consent advisory on Meitler's body as he read the advisory aloud, but Meitler was
unable to follow along and appeared to be unconscious. Trooper Maier asked Meitler to
consent to the blood draw, and after receiving no response, marked 'yes' on the advisory.
Trooper Maier then directed healthcare personnel to draw Meitler's blood. Trooper Maier
took custody of the blood sample which later tested positive for the presence of
methamphetamine and marijuana.
"Meitler was charged with one count each of involuntary manslaughter pursuant
to K.S.A. 2011 Supp. 21-5405(a)(3), aggravated battery pursuant to K.S.A. 2011 Supp.
21-5413(b)(2)(A), and driving under the influence of alcohol or drugs pursuant to K.S.A.
2011 Supp. 8-1567(a)(4). Meitler filed a motion to suppress the results of his blood test,
arguing that a fatality collision involving a driver who commits a traffic offense does not
provide probable cause the driver was impaired at the time of the collision. Meitler
argued to the district court that [State v. Declerck, 49 Kan. App. 2d 908, 317 P.3d 795,
rev. denied 299 Kan. 1271 (2014),] controlled and, because K.S.A. 2011 Supp. 8-
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1001(b)(2) which permitted the blood draw was unconstitutional, Meitler's blood-test
results should be suppressed. See 49 Kan. App. 2d 908, Syl. ¶¶ 5-7, 317 P.3d 794
(finding K.S.A. 2011 Supp. 8-1001 [b][2] unconstitutional).
"The State countered that Declerck was inapplicable because, unlike Declerck
who refused the blood draw, Meitler was unconscious, and pursuant to the statute had
impliedly consented to the blood draw. Alternatively, the State argued that Trooper
Morris' and Trooper Maier's objective and reasonable reliance on K.S.A. 2011 Supp. 8-
1001(b)(2) before it was declared unconstitutional warranted applying the good-faith
exception to the exclusionary rule, thus permitting the results of the blood draw to be
admitted in evidence at trial. At Meitler's suppression hearing, the district court ordered
the parties to submit additional briefing on whether the good-faith exception to the
exclusionary rule should apply to prevent the evidence from being suppressed.
"Upon receipt of the additional briefing, the district court issued an order
suppressing the results of the blood draw. First, the district court based its ruling on the
fact that Trooper Morris did not have probable cause to suspect Meitler was operating or
attempting to operate his vehicle under the influence of alcohol or drugs. Second, the
district court found that, based upon Declerck, K.S.A. 2011 Supp. 8-1001(b)(2) was
unconstitutional as applied to this case. Finally, the district court determined the good-
faith exception to the exclusionary rule did not apply because Trooper Morris did not rely
on K.S.A. 2011 Supp. 8-1001(b)(2) when compelling Meitler's blood draw." 51 Kan.
App. 2d at 309-11.

The State timely filed an interlocutory appeal of the district court's suppression
order. On appeal, this court reversed the district court's suppression order and held that
the exclusionary rule does not apply to evidence obtained by law enforcement officers
who acted in objectively reasonable reliance on K.S.A. 2011 Supp. 8-1001(b)(2) prior to
the decision in Declerck. Meitler, 51 Kan. App. 2d 308, Syl. ¶ 5. Accordingly, this court
remanded the case for further proceedings. 51 Kan. App. 2d at 319.

The trial began on April 5, 2016, and a jury was empaneled and sworn. The State
called Trooper Morris to testify as to his observations at the accident scene. Morris
testified that he did not receive any reports of erratic driving prior to the accident and
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there were no witnesses to the accident. He did not observe anything in the road that
would explain the accident. Morris was able to determine that the white pickup truck
driven by Meitler that was eastbound crossed the center line into the westbound lane and
collided head on with an oncoming truck. The other truck was driven by Brian Bush, who
was killed in the collision, and his passenger, Annette Bush, sustained serious injuries.

Morris did not find any beer cans, liquor bottles, or drug paraphernalia in Meitler's
truck. He did not detect any odor of alcohol or burnt marijuana in the truck. Moreover, he
did not find any alcohol or drugs, including marijuana and methamphetamine, in the
truck. He observed no physical signs or clues to indicate that Meitler was impaired by
drugs or alcohol. Meitler did not admit to using drugs or alcohol, and Morris was unable
to perform any testing that might determine impairment.

On cross-examination, Morris acknowledged that many factors could have caused
or contributed to the accident—driver fatigue or distraction caused by the truck radio, a
cell phone, or texting. When Morris was asked if there was any indication whatsoever at
the conclusion of his investigation that the accident was in any way related to impairment
by alcohol, he responded, "no." When he was asked whether his investigation uncovered
any evidence suggesting that Meitler was under the influence of drugs to a degree that he
could not safely operate his vehicle, Morris responded, "no." Morris acknowledged that
the only reason he requested a blood sample from Meitler was because he had been
involved in a fatality accident.

Gretchen Crow, a forensic scientist in the toxicology department with the Kansas
Bureau of Investigation (KBI), testified for the State. Crow testified that her "primary
duties are to analyze blood and other bodily fluids for the presence of alcohol and drugs."
She stated that she had a bachelor's degree in chemistry. Moreover, she had completed 18
to 24 months' training with the KBI on blood, drug, and urine analysis. Crow testified
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that in her career she had analyzed at least 8,000 specimens for their blood alcohol
content and at least 3,000 specimens for their drug content.

Crow testified that she completed the testing of Meitler's blood and it was
confirmed positive for methamphetamine and amphetamine. Later in cross-examination,
Crow also indicated that Meitler's blood tested positive for cannabinoids or THC. When
the State attempted to ask Crow her opinions about the effect drugs have on a person's
ability to safely drive a vehicle, Meitler's counsel objected stating that Crow had "not
been identified as an expert witness beyond the results of the blood test."

The State then began to lay additional foundation for Crow's testimony. Crow
testified that she was a toxicologist, what it meant to be a toxicologist, and that she knew
about the effects drugs have on an individual's driving. Crow specifically stated that this
area was included in the training that she received as part of her employment with the
KBI. Crow testified that she would review "scientific literature" in forming her opinions,
including several journals. She testified that she had been qualified as an expert witness
over 250 times in court regarding drug use, including four cases within the preceding
month. Crow had testified "as to the effect of the drugs" in those four cases. The State
asked if Crow could generally "testify to what the common effects of methamphetamine
are on an individual." Crow stated: "Yes, in regard to driving."

The State then asked the district court to qualify Crow as "an expert in the area of
toxicology, including the effects of drugs . . . on an individual." After lengthy arguments
by counsel in chambers, the district court ultimately stated that it believed Crow was "an
expert in analysis of blood and other bodily fluids," but was "not convinced that her
expertise extend[ed] to the effects [of] those substances." The parties returned to the
courtroom and, over defense counsel's objection, the State was able to elicit from Crow
the amount of time THC stays in an individual's system. Further, over defense counsel's
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objection, the State was able to elicit from Crow the amount of time methamphetamine
stays in an individual's system.

When the State began to question Crow about the effect methamphetamine has on
the body, Meitler's counsel again objected and the district court sustained the objection
based on its prior ruling. The State tried to establish additional foundation for Crow to
testify as to the effects of methamphetamine on an individual. Crow testified that she was
familiar with a study from the National Highway Traffic Safety Administration that
reviewed the effects of methamphetamine on a user. Defense counsel again objected to
the testimony and the judge responded: "I am standing by my previous ruling."

During cross-examination, Crow revealed that the testing performed by the KBI
on Meitler's blood samples was only positive or negative for THC and methamphetamine,
and the results did not reveal the amount of either drug that was in Meitler's system.
Crow indicated that the test triggers positive at 10 nanograms per milliliter for THC and
50 nanograms per milliliter for methamphetamine. Crow testified that there was no
scientific standard for the amount of methamphetamine or THC that would need to be in
the blood for an individual to be intoxicated.

Following the State's presentation of evidence, the State moved to file an amended
complaint dismissing the DUI count but clarifying that the involuntary manslaughter
charge was predicated on the commission of a DUI. The district court granted the
amended complaint. Meitler's counsel then made an oral motion for judgment of acquittal
alleging there was a lack of evidence to prove Meitler was under the influence of drugs or
a combination of drugs at the time of the accident. The prosecutor responded that the
district court had prevented the State from introducing evidence about the effects drugs
have on a user; however, the State believed there was sufficient evidence for the case to
go to the jury.

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After hearing the arguments, the district court agreed with defense counsel,
stating: "[T]here is no way that I can say based on the evidence that the jury could find
beyond a reasonable doubt that Mr. Meitler was under the influence of any drug or
combination of drugs to a degree that rendered him incapable of safely driving." The
district court granted Meitler's motion for judgment of acquittal on the involuntary
manslaughter count, but indicated that the case would proceed on the aggravated battery
count. The State then asked for a mistrial on the aggravated battery count and when the
district court denied that motion, the State voluntarily dismissed that count.

The State timely filed its notice of appeal on April 6, 2016. The notice specified
that the State was appealing on questions reserved by the prosecution pursuant to K.S.A.
22-3602(b)(3). Specifically, the notice of appeal identified the first question as: "The
Court improperly excluded testimony by the State's expert witness." The notice identified
a second question as: "The Court improperly dismissed Count I, Involuntary
Manslaughter, by determining a quantitative measure of the defendant's level of
intoxication on methamphetamine and marijuana had not been proven." The State filed its
brief on January 25, 2017, and Meitler filed a brief on May 15, 2017.

ANALYSIS

The State's authority to appeal in a criminal case is limited by statute. State v.
Mburu, 51 Kan. App. 2d 266, 269-70, 346 P.3d 1086, rev. denied 302 Kan. 1017 (2015).
The appellate court has jurisdiction to entertain a State's appeal only if it is taken within
time limitations and in the manner prescribed by the applicable statutes. State v. Sales,
290 Kan. 130, 134, 224 P.3d 546 (2010). The State cannot expand its elected statutory
basis for the appeal and the appellate court cannot sua sponte select the jurisdictional
basis for an appeal by the State. State v. LaPointe, 305 Kan. 938, 954-55, 390 P.3d 7
(2017).

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Here, the State has elected to file this appeal upon questions reserved by the
prosecution pursuant to K.S.A. 2016 Supp. 22-3602(b)(3). A judgment of acquittal
entered by the district court on a motion filed by the defendant at the close of the State's
evidence is final and not appealable by the State, "except in those special circumstances
when the question reserved by the State is of statewide interest and is vital to a correct
and uniform administration of the criminal law." State v. Wilson, 261 Kan. 924, 926, 933
P.2d 696 (1997). Appellate courts should not consider a question reserved by the State
when "'"'resolution of the question would not provide helpful precedent.'"' [Citations
omitted]." State v. Finch, 291 Kan. 665, 669, 244 P.3d 673 (2011).

The State's notice of appeal claimed that the district court "improperly excluded
testimony by the State's expert witness." However, we note with significance that the
State completely failed to brief this issue. An issue not briefed by the appellant is deemed
waived or abandoned. State v. Williams, 303 Kan. 750, 758, 368 P.3d 1065 (2016).

The State's brief identifies one issue on appeal: "The district court interpreted the
incorrect standard for finding intoxication when dismissing the State's charge of
involuntary manslaughter by stating that the State had to show quantitative analysis of
drug levels in the blood." The State maintains this issue is a proper question reserved as it
"would allow for the uniform administration of criminal law across the State of Kansas."

Meitler contends the issue is not a proper question reserved. He summarizes what
the State had proven at the close of its evidence, including that Meitler had trace amounts
of both methamphetamine and marijuana in his system and that Meitler was the cause of
the accident. Meitler contends the district court's reason for granting the motion for
acquittal was not because of "a lack of quantitative blood analysis." Instead, Meitler
contends that the district court granted the motion for judgment of acquittal because the
State had offered no proof that Meitler "was under the influence of drugs to a degree that
rendered him incapable of safely operating his vehicle."
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The parties agree that the standard of review for a motion for judgment of acquittal
is the sufficiency of evidence standard. When the sufficiency of evidence is challenged in
a criminal case, an appellate 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. State v. Rosa, 304 Kan. 429, 432-33, 371 P.3d 915 (2016). In
making a sufficiency determination, the appellate court does not reweigh evidence,
resolve evidentiary conflicts, or make determinations regarding witness credibility. State
v. Dunn, 304 Kan. 773, 822, 375 P.3d 332 (2016).

The State argues that the district court granted the motion for judgment of
acquittal on the involuntary manslaughter charge because the State had failed to show a
quantitative analysis of the drug levels in Meitler's blood. We agree with Meitler that the
State has misconstrued the reason for the district court's decision. Although the judge
noted that Crow performed only "a qualitative, not a quantitative analysis" of the drugs in
Meitler's blood, the district court did not specifically rule that the State had to show a
quantitative analysis of drug levels in the blood in order to prove involuntary
manslaughter in the commission of a DUI. In fact, Crow's testimony made it clear that
there was no scientific standard for the amount of methamphetamine or THC that would
need to be in the blood for an individual to be intoxicated.

In ruling on the motion for judgment of acquittal, the district court stated that as to
the involuntary manslaughter charge, the State was required to prove that an individual
died as a result of Meitler committing or attempting to commit "an act described in
K.S.A. 8-1567." The district court then noted that the statute prohibited a person from
driving under the influence of any drug or combination of drugs to a degree that rendered
the person incapable of safely driving a vehicle. The district court then granted the
motion for judgment of acquittal on the involuntary manslaughter charge, stating:
"[T]here is no way that I can say based on the evidence that the jury could find beyond a
reasonable doubt that Mr. Meitler was under the influence of any drug or combination of
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drugs to a degree that rendered him incapable of safely driving." Based on the evidence
the State was allowed to present at trial, we find that the district court was correct in
granting a judgment of acquittal on the involuntary manslaughter charge.

Viewing the evidence in the light most favorable to the State, the prosecution
established two facts in its case-in-chief against Meitler: (1) Meitler had a detectible
amount of THC and methamphetamine in his blood at the time of the accident, and (2)
Meitler's truck crossed the center line and struck the oncoming vehicle driven by Bush.
But Trooper Morris admitted that there could have been a number of causes for the
accident other than drug impairment. He also was clear that there was no evidence at the
accident scene that Meitler was impaired by drugs, and he only ordered Meitler's blood to
be drawn because it was a fatality accident—a reason that under current law would render
the blood draw unconstitutional. Simply put, the State proved there were drugs in
Meitler's system, but not "to a degree that rendered [Meitler] incapable of safely driving a
vehicle." K.S.A. 2016 Supp. 8-1567(a)(4). This was an essential element of the crime of
involuntary manslaughter in the commission of a DUI. K.S.A. 2016 Supp. 21-5405(a)(3).

From our review of the record, the problem in this case may have been that the
district court improperly excluded testimony from the State's expert witness. It appears
that Crow, a forensic scientist in toxicology with the KBI, may have been well qualified
to testify about the effects drugs have on an individual's ability to safely drive a vehicle.
Crow testified that she had received training in this area from the KBI and that she had
been qualified as an expert witness to give such opinion testimony in other cases. This
may have been the key evidence the State needed to establish a prima facie case against
Meitler for involuntary manslaughter in the commission of a DUI. However, the district
court excluded this evidence at Meitler's trial, and the State has failed to brief the
evidentiary issue on appeal.

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Finally, in one sentence in its brief, the State cites K.S.A. 2016 Supp. 8-1001(i)
which states that the "results of qualitative testing for drug presence shall be admissible
in evidence and questions of accuracy or reliability shall go to the weight rather than the
admissibility of the evidence." This statute would be helpful to the State if it was arguing
that the district court improperly excluded the results of Meitler's blood test. But here, the
test results were admitted at trial and Meitler is not challenging either the accuracy or the
reliability of the tests. However, the test results only establish that Meitler had a
detectable amount of THC and methamphetamine in his blood at the time of the accident.
The test results do not establish that Meitler was under the influence of drugs to the
extent that he was incapable of safely operating a vehicle, which is the essential element
of the crime of involuntary manslaughter that the State needed to prove at trial.

To sum up, the district court granted the motion for judgment of acquittal on the
involuntary manslaughter charge because, based on the evidence the State was allowed to
present at trial, the State failed to establish that Meitler was under the influence of drugs
to a degree that rendered him incapable of safely driving a vehicle. The district court's
judgment of acquittal does not present a question "of statewide interest [that] is vital to
[the] correct and uniform administration of the criminal law," and "'"'resolution of the
question would not provide helpful precedent.'"' [Citations omitted]." Wilson, 261 Kan. at
926; Finch, 291 Kan. at 669. We conclude the State has failed to establish grounds for an
appeal upon a question reserved by the prosecution.

Appeal denied.