State v. Duncan

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No. 102,356

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JAMES DUNCAN, JR.,
Appellant.


SYLLABUS BY THE COURT

1.
When the sufficiency of the evidence is challenged in a criminal case, an appellate
court reviews all the evidence in the light most favorable to the prosecution to determine
whether a rational factfinder could have found the defendant guilty beyond a reasonable
doubt. In its review, the court will not reweigh the evidence, pass on the credibility of
witnesses, or resolve conflicts in the evidence.

2.
Under K.S.A. 2006 Supp. 8-1567(a)(3), evidence of incapacity to safely drive a
vehicle can be established through sobriety tests and other means. Observed erratic
driving is not a requirement for conviction of driving while under the influence of
alcohol.

3.
A person's refusal to submit to blood alcohol testing shall be admissible in
evidence against such 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.

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4.
K.S.A. 2006 Supp. 8-1703 is analyzed and applied.

5.
There are exceptions to the general rule that issues not raised before the district
court cannot be raised on appeal, including where (1) the newly asserted theory involves
only a question of law arising on proved or admitted facts and is finally determinative of
the case, (2) consideration of the theory is necessary to serve the ends of justice or to
prevent denial of fundamental rights, or (3) the judgment of the trial court may be upheld
on appeal despite its reliance on the wrong ground or reasons.

6.
A defendant's constitutional right to be tried by a jury rather than solely by the
court is fundamental to the American scheme of justice.

7.
Determining whether Duncan effectively waived his right to a jury trial requires
constitutional interpretation; thus, our review is unlimited.

8.
The Sixth Amendment to the United States Constitution, which applies to the
states through the Fourteenth Amendment, has been held to guarantee a jury trial to any
defendant charged with a crime punishable by more than 6 months of imprisonment.
Section 5 of the Kansas Constitution Bill of Rights states that the right of trial by jury
shall be inviolate.

9.
In order for a defendant to effectively waive his or her constitutional right to a jury
trial, two conditions must be met: (1) the trial court must advise the defendant of his or
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her right to a jury trial, and (2) the defendant must waive the right personally, either in
writing or in open court for the record. Waiver will not be presumed upon a silent record.

10.
A party asserting error has the burden to designate a record which affirmatively
shows prejudicial error in the trial court.

11.
Unlike the definitive burden necessary to prove an existing fact, the burden to
prove a negative fact does not require a defendant to irrefutably demonstrate the fact does
not exist; it requires only that the defendant do what is ordinary for one who bears a clear
and convincing burden of proof, i.e., show that his or her version of the facts is highly
probable.

Appeal from Sedgwick District Court; PHILLIP B. JOURNEY, judge. Opinion filed November 19,
2010. Affirmed in part, reversed in part, and remanded with directions.

Carl F.A. Maughan and Catherine A. Zigtema, of Maughan & Maughan LC, of Wichita, for
appellant.

Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Steve
Six, attorney general, for appellee.

Before GREENE, P.J., GREEN and STANDRIDGE, JJ.

STANDRIDGE, J.: James Duncan, Jr., was convicted of driving under the influence
(DUI) of alcohol to an extent that rendered him incapable of safely driving a vehicle, in
violation of K.S.A. 2006 Supp. 8-1567(a)(3) and (e) (second offense) and failure to
illuminate headlights when required, in violation of K.S.A. 2006 Supp. 8-1703(a)(1).
This is his direct appeal.
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FACTS

On January 19, 2007, at approximately 11:06 p.m., Deputy Justin Crafton of the
Sedgwick County Sheriff's Office was in his vehicle driving on a street in Wichita when
he saw another vehicle traveling in the opposite direction with its fog lights turned on, but
not its headlights. According to Crafton, it was dark outside and the roads were
"somewhat icy" and covered in slush. Crafton turned his vehicle around and eventually
pulled over the vehicle. When Crafton made contact with the driver, later identified as
Duncan, Crafton smelled "a very strong odor of alcoholic beverage" emanating from
Duncan. Crafton also observed that Duncan's eyes were bloodshot and watery and that
his speech was slurred.

As part of a "divided attention test" (a test where an officer asks a suspected
impaired driver to complete two tasks at once—the theory being that an impaired person
will not remember to complete both tasks), Crafton asked Duncan for his driver's license
and proof of insurance, and Duncan only remembered to give Crafton his driver's license.
Crafton asked Duncan where he was coming from, and Duncan told him that he was
coming from a liquor store. Crafton then asked Duncan to exit the vehicle in order to
conduct field sobriety testing. Crafton noticed that when Duncan exited the vehicle, he
was "unsteady."

Crafton asked Duncan to perform the walk-and-turn and the one-leg-stand tests.
Crafton stated that during the "demonstration and explanation phase" of the walk-and-
turn test—where subjects are required to stand with their right foot directly in front of
their left in a heel-to-toe position as they listen to instructions—Duncan lost his balance
several times while Crafton was explaining the test to him. Crafton stated that Duncan
eventually gave up standing heel-to-toe and simply stood with his feet side by side.
During the testing phase, Duncan failed to walk in a straight line, used his arms for
balance, and took an incorrect number of steps. During the one-leg-stand test, Duncan
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used his arms for balance and failed to stand on one foot throughout the duration of the
test. Crafton believed Duncan's performances on both tests indicated that Duncan was
impaired.

Crafton ultimately arrested Duncan for DUI and searched his car, finding an
opened bottle of "MD 20/20" containing half an inch of liquid in the bottle and an
unopened bottle of Bud Light. Crafton then transported Duncan to the Sedgwick County
Detention Facility where, after providing Duncan with the applicable written and oral
statutory notices, Crafton asked Duncan if he would take an evidentiary breath test.
Duncan refused to submit to testing. Subsequently, Crafton issued a citation to Duncan
for DUI (second offense) and failure to have his headlights illuminated when required.

Duncan's case proceeded to a bench trial where Crafton testified to the above-
mentioned facts. Furthermore, the State introduced into evidence a DVD recording of
Duncan's performance on the field sobriety tests. This recording is not included in the
record on appeal, but according to the district court, the DVD showed that Duncan clearly
had problems with performing the walk-and-turn and one-leg-stand tests.

At the bench trial, Duncan took the witness stand and admitted to drinking "about
two cans of beer" 45 minutes prior to being pulled over. Duncan claimed, however, that
the beer did not affect his ability to drive a vehicle. Duncan admitted to driving without
his headlights turned on, but stated that the street on which Crafton saw him driving was
well lit and that the dash lights of his vehicle were turned on, making Duncan believe that
his headlights were illuminated. When he turned his vehicle onto another street, Duncan
stated that he realized his headlights were off and quickly turned them on.

With regard to the field sobriety tests that Crafton had him perform, Duncan
claimed that the coldness and the snow and ice on the streets caused him to be nervous,
thereby affecting his performance on the walk-and-turn and one-leg-stand tests. During
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cross-examination, Duncan stated that he knew if he submitted to breath testing and the
results showed that he was not intoxicated, there would be no adverse consequences to
his license, and he would be allowed to go home. With regard to the bottle of MD 20/20
found in his car, Duncan admitted that it was a type of wine but claimed he did not drink
any of it that night.

After hearing all the evidence and arguments of counsel, as well as viewing the
DVD showing Duncan perform the field sobriety tests, the district court found Duncan
guilty of DUI and failing to have his headlights illuminated when required. The district
court sentenced Duncan to an underlying jail sentence of 12 months and placed him on
probation for 1 year. Prior to being placed on probation, the district court ordered Duncan
to first serve 2 days in jail and then 8 days under house arrest. Finally, the district court
ordered Duncan to pay fines totaling $1,560 ($1,500 for the DUI and $60 for failure to
have his headlights illuminated).

ANALYSIS

On appeal, Duncan claims his convictions must be vacated and the charges against
him dismissed because the State failed to present sufficient evidence to convict him of
either DUI or failing to have his headlights illuminated when required. Alternatively,
Duncan claims his DUI conviction must be vacated and the charge remanded for a new
trial on grounds that (1) the district court erred in allowing Deputy Crafton to testify that
Duncan's performance on the walk-and-turn and one-leg-stand tests indicated his blood
alcohol concentration (BAC) was over .08; (2) his constitutional right to a jury trial was
violated because he was never informed of or waived his right to a jury trial; (3) K.S.A.
22-3404 should be stricken as unconstitutional because it unlawfully restricts the time
period within which persons charged with misdemeanors must request a jury trial; (4) the
district court erred in sentencing Duncan; and (5) the district court erred when it allowed
the State to reopen its case after it rested.
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For the reasons stated below, we find there was sufficient evidence presented at
trial to convict Duncan for DUI and for failing to have his headlights illuminated when
required. We further find, however, that Duncan unlawfully was denied the constitutional
right to have his case tried to a jury instead of a judge. As such, we reverse the DUI
conviction and remand for a new trial with directions. Given our decision to reverse and
remand for a new trial on this ground, we find it unnecessary to determine whether the
alternative grounds submitted by Duncan in support of reversal and remand have any
merit.

Sufficiency of the Evidence

Duncan argues that the State failed to present sufficient evidence to convict him of
either DUI or failure to have his headlights illuminated when required. When the
sufficiency of the evidence is challenged in a criminal case, an appellate court reviews all
the evidence in the light most favorable to the prosecution to determine whether a rational
factfinder could have found the defendant guilty beyond a reasonable doubt. State v.
Trautloff, 289 Kan. 793, 800, 217 P.3d 15 (2009). In its review of the evidence, an
appellate court will not reweigh the evidence, pass on the credibility of witnesses, or
resolve conflicts in the evidence. State v. Hayden, 281 Kan. 112, 132, 130 P.3d 24
(2006).

The State presented sufficient evidence to convict Duncan of DUI.

As noted above, Duncan was charged pursuant to K.S.A. 2006 Supp. 8-1567(a)(3)
for operating a vehicle while "under the influence of alcohol to a degree that renders the
person incapable of safely driving a vehicle." In State v. Blair, 26 Kan. App. 2d 7, Syl.
¶ 2, 974 P.2d 121 (1999), a panel of this court stated: "Evidence of incapacity to drive
safely can be established through sobriety tests and other means. Observed erratic driving
is not a requirement for conviction of driving while under the influence of alcohol." The
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panel ultimately found the State presented sufficient evidence to convict Blair of DUI
under K.S.A. 1997 Supp. 8-1567(a)(3) even though there was no evidence showing that
she drove her vehicle in an erratic manner. 26 Kan. App. 2d at 7-8.

The evidence presented here showed that after pulling Duncan over for failing to
have his headlights illuminated, Crafton made contact with Duncan and smelled "a very
strong odor of alcoholic beverage" emanating from him, observed that his eyes were
bloodshot and watery, and noticed that his speech was slurred. In order to assess
impairment, Crafton requested Duncan complete a two-part task: produce his driver's
license and proof of insurance. Duncan only remembered to give Crafton his driver's
license. Crafton asked Duncan where he was coming from, and Duncan told him that he
was coming from a liquor store. When Duncan exited his vehicle, Crafton noticed that
Duncan was "unsteady."

Crafton had Duncan perform the walk-and-turn and the one-leg-stand tests.
Duncan's performance on these tests indicated to Crafton that Duncan was impaired and
unable to safely operate a vehicle. A DVD recording was introduced into evidence at the
bench trial showing Duncan performing the field sobriety tests. Though this DVD is not
part of the record on appeal, the district court reviewed a copy of the DVD showing
Duncan performing the field sobriety tests and noted at the bench trial that Duncan had
numerous problems with performing both tests. The court also stated that Duncan's
problems appeared not to be related to the weather or the road conditions.

After arresting Duncan, Crafton searched Duncan's car and found an opened bottle
of MD 20/20 containing half an inch of liquid in the bottle and an unopened bottle of Bud
Light. At trial, Duncan conceded that MD 20/20 was a type of wine but claimed that he
did not consume any of it that night. Nevertheless, Duncan admitted to drinking "about
two cans of beer" 45 minutes prior to being pulled over. When confronted at trial with his
refusal to submit to an evidentiary breath test, Duncan stated he knew that if he had
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submitted to testing and the results showed that he was not intoxicated, there would have
been no adverse effect upon his license and he would have been allowed to go home. See
K.S.A. 2006 Supp. 8-1001(i) ("The person's refusal [to submit to testing] 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.").

Viewing all of this evidence in the light most favorable to the prosecution, we
believe a rational factfinder could find that Duncan consumed alcohol prior to operating a
vehicle and that, based on his demeanor during the traffic stop and his performance on
the field sobriety tests, such consumption impaired psychomotor skills that are essential
to safely driving a vehicle. In other words, a rational factfinder could find beyond a
reasonable doubt that Duncan was operating his vehicle while under the influence of
alcohol to a degree that rendered him incapable of safely driving a vehicle. For these
reasons, we conclude that the State presented sufficient evidence to convict Duncan of
DUI under K.S.A. 2006 Supp. 8-1567(a)(3).

The State presented sufficient evidence to show that Duncan failed to have the
headlights of his vehicle illuminated while driving after sunset.

K.S.A. 2006 Supp. 8-1703 states:

"(a) Every vehicle . . . upon a highway within this state, at all times shall display
lighted head and other lamps and illuminating devices as required for different classes of
vehicles, subject to exceptions with respect to parked vehicles:
(1) From sunset to sunrise;
(2) when due to insufficient light or unfavorable atmospheric conditions,
including smoke or fog, persons and vehicles on the highway are not clearly discernible
at a distance of 1,000 feet ahead; or
(3) when windshield wipers are in continuous use as a result of rain, sleet or
snow." (Emphasis added.)
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K.S.A. 8-1424 defines "highway" as "the entire width between the boundary lines
of every way publicly maintained when any part thereof is open to the use of the public
for purposes of vehicular travel."

The State presented evidence at trial that established that Duncan was driving his
vehicle at 11:06 p.m. on a public street in Wichita without his vehicle's headlights turned
on. In fact, Duncan conceded this fact at trial during his testimony and closing argument.
We may take judicial notice that on the date of Duncan's arrest, January 19, 2007, sunset
occurred prior to 11:06 p.m. in Wichita, Kansas. See K.S.A. 60-409(a) (judicial notice
may be taken of such facts generally known or of such common notoriety that they
cannot reasonably be the subject of dispute); Martin v. Kansas Dept. of Revenue, 38 Kan.
App. 2d 1, 6-7, 163 P.3d 313 (2006) (taking judicial notice that sunset occurred prior to
9:20 p.m. on April 28, 2004, in Glasco, Kansas). For these reasons, we find sufficient
evidence was presented at trial showing, beyond a reasonable doubt, that Duncan violated
K.S.A. 2006 Supp. 8-1703(a)(1).

Simply put, we find no merit to Duncan's claims of insufficient evidence.

Right to Trial by Jury

Duncan argues his conviction for DUI must be reversed because he was
unlawfully denied the constitutional right to have his case tried to a jury instead of a
judge.

Duncan did not raise this issue before the district court. Generally, issues not
raised before the district court cannot be raised on appeal. State v. Shopteese, 283 Kan.
331, 339, 153 P.3d 1208 (2007). There are exceptions to this rule, however, including
where (1) the newly asserted theory involves only a question of law arising on proved or
admitted facts and is finally determinative of the case, (2) consideration of the theory is
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necessary to serve the ends of justice or to prevent denial of fundamental rights, or (3) the
judgment of the trial court may be upheld on appeal despite its reliance on the wrong
ground or reasons. 283 Kan. at 339. With regard to the second exception, a panel of this
court previously has recognized "[t]here is no more fundamental right in the United
States than the right to a jury trial." State v. Larraco, 32 Kan. App. 2d 996, 999, 93 P.3d
725 (2004). Accordingly, we will address the merits of whether Duncan's constitutional
right to a jury trial was violated in this case. See State v. Bowers, 42 Kan. App. 2d 739,
740, 216 P.3d 715 (2009) (deciding to address a jury trial waiver issue for the first time
on appeal because "the consideration of the denial of a right to a jury trial is necessary to
prevent the denial of a fundamental right").

Determining whether Duncan effectively waived his right to a jury trial requires
constitutional interpretation; thus, our review is unlimited. See State v. Morfitt, 25 Kan.
App. 2d 8, 11, 956 P.2d 719, rev. denied 265 Kan. 888 (1998). We begin our analysis by
reviewing the right to trial by jury that is guaranteed by both the United States and the
Kansas Constitutions.

The Sixth Amendment to the United States Constitution, which applies to the
states through the Fourteenth Amendment, guarantees a jury trial to any defendant
charged with a crime punishable by more than 6 months of imprisonment. Lewis v.
United States, 518 U.S. 322, 325-26, 116 S. Ct. 2163, 135 L. Ed. 2d 590 (1996); State v.
Irving, 216 Kan. 588, 589, 533 P.2d 1225 (1975). Likewise, Section 5 of the Kansas
Constitution Bill of Rights states that "[t]he right of trial by jury shall be inviolate." A
defendant's constitutional right to be tried by a jury rather than solely by the court is
"'fundamental to the American scheme of justice.'" Irving, 216 Kan. at 589 (quoting
Duncan v. Louisiana, 391 U.S. 145, 149, 88 S. Ct. 1444, 20 L. Ed. 2d 491 [1968]).

Nevertheless, a defendant can waive his or her constitutional right to a jury trial.
Irving, 216 Kan. at 589. In order for a defendant to effectively waive his or her
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constitutional right to a jury trial, however, two conditions must be met: (1) the trial
court must advise the defendant of his or her right to a jury trial, and (2) the defendant
must waive the right personally, either in writing or in open court for the record. Waiver
will not be presumed upon a silent record. 216 Kan. at 589-90.

As Duncan asserts, he had a constitutional right to a jury trial with regard to the
DUI charges against him because that crime was punishable by more than 6 months of
imprisonment. See K.S.A. 2006 Supp. 8-1567(e) (providing that upon a second
conviction for driving under the influence of alcohol to a degree that renders the person
incapable of safely driving a vehicle, such person shall be sentenced to not less than 90
days nor more than 1 year's imprisonment). In support of the assertion that his
constitutional right to a jury trial was violated, Duncan argues there is no evidence in the
record that the district court advised him of his right to a jury trial or that he personally
waived his right to a jury trial in writing or in open court. See Irving, 216 Kan. at 589
(waiver of the right to a jury trial will not be presumed from a silent record).

In response to this argument, the State counters that Duncan's reference to a silent
record is insufficient to satisfy his burden to designate a record which affirmatively
shows prejudicial error. See State v. Goodson, 281 Kan. 913, Syl. ¶ 3, 135 P.3d 1116
(2006) ("A party asserting error has the burden to designate a record which affirmatively
shows prejudicial error in the trial court, and, without such a record, this court presumes
the trial court's action was proper."). In Goodson, the defendant appealed the district
court's decision to deny a motion to suppress statements the defendant made to a
detective on grounds that the statements were not voluntary. Although there was a
videotape of the interview during which the statements were made, the defendant failed
to include the videotape or a transcript of the videotape in the record on appeal. The
holding in Goodson was grounded in the particular facts of the case: that defendant
failed to include in the record on appeal evidence that both existed in the record and was
presented to the district court.
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Unlike Goodson, there has been no assertion by either party in this case that
Duncan failed to include in the record on appeal any evidence that existed in the record
and was presented to the district court. This factual distinction is significant because it
requires Duncan to prove an absence of evidence; in other words, to prove a negative
fact. To that end, and unlike the definitive burden necessary to prove an existing fact, the
burden to prove a negative fact does not require a defendant to irrefutably demonstrate
the fact does not exist; it requires only that the defendant do what is ordinary for one who
bears a clear and convincing burden of proof, i.e., show that his or her version of the facts
is highly probable. See In re B.D.-Y., 286 Kan. 686, 690-98, 187 P.3d 594 (2008); accord
In re Chicago Rys. Co., 175 F.2d 282, 290 (7th Cir. 1949) (establishing through evidence
that it is probable a fact does not exist may be sufficient to satisfy burden of proof); Zero
Wholesale Gas v. Stroud, 264 Ark. 27, 34c, 571 S.W.2d 74 (1978); Dorsey v. Brigham,
177 Ill. 250, 262, 52 N.E. 303 (1898) (same); Shumak v. Shumak, 30 Ill. App. 3d 188,
191, 332 N.E.2d 177 (1975) (same); Young v. Woodman, 18 N.M. 207, 210-11, 135 P. 86
(1913) (same); Higgins v. Salewsky, 17 Wash. App. 207, 210, 562 P.2d 655 (1977)
(same); 31A C.J.S. Evidence § 200 (same). Stated another way, the party asserting an
absence of evidence to support a claim still bears the burden to prove that claim, but the
standard of proof required to satisfy this burden necessarily is less onerous.

We find instructive the Arkansas Supreme Court's explanation of this alternative
standard of proof:

"The 'burden of evidence' or 'of going forward' is more easily discharged when the
proposition is a negative one than when it is a positive one, and the burden of evidence
will shift when the evidence, even though circumstantial, renders provable the existence
of a negative fact. . . . 'Full and conclusive proof is not required where a party has the
burden of proving a negative, but it is necessary that the proof be at least sufficient to
render the existence of the negative probable, or to create a fair and reasonable
presumption of the negative until the contrary is shown.'" Stroud, 264 Ark. at 34c
(supplemental opinion on petition for rehearing).
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Applying the standard of proof applicable in negative evidence cases to the facts
presented here, Duncan bears the burden to designate a record that establishes a high
probability (as opposed to conclusively) that he did not effectively waive his right to a
jury trial. Upon review of the record designated by Duncan, we are satisfied Duncan met
his burden in this regard.

The appearance docket contained in the record on appeal shows that several
disposition hearings took place in this case prior to the bench trial. Although none of
these hearings were recorded, there is nothing contained in the appearance docket or the
disposition sheets from these hearings to indicate that the district court ever advised
Duncan of his right to a jury trial or that Duncan waived this right. The appearance
docket reflects that the only hearing recorded was the bench trial, and Duncan properly
added the transcript of this hearing to the record on appeal. Nevertheless, there is nothing
in this transcript to suggest, let alone establish, that Duncan was advised of, or waived his
right to, a jury trial.

Duncan included in the record on appeal documents and other evidence that
typically reflect whether the district court advised a defendant of his or her constitutional
right to a jury trial and whether the defendant waived that right, either in writing or in
open court. Review of the record designated by Duncan reveals nothing to indicate that
the district court advised Duncan of his constitutional right to a jury trial or that Duncan
personally waived his right to a jury trial. And, although it bore no burden to do so, the
State did not submit any evidence to refute the silent record affirmatively designated by
Duncan in support of his claim that he did not voluntarily and knowingly waive his right
to a jury trial.

We are satisfied Duncan met his burden to designate a record establishing a high
probability that Duncan did not effectively waive his right to a jury trial on the DUI
charge. Because we have found Duncan to have adequately sustained his burden, we
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necessarily conclude that Duncan was unlawfully deprived of his constitutional right to a
jury trial on the DUI charge; thus, Duncan's conviction for DUI must be reversed and the
case remanded for new trial on this claim. See Irving, 216 Kan. at 590 (after determining
that the record on appeal did not contain any evidence showing that Irving validly waived
his constitutional right to a jury trial, the panel reversed Irving's convictions for felony
DUI and several traffic offenses and remanded for a new trial). Prior to scheduling the
new trial, (1) the district court shall advise Duncan in open court on the record of his right
to a jury trial; and (2) Duncan shall state either in writing or in open court whether he
wants to proceed with a jury trial or waive the right.

Based on our decision to reverse the DUI conviction and remand with directions,
we find to be moot the four alternative claims presented by Duncan in support of reversal
and remand for a new trial on the DUI charge: (1) the district court erred in allowing
Deputy Crafton to testify that Duncan's performance on the walk-and-turn and one-leg-
stand tests indicated his BAC was over .08; (2) K.S.A. 22-3404 should be stricken as
unconstitutional because it unlawfully restricts the time period within which persons
charged with misdemeanors must request the right to jury trial; (3) the district court erred
in sentencing Duncan; and (4) the district court erred when it allowed the State to reopen
its case after it rested.

Based on the discussion above, we affirm Duncan's conviction for failure to
illuminate headlights but reverse Duncan's DUI conviction, and remand for further
proceedings consistent with this opinion.