Opinion
111,740.
04-17-2015
CITY OF WICHITA, Appellee, v. Guyfranck KISANGANI, Appellant.
Ian M. Clark, of Wichita, for appellant. Jan Jarman, assistant city attorney, for appellee.
Ian M. Clark, of Wichita, for appellant.
Jan Jarman, assistant city attorney, for appellee.
Before MALONE, C.J., PIERRON and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
Guyfranck Kisangani appeals his convictions by a jury of driving with a suspended license and driving under the influence (DUI). In his two issues on appeal, Kisangani contends the evidence supporting his convictions should have been suppressed because: (1) The officer lacked reasonable suspicion to conduct an investigatory traffic stop; and (2) the officer lacked probable cause to believe Kisangani was DUI. Kisangani raised these same issues below in a pretrial motion to suppress he filed in the district court after appealing from his convictions in Wichita Municipal Court.
Based on Kansas Supreme Court precedent, which we are duty bound to follow, we hold Kisangani failed to preserve these issues for appeal because he did not contemporaneously object when the evidence—that he now argues should have been suppressed—was admitted during his jury trial. See State v. Houston, 289 Kan. 252, 270, 213 P.3d 728 (2009) (holding that “when a pretrial motion to suppress has been denied, the evidence must also be objected to at the time it is offered during the trial in order to preserve the issue for appeal”); State v. Jones, 44 Kan.App.2d 139, 142, 234 P.3d 31 (2010) (recognizing Court of Appeals duty bound to follow Kansas Supreme Court precedent absent any indication of departure), rev. denied 292 Kan. 967 (2011). Our Supreme Court continues to cite this preservation rule with approval. See, e.g., State v. Kelly, 295 Kan. 587, 590, 595, 285 P.3d 1026 (2012) ; State v. King, 288 Kan. 333, 341–42, 204 P.3d 585 (2009).
Kisangani argues this rule does not prevent the introduction of a newly asserted theory that involves only a question of law arising on proved or admitted facts and is finally determinative of the case. Kisangani cites State v. Anderson, 294 Kan. 450, 464–65, 276 P .3d 200, Cert. denied 133 S.Ct. 529 (2012). Anderson is distinguishable from the instant case. Our case is not an instance of a newly asserted theory after the trial. We have here an issue argued before trial but which was not objected to at trial. This is clearly a situation where the issue was not preserved and which is barred from consideration as was the case in Houston, Kelly, and King.
In case of review, we will address the merits of Kisangani's arguments which we find to be unavailing.
The officers in this case responded to a report by an identified employee of a bank that there was a fight in the bank's parking lot. She indicated a crowbar had been displayed by one of the parties involved in the disturbance.
Two of the people in the disturbance were described as a black male wearing a blue-checked button-down shirt and black female wearing a bright yellow shirt. They were traveling in a two-door black Ford Contour with a specific tag number.
Within minutes of receiving the call, a car with the exact tag number and the same make and model was spotted by police officers within 6 blocks of the disturbance. The car was stopped by the officers who noted the individuals in the car matched the physical description that had been broadcast. A check revealed Kisangani had a suspended driver's license.
Officer Murray, one of two officers at the scene, noted a strong order of alcohol on Kisangani's breath. Kisangani was very belligerent, obscene, and rude. Murray noted Kisangani had bloodshot and glazed eyes and repeated questions and comments to the officers.
Officer Murray was an experienced traffic officer and had extensive experience in DUI investigations. Murray asked Kisangani to take standardized field sobriety tests, but he refused. Murray said Kisangani continually yelled. Kisangani stated he had consumed alcohol the night before.
Murray wanted Kisangani to do sobriety testing at the police substation where the surface was flatter. Kisangani refused.
Defense counsel argued two motions to suppress the evidence at the trial level, which were denied. Kisangani was found guilty of one count of driving on a suspended driver's license and one count of DUI. He argues there was insufficient reasonable suspicion to justify the traffic stop and there was no probable cause that he was DUI.
We will not dwell on these issues. There was a great deal of evidence that the car and the occupants were part of the disturbance that the officers were investigating. There was also substantial evidence that Kisangani was under the influence. We find the trial court properly found the stop was appropriate and that Kisangani was DUI. We therefore affirm.
Affirmed.