Opinion
No. 105,424.
2012-09-28
STATE of Kansas, Appellee, v. Johnny SILCOTT, Appellant.
Appeal from Reno District Court, Richard J. Rome, Judge. Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Daniel D. Gilligan, assistant district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Reno District Court, Richard J. Rome, Judge.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Daniel D. Gilligan, assistant district attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., McANANY, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Johnny Silcott appeals his current conviction of driving under the influence of alcohol (DUI) to a degree that rendered him incapable of safely driving a vehicle, in violation of K.S.A.2008 Supp. 8–1567(a)(3). This was Silcott's seventh conviction under K.S.A. 8–1567. His conviction was based upon his conduct in the early morning hours of April 4, 2009. Hutchinson Police Officer Garrett Leslie found Silcott alone in the driver's seat of his truck, which was idling at a green traffic light. The truck was in a traffic lane with no vehicles in front to prevent Silcott from driving through the intersection. The truck's engine was running, its brake lights were on, and the transmission was engaged in drive.
Leslie approached the truck and found Silcott unresponsive when Leslie knocked on the window. Leslie opened the truck door and shook Silcott to wake him up. As Silcott woke up, his foot slipped off the brake and the truck lunged forward. Silcott was confused and disoriented, so Leslie put the transmission into park himself.
Silcott had watery, bloodshot eyes and smelled of alcohol. When Leslie asked Silcott for his driver's license, Silcott started to hand him cash. Silcott admitted to consuming a few beers at a local bar that evening. Field sobriety tests disclosed several signs of impairment. Silcott was arrested for DUI and was taken to the police station, where he refused a breath test.
Silcott was tried under K.S.A.2008 Supp. 8–1567(a)(3) for operating a vehicle under the influence of alcohol to a degree that rendered him incapable of safely driving a vehicle. He testified at trial that the various indicia of intoxication were due to him having spilled chemicals on his face at his work that evening. He said he stopped where he did in order to clean off his face because the chemicals caused him to become sick. He denied being asleep or passed out when Leslie approached the truck. The jury didn't buy it.
Silcott's first point of error is the district court's acceptance of the jury's verdict without first inquiring into the accuracy of the verdict as required by K.S.A. 22–3421. Silcott admits that he did not object below, but he asserts we should apply an exception to the general rule that a new legal theory may not be asserted on appeal. See State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010). Silcott asserts that this issue is a question of law and is “ ‘finally determinative of the case’ “ and implicates the fundamental right to a unanimous verdict.
Statutory interpretation is a legal issue over which we exercise unlimited review. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010). In addition, we also exercise unlimited review over issues of jury unanimity. State v. Dayhuff, 37 Kan.App.2d 779, 784, 158 P.3d 330 (2007).
Here, the district court read the verdict and asked the parties if either requested that the jury be polled. Both declined. K.S.A. 22–3421 provides:
“The verdict shall be written, signed by the presiding juror and read by the clerk to the jury, and the inquiry made whether it is the jury's verdict. If any juror disagrees, the jury must be sent out again; but if no disagreement is expressed, and neither party requires the jury to be polled, the verdict is complete and the jury discharged from the case. If the verdict is defective in form only, it may be corrected by the court, with the assent of the jury, before it is discharged.” (Emphasis added.)
In State v. Gray, 45 Kan.App.2d 522, 523, 249 P.3d 465,rev. denied 292 Kan. 967 (2011) (relying on State v. Johnson, 40 Kan.App.2d 1059, 1081, 198 P.3d 769 [2008] ), the court found that the district court's failure to strictly adhere to K.S.A. 22–3421 required reversal. We are not persuaded by the reasoning in Gray. Further, unlike in Johnson, there are no facts in Sikott's case that call into question the accuracy of the jury's verdict.
In State v. Dunlap, 46 Kan.App.2d 924, 934, 266 P.3d 1242 (2011) ( petition for rev. filed December 30, 2011), another panel of this court concluded:
“We hold that when the trial judge in a criminal case explicitly asks the parties if they want to have the jury polled, which would accomplish the same purposes as having the trial judge inquire into the accuracy of the verdict, and the defendant declines the request for polling, the appellate court should not consider a challenge to the procedure for accepting the verdict for the first time on appeal based on concepts of waiver and invited error.”
The procedure followed by the court in Dunlap was the same procedure used by the court at Silcott's trial. We are persuaded by the reasoning in Dunlap and hold that Silcott waived his right to challenge the district court's procedure for accepting the verdict. See State v. Womelsdorf, 47 Kan.App.2d 307, 326–30, 274 P.3d 662 (2012) ( petition for rev. filed May 10, 2012); State v. Stangl, No. 105,400, 2012 WL 924831, at *2 (Kan.App.2012) (unpublished opinion) (petition for rev. filed April 11, 2012) (finding some of the mandates of K.S.A. 22–3421 to be directory rather than mandatory); State v. Dernier, No. 104,840, 2011 WL 6943076, at *2–3 (Kan.App.2011) (unpublished opinion) ( petition for rev. fled January 23, 2012).
For his second point of error Silcott contends this is an alternative means case and there was insufficient evidence to support each alternative means of committing DUI. The district court instructed the jury that in order to convict, it must find that Silcott was driving or attempting to drive while under the influence of alcohol to a degree that rendered him incapable of driving safely. Silcott admits that the State presented sufficient evidence that he operated his truck, because it moved forward when he removed his foot from the brake pedal. But he claims that the State failed to introduce sufficient evidence that he attempted to operate his vehicle, an alternative which would support a conviction.
In State v. Jones, No. 105,271, 2011 WL 6382892, at *3 (Kan.App.2011) (unpublished opinion) ( petition for rev. filed December 30, 2011), this court found that when an officer ends the defendant's operation of the vehicle, and there is evidence that the defendant would have continued its operation of the vehicle but for the officer's actions, there is sufficient evidence to prove the alternative theory of attempt to operate. Here, it is reasonable to conclude that if Leslie had not put Silcott's vehicle into park, at some point, and while still intoxicated, Silcott would have continued on down the road. Accordingly, we find sufficient evidence to support the State's theory that Silcott attempted to operate his vehicle.
Silcott's third point of error is that he was denied his right to a fair trial by the State's misconduct. We review this issue using a two-step analysis. First, we consider whether the prosecutor's conduct was proper and within the latitude allowed the prosecutor. If we find misconduct, we then determine whether the conduct requires us to reverse the case. In doing so, we consider (1) whether the misconduct was gross and flagrant, (2) whether the misconduct showed ill will on the prosecutor's part, and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors, State v. Inkelaar, 293 Kan. 414, 427, 264 P.3d 81 (2011); see State v. Tosh, 278 Kan. 83, 85, 91 P.3d 1204 (2004).
Silcott claims reversible error in two comments made by the prosecutor during closing argument: (1) the prosecutor's reference to Silcott's version of events as a “bogus story” and “bogus”; and (2) the prosecutor's misstatement of law when he stated that Silcott “cannot drink and drive and not be found guilty.”
Silcott compares the prosecutor's comment that his story was bogus to the prosecutors' actions in State v. Elnicki, 279 Kan. 47, 57–68, 105 P.3d 1222 (2005) (a prosecutor's comments about the defendant's “yarn,” “fairy tale,” “fabrication,” “tall tale,” and “spin” constituted improper commentary on the defendant's credibility); State v. Pabst, 268 Kan. 501, 507, 996 P.2d 321 (2000) (misconduct where prosecutor repeatedly characterized defendant as a liar); and State v. Jackson, 37 Kan.App.2d 744, 749–50, 157 P.3d 660,rev. denied 285 Kan. 1176 (2007) (a prosecutor's comments that the defendant's testimony was a “doozie” and “a crock” were improper).
The State admits that the prosecutor's reference to Silcott's version of events as bogus was “likely improper based on the rulings in cases like State v. Jackson.” However, the State claims the conduct does not amount to reversible error. We agree. The State's comment was improper. But it was isolated and we are satisfied it had little weight in the mind of the jurors considering the evidence introduced at trial.
With respect to the prosecutor's statement that Silcott “cannot drink and drive and not be found guilty,” this is a misstatement of the law because K.S.A.2008 Supp. 8–1567(a)(3) requires that one must operate the vehicle “under the influence of alcohol to a degree that renders the person incapable of safely driving a vehicle .” However, the misstatement does not amount to reversible error. The jury was properly instructed regarding the elements of DUI. The jury understood that statements of counsel on the law applicable to the case did not supercede the court's instructions on the law. The prosecutor's misstatement was isolated. Further, this was not a close call; that is, there was no credible evidence that Silcott had imbibed in moderation and his driving was not affected. The evidence demonstrated that Silcott was very intoxicated and was clearly incapable of safely operating his vehicle. The prosecutor's misstatement had very little weight in the minds of the jurors and thus does not amount to reversible error.
As his final point of error, Silcott claims the district court failed to consider community service as a method of paying his $2,500 fine, contrary to K.S.A. 21–4607(3).
K.S.A. 21–4607(3) states: “In determining the amount and method of payment of a fine, the court shall take into account the financial resources of the defendant and the nature of the burden that its payment will impose.” In State v. Copes, 290 Kan. 209, 222–23, 224 P.3d 571 (2010), the Kansas Supreme Court announced:
“Where the amount of fine is discretionary, this court has required the district court to ‘state on the record that he or she has taken into account the financial resources of the defendant and the nature of the burden that payment of the fine will impose.’ [Citation omitted.] We see no reason to require a different procedure when the method of payment is discretionary.”
The State concedes that the sentencing court did not consider community service in lieu of a monetary payment as required by K.S.A.2008 Supp. 8–1567(j) and Copes. We are bound to follow Copes and must remand for the district court on this issue. In this regard, surely Silcott and his appellate counsel would not have taken up court resources to resolve this issue on appeal and sought a hearing on remand in the district court unless Silcott had determined that he is ready, willing, and able to perform community service in lieu of paying the fine and that he desires the court to order community service. Otherwise, the appeal of this issue would have been frivolous and we have no reason to believe that is the case. The amount of the fine is fixed by statute and the district court does not have the discretion to set a different amount. Copes, 290 Kan. at 222. Therefore, we see no necessity for the district court to take up valuable court time to conduct a hearing unless the State wishes to express its opposition to community service. Absent such a request from the State, the district court on remand should exercise its discretion, determine whether the fine should be paid in cash or in community service, and enter its order accordingly.
Affirmed in part and remanded for consideration of community service as a method of payment.