Opinion
No. 108,205.
2013-10-25
STATE of Kansas, Appellee, v. Brandon BOLEN, Appellant.
Appeal from Wallace District Court; Scott Showalter, Judge. Caleb Boone, of Hays, for appellant. Charles F. Moser, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wallace District Court; Scott Showalter, Judge.
Caleb Boone, of Hays, for appellant. Charles F. Moser, county attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., SCHROEDER, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Brandon Bolen appeals from his conviction of driving under the influence of alcohol, transporting an open container, and driving left of center in a no-passing zone. On appeal, Bolen argues it was error for the district court to refuse to give his requested jury instructions. Finding his novel theory of defense has no basis in Kansas law, we find no error and accordingly affirm.
Facts
On July 8, 2011, Bolen was “booze cruising” with Amber Cloyd. Cloyd dropped Bolen off at his truck. On Main Street, Jeff Rupp was driving “really slow” when Bolen drove up behind him. Rupp and Bolen were not seeing “eye-to-eye,” and Rupp was intentionally driving slowly to irritate Bolen.
Bolen decided to pass Rupp in the left lane and collided with a vehicle driven by Kim Hudson. Hudson's vehicle spun and she observed Bolen driving away. Rupp called Bolen and told him to return to the scene because he hit somebody. Bolen returned about 15 minutes later. Hudson could smell alcohol on Bolen.
Undersheriff Marshall Unruh was one of the responding officers. Rupp and another witness both told Unruh that Bolen “came up behind” Rupp and “went past him and when he did he hit” Hudson's Car. Bolen told Unruh that “suddenly ... Rupp applied his brakes and the vehicle nearly stopped, and [Bolen] swerved to go around it in order to miss” Rupp's vehicle. While Unruh was speaking with Bolen, he smelled alcohol. Bolen admitted to Unruh he had consumed “three or four” beers. Bolen also told Unruh there were open containers in his vehicle. Bolen consented to a search of his vehicle, and Unruh found one open container of Budweiser and one open container of Bud Ice in Bolen's passenger compartment. Another officer later located another open container of Budweiser in Bolen's vehicle.
With the accident, the smell of alcohol on his breath, and open containers in his car, Unruh asked Bolen to submit to standard field sobriety tests. Unruh observed Bolen had bloodshot eyes, soiled clothing, and was very talkative. Bolen failed the field sobriety tests, was arrested, and transported to the sheriff's office. Bolen refused a breath test at the sheriff's office and signed an implied consent advisory to that effect.
Bolen was charged with driving under the influence of alcohol, third offense in violation of K.S.A.2011 Supp. 8–1567(a); transportation of alcoholic beverage in opened container in violation of K.S.A.2011 Supp. 8–1599; and passing in no-passing zone in violation of K.S.A. 8–1518 and K.S.A. 8–1520.
At trial, Bolen's theory of defense was that Rupp stopped suddenly in the roadway and that Bolen swerved to avoid Rupp. During closing, Bolen's counsel stated, “The fact that an accident occurred was the whole reason why ... Unruh was there.... [A]nd the purpose of his investigation was for him to determine whether anyone was impaired to the extent they were not able to drive safely, thus causing the accident.” Since the cause of the accident was Rupp's sudden stop and Bolen was not “falling down drunk” on the footage from Unruh's dash cam, Bolen was not “unable to drive safely.”
Bolen requested two jury instructions based on K.S.A. 8–1472 and K.S.A. 8–1571(a)(1):
“ ‘Stop’ or ‘stopping’ when prohibited means any halting, even momentarily, of a vehicle, whether occupied or not, except when necessary to avoid conflict with other traffic or in compliance with the directions of a police officer or a traffic-control sign or signal.”
“Except when necessary to avoid conflict with other traffic or in compliance with law or the directions of a police officer or official traffic-control device, no person shall stop, stand or park a vehicle.”
The State objected, arguing it was not relevant to a criminal case who bore fault for the accident. The district court declined to give the requested instructions, finding they were not standard PIK instructions, but allowed Bolen's counsel to discuss them during closing.
During closing, Bolen's counsel argued to the jury:
“The law basically on this point is this: Except when necessary to avoid conflict with other traffic or in compliance with the law or directions of a police officer or official traffic control device, no person shall stop, stand or park a vehicle. It's just a basic rule. You are not supposed to do that.
“Then it defines stopping or standing which means any halt even momentarily of a vehicle, whether occupied or not, except when necessary to avoid conflict with other traffic or in compliance with the directions of a police officer or a traffic control sign or signal. And basically, all that means is you are not supposed to stop your vehicle in the road. And that is the law.”
The jury convicted Bolen on all three counts.
Analysis
Bolen presents no challenge to the facts surrounding his DUI arrest and his only argument on appeal is that the district court erred in refusing to give his proposed jury instructions. We recognize when a challenge to jury instructions is present, we turn to the four-part analysis from State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012).
“For jury instruction issues, the progression of analysis and corresponding standards of review on appeal are: (1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).”
Reviewability
Bolen requested the instructions before the district court. The State concedes that Bolen's argument is reviewable, and we agree. Were the Instructions Legally Appropriate?
Bolen does not address the second step of the analysis set out by our Supreme Court in Plummer except to say that the district court “had no choice but to give the instruction” if Bolen “properly requested it.” The State counters that the requested instructions were “meaningless and confusing” and “misleading and inaccurate.” We agree. “[A]n instruction must always fairly and accurately state the applicable law, and an instruction that does not do so would be legally infirm.” Plummer, 295 Kan. at 161.
We acknowledge that Bolen's proposed instructions are fair and accurate statements of the law, but we find that they are not applicable to his criminal trial in which he was charged with driving under the influence of alcohol, transporting alcoholic beverages in an open container, and passing in a no-passing zone.
K.S.A. 8–1472 defines the words “stop” and “stopping” as used in the Uniform Act Regulating Traffic, K.S.A. 8–1401 et seq. , but neither the word “stop” nor “stopping” appears in K.S.A. 8–1518 or K.S.A. 8–1520. Thus, the language from K.S.A. 8–1472 was not appropriate to include in a jury instruction.
K.S.A. 8–1571(a)(1) prohibits persons from stopping, standing, or parking a vehicle in 11 specific locations. None of those prohibitions have anything to do with what Bolen was charged with or create a reasonable theory of defense. Here, Bolen was charged with passing in a no-passing zone, not parking in violation of K.S.A. 8–1571.
Bolen's theory of defense at trial was essentially that it was “not his fault” he was caught driving under the influence of alcohol because Rupp caused the accident by improperly stopping upon a highway, a defense that borders on being frivolous. Bolen does not point this court to any instance in which the actions of a third party causing or contributing to an accident that alerts law enforcement officers to the other driver's intoxication serves as a defense to operating a vehicle under the influence of alcohol.
Under our unlimited review of this issue, we find that the proposed instructions were not legally appropriate. Since the proposed instructions were not legally appropriate, the district court had no duty to give them to the jury just because Bolen wanted them given. We therefore need not review Bolen's argument under the third or fourth steps in the Plummer analysis regarding sufficient evidence of his theory or reversibility of the district court's decision. Cf. State v. Pittman, No. 108,284, 2013 WL 4404193, at *5 (Kan.App.2013) (unpublished opinion) (declining to analyze fourth step after finding insufficient evidence of defendant's theory in third step).
Conclusion
The two instructions as requested were not a fair and accurate statement of the law applicable to Bolen's alleged crimes or valid defenses thereto. The district court did not err in refusing to give them. The actions of another driver do not negate the fact Bolen was operating his truck under the influence of alcohol, with an open container of alcohol or that he chose to pass another vehicle in a no-passing zone.
Affirmed.