Opinion
No. 109,999.
2014-09-26
STATE of Kansas, Appellant, v. Kevin James HAZLETT, Appellee.
Appeal from Graham District Court; Preston A. Pratt, Judge.Tony A. Potter, county attorney, and Derek Schmidt, attorney general, for appellant.Patrick H. Dunn, of Kansas Appellate Defender Office, for appellee.
Appeal from Graham District Court; Preston A. Pratt, Judge.
Tony A. Potter, county attorney, and Derek Schmidt, attorney general, for appellant. Patrick H. Dunn, of Kansas Appellate Defender Office, for appellee.
Before SCHROEDER, P.J., McANANY, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
This is an appeal by the State of Kansas pursuant to K.S.A. 22–3602(b) from the district court's dismissal of two reckless aggravated battery charges against Kevin James Hazlett.
The court below held the State failed to show probable cause that Hazlett drove his vehicle recklessly when causing a left of center line head-on collision that seriously injured Adrianna Nickelson and Steven Nickelson.
We hold that under all the facts and circumstances and for the reasons hereinafter stated, the district court erred in dismissing the two counts of aggravated battery to which Hazlett had previously been bound over to face after a preliminary examination.
Factual and Procedural Background
The testimony in the preliminary hearing indicated that as evening approached on May 14, 2012, Hazlett was driving a pickup west from Hill City in Graham County, Kansas, on U.S. 24, a two-lane highway.
Jerry Isakson was driving about 100 yards behind Hazlett. Isakson would later tell Highway Patrol Trooper Phil Henrickson that Hazlett “was in and out of his lane of traffic, left of center, back and forth.”
Approaching Hazlett's vehicle driving at approximately 60 mph in the eastbound lane of Highway 24 was a pickup being driven by 14–year–old Adrianna who was accompanied by her father, Steven. Adrianna did not have a driver's license or a learner's permit.
Adrianna stated that she noticed Hazlett's pickup approaching in the westbound lane. She reported “[t]he closer we got to each other I saw the pickup move over into my lane. By the time it was getting closer I gripped the steering wheel tight.”
Steven told Adrianna to go into the westbound lane. He could see Hazlett “had his head looking down.” Steven then saw Hazlett's “head pop up,” and Hazlett tried to swerve back into the westbound lane.
Hazlett did not make it, colliding head on with Adrianna and Steven in the eastbound lane, slightly over center. The evidence conflicted on whether Adrianna had swerved back into the eastbound lane or whether she never fully left it. The pickups were nearly destroyed.
All three occupants were flown to hospitals. Adrianna and Steven suffered multiple broken bones and could not remember the impact. The investigation uncovered no evidence Hazlett was under the influence of alcohol or drugs.
When Trooper Henrickson and other officers examined Hazlett's pickup, Hazlett's cell phone “was going off.” The officers located it on the driver's side floorboard of the pickup, near the gas pedal. It was a “slider type phone with the key pad on it,” the key pad was slid open and the phone was turned on.
The cell phone was searched pursuant to a warrant and it showed the last text message sent or received by Hazlett was “before the vehicle left Hill City.” Trooper Henrickson testified one could use a cell phone in a number of ways—for example, to access a menu, view text messages, or view past calls. Trooper Henrickson identified as a cause of the collision that Hazlett “may have been using a cell phone at the time of the wreck.”
The State charged Hazlett with two counts of aggravated battery, a severity level 5 person felony in violation of K.S.A. 21–5413(b)(2)(A), one count of reckless driving, an unclassified misdemeanor in violation of K.S.A. 8–1566, and one count of driving left of center, a traffic infraction in violation of K.S.A. 8–1514(a).
The Honorable Jessie A. Thompson, Graham County magistrate judge, conducted the preliminary hearing. After receiving the evidence summarized above, the magistrate judge found there was probable cause to believe that felonies had been committed and Hazlett was the person who committed the felonies and bound Hazlett over on both reckless aggravated battery charges.
Hazlett subsequently moved to dismiss both felony charges, arguing this “was a traffic accident,” that “[m]ere inattentive driving is not sufficient,” and “there was no evidence whatsoever that [his] cell phone was in use.”
The district court reviewed a transcript of the preliminary hearing, solicited briefs from the parties, and framed the issue as “whether the evidence presented at the preliminary hearing was sufficient to establish reckless conduct.” The district court's written decision analyzed many of the cases cited by the parties and made specific factual conclusions and held:
“The testimony at the preliminary hearing was that defendant was moving in and out of his lane of traffic, left of center, back and forth prior to the collision and the point of impact was just a little over the center line. The testimony was also that defendant's head was down just prior to the impact and that his open phone was found on the floorboard. There is, however, no evidence that defendant was speeding, no evidence that he was impaired in any way, no evidence that his head was down for an extended period of time, and no evidence that he was doing anything with the phone at any time between leaving Hill City and the collision. The evidence was that the last text message was prior to defendant leaving Hill City. Although he was moving left of center and back to his own lane between Hill City and the collision there were no text messages either sent or received during that time. There is no evidence that defendant was consciously disregarding a substantial and unjustifiable risk nor was there evidence that defendant disregarding that risk was a gross deviation from the reasonable standard of care. Even though the Court is required to view facts in [a] light most favorable to the State, and even though the State is not required to prove recklessness at the preliminary hearing, the State must present some evidence of recklessness. The State has failed to meet its burden.”
The district court dismissed the two reckless aggravated battery charges. The State dismissed the other two charges and filed a timely K.S.A. 22–3602(b) appeal to our court.
Analysis of Appellate Issues
Was there sufficient evidence presented to the district court at the preliminary hearing to allow the case to proceed to trial?
The State contends that driving an automobile on a Kansas highway in the wrong lane numerous times while not looking at the road is reckless behavior when there are no circumstances to justify such action.
Hazlett argues that the district court correctly concluded after analyzing the facts that briefly moving out of one's lane of traffic, by itself, cannot under Kansas law constitute recklessness.
Standards of review
The standards of review in appeals such as the one before us was recently set forth in State v. Washington, 293 Kan. 732, 733–34, 268 P.3d 475 (2012), in the following manner:
“Under K.S.A. 22–2902(3), the magistrate at a preliminary hearing examines the evidence to determine (1) whether a crime has been committed and (2) whether there is probable cause to believe that the accused committed the crime. State v. Valladarez, 288 Kan. 671, 677, 206 P.3d 879 (2009). The evidence need not prove guilt beyond a reasonable doubt, only probable cause. State v. Sherry, 233 Kan. 920, 935, 667 P.2d 367 (1983). ‘Probable cause at a preliminary examination signifies evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused's guilt.’ State v. Berg, 270 Kan. 237, 238, 13 P.3d 914 (2000) (citing State v. Puckett, 240 Kan. 393, Syl. ¶ 1, 729 P.2d 458 [1986] ). In determining if this standard is satisfied, the judge at a preliminary hearing must draw inferences favorable to the prosecution from the evidence presented and should not be concerned with sufficiency of the evidence to support a conviction. State v.. Bockert, 257 Kan. 488, 492, 893 P.2d 832 (1995); Sherry, 233 Kan. at 935. Even where the evidence is weak, the defendant should be bound over for trial if the evidence tends to disclose that the offense charged was committed and that the defendant committed it. Berg, 270 Kan. at 238.”
Additionally, Justice Luckert in Washington noted that “[t]he sufficiency of a preliminary examination may be challenged only by a motion to dismiss filed in the district court. ‘Failure to challenge in this manner amounts to waiver.’ State v. Butler, 257 Kan. 1043, 1059–60, 897 P.2d 1007 (1995).” Washington, 293 Kan. at 734. And “[o]n appeal from that ruling, an appellate court reviews the district court's probable cause finding at a preliminary hearing de novo. See State v. Fredrick, 292 Kan. 169, 171, 251 P.3d 48 (2011).” Washington, 293 Kan. at 734. Thus, we do not consider any of the factual findings the district court made.
An attempt was made in State v. Harris, 266 Kan. 610, 614, 975 P.2d 227 (1999), to change the standard of review to that applicable to negative findings or to require appellate courts to view the evidence in the light most favorable to the party prevailing below. Our Supreme Court refused to adopt either argument and continued the standard stated in State v. Phelps, 266 Kan. 185, 193, 967 P.2d 304 (1998), which was quoted in Harris in the following manner:
“ ‘ “The function of a judge or magistrate at a preliminary hearing is not to determine the wisdom of the prosecuting attorney's decision to file and pursue charges against the defendant. Nor is it the function of the judge to conclude that there should be no prosecution because the possibility of a conviction may be remote or virtually nonexistent. [Citation omitted.] The sole question before the judge or magistrate at the conclusion of a preliminary hearing is the same question an appellate court is faced with upon de novo review: whether the evidence is sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused's guilt. [Citation omitted.]’ “ Phelps, 266 Kan. at 193.”
We are obligated in cases where there is conflicting testimony at the preliminary hearing to accept that version which is most favorable to the State. State v. Bell, 268 Kan. 764, 764–65, 1 P.3d 325 (2000).
It is important to recognize that the State does not have to prove recklessness at the preliminary hearing and must only present some evidence of recklessness to support the charge of reckless aggravated battery. See State v. Robinson, 267 Kan. 734, 738–39, 987 P.2d 1052 (1999), which pointed out this difference in holding the trial court erred in dismissing an information. Robinson set forth the following quote from In re Mortimer, 192 Kan. 164, 166–67, 386 P.2d 261 (1963):
“ ‘There is a difference between the quantum of proof essential to a binding over for trial and that required to convict at the trial. The guilt or innocence of a defendant is not adjudged at a preliminary examination, and it is not necessary that evidence upon which a defendant is held for trial should be sufficient to support a conviction.’ “ 267 Kan. at 738.
This basic distinction between the quantum of proof required to bind over a defendant and that required for conviction is critical to the result we reach in this appeal. We give much greater credence to cases dealing with the binding over of a defendant to face a reckless aggravated battery charge than we do to those where a conviction has resulted and the facts are not deemed sufficient to support a conviction.
Statutory definitions of “reckless” conduct
The State charged Hazlett under K.S.A.2011 Supp. 21–5413(b)(2)(A) with aggravated battery which is “recklessly causing great bodily harm to another person or disfigurement of another person.”
There is no question but that Hazlett's actions caused “great bodily harm” to Adrianna and Steven. Thus, our focus becomes whether it was done recklessly.
A new statutory definition of recklessness was established by the 2010 recodification of the Kansas Criminal Code. It is “(j) a person acts ‘recklessly’ or is ‘reckless,’ when such person consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.” K.S.A.2011 Supp. 21–5202(j).
The new definition was based on the Model Penal Code (MPC). See Kansas Criminal Code Recodification Commission, Final Report, Appendix A, p. 24 (2010). The MPC definition is:
“A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation.” 10A, U.L.A., Model Penal Code, § 2.02(c) (2001).
According to the Final Report of the Kansas Criminal Code Recodification Commission, the new definition is “consistent with Kansas case law.” (Emphasis added.) See Appendix A, p. 24. The commission did not compare the new statutory definition with the old statutory definition and it did not specify the caselaw it was deemed to have followed.
The previous definition of recklessness was found in K.S.A. 21–3201(c) and reads as follows:
“(c) Reckless conduct is conduct done under circumstances that show a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of that danger. The terms ‘gross negligence,’ ‘culpable negligence,’ ‘wanton negligence’ and ‘wantonness' are included within the term ‘recklessness' as used in this code.”
Most of the decided Kansas cases dealing with recklessness apply this definition and those involving the 2010 definition are just now being decided.
It is logical to attempt to ascertain by the comparison of statutory language if a different result is now required in Kansas criminal cases where reckless conduct is charged. But, that does not appear to have been the intention of the Recodification Commission.
It is clear that the various classifications of negligence (gross, culpable, wanton) referred to in K.S.A. 21–3201(c) are no longer standards to be utilized.
We are ultimately required to consider, in cases like this one which we face on appeal, (1) whether it is reckless conduct for a driver to consciously disregard a known risk of striking another vehicle (driving left of center on a two-lane highway numerous times while possibly utilizing a hand-held communication device), and (2) whether this conduct “constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation” which (would be driving a vehicle on a two-lane highway totally in the right-hand lane paying strict attention to all traffic rules and to all the surrounding circumstances).
In reaching our conclusion, it is helpful to look to prior Kansas decisions. But, many of these cases rely on the old definition of recklessness. Different older cases now become relevant because they considered a phrase similar to the one used in the new definition, although in another context.
Further, we have different standards of review which were applied in the prior cases. Some, like our case, deal with the standard required to bind over a defendant based on the evidence at a preliminary hearing. Robinson, 267 Kan. at 734–36. Others look to the sufficiency of the evidence to uphold a criminal conviction where the appellate court is to review such claims by looking at all the evidence in the light most favorable to the prosecution and determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Remmers, 278 Kan. 598, 599, 102 P.3d 433 (2004).
Finally, as is always important, the facts are critical. As Justice Davis said in State v. Krovvidi, 274 Kan. 1059, 1069, 58 P.3d 687 (2002), “the manner in which a defendant operates his or her vehicle under the totality of the circumstances presented is the proper focus of an inquiry concerning the element of a ‘material deviation’ required for conviction.”
With those limitations in mind and viewing each holding based on its unique factual situation, we turn to related cases which involved our issues in this appeal.
Prior Kansas decisions
State v. Remmers, 278 Kan. 598, Syl. ¶ 3, is instructive. The crime there was reckless driving in violation of K.S.A. 8–1566(a) and our Supreme Court applied K.S.A. 21–3201(c) when defining recklessness. The facts were summarized as a case “where a defendant ran a stop sign on a rural road and collided with a truck, and the defendant's conduct was solely the result of inattentiveness, with no realization of the imminence of danger to another and no conscious and unjustifiable disregard of that danger, it is held that the evidence was insufficient to support a conviction of reckless driving.”
Chief Justice McFarland's opinion framed the analysis around the defendant's contention that “something more than evidence of inattentive driving is required” for reckless driving to exist. 278 Kan. at 599. The opinion noted that State v. Huser, 265 Kan. 228, 234, 959 P.2d 908 (1998), had held that “a person guilty of driving under the influence of alcohol is not necessarily guilty of driving in reckless disregard of the safety of others.” The Remmers opinion went on to quote from Huser stating: “ ‘One's behavior is only reckless if he or she realizes that his or her conduct creates imminent danger to another person but consciously and unjustifiably disregards the danger. K.S.A. 21–3201(c) (defining reckless conduct).... 265 Kan. at 234–35.’ “ 278 Kan. at 601.
After noting the defendant was “driving on a rural road on a clear day” and “[t]here was no evidence of speeding, swerving, driving erratically, or leaving the scene,” the Remmer opinion concluded the facts did not show this “something more.” 278 Kan. at 599. Specifically, there was no “[e]vidence of defendant's mental state” or “aggravating circumstances.” 278 Kan. at 602. These two elements were apparently based on the old recklessness definition which required a realization of the imminence of danger to the person of another and a conscious and unjustified disregard of that danger.
The Remmers opinion also stated that “[i]n State v. Krovvidi, 274 Kan. 1059, 58 P.3d 687 (2002), it was held that running a red light as the result of inattentiveness, standing alone, did not satisfy the element of material deviation from the standard of care required for vehicular homicide.” 278 Kan. at 601.
Although the Remmers opinion cited Huser and Krovvidi for the premise that mere inattentiveness is never enough, the Remmers opinion fails to recognize that the degree of the inattention and the totality of the circumstances are the more important factors to be considered.
For example, we have previously quoted from State v. Robinson, 267 Kan. at 738, to show that there is a difference in the quantum of proof required to bind over a defendant and that required for a conviction. In Robinson, the district court's failure to bind over Robinson on a reckless aggravated battery charge was reversed by our Supreme Court.
Justice Six's opinion noted:
“While driving drunk cannot alone stand as probable cause of recklessness, it may, among other factors, be evidence of reckless behavior. See Lafoe, 24 Kan.App.2d at 666–67. The charge in Huser was dismissed because ‘[t]he State did not submit enough evidence to support a probable cause finding that the defendant committed reckless aggravated battery by recklessly driving her car.’ (Emphasis added.) 265 Kan. at 235. The only evidence of recklessness introduced by the State in Huser was the driver's blood alcohol level. There was ‘no evidence of weaving, speeding, or a failure to stop quickly after the accident occurred.’ 265 Kan. at 234–35.
“Here, contrary to the facts in Huser, additional evidence of recklessness was introduced. Robinson's on-the-move alcohol consumption continued from early evening into the night. When he left the second bar, he requested the switch from passenger to driver. His blood alcohol level 2 hours after the accident was over twice the legal limit. Robinson ran a stop sign at a major intersection, causing serious injuries to his passenger. The hatchback would have had to turn after the stop sign to reach Hutchinson. We conclude that a person of ordinary prudence and caution could conscientiously entertain a belief that Robinson was reckless under K.S.A. 21–3414(a)(2)(A). Robinson should be bound over. The question should go to a jury.” 267 Kan. at 739.
And, contrary to the result in Krovvidi, there are three Kansas cases where recklessness was found to be present in collisions resulting from failure to stop at a stop sign. See State v. Boydston, 4 Kan.App.2d 540, 609 P.2d 224 (1980) (running a stop sign at a high rate of speed colliding with another vehicle and killing the driver was a necessary additional factor to support the conclusion that the defendant's conduct was a material deviation from the standard of care); State v. Burrell, 237 Kan. 303, 699 P.2d 499 (1985) (Burrell ran an easily visible stop sign at a known busy street at a high rate of speed hitting a car in the intersection resulting in the death of the pregnant female passenger and her 8–month fetus. Burrell had been drinking beers, was drinking beer as he approached the stop sign, ignored a passenger's warning, and accelerated as he approached the stop sign. Defendant claimed the accelerator pedal had stuck but there was no evidence of braking. Our Supreme Court reversed the district court's dismissal of involuntary manslaughter charges holding there was ample evidence for a jury to find defendant's conduct was wanton which was a question of fact for the jury); State v. Trcka, 20 Kan.App.2d 84, 884 P.2d 434 (1994) (a professional driver speeding through a construction zone for more than a quarter of a mile and failing to stop despite orange sign and flashing lights failed to alert driver to the presence of a pickup was a material deviation from the standard of care).
The district court's failure in our case to give sufficient consideration to the numerous times Hazlett's vehicle crossed the center line is contrary to the language of Remmers which found the absence of “swerving [and] driving erratically” to be a material factor showing that Remmers was not reckless. The district court in our case said in its written decision that “[i]n the present case the State has presented nothing more than Mr. Hazlett being inattentive while driving” but this does not view the evidence presented as required in the standards of review which we have previously set forth in detail.
The degree of inattention is an important factor in deciding whether reckless conduct is present, under either the old or the new definition. This is true in looking at the first element of the new definition of recklessness—consciously disregarding a substantial and unjustified risk that circumstances exist or that a result will follow—in consideration of the second element-a showing that such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.
Hazlett's inattention is clearly distinguished from that of the defendant in Remitters. In Remmers, the driver was only inattentive to driving itself. In our case Hazlett, with the evidence viewed as we are required to do, was using a cell phone numerous times causing him to swerve out of his lane of traffic and into the approaching lane of traffic on a state highway, not like a country road as was the case in Remmers.
There was no evidence of inattentiveness caused by the use of a cell phone in Remmers, but in our case, Trooper Henrickson identified as a cause of the collision that Hazlett “may have been using a cell phone at the time of the wreck.”
In addition to failing to maintain his required lane of traffic and crossing over the center line, Hazlett may have been in violation of K.S.A.2010 Supp. 8–15,111 which specifically prohibits text messaging while operating a motor vehicle on a public road or Kansas highway.
Hazlett was presumably conscious that the highway was divided into lanes with traffic moving in opposite directions, as opposed to the defendant in Remmers, who was apparently not conscious of the stop sign. Hazlett repeatedly crossed the center line into an oncoming lane of traffic on a United States highway. This obviously presents a more substantial risk than running a stop sign in a rural area like the defendant in Remmers. And, repeated inattention of sufficient duration to cause one to change lanes of traffic, as in the present case, is more substantial than the momentary lapse at issue in Remmers.
Turning now to the second element of the new definition of recklessness, it requires a “gross deviation from the standard of care which a reasonable person would exercise in the situation.” K .S.A.2011 Supp. 21–5202(j). This is not defined, although a related test has been used in the vehicular homicide statute formerly found at K.S.A. 21–3405 and now recodified with some changes at K.S.A.2013 Supp. 21–5406. The former version of that statute read:
“Vehicular homicide is the unintentional killing of a human being committed by the operation of an automobile ... in a manner which creates an unreasonable risk of injury to the person or property of another and which constitutes a material deviation from the standard of care which a reasonable person would observe under the same circumstances.” (Emphasis added.) K.S.A. 21–3405.
Under this test, a deviation from the standard of care may be shown by a traffic violation. See State v. Randol, 226 Kan. 347, 354, 597 P.2d 672 (1979). But “[t]he degree of deviation from the standard of care is the key to determining whether the defendant bears no criminal responsibility or may be convicted of vehicular homicide or involuntary manslaughter.” State v. Krowidi, 274 Kan. at 1068. This is determined “on a case by case basis based upon the totality of the circumstances.” 274 Kan. 1059, Syl. ¶ 2.
“For example, let us assume that a person is operating his vehicle at 60 miles per hour on dry pavements on a sunny day with little traffic at 4:00 on a Tuesday afternoon and he strikes and kills a pedestrian crossing the road. This same set of facts could be (a) no responsibility if it occurred in a remote, sparsely populated area; (b) vehicular homicide if it occurred in a residential area; and (c) involuntary manslaughter in a posted school zone. Even within these classes additional facts would have to be supplied before a definitive statement could be made.” State v. Makin, 223 Kan. 743, 746, 576 P.2d 666 (1978) (quoting State v. Krovvidi, 274 Kan. at 1068–69).
We recognize the new definition of reckless conduct has abandoned the concept of different levels of negligence. But, in utilizing prior Kansas decisions “material deviation” was thought by the Recodification Commission to equate to “gross deviation” from the applicable standard of care. See K.S.A.2013 Supp. 21–5202(j); K.S.A. 21–3201(c); Webster's Third New International Dictionary 1002, 1392 (1993) (gross—“out-and-out, complete, utter, unmitigated, rank”; material—“substantial”). So, as long as this is kept in mind, caselaw concerning material deviations can be consulted to identify aggravated circumstances or factors.
In both Krovvidi and Remmers, the opinions focused on the lack of aggravating factors. This could be read to require aggravating factors independent of traffic or personal violations. But, this is not correct, for our court has opined that some traffic violations such as “passing a stopped school bus with its lights flashing under K.S.A. 8–1566” could, without more, present a material deviation from the standard of care. State v. Allen, 49 Kan.App.2d 162, 179, 305 P.3d 702 (2013).
And more importantly, the number and degree of the violations along with all of the factual circumstances will be considered as aggravating factors to determine if there has been a gross deviation from the standard of care which a reasonable person would exercise in the situation.
Thus, if the violation is speeding, the degree of speeding could be an aggravating factor. See Randol, 226 Kan. at 354. Where the violation is essentially an expression of inattention, the question becomes whether the “inattentiveness ... rise[s] to the level of a material deviation.” Krovvidi, 274 Kan. at 1075. In Krovvidi, our Supreme Court held it had not, distinguishing the inattentiveness there from that shown in a case like State v. Trcka, 20 Kan.App.2d at 88, which has been earlier cited relating to a failure to stop, but is more applicable to establishing a “material deviation from the standard of care.”
In Trcka, the defendant drove a semi-trailer truck at 50 to 55 mph in a 45 mph construction zone marked with caution signs, and then collided with a pickup marked by a flashing amber light, hazard lights, a sign stating, “Pilot Car Follow Me,” and a construction worker signaling with his arms to go around, even though the pickup had been visible for a quarter mile. 20 Kan.App.2d at 85, 88–89. The defendant argued on appeal that the evidence did not establish a material deviation from the standard of care. The panel disagreed, stating “for a professional driver to be oblivious to his surroundings while propelling a semi-trailer truck down a highway at 50 to 55 miles per hour is closer to reckless and wanton conduct than to simple negligence.” 20 Kan.App.2d at 88. A material deviation from the standard of care was found.
Our court took a similar approach in Allen which featured facts very similar to the case before us. The defendant in Allen crossed the center line of a two-lane road and collided head-on with an oncoming vehicle. A trailing driver testified the defendant “cross[ed] the center line a total of five times during the 6 miles she was behind him.” This driver said the defendant had “drift[ed] across the line as opposed to swerving or jerking, consistent with someone who was texting, using a cell phone, or under the influence of alcohol.” The defendant, however, was not under the influence of alcohol or drugs, and there was no evidence of cell phone use. The defendant was in the oncoming lane for at least 7 or 8 seconds before the collision, and he did not brake. The defendant told police he remembered seeing a boat on the lake about a half mile from the collision but remembered nothing after that.
The Allen panel found evidence supporting a material deviation from the standard of care, distinguishing Krovvidi based on the evidence of “prolonged inattentiveness.” 49 Kan.App.2d at 181. The Allen panel cited Trcka in support of its reliance on prolonged inattentiveness. The panel concluded as follows:
“A driver's swerving across the center line for at least 7 seconds with no apparent provocation and striking another car head on, without attempting to brake, while completely in the opposite lane of traffic, could certainly be found by a rational factfinder to be more than ordinary and simple negligence under the totality of the circumstances.” 49 Kan.App.2d at 181–82.
Krovvidi, Allen, and Trcka have all recognized extended inattentiveness as an aggravating factor, distinguishing it from the minimal inattentiveness found in Remmers and Krovvidi. This was also true in a Pennsylvania case, a jurisdiction which has adopted the MPC definition of recklessness. See 18 Pa. Cons.Stat. Ann. § 302(b)(3) (1998). In Com. v. Setsodi, 303 Pa.Super. 482, 484–85, 450 A.2d 29 (1982), the district court did not find recklessness at a preliminary hearing where the evidence showed a driver had turned left just in front of a motorcycle coming from the opposite direction. The appellate court disagreed, holding the conduct was more than the sort of “ ‘brief inattention’ “ which had been found not reckless, and was instead comparable to “driving a vehicle in the wrong lane due to inattention,” which had been found reckless. 303 Pa.Super. at 488–89; 18 Pa. Cons.Stat. Annot. § 302.
Conclusion
In ruling on the defendant's motion to dismiss, the court below was obligated to draw inferences favorable to the prosecution and should not be concerned with the sufficiency of the evidence to support a conviction. State v. Washington, 293 Kan. 732, 733, 268 P.3d 475 (2012). The sole question we face is the same as the judge or magistrate at the conclusion of the preliminary hearing: “whether the evidence is sufficient to cause a person of ordinary prudence and caution to conscientiously ascertain a reasonable belief of the accused's guilt.” State v. Phelps, 266 Kan. 185, 193, 967 P.2d 304 (1998). Any conflict in the evidence at a preliminary hearing must be resolved in the version most favorable to the prosecution. State v. Bell, 268 Kan. 764, 764–65, 1 P.3d 325 (2000).
Utilizing this standard of review compels us to find there was sufficient evidence that Hazlett committed numerous traffic offenses; the evidence showed he drove in and out of his lane of traffic, left of center, back and forth numerous times; there was evidence which showed continuing cell phone use, i.e., head down, not paying attention to where he was driving on a dangerous two-lane highway; driving in the wrong lane of traffic due to continuous inattention; and striking another vehicle in the other vehicle's lawful lane of traffic.
The district court erred in not resolving the conflicting evidence in the required manner favorable to the prosecution, failed to recognize the evidence of continuing inattention has been deemed sufficient to show a gross deviation from the standard of care of a reasonable person in the situation, and erred in granting Hazlett's motions to dismiss the two counts of reckless aggravated battery in violation of K.S.A.2011 Supp. 21–5413(b)(2)(A).
Reversed and remanded with instructions to reinstate the two charges and set the matter for trial.