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State v. McGregor

Court of Appeals of Kansas.
Mar 8, 2013
296 P.3d 1140 (Kan. Ct. App. 2013)

Opinion

No. 107,855.

2013-03-8

STATE of Kansas, Appellee, v. Lori McGREGOR, Appellant.

Appeal from Allen District Court; Daniel D. Creitz, Judge. Lori McGregor, appellant pro se. Christopher Phelan, assistant county attorney, and Derek Schmidt, attorney general, for appellee.


Appeal from Allen District Court; Daniel D. Creitz, Judge.
Lori McGregor, appellant pro se. Christopher Phelan, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., GREEN and BUSER, JJ.

MEMORANDUM OPINION


PER CURIAM.

Lori McGregor, pro se, appeals her convictions for failure to drive on the right side of the roadway in violation of K.S.A. 8–1514 and for failure to drive within a single lane in violation of K.S.A. 8–1522; see K.S.A.2012 Supp. 8–1522 (amended in 2009). We affirm McGregor's conviction for violating K.S.A. 8–1522 and reverse her conviction for violating K.S.A. 8–1514. We also vacate the $75 fine imposed upon her conviction for the latter offense.

Factual and Procedural Background

In the early morning hours of March 9, 2011, McGregor was driving south on U.S. 169 in Allen County. Darren Kellerman of the Allen County Sheriffs Office followed McGregor's vehicle for about 3 miles while making a video recording of the vehicle's movements. The deputy stopped McGregor for failure to drive on the right side of the roadway and for failure to drive within a single lane.

Deputy Kellerman testified that based on his understanding, “it is illegal to touch either line on either side of the car.” So, while Deputy Kellerman testified that McGregor “crossed over the center line,” he presumed the same rules applied “as in a basketball game. The out-of-bounds line is at the out-of-bounds line at the edge.” Deputy Kellerman similarly equated “crossing of the center line” with “breaking the plane,” explaining that a “[t]ouchdown is a touchdown at the touchdown line.”

With regard to the center line, the video shows McGregor's driver's side tires touching the highway's center line once. The video also shows the passenger side tires of McGregor's vehicle riding for a few seconds on the highway's outside line (commonly referred to as the “fog line”) and the same tires traveling on the fog line on two or three more occasions. Moreover, the video shows that the vehicle's body extended past the tires on both sides and therefore “broke the plane” before the tires did.

McGregor was ticketed by Deputy Kellerman for the two traffic violations and for failure to have proof of liability insurance. At the municipal court trial, she was convicted of both moving violations. McGregor appealed to the district court, which held a de novo bench trial. At that trial, McGregor, appearing pro se, contended that “riding close to the center line” was not illegal, and she also disputed whether she had actually driven on the fog line. The trial court found sufficient evidence of both violations and found her guilty of both traffic violations. She was fined $75 for each violation and ordered to pay court costs. McGregor appeals.

Introduction

McGregor made numerous arguments in the district court at trial, and she raises several of them on appeal. We begin our analysis by determining the sufficiency of the evidence of both traffic violations. We recognize that McGregor does not title any issue “sufficiency of the evidence,” but, as the State notes, that is the point of McGregor's attack on the trial court's interpretation of K.S.A. 8–1514 and K.S.A. 8–1522. See State v. Kelly, 291 Kan. 563, Syl. ¶ 1, 244 P.3d 639 (2010) (“Pro se pleadings are liberally construed, giving effect to the pleading's content rather than the labels and forms used to articulate the arguments.”).

“When examining the sufficiency of the evidence in a criminal case, the standard of review is whether, after reviewing all the evidence in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. [Citations omitted.]” State v. Raskie, 293 Kan. 906, 919–20, 269 P.3d 1268 (2012). To the extent we must interpret the statutes, our review is unlimited. See State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011).

Failure to Drive on the Right Side of the Roadway (K.S.A.8–1514)

McGregor contends she “is not guilty of this offense” because “the vehicle must go across the line to be in violation” of K.S.A. 8–1514. In response, the State cites Deputy Kellerman's testimony that McGregor did, in fact, cross the center line. The State, however, also candidly “notes that Deputy Kellerman's interpretation of crossing the centerline is at odds” with a recent decision of this court, State v. Gross, No. 107,320, unpublished opinion filed July 27, 2012.

In Gross, a vehicle “touch[ed] the centerline” one time while traveling about 2 or 3 miles. Slip op. at 2. Our court held the evidence did not support reasonable suspicion to stop the vehicle for a violation of K.S.A. 8–1514: “Gross' truck touched the centerline once. Deputy Anderson did not have reasonable suspicion that Gross committed a right of center violation because his truck never crossed the centerline.” Slip op. at 7–8.

Given the conflict between Deputy Kellerman's understanding and that in Gross, we will consider what it means to cross the center line in the context of K.S.A. 8–1514. Since in Kansas all crimes are statutory, State v. Reyna, 290 Kan. 666, 694, 234 P.3d 761,cert. denied131 S.Ct. 532 (2010), we begin with the statutory language: “Upon all roadways of sufficient width, a vehicle shall be driven upon the right half of the roadway,” with some exceptions that do not apply here. K.S.A. 8–1514(a).

Driving upon the right half of the roadway distinguishes our state from those foreign countries where one drives upon the left half of the roadway. See State v. Hopper, 260 Kan. 66, 72, 917 P .2d 872 (1996) (calling the left half “the wrong side of the road”); see also In re Estate of Storer, 191 Kan. 645, Syl. ¶ 3, 383 P.2d 956 (1963) (“Driving a motor vehicle on the left-hand or wrong side of the highway ..., proximately resulting in a collision with an oncoming motor vehicle on its right-hand side of the highway, is actionable negligence.”). Not surprisingly, then, the legislature made failure to drive upon the right half of the roadway an absolute liability offense unless one of the statutory exceptions, such as passing or an obstruction in the roadway, applies. See K.S.A. 8–I514(a)(l)–(2); Hopper, 260 Kan. at 70–72;State v. Chavez–Zbarra, 42 Kan. 1074, Syl. ¶ 2, 221 P.3d 606 (2009).

This suggests that to cross the center line in the context of K.S .A. 8–1514 means to move into the oncoming lane of traffic. Stated another way, failing to drive right of center necessarily means driving left of center, at least to some degree. See State v. Garza, 295 Kan. 326, 327, 334, 286 P.3d 554 (2012) (when an officer driving south saw “what he believed to be one headlight of an oncoming car, traveling north, cross over into the officer's lane and then cross back,” the case “fit within the parameters of K.S.A. 8–1514.”). While we cannot reweigh the evidence or pass on witness credibility, Raskie, 293 Kan. at 920, we understand Deputy Kellerman's testimony in the light of the meaning he attached to his words rather than simply assuming the meaning applied in K.S.A. 8–1514 cases.

Considering all the evidence in the light most favorable to the prosecution, McGregor touched the center line once with her driver's side tires and some bodywork extended over the line itself. However, her vehicle traveled on the right half of the roadway and did not cross the center line. Based on all the evidence presented at trial, a rational factfinder could not find McGregor guilty beyond a reasonable doubt of failing to drive on the right side of the roadway. Accordingly, this conviction is reversed and the fine is vacated.

Failure to Drive Within a Single Lane (K.S.A.8–1522)

McGregor “asserts touching the fog line and/or going over it was not illegal,” especially because she “routinely drives clear to the right on the road” in order to avoid a collision. The State counters that “Deputy Kellerman testified ... he saw numerous instances of [McGregor's] vehicle touching and crossing the fog line.” (Emphasis added.) Given this assertion, we will again compare the deputy's usage with the statutory language.

Deputy Kellerman's understanding of the statutory language was described earlier. The statute at issue here states in relevant part: “A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.” (Emphasis added.) K.S.A. 8–1522(a). Unlike K.S.A. 8–1514, this is not an absolute liability offense. State v. Marx, 289 Kan. 657, 674, 215 P.3d 601 (2009). Our Supreme Court in Marx described the elements of this traffic violation:

“To summarize, we interpret K.S.A. 8–1522(a) as establishing two separate rules of the road. The first requires a driver to keep entirely within a single lane while traveling on a roadway with two or more clearly marked lanes. That rule is temporarily suspended when it becomes impracticable to stay within the lane markers and when the driver is properly effecting a lane change. Proof that driving outside the lane markers created no safety hazard is not a defense to the single lane rule. The second rule provides that before a driver may change lanes or move from the current lane of travel to another location, he or she must ascertain that the movement can be made with safety. A traffic infraction occurs under K.S.A. 8–1522(a) when either rule of the road is violated.” 289 Kan. at 673.

The first rule is at issue here, which requires “more than an incidental and minimal lane breach.” See 289 Kan. at 674. Our Supreme Court based its interpretation on the statutory language requiring drivers to drive within a single lane “ ‘as nearly as practicable.’ “ 289 Kan. at 674. Our Supreme Court read this to mean “compliance that is close to that which is feasible.” 289 Kan. at 674.

We will thus again consider Deputy Kellerman's testimony in light of the meaning he attached to his words rather than assuming the meaning applied in K.S.A. 8–1522 cases. The video recording of McGregor's vehicle does not show the passenger-side tires crossing the fog line. But it shows the tires either touching the fog line or traveling atop the fog line. Moreover, while traveling atop the fog line, it appears the body of the vehicle extended beyond the line itself. This video evidence shows that on several occasions McGregor's vehicle did not remain “ entirely within a single lane while traveling on a roadway with two or more clearly marked lanes.” (Emphasis added.) See Marx, 289 Kan. at 673.

That does not end our inquiry, however. Next, we must consider whether McGregor's driving was close to that which is feasible. The video shows the road was clearly marked and that McGregor faced no obstructions. Deputy Kellerman also testified that he saw no reason McGregor could not maintain driving within her lane. When the two or three touches of the lane were combined with McGregor's travel atop the fog line, the State showed more than an incidental and minimal lane breach. Unlike in Marx, which featured “one instance of a momentary lane breach,” here multiple breaches occurred in just 3 miles. See 289 Kan. at 675. For a similar reason the present case is distinguishable from State v. Ross, 37 Kan.App.2d 126, 127, 149 P.3d 876,rev. denied 284 Kan. 950 (2007), where again the breach “occurred only once.”

Considering the evidence in the light most favorable to the State, a rational factfinder could have concluded it was feasible to avoid all contacts with the fog line and to drive entirely within the marked lane. Accordingly, we find sufficient evidence to support this conviction for violation of K.S.A. 8–1522.

Remaining Issues

We have carefully considered McGregor's remaining issues on appeal and find no basis for reversal. We will briefly summarize the pertinent issues, however, and our findings below.

McGregor asserts that she was denied her statutory and constitutional speedy trial rights, which are issues subject to unlimited review. See State v. Montes–Mata, 292 Kan. 367, Syl. ¶ 1, 253 P.3d 354 (2011); State v. Hayden, 281 Kan. 112, Syl. ¶ 2, 130 P.3d 24 (2006). McGregor's argument is difficult to follow, but she does not appear to challenge the timeliness of trial in district court. Instead, McGregor challenges the delay of trial in the municipal court which preceded the de novo trial in the district court. In particular, McGregor claims the municipal court trial was delayed by the State's failure to produce discovery.

We disagree with McGregor's characterization of the record. Speedy trial rights are violated by delays attributable to the State or the court, not the defendant. See State v. Thomas, 291 Kan. 676, 694–95, 246 P.3d 678 (2011). After the traffic citation was filed in municipal court on March 22, 2011, McGregor filed motions on April 4, 2011, April 11, 2011, May 11, 2011, June 10, 2011, July 20, 2011, August 30, 2011, and October 5, 2011, before the trial was held on October 19, 2011. Though some of these motions involved discovery, McGregor has never shown the State failed to comply with a discovery order. McGregor makes repeated allegations of “audio being withheld” from the video recording of the stop, but the trial court found it “uncontroverted the officer didn't turn on the mic. That doesn't mean it's altered, that doesn't mean it's amended.” Having examined the record, we find no error by the trial court. McGregor has not shown discovery abuse by the State, and she has not shown her speedy trial rights were denied in municipal court.

McGregor also renews arguments on her motion to suppress, including allegations of Miranda violations. As the State points out, however, the only prosecution evidence produced by the vehicle stop was McGregor's identity, obtained from her driver's license. Since the State introduced none of McGregor's statements into evidence, Miranda did not apply. See State v. Schultz, 289 Kan. 334, Syl. ¶ 2, 212 P.3d 150 (2009). With regard to McGregor's identity, the trial court's findings are reviewed for substantial evidence and the ultimate legal conclusion is reviewed de novo. See State v. Sanchez–Loredo, 294 Kan. 50, 54, 272 P.3d 34 (2012). Because the evidence was sufficient to convict McGregor of failure to drive within a single lane, it was also sufficient to establish reasonable suspicion justifying the stop. See K.S.A. 22–2402(1); State v. Pollman, 41 Kan.App.2d 20, Syl. ¶ 4, 204 P.3d 630 (2008).

McGregor also asks us “to consider whether she was allowed to develop the exculpatory issues.” McGregor titles this a “[f]air [t]rial” issue and, as we read it, McGregor is appealing certain evidentiary rulings. Since McGregor does not brief evidentiary standards, however, we deem the issue waived or abandoned on appeal. See State v. Berriozabal, 291 Kan. 568, 594, 243 P.3d 352 (2010). Even if we were to consider it, we are convinced from our review of the record that the trial court followed the statutes governing the admission of evidence and did not abuse its discretion. See State v. Riojas, 288 Kan. 379, 383, 204 P.3d 578 (2009). In short, McGregor received a fair trial.

Finally, McGregor renews her discovery complaints and cites to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). As the trial court saw it, “[t]here is nothing in the record that supports [McGregor's] arguments that somehow something nefarious has happened by the [S]tate or done by the [S]tate that would justify dismissal.” The trial court's determination is reviewed “de novo with deference to the trial court's findings of fact.” State v. Warrior, 294 Kan. 484, Syl. ¶ 13, 277 P.3d 1111 (2012).

We agree with the trial court. McGregor does not show the State withheld material exculpatory evidence. McGregor sought evidence relevant to the subjective motivation of Deputy Kellerman and other agents of the State, but such motivation was immaterial to the issues before the trial court. See State v. Thompson, 284 Kan. 763, 804–07, 166 P.3d 1015 (2007) (discussing subjective motivation versus objective basis for a stop). The evidence supported the stop and the conviction for failure to drive within a single lane.

We affirm McGregor's conviction for violating K.S.A. 8–1522 and reverse her conviction for violating K.S.A. 8–1514. We also vacate the $75 fine imposed upon her conviction for the latter offense.

Affirmed in part, reversed in part, and vacated in part.


Summaries of

State v. McGregor

Court of Appeals of Kansas.
Mar 8, 2013
296 P.3d 1140 (Kan. Ct. App. 2013)
Case details for

State v. McGregor

Case Details

Full title:STATE of Kansas, Appellee, v. Lori McGREGOR, Appellant.

Court:Court of Appeals of Kansas.

Date published: Mar 8, 2013

Citations

296 P.3d 1140 (Kan. Ct. App. 2013)