Opinion
No. 108,544.
2013-08-30
STATE of Kansas, Appellee, v. Rico Dupree ROBINSON, Appellant.
Appeal from Johnson District Court; John P. Bennett, Judge. Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Clayton J. Perkins, legal intern, Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; John P. Bennett, Judge.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Clayton J. Perkins, legal intern, Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., POWELL and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Rico Robinson appeals his felony conviction and sentence for driving under the influence of alcohol (DUI). Robinson claims the State failed to present sufficient evidence to convict him of DUI. Specifically, Robinson argues that the State failed to present any evidence that his .081 test result indicated a breath-alcohol concentration of .081 grams of alcohol per 210 liters of breath. Robinson also claims the district court erred when it imposed a $1,500 fine without considering the method of payment. For the reasons stated herein, we affirm Robinson's conviction of DUI and dismiss his sentencing issue as moot.
On September 13, 2008, at about 11 p.m., Lenexa Police Officer Robert Schluben conducted a traffic stop of Robinson's vehicle after witnessing some erratic driving. In contacting the driver, identified as Robinson, Schluben detected the odor of alcohol and observed bloodshot eyes. Schluben asked Robinson to perform some field sobriety tests, and Robinson's performance suggested to Schluben that Robinson was intoxicated. Schluben arrested Robinson for DUI and transported him to the police station.
At the police station, after properly providing Robinson with the implied consent advisory notices and following the proper test protocols, Schluben requested Robinson to submit to a breath test on the Intoxilyzer 8000. Robinson consented to take the breath test. The Intoxilyzer printed a test result indicating Robinson possessed a breath-alcohol concentration of .081.
The State charged Robinson with alternative counts of DUI for possessing a breath-alcohol concentration of .08 or greater within 2 hours of operating a vehicle and for operating a vehicle while under the influence of alcohol to a degree that rendered him incapable of safely operating the vehicle. Following a 2–day trial, the jury convicted Robinson of possessing a breath-alcohol concentration of .08 or greater within 2 hours of operating a vehicle. Robinson filed a motion for a judgment of acquittal, arguing that the State had not introduced any evidence of what constituted a breath-alcohol concentration of .081. The district court denied the motion.
At sentencing, the district court imposed an underlying 12–month jail sentence and placed Robinson on probation for 12 months after he served 5 days in jail. The district court also ordered Robinson to pay the minimum fine of $1,500. Robinson timely appealed the district court's judgment.
On appeal, Robinson first claims the State failed to present sufficient evidence to convict him of DUI. Specifically, Robinson argues that the State failed to present any evidence that his .081 test result indicated a breath-alcohol concentration of .081 grams of alcohol per 210 liters of breath. The State argues that evidence of the scientific measure used by the Intoxilyzer to obtain an alcohol concentration was unnecessary, but that the printout from the Intoxilyzer actually provided evidence of that measure by describing the test result in terms of grams of alcohol per 210 liters.
When the sufficiency of the evidence supporting a criminal conviction is challenged on appeal, an appellate court's duty is to examine the evidence produced at trial, viewing conflicts in the evidence and permissible inferences in a light most favorable to the prosecution, to determine whether a rational factfinder could have concluded that the defendant was guilty of the offense beyond a reasonable doubt. State v. Ta, 296 Kan. 230, 236, 290 P.3d 652 (2012).
Alcohol concentration is statutorily defined as “the number of grams of alcohol per 100 milliliters of blood or per 210 liters of breath.” K.S.A.2008 Supp. 8–1013(a). Here, Schluben conducted the breath test and testified at trial that Robinson's breath-test result indicated an alcohol concentration of .081. The State then admitted its trial exhibit 8, which was the printout from the Intoxilyzer, after Schluben laid the foundation for the printout's admission into evidence. The printout clearly designates a column listing the results of the various samples tested by the machine under the heading “g/210 L BrAC.”
Based on the evidence admitted at trial, the district court instructed the jury that “alcohol concentration” for purposes of the charge in this case meant “the number of grams of alcohol per 210 liters of breath”—the identical language of the statutory definition for breath-alcohol concentration. When the definitional instruction is considered in light of the information presented in the Intoxilyzer printout and Schluben's testimony that the printout revealed an alcohol concentration of .081, the evidence presented at trial was sufficient to convince a rational factfinder beyond a reasonable doubt that the Intoxilyzer test result demonstrated that Robinson possessed an alcohol concentration of .081 grams of alcohol per 210 liters of breath. Thus, Robinson's DUI conviction was supported by sufficient evidence.
Next, Robinson claims the district court erred in imposing a $1,500 fine without considering his financial resources and the applicable method of payment as required by K.S.A. 21–4607(3). See State v. Copes, 290 Kan. 209, 223, 224 P.3d 571 (2010). The State contends the argument is moot because Robinson has paid the entire fine.
The record reflects that Robinson has paid the entire $1,500 fine. Because the interpretation of K.S.A. 21–4607(3) in Copes merely requires the district court to consider the defendant's financial condition in determining the method of payment, not the amount, the payment of the entire fine renders any judgment on this issue moot. See State v. McGuckin, No. 106,208, 2012 WL 3000358, at *2 (Kan.App.2012) (unpublished opinion); State v. Watkins, No. 108,686, 2011 WL 2555426, at *3 (Kan.App.2011) (unpublished opinion), rev. denied 293 Kan. –––– (December 2, 2011). Thus, Robinson's sentencing issue is dismissed as moot.
Affirmed in part and dismissed in part.