Opinion
No. 107,731.
2013-04-19
STATE of Kansas, Appellee, v. Dara M. ROSE, Appellant.
Appeal from Sedgwick District Court; Clark V. Owens, II, Judge. Jason D. Stitt, of Kutak Rock LLP, of Wichita, for appellant. Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Clark V. Owens, II, Judge.
Jason D. Stitt, of Kutak Rock LLP, of Wichita, for appellant. Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., HILL and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
Dara M. Rose asks us to overturn her conviction for driving while under the influence of alcohol on three grounds. She contends the court erroneously admitted evidence of her field sobriety tests. Rose also argues her counsel was ineffective for failing to object to the admission of such evidence. And, finally, Rose claims there is not sufficient evidence to support her conviction. We find that because Rose failed to object to the evidence of her field sobriety tests, the question cannot be reviewed by this court. Also, we will not consider whether Rose's counsel was ineffective for the first time on direct appeal because the district court is in the best position to consider counsel's competence and the district court here has not had the opportunity to address the issue. Finally, without reweighing the evidence and examining the record in the light most favorable to the State, as we are required by the law to do, we hold there is sufficient evidence to support the verdict.
Rose was driving her car in Sedgwick County, Kansas, on May 18, 2010, when she was stopped by Deputy Robert Hephner. It was approximately 1:27 a.m. Rose's vehicle caught Hephner's attention when it crossed the yellow line. As Hephner followed Rose's vehicle, he noticed it was drifting from one side of the lane to the next, and it crossed the line separating the two lanes on three occasions.
When Hephner made contact with Rose, he noticed she had bloodshot and watery eyes. Hephner could smell a strong odor of a consumed alcoholic beverage. Hephner asked Rose to step outside the vehicle. Once outside, Hephner asked Rose if she had been drinking that night. Rose indicated she had consumed three beers.
Hephner next asked Rose to perform field sobriety testing. Rose scored a “six” on the walk-and-turn test. Rose scored a “three” on the one-leg stand test. On both tests, a score of two or more indicates a failure.
After Rose performed the field sobriety tests, Hephner arrested her for DUI. Once Rose was placed in the patrol vehicle, she became emotional and began yelling at the phone as Hephner attempted to contact her brother. At that point, Hephner also noticed that Rose's speech was slurred. At the jail, Rose refused to take a breath test. Based on all the circumstances, Hephner believed Rose was under the influence of alcohol to a degree that rendered her incapable of safely operating a vehicle.
Rose was charged with and convicted of DUI by a jury. At trial, a recording of the incident involving Rose was presented to the jury. In particular, the jury was able to view Rose's performance during the field sobriety tests.
On appeal, Rose challenges her conviction on three grounds. She claims: (1) The district court erred in allowing Hephner's testimony about the results of the field sobriety tests where the State failed to lay a proper foundation for the testimony; (2) Rose was denied the right to effective assistance of counsel because her trial counsel failed to object to Hephner's testimony; and (3) there was insufficient evidence to support her conviction.
We find each of Rose's claims unsuccessful and affirm her conviction for DUI.
Objections to the admission must be lodged in order to preserve such questions for appellate review.
Rose argues the district court erred in permitting Hephner's testimony regarding the results of the field sobriety tests where the State failed to lay a proper foundation for the testimony. Rose complains about two items in Hephner's testimony: (1) where Hephner testified Rose scored a “six” on the walk-and-turn test, which indicated she had a blood alcohol level of .08 or more; and (2) where Hephner testified that the number of clues Rose exhibited during the one-leg stand indicated she had a blood alcohol level of .08 or more.
When Hephner gave this testimony, he was not asked to testify about the scientific foundation for his testimony. Notably, the Kansas Supreme Court has held the results of field sobriety tests are not admissible to establish specific blood alcohol content, unless an appropriate scientific foundation is laid. See State v. Shadden, 290 Kan. 803, 825, 235 P.3d 436 (2010).
But Rose made no objection when Hephner testified about the results of the walk-and-turn test, and only generally objected when Hephner testified about the results of the one-leg stand test. Rose's failure to object or to offer specific grounds for her objection bars our consideration of this claim on appeal.
Under the contemporaneous-objection rule, an error in admitting evidence may not be reviewed on appeal unless the objecting party made a timely and specific objection to its admission at trial. K.S.A. 60–404; State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009). This rule applies even to evidentiary objections based on constitutional rights. State v. McCaslin, 291 Kan. 697, 706–09, 245 P.3d 1030 (2011). Although some exceptions to the general rule that an issue may not be raised for the first time on appeal have been noted in Kansas caselaw, “[i]n recent years ... [our Supreme Court has] consistently been refusing to review an evidentiary issue without a timely and specific objection even if the issue involves a fundamental right.” State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010). The court has expressed concern that exceptions may “soon swallow the general statutory rule” requiring a timely objection. State v. Richmond, 289 Kan. 419, 429–30, 212 P.3d 165 (2009).
Moreover, an error in admitting evidence may not be considered on appeal where a party objects to its admission below on one ground, but then offers a different objection on appeal. In Richmond, the court explained that “the trial court must be provided the specific objection so it may consider as fully as possible whether the evidence should be admitted and therefore reduce the chances of reversible error.” (Emphasis added.) 289 Kan. at 429. Here, then, where Rose offered a general objection to Hephner's testimony but provided no specific grounds for her objection, the contemporaneous objection rule applies.
Rose acknowledges her failure to object to Hephner's testimony but argues this forms the basis for her second claim—that her trial counsel was ineffective. Rose goes on to argue that she satisfied the contemporaneous-objection rule (as it pertains to Hephner's testimony regarding the one-leg stand test) because the basis for her objection was “clear” and the district judge “understood” the basis for the objection, as it ruled on the objection without any inquiry.
That argument is not persuasive. Nothing in the trial transcript suggests the district court somehow knew Rose's reason for lodging a general objection to Hephner's testimony—particularly where Rose did not object to Hephner's prior testimony on this point. We will not assume, without any evidence in the record, that the district court “understood” the basis for Rose's objection absent any explanation by Rose on this point.
In these circumstances, we decline to consider Rose's challenge to Hephner's testimony for the first time on appeal.
We will not consider a claim of ineffective assistance of counsel in this direct appeal.
Rose claims she was denied her right to effective assistance of counsel because her trial counsel failed to object to the testimony she complains about in her first issue. Noting Kansas courts have “repeatedly” held testimony such as Hephner's to be improper, Rose says she was deprived a fair trial due to the absence of an objection.
We must decline to consider Rose's claim. A claim of ineffective assistance of counsel generally cannot be raised for the first time on appeal. See Rowland v. State, 289 Kan. 1076, 1084, 219 P.3d 1212 (2009). The reason for this is because the district court, which observed counsel's performance, is in the best position to consider counsel's competence and should be the first to address an ineffective assistance of counsel claim. State v. Van Cleave, 239 Kan. 117, 119–21, 716 P.2d 580 (1986). It is only in “extremely rare” or “extraordinary” circumstances that the appellate record is sufficient to analyze an ineffective assistance of counsel claim for the first time on appeal. Rowland, 289 Kan. at 1084–85.
Rose admits she did not raise an ineffective assistance of counsel claim below but says the record in this case is “sufficiently complete” to allow us to decide the issue. Other than this conclusory statement, Rose provides no explanation as to why or how the record on appeal is sufficient to decide her ineffective assistance of counsel claim. We therefore reject the conclusory notion that the record in this case is sufficient to consider Rose's claim for the first time on appeal.
There is sufficient evidence to support a conviction.
Rose's final claim on appeal is that the State failed to produce substantial, competent evidence to support the DUI conviction. Our standard of review dictates the result on this claim.
When the sufficiency of the evidence is challenged in a DUI case, we review all the evidence, viewed in the light most favorable to the State, to determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Moore, 35 Kan.App.2d 274, 282–83, 129 P.3d 630 (2006). We do not reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. State v. Pham, 281 Kan. 1227, 1252, 136 P.3d 919 (2006).
Rose argues the evidence of intoxication in this case is “woefully lacking.” She bases this conclusion on the following:
• With regard to her driving before the stop, Rose says she was not driving at an excessive speed, her headlights were on, she did not accelerate or decelerate rapidly, she did not stop in the roadway, she did not drive into opposing traffic, she did not signal improperly, she stopped and turned appropriately, and she properly pulled over in response to Hephner's flashers.
• At trial, Rose explained why she went left of center ( i.e., that she dropped her cell phone) and this explanation went “without contradiction.”
• With regard to her behavior at the time of the stop, Rose says she did not have slurred speech, she produced her driving license and exited the car without difficulty, she followed directions without problem, and she was polite and cooperative.
• With regard to the field sobriety tests, Rose says Hephner admitted he failed to determine whether she had any physical impairment that would have impacted her ability to perform the field sobriety tests, and she never exhibited poor balance or coordination problems at any time except during the field sobriety tests.
Given our standard of review, we note Rose's vehicle crossed the yellow line and drifted between the lanes and crossed the line separating the two lanes on three occasions. Rose had bloodshot and watery eyes, and Hephner said he could smell a strong odor of a consumed alcoholic beverage. Rose admitted she had consumed three beers. Rose failed both field sobriety tests. Hephner also noticed Rose's speech was slurred.
The facts here are more than sufficient to support Rose's conviction for DUI. See Moore, 35 Kan.App.2d at 283–84. Even without the results of the field sobriety tests, there are sufficient facts for a rational factfinder to find Rose guilty.
Actually, Rose asks this court to reweigh the evidence, something we will not do on appeal. Instead, we must view the evidence in the light most favorable to the State to determine whether a rational factfinder could have found Rose guilty beyond a reasonable doubt. Here, the facts are more than sufficient to support the jury verdict.
Affirmed.