Opinion
No. 111,538.
2015-02-20
STATE of Kansas, Appellee, v. Troy R. SIEBELS, Appellant.
Appeal from Norton District Court; Preston Pratt, Judge.Daniel C. Walker, of Ryan, Walter & McClymont, Chtd., of Norton, for appellant.R. Douglas Sebelius, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Norton District Court; Preston Pratt, Judge.
Daniel C. Walker, of Ryan, Walter & McClymont, Chtd., of Norton, for appellant. R. Douglas Sebelius, county attorney, and Derek Schmidt, attorney general, for appellee.
Before POWELL, P.J., HILL and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Troy R. Siebels appeals his driving under the influence (DUI) conviction claiming he was not the driver of the vehicle, there was insufficient evidence to convict, and there was prosecutorial and jury misconduct during his trial. There was more than sufficient competent direct and circumstantial evidence to support his conviction, coupled with the fact he stipulated his blood alcohol content (BAC) was 0.17. We find the State's cross-examination of Siebels was proper and there was no jury misconduct. We affirm Siebels' conviction.
Facts
Siebels was charged with DUI as a result of an OnStar automated crash response on May 2, 2013, at 12:11a.m., reporting a vehicle was involved in an accident on County Road 14E in Norton County. The Norton County Sheriffs Department responded with Deputy Sheriff Robert Annon, Jr. arriving at the scene along with emergency medical services (EMS) personnel and the fire and rescue department. They found the vehicle abandoned in a field and started searching for the driver. Siebels was located at a nearby house belonging to Josh and Melissa McClain suffering from injuries that required him to be transported to the hospital. While at the house, Deputy Annon asked Siebels if he was the driver of the abandoned vehicle. Siebels responded in the affirmative but later retracted his statement.
At the hospital, Siebels was read and given a copy of the implied consent advisory (DC–70) form. He then consented to a blood draw at 2:20 a.m. Upon receipt of the Kansas Bureau of Investigation (KBI) analysis of Siebels' blood draw, Siebels was charged with DUI in violation of K.S.A.2013 Supp. 8–1567.
The matter proceeded to trial and the State called Deputy Annon to testify about his observations at the McClain's house. Deputy Annon testified to Siebels' injuries, slurred speech, mumbling, saying he needed to vomit, and bloodshot and watery eyes. Deputy Annon also testified Siebels admitted to being the driver of the vehicle. Additionally, Deputy Annon testified that at the hospital he observed Siebels had bloodshot and watery eyes and smelled of alcohol, his clothes were wet and covered in mud, and he consented to his blood being drawn for an alcohol test.
Next, the State called Josh McClain to testify. Josh said he was at home with his family when Siebels stopped by his house to hang out. They drank whiskey for about 2 hours. Josh also testified that about 30 minutes after Siebels left, he returned with his injuries. Josh testified that Siebels told him OnStar had already called in the accident. The State then called Melissa McClain to testify that Siebels' wife was not at the house the night of the accident.
As the trial progressed, the State called several of the EMS and fire department personnel to testify about what they observed and heard Siebels say. Casey Dole, an emergency medical technician (EMT), testified he heard Siebels say he was driving the vehicle. Additionally, the State called Justin Lindsay, an EMT, to testify that he heard Siebels say his nephew was driving and then later said his wife was driving the vehicle.
During the trial, the State admitted 11 exhibits by agreement of both parties, including the KBI laboratory report showing Siebels' BAC was 0.17 grams per 100 milliliters of blood.
Siebels testified as the only witness for his defense. He admitted to stopping at the McClain's house and drinking with Josh while his cousin Tory waited in the vehicle and never came into the McClains' house. Siebels claimed when he left the McClains' house, Tory was driving and ran off the road trying to avoid a deer. Siebels went on to testify he sent Tory away from the accident because he was in violation of his probation from Nebraska. During cross-examination, the State challenged Siebels on his story about his cousin Tory driving the vehicle because Tory had never given a statement or come forward to say he was the driver. Additionally, during closing arguments before the jury, Siebels' attorney discussed the fact that Siebels' wife was not called as a witness by the State, thus implying there was a reason she was not called.
The jury found Siebels guilty of DUI. Siebels filed a motion for mistrial pursuant to K.S.A. 22–3423, alleging prosecutorial misconduct during cross-examination when the prosecutor tried to poke holes in Siebels' defense that his cousin, Tory, was driving. He also alleged jury misconduct when the jury discussed the fact Siebels' wife did not testify. The district court denied the motion and later proceeded to sentencing. Siebels timely appealed.
Analysis
Substantial Competent Evidence
In this case, the jury was asked to determine whether Siebels was guilty or not guilty of DUI in violation of K.S.A.2013 Supp. 8–1567, a class B misdemeanor. The district court accepted the jury's verdict and found Siebels guilty of operating a vehicle with an alcohol concentration of .08 or more, as measured within 3 hours of the time of operating a vehicle, contrary to K.S.A.2013 Supp. 8–1567(a)(2).
Substantial competent evidence refers to all legal and relevant evidence that a reasonable person could accept as being adequate to support a conclusion. State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012). When the sufficiency of evidence is challenged in a criminal case, this court reviews all the evidence in the light most favorable to the prosecution and must be convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014). In determining whether there is sufficient evidence to support a conviction, the appellate court will not reweigh the evidence, resolve evidentiary conflicts, or make witness credibility determinations. 299 Kan. at 525. It is only in rare cases where the testimony is so incredible that no reasonable factfinder could find guilt beyond a reasonable doubt that a guilty verdict will be reversed. State v. Matlock, 233 Kan. 1, 5–6, 660 P.2d 945 (1983). A verdict may be supported by circumstantial evidence if such evidence provides a basis from which the factfinder may reasonably infer the existence of the fact in issue. However, the evidence need not exclude every other reasonable conclusion or inference. State v. Brooks, 298 Kan. 672, 689, 317 P.3d 54 (2014). If an inference is a reasonable one, the jury has the right to make the inference. Brooks, 298 Kan. at 689. A conviction of even the gravest offense can be based entirely on circumstantial evidence. Brooks, 298 Kan. at 689; but see State v. Richardson, 289 Kan. 118, 127, 209 P.3d 696 (2009) (circumstances utilized to infer guilt must be proved and cannot be inferred or presumed from other circumstances).
Siebels stipulated to the fact that his BAC was greater than .08 within 3 hours of the accident; however, Siebels' argument on appeal is the State lacked substantial competent evidence he was driving the vehicle because he testified his cousin Tory was driving. While there was no direct evidence presented at trial Siebels was driving, there was substantial circumstantial evidence from which the jury had the right to make the reasonable inference Siebels was driving the vehicle. See Brooks, 298 Kan. at 689. Proof of driving, for the purpose of determining whether the defendant was operating motor vehicle while under influence of intoxicating liquor, does not require an eyewitness to the driving; it may be shown by circumstantial evidence. State v. Fish, 228 Kan. 204, 210, 612 P .2d 180 (1980).
The circumstantial evidence Siebels was the driver included: (1) the first responders found no one else near or at the scene of the accident; (2) Deputy Annon testified Siebels initially stated he was the driver; (3) Josh McClain testified Siebels was alone at his house drinking; (4) Melissa McClain testified Siebels' wife was not with him at the house; (5) at various times, Siebels stated his nephew was driving and also that his wife was driving; and (6) Siebels failed to call Tory as a witness.
While Siebels did testify Tory was driving the vehicle, in determining whether there is sufficient competent evidence to support a conviction, the appellate court will generally not reweigh the evidence or the credibility of a witness. See Williams, 299 Kan. at 525. In order for the jury to find Siebels not guilty in the face of the circumstantial evidence presented by the State, the jury had to find Siebels was credible enough to disregard the circumstantial evidence tending to show he was the driver. Weighing Siebels' credibility belongs to the jury. The appellate court's only role is to decide whether, in the light most favorable to the prosecution, a reasonable factfinder could have found Siebels guilty beyond a reasonable doubt. Based on the evidence presented at trial, there was substantial competent evidence to support the jury's guilty verdict.
Prosecutorial and/or Jury Misconduct
Siebels next argues the district court erred when it failed to grant his motion for a new trial because the prosecution improperly cross-examined Siebels about his alibi and shifted the burden of proof. Additionally, Siebels argues that during the deliberations, the jury committed misconduct by discussing the fact Siebels' wife did not testify. In support of this assertion, Siebels presented affidavits from two jurors stating that during jury deliberations the fact his wife did not testify was discussed.
The district court may grant a new trial if required in the interest of justice. K.S.A.2013 Supp. 22–3501. An appellate court reviews the trial court's decision on a motion for new trial for an abuse of discretion. State v. Schumacher, 298 Kan. 1059, 1069, 322 P.3d 1016 (2014). A judicial action constitutes an abuse of discretion if the action is arbitrary, fanciful, or unreasonable, based on an error of law, or based on an error of fact. State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014). A contemporaneous objection must be made to all evidentiary claims—including questions posed by a prosecutor and responses to those questions—to preserve the issue for appellate review. State v. Raskie, 293 Kan. 906, 914, 269 P.3d 1268 (2012).
Motion for New Trial
Here, Siebels argues the prosecutor improperly shifted the burden of proof by challenging his alibi defense during cross-examination. Thus, the question to be answered is how far can a prosecutor go in cross-examining a defendant about his or her testimony. Siebels argues the prosecution committed error by asking questions of Siebels during cross-examination which appeared to challenge the truth of his alibi defense. The State contends the questions asked were proper cross-examination and directly pertained to issues raised by Siebels on direct examination.
The district court did not abuse its discretion in denying Siebels' motion for a new trial because the prosecutor's cross-examination was within the wide latitude allowed during cross-examination. When a defendant raises an alibi defense, he or she is not under any obligation to prove his or her alibi beyond a reasonable doubt or even by a preponderance of the evidence. It is sufficient that the evidence offered in support of the alibi defense be such that it raises a reasonable doubt of the verity of the State's evidence Siebels was driving the vehicle. See State v. Wright, 138 Kan. 31, 33, 23 P.2d 475 (1933), aff'd on reh'g 139 Kan. 14, 29 P.2d 1099 (1934). It is the jury's job to judge the credibility of the witness providing the alibi defense; however,
“[w]hen the theory of the defense is based upon facts within the personal knowledge of a particular person or persons available as witnesses and no attempt to secure their testimony is made the failure to produce available evidence may give rise to an inference that it would be adverse to the party who could have produced it.” State v. Wilkins, 215 Kan. 145, 150–51, 523 P.2d 728 (1974).
The prosecution is allowed to poke holes in the defense's alibi theory during cross-examination without impermissibly shifting the burden of proof to the defendant. State v. Todd, 299 Kan. 263, 286, 323 P.3d 829, cert. denied 135 S.Ct. 460 (2014). The prosecution has the right to cross-examine a defendant who chooses to testify concerning the lack of evidentiary support for an alleged alibi defense. State v. Deiterman, 271 Kan. 975, 985–86, 29 P.3d 411 (2001). If a defendant implies a particular witness would be beneficial to his or her case, but the defense does not attempt to produce the supposedly beneficial witness, the prosecution does not impermissibly shift the burden of proof by asking questions to refute this inference. The prosecution is not required to call a witness simply because the defense implies the witness would be favorable to its case and harmful to the prosecution's case. See State v. Naputi, 293 Kan. 55, 64, 260 P.3d 86 (2011).
The State's questioning of Siebels and his claim Tory was driving the vehicle was within the constraints of cross-examination. Siebels testified Tory was the driver, leading to the inference the State did not call Tory to testify because it would have provided the jury with the reasonable doubt it needed to acquit; however, Siebels did not call Tory to testify. The prosecution's cross-examination of Siebels about his alibi did not impermissibly shifting the burden of proof. The district court did not err when it denied Siebels' motion for a new trial.
Juror Misconduct
A jury is only allowed to consider admissions or stipulations of parties and exhibits and testimony admitted into evidence and “ ‘[a] party is denied the right to a fair trial when a juror introduces evidence on material issues of fact to the jury during its deliberations.’ “ State v. Leaper, 291 Kan. 89, 97, 238 P.3d 266 (2010) (quoting Saucedo v. Winger, 252 Kan. 718, 733, 850 P.2d 908 [1993] ).
In his closing arguments, Siebels called attention to the fact the State did not call his wife to testify to rebut her husband's alibi. Siebels implied the State did not call his wife to testify because she would harm the prosecution's case. It was reasonable for the jury to discuss Siebels' wife's failure to testify after his attorney discussed her failure to testify. In denying Siebels' motion for a new trial, the district court found the jury's discussion of his wife's failure to testify was not misconduct, but rather, the jury trying to decide what weight and credit to give Siebels' testimony. By discussing what Siebels' attorney said during closing statements, no juror introduced anything into the deliberations not presented during the trial. Additionally, the affidavits provided by Siebels failed to state any juror was actually influenced by the reference to his wife's failure to testify and the related discussions. See State v. Hockett, 172 Kan. 1, 6, 238 P.2d 539 (1951). Again, Siebels' attorney brought the issue to the jury's attention during his closing statements, and it was only natural for the jurors to consider and discuss during their deliberations what Siebels' attorney said.
The district court's decision not to grant Siebels a new trial was not arbitrary, fanciful, or unreasonable, based on an error of law, or based on an error of fact. Thus, it was not an abuse of discretion to deny Siebels' motion for a new trial based on jury misconduct. See Mosher, 299 Kan. at 3.
Conclusion
There was more than enough direct and circumstantial evidence in the light most favorable to the State to support the jury's verdict Siebels was DUI with a BAC of 0.17. In challenging Siebels' alibi, the prosecutor's cross-examination was within the bounds of Siebels' direct examination and did not shift the burden of proof. Siebels' claim of jury misconduct is misplaced as he brought the issue of his wife not testifying to the jury's attention, and it was reasonable for the jury to at least discuss the fact. The district court did not err in denying Siebels' two motions for a new trial. We affirm.
Affirmed.