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City of Colby v. Granston5/12/2000
below, we are confident he would have been convicted regardless of the error. Cranston is not entitled to reversal on this issue.
Sufficiency of the Evidence
When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed 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. State v. Johnson, 266 Kan. 322, 326, 970 P.2d 990 (1998).
Cranston takes the position that the city code section governing driving under the influence requires the State to prove that the alcohol concentration in his breath while he was driving was .08 or more. Evidently he believes that the test must be conducted while he is behind the wheel. As we have previously observed, "statutes should be construed to avoid unreasonable results." Wells v. Anderson, 8 Kan. App. 2d 431, 433, 659 P.2d 833, rev. denied 233 Kan. 1093 (1983). In our view, Cranston asks us to arrive at an unreasonable result.
Defendant was convicted under Section 30(a)(2) of the Colby Municipal Code, which is substantially similar to K.S.A. 1999 Supp. 8-1567(a)(2). The state statute provides that " o person shall operate or attempt to operate any vehicle within this state while: . . . (2) the alcohol concentration in the person's blood or breath, as measured within two hours of the time of operating or attempting to operate a vehicle, is .08 or more." It is a "per se" violation of this statute if an individual's breath alcohol test registers .08 or more, as measured within 2 hours of operating a vehicle.
"The legislative directive is clear. To obtain a conviction for a per se violation under K.S.A. 8-1567(a)(2), the State must show the alcohol concentration was tested within two hours of the last time a defendant operated or attempted to operate a vehicle. Further, our legislature has expressly provided in K.S.A. 8-1567(a)(1) that an alcohol concentration test administered two hours or more after a defendant operated or attempted to operate a vehicle may be competent evidence to support a conviction under that subsection." State v. Pendleton, 18 Kan. App. 2d 179, 185, 849 P.2d 143 (1993).
There is no dispute in this case regarding the results of the test administered on Cranston within 2 hours of his apprehension. This evidence alone was sufficient to support his conviction. In addition, the jury heard testimony from the arresting officer about his observations of defendant's appearance and odor at arrest. The jury heard the tape of the defendant being arrested and his wife yelling. The jury heard about the defendant's and his wife's admissions. We consider this compilation of evidence not merely sufficient but direct and overwhelming.
Admission of Passenger's Statement
The court allowed Officer Sitton to testify about statements made by Dana Cranston over defendant's objection. Officer Sitton testified that he asked Dana if she could move defendant's vehicle, and she responded that she probably should not be driving because she had also been drinking. At the time, the City claimed this was not hearsay because Dana was outside of the courtroom and had been subpoenaed as a witness. Dana, however, never testified.
Defendant cites State v. Fisher, 222 Kan. 76, 563 P.2d 1012 (1977), in support of his position that it was error to allow Dana's out-of-court statements into evidence when she did not actually testify. It is true that the Fisher court ruled that K.S.A. 60-460(a) requires a declarant to testify at trial. Fisher, 222 Kan. at 82. Thus, it does not support the
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