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State v. Foster11/12/2004
Randall E. Foster appeals his third driving while under the influence (DUI) conviction. Three individuals saw Foster next to a wrecked vehicle which had straddled the road median. Two of these individuals were police officers and one a regular citizen. Each of the individuals noted that Foster smelled of alcohol, that he staggered, and that he had difficulty with his balance. None of these individuals noticed anyone else near the vehicle.
One officer noted the keys still in the car, and a registration check revealed the vehicle was registered to Foster. On a couple of occasions, Foster indicated that the vehicle was his.
Ultimately, an ambulance transported Foster to the hospital. An officer went to the hospital and administered the implied consent to Foster, and he agreed to submit to a blood test. The test produced a reading of .31, considerably over the legal limit. Foster was taken into custody.
The State charged Foster with DUI after two prior convictions. A jury found Foster guilty as charged. Considering Foster's previous DUI convictions, the court sentenced him as a felon and imposed a 1-year jail term. Foster appealed.
Foster challenges the constitutionality of using his prior DUI convictions to increase his sentence without submitting this information to the jury. This issue has been decided by the Kansas Supreme Court in State v. Kendall, 274 Kan. 1003, 58 P.3d 660 (2002). The Supreme Court held that Apprendi v. New Jersey, 530 U.S. 466, 147 L.Ed.2d 435, 120 S.Ct. 2348 (2000), does not require prior convictions to be proved to a jury even when the prior convictions increase the classification of the crime from a misdemeanor to a felony. Kendall, 274 Kan. at 1014.
Foster alleges that there was insufficient evidence to convict him on two theories. First, he contends that the State failed to present evidence regarding his prior DUI convictions. Secondly, he claims there was a lack of evidence that he was driving the car.
When a defendant is challenging the sufficiency of the evidence in a criminal case, this court must be convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt when viewing the evidence in the light most favorable to the State. State v. Mays, 277 Kan. 359, 377, 85 P.3d 1208 (2004). A conviction of even the most grave offense may, however, be sustained by circumstantial evidence. State v. Davis, 275 Kan. 107, 118, 61 P.3d 701 (2003).
As to the first contention, our Supreme Court has held that "prior convictions under a self-contained habitual criminal statute are not elements of the offense charged and are pertinent only to the sentence that will be rendered in the event of conviction." State v. Rome, 269 Kan. 47, 52, 5 P.3d 515 (2000). Driving while under the influence of alcohol is a "self-contained habitual criminal statute." See State v. Helgeson, 235 Kan. 534, 536, 680 P.2d 910 (1984).
The information concerning the prior convictions was presented to the court in the presentence investigation (PSI) report. Foster did not contest the prior convictions. Therefore, the State satisfied its burden and there is sufficient evidence to support the conviction.
**2 Foster claims that there is insufficient evidence to prove that he was actually driving the car. Circumstantial evidence is sufficient to support a DUI conviction. See Kendall, 274 Kan. at 1009. When viewing the evidence in the light most favorable to the State, there is sufficient circumstantial evidence to support the conclusion that Foster was driving the car.
Foster was the only one reported in the location of the vehicle. He admitted to numerous persons that the car was his, and a record check of the vehicle verified that information. The damage to the windshield was consistent with a break fr
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