Opinion
No. 106,771.
2013-03-15
STATE of Kansas, Appellee, v. John Christopher BECKER, Appellant.
Appeal from Johnson District Court; John P. Bennett, Judge. Jay Norton, of Norton Hare, LLC, of Overland Park, for appellant. Jacob M. Gontesky, assistant district attorney, Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; John P. Bennett, Judge.
Jay Norton, of Norton Hare, LLC, of Overland Park, for appellant. Jacob M. Gontesky, assistant district attorney, Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., GREEN and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
John Christopher Becker appeals after a jury found him guilty of one count of driving under the influence (DUI). On appeal, Becker raises nine issues that he believes justify reversal of his conviction and sentence. We find none of Becker's arguments to be meritorious based on our review of the record and of Kansas law. Accordingly, for the reasons set forth in this opinion, we affirm Becker's conviction and sentence.
Facts
On August 19, 2009, at approximately 10:50 p.m., Overland Park Police Officer David Marshall observed a black Ford Mustang run a red traffic light at the intersection of 119th and Quivira. Officer Marshall activated his emergency equipment and stopped the vehicle. Upon approaching the vehicle, Officer Marshall observed that Becker was its only occupant.
While speaking with Becker, Officer Marshall smelled the odor of an alcoholic beverage coming from within the vehicle. He also noticed that Becker's eyes were bloodshot. Moreover, Becker was chewing gum, which can be used to mask the odor of alcohol. After Becker stated he had had one drink at a bar, Officer Marshall called for backup, so he could have him perform field sobriety tests.
Overland Park Police Officer Wilbur Lewis arrived to assist Officer Marshall. When Officer Lewis approached the vehicle and asked Becker how many drinks he had that night, Becker answered, “ ‘A few.’ “ Officer Lewis also noticed that Becker's eyes were bloodshot and watery. In addition, he noted the smell of alcohol emanating from the vehicle. According to Officer Lewis, Becker had some slurring of his speech.
Officer Lewis asked Becker to exit the vehicle and perform some field sobriety tests. Becker showed no clues of impairment on the walk-and-turn test, the alphabet test, or the counting test. But Becker showed all four clues of impairment on the one-leg-stand test. As a result, Officer Lewis read Becker the advisories for a preliminary breath test (PBT). Becker then agreed to take the PBT test, which showed that his blood-alcohol content was above the legal limit.
Officer Lewis arrested Becker for suspicion of DUI and transported him to the Overland Park Police Station. At the police station, Officer Lewis provided Becker with an implied consent advisory form and read through it with him. Initially, Becker wanted Officer Lewis to explain some of the things he had read, but eventually Becker agreed to submit to the test, which showed a blood-alcohol content of .102. Becker was subsequently charged in an amended complaint with one count of DUI with two or more prior DUI convictions.
Although the motion is not included in the record on appeal, the appearance docket shows that on May 18, 2010, Becker filed a motion to suppress. The district court held a hearing on the motion at which Officers Marshall and Lewis testified. After hearing the testimony, the district court took the matter under advisement so it could review a recording made at the police station on the night of Becker's arrest. But the district court went ahead and ruled that the traffic stop and the detention to allow the officers to conduct a DUI investigation were legal. The district court also determined that based on Becker's performance on the field sobriety tests, along with all the other information, there was enough reasonable suspicion to request a PBT.
Later, the district court held another hearing on the motion to suppress. The district court ruled again that the initial stop and the detention for further testing were legal. It also ruled that the officers had reasonable suspicion to request a PBT, that the PBT was administered properly, and that based on the PBT results there was probable cause to arrest Becker. Regarding the Intoxilyzer breath test performed at the police station, the district court found that Becker was trying to stall in hopes of getting a lower reading. Nevertheless, the district court found that Becker voluntarily consented to the Intoxilyzer breath test. Consequently, the district court denied Becker's motion to suppress the Intoxilyzer results.
Ultimately, the jury found Becker guilty of operating a vehicle while having a blood-alcohol concentration of .08 or more but not guilty of the alternative charge of operating a vehicle while under the influence of alcohol. The presentence investigation report showed that Becker had a DUI diversion on March 13, 2001, and a DUI conviction on September 11, 2003. Accordingly, the district court sentenced Becker to 12 months' probation with an underlying 12–month prison sentence.
Analysis
Motion to Suppress PBT Results
Becker initially contends (1) Officer Lewis did not have the reasonable suspicion necessary to request a PBT, and (2) without the PBT result, there was not probable cause for his arrest. Specifically, Becker argues that the district court erred in denying his motion to suppress all evidence related to his PBT results and his arrest. We disagree.
The standard of review of a district court's decision on a motion to suppress is bifurcated. Without reweighing the evidence, we review the district court's findings to determine whether they are supported by substantial competent evidence. But the ultimate legal conclusion is reviewed de novo. State v. Sanchez–Loredo, 294 Kan. 50, 54, 272 P.3d 34 (2012). Furthermore, the State bears the burden on a suppression motion to prove the lawfulness of the search and seizure. State v. Morlock, 289 Kan. 980, 985, 218 P.3d 801 (2009).
K.S.A.2009 Supp. 8–1012(b) states that a law enforcement officer can request that a person perform a preliminary breath screening test if the officer has reasonable suspicion to believe the person has been operating a vehicle while under the influence of alcohol. An officer must be able to articulate more than an inchoate and unparticularized suspicion or hunch that a person is involved in criminal activity. See State v. Thomas, 291 Kan. 676, 688–89, 246 P.3d 678 (2011); Illinois v. Wardlow, 528 U.S. 119, 123–24, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000).
“The determination of a reasonable suspicion is based on the totality of the circumstances and is viewed in terms as understood by those versed in the field of law enforcement.” Thomas, 291 Kan. 676, Syl. ¶ 10. “Reasonable suspicion represents a minimum level of objective justification. It is a less demanding standard than probable cause and requires a showing considerably less than a preponderance of the evidence.” 291 Kan. 676, Syl. ¶ 11. “Quantity and quality are considered in the totality of the circumstances—the whole picture that must be taken into account when evaluating whether there is reasonable suspicion.” State v. Toothman, 267 Kan. 412, Syl. ¶ 5, 985 P.2d 701 (1999).
Officer Marshall testified that he smelled the odor of alcohol and noticed that Becker's eyes were bloodshot. Likewise, Becker admitted to drinking and to chewing gum. According to Officer Lewis, Becker's speech was slurred and he showed all four clues on the one-leg-stand test. Hence, although there was no one factor that established reasonable suspicion, we find that the totality of the circumstances was sufficient to give the officers reasonable suspicion to believe that Becker had been operating a vehicle while under the influence of alcohol. See State v. Pollman, 286 Kan. 881, Syl. ¶ 7, 190 P.3d 234 (2008).
We recognize there is also evidence in the record to suggest that Becker was not under the influence at the time of the traffic stop. But this evidence does not substantially dissipate Officer Lewis' reasonable suspicion that Becker had operated a vehicle under the influence of alcohol. Similarly, Becker is not helped by his argument that bad knees hindered his performance on the one-leg-stand test. Officer Lewis testified at the suppression hearing that Becker did not tell him that he had any physical issues that would make the field sobriety tests difficult for him.
Becker next argues that his consent to the PBT was not knowing, intelligent, and voluntary. But the State did not need to show that Becker's consent was knowing, intelligent, and voluntary. Becker's consent to a PBT was implied when he drove his vehicle in this state. See K.S.A.2009 Supp. 8–1012(a) (“Any person who operates or attempts to operate a vehicle within this state is deemed to have given consent to submit to a preliminary screening test of the person's breath....”). We note that 8–1012 was amended in 2006 to include this implied consent provision and that Becker was arrested in 2009.
In his reply brief, Becker argues for the first time that K.S.A.2009 Supp. 8–1012 is unconstitutional. But “[a]n appellant may not raise new issues in a reply brief. [Citation omitted.]” State v.. McCullough, 293 Kan. 970, 984, 270 P.3d 1142 (2012); see Supreme Court Rule 6.05 (2012 Kan. Ct. R. Annot. 45). Thus, because we find that the officers had reasonable suspicion to justify the request for the PBT and that Becker's consent was implied, we conclude that the district court did not err in denying Becker's motion to suppress.
Motion to Suppress Intoxilyzer Test Results
Becker next contends that the district court erred in failing to suppress his Intoxilyzer breath test results. He argues that the test result was inadmissible because Officer Lewis coerced him into consenting to the test by giving him incorrect information. Again, we review the district court's findings on a motion to suppress to determine whether they are supported by substantial competent evidence, and the district court's ultimate legal conclusion is reviewed de novo. Sanchez–Loredo, 294 Kan. at 54.
After hearing Officer Lewis' testimony at the suppression hearing and listening to the audio recording from the police station, the district court determined that Becker's consent was voluntary and not coerced. The district court determined that Becker was trying to stall the test, hoping to get a lower reading. Additionally, the district court found that Becker's consent was not based on any false information given to him by Officer Lewis.
Although Becker initially argues he was coerced by Officer Lewis' statement that he would not be charged if he took the test and was under the legal limit, his main argument appears to be that he was coerced into taking the test based on an alleged misleading statement that his license would automatically be suspended if he refused the test. In support of his argument, Becker cites a version of the recording from the police station that was redacted for trial. Specifically, Becker quotes Officer Lewis as saying that if Becker refused, suspension would be “ ‘automatic’ “ and “ ‘there [would be] no chance’ of preserving his license.” However, this quote is not in the cited exhibit. Rather, the recording includes Becker asking Officer Lewis what would happen if he blew below .08, and Officer Lewis saying he would send Becker home. Officer Lewis later explained that Becker would get a hearing before his license was suspended. It was Becker who suggested that if he refused, that was it, and his license would be suspended.
Becker, therefore, has failed to prove that Officer Lewis gave him misleading information coercing him to consent to the Intoxilyzer breath test. But even if Officer Lewis said the things quoted in Becker's brief, there is still substantial competent evidence in the record to support the district court's conclusion that Becker was not mislead and was simply attempting to stall before taking the test. Officer Lewis read Becker the implied consent form and then asked Becker if he had any questions. In response, Becker asked why he did not have a constitutional right to refuse the test. Officer Lewis told him that it was based on the laws of Kansas. Becker then said, “Either way I'm, I'm going to take [the test].”
We cannot confirm from our review of the record that Officer Lewis gave Becker incorrect information. Moreover, the district court heard all the evidence, determined that Becker was just stalling, and that even if Officer Lewis gave him incorrect information, Becker was not coerced by anything the officer said. Hence, we conclude that there is substantial competent evidence to support the district court's findings, and those findings are sufficient to support a conclusion that the district court did not err in denying Becker's motion to suppress the Intoxilyzer breath test results.
Jury Instruction No. 13
Becker also contends that the district court erred in instructing the jury that it could “assume” he was under the influence to a degree that made him incapable of driving safely if a breath test showed he had a blood-alcohol concentration of .08. The specific instruction to which Becker objects is Instruction No. 13, which reads:
“The law of the State of Kansas provides that a chemical analysis of the breath may be taken in order to determine the amount of the alcohol in the defendant's blood at the time the alleged offense occurred. If a test shows the alcohol concentration was .08 or more, you may assume the defendant was under the influence of alcohol to a degree that he was rendered incapable of driving safely. The test result is not conclusive, but it should be considered by you along with all other evidence in this case. You are further instructed that evidence derived from a breath test does not reduce the weight of any other evidence on the question of whether the defendant was under the influence of alcohol.” (Emphasis added.)
Because Becker objected to this instruction before the district court, we exercise an unlimited standard of review to determine whether the instruction was legally appropriate. State v. Astorga, 295 Kan. 339, Syl. ¶ 1, 284 P.3d 279 (2012). In other words, we examine the instruction “to determine if it properly and fairly states the law as applied to the facts of the case and could not have reasonably misled the jury. In making this determination an appellate court is required to consider the instructions as a whole and not isolate any one instruction.” State v. Appleby, 289 Kan. 1017, 1059, 221 P.3d 525 (2009).
Before reaching that analysis, however, this court should address the State's contention that Becker's argument is moot. According to the State, the instruction Becker complains about on appeal was only applicable to the alternative charge of driving while under the influence of alcohol to a degree that rendered him incapable of safely driving under K.S.A.2009 Supp. 8–1567(a)(3). Because the jury acquitted Becker of that charge, the State maintains that Becker's argument is moot.
As a general rule, an appellate court does not decide moot questions or render advisory opinions. State v. Torres, 293 Kan. 790, 792, 268 P.3d 1197 (2012). “[A]n appeal will not be dismissed for mootness unless it is clearly and convincingly shown that the actual controversy has ended and the only judgment that could be entered would be ineffectual for any purpose and an idle act insofar as rights involved in the case are concerned.” State v. Johnson, 39 Kan.App.2d 438, 442, 180 P.3d 1084,rev. denied 286 Kan. 1183 (2008); see Manly v. City of Shawnee, 287 Kan. 63, 74–75, 194 P.3d 1 (2008). The mootness doctrine constitutes court policy recognizing that the function of a judicial tribunal is to determine real controversies relative to the legal rights of those actually involved in the case and “ ‘to adjudicate those rights in such manner that the determination will be operative, final, and conclusive.’ “ State v. Bennett, 288 Kan. 86, 89, 200 P.3d 455 (2009).
Deciding whether it was proper to instruct the jury that if a test proved his blood-alcohol concentration was .08 or more it could “assume” Becker was under the influence of alcohol to a degree that rendered him incapable of driving safely would be ineffectual for any purpose in this case. Becker was acquitted of the charge of driving while under the influence of alcohol to a degree that rendered him incapable of safely driving. Accordingly, we conclude that Becker's argument is moot. See State v. Everest, 45 Kan.App.2d 923, 930, 256 P.3d 890 (2011), rev. denied Kan. –––– (January 20, 2012) (finding jury instruction challenge moot because it related solely to a charge for which the court was reversing the defendant's conviction).
Nevertheless, even if this court decides to address the argument, it has no merit. The language Becker complains about is in PIK Crim.3d 70.02.
“ “ “The use of PIK instructions is not mandatory, but is strongly recommended. The pattern instructions have been developed by a knowledgeable committee to bring accuracy, clarity, and uniformity to jury instructions. They should be the starting point in the preparation of any set of jury instructions. If the particular facts in a given case require modification of the applicable pattern instruction or the addition of some instruction not included in PIK, the trial court should not hesitate to make such modification or addition. However, absent such need, PIK instructions and recommendations should be followed.” “ [Citations omitted.]” State v. Dixon, 289 Kan. 46, 67, 209 P.3d 675 (2009).
Although Becker contends the instruction is improper because it uses the word “assume,” he admits that the word “presume” would be proper because the instruction is based on K.S.A. 8–1005(b), which states that a blood-alcohol concentration of .08 or more is prima facie evidence that the defendant is under the influence of alcohol to a degree that renders a person incapable of driving safely. Further, we note that the definition of “presume” in Black's Law Dictionary is: “To assume beforehand; to suppose to be true in the absence of proof.” (Emphasis added.) Black's Law Dictionary 1304 (9th ed.2009). Similarly, Webster's Dictionary defines “presume” as: “To assume to be true without proof to the contrary.” (Emphasis added.) Webster's II New Riverside University Dictionary 932 (1984). Thus, under the circumstances presented in this case, we find the words “presume” and “assume” to be closely related if not synonymous.
In addition, the jury obviously knew the assumption could be rebutted. While the jury found Becker guilty under K.S.A.2009 Supp. 8–1567(a)(2) of driving while having a blood-alcohol concentration of .08 or more, it acquitted him of the charge under K.S.A.2009 Supp. 8–1567(a)(3) of driving while under the influence of alcohol to a degree that rendered him incapable of safely driving a vehicle, which the jury was told it could assume if his blood-alcohol level was over .08. We, therefore, conclude that the jury instruction as given was not erroneous.
Failure to Give Becker's Requested Jury Instruction
Becker contends that the district court erred in failing to give the jury an instruction he requested. Because Becker preserved the argument by requesting the instruction, we must decide whether the instruction was legally appropriate. See Astorga, 295 Kan. 339, Syl ¶ 1.
“ ‘ “A defendant is entitled to instructions on the law applicable to his or her theory of defense if there is evidence to support the theory. However, there must be evidence which, viewed in the light most favorable to the defendant, is sufficient to justify a rational factfinder finding in accordance with the defendant's theory.” ‘[Citation omitted]” State v. Hendrix, 289 Kan. 859, 861, 218 P.3d 40 (2009).
The right to present a defense is not absolute, so “ ‘the right ... is subject to statutory rules and case law interpretations of the rules of evidence and procedure.’ [Citations omitted.]” State v. Lawrence, 281 Kan. 1081, 1085, 135 P.3d 1211 (2006).
The instruction Becker requested in the present case was based on language from State v. Finch, 291 Kan. 665, 244 P.3d 673 (2011). Specifically, the instruction Becker requested was:
“The phrase ‘alcohol concentration’ means the number of grams of alcohol per 210 liters of breath.
“Driving with a breath alcohol concentration of .08 or more, as measured within 2 hours of driving is a ‘per se’ crime. The State's introduction of evidence supporting the statutory elements in a ‘per se’ criminal statute does not endow the evidence with infallibility. It merely establishes a prima facie case, one that may prevail or for which there may be a reasonable doubt.
“Proof of the elements of a ‘per se’ criminal statute means the State's case may be submitted to you the jury. It does not compel a conviction as a matter of law. The defense may still attack the State's proof and attempt to discredit its witnesses, their machines, and their methods. You, the jury may finally agree that reasonable doubt prevents a conviction. It is your role as the jury to determine the facts and to apply the law to those facts in reaching your decision. A plea of not guilty by the Defendant places all issues in dispute, including even things most patently true. However strong the State's case may be, you the jury has the power to accept it, reject it, or find it insufficiently persuasive.
“A defendant in a prosecution for driving with a breath/alcohol concentration of .08 or more, as measured within 2 hours of driving may raise and argue margin of error or other questions about the reliability or accuracy of his breath alcohol concentration. Margin of error is simply a factor among many possibilities for you the jury to consider.”
The district court declined to give the full instruction but agreed to add language to Instruction No. 4 so that it read: “It is for you to determine the weight and credit to be given the testimony of each witness, their machine and their methods. You have a right to use common knowledge and experience in regard to the matter about which a witness has testified.” (Emphasis added.) In deciding the issue, the district judge stated, “The other parts of [Becker's proposed instruction] I do believe are included in either other instructions that I will give or are not generally given, even though they are law.”
According to Becker, his requested instruction was an accurate statement of the law and would not have misled the jury. He claims the instruction would have made the jury instructions clearer in light of Instruction No. 13. Becker suggests that because the district judge admitted that the instruction requested was an accurate statement of the law, the district judge should have included it instead of merely amending Instruction No. 4. We do not agree.
Becker does not refute the district court's determination that each portion of the requested instruction was either included in another instruction or was not generally given. The district court stated that Becker was free to argue margin of error, but the judge did not want to highlight such a factual issue by including it in the jury instructions. Moreover, simply because something is an accurate statement of the law does not mean it is lawfully required to be in the jury instructions. The instruction also must not reasonably mislead the jury, and appellate courts must consider whether the instructions as a whole properly and fairly state the law. See Appleby, 289 Kan. at 1059. Accordingly, because Becker has failed to show that he was denied an opportunity to submit his theory of defense to the jury, we conclude that the district court did not err by refusing to give the requested instruction.
Failure to Redact Portion of Traffic Stop Video
In addition, Becker contends that the district court erred in failing to redact the portion of the video of the vehicle stop when Officer Marshall was overheard telling Officer Lewis about his prior conversation with Becker. Specifically, Officer Marshall said, “So the story changes as we go along.” According to Becker, Officer Marshall's statement constituted an improper comment by a witness regarding Becker's credibility. We review this issue de novo. See State v. Elnicki, 279 Kan, 47, 51, 105 P.3d 1222 (2005).
One of the issues raised in Elnicki was that the district court erred in playing a video for the jury of the defendant's interrogation, in which a law enforcement officer expressly accused Elnicki of lying on multiple occasions. Relying on the general rule that a witness may not express an opinion on the credibility of another witness, the Kansas Supreme Court determined that it was error for the State to present the law enforcement officer's comments on Elnicki's credibility to the jury. 279 Kan. at 57.
Specifically, our Supreme Court stated in Elnicki:
“The jury heard a law enforcement figure repeatedly tell Elnicki that he was a liar; that Elnicki was ‘bullshitting’ him and ‘weaving a web of lies.’ The jury also heard the same law enforcement figure suggesting he could tell Elnicki was lying because Elnicki's eyes shifted. A jury is clearly prohibited from hearing such statements from the witness stand in Kansas and likewise should be prohibited from hearing them in a videotape, even if the statements are recommended and effective police interrogation tactics.” 279 Kan. at 57.
We find the officer's statements in Elnicki to be substantially different than the statement overheard on the video in the present case. In Elnicki, the video showed an officer telling Elnicki that he just told “ ‘ a flat out lie.’ “ 279 Kan. at 51. The officer also said to Elnicki, “ ‘ You're sitting here bullshitting me ’ “ and, “ ‘ You're weaving a web of fucking lies, man ’ “ among other things. 279 Kan. at 52. Here, Officer Marshall simply told Officer Lewis that Becker had changed his story, which is a true statement based on our review of the record.
Becker also argues that the lack of a limiting instruction from the court mislead the jury into believing that Officer Marshall's negative comment carried the weight of testimony. Nevertheless, Becker did not request a limiting instruction. Thus, because Officer Marshall's statement was not an improper comment on Becker's credibility, we conclude that the district court did not err in failing to redact it from the video recording.
Comments Made By Prosecutor During Closing Argument
Becker further contends that this court should reverse his conviction based on improper statements made by the prosecutor during closing arguments. Appellate review of an allegation of prosecutorial misconduct involving improper comments to the jury requires a two-step analysis. First, we must determine whether the prosecutor's comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. Second, if misconduct is found, we must then determine whether the improper comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Burnett, 293 Kan. 840, 850, 270 P3d 1115 (2012).
The second step of the analysis requires us to consider three factors: “(1) whether the misconduct was gross and flagrant, (2) whether the misconduct showed ill will on the prosecutor's part, and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors.” State v. Raskie, 293 Kan. 906, 914, 269 P.3d 1268 (2012).
“ ‘None of these three factors is individually controlling. Before the third factor can ever override the first two factors, an appellate court must be able to say that the harmlessness tests of both K.S.A. 60–261 (inconsistent with substantial justice) and Chapman v. California, 386 U.S. 18, 17 L.Ed.2d 705, 87 S.Ct. 824 (1967) (conclusion beyond a reasonable doubt that the error ... changed the results of the trial), have been met.’ [Citation omitted.]” State v. McCaslin, 291 Kan. 697, 715–16, 245 P.3d 1030 (2011).
See State v. Ward, 292 Kan. 541, Syl. ¶¶ 5–6, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594(2012).
During closing arguments in the present case, the prosecutor was explaining that Officer Lewis admitted during his testimony that something in his report was not consistent with the recording played to the jury, and the prosecutor stated, “He testified truthfully to you, these are the things I observed.” Shortly thereafter, the prosecutor argued:
“[T]his all happens off camera. [Officer Marshall] could have said, you know, he showed everything on the walk and turn. He showed everything on these other tests. He doesn't do that. He is honest. He is being truthful
“[Defense counsel:] Judge, that is improper.
“THE COURT: It is.
“[Prosecutor:] Excuse me.
“He's being—doing the best that he can.”
The State concedes that the prosecutor's statement regarding Officer Marshall's honesty and truthfulness was improper. In assessing whether the statement raises to the left of gross and flagrant conduct, we consider whether the prosecutor repeated or emphasized the misconduct. Similarly, in assessing whether there has been ill will, we look at the record to determine “if there was deliberate and repeated misconduct or an indifference to the court's rulings.” State v. McCullough, 293 Kan. 970, 990, 270 P.3d .1142(2012).
We note that once the district court pointed out to the State that the comments were improper, the prosecutor continued for approximately five more pages of transcript without commenting about the officers' honesty or truthfulness. Moreover, we note that cases in which courts have found ill will or gross and flagrant conduct on the part of a prosecutor usually involve behavior that is much more egregious than the prosecutor's conduct here. See McCaslin, 291 Kan. at 721–22 (finding ill will where prosecutor asked a witness a question with no good-faith evidentiary basis because there was no legitimate reason for the question); Elnicki, 279 Kan. at 66 (finding prejudice where egregious comments on defendant's lack of credibility in police video were repeated during closing arguments and finding ill will where prosecutor deliberately and repeatedly used various synonyms for “lie” to discuss defendant's credibility and ignored caselaw that prosecutors not to comment on witness credibility); State v. Herrera, 41 Kan.App.2d 215, 227–29, 202 P.3d 68 (2009) (finding gross and flagrant conduct where prosecutor intentionally attempted to taint the trial and ill will where prosecutor repeatedly committed misconduct).
While the State erred in commenting on the officer's honesty and truthfulness, we do not find that the prosecutor repeated or emphasized the comments to the point where they were gross and flagrant. Furthermore, we do not find that the prosecutor showed indifference to the court's rulings, nor did the prosecutor demonstrate ill will. Additionally, we find that the evidence presented at trial was of such an overwhelming nature that the improper commentary would likely have little, if any, impact on the minds of the jurors. Therefore, we conclude that the statements in question did not constitute plain error or prejudice Becker's right to a fair trial.
Cumulative Error
Becker asserts that even if none of the issues presented are individually sufficient to reverse his conviction, he is entitled to a new trial because of cumulative error by the district court. If individual errors are not sufficient to support reversal on their own, the cumulative effect of multiple errors may be great enough to require reversal. The test is “ ‘whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant.” [Citation omitted.]” State v. Edwards, 291 Kan. 532, 553, 243 P.3d 683 (2010).
Because Becker failed to show more than one trial error, he cannot show cumulative error. See State v. Cofield, 288 Kan. 367, 378, 203 P.3d 1261 (2009). Moreover, based on a review of the totality of the circumstances, we find that Becker was not substantially prejudiced by any of his allegations of error. We also find that the evidence in the record overwhelmingly supports the jury's verdict.
Retroactive Application of K.S.A.2011 Supp. 8–1567(j)(3)
Finally, Becker contends the district court erred in failing to apply retroactively the amendments in K.S.A.2011 Supp. 8–1567(j) when imposing his sentence. In particular, he argues that the district court should have applied the “look-back” period enacted in 2011, which provides that “only convictions occurring on or after July 1, 2001, shall be taken into account when determining the sentence to be imposed for a first, second, third, fourth or subsequent offender.” K.S.A. 201–1 Supp. 8–1567(j)(3); L.2011, ch. 105, Sec. 19. Our review of this issue is unlimited because it involves the interpretation of a statute. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
At the time Becker committed his third DUI, the Kansas DUI statute contained a lifetime “look-back” provision. In other words, any conviction occurring during a person's lifetime was taken into account when determining the sentence to be imposed. K.S.A.2009 Supp. 8–1567(o)(3). It is undisputed that although Becker committed his crime before the statute was amended, he was sentenced after the amendment.
In a published opinion issued August 10, 2012, our court rejected the same arguments regarding retroactive application of the amendment that Becker is making in the present case. See State v. Reese, 48 Kan.App.2d 87, Syl. ¶ 5, 283 P.3d 233 (2012), petition for rev. filed September 4, 2012. The Reese opinion clearly rejected retroactivity as being inconsistent with settled Kansas law considering changes in sentencing statutes. Although no mandate has yet been issued in Reese, we find the opinion to be well reasoned. We also note that appellate courts in Kansas have regularly held that district courts must sentence a criminal defendant based on the statutory penalties in effect at the time the offense was committed. See State v. Williams, 291 Kan. 554, 559–60, 244 P.3d 667 (2010). Accordingly, Becker's conviction and sentence are affirmed.
Affirmed.