Opinion
No. 106,086.
2012-11-9
STATE of Kansas, Appellee, v. Seth A. DULANEY, Appellant.
Appeal from Sedgwick District Court; Phillip B. Journey, Judge. Rick Kittel, of Kansas Appellate Defender Office, 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; Phillip B. Journey, Judge.
Rick Kittel, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., BUSER and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Seth A. Dulaney was convicted by a jury of both alternative counts of fleeing or attempting to elude a police officer, and one count of operating a motor vehicle while his driver's license was revoked. He appeals the convictions for fleeing and attempting to elude a police officer. Finding no error, we affirm.
Factual and Procedural Background
Prior to trial, the State charged Dulaney with four counts. Count 1 alleged a violation of K.S.A. 8–1568(b)(1)(C), that while fleeing, Dulaney “engaged in reckless driving as defined by K.S.A. 8–1566.” Count 2 alleged in the alternative a violation of K.S.A. 8–1568(b)(l)(E), that while fleeing, Dulaney “committed five or more moving violations.” Count 3 alleged a violation of K.S.A. 21–3424, that Dulaney engaged in criminal restraint. This count, however, was dismissed by the State before opening statements. Count 4 alleged a violation of K.S.A. 8–287, operating a motor vehicle while one's driving privileges were revoked as a habitual violator.
At trial, the State produced a video recording of the automobile pursuit on July 28, 2010. The video shows Dulaney driving at a high rate of speed through residential areas while being pursued by Deputy Delgado and other officers in marked patrol vehicles. Dulaney ran numerous stop signs and repeatedly swerved before jumping a curb and driving through a field, all in defiance of the audible sirens and flashing emergency lights from the pursuing patrol vehicles. At trial, Dulaney stipulated to his habitual violator status on the day in question.
The jury returned guilty verdicts on the alternative Counts 1 and 2, fleeing or attempting to elude a police officer, and also a guilty verdict on Count 4, operating a motor vehicle while one's driving privileges were revoked as a habitual violator. At sentencing the State dismissed the alternative count, Count 2, and Dulaney was sentenced on Counts 1 and 4. Dulaney appeals his convictions on Counts 1 and 2.
Sufficiency of the Evidence
With regard to Count 1, Dulaney contends the evidence did not show Deputy Delgado was a “police officer” as that term is used in K.S.A. 8–1568(a). The Uniform Act Regulating Traffic, K.S.A. 8–1401, et seq. , defines police officer as “every law enforcement officer, as defined by K.S.A. 21–3110, authorized to direct or regulate traffic or to make arrests for violations of traffic regulations.” K.S.A. 8–1450. A law enforcement officer is defined in K.S.A. 21–3110 as, inter alia, “[a]ny person who by virtue of such person's office or public employment is vested by law with a duty to maintain public order or to make arrests for crimes.”
Our standard of review is well settled:
“ ‘ “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.” ‘ [Citation omitted.]” State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011).
At trial, Deputy Delgado testified in a uniform similar to the one he wore during the automobile pursuit. He said he worked for “the Sedgwick County Sheriff's Department,” and that he had done so for 13 years. He is “a first shift road patrol deputy that is assigned to the south end of the County.” Deputy Delgado's training included how to make “reports for ... traffic laws and to enforce state laws.” His daily duties included “taking report calls, ... [for] DUI's, speeding citations.” Based on this training and experience, the deputy agreed that he was “familiar with the traffic laws of the State of Kansas.”
With regard to the automobile pursuit, Deputy Delgado testified about the procedure followed by the Sheriff's Department and said he had experience with “several” such pursuits. He testified that he had activated his patrol vehicle's siren and emergency lights in an effort to stop Dulaney “once the traffic infractions and the speeding increased.” During the pursuit, the deputy “documented that [Delgado] didn't use his turn signal, that he was driving on the wrong side of the road, running stop signs, actively attempting to elude me.” This is also audible during the video, with Deputy Delgado narrating each of Dulaney's traffic violations as they occurred. At trial, the deputy described Dulaney's traffic violations by going over them one-by-one and discussing the traffic laws at issued.
Viewing this testimony and the video in the light most favorable to the prosecution, a rational factfinder could have determined beyond a reasonable doubt that Deputy Delgado, by virtue of his office or public employment, was vested by law with a duty to maintain public order or to make arrests for crimes, specifically to direct or regulate traffic, or to make arrests for violations of traffic regulations. The evidence was therefore sufficient to show Deputy Delgado was a “police officer” as that term is used in K.S.A. 8–1568(a).
Failure to Instruct Regarding the Definition of “Police Officer”
For his second issue on appeal, Dulaney argues (with regard to Count 1) that the jury instructions should have defined “police officer” pursuant to K.S.A. 8–1450 and K.S.A. 21–3110.
In the jury instructions, the trial court asked the jury to determine whether Dulaney “was given a visual or audible signal by a police officer to bring the motor vehicle to a stop,” whether the “police officer giving such signal was in uniform, prominently displaying such officer's badge of office,” and whether the “police officer's vehicle was appropriately marked showing it to be an official police vehicle.” Because in Dulaney's view, “there was no evidence produced at trial to prove that Delgado, or any other person involved in the pursuit, was vested with authority under the law to regulate traffic, make arrests, or maintain public order,” he claims there was “a real possibility that the jury would have returned a different verdict if it had been properly instructed on the law related to Delgado's supposed status as a police officer.”
Dulaney concedes that he did not request an instruction defining what constitutes a “police officer” at trial. As a result, our review is for clear error. K.S.A. 22–3414(3). “An instruction is clearly erroneous only if the reviewing court is firmly convinced there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred. [Citation omitted.]” State v. Martinez, 288 Kan. 443, 451–52, 204 P.3d 601 (2009).
As discussed in the prior issue, Dulaney's underlying premise is incorrect. There was sufficient evidence Deputy Delgado was vested with authority under the law to regulate traffic, make arrests, or maintain public order. Assuming there was error in the trial court's failure to define “police officer,” and a correct definition had been provided to the jury, we conclude there is not a real possibility the jury would have rendered a different verdict. This argument is without merit.
Defect in the Charging Document
For the first time on appeal, Dulaney contends the charging document was defective. The sufficiency of a charging document is a jurisdictional question subject to unlimited review. State v. McElroy, 281 Kan. 256, Syl. ¶ 1, 130 P.3d 100 (2006). But the “orderly resolution of criminal law issues requires timely raising of claims relating to the validity of an information.” 281 Kan. 256, Syl. ¶ 3. Therefore the “test used to evaluate the sufficiency of the charging document depends upon when the issue was first raised.” State v. Huerta–Alvarez, 291 Kan. 247, Syl. ¶ 2, 243 P.3d 326 (2010).
“A defendant challenging the sufficiency of the charging document for the first time on appeal must show the alleged defect either (1) prejudiced the defendant's preparation of a defense; (2) impaired the defendant's ability to plead the conviction in any subsequent prosecution; or (3) limited the defendant's substantial rights to a fair trial.” State v. Inkelaar, 293 Kan. 414, Syl. ¶ 5, 264 P.3d 81 (2011).
Importantly, “[t]he validity of a charging instrument is to be tested by reading the document in its entirety, and the elements of the offense may be gleaned from the document as a whole.” (Emphasis added.) Huerta–Alvarez, 291 Kan. 247, Syl. ¶ 3.
Dulaney challenges the convictions in Counts 1 and 2 because the charging document failed to allege he was “driving a motor vehicle.” As discussed in the next issue, any arguments relating to Count 2, which was dismissed prior to sentencing, are moot. We will consider, however, Dulaney's claim with regard to Count 1.
The charging document in the present case alleged in Count 1 that “in the County of Sedgwick, and State of Kansas, and on or about the 28th day of July, 2010 A.D.,” Dulaney “did then and there unlawfully and willfully fail or refuse to bring such motor vehicle to a stop, or otherwise did flee or attempt to flee a pursuing police vehicle or bicycle when given a visual or audible signal,” and that “during the course of the police pursuit defendant engaged in reckless driving as defined by K.S.A. 8–1566 and amendments thereto.” Furthermore, the charging document alleged in Count 4 that “on or about the 28th day of July, 2010 A.D., in the County of Sedgwick, and State of Kansas,” Dulaney “did ... unlawfully and knowingly drive a motor vehicle upon a highway of this state after having been declared a habitual violator, while said order prohibiting such operation remained in effect.” Reading the charging document in its entirety, the State did allege Dulaney was driving a motor vehicle at the time these offenses occurred.
Assuming there was error, however, Dulaney has not shown prejudice. Dulaney cites State v. Beeney, 34 Kan.App.2d 77, 79–80, 114 P.3d 996 (2005), where a defendant was “prejudiced [in] the preparation of his defense” because the charging document alleged he had “fled or attempted to elude a uniformed law enforcement officer, not a pursuing police vehicle or police bicycle ” as required by the statute at issue here, K.S.A. 8–1568(a). The statute also requires the defendant to be a “driver of a motor vehicle,” K.S.A. 8–1568(a), but as already established, the State made that allegation.
Dulaney's counsel, in fact, argued to the jury that the State had to prove his client was the driver: “See that each crime requires you to make the determination Mr. Dulaney was indeed, the driver. That's every crime you have to make the determination that he was the driver. The first element of each one.” In short, defense counsel's argument was clearly premised on the fact that the State had not proven Dulaney was the driver.
Dulaney does not show he was prejudiced in the preparation of his defense or limited in his substantial rights to a fair trial. Our review of the record persuades us that Dulaney understood the charges. Since Dulaney does not argue impairment of his ability to plead the conviction in any subsequent prosecution, that argument is deemed waived or abandoned on appeal. See McCaslin, 291 Kan. at 709.
Issues Related to Count 2
In three separate issues, Dulaney challenges his conviction on Count 2, the alternative charge for fleeing or attempting to elude a police officer. First, Dulaney asserts the trial court erred in failing to instruct the jury on all of the specific moving violations and their statutory definitions found in that particular count. Second, Dulaney claims reversible error because of the trial court's failure to instruct on the alleged moving violations as lesser included offenses of Count 2. Third, Dulaney argues that the trial court erred in failing to instruct the jury that if it found him guilty of fleeing or attempting to elude by means of reckless driving in Count 1, that the jurors “could not use reckless driving as a moving violation to prove fleeing or attempting to elude” in Count 2.
Because Count 2 was dismissed at sentencing it does not appear in the journal entry of judgment aside from the notation: “Jury convicted on Count 1 and alternative Count 2. Court sentences on Count 1 and then dismisses Count 2.” Dulaney's three issues relating to Count 2 are moot because it is “clearly and convincingly established that the actual controversy now before this court has ended.” State v. White, 41 Kan.App.2d 943, 945, 206 P.3d 553 (2009).
The State argues “the issues raised with respect to count two are of no moment unless this court concludes [Dulaney's] evidentiary challenge to count one is persuasive. It is the State's position that in the event of such a finding, the trial court should be authorized to enter a conviction and sentence for defendant on count two.” It is unnecessary to consider the State's position because there is no basis to reverse the trial court regarding any error related to Count 2. Quite simply, because of the dismissal of the charge, Dulaney's arguments regarding Count 2 are moot. See State v. Ulate, 42 Kan.App.2d 971, 990, 219 P.3d 841 (2009), rev. denied 291 Kan. 917 (2010) (where trial court dismissed a count after the jury verdict for lack of jurisdiction, any prosecutorial misconduct on that count was moot).
Affirmed.