Review of the judgment of the Court of Appeals in 36 Kan. App. 2d 323, 138 P.3d 1262 (2006). Appeal from Crawford district court; A. J. WACHTER, judge. Judgment of the Court of Appeals affirming in part and reversing in part the judgment of the district court is affirmed. Judgment of the district court is affirmed in part and reversed in part and remanded with directions.
1. An appellate court exercises unlimited review over issues of jury unanimity.
2. An appellate court applies a clearly erroneous standard to review a party's failure to object to a given jury instruction and to review a trial court's failure to give an instruction where the party neither requested it nor objected to its omission.
3. A complaint which charges two separate and distinct offenses in a single count is duplicitous. Duplicity is the joinder of two or more separate and distinct offenses in the same count, not the charging of a single offense involving multiple ways and means of action.
4. In an alternative means case, jury unanimity is not required as to the means by which the crime was committed so long as substantial evidence supports each alternative means. The appellate court must be convinced, after reviewing all the evidence in the light most favorable to the prosecution, that a rational factfinder could have found that each means was proved beyond a reasonable doubt.
5. An attempt is any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime. The overt act necessarily must extend beyond mere preparations made by the accused and must approach sufficiently near to the consummation of the offense to stand either as the first or subsequent step in a direct movement toward the completed offense.
6. The decision to grant or deny a motion for a new trial rests in the sound discretion of the district court. Judicial discretion is abused only when no reasonable person would take the view of the district court, and the party who asserts abuse of discretion bears the burden of showing it. The abuse-of-discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.
7. Unlike subsection (a)(1) of K.S.A. 2006 Supp. 8-1567, subsection (a)(3) does not limit the introduction of "other competent evidence" to that found in K.S.A. 2006 Supp. 8-1013(f)(1), i.e., late-taken samples. Accordingly, the "other competent evidence" contained in 2006 Supp. 8-1013(f)(2), e.g., readings obtained from a partial alcohol concentration test on a breath testing machine--which includes a deficient sample--may be admissible in a criminal prosecution under (a)(3).
8. In a criminal case, the decision to continue a case lies within the sound discretion of the district court.
9. Prosecutors are under a positive duty, independent of court order, to disclose exculpatory evidence to a defendant. To justify a reversal of a conviction for failure to disclose evidence, the evidence withheld by the prosecution must be clearly exculpatory and the withholding of the evidence must be clearly prejudicial to the defendant. But evidence not disclosed to the defendant before trial is not suppressed or withheld by the State if the defendant has personal knowledge thereof, or if the facts become available to the defendant during trial and if he or she is not prejudiced in defending against those new facts.
10. Venue is a question of fact to be decided by the jury. It may be established by proof of facts and circumstances introduced in evidence from which the place or places of commission of the crime or crimes may be fairly and reasonably inferred.
11. As a general rule, a party must make a timely and specific objection to the admission of evidence in order to preserve the issue for appeal. Under the facts of this case, an exception to this general rule--to prevent denial of a fundamental right--will not be applied.
12. A sentencing court assessing fees to reimburse the Board of Indigents' Defense Services under K.S.A. 2006 Supp. 22-4513 must consider on the record at the time of assessment the financial resources of the defendant and the nature of the burden that payment of the fees will impose.
13. Under the facts of this case, the district court erred in ordering the defendant to pay attorney fees to the Board of Indigents' Defense Services before taking into account his financial situation.
The opinion of the court was delivered by: Nuss, J.
Ray Stevens appeals his conviction for operating or attempting to operate his vehicle under the influence of alcohol. The Court of Appeals affirmed his conviction, with one judge dissenting. See State v. Stevens, 36 Kan. App. 2d 323, 138 P.3d 1262 (2006). We granted Stevens' petition for review and the State's cross-petition for review; our jurisdiction is pursuant to K.S.A. 20-3018(b).
Between Stevens and the State, they present seven issues on appeal. Those issues, and our accompanying holdings, are as follows:
1. Did the district court err in failing to require the State to elect either (a) operating or (b) attempting to operate as the theory of prosecution, thus depriving Stevens of his right to a unanimous jury verdict? No.
2. Did the district court err in refusing to grant Stevens' motion for a new trial based on the admission of the deficient breath test results? No.
3. Did the district court err in refusing to grant a continuance based upon the State's failure to produce records of the deficient breath sample as well as the maintenance records of the Intoxilyzer 5000? No.
4. Does sufficient evidence support Stevens' conviction for driving under the influence in Crawford County? Yes.
5. Did the district court err in admitting Stevens' confession into evidence? No. 6. Did cumulative error deprive Stevens of his right to a fair trial? No.
7. Did the district court err in ordering Stevens to pay attorney fees to the Board of Indigents' Defense Services (BIDS) before taking into account his financial situation? Yes.
Accordingly, the judgment of the district court is affirmed regarding issues 1-6; the judgment regarding issue 7 is reversed and remanded for further proceedings as directed in the opinion. We affirm the Court of Appeals.
During the afternoon of April 18, 2004, Officer Dave Justice of the Pittsburg Police Department was called to a residence for a criminal trespass complaint. Upon arrival, Justice saw a Jeep parked in the street with two people sitting in its front seat. As he approached, he saw Ray Stevens exit the driver's side and stumble toward the rear of the Jeep in the direction of the residence.
Justice unsuccessfully attempted to get Stevens' attention as he walked toward the front door of the residence. While Stevens knocked, Justice moved directly behind him and again yelled to get his attention. As Stevens turned around, Justice informed him that the resident of the house did not want him on the property.
Justice noticed a strong odor of alcohol coming from Stevens. When asked, Stevens admitted he had been drinking. He refused, however, to explain why he got out of the driver's side of the Jeep. After backup arrived, Justice approached the Jeep to contact the passenger. Justice then saw alcoholic beverage cans in both the driver's side and passenger's side door cup holders. He also noticed a brown paper bag that appeared to contain a liquor bottle with the seal broken. When the passenger handed Justice the bag, he discovered it contained a half-empty bottle of whiskey. The Jeep key was in the ignition.
At that time, Justice believed that Stevens was under the influence of alcohol. According to Justice, Stevens stated that he had driven the vehicle to the residence. Initially, Stevens agreed to take a field sobriety test. Justice first asked Stevens to touch the top of Justice's pen with his right index finger. Stevens smirked and attempted to touch the pen with his small finger; however, he missed the pen. When Justice asked him to redo the test, Stevens was able to touch the pen with the correct finger. Justice then asked Stevens to follow a pen with his eyes. Stevens, however, only focused on Justice and refused to follow the pen. Stevens also refused to complete balance tests.
Justice placed Stevens under arrest and took him to the police station. There, after Justice read Stevens the implied consent advisory, Stevens submitted to an Intoxilyzer 5000 test. Although Stevens agreed to take the breath test, he initially refused to blow into the machine. When Stevens did blow, he failed to provide enough air for a sufficient sample. According to the machine printout, Stevens blew a "deficient sample" with a .205 blood alcohol concentration.
The next day Stevens was charged with operating or attempting to operate a motor vehicle while under the influence of alcohol in violation of K.S.A. 2006 Supp. 8-1567(a)(3), and transporting an open container of alcoholic beverage in violation of K.S.A. 8-1599.
The same day, defense counsel filed a motion to suppress the breath test. The court denied the motion on present showing, allowing Stevens to later raise the issue.
The case proceeded to jury trial on September 23, 2004. Prior to voir dire, defense counsel asked that the State be required to choose its theory of prosecution, i.e., either operating or attempting to operate a vehicle while under the influence. The court, however, allowed the State to proceed under both theories.
Over defense counsel's objection, the court also admitted the deficient sample breath test results during the testimony of Sergeant David Roughton, the sergeant in charge of records and maintenance for the Intoxilyzer 5000.
Stevens was convicted of operating or attempting to operate a vehicle while under the influence of alcohol but was acquitted of the open container charge. Stevens moved for a judgment of acquittal or, alternatively, for a new trial; the district court denied the motions. He was subsequently sentenced to 12 months' probation with an underlying jail term of 12 months.
A majority of a Court of Appeals panel affirmed Stevens' conviction. The majority held: (1) The deficient breath test was admissible to establish a conviction under K.S.A. 2006 Supp. 8-1567(a)(3); (2) the district court did not err in refusing to grant a continuance or new trial based upon the deficient sample; (3) driving or attempting to drive while under the influence is an alternative means situation and the evidence was sufficient to support either means; (4) Stevens' voluntary statements to the officer that he had been drinking and, later, that he had driven to the residence were elicited during the investigational phase and not while Stevens was in custody; (5) there was no cumulative error; and (6) a district court is unable to adequately determine a defendant's ability to pay attorney fees to BIDS when it fails to first tax a specific amount claimed by BIDS. Because of the BIDS issue, the majority remanded the case for further proceedings. Then Judge, now Justice, Johnson dissented, arguing the evidence was insufficient to support the conviction upon the alternative means of attempting to operate a vehicle. Stevens, 36 Kan. App. 2d at 344-48.
Issue 1: The District Court did not err in Failing to Require the State to Elect Either (a) Operating or (b) Attempting to Operate as the Theory of Prosecution
Stevens argues that the district court erred in failing to require the State to elect its theory of prosecution, thus depriving him of his right to a unanimous jury verdict. "This court exercises unlimited review over issues of jury unanimity. [Citation omitted.]" State v. Kesselring, 279 Kan. 671, 678, 112 P.3d 175 (2005).
The trial court allowed the State to proceed under a charge of operating or attempting to operate a motor vehicle while under the influence of alcohol in violation of K.S.A. 2006 Supp. 8-1567(a)(3), which provides in relevant part:
"(a) No person shall operate or attempt to operate any vehicle within this state while:
(3) under the influence of alcohol to a degree that renders the person incapable of ...