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State of Kansas v. Tina M. Huffmier

May 10, 2013

STATE OF KANSAS, APPELLEE,
v.
TINA M. HUFFMIER, APPELLANT.



Appeal from Shawnee District Court; MATTHEW J. DOWD, judge.

SYLLABUS BY THE COURT

SYLLABUS BY THE COURT 1. K.S.A. 60-404 provides that evidentiary errors shall not be reviewed on appeal unless a party has lodged a timely and specific objection to the alleged error at trial. 2. The erroneous admission of evidence under K.S.A. 60-261 is reversible only if it is determined that a refusal to remand would be inconsistent with substantial justice. 3. Under Supreme Court Rule 8.03(g)(1) (2012 Kan. Ct. R. Annot. 72), a party must allege the Court of Appeals decided an issue erroneously in order for that issue to be properly before the Supreme Court on petition for review. 4. Under the non-constitutional harmless error standard of K.S.A. 60-261, the burden of demonstrating harmlessness is on the party benefiting from the error. That party must

show there is no reasonable probability the error affected the trial's outcome in light of the entire record.

The opinion of the court was delivered by: Biles, J.:

Review of the judgment of the Court of Appeals in an unpublished opinion filed February 5, 2010.

Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

The opinion of the court was delivered by BILES, J.:

Tina Huffmier seeks review of a Court of Appeals decision affirming her conviction for driving under the influence of alcohol (DUI). State v. Huffmier, No. 100,422, 2010 WL 481257 (Kan. App. 2010) (unpublished opinion). She challenges the admission of certain evidence she claims portrayed her as a bad mother and of low moral character, as well as the prosecutor's closing statements regarding that evidence. She claims further that the prosecution violated K.S.A. 60-447(a) (evidence of specific conduct to prove a defendant's character). We affirm her conviction.

FACTUAL AND PROCEDURAL BACKGROUND

Huffmier was charged with DUI, refusal to take a preliminary breath test, and not wearing a seat belt. Those charges arose after she drove her two 4-year-old children to their father Brett, Huffmier's ex-husband, for visitation on June 11, 2006. In her first trial, a jury found her guilty of not wearing a seat belt and refusing to take a preliminary breath test but could not reach a unanimous verdict on the DUI charge. At a second trial, the jury convicted her on that charge, and it is now the focus of this appeal.

At the second trial, Brett testified that he spoke with Huffmier by telephone to arrange delivery of their children. He said he believed Huffmier sounded impaired, upset, and irritated, and would not tell him where she was. Once they agreed where to meet for the exchange, Brett called the Shawnee County Sheriff's Office to have officers present because he believed Huffmier was intoxicated.

An officer at the scene testified that he did not see Huffmier having any problems operating her vehicle when she approached, but as he got closer to explain why law enforcement officers were present he noticed a strong odor of alcohol coming from Huffmier's car. The officer said Huffmier was cooperative but had bloodshot eyes, slurred speech, and told him she had been drinking but was not drunk. The officer testified that based on Brett's statements and the officer's observations, he believed Huffmier was impaired and asked her to perform four field sobriety tests:

1. ABC test. The officer testified that he asked Huffmier to recite A through Q, but she recited A through Z. The officer said Huffmier's performance indicated impairment.

2. Finger dexterity test. The officer testified that even though Huffmier said she understood the instructions to make contact with her fingers and count out loud at the same time, the touching of her fingers was inconsistent and that Huffmier was "fumbling " and "sliding" across her fingers-an indication she was impaired.

3. One-leg stand. The officer testified Huffmier showed two clues of impairment: swaying and putting her foot down twice.

4. Walk and turn. The officer testified that Huffmier made four out of a possible eight mistakes: not keeping her balance during the instructions, starting too soon before being told to begin, making an improper turn, and taking the wrong number of steps-10, instead of 9. The officer also said Huffmier made an error during the actual walking portion of the test.

Brett also testified about his observations regarding Huffmier. He said that during the exchange with the children, "it was quite obvious she had been-she was quite intoxicated." He noted Huffmier had "a strong odor of alcohol" and that her speech "was kind of slurred." Brett stated further that from her mood swings and the way she talked, it was "extremely obvious" that she was intoxicated. He also told the jury that he had known her for 10 years, had seen her both intoxicated and sober, and definitely knew the difference.

At various points during trial, the prosecutor asked certain witnesses about Huffmier's child visitation schedule and her personal relationships. Huffmier now argues testimony with two witnesses conveyed irrelevant and prejudicial evidence that led the jury to conclude she was a bad mother and of low moral character. We describe that testimony in detail to address Huffmier's arguments, but must distinguish the issues preserved with a timely objection.

First, she challenges the prosecutor's questioning of Brett about Huffmier's visitation arrangements with their children after her arrest. That subject arose in the following segment of testimony with Brett:

"Q. [Prosecutor]: Did you ever-she had a right to see the children after this? "A. [Brett]: Yes.

"Q. Is that a fair statement?

"A. You betcha.

"[Defense counsel]: I will object as to the relevance of this questioning.

"THE COURT: Overruled. Go ahead.

"Q. So, you say about two months ago?

"A. Uh-huh.

"Q. The defendant asked for a different visitation, is that a fair statement?

"A. Yes, ma'am.

"Q. And when did that occur?

"A. About two months ago.

"Q. And was that here in Shawnee County, or another county?

"A. It was in Osage County.

"Q. Okay. And was anything changed?

"A. Yeah, after 2006, I told her that I didn't trust her having the kids overnight, and if she wanted to see the kids-

"[Defense counsel]: I will object.

"THE COURT: I will sustain. This is irrelevant. The jury will disregard. "Q. Did the Court change visitation?

"A. Yes.

"[Defense Counsel]: Again, I will object.

"THE COURT: I will sustain the objection. I will sustain the objection."

Second, Huffmier claims error when the prosecutor asked Brett about Huffmier's living arrangements with a man identified as ...


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