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State v. Allen

Court of Appeals of Kansas

July 19, 2013

STATE of Kansas, Appellant,
James ALLEN, Appellee.

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Syllabus by the court

1. Interpretation of a Kansas Supreme Court rule is a question of law.

2. Each issue presented in an appellant's brief must begin with a citation to the appropriate standard of appellate review and a pinpoint reference to the location in the record on appeal where the issue was raised and ruled on.

3. Whether jurisdiction exists is a question of law over which this court's scope of review is unlimited.

4. Interpretation of a statute is a question of law over which appellate courts have unlimited review. The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. When a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it. Where there is no ambiguity, the court need not resort to statutory construction. Only if the statute's language or text is unclear or ambiguous does the court use canons of construction or legislative history to construe the legislature's intent.

5. The right to a preliminary examination is purely statutory and only applies to those charged with felony crimes.

6. Any defense or objection which is capable of determination without the trial of the general issue may be raised before trial by motion.

7. Vehicular homicide is the unintentional killing of a human being committed by the operation of an automobile, airplane, motor boat, or other motor vehicle in a manner which creates an unreasonable risk of injury to the person or property of another and which constitutes a material deviation from the standard of care which a reasonable person would observe under the same circumstances. K.S.A. 21-3405.

[49 Kan.App.2d 163] 8. The material deviation required for a vehicular homicide conviction requires something more than ordinary or simple negligence yet something less than gross and wanton negligence, is not capable of exact definition, and may not be defined by a bright-line rule applicable to all circumstances. The proper focus of an inquiry on material deviation is the manner in which a defendant operates his or her vehicle under the totality of the circumstances presented.

9. Review of a trial court's denial of a motion to dismiss for insufficient evidence asks whether review of all the evidence, viewed in the light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.

Thomas E. Knutzen, assistant county attorney, Jason W. Belveal, county attorney, and Derek Schmidt, attorney general, for appellant.

Branden A. Bell, of Sandage Bell, LLC, of Kansas City, Missouri, for appellee.



The district court granted James Allen's motion to dismiss the vehicular homicide charge against him for lack of sufficient evidence. The State appeals this dismissal, arguing that Allen had no right to a preliminary hearing on the motion, the State should not have been required to provide evidence of an aggravating factor independent of a traffic infraction, and the State provided sufficient evidence that Allen committed vehicular homicide. For the reasons stated below, we conclude the district court erred by holding an evidentiary hearing on Allen's pretrial motion to dismiss for lack of sufficient evidence because it presented a question of fact that should have gone to a jury to decide. We further conclude that, even if it had been proper for the district court to hold an evidentiary hearing, the district court erred in granting Allen's motion to dismiss because the State presented sufficient evidence to establish that Allen's actions could be found to be a material deviation from the standard

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of care which a reasonable person would observe under the totality of the circumstances.

[49 Kan.App.2d 164] Facts

Shortly after 5:30 p.m. on Friday, February 12, 2010, Allen was involved in a two-vehicle accident with Katherine Olmsted in Jefferson County, Kansas. Olmsted was declared dead at the scene of the accident. The state trooper who responded to the accident, Justin Olberding, concluded based on evidence and statements at the scene that Allen was driving a white Buick LaCrosse northbound when he struck Olmsted's southbound red Toyota Tacoma head on; the collision occurred entirely in the southbound lane of travel; Allen's car showed no braking prior to impact; and Olmsted's car created skid marks for 50 feet prior to the area of impact.

On September 22, 2011, the State filed a complaint/information against Allen for vehicular homicide in violation of K.S.A. 21-3405, a class A person misdemeanor. On November 21, 2011, Allen was informally arraigned, entered a plea of not guilty, and filed a written request for jury trial. On January 10, 2012, Allen filed a motion to dismiss, arguing that the prosecution lacked any evidence of a material deviation from the standard of care, a required element to prove beyond a reasonable doubt to the jury that he was guilty of vehicular homicide. Specifically, Allen claimed that Kansas law requires (1) a violation of the law and (2) some other aggravating factor independent of such violation to sustain a conviction for vehicular homicide under State v. Krovvidi, 274 Kan. 1059, 58 P.3d 687 (2002).

Over the State's objection that Allen's motion was not ripe until after the State had presented its evidence at trial, the district court set the matter for an evidentiary hearing to determine whether the State had sufficient evidence to proceed to trial. At the March 6, 2012, evidentiary hearing, the State renewed its objection to the evidentiary hearing to no avail.

The State presented the testimony of Trooper Olberding, who stated Allen told him at the scene that Allen was going 60 miles per hour prior to the accident but could not remember anything else. Allen later told Olberding that the last thing Allen remembered before the accident was seeing a boat out on a lake-a distance of roughly half a mile from the accident. Trooper Olberding [49 Kan.App.2d 165] noted that the blood-alcohol and toxicology reports showed that neither Allen nor Olmsted had alcohol or drugs in their systems. Olberding testified that there were no adverse weather conditions or other extenuating circumstances at the scene of the accident when he arrived that would have required Allen to swerve out of his lane of traffic. Olberding further testified that there was no evidence to suggest Allen was on the phone immediately before or during the accident or Allen was traveling too fast for the conditions.

The State also presented testimony from Linda Faith, who was driving immediately behind Allen's vehicle for roughly 6 miles prior to the accident. Faith testified that she was familiar with the road, having traveled it every day to and from work for 8 years. She said it was narrow and hilly and had twists and turns which required more caution than other roads. She also testified that the time of the accident was one of the road's busier times.

Faith stated that she observed Allen's car cross the center line a total of five times during the 6 miles she was behind him. She described the car as drifting across the line as opposed to swerving or jerking, consistent with someone who was texting, using a cell phone, or under the influence of alcohol. However, she also described the driving as " inattentive" and that she herself had " done that kind of thing." Faith stated that the last time she saw the white car cross the center line, it stayed there for at least 7 or 8 seconds, after which it plowed into the red truck without braking. Faith said she remembered these details because it was a clear day, she could see a red pickup coming down the hill in the opposite direction, and she was wondering at the time how the driver of the white car did not see it. She noted in her testimony that she did not see anything in either lane that would have caused the white car to swerve.

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At the conclusion of the evidentiary hearing, the district court ordered the parties to brief the issues. In its brief, the State again objected on grounds that Allen's motion to dismiss was not ripe until after the State's case-in-chief has been presented to the trier of fact; thus, there was no legal basis to decide the motion. Alternatively, the State argued it had sustained the evidentiary burden [49 Kan.App.2d 166] required to proceed to trial. The district court ultimately granted Allen's motion to dismiss based on insufficient evidence of an aggravating factor independent of a traffic infraction as required to sustain a conviction for vehicular homicide under Krovvidi. On June 6, 2012, the State filed a notice of appeal stating it was appealing the district court's May 31 order granting the motion to dismiss and " all other rulings adverse to the State," citing K.S.A. 22-3602 as authority.


On appeal, the State argues: (1) Allen did not have the right to a preliminary hearing, (2) the district court applied the wrong legal standard for a charge of vehicular homicide in granting the motion to dismiss, and (3) the State provided sufficient evidence that Allen committed vehicular homicide. Before reaching the merits of the arguments presented by the State, however, we ...

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