material facts listed in K.S.A. 2016 Supp. 60-455 are
exemplary rather than exhaustive, and a party can admit
evidence to prove a material fact for a purpose not
specifically listed in the statute.
determining whether a district court properly admitted K.S.A.
2016 Supp. 60-455 evidence, the court uses a multi-step
process, asking (1) whether the fact to be proven was
material; (2) whether the material fact was disputed and
relevant to prove the disputed material fact; and (3) whether
the probative value of the evidence outweighed the potential
for undue prejudice against the defendant. The court reviews
the first question de novo but reviews the second and third
questions only for an abuse of discretion.
court does not independently determine issues which an
appellant has abandoned or inadequately briefed.
Multiple factors are relevant in showing a defendant's
requisite state of mind in a depraved heart second-degree
murder case. Those factors include intoxication, speeding,
failing to aid the victim, and prior record of driving
defendant's prior record for reckless or intoxicated
driving is relevant in a depraved heart second-degree murder
case to establish that defendant had grounds to be aware of
the risk his drinking and driving while intoxicated presented
to others. That factor is relevant not only in examining the
sufficiency of the evidence to find a defendant guilty of
depraved heart second-degree murder, but also in examining
the admissibility of K.S.A. 2016 Supp. 60-455 evidence.
fact that a defendant had a prior diversion for DUI tends to
increase the probability that the defendant had subjective
knowledge of the risks of driving while intoxicated. That
fact is relevant to the question of whether defendant
"consciously disregarded" that risk.
risk of undue prejudice turns not on whether the prior crime
evidence is damaging but on whether the evidence is likely to
contribute to an improper jury verdict or distract from the
central issues at trial.
Appellate courts presume that juries follow the instructions
Generally, the court applies the statutory harmless error
standard to the erroneous admission of evidence unless some
constitutional right is implicated. That analysis requires
the reviewing court to determine whether there is a
reasonable probability that the error affected the outcome of
the trial in light of the entire record.
Errors related to the admission of statements given in
violation of Miranda can be deemed harmless if the
State can prove beyond a reasonable doubt that the error did
not affect the outcome of the trial in light of the record as
Voluntary intoxication is a defense to specific intent crimes
but is not a defense to general intent crimes.
Defense of voluntary intoxication may be used only where the
charged offense requires a specific intent. Voluntary
intoxication is not a defense to a crime whose culpable
mental state is "reckless."
from Johnson District Court; Sara Welch, judge. Affirmed.
Carver-Allmond, of Capital Appellate Defender Office, for
E. Minihan, assistant district attorney, Stephen M. Howe,
district attorney, and Derek Schmidt, attorney general, for
Green, P.J., Powell and Gardner, JJ.
Claerhout appeals his conviction of reckless second-degree
murder. His conviction stems from a car crash he caused while
driving under the influence (DUI) of alcohol, which resulted
in the tragic death of Christopher Willdermood. Claerhout
contends that the district court erred in four respects: (1)
by admitting his prior DUI diversion agreement into evidence;
(2) by allowing a police officer to testify as an expert
accident reconstructionist; (3) by not suppressing certain
statements he had made to a police officer following the
crash; and (4) by not granting his request for an instruction
on voluntary intoxication as a defense to reckless
second-degree murder. Finding no reversible error, we affirm.
and Procedural Background
10 p.m., on January 11, 2015, Claerhout caused a car crash
while driving under the influence of alcohol. This crash
resulted in the death of Willdermood. As a result, the State
charged Claerhout with one count of reckless second-degree
murder, a severity level 2 person felony in violation of
K.S.A. 2014 Supp. 21-5403(a)(2), or alternatively, one count
of involuntary manslaughter while driving under the
influence, a severity level 4 person felony in violation of
K.S.A. 2014 Supp. 21-5405(a)(3). The State also charged
Claerhout with one count of reckless driving, a misdemeanor
in violation of K.S.A. 8-1566.
his trial, Claerhout filed two motions. Claerhout's first
motion challenged Officer Matt Misemer's intended
testimony as an expert traffic accident reconstructionist
based on the rules outlined in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 592-94, 113 S.Ct.
2786, 125 L.Ed.2d 469 (1993). Misemer intended to testify
about the speed and braking patterns of Claerhout's Ford
F-150 truck and Willdermood's Mazda3 car based on the
information he downloaded from each vehicle's airbag
control module onto a computer program called Crash Data
Retrieval (CDR). This computer program generated the speed
and the braking patterns of the vehicles when they collided.
The district court determined that Misemer was qualified to
testify as an expert accident reconstructionist.
Claerhout's second motion, he contended that the
statements he had made at the scene of the car crash should
be suppressed under Miranda v. Arizona, 384 U.S.
436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The district court
denied this motion, finding that although Officer Daniel
Ubrik had interrogated Claerhout at the scene of the crash,
he had no duty to give Claerhout the Miranda
warnings because Claerhout was not yet in custody.
also challenged the State's motion to admit his previous
DUI diversion agreement into evidence. The district court
ruled that the State could admit that agreement to show that
Claerhout had acted recklessly with extreme disregard to the
value of human life.
Claerhout's trial, the State presented the testimony of
the waitresses who had served Claerhout alcohol the day of
the crash, the friends who had been with Claerhout on the day
of the crash, the police officers who had responded to the
crash, the bystanders who had witnessed the crash, and the
doctors who had examined Willdermood. Highly summarized, the
evidence established that from around 3 p.m. to 9 p.m. on
January 11, 2015, Claerhout had been drinking alcohol at
local bars. Based on the testimony of the waitresses who had
served him and beverage receipts admitted into evidence,
Claerhout had consumed five 12-ounce beers, three 24-ounce
beers, one 32-ounce beer, and two vodkas during that time.
crash occurred when Claerhout rammed his truck into the rear
end of Willdermood's car while Willdermood was driving
down Ridgeview Road in Johnson County, Kansas. The speed
limit on this stretch of the road was 40 mph. Officer Misemer
testified and the CDR report indicated that Claerhout's
truck had been accelerating "100 percent" and
traveling at a speed of 92 mph when he rammed
Willdermood's car. The crash caused the truck's
airbags to deploy. Misemer testified that the CDR reports
showed that Willdermood had been driving about 47 mph when
the crash occurred. Misemer believed that the force of the
crash accelerated Willdermood's car to a speed of about
62 mph without any driver's input.
John Mancayo, another accident reconstructionist, testified
that the damage to Claerhout's truck and
Willdermood's car showed that Claerhout had driven his
truck almost squarely into the rear of Willdermood's car.
This propelled Willdermood's car onto the grass on the
right side of the road, where Willdermood's car
ricocheted off a tree, then off a utility pole, and then
crossed to the left side of the road before finally ramming
into a wrought iron fence. The forensic pathologist who
performed Willdermood's autopsy opined that Willdermood
died from severe brain trauma that occurred because of rapid
acceleration and deceleration, which was consistent with
experiencing a serious car accident.
statements that he had consumed eight to nine beers that day
and that he was at a level four drunk came into evidence
through Officer Ubrik's testimony. Ubrik additionally
testified that Claerhout failed the walk-and-turn test and
the one-leg stand test and that Claerhout had a breath
alcohol content (BAC) of .211, which was over twice the legal
limit. In addition, the State admitted Claerhout's DUI
diversion agreement from 2010 into evidence over
was charged with involuntary manslaughter as an alternative
to reckless second-degree murder. He did not present any
evidence on his own behalf. Instead, he conceded his guilt of
involuntary manslaughter. In his opening statement,
Claerhout's attorney admitted:
"[Claerhout] was incapable of safely driving a vehicle
and he's as guilty as he can possibly be of involuntary
manslaughter, but the State has decided to charge him with
second-degree murder, and when you look at all the facts in
this case and the knowledge of what he carried with him at
that time as he drove that evening, we're confident that
you won't find him guilty of that."
the jury instruction conference, Claerhout requested an
instruction on voluntary intoxication as a defense against
the crime of reckless second-degree murder. The district
court denied this request, ruling that voluntary intoxication
can be used as a defense only against crimes that require a
defendant to act with specific intent. The district court
granted the State's request to instruct the jury that
voluntary intoxication was not a defense against the crime of
reckless second-degree murder.
jury found Claerhout guilty on all counts. Because Claerhout
was charged with involuntary manslaughter as an alternative
to reckless second-degree murder, the district court vacated
Claerhout's conviction for involuntary manslaughter. For
his second-degree murder conviction, the district court
sentenced Claerhout to 117 months' imprisonment followed
by 36 months' postrelease supervision. The district court
ran Claerhout's 30-day jail sentence for his reckless
driving conviction concurrent with his second-degree murder
sentence. Claerhout timely appeals.
DISTRICT COURT ERR BY ALLOWING THE STATE TO ADMIT
CLAERHOUT'S PRIOR DUI DIVERSION AGREEMENT?
first argues that the court erred by admitting into evidence
his prior DUI diversion agreement because that agreement was
not relevant and was more prejudicial than probative. We
2016 Supp. 60-455 governs whether evidence of a
defendant's prior crime may be admitted at trial. That
statute provides that although such evidence is inadmissible
to prove a defendant's "disposition to commit crime
or civil wrong as the basis for an inference that the
[defendant] committed another crime or civil wrong on another
specified occasion, " such evidence is admissible when
used to establish "'some other material fact
including motive, opportunity, intent, preparation, plan,
knowledge, identity or absence of mistake or
accident.'" "The material facts listed in
K.S.A. 60-455 are exemplary rather than exhaustive, and a
party can seek to admit evidence to prove a material fact not
specifically enumerated." State v. McCune, 299
Kan. 1216, 1226-27, 330 P.3d 1107 (2014). The district court
admitted Claerhout's prior DUI diversion agreement for
the stated purpose of showing his state of mind-that
Claerhout acted recklessly under circumstances manifesting
extreme indifference to the value of human life.
determining whether a district court properly admitted K.S.A.
2016 Supp. 60-455 evidence, courts engage in the following
three-step test, with each step having its own standard of
"• First, the district court must determine whether
the fact to be proven is material, meaning that this fact has
some real bearing on the decision in the case. The appellate
court reviews this determination independently, without any
required deference to the district court.
"• Second, the district court must determine
whether the material fact is disputed and, if so, whether the
evidence is relevant to prove the disputed material fact. In
making this determination, the district court considers
whether the evidence has any tendency in reason to prove the
disputed material fact. The appellate court reviews this
determination only for abuse of discretion.
"• Third, if the fact to be proven was material and
the evidence was relevant to prove a disputed material fact,
then the district court must determine whether the probative
value of the evidence outweighs the potential for undue
prejudice against the defendant. The appellate court also
reviews this determination only for abuse of
discretion." State v. Torres, 294 Kan. 135,
139-40, 273 P.3d 729 (2012).
apply this standard here, although we admit some confusion as
to whether the relevance determination is to be reviewed de
novo or for an abuse of discretion. Compare State v.
Preston, 294 Kan. 27, 32, 272 P.3d 1275 (2012) (finding
the court reviews the probative element of relevancy under an
abuse of discretion standard) with McCune, 299 Kan.
at 1227 (stating the court reviews the probative element of
relevancy de novo, but citing Preston, 294 Kan. at
32). But see State v. Rosa, 304 Kan. 429, 436, 371
P.3d 915 (2016) ("'This court reviews the probative
element of relevancy under an abuse of discretion
we review the district court's determinations of
relevancy and its balancing of probative value against
prejudicial effect only for an abuse of discretion. "A
trial court abuses its discretion when no reasonable person
would take the view adopted by the trial court, when the
judicial action is based on an error of law, or when the
judicial action is based on an error of fact." State
v. Seacat, 303 Kan. 622, 634-35, 366 P.3d 208 (2016).
2010, Claerhout had a prior DUI diverted. At that time, he
had apparently been stopped because of a defective tail light
and not because of any erratic driving. His diversion
agreement listed numerous steps Claerhout was required to
complete to get his DUI diverted, including attending
educational courses on DUI and attending a victim impact
trial, the State moved to admit evidence of Claerhout's
DUI diversion agreement. The district court found that even
though Claerhout's prior DUI was a "pretty
garden-variety DUI, " and did not involve the same
erratic driving as alleged in this case, his prior DUI was
relevant because it tended to show Claerhout had notice that
drinking and driving was reckless. It found the evidence
admissible to show Claerhout's state of mind-whether he
acted with reckless disregard to the value of human life,
"[W]ith respect to the State's 60-455 motion,
I'm making the finding that the defendant's prior
diversion for DUI is relevant to prove material fact, that
being [that] the defendant acted with reckless disregard to
the value of human life, that the defendant's statement
of mind is a disputed fact, probably in this case the
primarily disputed fact, and that the probative value of the
evidence outweighs its prejudicial effect.
"This is one of the Doub factors which is
specifically listed as relevant on the defendant's state
of mind on a reckless second-degree murder.
"This is a diversion, it is not a conviction. It was
five years ago.
"The defendant successfully completed the diversion and
the Court will give an appropriate limiting instruction with
respect to the purposes for which the jury may consider that
trial, the court admitted Claerhout's 2010 DUI diversion
agreement into evidence over Claerhout's objection. The
district court ruled that Claerhout's previous diversion
agreement for DUI was relevant to prove Claerhout's state
of mind-whether Claerhout acted recklessly under
circumstances manifesting extreme indifference to the value
of human life.
district court gave the jury the following limiting
instruction, which Claerhout does not challenge:
"Evidence has been admitted tending to show that the
defendant committed a crime other than the present crime
charged. This evidence may be considered solely for the
purpose of determining whether or not the defendant acted
with extreme indifference to the value of human life as
alleged in Count I [second-degree murder].
admits that his DUI diversion agreement was material and that
whether he acted with extreme indifference to the value of
human life was in dispute. See State v. Faulkner,
220 Kan. 153, 156, 551 P.2d 1247 (1976). Accordingly, we do
not independently determine those issues. See State v.
Jones, 298 Kan. 324, 329, 311 P.3d 1125 (2013) (If an
appellant abandons an issue on appeal we need not proceed
with our analysis or otherwise consider the issue); see also
State v. Bowen, 299 Kan. 339, 356, 323 P.3d 853
(2014) (A litigant abandons an issue if the litigant fails to
adequately brief the issue.).
contends solely that the DUI diversion agreement was not
relevant and that its prejudicial effect outweighed its
probative value. We review both of these findings for an
abuse of discretion. State v. Torres, 294 Kan. 135,
139-40, 273 P.3d 379 (2012).
district court's K.S.A. 2016 Supp. 60-455 analysis
strictly followed the dictates of the statute, first
determining that the agreement was material, then determining
that the agreement was relevant to show Claerhout's state
of mind, and then determining that the agreement was more
probative than prejudicial. See Torres, 294 Kan. at
139-40. It did not treat Claerhout's prior DUI diversion
agreement as automatically admissible or as an exception to
the specific mandates of 60-455. Instead, its extensive
60-455 analysis is reflected in several of its rulings: (1)
its ruling on the State's motion in limine regarding
Claerhout's prior DUI diversion agreement, (2) its
admission at trial of that agreement which specifically
limited the scope of its use, (3) its jury instructions, and
(4) its related ruling on Claerhout's motion to dismiss
the second-degree murder charge.
finding Claerhout's DUI diversion agreement relevant, the
district court relied in part on State v. Doub, 32
Kan.App.2d 1087, 1092, 95 P.3d 116 (2004). Doub
found eight factors persuasive of the requisite state of mind
in depraved heart second-degree murder cases, such as this
one. Those factors included intoxication, speeding, failing
to aid the victim, and prior record of driving offenses. As
to the latter, Doub stated:
"'8. Prior record of driving offenses (drunk or
reckless driving or both). The relevance of a
defendant's prior record for reckless or intoxicated
driving is, as United States v. Fleming pointed out,
not to show a propensity to drive while drunk but "to
establish that defendant had grounds to be aware of the risk
his drinking and driving while intoxicated presented to
others."' Luria, Death on the Highway: Reckless
Driving as Murder, 67 Or. L. Rev. 799, 823 (1988)."
32 Kan.App.2d at 1092.
this factor relevant not only in examining the sufficiency of
the evidence to find a defendant guilty of depraved heart
second-degree murder, as in Doub, but also ...