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State v. Claerhout

Court of Appeals of Kansas

October 27, 2017

State of Kansas, Appellee,
v.
Jeremy Claerhout, Appellant.

         SYLLABUS

         1. The 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.

         2. When 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.

         3. The court does not independently determine issues which an appellant has abandoned or inadequately briefed.

          4. 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 offenses.

         5. A 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.

         6. The 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.

         7. The 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.

         8. Appellate courts presume that juries follow the instructions given.

          9. 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.

         10. 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 a whole.

         11. Voluntary intoxication is a defense to specific intent crimes but is not a defense to general intent crimes.

         12. 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."

         Appeal from Johnson District Court; Sara Welch, judge. Affirmed.

          Meryl Carver-Allmond, of Capital Appellate Defender Office, for appellant.

          Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.

          Before Green, P.J., Powell and Gardner, JJ.

          Gardner, J.

         Jeremy 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.

         Factual and Procedural Background

         Around 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.

         Before 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.

         In 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.

         Claerhout 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.

         During 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.

         The 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.

         Officer 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.

         Claerhout's 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 Claerhout's objection.

         Claerhout 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."

         During 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.

         The 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.

         DID THE DISTRICT COURT ERR BY ALLOWING THE STATE TO ADMIT CLAERHOUT'S PRIOR DUI DIVERSION AGREEMENT?

         Claerhout 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 disagree.

          Applicable Law

         K.S.A. 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.

         When 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 review:

"• 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).

         We 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 standard.'").

         Accordingly, 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).

         Additional Facts

         In 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 panel.

          Before 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, stating:

"[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 evidence."

         At 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.

         The 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].

         Claerhout 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.).

         Claerhout 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).

         Relevancy

         The 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.

          In 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.

         We find 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 ...


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