the sufficiency of the evidence is challenged in a criminal
case, the standard of review is whether, after reviewing all
the evidence in the light favoring the State, the appellate
court is convinced that a rational fact-finder could have
found the defendant guilty beyond a reasonable doubt. In
doing so, the reviewing court does not reweigh evidence,
resolve evidentiary conflicts, or make determinations of
conviction of reckless aggravated battery under K.S.A. 2018
Supp. 21-5413(b)(2) requires the State prove the defendant
acted recklessly. Under K.S.A. 2018 Supp. 21-5202(j), a
defendant acts recklessly when the defendant consciously
disregards a substantial and unjustifiable risk, and the
defendant's act of disregarding the risk must be a
gross deviation from the standard of care a
reasonable person would use under the same circumstances.
takes proof of more egregious conduct to convict a defendant
of reckless aggravated battery than necessary to convict a
defendant of vehicular homicide. Our vehicular homicide
statute, K.S.A. 2018 Supp. 21-5406, unlike our reckless
aggravated battery statute, K.S.A. 2018 Supp. 21-5413(b)(2),
does not require proof of reckless misconduct. Conduct
characterized as something between ordinary negligence and
gross negligence will suffice for a vehicular homicide
conviction. Further, vehicular homicide is predicated on
conduct which constitutes a material deviation from
the standard of care, which a reasonable person would observe
under the same circumstances, while reckless aggravated
battery is predicated on conduct which is a gross
deviation from the standard of care.
Speaking on a cell phone while driving is not a violation of
our traffic laws. Distracted driving caused by speaking on a
cell phone may constitute negligence but in and of itself it
does not constitute a gross deviation from the
standard of care so as to support a criminal conviction for
reckless aggravated battery. Nor does such conduct, without
more egregious conduct or dangerous circumstances, exhibit a
motorist's conscious disregard of a substantial risk that
the motorist will collide with some vehicle ahead so as to
support a criminal conviction.
Conduct necessary to support a conviction of criminal damage
to property under K.S.A. 2018 Supp. 21-5813(a)(1), (c)(3), a
class B misdemeanor, includes "[k]nowingly damaging,
destroying, . . . or substantially impairing the use" of
another's property without consent.
Under K.S.A. 2018 Supp. 21-5202(b), the culpable mental
states are listed from the highest to the lowest relative
degree as follows: (1) intentionally, (2) knowingly, and (3)
recklessly. Proof that a person acted knowingly also is proof
that a person acted recklessly, a lower degree of
culpability. But it does not work in the other direction.
Proof of reckless conduct does not also constitute proof that
a person acted knowingly. K.S.A. 2018 Supp. 21-5202(c).
support a finding that a person acted knowingly, K.S.A. 2018
Supp. 21-5202(i) requires, among other things, a showing that
the person is aware that his or her conduct is reasonably
certain to cause the result that followed.
from Dickinson District Court; Benjamin J. Sexton, judge.
Randall L. Hodgkinson, of Kansas Appellate Defender Office,
E. Hawkins, assistant county attorney, Andrea Purvis, county
attorney, and Derek Schmidt, attorney general, for appellee.
Arnold-Burger, C.J., Pierron, J., and McAnany, S.J.
summer day on a straight and level highway in Dickinson
County, the 21st century collided with the 19th century with
near-tragic consequences. An automobile driven by Bridgette
Warnke collided with a horse-drawn open two-wheeled
buggy-sometimes referred to as a forecart-with an empty hay
trailer attached. The buggy was occupied by Malachi and Micah
Hamilton, ages 13 and 15, who are members of the Amish
Mennonite community. The collision resulted in the boys being
thrown from the buggy and injured and one of the horses being
it is apparent that the collision was caused by Warnke's
negligence, we conclude that her conduct was not criminal in
nature. Accordingly, we reverse Warnke's criminal
convictions for two counts of felony reckless aggravated
battery and for misdemeanor criminal damage to property that
arose from this unfortunate incident. We dismiss as moot
Warnke's constitutional claim with respect to K.S.A. 2018
accident resulted in Warnke being charged with two counts of
felony reckless aggravated battery, misdemeanor criminal
damage to property, and two traffic infractions: following
another vehicle too closely and using an electronic device
while operating a motor vehicle. The traffic infraction
charges were tried to the court. The three remaining charges
were tried to a jury. Warnke was convicted on all charges.
The district court sentenced her to 16 months in prison on
the felony reckless aggravated battery convictions and a
consecutive 6-month jail sentence on her misdemeanor criminal
damage to property conviction, but granted her probation. As
a condition of probation, the district court ordered Warnke
to serve 15 consecutive weekends in jail.
testimony and documentary evidence educed at trial establish
and Malachi Hamilton had used a borrowed trailer to haul hay
to their family farm. At the time of the accident they were
on their way from home to return the hay trailer. They rode
on a two-wheeled buggy with a team of two horses. The empty
hay trailer was attached to the buggy. There was a 14-inch
slow-moving vehicle emblem attached to the back of the
trailer. Their route took them on Highway K-43 north of
boys testified that as they traveled north on K-43 their
buggy and trailer never left the asphalt roadway and did not
cross over the white fog line. Micah explained that they stay
on the highway not only for safety, but also because the
horses preferred it-the hard asphalt provided better footing
for the horses and made pulling the buggy and trailer easier.
Malachi was driving the team, Micah heard something behind
them and turned to see a quickly approaching car. Micah did
not see the car slow down, and there was no oncoming
southbound traffic on K-43. He did not have a chance to warn
Malachi about the approaching car before it struck the hay
trailer, throwing both boys into the ditch beside the road.
Micah remembered hitting his head but then lost consciousness
until he later found himself in the ditch. Meanwhile, Malachi
had broken his leg in the collision. One of the horses was
dead, and the other had run off.
Riffel witnessed the accident. He was driving his pickup
truck home from work and traveling north on Highway 43 at the
speed limit of 55 miles per hour. He was following
Warnke's vehicle, which he estimated was about an eighth
of a mile ahead of him. He also saw a horse-drawn carriage in
front of Warnke, which was traveling in the same lane of
traffic and was not off the road or on the shoulder. Riffel
did not see any oncoming southbound traffic. Warnke's
vehicle and "the horse drawn carriage in front of
her" were the only traffic he observed on the road that
day. When Warnke collided with the trailer, Riffel saw a dark
object fly off to the left. He later determined this was one
of the horses that had been pulling the buggy and trailer. He
saw "another couple objects fly off to the right."
Those were the two boys.
to Warnke, on the day of the accident, a Friday, she had been
working at the elementary school in Enterprise. She had left
her daughter with Christina Bartlett that morning because
Warnke's daughter did not have Head Start preschool on
Fridays. Warnke parked that day at the Methodist church
parking lot across the street from the school.
end of the work day, she checked her cell phone and saw a
text from Christina who asked Warnke when she was going to
pick up her child. While sitting in her car in the church
parking lot, Warnke texted to Christina: "Leaving
Enterprise now." Warnke then pulled out of the church
parking lot and headed for home.
Warnke reached the stop sign, "which is right before you
turn onto 43," she received another text message from
Christina asking whether Warnke was bringing Christina's
child home with her. Warnke called Christina and told her
that her daughter had taken the bus home. That call lasted
for 46 seconds. Warnke claimed she made this call while she
was stopped at the stop sign and before turning onto K-43.
call to Christina was at 3:31 p.m. Christina attempted to
call Warnke back at 3:39 p.m. Warnke did not pick up that
call because the accident had happened- sometime between 3:31
and 3:39 p.m.
Warnke turned onto Highway K-43 the speed limit was 30 miles
per hour. Once she crossed a bridge the speed limit increased
to 55 miles per hour. As she proceeded north on K-43
Warnke's speed was "55, maybe 57." She
testified: "I seen the trailer and I went to go around
it. There was a truck coming in the other lane, so I pulled
back over, I hit my brakes. I realized the horse was coming
back on the road, because they were off to the shoulder, and
the impact happened."
Riffel pulled up to the accident scene. He testified to the
following at trial:
"[Prosecutor:] Okay. Did you park before you called 911?
"[Riffel:] Um, it was kind of a simultaneous deal. I
just remember stopping and calling right away."
"[Prosecutor:] Okay, Um, when you called, were you still
in your car?
pressed further, Riffel testified it was possible that he
called 911 approximately two minutes after he stopped at the
scene, maybe a minute longer or a minute shorter. But on
cross-examination he stated that he did not delay in calling
911: "As soon as I got to the scene I called."
Warnke first talked to Riffel he was on the phone. Warnke
told Riffel she thought she was okay but was ...