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State v. Warnke

Court of Appeals of Kansas

May 3, 2019

State of Kansas, Appellee,
Bridgette Marie Warnke, Appellant.


         1. When 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 witness credibility.

         2. A 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.

         3. It 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.

         4. 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.

         5. 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.

         6. 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).

         7. To 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.

          Appeal from Dickinson District Court; Benjamin J. Sexton, judge.

          Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.

          Daryl E. Hawkins, assistant county attorney, Andrea Purvis, county attorney, and Derek Schmidt, attorney general, for appellee.

          Before Arnold-Burger, C.J., Pierron, J., and McAnany, S.J.

          McAnany, S.J.

         On a 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 killed.

         While 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 Supp. 21-5413(b)(2).

         The 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.


         The testimony and documentary evidence educed at trial establish the following.

         Micah 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 Enterprise.

         Both 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.

         While 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.

         Vance 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.

         According 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.

         At the 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.

         When 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.

         Warnke's 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.

         As 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."

         Witness 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?
"[Riffel:] Yes."

         When 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."

         When Warnke first talked to Riffel he was on the phone. Warnke told Riffel she thought she was okay but was ...

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