Evidence of a prior diversion agreement for driving while
intoxicated may be relevant to establishing that a defendant
was on notice that driving while intoxicated is dangerous.
admissibility of evidence under K.S.A. 60-455 is subject to
harmless error analysis on appeal.
is not necessary that an expert witness demonstrate expertise
in every theory, principle, or scientific discipline
underlying the knowledge, skill, experience, training, or
education that may qualify an expert witness to give
Voluntary intoxication is not a defense to reckless
from Johnson District Court; Sara Welch, judge.
of the judgment of the Court of Appeals in 54 Kan.App.2d 742,
406 P.3d 380 (2017).
Carver-Allmond, of Capital Appellate Defender Office, argued
the cause and was on the brief for appellant.
Kendall S. Kaut, assistant district attorney, argued the
cause, and Shawn E. Minihan, assistant district attorney,
Stephen M. Howe, district attorney, and Derek Schmidt,
attorney general, were on the brief for appellee.
while intoxicated, Jeremy M. Claerhout caused the death of
another driver in a rear-end collision. He was convicted of
reckless driving and second-degree murder for unintentional
but reckless homicide. A divided panel of the Court of
Appeals affirmed the conviction, and this court granted
review on all issues for which review was sought.
facts underlying the legal issues in this case are
afternoon and evening of January 11, 2015, Claerhout and two
friends visited several bars in Olathe, Kansas. All three men
consumed beers and cocktails at each of the bars, and, based
on his own recollections and the testimony of bartenders, it
is estimated that Claerhout consumed approximately five
12-ounce beers, four 24-ounce beers, one 32-ounce beer, and
one or two vodka cocktails that afternoon and evening.
about an hour at the third bar, the three men got into
Claerhout's black Ford F-150 pickup truck and headed back
toward a bar they had visited earlier. Claerhout was driving.
time later, a witness standing outside her place of
employment saw a white car drive by; a few seconds later she
saw a black Ford truck go by at a high rate of speed, its
engine revving and the tires spraying water in the rain. Ten
to 15 seconds afterwards, she heard a loud impact sound,
which prompted her to call 911. Another witness, who was
stopped at an intersection, saw a white Mazda propelled past
the intersection at approximately 90 miles per hour out onto
the right side of the grassy shoulder, hit and break a cable
pole, proceed at least another 100 yards, and come to a stop
upon colliding with an iron fence on the other side of the
street. She saw a black pickup truck approaching from behind
and at the same speed as the Mazda; it then slowed to a stop.
She also called 911.
and paramedics found the Mazda smashed into a wrought iron
fence. The driver was wearing his seatbelt, and the airbags
had deployed. The driver's seat was broken off its track
and had slid backwards, and the driver was unconscious, on
the dashboard and facing the roof.
front of the truck was damaged, and a piece from the rear end
of the Mazda was stuck in the front end of the truck. The
three occupants of the truck all told police that they did
not know what had happened. Claerhout had bloodshot, watery
eyes and the odor of alcohol on his breath, and he was
slurring his words. He was smoking a freshly lit cigarette,
which officers asked him to extinguish. He put out the
cigarette but then lit another one and continued to smoke it
after being asked to put it out. He said he had no tests on
him, which he failed. He was arrested and taken to a police
station, where an Intoxilyzer 8000 breath test was
administered at 11:30 that night. The breath sample indicated
a blood alcohol content of .211, more than twice the legal
limit of .08.
accident took place in a mixed residential and office area
where the speed limit was 40 miles per hour. Based on tracks
on the grass and the roadway as well as damage to objects
along the way, Officer John Moncayo reconstructed what
happened before and after the collision. There was no braking
by either vehicle before the collision. The truck struck the
Mazda at a slight angle on the rear passenger side,
propelling the Mazda onto the grass, where it struck and
sheared off a medium-sized tree at its base. The car
continued forward and struck a utility pole, breaking it in
half and leaving the top half of the pole suspended by the
cable line. The car then swerved back onto the road, crossed
the center line, struck the curb, went over a small hill, and
stopped when it struck a wrought iron fence. In all, the
Mazda traveled some 848 feet after the impact.
driver, Christopher Willdermood, was taken to a nearby
hospital, where imaging showed significant bleeding in the
back of his brain. He was declared brain-dead on February 14,
2015. Blood analyses showed no signs of narcotics or alcohol
in his body. The cause of death was listed as complications
from a blunt injury to the head.
State charged Claerhout with second-degree murder for
unintentional but reckless homicide or, in the alternative,
involuntary manslaughter while driving under the influence of
alcohol, and an additional count of reckless driving. The
defense theory at trial was that Claerhout was highly
intoxicated and incapable of safely driving at the time of
the accident, and he therefore was guilty of involuntary
manslaughter but not guilty of second-degree murder.
jury entered a verdict of guilty on the count of
second-degree murder, guilty on the count of involuntary
manslaughter while driving under the influence of alcohol,
and guilty of the count of reckless driving. Because the jury
found Claerhout guilty of both alternative homicide charges,
the trial court vacated the conviction on the count of
involuntary manslaughter while driving under the influence.
The court sentenced him to a standard term of 117 months for
second-degree murder and a concurrent 30-day sentence for
of the Court of Appeals affirmed the conviction, with one
judge dissenting. State v. Claerhout, 54 Kan.App.2d
742, 406 P.3d 380 (2017) This court granted review on all
issues raised in the petition for review.
of Prior Diversion Agreement
2010, Claerhout entered into a diversion agreement subsequent
to an arrest for driving while intoxicated. According to the
statements of counsel at a motion to suppress, the arrest was
made after a stop for a missing tail light; there was no
indication of dangerous driving and no accident was involved.
At trial, the State was allowed to introduce the diversion
agreement, without explanation, for the purpose under K.S.A.
2016 Supp. 60-455(b) of proving knowledge that driving while
intoxicated is dangerous. Claerhout argues that ...