BY THE COURT
seven-factor test for authenticating an audio recording
outlined in State v. Williams, 235 Kan. 485, 681
P.2d 660 (1984), is no longer controlling in Kansas. Audio
recordings qualify as writings under the Kansas Rules of
Evidence, K.S.A. 60-401 et seq.
Under the rules of evidence, K.S.A. 60-401 et seq., the
authentication requirement for a writing is satisfied by
evidence sufficient to support a finding that the matter in
question is what its proponent claims. The burden of
authentication is minimal or slight, and there is no precise
formula for district judges to determine authenticity.
Indirect or circumstantial evidence can suffice. A proponent
need only proffer evidence upon which a reasonable juror
could conclude that an audio recording is what the proponent
represents it to be. Such evidence may include the content of
the recordings. Discrepancies and other conflicting evidence
go to the weight, not the admissibility, of the recordings.
the record in this case, the district judge did not abuse his
discretion in admitting jail telephone call recordings into
phrase "moving violations" in K.S.A. 2015 Supp.
8-1568(b)(1)(E), Kansas' fleeing and eluding statute, is
not unconstitutionally vague.
from Shawnee District Court; Mark S. Braun, judge.
A. Kaul, of Kansas Appellate Defender Office, argued the
cause, and was on the brief for appellant.
J. Obermeier, assistant solicitor general, argued the cause,
and Derek Schmidt, attorney general, was with him on the
brief for appellee.
Norman Jenkins led police on two separate vehicle chases in
one night. The second chase ended in a fatal crash. A jury
convicted Jenkins of first-degree felony murder, two counts
of aggravated battery, two counts of felony fleeing and
eluding police, one count of theft, one count of driving
without tail lamps, and one count of driving while suspended.
directly appeals his convictions to this court, raising two
arguments. First, he argues that the district court judge
erred by admitting as evidence recorded jail calls made using
Jenkins' assigned personal identification number. We hold
that the calls were properly admitted.
Jenkins challenges the constitutionality of one of the
options within a means of the felony fleeing and eluding
statute. We reject his contention that the provision is
and Procedural History
the early morning hours of February 4, 2016, Topeka-area law
enforcement participated in two different vehicle pursuits.
first pursuit involved a minivan and began shortly before 3
a.m. The van drove eastbound on Interstate 70 from Topeka and
did not pull over, despite a law enforcement officer's
use of lights and sirens. After the van accelerated to 90
miles per hour, the pursuit was called off. A different
officer reinitiated pursuit after he observed the van make a
U-turn at the I-70 toll plaza parking lot and return
westbound toward Topeka. During this pursuit, the van's
driver ran a red light, twice failed to signal before
exiting, and failed to stop at three stop signs. The pursuit
ended in North Topeka, where the van went off-road and
crashed. Law enforcement did not find the van's driver at
the scene of the crash but did find a female passenger in the
second chase was set in motion a little after 4 a.m., when
Craig Droge realized that someone had stolen his friend
Donella Davidson's pickup from outside his home in North
an hour later, Officer Kurtis VanDonge noticed a pickup
driving in North Topeka with nonoperational taillights. He
followed the pickup and activated his lights, then his siren,
and eventually his public announcement system. Despite this,
the pickup's driver did not pull over. VanDonge's
bodycam recorded the ensuing pursuit, which took a circuitous
route through North Topeka before crossing the Kansas Avenue
bridge into downtown Topeka.
this pursuit, the pickup's driver committed numerous
moving violations. He twice turned into an incorrect lane,
three times failed to maintain a single lane, drove on the
left side of a two-way street, three times failed to come to
a complete stop at a stop sign, and turned left through a red
light. The driver also maneuvered around at least one set of
stop sticks placed in the road by law enforcement. The
pursuit ended when the pickup ran a red light at the
intersection of Sixth Street and Topeka Boulevard and hit two
cars. The crash injured Danny Williams Jr. and Benjamin
Falley, the drivers of the two cars. It killed Mia Holden, a
passenger in Falley's car.
after the crash, police officers removed the driver and only
occupant from the pickup. This person was later identified as
defendant Jenkins. Jenkins was taken to the hospital, then
moved to the Shawnee County Jail.
State charged Jenkins with first-degree felony murder, felony
fleeing and eluding, theft, two counts of aggravated battery,
driving without taillights, and driving with a suspended
jail, Jenkins was assigned a unique personal identification
number (PIN) to be used to make outgoing calls on the
jail's Securus telephone system. Jenkins' PIN was
used to make six calls on February 5, 2016.
detective listened to recordings of these calls. There were
two primary speakers, one male and one female. The male
speaker on the calls discussed not only the pickup chase and
fatal crash, but also the earlier van chase. As a result, the
State charged Jenkins with a second count of felony fleeing
and eluding for the van chase.
trial multiple law enforcement officers detailed their
involvement with the chases and subsequent investigation.
Officers Josh Miller and Joshua Franco described their
pursuit of the van and the multiple moving violations they
witnessed. The State played VanDonge's bodycam footage of
the pursuit of the pickup while VanDonge narrated, explaining
each moving violation he witnessed as it appeared onscreen.
Matt Biltoft from the Shawnee County Department of
Corrections testified about the Securus software system. He
said that each inmate is assigned a unique PIN when admitted
to the jail. Inmates must use a PIN to make an outgoing call.
The Securus software system records each outgoing call.
Biltoft, as a Securus operator, can search the system using
an inmate's name or PIN and identify all outgoing calls
made with the inmate's PIN. When Biltoft searched the
Securus system for all calls made with Jenkins' assigned
PIN, he found six calls made using Jenkins' PIN on
February 5, 2016. He listened to the calls and noted that
"it was all similar information." Biltoft said that
he did not know Jenkins' voice from any previous
interactions and that he did not know who the other speakers
on the calls were.
State moved to introduce recordings of five calls into
evidence. Jenkins objected; he argued that the State failed
to sufficiently identify him as the male speaker on the
calls. The district judge ruled that the State sufficiently
established the identities of the speakers and overruled
Jenkins' objection. The district judge stated:
"[T]he circumstances and the nature of the recordings
themselves identifies the authenticity and the identity of
Mr. Jenkins speaking because this is the day after the
fatality crash and there are statements made by Mr. Jenkins
recognizing that he had been in that collision and that he
had killed a woman in that collision.
"So circumstantially, the odds that another person on
the 5th of February calls up his girlfriend and confesses to
being in a high-speed pursuit the night before in which a
woman was killed is highly unlikely to the point where
there's sufficient basis now for the Court to say this is
an authentic copy of those jail calls."
State published the calls during Detective Jesse Sherer's
testimony. Sherer said that during the six phone calls
Jenkins made to a woman referred to as "Connie,"
Jenkins "accurately speaks about the facts of both
chases that occurred in the morning of February 4th,
including the types of vehicles that were involved, the
general locations of where those chases occurred, how they
occurred," and even "mentions stealing a truck and
that it was involved in an accident at the location of the
Sixth and Topeka accident." Sherer also testified that
in one call Jenkins admitted fleeing on foot from the
location of the van crash. In addition, Sherer said,
according to Department of Motor Vehicle records,
Jenkins' driver's license was revoked at the time of
the two pursuits.
Ross Gustafson testified that the Vehicle Identification
Number on the pickup identified it as belonging to Davidson.
And the Shawnee County coroner testified that Holden died
from several lethal injuries caused by the crash.
did not put on any evidence.
district judge gave the jury two separate fleeing and eluding
instructions, one for each charge. In the first
instruction-pertaining to the pickup pursuit-the district
judge instructed the jury about four possible options within
a means by which Jenkins may have committed felony fleeing
and eluding: driving around a tire deflating device placed by
a police officer (K.S.A. 2015 Supp. 8-1568[b][B]);
engaging in reckless driving (K.S.A. 2015 Supp.
8-1568[b][C]); involvement in a motor vehicle accident
(K.S.A. 2015 Supp. 8-1568[b][D]); and committing five or
more moving violations (K.S.A. 2015 Supp. 8-1568[b][E]).
This instruction also defined "reckless driving."
In the second fleeing and eluding instruction-pertaining to
the van pursuit-the district judge listed only one option
within a means: committing five or more moving violations.
district judge also instructed the jury about the definition
of "moving violations," taking language from K.A.R.
92-52-9(a). The instruction said that ...