State v. Darrow

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 109,397

STATE OF KANSAS,
Appellee,

v.

ERIN KRISTENA DARROW,
Appellant.

SYLLABUS BY THE COURT

1.
Under the driving under the influence (DUI) statute, K.S.A. 2010 Supp. 8-1567,
the term "operate" is synonymous with "drive," which requires some movement of the
vehicle. Consequently, an "attempt to operate" under the DUI statute means an attempt to
move the vehicle. The taking of actual physical control of a vehicle, without an attempt to
move the vehicle, is insufficient to meet the attempt to operate element of DUI.

2.
When presented with stipulated facts, a court cannot ignore the circumstantial
evidence presented in the stipulations because, if such evidence provides a basis from
which the factfinder may reasonably infer the existence of the fact in issue, that
circumstantial evidence can support a guilty verdict. In other words, a court must
consider the stipulated context in which the stipulated facts occurred.

3.
The probative values of direct and circumstantial evidence are intrinsically similar,
and there is no logically sound reason for drawing a distinction as to the weight to be
assigned to each. Consequently, like with direct evidence, an appellate court does not
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reweigh the circumstantial evidence supporting a conviction against the circumstantial
evidence supporting a not-guilty verdict. Instead, the appellate court's function is to
determine if the direct and circumstantial evidence, viewed in a light most favorable to
the State, could have reasonably supported a rational factfinder's guilty verdict.

Review of the judgment of the Court of Appeals in an unpublished opinion filed May 9, 2014.
Appeal from Johnson District Court; THOMAS H. BORNHOLDT, judge. Opinion filed July 1, 2016.
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is
affirmed.

Michelle A. Davis, of Kansas Appellate Defender Office, was on the briefs for appellant.

Steven J. Obermeier, senior deputy district attorney, Betsey L. Lasister, legal intern, Stephen M.
Howe, district attorney, and Derek Schmidt, attorney general, were on the briefs for appellee.

The opinion of the court was delivered by

JOHNSON, J.: Erin Darrow petitions this court for review of the Court of Appeals'
decision in State v. Darrow, No. 109,397, 2014 WL 1887629 (Kan. App. 2014)
(unpublished opinion), affirming her driving under the influence (DUI) conviction, third
offense. The district court found Darrow guilty on stipulated facts. Darrow argues the
stipulated facts were insufficient to prove she operated or attempted to operate a vehicle.
We disagree, finding that the stipulated facts presented to us by the parties, together with
the reasonable inferences to be drawn from those facts, when viewed in the light most
favorable to the State, are sufficient to support the conviction.

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 FACTUAL AND PROCEDURAL OVERVIEW

Darrow was convicted of DUI, third offense, and refusing a preliminary breath test
(PBT) after a bench trial on stipulated facts. But this particular case presents an unusual
circumstance with respect to the stipulated facts.

Apparently, the presiding judge made inquiries beyond the written stipulation of
facts presented at the bench trial, as evidenced by a stipulation on appeal. But,
unfortunately, the record of the bench trial could not be transcribed because of an
electronic recording malfunction and any discussion of the facts beyond the written
stipulation in the record was lost. Consequently, the Court of Appeals granted defense
counsel's motion to stay briefing in order to prepare and file an agreed statement as to the
substance of the bench trial hearing. The parties then signed and filed a stipulation of
facts for appeal. The written stipulation of facts submitted at the bench trial and the
written stipulation of facts submitted in lieu of the trial transcript for appellate purposes
are overlapping, but not identical. The propriety of this course of action was not
challenged in the petition for review, and the parties' briefs cite to both sets of stipulated
facts. Therefore, we will consider both factual stipulations.

The parties stipulated that on December 4, 2010, after a night of drinking, one of
Darrow's friends commenced to drive Darrow and another person home. En route,
Darrow was acting "a little belligerent," so the driver parked the car at the end of a dead-
end street with the front of the vehicle against a chain-link fence. The driver and other
passenger left, leaving Darrow alone in the vehicle. At some point after being abandoned
by her friends, Darrow moved to the driver's seat, where she was later discovered asleep
with the car running.

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 The next morning at 7:47 a.m., Officer S. Parker was dispatched to Darrow's
location on report of an accident. When Parker approached the car, it was running, as
evidenced by exhaust coming from the car's mufflers. Parker spoke with the reporting
party, who explained that when she approached the car, she saw the sole occupant, later
identified as Darrow, "passed out" behind the wheel. Parker made contact with Darrow,
who remained asleep behind the wheel. Parker was able to wake Darrow and asked her to
turn off the car. Darrow "started to reach down and fumble[] with the gear shift, but the
car stayed in park."

Darrow opened the door and got out of the car. Parker noted Darrow smelled of
alcohol, her speech was slurred, and her balance was unsteady. After Darrow failed field
sobriety tests and exhibited other clues of impairment, Parker placed her under arrest. At
the police station, Darrow refused to take a breath test. Based on his training and
experience, Parker determined Darrow was operating a motor vehicle while she was
under the influence of alcohol to a degree that rendered her incapable of safely driving.

In the stipulation of facts, the parties narrowed the issues before the district court.
The State conceded that Darrow did not drive to the location where the police officer
found her. In turn, Darrow conceded that if the district court determined she was
operating or attempting to operate her vehicle, she was under the influence of alcohol to a
degree that rendered her incapable of safely operating the vehicle. The parties also
stipulated that Darrow had two prior DUI convictions. And finally, the parties agreed that
the ultimate issue should be: "Is fumbling with [the] gear shift while [the] vehicle is
running, operating or attempting to operate a motor vehicle?"

The district court found Darrow guilty of DUI and refusing a PBT. Darrow timely
appealed from the district court's judgment, challenging the sufficiency of the evidence
supporting her DUI conviction. The Court of Appeals held that under the totality of the
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evidence presented in the stipulated facts, Darrow was guilty of DUI when she fumbled
with the car's gear shift. 2014 WL 1887629, at *4.

DEFINITION OF ATTEMPT TO OPERATE

Before determining whether the State presented sufficient evidence to prove that
the defendant violated a criminal statute, one must know the specific acts that are
proscribed by the statutorily defined crime. Here, the Court of Appeals panel identified
the relevant part of the applicable statute, K.S.A. 2010 Supp. 8-1567(a)(3), to be: "No
person shall operate or attempt to operate any vehicle within this state while: . . . under
the influence of alcohol to a degree that renders the person incapable of safely driving a
vehicle." 2014 WL 1887629, at *2. The panel then determined that the proscribed act of
attempting to operate a vehicle was satisfied if the defendant had "actual physical
control" of the vehicle. 2014 WL 1887629, at *3. We disagree.

Standard of Review

Interpretation of a statute is a question of law over which an appellate court has
unlimited review. State v. Keel, 302 Kan. 560, 571, 357 P.3d 251 (2015).

Analysis

The Court of Appeals correctly recited that in State v. Kendall, 274 Kan. 1003,
1009, 58 P.3d 660 (2002), this court held that the terms "drive" and "operate" are
synonymous. But then the panel took a wrong turn by importing a portion of the
definition of "drive" from the Uniform Commercial Driver's License Act (UCDLA). That
unrelated act defines "drive" as "to drive, operate or be in physical control of a motor
vehicle . . . ." K.S.A. 2010 Supp. 8-2,128. Darrow, 2014 WL 1887629, at *2. The panel

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then proceeded to decide the case on the basis of "whether Darrow was in 'actual physical
control' of the vehicle when she fumbled with the gear shift." 2014 WL 1887629, at *3.

Pointedly, however, the panel failed to acknowledge that Kendall rejected the
State's attempt to use the K.S.A. 1999 Supp. 8-2,128(j) definition of "drive" to define
"operate or attempt to operate" in the DUI statute. After opining that the definitions in the
Commercial Driver's License Act apply only to that act, Kendall specifically and
unequivocally stated: "K.S.A. 1999 Supp. 8-2,128 makes no difference here." 274 Kan.
at 1009.

Instead, Kendall adhered to the holding in State v. Fish, 228 Kan. 204, 612 P.2d
180 (1980), that said "'operate' as used in [the DUI] statute should be construed to mean
'drive,' thus requiring some evidence, either direct or circumstantial, that the defendant
drove the automobile while intoxicated in order for the defendant to be convicted [of
DUI].'" Kendall, 274 Kan. at 1009 (quoting Fish, 228 Kan. at 210).

Kendall went on to say that the legislature's post-Fish amendment to K.S.A. 8-
1567, prohibiting the operation or attempt to operate under the influence, was designed
to encompass "those who merely tried but failed" to drive the vehicle. 274 Kan. at 1009.
Therefore, "[m]ovement of the vehicle is not required in order to convict a defendant of
DUI under the theory that defendant attempted to operate the vehicle." 274 Kan. at 1009-
10. We reinforced that notion in State v. Ahrens, 296 Kan. 151, 160, 290 P.3d 629
(2012): "[R]ather than requiring the State to prove that a defendant actually drove a
vehicle while under the influence, the legislature employed the phrase 'operate or attempt
to operate' in order to encompass a broader set of factual circumstances that could
establish the driving element."

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 Importantly, however, Kendall declared that "nothing in Fish or other pertinent
Kansas law says that the definition of 'driving' does not require movement of the
vehicle." 274 Kan. at 1010. In other words, to "operate" means to "drive"; "driving"
requires movement of the vehicle; therefore, "operating" requires movement of the
vehicle, and an "attempt to operate" means to attempt to move the vehicle. Taking actual
physical control of the vehicle is insufficient to attempt to operate that vehicle without an
attempt to make it move. Accordingly, that part of the panel's decision holding that taking
actual physical control of a vehicle satisfies the operate or attempt to operate element of
DUI is overruled.

SUFFICIENCY OF THE EVIDENCE

The evidentiary question, then, is whether the State presented sufficient evidence
through the stipulations of facts to prove that Darrow attempted to move the vehicle.

Standard of Review

The State argues that the Court of Appeals incorrectly applied a de novo standard
of review to Darrow's sufficiency of the evidence claim. The ordinary standard of review
for sufficiency of the evidence issues is "whether, after reviewing all the evidence in the
light most favorable to the prosecution, the appellate court is convinced that a rational
factfinder could have found the defendant guilty beyond a reasonable doubt." State v.
Ward, 292 Kan. 541, 581, 256 P.3d 801 (2011), rev. denied 132 S. Ct. 1594 (2012). But
as Darrow argues and the Court of Appeals recognized, when a case is decided on
stipulated facts, an appellate court can conduct a de novo review. Darrow, 2014 WL
1887629, at *1. See State v. Dull, 298 Kan. 832, 840, 317 P.3d 104 (2014) (citing State v.
McCammon, 45 Kan. App. 2d 482, 488, 250 P.3d 838, rev. denied 292 Kan. 968 [2011]).
Nevertheless, even when an appellate court states it is exercising de novo review of
stipulated facts, the facts must be viewed in the light most favorable to the State when
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testing their sufficiency. See McCammon, 45 Kan. App. 2d at 489-90 (reviewing the
stipulated facts and holding the "evidence, viewed in a light most favorable to the
prosecution, was legally sufficient"). Cf. Siruta v. Siruta, 301 Kan. 757, 761, 348 P.3d
549 (2015) ("We review the district court's denial of summary judgment de novo,
viewing the facts in the light most favorable to the party opposing summary judgment.").

Evidence that may be considered

In the district court, the parties argued for the narrow factual consideration of
whether simply fumbling with the gear shift while the vehicle is running, standing alone,
would be sufficient evidence of an attempt to operate the vehicle. On appeal, the State
contends that the court must view Darrow's actions in their entirety. The Court of
Appeals implicitly agreed by considering the totality of the evidence presented in the
stipulated facts. Darrow, 2014 WL 1887629, at *4.

We agree that all of the facts and circumstances, including the reasonable
inferences that can be drawn therefrom, must be considered. See State v. McBroom, 299
Kan. 731, 754, 325 P.3d 1174 (2014) (quoting State v. McCaslin, 291 Kan. 697, Syl. ¶ 9,
245 P.3d 1010 [2011]) (conviction can be based entirely on circumstantial evidence "'and
the inferences fairly deducible therefrom'"). The parties cannot cherry-pick the facts they
want tested for sufficiency, but rather, an appellate court must review "all the evidence in
a light most favorable to the prosecution." (Emphasis added.) State v. Williams, 299 Kan.
509, 525, 324 P.3d 1078 (2014). We cannot ignore the circumstantial evidence presented
in the stipulations because, if such evidence provides a basis from which the factfinder
may reasonably infer the existence of the fact in issue, that evidence can support a guilty
verdict. See State v. Brooks, 298 Kan. 672, 689, 317 P.3d 54 (2014). We often recite that
a conviction of even the gravest offense can be based entirely on circumstantial evidence.
298 Kan. at 689. See also State v. Perkins, 296 Kan. 162, 167, 290 P.3d 636 (2012) ("[A]

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DUI conviction, like any conviction, can be supported by direct or circumstantial
evidence."). In short, the stipulated facts must include the stipulated context in which
they occurred.

Consequently, we first take a look at the stipulations. The original trial stipulation
recites as follows:

"1. On December 5, 2010, at 7:47 AM Overland Park Officer S. Parker was
dispatched to an accident, at the dead end street of W. 110th and Gillette, Overland Park,
Johnson County, Kansas.
"2. Officer Parker located the Silver convertible, with the front of the vehicle into
a chain link fence. Officer Parker observed the vehicle to be running because exhaust
smoke was coming from the mufflers.
"3. Officer Parker made contact with the reporting party, Patricia Eikenberry who
originally approached the vehicle and observed the sole occupant, later identified as Erin
K. Darrow (defendant herein) passed out behind the wheel.
"4. Officer Park made contact with the defendant, who was still asleep behind the
wheel. Once Officer Parker was able to arouse the defendant, she started to reach down
and fumbled with the gear shift, but the car stayed in park.
"5. Upon the defendant opening her door, Officer Parker detected an odor of
alcohol coming from defendant, her speech was slurred and balance was unsteady.
"6. Officer Parker had the defendant perform Standardized Field Sobriety Tests
(SFSTs) which after performed indicated impairment.
"7. After failing the SFSTs and exhibiting other clues of impairment, the
defendant was placed under arrest.
"8. At the station, the defendant was read the Implied Consent Advisory (DC70)
and asked to submit to a breath test. The defendant refused a breath test.
"9. Officer Parker determined based on his training and experience that
Defendant was operating a motor vehicle while she was under the influence of alcohol to
a degree that rendered her incapable of driving safely.
"10. The State will concede the defendant did not drive to the location where her
and her vehicle were initially found by Patricia Eikenberry.
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 "11. The Defendant will concede that if determined by this court she was
operating or attempting to operate her vehicle as observed by Patricia Eikenberry or
Officer Parker, she was indeed under the influence of alcohol to a degree that rendered
her incapable of safely driving a vehicle.
Records confirm Defendant has the following prior convictions:
1) A DUI that occurred in Merriam, Kansas on 12/6/01 and resulted in a
diversion on 8/21/03.
2) A DUI that occurred in Overland Park, Kansas on 5/10/01 and resulted in a
conviction on 3/26/03."

The agreed upon stipulation of facts for appeal recites as follows:

"1. On November 27, 2012, Judge Bornholdt found Ms. Erin Darrow guilty of DUI
based on the stipulation of facts presented by the State and Defense.
"2. The stipulation of facts presented were agreed upon by Defense Attorney Edward
Pitluck and Assistant District Attorney Josh Brunkhorst.
"3. The stipulated facts presented to the Judge described the following events:
a. Ms. Darrow was found asleep in her car by nearby homeowner; the
car was on but in park.
b. The car was parked against a chain link fence; the car was actually
touching the fence.
c. A police office was called and knocked on Ms. Darrow's window.
d. The officer asked if she was alright and asked her to turn off the car.
e. Ms. Darrow, in a daze, fumbled with the gear shift and eventually
was able to open the car and get out.
f. Earlier that night Ms. Darrow was drinking with some friends.
g. One of these friends was driving Ms. Darrow and another friend
home that night after drinking.
h. Ms. Darrow was acting a little belligerent so the driver parked the car
just as it was found by the police officer and left with the friend,
leaving Ms. Darrow alone in the car.

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 i. Ms. Darrow switched to the driver's seat and fell asleep with the car
on.
"4. The Judge had asked for clarification after reading the facts and both the State
and Defense agreed that the only issue was whether that brief moment of fumbling with
the gear shift amounted to a DUI.
"5. The Judge then found that there was evidence to support the charge and found
her guilty."

Are the facts, circumstances, and inferences sufficient?

The original stipulation includes the circumstances that Darrow was observed
passed out behind the wheel, i.e., in the driver's seat of the vehicle; that the vehicle
engine was running; and that upon waking Darrow reached down and fumbled with the
gear shift lever, but the transmission remained in park. The appeal stipulation tells us a
bit more. Upon awakening Darrow, the police officer asked Darrow to turn off the car
engine. Darrow was in a daze when she fumbled with the gear shift lever. The parties also
stipulated that, after being abandoned by her friends, Darrow switched to the driver's seat
and fell asleep with the engine running. Pointedly, we do not know whether Darrow
started the engine or it was left running by her "friends" when they jumped ship.

Darrow argues that the stipulated facts do not prove attempted operation, i.e., do
not prove that she tried to move the car. Rather, she claims that those facts are consistent
with her suggestion that she was simply sleeping in a running car and moved to the
driver's seat to smoke a cigarette because the passenger side window was broken. One
might also view Darrow's fumbling with the gear shift lever upon being awakened as a
dazed person's attempt to comply with the officer's command to turn off the engine,
rather than an attempt to get the vehicle moving.

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 But we do not view the evidence in the light most favorable to the defendant's
theory of what might have happened—the State gets that advantage after a factfinder
convicts the defendant. From that vantage point, the State can point to the following
facts: the vehicle's engine was running, i.e., the vehicle was ready to move upon the
engagement of the transmission; Darrow had previously moved into the driver's seat, i.e.,
she had intentionally placed herself in a position to manipulate the controls necessary to
move the vehicle and may have been the one to start the engine; and, upon being
awakened, Darrow reached down and fumbled with the gear shift lever, i.e., she made an
overt act toward engaging the transmission, which was arguably the last act needed to
legally "drive" the vehicle.

The State calls our attention to the facts found sufficient in Kendall. There, the
police found Kendall's truck in the middle of a residential street, with the engine running,
lights on, and transmission in neutral. Kendall was slumped over the steering wheel,
wearing his seat belt, with his foot on the brake, but apparently asleep. When he awoke,
he told the officers that he had not been driving and claimed that someone else had driven
the vehicle to the location where he was discovered. This court found sufficient evidence
to support an attempt to operate.

Other cases have looked at similar scenarios. For instance, in State v. Sprague, No.
105,827, 2012 WL 3822625 (Kan. App. 2012) (unpublished opinion), rev. denied 297
Kan. 1255 (2013), a police officer found a sleeping Sprague slumped over the steering
wheel in the driver's seat of a truck parked on the side of the street. The truck's engine
was running, and the radio was playing loudly. Sprague testified that his cousin had
driven him home from a local bar and he "passed out" in the passenger seat on the way
home. He could not recall how he ended up in the driver's seat with the engine running.
In arguing the State failed to prove operation, Sprague conceded the facts proved an
attempt to operate a vehicle, and the panel noted: "After all, [the vehicle] was found with
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him in the driver's seat and the engine running." 2012 WL 3822625, at *7. See also State
v. Adame, 45 Kan. App. 2d 1124, 1129, 257 P.3d 1266 (holding sufficient evidence
supported attempt to operate by showing Adame sat on the driver's side of vehicle with
key in ignition trying to start vehicle), rev. denied 293 Kan. 1108 (2011); State v.
Stottlemire, No. 105,284, 2011 WL 4357860, at *3 (Kan. App. 2011) (unpublished
opinion) (holding sufficient evidence supported attempt to operate because the deputy
saw Stottlemire in driver's seat of parked SUV with key in the ignition and motor running
and Stottlemire admitted she placed the key in the ignition and started the vehicle); cf. 1
Erwin, Defense of Drunk Driving Cases § 1.02(1)(c) (2016) ("The fact that the engine is
running is almost always sufficient to constitute operation, even in a case in which the
defendant is found sleeping or passed out while sitting behind the wheel of the vehicle.").

Certainly, as the Court of Appeals opined, the facts here present a close case. But
we are not afforded the luxury of deciding this case on the basis of the inferences we
would have found most persuasive as a factfinder. As with direct evidence, it is not the
function of this court to reweigh the circumstantial evidence supporting Darrow's
conviction versus the circumstantial evidence supporting a not-guilty verdict. See State v.
Scott, 271 Kan. 103, 107, 21 P.3d 516 (2001) ("The probative values of direct and
circumstantial evidence are intrinsically similar, and there is no logically sound reason
for drawing a distinction as to the weight to be assigned to each."). Instead, our function
is to determine if the direct and circumstantial evidence, viewed in a light most favorable
to the State, could have reasonably supported a rational factfinder's guilty verdict. Here,
we are compelled to sustain the integrity of the factfinder's determination and hold the
evidence was legally sufficient to support the verdict.

Affirmed.

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 BEIER, J., not participating.
MICHAEL J. MALONE, Senior Judge, assigned.1

1
REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 109,397
vice Justice Beier under the authority vested in the Supreme Court by K.S.A. 20-2616.

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