State v. Berkstresser

500 P.3d 574 (Table)

STATE of Kansas, Appellee,

v.Ryan M. BERKSTRESSER, Appellant.

No. 122,557

Court of Appeals of Kansas.

Opinion filed December 23, 2021.

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

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

Before Gardner, P.J., Schroeder and Cline, JJ.

MEMORANDUM OPINION

Per Curiam:

Ryan M. Berkstresser timely appeals from his conviction and sentence for felony fleeing or attempting to elude a police officer. Berkstresser claims the district court committed clear error by not instructing the jury on the lesser included charge of misdemeanor fleeing or attempting to elude a police officer. Upon review of the record, we agree with Berkstresser, finding the lesser included crime was both factually and legally appropriate. We reverse and remand for a new trial.

FACTS

In February 2018, Haysville Police Sergeant Randy Nowak was on patrol when he noticed a 1997 white Mitsubishi 3000 GT following too closely to an SUV. Nowak checked the vehicle's tag, which came back to a Ford Econoline van. Nowak activated the overhead emergency lights and siren on his patrol vehicle to stop the Mitsubishi, but the driver, Berkstresser, accelerated the vehicle rather than pulling over.

The State charged Berkstresser with: (1) Fleeing or attempting to elude a police officer by committing five or more moving violations in violation of K.S.A. 2017 Supp. 8-1568(b)(1)(E), a severity level 9 person felony; (2) in the alternative, fleeing or attempting to elude a police officer by engaging in reckless driving in violation of K.S.A. 2017 Supp. 8-1568(b)(1)(C), a severity level 9 person felony; (3) possession of marijuana in violation of K.S.A. 2017 Supp. 21-5706(b)(3), a class B nonperson misdemeanor; (4) driving with a suspended or canceled license in violation of K.S.A. 2017 Supp. 8-262(a)(1), a class B nonperson misdemeanor; and (5) no proof of insurance in violation of K.S.A. 2017 Supp. 40-3104(c), a class B misdemeanor.

Berkstresser pled not guilty and proceeded to jury trial. Before trial began, the State dismissed count 3—possession of marijuana. The State called two witnesses, Nowak and Haysville Police Officer Malcolm Young.

Nowak's trial testimony

Nowak testified he had undergone training during his 19 years as a Haysville police officer on how to enforce traffic laws. Nowak was on patrol on the date of the incident and first noticed a white Mitsubishi 3000 GT traveling westbound on 71st Street in Haysville. Nowak conducted a routine check on the vehicle but had a problem running the tag as the description came back to a Ford van, which did not match the Mitsubishi. Nowak initiated a traffic stop by turning on the lights and sirens on his patrol vehicle to pull over the Mitsubishi based on the incorrect tag information and for following another vehicle too closely. The driver, however, accelerated rather than pulling over.

The Mitsubishi reached a speed of 72 miles per hour in a clearly designated 50 miles per hour zone. The driver of the Mitsubishi turned onto a county road going 65 miles per hour. Nowak testified the road did not have a speed limit sign but was a county road, which he assumed had a 45 miles per hour speed limit. The vehicle approached a stop sign, completely stopped, initiated the right turn signal, and turned onto Seneca Street. Nowak explained the turn signal came on less than 100 feet before the turn, which was a traffic violation.

The Mitsubishi made another right turn into a residential driveway, drove through the front yard, through the neighboring front yard to the right, drove on the neighboring property's driveway, and turned right onto Seneca Street without yielding to go back on the roadway. Nowak testified a man was standing outside in his yard when the Mitsubishi drove through the residential yards.

When the vehicle turned back onto Seneca Street, it swerved to the right side of the road toward a ditch and then swerved to the left side, crossing the center line into the southbound traffic lane before proceeding back into the proper lane of traffic. Berkstresser then made a right turn into another driveway on South Seneca Street without using his turn signal. Berkstresser exited the vehicle and began running. Nowak initiated pursuit and, after warning Berkstresser to stop, released his police K-9 who tackled Berkstresser. The police apprehended Berkstresser, and Nowak determined Berkstresser's license was suspended while Young investigated Berkstresser's insurance status.

Nowak testified he was concerned for his safety during the pursuit. He explained a lot of accidents occur when drivers exit gas stations, grocery stores, or driveways and cross traffic. Nowak explained drivers are required to "yield or stop" coming out of a private driveway and driving over the white line or going over the center line are moving violations. Nowak also testified his patrol vehicle had regular Haysville Police Department decals and his radar equipment and system were checked and properly working on the day of the incident.

On cross-examination, Nowak admitted there was not a lot of traffic on the county roads and, although one of the roads usually has traffic, it did not on the morning of the chase. In fact, when Berkstresser pulled onto Seneca from the private driveway, there was no traffic coming from either direction. Nowak conceded Berkstresser did some things correctly but testified Berkstresser committed more than five moving violations.

Young's trial testimony

Young testified that, while on duty, he assisted Nowak on the call. Young arrived in the area to deploy spikes, but when Berkstresser stopped they were not required. Young then assisted Nowak, who had arrested Berkstresser. Young testified he checked the glove box and the center console of the vehicle but did not see paperwork related to proof of insurance.

Verdict and posttrial motions

The jury convicted Berkstresser on two alternative charges of felony fleeing or attempting to elude a police officer under both K.S.A. 2017 Supp. 8-1568(b)(1)(E) and, in the alternative, K.S.A. 2017 Supp. 8-1568(b)(1)(C), as well as driving with a suspended license. The jury acquitted Berkstresser on the charge of no proof of insurance. Berkstresser filed a motion for judgment of acquittal and new trial, claiming the State presented insufficient evidence to prove him guilty beyond a reasonable doubt on counts one and two—fleeing or attempting to elude a police officer. Berkstresser specifically argued the State proved only three moving violations instead of five and failed to prove reckless driving. Berkstresser also filed a motion to impose a departure sentence, claiming the harm was less than typical because the police chase occurred on county roads with little traffic and he obeyed some traffic laws during the course of the chase. Berkstresser also argued his criminal history score of B was because of aggravated battery convictions in 1998 and 2004, which were his most recent felonies until this case.

The district court denied Berkstresser's motion for judgment of acquittal and new trial and denied his motion for a durational departure. The district court sentenced him to 15 months' imprisonment for felony fleeing or attempting to elude an officer under the theory of reckless driving but did not sentence him for the alternative conviction of committing five or more moving violations as the two offenses merged. Berkstresser was also sentenced to six months in jail for driving with a suspended license, with that sentence to run concurrent with his prison sentence.

ANALYSIS

The district court erred in failing to instruct the jury on the lesser included offense .

On appeal, Berkstresser raises multiple issues for why his fleeing conviction should be reversed:

• The district court erred in failing to instruct the jury on the lesser included misdemeanor offense for felony fleeing or attempting to elude on the theory of reckless driving;

• The record contains insufficient evidence of felony fleeing or attempting to elude on the theory of committing five or more moving violations;

• The district court erred by failing to include an essential element in the jury instructions that Berkstresser committed five or more moving violations during a police pursuit;

• The district court erred by failing to include an essential element in the jury instruction that the moving offense of failing to stop or yield when emerging from a private driveway requires the private driveway be in a residential district;

• Two of the moving violations were multiplicitous;

• The district court erred in failing to instruct the jury on the lesser included misdemeanor offense for felony fleeing or attempting to elude based on committing five or more moving violations;

• The prosecutor committed error by arguing outside the evidence during closing argument about the charge of felony fleeing or eluding by committing five or more moving violations; and

• Cumulative error.

Berkstresser asserts misdemeanor fleeing or eluding a police officer is a lesser included crime to felony fleeing or eluding based on reckless driving and the district court committed clear error by not instructing the jury on the lesser included crime. Berkstresser correctly argues the lesser included crime was both factually and legally appropriate. He asks this court to reverse his felony conviction for fleeing or attempting to elude and remand for a new trial with the jury instructions to include the lesser included instruction for the jury to consider.

The State responds the district court properly omitted the jury instruction because the lesser included crime of misdemeanor fleeing or attempting to elude was not factually appropriate. In the alternative, the State argues, even if the jury instruction for the lesser included offense were factually appropriate, any error was harmless.

Preservation and standard of...