State v. Merrill

551 P.3d 202

STATE of Kansas, Appellee,

v.Beth MERRILL, Appellant.

No. 126,146

Court of Appeals of Kansas.

Oral Argument Held April 16, 2024

Opinion Filed June 21, 2024

Syllabus By the Court

1. Whether territorial jurisdiction exists is a question of law governed by the provisions of K.S.A. 21-5106.

2. Venue is a question of fact that must be proved to establish jurisdiction.

3. If one or more material elements of a crime occurs wholly or partly within this state, then Kansas has territorial jurisdiction to prosecute a criminal defendant.

4. The territorial jurisdiction statute is to be interpreted broadly in determining whether a crime may be prosecuted in Kansas.

5. Substantial compliance with the implied consent notice requirements set forth in K.S.A. 8-1001 et seq. is generally sufficient provided that the notice conveys the essentials of the statute and does not mislead the driver.

6. K.S.A. 21-6811(c)(3) does not violate the Ex Post Facto Clause of the United States Constitution.

Appeal from Johnson District Court; Michael P. Joyce, judge.

Jonathan Laurans, of Kansas City, Missouri, for appellant.

Jacob M. Gontesky, assistant district attorney, Stephen M. Howe, district attorney, and Kris W. Kobach, attorney general, for appellee.

Before Bruns, P.J., Gardner and Isherwood, JJ.

Bruns, J.:

Beth Merrill appeals after being convicted in Johnson County District Court of two counts of felony aggravated battery while driving under the influence. On appeal, Merrill contends that the State of Kansas does not have territorial jurisdiction to prosecute this case. In addition, she contends that the district court erred in admitting certain evidence at trial relating to the issue of territorial jurisdiction. She also contends that the district court erred in admitting evidence of her refusal to take a breathalyzer test. Finally, Merrill contends that the district court’s application of K.S.A. 2016 Supp. 21-6811(c)(3) in calculating her criminal history score violates the Ex Post Facto Clause of the United States Constitution. For the reasons set forth in this opinion, we affirm Merrill’s convictions and sentence.

Facts

On the morning of November 18, 2016, Merrill was driving in the southbound lanes of State Line Road when she struck two vehicles from behind that were stopped at a traffic signal at the intersection of 128th Street and State Line Road. An eyewitness reported that shortly before the collision, he observed Merrill leaving a neighborhood in Leawood, driving eastbound on 124th Street, and turning southbound on State Line Road. Eyewitnesses also reported that Merrill failed to slow down as she approached the vehicles stopped at a red light at the intersection.

One of the vehicles that Merrill hit was driven by Sandra Dillard, who was transporting her 83-year-old mother home from a doctor’s appointment in Leawood. Dillard and her mother suffered significant injuries and both were hospitalized. Dillard's car was totaled in the crash. The second vehicle that Merrill struck was driven by Barbara Shull. Although her car was damaged, Shull was not injured.

Leawood Police Officer Cody Shields was the first to respond to the scene of the crash. He spoke to several eyewitnesses who told him that Merrill had been driving erratically for several blocks in the southbound lanes of State Line Road immediately prior to hitting the Dillard and Shull vehicles from behind. One of the eyewitnesses indicated that Merrill was having trouble remaining in her lane and at one point, she briefly veered into the northbound lanes before returning to the southbound lanes.

One of the eyewitnesses reported to Officer Shields that he could smell alcohol on Merrill’s breath when he spoke to her after the crash and stated that she appeared to be intoxicated. In speaking with Merrill at the scene, Officer Shields also smelled the odor of alcohol on her breath, and she admitted to him that she had been drinking. The officer also noticed that Merrill seemed to be confused and slurred her words as she spoke.

According to Officer Shields, Merrill repeatedly asked about her dog but did not appear to realize the seriousness of what had happened nor did she express concern about those injured in the crash. Although the officer repeatedly asked for her driver’s license, Merrill was unable to provide it and insisted that she had already given it to him. Officer Shields and another officer who had arrived at the scene also noticed that Merrill was having a difficult time maintaining her balance.

When asked by Officer Shields to perform field sobriety tests, Merrill was unable to complete them and had difficulty following simple commands. She also refused to submit to a preliminary breath test when asked to do so. Accordingly, Officer Shields arrested Merrill and transported her to the Leawood Police Department for further processing.

At the police station, Officer Shields gave Merrill a copy of the implied consent advisory form and also read it to her out loud. As he read the advisory to her, Merrill continued to talk about her dog. After he was finished reading, Officer Shields asked Merrill to submit to a breathalyzer test, but she refused. Merrill was then placed in a holding cell while Officer Shields began the process of applying for a search warrant in order to obtain a sample of Merrill’s blood for testing.

After the search warrant was acquired, Officer Shields transported Merrill to Menorah Medical Center where a blood sample was obtained. The blood sample was submitted to the Kansas Bureau of Investigation (KBI) for testing in its laboratory. Subsequently, the KBI laboratory issued a report revealing that Merrill’s blood alcohol level was .31 grams per 100 milliliters, which is nearly four times the legal limit to drive a vehicle in Kansas.

On June 15, 2017, the State charged Merrill with two counts of aggravated battery while driving under the influence in violation of K.S.A. 8-1567 and K.S.A. 21-5413(b). The first count arises out of the injuries suffered by Dillard and the second count arises out of the injuries suffered by her elderly mother.

The State also charged Merrill with one count of misdemeanor refusal of a preliminary breath test, but that count was dismissed before trial.

Subsequently, Merrill filed motions to suppress statements that she made to police and to suppress evidence of the results of her blood alcohol test. In response the State agreed that it would not use the statements Merrill made while in police custody at trial. Although the district court suppressed the results of Merrill’s blood alcohol test, this decision was reversed in an interlocutory appeal filed by the State. See State v. Merrill, No. 121,912, 2020 WL 5083528, at *11 (Kan. App. 2020) (unpublished opinion).

Merrill waived her right to a jury trial and the district court held a one-day bench trial on June 7, 2022. At trial, the State presented 14 witnesses and introduced 28 exhibits that were admitted into evidence. After the State rested, Merrill exercised her right not to testify or present any witnesses. Merrill admitted three maps as exhibits that purportedly showed the location of the Kansas-Missouri border on State Line Road near 128th Street. Much of the evidence presented at trial related to where the collision and other events occurred in relationship to the Kansas-Missouri border.

Dillard testified that the accident occurred in the left southbound lane as she was stopped at a traffic signal located at the intersection of 128th Street and State Line Road. She described seeing Merrill's car in her rearview mirror as it sped toward her. Dillard also testified about the injuries she suffered in the crash, which included multiple broken ribs. According to Dillard, she was off work for several months as a result of the collision and continued to suffer from ongoing discomfort in the chest.

Likewise, Dillard testified about the injuries that her mother—who died in 2018—had suffered when they were rear-ended by Merrill. These injuries included multiple broken ribs and a fractured sternum. Dillard also testified that her mother had previously lived independently but needed assistance to care for herself after the accident.

Similarly, Shull testified that she was stopped in the left lane at the intersection of 128th Street and State Line Road waiting for a red light when the crash occurred. The State also presented the testimony of Timothy Peters who testified that he first saw Merrill’s vehicle turning from eastbound 124th Street in Leawood onto southbound State Line Road. He explained that Merrill’s vehicle caught, his attention because it pulled out in front of him as he was driving south on State Line Road. Peters further testified that he saw the crash occur in the southbound lane of State Line Road. Peters spoke with Merrill at the scene of the crash, and he testified that he detected a "slight odor" of alcohol.

Jeremiah Buck testified that he also saw Merrill’s vehicle as it pulled out of a neighborhood traveling eastbound on 124th Street and turned onto southbound State Line Road. He testified that he noticed that her vehicle was being driven "erratically" prior to the accident. Buck observed her vehicle crossing between the northbound and southbound lanes of State Line Road. Although Buck did not see the actual collision, he confirmed that he saw the wreckage in the left southbound lane of State Line Road as he was driving south toward the intersection of 128th Street and State Line Road. Additionally, Pedro Arrieta Martinez testified that he saw the crash occur in the left lane of southbound State Line Road near 128th Street.

Several police officers from the Leawood Police Department also testified at trial regarding the events on November 18, 2016, and their investigation of the collision. Officer Shields testified about responding to the scene of the crash, his interactions with Merrill, and his investigation. Video footage from Officer...