Find Laws Find Lawyers Free Legal Forms USA State Laws
Laws-info.com » Cases » Kansas » Court of Appeals » 2011 » State v. Everest 104490 Bohanon v. Werholtz (Filed May 13, 2011) Published July 15, 2011
State v. Everest 104490 Bohanon v. Werholtz (Filed May 13, 2011) Published July 15, 2011
State: Kansas
Court: Court of Appeals
Docket No: 102720
Case Date: 05/13/2011
Preview:No. 102,720 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. ARVIND EVEREST, Appellant.

SYLLABUS BY THE COURT 1. The contemporaneous objection rule applies in order to preserve for appellate review a claim that a witness improperly commented upon the credibility of a criminal defendant as considered in State v. Elnicki, 279 Kan. 47, 105 P.3d 1222 (2005).

2. Testimony that defendant was observed driving in an erratic fashion is not required to support a conviction of driving while under the influence of alcohol. Evidence of incapacity to drive safely can be established through sobriety tests and other means.

3. To sustain a conviction of obstruction of official duty the State must prove: (1) the person obstructed was an identified law enforcement officer carrying out an official duty; (2) the defendant knowingly and willingly obstructed or opposed that officer in the performance of that duty; (3) the defendant knew or should have known the person he or she opposed was a law enforcement officer; and (4) the defendant's action substantially hindered or increased the burden of the officer in carrying out his or her official duty. 1

4. The act of providing false identification during the course of a criminal investigation can result in obstruction of official duty. However, in order for a defendant to be found guilty of obstruction of official duty under K.S.A. 21-3808, it must be shown that the act of the defendant substantially hindered or increased the burden of the officer in carrying out his or her official duty.

5. Under the facts presented, the defendant providing a false name to the investigating officer did not substantially hinder or increase the burden of the officer in carrying out his official duty.

Appeal from Johnson District Court; STEPHEN R. TATUM, judge. Opinion filed May 13, 2011. Affirmed in part and reversed in part.

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

Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Steve Six, attorney general, for appellee.

Before STANDRIDGE, P.J., MCANANY, J., and KNUDSON, S.J.

MCANANY, J.: Arvind Everest was convicted of driving under the influence of alcohol (DUI), driving while suspended, and felony obstruction of official duty. This was Everest's fifth DUI conviction. He appeals his current DUI conviction and his conviction for felony obstruction of official duty. We affirm Everest's DUI conviction but reverse his conviction for felony obstruction of official duty.

2

Officer Jonathan Rankin stopped Everest's vehicle late at night for not having a properly illuminated license tag. The stop, Everest's arrest, and the subsequent events at the police station were preserved on video.

At the scene of the traffic stop Everest lied to Rankin about his identity when asked. Everest had no driver's license. He exhibited bloodshot and watery eyes and smelled of alcohol. Everest denied having anything to drink. Rankin contacted dispatch to search for police records of the person Everest claimed to be. Dispatch reported no record of any such person.

Rankin then returned to Everest who was still in his vehicle. Everest was unsteady on his feet when he exited his vehicle. He failed all but one of the field sobriety tests he was given. Rankin arrested Everest for DUI and then searched Everest's car, where he found an identification card showing Everest's true name and date of birth. When confronted, Everest initially denied his true identity but eventually admitted who he was.

At the police station Rankin attempted to give Everest an Intoxilyzer breath test, but the test could not be performed because Everest provided an insufficient breath sample. Though Everest claimed this was because he was having an asthma attack, a paramedic observed no wheezing or other signs of asthma and noted that Everest's lung sounds were normal and his oxygen saturation level was an adequate 98 percent. The paramedic did note, however, the odor of alcohol on Everest's breath and his "glossy" eyes. When taken to the hospital Everest refused to submit to a blood-alcohol test.

The day before trial Everest's counsel was provided a copy of the DVD of events at the scene and at the police station. When the State offered the DVD into evidence, Everest's counsel responded: 3

"As long as this is a redacted DVD, I have no objection. However, if it is not redacted or if during the redacting process inadmissible material can still be heard or seen, I have a continuing objection to that. "And if that occurs, I will more than likely move for a mistrial. I just want the record to be clear on that."

The State responded:

"It's a redacted copy. It's an exact copy of what I provided to [defense counsel] yesterday. And he has had an opportunity to review this same copy--version of this copy. I don't believe there is anything on there that's improper."

The DVD was admitted into evidence but it was only played for the jury from the beginning to the 1:48 mark. Everest lodged no objection to the DVD during or after its showing. The jury convicted Everest, and he now appeals.

Credibility Testimony

Everest claims, for the first time on appeal, that the district court erred in failing to sua sponte declare a mistrial on the grounds that Rankin's observations in the recording about Everest's credibility violated the principle expressed in State v. Elnicki, 279 Kan. 47, Syl.
Download State v. Everest 104490 Bohanon v. Werholtz (Filed May 13, 2011) Published July

Kansas Law

Kansas State Laws
    > Kansas Nebraska Act
Kansas Tax
Kansas Labor Laws
Kansas Agencies
    > Kansas DMV

Comments

Tips