– State v. Jenkins – ( 2020 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 118,120
STATE OF KANSAS,
Appellee,
v.
SHERMAN NORMAN JENKINS,
Appellant.
SYLLABUS BY THE COURT
1.
The 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.
2.
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.
1
3.
On the record in this case, the district judge did not abuse his discretion in
admitting jail telephone call recordings into evidence.
4.
The phrase "moving violations" in K.S.A. 2015 Supp. 8-1568(b)(1)(E), Kansas'
fleeing and eluding statute, is not unconstitutionally vague.
Appeal from Shawnee District Court; MARK S. BRAUN, judge. Opinion filed January 10, 2020.
Affirmed.
Korey A. Kaul, of Kansas Appellate Defender Office, argued the cause, and was on the brief for
appellant.
Steven J. Obermeier, assistant solicitor general, argued the cause, and Derek Schmidt, attorney
general, was with him on the brief for appellee.
The opinion of the court was delivered by
BEIER, J.: Sherman 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.
Jenkins 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.
2
Second, 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 unconstitutionally vague.
We therefore affirm.
FACTUAL AND PROCEDURAL HISTORY
During the early morning hours of February 4, 2016, Topeka-area law
enforcement participated in two different vehicle pursuits.
The 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 van.
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 Topeka.
About 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
3
circuitous route through North Topeka before crossing the Kansas Avenue bridge into
downtown Topeka.
During 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.
Immediately 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.
The 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 license.
At the 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.
A 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.
4
At 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.
Lieutenant 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.
The 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
5
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."
The 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.
Officer 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.
Jenkins did not put on any evidence.
The 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][1][B]); engaging in reckless
driving (K.S.A. 2015 Supp. 8-1568[b][1][C]); involvement in a motor vehicle accident
(K.S.A. 2015 Supp. 8-1568[b][1][D]); and committing five or more moving violations
(K.S.A. 2015 Supp. 8-1568[b][1][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.
6
The 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 "moving
violations" included:
 Driving with a suspended, canceled, or revoked license. (K.S.A. 8-262)
 Failing to stop at a stop sign. (K.S.A. 8-1528[b])
 Failing to stop at a red light. (K.S.A. 8-1508[c])
 Failing to maintain a single lane. (K.S.A. 8-1522[a])
 Driving in the left lane while approaching a hill, curve, intersection, or railroad
grade crossing. (K.S.A. 8-1519)
 Making an unsafe turn or lane change. (K.S.A. 8-1548)
 Turning into the incorrect lane. (K.S.A. 8-1545)
 Failing to signal a turn or lane change. (K.S.A. 8-1548)
During the portion of its closing addressing fleeing and eluding, the State
addressed only the pickup pursuit and not the van pursuit. The State argued that Jenkins
committed eight moving violations during the pickup chase: driving with a revoked
license, failing to stop at a stop sign, failing to stop at a red light, failing to maintain a
single lane, driving on the wrong side of the road, failing to signal a turn, making an
improper turn, and failing to signal another turn or lane change. The State directed the
jury to VanDonge's bodycam footage and testimony as evidence of these violations.
The jury found Jenkins guilty on all eight counts. The district judge merged the
felony fleeing and eluding conviction pertaining to the pickup pursuit into the felony-
murder conviction and thus sentenced Jenkins on only seven counts. Jenkins received a
sentence of life without parole for at least 25 years for first-degree murder. His sentences
7
on the remaining counts totaled 56 months and 5 days; the district judge ran those
sentences concurrent to each other but consecutive to the life sentence.
Jenkins timely appealed.
DISCUSSION
Jenkins first argues on appeal that he is entitled to a new trial because the district
judge erred by admitting the jail phone calls into evidence. Second, he argues that K.S.A.
8-1568(b)(1)(E), the option within a means of the felony fleeing and eluding statute
dependent on five or more moving violations, is unconstitutionally vague. As a result, he
argues, this court must reverse his convictions for felony fleeing and eluding and felony
murder. We address each question in turn.
Admission of Jail Calls
Because Jenkins objected during trial to the admission of the jail calls on the
ground that the State failed to lay a sufficient foundation, the same weakness he asserts
on appeal, he preserved this issue for our review. See K.S.A. 60-404.
On review of
"a decision to admit evidence, appellate courts consider first whether the evidence is
relevant. . . . If the court finds the evidence is relevant, the second step requires the court
to apply the statutory rules governing the admission or exclusion of evidence. [Citations
omitted.]" State v. Phillips, 295 Kan. 929, 947, 287 P.3d 245 (2012).
Here, Jenkins does not contest the relevance of the calls, nor does he assert that the
recordings contain inadmissible hearsay. Cf. State v. Williams, 306 Kan. 175, 392 P.3d
1267 (2017) (holding informant's recorded statements were testimonial hearsay). He
8
challenges only the district judge's application of the rules for their admission,
specifically whether the State laid an adequate foundation.
"The question of whether evidentiary foundation requirements have been met is left
largely to the discretion of the district court. Under an abuse of discretion standard, an
appellate court will not disturb a district court's decision unless no reasonable person
would have taken the same view. [Citations omitted.]" State v. Ernesti, 291 Kan. 54, 64-
65, 239 P.3d 40 (2010).
A district judge's mistake of fact or law also qualifies as an abuse of discretion.
State v. Jolly, 301 Kan. 313, 325, 342 P.3d 935 (2015).
This court reviews the factual underpinnings of a district judge's legal ruling for
substantial competent evidence. City of Overland Park v. Cunningham, 253 Kan. 765,
Syl. ¶ 6, 861 P.2d 1316 (1993). "Substantial competent evidence is 'evidence which
possesses both relevance and substance and which furnishes a substantial basis of fact
from which the issues can reasonably be resolved.'" State v. Brown, 300 Kan. 542, 546,
331 P.3d 781 (2014) (quoting In re D.D.M., 291 Kan. 883, 893, 249 P.3d 5 [2011]).
Jenkins argues that the State insufficiently established that he was the male
speaker on the recorded calls. In his view, the State cannot rely entirely on the use of his
PIN to establish his identity.
The State argues that it sufficiently established Jenkins' identity through Biltoft's
testimony that the PIN was unique and assigned only to Jenkins. The State further argues
that any doubt Jenkins sought to sow about use of his PIN by another inmate goes to the
weight of the evidence, not to its admissibility. The State also points out that it furnished
other evidence of identity beyond Jenkins' PIN. And it suggests that voice identification
requirements set out in State v. Williams, 235 Kan. 485, 681 P.2d 660 (1984), have
become dated while the state of the law surrounding audio recordings has changed.
9
In Williams, this court identified seven factors from the then-current American
Jurisprudence treatise that should be used to establish a foundation for an audio
recording.
"'The cases are in general agreement as to what constitutes a proper foundation
for the admission of a sound recording, and indicate a reasonably strict adherence to the
rules prescribed for testing the admissibility of recordings, which have been outlined as
follows: (1) a showing that the recording device was capable of taking testimony; (2) a
showing that the operator of the device was competent; (3) establishment of the
authenticity and correctness of the recording; (4) a showing that changes, additions, or
deletions have not been made; (5) a showing of the manner of the preservation of the
recording; (6) identification of the speakers; and (7) a showing that the testimony elicited
was voluntarily made without any kind of inducement.' 29 Am. Jur. 2d, Evidence § 436,
pp. 494-95." 235 Kan. at 491.
The Williams court noted that "[w]hile Kansas cases vary in terms of what has
been found to be sufficient foundation for the admission of recordings into evidence, all
cases agree the matter is within the discretion of the trial court." 235 Kan. at 491. Under
this standard, admission of a re-recorded tape of a 911 call was proper because evidence
demonstrated that the cassette recorder operators were competent, that the operators
listened to the recording as it occurred and testified to the re-recording's accuracy, that
the victim identified her and the defendant's voices on the tape, and that the State
established an appropriate chain of custody. 235 Kan. at 491-93.
It appears the seven factors this court found in the American Jurisprudence treatise
originated in a 1955 Georgia Court of Appeals decision, Steve M. Solomon, Jr., Inc. v.
Edgar, 92 Ga. App. 207, 211-12, 88 S.E.2d 167 (1955). From there, they spread to other
state and federal courts. See United States v. McKeever, 169 F. Supp. 426, 430 (S.D.N.Y.
1958), rev'd on other grounds 271 F.2d 669 (2d Cir. 1959); State v. Williams, 49 Wash.
10
2d 354, 360, 301 P.2d 769 (1956). And secondary sources such as the 1958 American
Law Reports and American Jurisprudence treatise started listing the seven factors as well.
Annot., 58 A.L.R. 2d 1024, 1027-28.
Since Williams, 235 Kan. 485, was decided in 1984, this court and our Court of
Appeals have routinely cited it for the standard for admission of audio recordings. See
State v. Snow, 282 Kan. 323, 329-30, 144 P.3d 729 (2006); State v. Milton, No. 99,584,
2010 WL 5139871, at *5 (Kan. App. 2010) (unpublished opinion). However, several
panels of our Court of Appeals have expressed concern that the Williams requirements
"may be obsolete" and have "been abandoned in other jurisdictions in better-reasoned
cases that favor a rule holding that recordings, like photographs, are admissible when a
witness testifies they are reliable representations of the subject sound." State v. Vogt, No.
106,487, 2013 WL 310343, at *4 (Kan. App. 2013) (unpublished opinion); see also State
v. Kemp, 30 Kan. App. 2d 657, 662-63, 46 P.3d 31 (2002); State v. Miles, No. 110,511,
2014 WL 7565767, at *7 (Kan. App. 2014) (unpublished opinion).
Jurisdictions that have abandoned the seven requirements include Kentucky,
Michigan, Mississippi, and Texas. See Campbell v. Commonwealth, 788 S.W.2d 260
(Ky. 1990); People v. Berkey, 437 Mich. 40, 51-52; 467 N.W.2d 6 (1991); Stromas v.
State, 618 So. 2d 116, 118 (Miss. 1993); Angleton v. State, 971 S.W.2d 65, 68-69 (Tex.
Crim. App. 1998).
Still other jurisdictions never adopted the seven-factor test in the first place, or
they treated them as mere guidelines. See State v. Weatherly, 519 N.W.2d 824, 826 (Iowa
Ct. App. 1994) ("Iowa has not adopted the 'particularized technical' test . . . . 'What has
been required is that the foundation for the evidence clearly establish that it is accurate
and trustworthy.'"); State v. Jackson, 113 Wash. App. 762, 767-68, 54 P.3d 739 (2002)
(recognizing adapted version of seven factors as one of several acceptable methods to
authenticate audio recording); People v. Gonzales, No. 16CA0750, 2019 WL 1087008, at
11
*3 (Colo. App. 2019) (unpublished opinion) (rejecting use of one set of factors for
authenticating sound recordings; holding district judges have "broad discretion to
consider a variety of factors and circumstances" for authentication). The Tenth Circuit
has recognized that the factors "may assist judges when ruling on foundation questions,
[but] they are not prerequisites to the admission of sound recordings." United States v.
Green, 175 F.3d 822, 830 n.4 (10th Cir. 1999). The Third Circuit wrote recently that it
uses the factors but "did not intend to establish 'a uniform standard equally applicable to
all cases.'" United States v. Credico, 718 Fed. Appx. 116, 119 (3d Cir. 2017)
(unpublished opinion). And the Seventh Circuit has rejected "formalistic" use of factors
in favor of "the more inclusive approach of Federal Rule of Evidence 901(a)." United
States v. Westmoreland, 312 F.3d 302, 310 (7th Cir. 2002).
Even Williams' cited source for the factors, American Jurisprudence, has moved
away from the seven-factor test. The current Volume 23 of American Jurisprudence
Proof of Facts 3d 315 states at Section 22, p. 373: "[S]trict adherence to the 'seven-
pronged' predicate has been significantly relaxed, and today a minimally sufficient
foundation can be laid in a variety of ways that require far less than the satisfaction of all
seven prongs." It posits:
"Perhaps the best way to establish a minimal sufficient foundation is through
testimony as to the recording's accuracy by a nonparticipant who overheard the
conversation as it occurred, either through physical presence or electronic monitoring.
Other methods that courts have found to satisfy minimal sufficient foundation
requirements include a participant's testimony that the recording is accurate, an
independent determination by the trial judge that the recording is accurate, evidence as to
chain of custody, or testimony of a participant in the conversation together with proof by
an expert witness." 23 Am. Jur. 3d Proof of Facts 315 § 35, pp. 401-02.
In spite of these developments in the law, some jurisdictions continue to use the
seven factors listed in Williams. These jurisdictions include Louisiana, Minnesota,
12
Missouri, and Montana. See State v. Jones, 46 So. 3d 756, 762 (La. Ct. App. 2010);
Turnage v. State, 708 N.W.2d 535, 542 (Minn. 2006); State v. Patrick, 566 S.W.3d 245,
253 (Mo. Ct. App. 2019); McCormick v. Brevig, 322 Mont. 112, 132, 96 P.3d 697 (2004)
(this civil case excludes the seventh "voluntariness" factor but the voluntariness factor is
included in previous criminal cases, see, e.g., City of Missoula v. Forest, 236 Mont. 129,
134, 769 P.2d 699 [1989]).
Other jurisdictions use the seven factors or similar lists of factors only in "silent
witness" situations. Alabama uses seven requirements very similar to those from
Williams when "there is no qualified and competent witness who can testify that the
sound recording or other medium accurately and reliably represents what he or she
sensed at the time in question." Bohannon v. State, 222 So. 3d 457, 494 (Ala. Crim. App.
2015). The Alabama Court of Criminal Appeals has held that a recorded jail call was
properly authenticated when
"the prosecutor laid the proper predicate for the admissibility of [defendant Brandon D.]
Mitchell's November 8, 2006, telephone conversation from the Jefferson County jail.
Deputy Carl Carpenter of the Jefferson County Sheriff's Department testified about the
machine used to digitally record inmates' telephone calls from the jail and how the
conversations are stored on an inmate-telephone server. Carpenter's testimony established
that he was competent to operate the recording system. Additionally, Carpenter described
how the system worked, described how he downloaded the conversation from the inmate-
telephone server to a compact disc ('CD'), and stated that the CD accurately represented
the telephone conversation that was stored on the server. Carpenter further testified that
there were no changes to the recording. The testimony presented at trial further
established the telephone call in question was traced to Mitchell's assigned pin number,
Mitchell referred to himself as 'Brandon' during the conversation, and Mitchell spoke of
details known only by Mitchell. Finally, Carpenter testified that before placing the
telephone call, Mitchell was adequately warned that his conversation might be recorded
and that Mitchell's statements were voluntary and not part of a custodial statement to law-
enforcement officers." Mitchell v. State, 84 So. 3d 968, 1008 (Ala. Crim. App. 2010).
13
In a "silent witness" situation in Illinois, "a recording may be admitted without the
testimony of a witness with personal knowledge of what the recording portrays[,] as long
as there is sufficient proof of the reliability of the process that produced the recording."
People v. Sangster, 8 N.E.3d 1116, 1127 (Ill. App. Ct. 2014). "[A] sound recording,
which is otherwise competent, material, and relevant, is admissible into evidence if a
proper foundation is laid establishing the authenticity and reliability of the recording."
Sangster, 8 N.E.3d at 1127. Five evidentiary factors are used to establish authenticity in
such circumstances: "(1) capability of the device for recording; (2) competency of the
operator; (3) proper operation of the device; (4) preservation of the recording with no
changes, additions, or deletions; and (5) identification of the speakers." People v. Smith,
321 Ill. App. 3d 669, 675, 749 N.E.2d 986 (2001); People v. Viramontes, 69 N.E.3d 446,
460 (Ill. App. Ct. 2017).
This case qualifies as even more silent than the "silent witness" cases before the
Alabama and Illinois courts. In Sangster and Mitchell, the speakers in the audio
recordings were identified by name during the calls. In this case, the male speaker on the
calls identified himself only as "Ricky." The State sponsored no evidence to show that
Jenkins went by that name, and Jenkins sponsored no evidence to show that another
person named Ricky had knowledge of Jenkins' PIN.
That said, the most recent edition of McCormick on Evidence also embraces the
possibility of admission of audio recordings in a "silent witness" situation, with no
emphasis on the seven-factor test this court used in Williams. "If no witness testifies that
he overheard the crucial information being recorded, then the record must be
authenticated by the 'silent witness' process; that is, testimony concerning the accuracy of
the recording system and the absence of tampering, often through its chain of custody."
2 McCormick on Evidence § 216, p. 44 (7th ed. 2013).
14
Our review of these diverse authorities counsels an overhaul of the Williams
seven-factor foundation test for admission of audio recordings. The question then
becomes how to formulate its replacement.
Fortunately, we are guided in this endeavor by our modern embrace of a text-first
approach to statutory interpretation and construction. See Redd v. Kansas Truck Center,
291 Kan. 176, 188, 239 P.3d 66 (2010) (when interpreting statutes, courts first look to
language of statutes). And this approach is reinforced by our observation that several of
our sister states have rejected mechanical application of the seven factors because of
jurisdiction-specific evidentiary statutes or rules. See, e.g., Gonzales, 2019 WL 1087008,
at *3 (Colorado); Berkey, 437 Mich. at 51-52.
Under Kansas' Rules of Evidence, codified in K.S.A. 60-401 et seq., audio
recordings such as those at issue here qualify as "writings." See K.S.A. 60-401(m)
("'Writing' means . . . every other means of recording upon any tangible thing any form or
communication or representation, including . . . sounds."); State v. Dale, 293 Kan. 660,
662-63, 267 P.3d 743 (2011) (video on digital versatile disc constitutes writing; "it is a
means of recording upon a tangible thing . . . a combination of moving pictures and
sounds"). "Authentication of a writing is required before it may be received in evidence,"
and it may be established by "evidence sufficient to sustain a finding of its authenticity or
by any other means provided by law." K.S.A. 60-464.
In State v. Robinson, 303 Kan. 11, 225, 363 P.3d 875 (2015), disapproved of on
other grounds by State v. Cheever, 306 Kan. 760, 402 P.3d 1126 (2017), this court
interpreted K.S.A. 60-464 and held that its "authentication requirement is 'satisfied by
evidence sufficient to support a finding that the matter in question is what its proponent
claims.'" 303 Kan. at 225. The burden of authentication is "minimal" or "slight," and
there is "no precise formula" for district judges to determine authenticity. 303 Kan. at
225. "[I]ndirect or circumstantial evidence" can suffice. 303 Kan. at 225. A proponent
15
need only proffer evidence upon which a reasonable juror could conclude that the
message is what the proponent represents it to be. 303 Kan. at 226. After that,
"discrepancies and other conflicting evidence go to the weight, not the admissibility, of
the writing." 303 Kan. at 226.
Further, in the much earlier case of State v. Milum, 202 Kan. 196, 198, 447 P.2d
801 (1968), this court held that a letter can be authenticated by its contents when "the
contents themselves reveal knowledge peculiarly referable to a certain person or the
contents are of such nature that the letter could not have passed between persons other
than the purported writer and the person to whom it was delivered." Likewise, the content
of an audio recording can contribute to its authentication.
In this case, even when we are careful to focus only on the question of the identity
of the caller rather than the identity of the guilty party, the State proffered plenty of
evidence upon which a reasonable juror could conclude that Jenkins made the recorded
calls. The use of Jenkins' unique PIN to make the calls certainly is strong circumstantial
evidence that Jenkins was the caller. And the State had much more. The calls' content
included the male caller's discussion of being in the hospital, and previous testimony had
established that Jenkins was taken to the hospital after the pickup crash. The male caller
also discussed the crash itself, and prior testimony had established that Jenkins was the
only person in the pickup at the time of the crash. And, finally, as the district judge
pointed out, the timing of the calls the day after the crash made Jenkins more likely to
have made them.
On this record, under current Kansas rules of evidence and the cases interpreting
them, we hold that the district judge did not abuse his discretion by admitting the
recorded calls as evidence in Jenkins' trial.
16
K.S.A. 2015 Supp. 8-1568(b)(1)(E) Vagueness
Jenkins argues that this court must reverse his felony fleeing and eluding and
felony-murder convictions because the term "moving violations" used in the Kansas
felony fleeing and eluding statute is unconstitutionally vague.
The statute reads:
"Any driver of a motor vehicle who willfully fails or refuses to bring such
driver's vehicle to a stop, or who otherwise flees or attempts to elude a pursuing police
vehicle or police bicycle when given visual or audible signal to bring the vehicle to a
stop, and who:
"(1) Commits any of the following during a police pursuit: . . . (E) commits five
or more moving violations." K.S.A. 2015 Supp. 8-1568(b)(1)(E).
Oddly, the words necessary to complete the sentence begun in this passage are found in
K.S.A. 2015 Supp. 8-1568(b)(2): ". . . shall be guilty as provided in subsection (c)(2)."
Subsection (c)(2) states that violation of subsection (b) is a "severity level 9, person
felony." This drafting and/or printing anomaly, although worth noting (and correcting),
ultimately is irrelevant to whether the phrase challenged by Jenkins, i.e., "moving
violations," is unconstitutionally vague.
Jenkins concedes that he did not raise a vagueness issue before the district court.
And he appreciates that this court generally does not review constitutional claims raised
for the first time on appeal. State v. Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068 (2015).
He argues that this is a case in which, in our discretion, we should apply an exception.
See State v. Robinson, 306 Kan. 1012, 1025, 399 P.3d 194 (2017). Jenkins contends this
court should consider his vagueness argument because "consideration of the theory is
necessary to serve the ends of justice or to prevent the denial of fundamental rights."
17
State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014). We agree to apply the
exception and move to the merits of his argument.
"A claim that a statute is void for vagueness necessarily requires a court to
interpret the language of the statute in question to determine whether it gives adequate
warning as to the proscribed conduct." State v. Richardson, 289 Kan. 118, 124, 209 P.3d
696 (2009). Questions of statutory interpretation are subject to unlimited review by this
court. State v. Looney, 299 Kan. 903, Syl. ¶ 2, 327 P.3d 425 (2014).
Due process requires criminal statutes to "convey[] a sufficiently definite warning
as to the conduct proscribed when measured by common understanding and practice."
State v. Dunn, 233 Kan. 411, 418, 662 P.2d 1286 (1983). "[T]he determinative question"
when statutes are challenged as void for vagueness is "'whether a person of ordinary
intelligence understands what conduct is prohibited by' the statutory language at issue."
Richardson, 289 Kan. at 125 (quoting State v. Adams, 254 Kan. 436, 445, 866 P.2d 1017
[1994]). We employ a two-pronged inquiry, asking: "(1) whether the statute gives fair
warning to those potentially subject to it; and (2) whether it adequately guards against
arbitrary and unreasonable enforcement." State v. Gonzalez, 307 Kan. 575, 580, 412 P.3d
968 (2018).
"[S]tatutes are not 'automatically invalidated as vague simply because difficulty is
found in determining whether certain marginal offenses fall within their language.'"
Hearn v. City of Overland Park, 244 Kan. 638, 641, 772 P.2d 758 (1989) (quoting Parker
v. Levy, 417 U.S. 733, 757, 94 S. Ct. 2547, 41 L. Ed. 2d 439 [1974]). This court generally
presumes statutes are constitutional and resolves all doubts in favor of a statute's validity.
Gonzalez, 307 Kan. at 579.
Jenkins, as the party challenging the statute as unconstitutional, bears the burden
to overcome the presumption of constitutionality. Gonzalez, 307 Kan. at 579.
18
Jenkins primarily relies on State v. Richardson, 290 Kan. 176, 180, 244 P.3d 553
(2010), to support his vagueness challenge.
In Richardson, defendant Dorian Richardson challenged his conviction for felony
fleeing and eluding. At trial, the State had produced evidence that Richardson "[ran]
through five stop signs and a red light, turn[ed] without a turn signal five times, [drove]
in the wrong lane twice, and [drove] as much as 40 miles per hour over the speed limit"
while police pursued him. 290 Kan. at 177. The district judge instructed the jury only
about the "five or more moving violations" option within a means for fleeing and eluding.
290 Kan. at 179. The district judge did not define "moving violation" for the jury.
Because Richardson had not requested such an instruction or objected to the lack
of it in district court, an appellate clear error standard of review applied. 290 Kan. at 178.
This court concluded that such error existed in Richardson's case, because the fleeing and
eluding statute did not define "moving violations" and "[t]he definition of moving
violation [was] not a simple matter of common knowledge among jurors." 290 Kan. at
181.
It is obvious that Richardson's holding is not directly helpful to Jenkins, because it
concerned an instructional error rather than a vagueness challenge. Jenkins does not and
cannot assert instructional error here, because his trial judge supplied the jury with
specific definitions of the eight different moving violations relied on by the prosecution.
Instead, Jenkins wishes to put Richardson's observation that the definition of
moving violation is "not intuitive" and "not a simple matter of common knowledge
among jurors," 290 Kan. at 180-81, to work in the service of his arguments that K.S.A.
2015 Supp. 8-1568(b)(1)(E) does not give "fair warning to those potentially subject to it"
and does not "adequately guard[] against arbitrary and unreasonable enforcement."
19
Gonzalez, 307 Kan. at 580. He places particular emphasis on the Richardson decision's
language about where jurors might have looked for a definition of "moving violations"
when one was not included in their instructions:
"K.S.A. 8-249(b), relating to records to be maintained by the Kansas Department
of Revenue, Division of Motor Vehicles, requires the division to maintain records of
individual licensees' 'convictions of moving violations as defined by rules and regulations
adopted by the secretary of revenue.'
"Certain statutes explicitly refer to the rules and regulations adopted pursuant to
K.S.A. 8-249. See K.S.A. 8-2004(c), relating to traffic-control devices on state highways;
K.S.A. 8-2118(e), relating to a uniform fine schedule for traffic infractions; and K.S.A.
28-172a(b), relating to docket fees.
"Other statutes, including the subject of the present appeal, K.S.A. 8-1568, refer
to moving traffic violations without reference to other rules and regulations. See K.S.A.
8-237(a), relating to restricted licenses; K.S.A. 8-255(a), relating to restricting or
removing driving privileges; K.S.A. 8-296(g), relating to farm permits; and K.S.A. 40-
277(c)(7), relating to automobile liability insurance policies.
"Certain traffic violations are excluded by statute from application to other
statutory provisions relating to moving violations. K.S.A. 8-1345(a) specifically excludes
certain violations relating to child-passenger safety from being considered moving traffic
violations as they relate to K.S.A. 8-255(a). K.S.A. 8-1560c, relating to violating
maximum speed limits, likewise specifically limits certain speeding violations from being
treated as moving traffic violations for purposes of K.S.A. 40-277(c). And K.S.A. 8-
1742b excludes violations relating to restrictions on wide-base single tires from the
definition of moving traffic violations under K.S.A. 8-255(a).
"The administrative regulations are also not in agreement as to what constitutes a
moving violation. K.A.R. 82-4-1(t), relating to the Kansas Corporation Commission,
defines a moving violation with respect to motor carriers as 'the commission or omission
of an act by a person operating a motor vehicle that could result in injury or property
20
damage and that is also a violation of a statute, ordinance, or regulation of this or any
other state.' That definition is more open-ended than the definition of moving violation
contained in K.A.R. 92-52-9, promulgated by the Kansas Department of Revenue, Motor
Vehicle Drivers' Licenses Division pursuant to K.S.A. 8-249, which enumerates multiple
Kansas statutory offenses, including violations of corresponding municipal ordinances or
county resolutions in this state or similar statutes, ordinances, or regulations in other
states, that constitute moving violations." 290 Kan. at 180-81.
It is true that K.S.A. 2015 Supp. 8-1568(b)(1)(E) does not explicitly define
"moving violations" or refer to other statutes or regulations that do, but this does not
mean that such provisions do not exist. They do. The Richardson decision said as much.
And, in a paragraph immediately following the quoted observations Jenkins emphasizes,
Richardson expressly disclaimed an intention to resolve what constituted a moving
violation, as that question was not before it. It noted only that "statutes and regulations
present a complex statement of what is considered a moving violation for particular
purposes." 290 Kan. at 181.
K.S.A. 2015 Supp. 8-234b(d), part of the Motor Vehicle Drivers' License Act,
states that the "secretary of revenue shall adopt rules and regulations establishing
qualifications for the safe operation of . . . vehicles." K.S.A. 2015 Supp. 8-249(b)
requires the Division of Motor Vehicles (DMV) to "maintain convenient records or make
suitable notations in order that an individual record of each licensee showing the
convictions of moving violations, as defined by rules and regulations adopted by the
secretary of revenue, of such licensee . . . shall be readily ascertainable." (Emphasis
added.) Together these two statutes unambiguously state legislative intent for the
Secretary of Revenue to promulgate regulations defining "moving violations" and for the
DMV to keep track of individual driving records.
The Secretary of Revenue did exactly as instructed by the Legislature in K.A.R.
92-52-9. K.A.R. 92-52-9 refers to a list of Kansas statutes and states unequivocally that
21
violations of these statutes constitute moving violations. K.A.R. 92-52-9(a) also classifies
violation of "any other Kansas Statute that specifically provides that a conviction for
violation of such statute is a moving violation" as a Kansas moving violation. And it
designates violation of any "similar municipal ordinance or county resolution in this
state" or "any similar statute, municipal ordinance, or regulation in another state" as a
Kansas moving violation as well. K.A.R. 92-52-9(a)(1)(GG)-(a)(3). Each moving
violation in the detailed jury instructions given at Jenkins' trial was based on a Kansas
statute specifically listed in K.A.R. 92-52-9(a).
Thus, although the statutory and regulatory scheme defining "moving violation"
can be described as "complex," to use Richardson's word, because it may require
reference to more than one legal provision, it is far from unconstitutionally vague. K.S.A.
2015 Supp. 8-1568(b)(1)(E), when understood in context "provide[s] a person of ordinary
intelligence with fair notice" of what conduct is forbidden. State v. Williams, 308 Kan.
1439, 1460, 430 P.3d 448 (2018); Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92
S. Ct. 2294, 33 L. Ed. 2d 222 (1972). The conduct underlying each of the moving
violations used by the jury to convict Jenkins of fleeing and eluding and felony murder
was clearly prohibited by Kansas law: driving with a suspended, canceled, or revoked
license (K.S.A. 2015 Supp. 8-262); failure to stop at a stop sign (K.S.A. 8-1528[b]);
failure to stop at a red light (K.S.A. 2015 Supp. 8-1508[c]); failure to maintain a single
lane (K.S.A. 2015 Supp. 8-1522[a]); driving in the left lane while approaching a hill,
curve, intersection, or railroad grade crossing (K.S.A. 8-1519); making an unsafe turn or
lane change (K.S.A. 8-1548); turning into the incorrect lane (K.S.A. 8-1545); and failing
to signal a turn or lane change (K.S.A. 8-1548). Jenkins cannot meet his burden under the
first prong of his vagueness challenge.
Jenkins' claim under the second vagueness prong that K.S.A. 8-1568(b)(1)(E)'s use
of "moving violations" is "not precise enough to adequately protect [him] against
arbitrary and discriminatory use of the law" also fails. Just as a person of ordinary
22
intelligence can understand what the phrase "moving violations" means, a law
enforcement officer can understand the actions criminalized. The plain language of the
defining statutory and regulatory provisions is clear. And Jenkins at least exaggerates
when he asserts that "[t]he State used the words 'moving violation' to describe any
violation of the traffic laws." During the portion of the State's closing argument Jenkins
cites to support this assertion, the prosecutor specifically identified each moving violation
it alleged. The district judge's specific instructions reinforced the prosecutor's description
of Jenkins' offenses.
Finally, as part of his vagueness challenge, Jenkins argues that this court should
consider and apply the rule of lenity. He points specifically to K.A.R. 82-4-1(aa), which,
he says, limited "moving violations" to those that could result in injury or property
damage and were violations of law.
The rule of lenity requires this court to adopt the interpretation of a criminal
statute most favorable to the defendant when presented with "'two reasonable and
sensible interpretations'" of that statute. State v. Collins, 303 Kan. 472, 476, 362 P.3d
1098 (2015).
There are several flaws in Jenkins' reliance on the rule of lenity.
First, K.A.R. 82-4-1 (2017 Supp.) is a regulation of the Kansas Corporation
Commission rather than the Department of Revenue. Second, the Corporation
Commission provision defining "moving violations" at the time of Jenkins' crimes was
subsection (z) rather than (aa). See K.A.R. 82-4-1 (2017 Supp.) Third, although the
Richardson decision mentioned the difference between the Department of Revenue's
regulatory definition of "moving violations" and the Corporation Commission's
regulatory definition of "moving violations," it also noted that the Corporation
23
Commission's regulatory power extended only to motor carriers. See K.S.A. 66-1,108a. A
"motor carrier" was defined at the time of Jenkins' crimes to mean
"any person operating as a for hire motor carrier or a private motor carrier, and any of
that person's agents, officers, representatives, as well as employees responsible for hiring,
supervising, training, assigning or dispatching of drivers and employees concerned with
the installation, inspection and maintenance of motor vehicle equipment or accessories or
both." K.S.A. 2015 Supp. 66-1,108(f).
Jenkins was not a motor carrier under this definition. We have already said that the clear
statutes and regulations governing a driver like him were not ambiguous. They were not
rendered ambiguous because other statues and regulations governing another type of
driver say something else. There is nothing in this case to which the rule of lenity might
apply.
CONCLUSION
Jenkins is not entitled to reversal of his convictions because of error in the
admission of jail telephone call recordings or because the Kansas fleeing and eluding
statute is unconstitutionally vague. We affirm the judgment of the district court.
BARBARA KAY HUFF, District Judge, assigned.1
1
REPORTER'S NOTE: District Judge Huff was appointed to hear case No. 118,120
under the authority vested in the Supreme Court by art. 3, § 6(f) of the Kansas
Constitution to fill the vacancy on the court by the retirement of Justice Lee A. Johnson.
24