State v. Gaskill

NOT DESIGNATED FOR PUBLICATION
No. 123,108
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
KRISTAL DAWN GASKILL,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; KEVIN J. O'CONNOR, judge. Opinion filed January 28,
2022. Affirmed.
Rick Kittel, of Kansas Appellate Defender Office, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before WARNER, P.J., MALONE and BUSER, JJ.
BUSER J.: This is an appeal by Kristal Dawn Gaskill of the district court's
revocation of her probation. Gaskill contends there was insufficient evidence to show that
she violated her probation by committing the offense of fleeing or attempting to elude an
officer. Upon our independent review of the evidence, we hold the district court did not
err. Accordingly, we affirm the district court's revocation of probation.
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FACTUAL AND PROCEDURAL BACKGROUND
This case originated with Gaskill pleading no contest to residential burglary, in
violation of K.S.A. 2017 Supp. 21-5807(a)(1), (c)(1)(A)(i), misdemeanor theft, in
violation of K.S.A. 2017 Supp. 21-5801(a)(1), (b)(4), and misdemeanor possession of
drug paraphernalia, in violation of K.S.A. 2017 Supp. 21-5709(b)(2), (e)(3). In exchange
for her pleas, the State agreed to not recommend the district court impose the applicable
special sentencing rule, which would have made Gaskill's sentence presumptive
imprisonment. Instead, the State agreed to recommend that the district court "follow the
presumption [absent the special rule], which is anticipated to be probation."
At sentencing, the district court found Gaskill's criminal history score was D.
Based on her violation of the conditions of bond while awaiting sentencing, the district
court found the State was not bound by its sentencing recommendations in the plea
agreement. As a result, the State asked the district court to apply the special sentencing
rule and impose imprisonment. The district court sentenced Gaskill to a controlling
sentence of 26 months' imprisonment but granted her a 24-month probation based on her
motion for a dispositional departure.
Gaskill did not successfully complete her probation. On the contrary, she
repeatedly violated the law and the terms of her probation, which resulted in her serving
intermediate jail sanctions. Still, she was allowed to remain on probation.
On October 30, 2019, a warrant was issued alleging Gaskill violated her probation
because she failed to report to her probation officer several times, she was discharged
from substance abuse treatment for not attending therapy, and she failed to appear for an
intake interview with Comcare, a mental health and substance abuse facility.
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In January 2020, another warrant was issued alleging that Gaskill violated several
terms of her probation in an incident involving a high-speed police chase. As a result of
this incident, Gaskill was charged in a separate criminal case with fleeing or attempting
to elude an officer in violation of K.S.A. 2019 Supp. 8-1568(b)(1)(E), (c)(2) and driving
while suspended or revoked in violation of K.S.A. 2019 Supp. 8-262(a)(1).
On June 30, 2020, the district court held a combined hearing, which included an
evidentiary hearing on the two probation violation warrants, and a preliminary hearing on
the fleeing or attempting to elude charge. At the hearing, Buck Herber, a former deputy
sheriff with the Sedgwick County Sheriff's Office, testified regarding the fleeing or
eluding charge.
Herber testified that just before midnight on January 17, 2020, he observed a white
car driven by Gaskill traveling eastbound on MacArthur Road at a high rate of speed.
Herber's radar unit showed the car was traveling 75 miles per hour in a 55 miles per hour
zone. Upon confirming the car's speed, Herber testified he turned on his emergency lights
to initiate a traffic stop but the car did not stop, and a pursuit ensued.
Herber testified that while in pursuit, the car remained on MacArthur Road, but it
did not remain 20 miles over the speed limit. Instead, "[t]he speeds changed" and the car
"accelerated quickly." Herber testified that when Gaskill's car was traveling past 135th
Street West, it was speeding about 90 miles per hour. When the car was traveling past
119th Street West, it was speeding about 100 miles per hour.
As the pursuit continued, Herber observed Gaskill's car violate a stoplight at the
intersection of MacArthur Road and K-42 Highway. Gaskill's car then proceeded
eastbound on MacArthur Road. Herber testified that at some point after, the car slowed
down to allow a passenger to leave the vehicle. Once the passenger left the car, Gaskill's
vehicle accelerated rapidly and continued down MacArthur Road.
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Sometime after the passenger exited the vehicle, another officer with the sheriff's
department deployed "stop sticks" on MacArthur Road near Ridge Road. The stop sticks
punctured the tires of the vehicle, but the vehicle did not stop. Later, after the stop sticks
were deployed, one of the vehicle's tires fell off. Still, Herber testified that once Gaskill's
car reached West Street, it was traveling 60 miles per hour in a 55 miles per hour zone.
Herber also testified that Gaskill's car violated a stoplight at the intersection of
MacArthur Road and Hoover. Eventually, the car left the road, went into a field, and
Gaskill ran away. She was apprehended by another sheriff's deputy near the scene.
Gaskill's car was searched, and a firearm was located under the driver's seat. A
pair of brass knuckles were found under the front passenger seat, and drug paraphernalia
was found in the backseat of the car and inside a jacket found outside the car. Testifying
at the probation violation hearing, Gaskill admitted to driving the car, but denied
possessing the recovered firearm.
During the hearing, Gaskill's counsel argued that the State was "short a moving
violation." Specifically, that the State had presented insufficient evidence to prove that
Gaskill had committed the crime of fleeing or attempting to elude an officer by means of
committing five or more moving violations during the pursuit. While conceding that
Gaskill violated two stoplights, and was speeding after crossing West Street, defense
counsel argued there was only "one unbroken period of speeding from the initial
beginning of the stop to the point where the car slows down to let out a passenger." In
short, defense counsel argued that the State had shown only four moving violations—one
less than required—to establish the elements of the offense of fleeing or attempting to
elude an officer.
The district court disagreed. It found the State presented evidence that Gaskill
committed multiple speeding violations, along with her other moving violations, because
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Herber testified to Gaskill committing speeding violations at three different locations and
speeds. The district judge explained:
"And I do understand and appreciate that the initial speeding is not counted as the
five violations because, of course, the vehicle would not be fleeing from a police officer
at that moment so of course that 75 in a 55 is not scored. The . . . former deputy testified
that Ms. Gaskill was driving at speeds of 90 in a 55; at 100 in a 55; that she ran a red
light. And then after she went over the stop sticks, that she was traveling at 60 miles an
hour in a 55-mile-an-hour zone. And then she ran a red light."
....
"I appreciate the argument, that it is continuous speeding, but you also have
different areas where MacArthur crosses other roads. . . . So I will find that there were
five or more moving violations that were committed."
As to the preliminary hearing, the district court found there was probable cause to
believe Gaskill committed the offense of fleeing or attempting to elude an officer. After
making its preliminary hearing ruling, the district court heard additional evidence related
to Gaskill's probation violations. The State presented the testimony of Gaskill's probation
officer, Elizbeth Veeder. Veeder testified to Gaskill's repeated failures to report, her
failures to attend substance abuse treatments and the Comcare intake appointment.
At the conclusion of the hearing, the district court found four of the five
allegations contained in the October 2019 probation revocation warrant were true based
on the evidence presented at the hearing. Regarding the allegations in the January 2020
probation revocation warrant, the district court found that four of the five claimed
violations were not proven. However, the district court found a preponderance of the
evidence established that Gaskill fled or attempted to elude Deputy Herber and, therefore,
violated her probation.
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Upon hearing recommendations from the parties, the district court revoked
Gaskill's probation and imposed the underlying sentences. In ordering incarceration, the
district judge stated:
"Fleeing and elud[ing], even though it is a low severity level, is a very dangerous
offense. Ms. Gaskill was speeding at great speeds. Based upon the evidence here, she had
other individuals in the car, so she not only put herself at risk, she put others at risk. She
put the deputy who chased her at risk. She put anybody else that was on the road that
night at risk."
Gaskill appeals.
REVOCATION OF PROBATION
The district court found Gaskill violated her probation on multiple grounds.
Although the State alleged that Gaskill had violated 10 conditions of her probation, the
district court ruled the State had proven 6 violations by a preponderance of the evidence.
Importantly, on appeal, Gaskill only challenges the district court's revocation of her
probation based on the commission of the new crime of fleeing or attempting to elude an
officer, which she contends was used "as a primary basis to revoke probation." Gaskill
concludes that "the commission of this new crime figured so heavily in the district court's
decision," that our court should remand the case for a new probation hearing.
On appeal, Gaskill reprises the argument that was made in the district court—there
was insufficient evidence to support the district court's finding that she committed five or
more moving violations and, therefore, the district court erred in relying on this new
criminal offense to revoke her probation. Additionally, for the first time on appeal,
Gaskill claims the State did not meet its burden of proof because it failed to present
evidence that the traffic violations were moving violations.
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Standards of Review
Probation is an act of judicial leniency afforded a defendant as a privilege rather
than a right. State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). A district court's
decision to revoke probation usually involves two steps: (1) a factual determination that
the probationer has violated a condition of probation; and (2) a discretionary
determination as to the appropriate disposition in light of the proved violations. State v.
Skolaut, 286 Kan. 219, Syl. ¶ 4, 182 P.3d 1231 (2008). In the present case, Gaskill
appeals the first step of the probation revocation process.
The State must establish a probation violation by a preponderance of the evidence.
State v. Inkelaar, 38 Kan. App. 2d 312, 315, 164 P.3d 844 (2007). A preponderance of
the evidence is established when the evidence demonstrates a fact is more probably true
than not true. 38 Kan. App. 2d at 315.
Our court reviews a district court's findings of fact to determine whether they are
supported by substantial competent evidence. State v. Weber, 297 Kan. 805, 816, 304
P.3d 1262 (2013). Substantial competent evidence is legal and relevant evidence that a
reasonable person could accept as being adequate to support a conclusion. State v. May,
293 Kan. 858, 862, 269 P.3d 1260 (2012). When reviewing for substantial competent
evidence, appellate courts do not reweigh the evidence or assess the credibility of
witnesses. State v. Combs, 280 Kan. 45, 50, 118 P.3d 1259 (2005).
Sufficiency of Evidence to Prove the Traffic Offenses Were Moving Violations
To establish that Gaskill fled or attempted to elude an officer, the State was
required to prove by a preponderance of evidence that Gaskill fled or attempted to elude a
pursuing police vehicle by means of committing five or more moving violations. See
K.S.A. 2019 Supp. 8-1568(b)(1)(E). Under this subsection, the crime of fleeing or
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attempting to elude a police officer is a severity level 9, person felony. See K.S.A. 2019
Supp. 8-1568(c)(2).
For the first time on appeal, Gaskill contends the State's evidence was insufficient
to prove that she fled or attempted to flee Deputy Herber because the State "produced
absolutely no evidence as to what acts constitute a moving violation." In other words,
Gaskill argues the State needed to present evidence of what constitutes moving violations
and without this evidence, the State failed to prove that Gaskill committed the moving
violations.
Relying on our Supreme Court's holding in State v. Richardson, 290 Kan. 176,
180-81, 224 P.3d 553 (2010), Gaskill asserts "the complex nature of what constitutes a
moving violation for any particular purpose requires that some sort of evidence be
presented to show that the acts relied upon by the State actually constituted moving
violations."
Gaskill does not favor us with any on-point legal authority in support of her novel
proposition. Although she relies on Richardson to argue the definition of a moving
violation is "complex," she does not explain why the "complex" nature of moving
violations requires the State to present evidence regarding what constitutes a moving
violation. 290 Kan. at 181. In Richardson, the defendant challenged his conviction for
felony fleeing or eluding by arguing that the district court erred by not defining "moving
violations" for the jury. 290 Kan. at 179. Our Supreme Court found that clear error
existed because the fleeing or 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.
The holding in Richardson, however, provides no support for Gaskill's argument.
Richardson dealt with the necessity of providing a jury instruction defining the term
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"moving violations" so the jury could apply the law to the facts of the traffic offenses and
determine if the traffic offenses were moving violations. 290 Kan. at 181. Richardson did
not suggest that evidence must be presented to prove the meaning of "moving violations."
As the State argues in their brief: "What constitutes a moving violation is not a question
of fact subject to the presentation of evidence. What constitutes a moving violation is a
question of law."
Our Supreme Court has held K.A.R. 92-52-9 "refers to a list of Kansas statutes
and states unequivocally that violations of these statues constitute moving violations."
State v. Jenkins, 311 Kan. 39, 55-56, 455 P.3d 779 (2020). Gaskill does not assert that the
traffic offenses in this case did not constitute moving violations. Nevertheless, our
reading of K.A.R. 92-52-9(a)(1)(Q) (speeding in violation of K.S.A. 8-1558 is a moving
violation) and K.A.R. 92-52-9(a)(1)(I) (failure to obey a traffic control device in violation
of K.S.A. 8-1507 is a moving violation) convinces us that the five traffic violations were
properly designated as moving violations.
Gaskill's claimed error is simply that the State failed to present evidence proving
the meaning of "moving violations." We agree with the State that the meaning of moving
violations is a question of law not fact. Given that this probation revocation matter was
presided over by a district judge knowledgeable in applying the law to the facts, we are
convinced the State was not required to present evidence on this legal issue.
Sufficiency of Evidence to Prove Fleeing or Attempting to Elude an Officer
Next, Gaskill specifically challenges the district court's finding that, in addition to
the two stoplight violations, Gaskill violated the speed limit on three occasions during the
pursuit. On the contrary, Gaskill argues the three speeding violations "cannot be counted
as separate acts of speeding" because they "occurred during the uninterrupted and
continuous pursuit of the suspect car." According to Gaskill, "[o]nly one act of speeding
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could have arisen from the evidence that was produced." In summary, although in the
district court Gaskill asserted the State had only proven four traffic violations, on appeal
she argues that the State only proved three traffic violations—two stoplight violations
and one continuous speeding violation.
Our independent review of Herber's testimony convinces us that he testified to
three separate speeding violations in excess of three posted speed limits at three different
locations at three different times. Herber testified:
"[PROSECUTOR:] At 135th Street West, how fast was the vehicle going?
"[HERBER:] She was going at approximately 90 miles an hour, ma'am.
"[PROSECUTOR:] Was that the marked speed limit on 135th Street?
"[HERBER:] No, ma'am.
"[PROSECUTOR:] Was that in violation of the marked speed limit?
"[HERBER:] Yes, ma'am.
"[PROSECUTOR:] What was the white vehicle driving at on 199th Street West?
"[HERBER:] Approximately 100 miles an hour, ma'am.
"[PROSECUTOR:] Was that the marked speed limit at 119th Street West?
"[HERBER:] No, ma'am.
"[PRSECUTOR:] was that a violation of that speed limit?
"[HERBER:] Yes, ma'am."
After Gaskill slowed the car to allow a passenger to leave the vehicle and the stop
sticks were deployed, Herber observed Gaskill accelerate and once again exceed the
posted speed limit for a third time:
"[PROSECUTOR:] Okay. At some point does the vehicle accelerate past the
speed limit once the stop sticks have been deployed?
"[HERBER:] Yes, ma'am.
"[PROSECUTOR:] Where was that?
"[HERBER:] It was approximately West Street, ma'am.
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"[PROSECUTOR:] And what was the posted speed limit on West Street?
"[HERBER:] 55, ma'am.
"[PROSECUTOR:] And did the vehicle go faster than that?
"[HERBER:] Yes, ma'am.
"[PROSECUTOR:] Do you know how much faster?
"[HERBER:] Approximately 60 miles an hour."
Despite Gaskill's assertion to the contrary, Herber's testimony shows that Gaskill
committed three speeding violations. Herber observed Gaskill driving 90 miles per hour
at 135th Street West, in violation of the 55 miles per hour posted speed limit. Herber then
observed Gaskill driving 100 miles per hour at 119th Street West, in violation of the 55
miles per hour posted speed limit. And after slowing the car to permit a passenger to
leave the vehicle and the stop sticks were deployed, Herber observed Gaskill accelerate to
60 miles per hour at West Street, in violation of the 55 miles per hour posted speed limit.
In Gaskill's view, there were not three instances of speeding but only one. He
argues:
"The police pursuit in the instant case was continuous and uninterrupted from the
time it began until the time it ended when the suspect car came to a full stop and Ms.
Gaskill allegedly ran from the car. There were times during the pursuit when the suspect
car slowed and accelerated, but these junctures did not interrupt the continuous pursuit."
Once again, Gaskill does not provide us with any on-point caselaw precedent in
support of his legal contention, and we are unaware of any such precedent.
Gaskill's argument presumes that speeding violations may be continuous in nature.
On the contrary, K.S.A. 2019 Supp. 21-5107(f) provides: "An offense is committed
either when every element occurs, or, if a legislative purpose to prohibit a continuing
offense plainly appears, at the time when the course of conduct or the defendant's
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complicity therein is terminated." Recently, our Supreme Court reaffirmed that "the
doctrine [of continuing offenses] applies only in limited circumstances and requires a
clear expression of legislative intent. Without that clear expression, courts presume the
Legislature did not intend to create a continuing offense." (Emphasis added.) State v.
Valdiviezo-Martinez, 313 Kan. 614, 627, 486 P.3d 1256 (2021) (citing State v. Gainer,
227 Kan. 670, 672-73, 608 P.2d 968 [1980]).
The moving violation of speeding is committed when every element occurs. Under
K.A.R. 92-52-9(a)(1)(Q) a "moving violation" includes violating the "[m]aximum speed
limits" permitted under K.S.A. 2019 Supp. 8-1558. See K.A.R. 92-52-9(a)(1)(Q)
("'Moving violation' means a conviction for violating . . . [a]ny of the following Kansas
Statutes . . . K.S.A. 8-1555 through K.S.A. 8-1560b"); K.S.A. 2019 Supp. 8-1558
(delineating "[m]aximum speed limits"). And under K.S.A. 2019 Supp. 8-1558(a), "the
limits specified" by the statute "or established as authorized by law shall be maximum
lawful speeds, and no person shall operate a vehicle at a speed in excess of such
maximum limits." (Emphasis added.)
The plain language of the relevant statutes provides that when a person is
operating a vehicle in excess of the maximum speed limit, that person violates K.S.A.
2019 Supp. 8-1558, which qualifies as a moving violation under K.A.R. 92-52-
9(a)(1)(Q). There is no language in either the regulation or the statute that suggests the
Legislature intended for the offense of speeding to be considered a continuing offense.
In summary, although Gaskill traveled on the same road—MacArthur Road—the
speeding violations occurred at three different speeds, in excess of the 55 miles per hour
posted speed limit at three separate locations and at three separate times. A reasonable
person could accept these facts as being adequate to support the conclusion that Gaskill
committed three separate speeding violations. See 293 Kan. at 862. We hold that
substantial competent evidence supports the district court's finding that Gaskill
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committed the crime of fleeing or attempting to elude an officer while she was on
probation. Accordingly, the district court did not err by revoking Gaskill's probation and
ordering her to serve the sentences imposed.
Affirmed.
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