State v. Fan ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 121,995
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
DONGLIANG FAN,
Appellant.
MEMORANDUM OPINION
Appeal from Lyon District Court; DOUGLAS P. JONES, magistrate judge. Opinion filed August 21,
2020. Affirmed.
Jonathan B. Phelps, of Phelps-Chartered, of Topeka, for appellant.
Ashley McGee, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt,
attorney general, for appellee.
Before ATCHESON, P.J., BRUNS and POWELL, JJ.
PER CURIAM: Dongliang Fan is an over-the-road trucker who was convicted in a
bench trial in Lyon County District Court of making an improper right turn as he drove
his tractor trailer out of the parking lot of a service station onto Highway 50. On appeal,
Fan challenges the sufficiency of the evidence to support the conviction. That is a
formidable hurdle to clear. Given our limited scope of review, we find the testimony of
the Kansas Highway Patrol trooper who cited Fan was sufficient and, therefore, affirm
the district court's decision.
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About 7:45 a.m. on June 4, 2019, Fan departed the service station and turned
eastbound on Highway 50. As we understand the evidence, the highway has two
eastbound lanes, two westbound lanes, and a lane in between for making left-hand turns.
Trooper Eric Hodges was traveling in his patrol car in the eastbound lane nearer the
center of the highway. Hodges saw Fan pull out of the service drive and turn wide as he,
too, headed east, crossing from the right lane nearer the curb to the outer lane—putting
the tractor trailer directly in front of the patrol car.
Hodges pulled Fan over and issued him a citation for an improper right turn in
violation of K.S.A. 8-1545(a)(1). In pertinent part, the statute provides: "Both the
approach for a right turn and a right turn shall be made as close as practicable to the right-
hand curb or edge of the roadway." K.S.A. 8-1545(a)(1). Fan pleaded not guilty, and the
district court conducted a bench trial on August 29, 2019.
Hodges testified that Fan did not turn as close as he could have to the right side of
Highway 50 and nothing prevented him from navigating the tractor trailer into the curb
lane rather than spilling over to the outer lane. He also testified Fan did not signal any
sort of movement to the outer lane. Representing himself in the district court, Fan
testified that he was driving the rig and made the turn. Contrary to Hodges' account, Fan
said there was a car in the curb lane that obstructed him from turning cleanly into that
lane and he signaled as he moved from the curb lane to the outer eastbound lane.
The district court found Fan guilty and fined him $75 plus court costs for violating
K.S.A. 8-1545(a)(1). Fan has appealed.
Represented by a lawyer here, Fan has challenged the sufficiency of the evidence
supporting his conviction for the traffic offense. In reviewing a sufficiency challenge, we
construe the evidence in a light most favorable to the party prevailing below, here the
State, and in support of the verdict or judgment. An appellate court will neither reweigh
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the evidence generally nor make credibility determinations specifically. State v. Jenkins,
308 Kan. 545, Syl. ¶ 1, 422 P.3d 72 (2018); State v. Butler, 307 Kan. 831, 844-45, 416
P.3d 116 (2018); State v. Pham, 281 Kan. 1227, 1252, 136 P.3d 919 (2006). The issue for
review is simply whether a rational fact-finder could have found the defendant guilty
beyond a reasonable doubt. Butler, 307 Kan. at 844-45; State v. McBroom, 299 Kan. 731,
754, 325 P.3d 1174 (2014).
In finding Fan guilty, the district court necessarily made a credibility finding
favoring the testimony of Hodges over the testimony of Fan. Given the standard of
review, we are not in a position to question the district court's determination on that
score. The district court had the opportunity to observe both Hodges and Fan as they
testified and responded to questions on cross-examination. That is a compelling
perspective from which to assess credibility. See State v. Franco, 49 Kan. App. 2d 924,
936, 319 P.3d 551 (2014) (describing in-court testimony as a "crucible" separating the
mistaken or prevaricating witness, on the one hand, from the honest and accurate, on the
other). And that assessment depends in no small part on the fact-finder's ability to watch
and listen to the witnesses as they testify, particularly on cross-examination. Those tools
are lost to appellate courts reviewing a transcript, so we do not presume to second-guess
credibility determinations. 49 Kan. App. 2d at 936-37.
But Fan's point on appeal depends upon crediting his account of the turn onto
Highway 50, since Hodges' account establishes a violation of K.S.A. 8-1545(a)(1). So
Fan is effectively asking us to reweigh the evidence and to disregard the district court's
credibility findings. We cannot oblige him. Taking the evidence in a light favoring the
State, as we must, there was sufficient evidence to support the district court's conclusion
that Fan violated K.S.A. 8-1545(a)(1).
Affirmed.
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