State v. Foltz ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 122,674
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
PAUL EDWARD FOLTZ,
Appellant.
MEMORANDUM OPINION
Appeal from Riley District Court; JOHN F. BOSCH, judge. Opinion filed October 9, 2020.
Affirmed.
Andy Vinduska, of Manhattan, for appellant.
John A. Griffin, assistant county attorney, Barry Wilkerson, county attorney, and Derek Schmidt,
attorney general, for appellee.
Before GREEN, P.J., STANDRIDGE, J., and MCANANY, S.J.
PER CURIAM: On appeal, Paul Foltz argues that insufficient evidence supports his
conviction for two reasons. First, he contends that insufficient evidence supports his DUI
conviction because the police officer lacked "reasonable suspicion to investigate whether
[he] was [DUI] . . . ." Second, he contends that insufficient evidence supports his DUI
conviction because the police violated certain procedures when testing his breath alcohol
content. We disagree and affirm.
1
Background
On July 23, 2019, a police officer contacted Foltz as a suspect in a trespass
investigation. The police officer had flagged Foltz down as he was driving his truck away
from the property upon which he had allegedly trespassed. After stopping Foltz, the
police officer smelled an odor of alcohol coming from Foltz, and he noticed that he
seemed uncoordinated. Upon further questioning, Foltz admitted that he had recently
consumed a beer. Given these indicators of intoxication, the police officer asked Foltz to
complete field sobriety testing. The police officer arrested Foltz for DUI after Foltz
refused to attempt the walk-and-turn and one-leg-stand field sobriety tests, misstated the
alphabet, and struggled counting backwards. Ultimately, Foltz submitted to breath
alcohol testing which showed that he had a breath alcohol content of 0.087.
As a result, the State charged Foltz with DUI in violation of K.S.A. 2019 Supp. 8-
1567(a)(2). K.S.A. 2019 Supp. 8-1567(a)(2) criminalizes operating or attempting to
operate any vehicle while having a breath alcohol content of 0.08 or more, as measured
within three hours of operating or attempting to operate the vehicle.
Eventually, Foltz' case proceeded to jury trial where the jury convicted Foltz as
charged. The trial court sentenced Foltz to 5 days in jail followed by 12 months on
parole, with an underlying sentence of 6 months in jail.
Foltz timely appealed his DUI conviction to this court.
Analysis
The State notes that Foltz' arguments do not actually involve sufficiency of the
evidence. Instead, the State contends that his arguments involve suppression issues that
Foltz failed to raise before the trial court and, thus, cannot be raised for the first time on
2
appeal. We agree. Alternatively, the State argues that sufficient evidence supports Foltz'
DUI conviction. We also agree.
Issues involving questions of preservation and abandonment are questions of law
over which this court exercises unlimited review. State v. Alvarez, 309 Kan. 203, 209,
432 P.3d 1015 (2019). It is a well-known rule that absent certain exceptions, arguments
not raised before the trial court cannot be raised for the first time on appeal. See State v.
Cheffen, 297 Kan. 689, 698, 303 P.3d 1261 (2013). Also, Supreme Court Rule 6.02(a)(5)
(2020 Kan. S. Ct. R. 34) mandates that appellants raising arguments for the first time on
appeal explain in their briefs why they did not make their newly raised arguments before
the trial court. Our Supreme Court has determined that appellants who violate Rule
6.02(a)(5) have not adequately briefed their newly raised arguments; this, in turn, means
that such appellants abandon their ability to make their newly raised arguments for the
first time on appeal. See State v. Godfrey, 301 Kan. 1041, 1044, 350 P.3d 1068 (2015).
Here, despite Foltz framing his appellate arguments as issues involving sufficiency
of the evidence, Foltz' arguments actually involve suppression issues. Yet, nothing in the
appellate record indicates that Foltz moved to suppress evidence based on the police
officer lacking reasonable suspicion to investigate him for DUI or for police violations of
breath alcohol testing procedures. Also, because Foltz has wrongly framed his newly
asserted suppression arguments as sufficiency of evidence arguments, Foltz never
acknowledges that he is raising his suppression arguments for the first time on appeal. As
a result, Foltz has not cited any exception to the general rule barring this court from
considering appellate arguments raised for the first time on appeal. Nor has Foltz
complied with Rule 6.02(a)(5)'s requirement that appellants explain why they have failed
to raise their newly asserted arguments before the trial court.
Given the preceding, we refuse to consider Foltz' suppression arguments for the
first time on appeal. We also hold that by violating Rule 6.02(a)(5), Foltz has abandoned
3
his ability to make his newly asserted suppression arguments for the first time on appeal.
See Godfrey, 301 Kan. at 1044.
Also, to the extent Foltz' appeal actually concerns the sufficiency of the evidence
against him, we conclude that sufficient evidence supported Foltz' DUI conviction. In
arriving at this conclusion, we follow this standard:
"'When sufficiency of the evidence is challenged in a criminal case, the standard
of review is whether, after reviewing all the evidence in a light most favorable to the
prosecution, the appellate court is convinced a rational factfinder could have found the
defendant guilty beyond a reasonable doubt.' [Citation omitted.]" State v. Chandler, 307
Kan. 657, 668, 414 P.3d 713 (2018).
Here, the State charged Foltz with DUI in violation of K.S.A. 2019 Supp. 8-
1567(a)(2), which prohibits operating a vehicle with a breath alcohol content of 0.08 or
more. At his trial, the State introduced into evidence a certificate indicating that Foltz had
a breath alcohol content of 0.087. Foltz did not object to the admission of this certificate.
Simply put, when considered in the light most favorable to the State, a rational fact-finder
could have found Foltz guilty of DUI under K.S.A. 2019 Supp. 8-1567(a)(2) because the
trial evidence indicated that his breath alcohol content exceeded 0.08.
Affirmed.
4