                         NOT DESIGNATED FOR PUBLICATION

                                            No. 120,221

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                        STATE OF KANSAS,
                                            Appellee,

                                                  v.

                                 KENNETH EUGENE KLENKLEN,
                                         Appellant.


                                  MEMORANDUM OPINION

       Appeal from Jefferson District Court; GARY L. NAFZIGER, judge. Opinion filed March 27, 2020.
Affirmed.


       Kevin P. Shepherd, of Law Office of Kevin P. Shepherd, of Topeka, for appellant.


       Joshua A. Ney, county attorney, and Derek Schmidt, attorney general, for appellee.


Before HILL, P.J., GREEN and WARNER, JJ.


       PER CURIAM: Following a jury trial, Kenneth Eugene Klenklen was convicted on
charges of driving under the influence (DUI), transporting an open container of alcohol,
speeding, and driving on an expired license. Klenklen timely appeals his DUI conviction,
arguing that the State presented insufficient evidence for a finding of guilt beyond a
reasonable doubt. For reasons stated later, we disagree.


       Here, Klenklen argues that the State failed to prove beyond a reasonable doubt that
he was so impaired that he could not safely operate his vehicle. Nevertheless, the State
presented more than sufficient evidence to show that Klenklen was, in fact, too impaired

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to drive. Specifically, the State introduced evidence that Klenklen smelled strongly of
alcohol, that he had an open container of alcohol in his car within his reach, that he had
bloodshot and watery eyes, that he appeared sluggish, that he could not maintain his
balance while performing field sobriety tests, that he swayed back and forth during the
tests, that he admitted to drinking earlier that day, and that he had difficulty following the
officer's instructions. Klenklen maintains that there are alternative theories to explain
why he was not drunk and why he could not perform the field sobriety tests—the same
theories he presented at his jury trial. Thus, under a well-known appellate standard, this
court is barred from reweighing the evidence or reevaluating witness credibility made
below. When viewing the evidence in the light most favorable to the State, a reasonable
fact-finder could believe beyond a reasonable doubt that Klenklen was impaired to the
point that he could not operate his vehicle safely. So, we conclude that the State
presented sufficient evidence to support Klenklen's DUI conviction and affirm the trial
court.


         On August 5, 2016, Oskaloosa Police Officer Jared Bammes stopped Klenklen for
speeding after he saw Klenklen driving 52 mph in a 40-mph zone. When Bammes neared
Klenklen's car, he smelled a consumed alcoholic beverage odor and heavy cigarette
smoke coming from inside the car. He also noticed that Klenklen's speech was slurred.
Bammes asked Klenklen for his driver's license and proof of insurance. Although
Klenklen was able to provide his proof of insurance, he told Bammes that he did not have
his driver's license. Klenklen gave Bammes his name and birthdate. While Klenklen was
looking for his documentation, Bammes saw Klenklen smoking a cigarette and noticed an
open Bud Light beer bottle in the rear center console cupholder and within Klenklen's
reach. Bammes asked Klenklen if he had been drinking that night, and Klenklen
responded, "No, sir." Bammes asked Klenklen about the Bud Light bottle in the rear
cupholder near him, and Klenklen answered, "Who knows?" Klenklen stated that the
bottle had not been from that night.


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       Upon sending Klenklen's personal information to dispatch, Bammes learned that
Klenklen's driver's license had expired on May 8, 2016. Bammes further learned that
Klenklen had a previous DUI conviction from April 2012. Bammes then continued
questioning Klenklen about the open container in the rear cupholder. Klenklen responded
that he had people in his car earlier that day but assured Bammes, "I'm good, I'll tell you
that." Bammes once again asked Klenklen if he had been drinking, and Klenklen
responded he had one beer at 3 or 4 pm.


       Bammes suspected that Klenklen was inebriated, so Bammes requested backup
because he was not certified to administer standard field sobriety tests (SFSTs).
Sometime later, Jefferson County Sheriff's Deputy Timothy Bacon arrived to help
Bammes with his investigation. Bacon was certified to administer SFSTs and understood
that he was called to help administer SFSTs on Klenklen. Bammes told Bacon that he
stopped Klenklen for speeding, that he found an open Bud Light bottle in the car within
Klenklen's reach, that Klenklen admitted to having one beer around 3 or 4 pm, and that
he could only smell heavy cigarette smoke coming from the vehicle.


       When Bacon neared the vehicle, he noticed the smell of consumed alcoholic
beverage. He saw the open Bud Light bottle in the rear center console. Bacon also
noticed that Klenklen's eyes were bloodshot and kind of watery and that Klenklen was
smoking and had some sort of mint in his mouth. Bacon asked Klenklen how much
alcohol had he drank that night. Klenklen responded, "Not shit." Shortly afterwards,
Bacon asked Klenklen to step out of the car so that Bacon could administer the SFSTs.
He also asked Klenklen when he had his last alcoholic drink, and he responded, "Three or
four hours ago." Klenklen then admitted he had been drinking Bud Light beer just like
the one that was open in the rear center console in his vehicle.


       Bacon chose a smooth, flat surface on the shoulder of the road to administer the
SFSTs. Bacon began with the walk-and-turn test. According to Bacon, this test is

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designed to identify several impairment indicators, such as loss of balance during the
instruction phase, starting the test too soon, stopping during the test, stepping off the line,
using arms to balance, making an improper turn, or taking too many steps. While Bacon
gave instructions on how to perform the test to Klenklen, Klenklen seemed to have
difficulty following those instructions. For example, Klenklen tried starting the test
approximately four times before Bacon finished giving him directions, even though
Bacon told him to wait until after instructions were given. During this time, Klenklen also
had trouble maintaining his balance, he appeared to sway back and forth, and he confused
his left and right feet on two occasions.


        Before officially beginning the test, Klenklen told Bacon that he had "health
problems," but Bacon told Klenklen to start the test because Klenklen already tried
starting the test several times and showed Bacon he could walk. During the test, Klenklen
exhibited other signs of impairment: he raised his arms away from his body, he did not
walk heel-to-toe all the way through the test as instructed, he stepped off the line, and he
made an improper turn. Bacon determined that Klenklen had failed the walk-and-turn
test.


        Bacon then gave Klenklen instructions to perform the one-leg stand test, which is
designed to identify the following impairment indicators: swaying, using arms to balance,
and putting the foot down on the ground during the test. During the test, Bacon saw
Klenklen exhibiting various signs of impairment: he raised his arms up to help with
balance, he lost his balance and his foot touched the ground several times, and he swayed
from side to side. Bacon determined that Klenklen had failed the one-leg stand test.
Based on Bammes' and Bacon's investigation and on Klenklen's failed SFSTs, Bammes
arrested Klenklen for suspicion of DUI, transporting an open container of alcohol,
speeding, and driving with an expired license.




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       After handcuffing Klenklen and putting him in Bammes' patrol car, Bammes
retrieved the open Bud Light bottle from the center rear console cupholder in Klenklen's
vehicle. He noted that there was a little less than half a bottle of beer left. Bacon
discovered a small empty bottle of Fireball whiskey lodged between the center console
and the driver's seat of Klenklen's car. Bammes emptied the Bud Light bottle and bagged
both the Bud Light and Fireball bottles for evidence. Bammes then transported Klenklen
to the jail, and while Klenklen was in his patrol car, Bammes noted that he could smell
the alcohol on Klenklen.


       On November 8, 2016, the State charged Klenklen with DUI in violation of K.S.A.
2016 Supp. 8-1567(a)(3), transporting an open container, speeding, and driving without a
valid driver's license. At the jury trial on August 21, 2018, the State called Bammes and
Bacon to testify. Through Bammes and Bacon, the State presented the following
evidence: (1) Klenklen had been speeding; (2) both officers noticed that Klenklen had an
odor of alcohol in his vehicle and during the SFSTs; (3) Klenklen had bloodshot and kind
of watery eyes; (4) Klenklen was heavily smoking and had a mint in his mouth—an
indication that he was attempting to mask the smell of alcohol; (5) Klenklen was driving
on an expired driver's license; (6) Klenklen had a prior DUI; (7) there was an open and
partially full bottle of Bud Light in the center rear console cupholder within Klenklen's
reach; (8) Klenklen's speech was slurred; (9) Klenklen appeared sluggish; (10) Klenklen
exhibited a lack of balance at several points during the SFSTs; (11) Klenklen had
difficulty following Bacon's instructions; (12) Klenklen failed the SFSTs; (13) Klenklen
kept changing his story a bit each time, but ultimately admitted to drinking Bud Light
beer earlier in the day; (14) there was a small empty bottle of Fireball whiskey in
Klenklen's vehicle; and (15) Bammes noticed that Klenklen had an odor of alcohol in the
patrol car. Specifically, both officers testified that based on what they saw, they believed
that Klenklen was impaired to the point it would affect his ability to safely drive his
vehicle.


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       Klenklen testified in his defense. He stated that he was not drunk during the stop
and that he had several health issues that prevented him from passing the SFSTs, such as
hemochromatosis and Parkinson's disease. He further testified that these health issues
affected his speech, balance, and coordination. Klenklen stated that he specifically told
the officers that he could not perform the SFSTs because of these health issues. Yet, he
also admitted that he drank three Bud Light beers earlier in the day but had stopped
drinking by 4:30 or 5 p.m.


       After deliberating, the jury found Klenklen guilty on all four counts. Klenklen's
attorney moved for a judgment of acquittal based on lack of evidence, but the trial court
denied the motion, stating that a reasonable man could find Klenklen guilty beyond a
reasonable doubt based on the evidence presented. On October 4, 2018, the trial court
sentenced Klenklen to one year in jail, but suspended the sentence, requiring Klenklen to
serve only 48 hours in jail and 120 hours of electronic monitoring on house arrest. The
trial court further ordered that Klenklen be placed on unsupervised probation for one year
following his sentence. Klenklen timely appeals.


Was There Sufficient Evidence to Support Klenklen's DUI Conviction?


       Standard of Review


       When the sufficiency of the evidence is challenged in a DUI 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 fact-finder could have found the
defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence,
resolve evidentiary conflicts, or make witness credibility determinations. State v. Duncan,
44 Kan. App. 2d 1029, 1034, 242 P.3d 1271 (2010). Circumstantial evidence is sufficient
for conviction if it provides a reasonable basis from which the fact-finder may reasonably
infer each element. State v. Logsdon, 304 Kan. 3, 25, 371 P.3d 836 (2016). It is only in

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rare cases in which trial testimony is so incredible that no reasonable fact-finder could
find guilt beyond a reasonable doubt that a guilty verdict will be reversed. State v.
Ramirez, 50 Kan. App. 2d 922, 936, 334 P.3d 324 (2014).


       Discussion


       Klenklen was convicted of DUI under K.S.A. 2016 Supp. 8-1567(a)(3), which
states that no person shall "operat[e] or attempt[] to operate any vehicle [. . .] while [. . .]
under the influence of alcohol to a degree that renders the person incapable of safely
driving a vehicle."


       Klenklen argues that a rational fact-finder could not have found him guilty of DUI
beyond a reasonable doubt because the State failed to produce direct evidence showing
that Klenklen was so impaired he could not safely operate his vehicle. Klenklen contends
that the evidence presented at trial shows that he only consumed alcohol at some point
before driving his car. Specifically, Klenklen points out that Bammes was not trained to
spot signs of impairment and could not properly suspect that Klenklen was impaired
based only on the open container in Klenklen's vehicle, his admission that he had been
drinking much earlier in the day, and the fact that he safely pulled his vehicle over for the
stop. It should be noted that Klenklen does not challenge his convictions for transporting
an open container of alcohol, speeding, or driving on an expired license.


       The evidence the State introduced at trial was more than sufficient to find that
Klenklen was incapable of safely driving an automobile. Upon stopping Klenklen for
speeding, Bammes smelled an odor of consumed alcohol and heavy cigarette smoke
coming from inside Klenklen's car. Bammes noticed that Klenklen slurred his speech and
appeared sluggish throughout each interaction. He saw an open and partially full Bud
Light bottle in the rear cupholder well within Klenklen's reach. Klenklen could not
produce his driver's license, and when Bammes ran Klenklen's information, he learned

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that Klenklen had an expired license and had a previous DUI conviction. Klenklen
admitted to Bammes that he had been drinking earlier that day. Based on this
information, Bammes contacted Bacon to help perform the SFSTs.


       When nearing Klenklen, Bacon also smelled an odor of consumed alcohol coming
from the vehicle. He noted that Klenklen's eyes were bloodshot and watery. He saw the
open Bud Light bottle in the rear cupholder. Klenklen admitted to Bacon that he had been
drinking Bud Light beer—like the one in his car—earlier that day. While Bacon
administered the walk-and-turn and one-leg stand tests, both he and Bammes smelled
alcohol on Klenklen. They both saw him having difficulty listening and following
Bacon's instructions. They both saw Klenklen sway and lose his balance at several points
throughout the testing. They both witnessed Klenklen fail to perform the walk-and-turn
and the one-leg stand tests correctly. Based on those observations, both officers
determined that Klenklen was impaired to the point it would affect his ability to safely
drive. So, Bammes arrested Klenklen. After arresting Klenklen, the officers found an
empty bottle of whiskey in Klenklen's car, which was lodged between the center console
and the driver's seat. While transporting Klenklen to the jail, Bammes also noted that
Klenklen had a strong odor of alcohol coming from him.


       This court has upheld DUI convictions under K.S.A. 2016 Supp. 8-1567(a)(3)
based on similar circumstances in other cases. See Duncan, 44 Kan. App. 2d at 1034-35
(finding sufficient evidence of DUI was presented where defendant smelled of alcohol,
had bloodshot and watery eyes, slurred his speech, had open alcoholic containers in his
vehicle, failed the same SFSTs, and admitted to drinking earlier that day); State v.
Wahweotten, 36 Kan. App. 2d 568, 591, 143 P.3d 58 (2006) (finding sufficient evidence
of DUI was presented where defendant was speeding, had slurred speech and bloodshot
eyes, smelled of alcohol, admitted to drinking earlier that day, and failed the same
SFSTs); State v. Huff, 33 Kan. App. 2d 942, 945-46, 111 P.3d 659 (2005) (finding
sufficient evidence of DUI was presented where defendant was speeding, driving off the

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roadway, had slurred speech and bloodshot eyes, smelled of alcohol, and had a prior DUI
conviction).


       Klenklen provides various alternative explanations for his conduct during the
traffic stop, but in doing so, he asks this court to reweigh the evidence and to reevaluate
witness credibility. This court cannot do that. Viewing all of this evidence in the light
most favorable to the State, a rational fact-finder could find that Klenklen consumed
alcohol before operating a vehicle and that, based on his demeanor during the traffic stop
and his performance on the field sobriety tests, such consumption impaired his ability to
safely drive his vehicle. In other words, a rational fact-finder could find beyond a
reasonable doubt that Klenklen was operating his vehicle while under the influence of
alcohol to a degree that rendered him incapable of safely driving a vehicle. For these
reasons, we conclude that the State presented sufficient evidence to convict Klenklen of
DUI under K.S.A. 2016 Supp. 8-1567(a)(3).


       Affirmed.




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