                           NOT DESIGNATED FOR PUBLICATION

                                             No. 120,562

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                         STATE OF KANSAS,
                                             Appellee,

                                                   v.

                                       SCOTT ROGER ACREE,
                                           Appellant.


                                   MEMORANDUM OPINION

        Appeal from Saline District Court; PATRICK H. THOMPSON, judge. Opinion filed March 20, 2020.
Affirmed.


        Andrea K. Swisher, of Achterberg, Angell & Craft, LLC, of Salina, for appellant.


        W. Brad Sutton, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt,
attorney general, for appellee.


Before STANDRIDGE, P.J., LEBEN and BRUNS, JJ.


        PER CURIAM: Following a bench trial, the district court found Scott Roger Acree
guilty of driving under the influence (DUI) of alcohol, a second offense, and driving left
of center. On appeal, Acree argues the State failed to establish that he was driving a
vehicle while under the influence of alcohol. Because sufficient evidence supports
Acree's DUI conviction, we affirm.




                                                   1
                                            FACTS

       Late in the evening of March 1, 2015, Wayne Bradley Carlson was in bed
watching TV when he heard a loud knock at the door of his residence in Smolan, Kansas.
A man, later identified as Acree, was standing outside. Acree informed Carlson that he
had put his car in the ditch and asked Carlson to help push the car out. Believing that
Acree was not "in his right mind" and not wanting to open the door, Carlson told Acree
he would call 911 for help. After Carlson called 911, he went back to the front door and
Acree was gone. Carlson could not see Acree's car from his house.


       At 10:39 p.m., Saline County Sheriff's Deputy Jeremiah Hayes was dispatched to
rural Saline County following Carlson's report of a stuck vehicle. When he arrived at the
scene at 10:52 p.m., Deputy Hayes observed areas of patchy snow and ice on the road
and a gray Buick Regal partially resting in a ditch. Deputy Hayes determined that the car
was registered to Acree. Deputy Hayes approached the car and saw Acree in the back
seat. Acree opened the door, and Deputy Hayes detected a strong odor of an alcoholic
beverage coming from the car but did not see any alcoholic beverage containers inside.
Acree informed the deputy that he had been sitting there for 30 to 45 minutes and that he
wanted someone to help him get his car home. Deputy Hayes noticed that Acree's speech
was slurred, and he had bloodshot, watery eyes. Acree lost his balance more than once,
first falling when he exited his car and later falling into the ditch when he tried to shut the
passenger door of his car. Acree admitted that he was drunk but claimed that he had not
been driving. Acree claimed that he was "riding with his kids and they stuck him in the
ditch" and that they then went to Salina in another car. When Deputy Hayes asked what
kids he was referring to, Acree said that his son, Sean Kopf, had been driving. Acree
refused to submit to field sobriety tests. Based on the totality of the circumstances,
Deputy Hayes believed that Acree was impaired. As a result, Deputy Hayes arrested
Acree and transported him to the Saline County Jail, where he agreed to submit a breath
sample at 12:04 a.m. Acree's breath-alcohol concentration was .183.


                                               2
       The State charged Acree with three alternative counts of second-offense DUI and
driving left of center. At a bench trial to the district court, Acree stipulated to a prior DUI
conviction but denied that he had driven his vehicle on the evening of March 15, 2015.
After hearing testimony from witnesses and considering oral argument from counsel, the
district court found Acree guilty as charged. The district court imposed a one-year jail
sentence for the DUI conviction but suspended the sentence, ordered him to serve five
consecutive days in jail, and placed him on probation for 12 months. The court also
ordered Acree to pay a $75 fine for driving left of center. The court stayed imposition of
Acree's sentence pending resolution of this appeal.


                                          ANALYSIS

       In his sole issue on appeal, Acree argues that the evidence was insufficient to
support his DUI conviction.


       When the sufficiency of evidence is challenged in a criminal case, we review the
claim by looking at all the evidence in a light most favorable to the prosecution and
determining whether a rational fact-finder could have found the defendant guilty beyond
a reasonable doubt. An appellate court generally will not reweigh the evidence, resolve
evidentiary conflicts, or make witness credibility determinations. State v. Chandler, 307
Kan. 657, 668, 414 P.3d 713 (2018). It is only in rare cases where the testimony is so
incredible that no reasonable fact-finder could find guilt beyond a reasonable doubt that a
guilty verdict will be reversed. See State v. Matlock, 233 Kan. 1, 5-6, 660 P.2d 945
(1983). A verdict may be supported by circumstantial evidence, if such evidence provides
a basis from which the fact-finder may reasonably infer the existence of the fact in issue.
The evidence need not exclude every other reasonable conclusion or inference. State v.
Logsdon, 304 Kan. 3, 25, 371 P.3d 836 (2016); see State v. Perkins, 296 Kan. 162, 167,
290 P.3d 636 (2012) ("[A] DUI conviction, like any conviction, can be supported by
direct or circumstantial evidence.").


                                               3
       Relevant here, K.S.A. 2019 Supp. 8-1567(a) defines driving under the influence as
"operating or attempting to operate any vehicle within this state while":


               "(1) The alcohol concentration in the person's blood or breath as shown by any
       competent evidence, including other competent evidence, as defined in K.S.A. 8-
       1013(f)(1), and amendments thereto, is 0.08 or more;
               "(2) the alcohol concentration in the person's blood or breath, as measured within
       three hours of the time of operating or attempting to operate a vehicle, is 0.08 or more;
               "(3) under the influence of alcohol to a degree that renders the person incapable
       of safely driving a vehicle[.]"


The State's complaint alleged all three acts in the alternative. See State v. Saylor, 228
Kan. 498, 503-04, 618 P.2d 1166 (1980) (holding that it is proper for State to charge
defendant in the alternative when evidence might support more than one of the alternative
acts). The district court found Acree guilty of DUI under K.S.A. 2019 Supp. 8-
1567(a)(1), holding that competent evidence supported his conviction. In so holding, the
court specifically rejected a finding of guilt under the other two alternatives, finding there
was reasonable doubt as to whether Acree was incapable of safely driving a vehicle and
whether the breath test was administered within three hours of Acree driving a vehicle.
See K.S.A. 2019 Supp. 8-1567(a)(2)-(3).


       The crime of driving under the influence requires two primary elements: driving
while simultaneously being under the influence. State v. Ahrens, 296 Kan. 151, 160, 290
P.3d 629 (2012). Acree asserts that the State failed to present sufficient evidence of each
element.


Driving

       "[I]n order to be convicted of operating a vehicle under the influence, there must
be some evidence, direct or circumstantial, that the defendant drove the vehicle." State v.


                                                    4
Kendall, 274 Kan. 1003, 1008-09, 58 P.3d 660 (2002). Proof of driving does not require
an eyewitness to the driving. State v. Fish, 228 Kan. 204, 210, 612 P.2d 180 (1980).
Here, the district court found that although no one saw Acree driving his car,
circumstantial evidence supported a finding that he had done so. Specifically, the court
noted that the car was registered to Acree, that Acree was the only person present at the
scene, and that Acree told Carlson, "I put . . . my car in the ditch."


       Acree argues the State's evidence failed to establish that he had driven his car and
instead merely demonstrated that his car was in a ditch and that he was the only person at
the scene. Acree notes that no one saw him driving and that he was in the back seat of the
car, not the driver's seat, when law enforcement arrived. Acree also points to a lack of
evidence that the car was running or in gear, or that the keys were in the ignition. Acree
suggests that other people, including his son, and other vehicles could have been present
at the scene earlier.


       But Acree's arguments are essentially an invitation to reweigh the evidence, which
we cannot do. See Chandler, 307 Kan. at 668. As noted by the district court, the car was
registered to Acree, and he was the only person at the scene when law enforcement
arrived. That Acree was not found in the driver's seat of the car is irrelevant because he
got out of the car to ask Carlson for help prior to law enforcement's arrival. When Acree
knocked on Carlson's door, he was by himself and said, "'I put my car in the ditch.'"
Deputy Hayes testified that on his way to the accident scene, he did not pass any vehicles
that were leaving the area. A rational fact-finder could conclude beyond a reasonable
doubt from this evidence that Acree had driven his car.


Under the influence

       The district court found there was competent evidence to support a finding under
K.S.A. 2019 Supp. 8-1567(a)(1) that Acree had driven while under the influence of


                                               5
alcohol. Pointing to the district court's finding that there was insufficient evidence under
K.S.A. 2019 Supp. 8-1567(a)(2) to prove that his breath-alcohol concentration was more
than 0.08 within three hours of operating a vehicle, Acree argues it is only reasonable to
conclude that there was insufficient evidence to prove that he drove while under the
influence of alcohol.


       We are not persuaded by Acree's argument. Under K.S.A. 2019 Supp. 8-
1567(a)(1), the State was not required to prove exactly when Acree had driven a vehicle;
rather, the State had to provide "competent evidence" that he had done so while under the
influence of alcohol. See K.S.A. 2019 Supp. 8-1567(a)(1). Deputy Hayes testified that
when he came arrived on the scene, he observed Acree's gray Buick Regal partially
resting in a ditch. When Deputy Hayes made contact with Acree, he smelled a strong
odor of an alcoholic beverage coming from the car. Deputy Hayes noted that Acree
exhibited signs of impairment, including slurred speech and bloodshot, watery eyes.
Acree also fell multiple times when he exited his car and admitted that he was drunk.
Deputy Hayes did not observe any alcoholic beverage containers in Acree's car, which
suggests that Acree consumed alcohol before his car entered the ditch. Acree refused to
submit to field sobriety testing but later submitted to a breath test that showed his breath
alcohol concentration to be .183.


       Viewing the evidence in a light most favorable to the State, a rational fact-finder
could find beyond a reasonable doubt that Acree drove his car while under the influence
of alcohol as prohibited by K.S.A. 2019 Supp. 8-1567(a)(1). Therefore, the evidence was
sufficient to support Acree's DUI conviction.


       Affirmed.




                                              6
