Randall L. Hodgkinson won in State v. Warnke, No. 118,738 (Kan. App. May 3, 2019), obtaining reversals in a Dickinson County aggravated battery and criminal damage to property prosecution. The charges stemmed from an accident on a rural county highway where Ms. Warnke's car collided with a horse-drawn buggy being driven by two teenage boys. The boys were thrown from buggy and injured and one of the horses died. The state charged and a jury convicted Ms. Warnke of reckless aggravated battery and criminal damage to property. Carefully reviewing the evidence in a light most favorable to the state, including times of different calls and text messages, the COA agreed with Ms. Warnke's claim that the state's evidence may have shown negligence, but could not support findings that Ms. Warnke was texting at the time of the collision. The COA drew upon those undisputed facts to conclude that the record contained insufficient evidence of reckless conduct:
In Warnke's case, none of the facts that supported a vehicular homicide conviction in these other cases—for which the standard for a conviction is lower—are found here. Warnke was a mother and paraprofessional driving home after working at the school. She was not a professional driver. She was driving a compact Nissan automobile, not a loaded semitrailer truck. She was not speeding. She did not accelerate as she approached the point of impact. There were no flashing lights or warning signs to alert her to the danger 21 ahead. No one on the vehicle ahead was waving for her to go around them. She was not impaired by drugs or alcohol.
The district court found Warnke guilty of the traffic infraction of following too closely, but that was premised on the collision itself. The court also found her guilty of texting while driving, but that was premised on her reading a text from Christina while Warnke was sitting behind the wheel of her car with the engine running at the stop sign before turning onto K-43. There is no evidence that before the collision Warnke committed any traffic infraction as she proceeded down highway K-43 other than the breach of her common-law duty to keep a proper lookout of the road ahead. Speaking on a cell phone while driving is not a violation of our traffic laws. There is no evidence of conduct that constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.
Besides, to convict under our reckless aggravated battery statute the defendant must consciously disregard "a substantial and unjustifiable risk that circumstances exist or that a result will follow." K.S.A. 2018 Supp. 21-5202(j). We do not conclude that a motorist traveling on a straight, flat, dry, rural highway with little traffic during daylight hours with unobstructed visibility ahead disregards a substantial risk that she will collide with some vehicle ahead if she places a cell phone call. The evidence does not support the "conscious disregard" element of the statute. Obviously, this is not to say that Warnke was without fault. We can speculate that she probably allowed her mind to wander as she spoke to Christina on the phone. She may have been distracted while ending the call. She clearly was at fault applying the standard of ordinary negligence. She failed to maintain a proper lookout ahead. But her misconduct did not reach the high threshold for a felony criminal conviction for reckless aggravated battery.
The COA similarly concluded that Ms. Warnke's conduct could not support a finding for knowing criminal damage to property. As a result, it reversed that conviction as well.
[Update: the state did not file a PR and the mandate issued on June 10, 2019.]
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