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NOT DESIGNATED FOR PUBLICATION

No. 126,041

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

DUSTIN TAYLOR CURNUTT,

Appellant.

MEMORANDUM OPINION

Appeal from Saline District Court; JARED B. JOHNSON, judge. Submitted without oral argument. 

Opinion filed June 7, 2024. Affirmed.

Michael S. Holland II, of Holland and Holland, of Russell, for appellant.

Ethan Zipf-Sigler, assistant solicitor general, and Kris W. Kobach, attorney general, for appellee.

Before BRUNS, P.J., HILL, J., and MARY E. CHRISTOPHER, S.J.

PER CURIAM:Dustin Curnutt appeals from his conviction for driving under the 

influence. He argues sufficient evidence does not support his conviction because the State 

failed to prove beyond a reasonable doubt that the influence of alcohol rendered him

incapable of safely driving a vehicle. Based on a review of the record on appeal, we find 

the State presented sufficient evidence upon which a rational fact-finder could conclude 

beyond a reasonable doubt that Curnutt was guilty of driving under the influence. Thus, 

we affirm Curnutt's conviction.
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FACTUAL AND PROCEDURAL BACKGROUND

Around 10:30 p.m. on May 21, 2021, Deputy Christopher Winslow of the Saline 

County Sheriff's Office noticed a white Pontiac Bonneville with the passenger side 

headlight out. The deputy began following the vehicle and observed it cross over the 

center line a few times and then swerve within the lane. Consequently, he initiated a 

traffic stop. The vehicle pulled over, and the deputy identified the driver and sole 

occupant as Curnutt. 

Deputy Winslow initially noticed that Curnutt's eyes were bloodshot and watery. 

The deputy testified Curnutt seemed to have difficulty pulling his license out of his 

wallet. Curnutt provided the deputy with his driver's license but no proof of insurance.

The deputy noticed that there was a Corona Light bottle that was three-quarters full in the 

cupholder. When asked about the beer bottle, Curnutt told the deputy that it was a 

passenger's from earlier. The deputy asked Curnutt whether he had consumed any alcohol 

that night, to which Curnutt responded, "No." 

Deputy Winslow went back to his vehicle to scan Curnutt's driver's license. While 

back in his vehicle, the deputy observed Curnutt empty the contents of the Corona Light 

bottle outside his window. The deputy told Curnutt that he watched him pour out the 

bottle and asked Curnutt to step out of his vehicle so he could determine whether Curnutt 

was safe to drive. Curnutt refused several times and told the deputy that he would not 

perform any "'human tricks'" for him. The deputy testified Curnutt was noncompliant, but 

he did not find him to be aggressive or antagonistic. 

At this point, Deputy Winslow noticed that Curnutt smelled like alcohol, but 

Curnutt's speech was not "overly slurred." Based on his observations, the deputy 

determined that he would need to conduct a field sobriety test to continue his 

investigation and asked Curnutt to exit his vehicle. Curnutt again refused, even when 
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Deputy Winslow informed him that he was under arrest for noncompliance. The deputy 

said Curnutt refused to exit his vehicle several times, probably three or four times.

Eventually Curnutt exited the vehicle, and Deputy Winslow placed him under 

arrest. In doing so, Curnutt told the deputy, "'I'll get out and we'll box.'" The deputy then 

conducted a search of the vehicle incident to arrest. On the passenger side floor of the 

vehicle, the deputy found an empty Corona bottle, a half-empty Svedka vodka bottle, and

two Corona bottle caps. The deputy placed Curnutt in the back of the patrol vehicle to 

transport him to the jail. 

While in route to the jail, Curnutt bashed his head against the metal cage, causing 

a minor gash on his forehead, and hurled several vulgarities at Deputy Winslow. At the 

jail, Curnutt refused to perform the Intoxilyzer test, a device that measures breath alcohol 

content. The deputy testified that he did not seek a warrant for a blood draw because his 

superiors had directed officers to avoid obtaining blood samples unless there were 

extenuating circumstances. He also felt that there were not enough officers present to 

safely conduct a blood draw and would be concerned for the safety of any nurses or 

officers administering the draw. 

In September 2022, a jury found Curnutt guilty of one count of driving under the 

influence of alcohol in violation of K.S.A. 2020 Supp. 8-1567(a)(3) and (b)(1)(A), one 

count of transporting an open container of alcohol in violation of K.S.A. 2020 Supp. 8-

1599, and one count of failing to provide proof of motor vehicle liability insurance in 

violation of K.S.A. 2020 Supp. 40-3104(a) and (g)(1). For each of his three misdemeanor 

convictions, the district court sentenced Curnutt to six months' imprisonment in the 

Saline County Jail, and all three sentences would run concurrent with one another. The 

district court then suspended Curnutt's jail sentence and placed him on 12 months' 

probation. 
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Curnutt timely appeals. 

ANALYSIS

The State presented sufficient evidence to support Curnutt's conviction for driving under

the influence.

Curnutt argues there was insufficient evidence for a rational fact-finder to 

conclude beyond a reasonable doubt that the influence of alcohol rendered him incapable 

of safely driving because there were no signs of impairment. The State responds that 

Curnutt's actions showed he was incapable of safely driving without further need for field 

sobriety testing or instrumental testing. 

"'When the sufficiency of the evidence is challenged in a criminal case, we

review the evidence in a light most favorable to the State to determine whether a rational

factfinder could have found the defendant guilty beyond a reasonable doubt. An appellate

court does not reweigh evidence, resolve conflicts in the evidence, or pass on the

credibility of witnesses.' [Citations omitted.]" State v. Aguirre, 313 Kan. 189, 209, 485 

P.3d 576 (2021).

"This is a high burden, and only when the testimony is so incredible that no 

reasonable fact-finder could find guilt beyond a reasonable doubt should we reverse a 

guilty verdict." State v. Meggerson, 312 Kan. 238, 247, 474 P.3d 761 (2020). A verdict 

may be supported by circumstantial evidence if such evidence provides a basis for a 

reasonable inference by the fact-finder regarding the fact in issue. Circumstantial 

evidence, in order to be sufficient, need not exclude every other reasonable conclusion. 

State v. Colson, 312 Kan. 739, 750, 480 P.3d 167 (2021).
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Under K.S.A. 8-1567(a)(3), driving under the influence is defined as operating a 

vehicle while "under the influence of alcohol to a degree that renders the person 

incapable of safely driving a vehicle."

Curnutt's argument relies primarily on Deputy Winslow's testimony that he had 

not completed his investigation to determine whether Curnutt was impaired when he was

placed under arrest for declining to submit to field sobriety testing. Curnutt argues the 

evidence shows the deputy was uncertain whether Curnutt was impaired, so he simply 

arrested Curnutt based on his noncompliance. Curnutt contends his refusal to submit to 

field sobriety testing was insufficient evidence of impairment. In addition, Curnutt admits 

to swerving across the center line and within his own lane, but he contends it was 

momentary and not to an unsafe extent. And while the deputy testified Curnutt smelled of 

alcohol, had bloodshot eyes, and had an opened beer bottle, Curnutt asserts these are 

indications of consumption, not impairment. To further show he was not impaired, 

Curnutt points to evidence that he properly pulled over his vehicle in response to the 

emergency signal, did not slur his speech, had no issue handling his driver's license, and 

had no difficulty exiting the vehicle. 

The Kansas Court of Appeals has consistently held that a defendant's refusal to 

submit to sobriety testing may provide circumstantial evidence to support the conviction 

because it tends to show conduct indicating a consciousness of guilt. See State v. Huff, 33 

Kan. App. 2d 942, 946, 111 P.3d 659 (2005); State v. Rubick, 16 Kan. App. 2d 585, 587-

88, 827 P.2d 771 (1992); City of Salina v. McNeill, No. 122,447, 2021 WL 642310, *2

(Kan. App. 2021) (unpublished opinion). In Huff, the panel determined the district court

was justified in using Huff's refusal to submit to field sobriety tests and Intoxilyzer tests

to determine whether Huff was incapable of safely driving a vehicle. 33 Kan. App. 2d at 

946. When coupled with circumstantial evidence that Huff was speeding, drove off the 

road, slurred his speech, had bloodshot eyes, fumbled to find his driver's license, and 
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smelled of alcohol, the panel concluded sufficient evidence existed to find Huff guilty of 

driving under the influence. 33 Kan. App. 2d at 945-46.

Curnutt recognizes this court's ruling in Huff but asks this panel to compare his 

case to State v. Arehart, 19 Kan. App. 2d 879, 878 P.2d 227 (1994). In Arehart, the 

district court essentially held that consumption of one alcoholic drink was by itself 

sufficient evidence to prove Arehart was impaired to the extent that he was incapable of 

safely driving a vehicle. The Arehart panel reasoned that the district court's hardline rule 

ran contrary to the minimum standards required by K.S.A. 8-1567(a)(3). 19 Kan. App. 2d 

at 882. Thus, because the district court failed to make any evidence-based determinations 

and proof of consumption of alcohol, without more, was insufficient to support a 

conviction, the panel reversed Arehart's conviction and remanded for a new trial. 19 Kan. 

App. 2d at 882. Curnutt argues the evidence presented at trial only proved that he 

consumed alcohol and did not show that he was impaired by the alcohol to the extent that 

he was incapable of safely driving.

We find Curnutt's situation distinguishable from Arehart and more comparable to 

Huff, however, because there were multiple pieces of circumstantial evidence that could 

have led a reasonable fact-finder to determine Curnutt was impaired to the extent he was 

incapable of safely driving a vehicle. Deputy Winslow saw Curnutt drive over the center 

line into oncoming traffic and weaving within his own lane, and the deputy's testimony is 

supported by patrol vehicle dash camera footage. The deputy testified that Curnutt had 

bloodshot, watery eyes and smelled of alcohol. After the deputy asked Curnutt about an 

opened beer bottle, Curnutt poured the contents of the bottle out the window while the 

deputy was scanning Curnutt's license. Curnutt refused to exit his vehicle and submit to 

field sobriety testing. Then, when Curnutt finally exited the vehicle, he threatened to fight 

the deputy. The deputy found an empty beer bottle, two beer bottle caps, and a halfempty bottle of vodka inside Curnutt's vehicle. Finally, Curnutt bashed his head against 

the metal cage and yelled at the deputy while in transport to the jail. 
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When viewing this evidence in a light most favorable to the State, a reasonable 

fact-finder could have found the influence of alcohol rendered Curnutt incapable of safely 

driving. Curnutt's irregular driving, his bloodshot and watery eyes, the alcohol odor, the 

opened alcohol containers, his refusal to submit to sobriety testing, and his erratic 

behavior during the traffic stop and after his arrest provide sufficient evidence to support 

Curnutt's conviction for driving under the influence in violation of K.S.A 2020 Supp. 8-

1567(a)(3).

Affirmed.