1

NOT DESIGNATED FOR PUBLICATION

No. 119,809

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

CLARENCE O. KELLUM,

Appellant.

MEMORANDUM OPINION

Appeal from Wyandotte District Court; MICHAEL A. RUSSELL, judge. Opinion filed April 3, 

2020. Affirmed.

Christopher R. Cuevas, of Kansas City, for appellant.

Ethan Zipf-Sigler, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek 

Schmidt, attorney general, for appellee.

Before ATCHESON, P.J., HILL and BUSER, JJ.

BUSER, J: Clarence O. Kellum appeals his convictions for two counts of vehicular 

homicide and speeding. Kellum raises two issues on appeal. First, he contends the district 

court erred by admitting testimony regarding accident data recovered from his vehicle 

because the State failed to provide an evidentiary foundation for its admission. Second, 

Kellum claims there was insufficient evidence to support his vehicular homicide

convictions. Upon our review, we affirm Kellum's convictions.
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FACTUAL AND PROCEDURAL BACKGROUND

On April 15, 2017, Kellum was involved in a two-vehicle collision in Kansas City, 

Kansas. Kellum's vehicle struck an SUV as it made a left-hand turn to enter an apartment 

complex. The two occupants of the SUV—Samuel Vissepo-Quinones and Bryan VierraDuran—died as a result of the collision.

The State charged Kellum, in part, with two counts of second-degree murder. 

These two counts were charged in the alternative as involuntary manslaughter while 

driving under the influence. The State also charged Kellum with three counts of 

aggravated endangering a child, driving under the influence (DUI), improper use of a 

wireless device while driving, and speeding.

During the jury trial, Michael Carrothers, a Kansas City firefighter, testified that 

he was stationed on 55th Street on April 15, 2017. At about 12:30 a.m., Carrothers was 

outside the fire station when he heard a vehicle traveling northbound on 55th Street. 

Carrothers looked and saw a black sedan traveling "excessively fast," and he hoped 

police officers would stop the vehicle because of its speed. Kellum was the driver of the 

black sedan.

About one or two seconds after Kellum drove by him, Carrothers heard tires 

screech and two impacts, but he could not see the collision. Carrothers responded to the 

scene of the collision with fellow firefighters. He observed Kellum's vehicle and an SUV. 

The driver of the SUV was still in the vehicle but Kellum had exited his vehicle. Kellum 

told Carrothers that the SUV pulled out in front of him. Kellum expressed concern about 

his three daughters who were in his vehicle.

Carrothers described the roadway where the accident took place as straight and 

without curves. Kellum's vehicle sustained front-end damage. The SUV had passenger-
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side damage where Kellum struck the vehicle and damage on the vehicle's roof where the 

SUV then struck a telephone pole. Carrothers noted that the damage to the vehicles was 

consistent with Kellum's claim that the SUV drove in front of him to turn into an 

apartment complex.

When Kansas City, Kansas police officers arrived at the scene, Kellum was sitting 

in a parking lot and holding one of his daughters. After handing his daughter to the 

officers, Kellum stood up and tried to get into his vehicle. Officer Adriane Ferrer stopped 

Kellum from entering the vehicle. The officer noted that Kellum had "very poor balance" 

and she grabbed ahold of him to prevent him from falling. Officer Ferrer instructed 

Kellum to remain sitting because of his poor balance but Kellum was uncooperative. 

Officer Ferrer smelled the odor of alcohol coming from Kellum's breath. As a result, the 

officer detained Kellum and placed him in her patrol vehicle.

After arresting Kellum, Officer Ferrer helped Kellum contact his mother to care 

for his children. An ambulance transported Kellum to the hospital. While at the hospital, 

Kellum admitted that he drank a couple of beers that night and told a nurse, "It wasn't that 

far. I didn't think it would be a problem. I was just at a friend's house having some beers." 

After Kellum refused to consent to blood-alcohol concentration (BAC) testing, officers 

obtained a search warrant to collect a sample of Kellum's blood for the testing of alcohol 

consumption. The Kansas Bureau of Investigation (KBI) tested the blood sample and it 

revealed that Kellum had a BAC of .10. A KBI forensic expert opined that a BAC of .10 

would negatively impact a person's ability to safely operate a vehicle by impairing 

judgment, reaction time, and coordination.

An autopsy revealed that Vissepo-Quinones—the driver of the SUV—ingested 

cocaine and alcohol before the collision occurred. Vissepo-Quinones had recently used 

the cocaine before he died and he had a BAC of .094 at his time of death. A forensic 
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pathologist testified that Vissepo-Quinones would have been impaired by ingesting 

alcohol and cocaine at the time the collision occurred.

Detective James Gunzenhauser was assigned to investigate the collision. Before 

the State called Detective Gunzenhauser to testify at trial, Kellum objected to the 

detective's anticipated testimony that Kellum was driving 101 miles per hour shortly 

before the accident. Kellum noted that Detective Gunzenhauser's testimony regarding his 

speed would be based on a crash data recorder (CDR) recovered from his vehicle. Kellum 

objected to the lack of foundation for Detective Gunzenhauser's anticipated testimony, 

arguing that the officer who downloaded the data from the CDR—Officer Chuck 

Seawood—was a necessary witness. Kellum suggested that without Officer Seawood as a 

witness, he would be unable to determine whether the downloaded equipment was 

properly functioning or question how the download occurred.

The State responded to Kellum's objection by arguing that Detective 

Gunzenhauser could establish an evidentiary foundation because he knew how to 

download CDR information, he knew how to read and interpret that information, and he 

witnessed Officer Seawood download the CDR information. The State claimed that 

Kellum's concerns related to the weight, not admissibility of the CDR evidence. The 

district court overruled Kellum's prelimenary objection and determined it needed to hear 

from Detective Gunzenhauser before it made a final ruling.

At trial, Detective Gunzenhauser testified regarding his training and experience in 

investigating vehicular accidents. Detective Gunzenhauser received basic accident 

investigation training in 1994 when he became a law enforcement officer. Later, he

obtained advanced accident investigation training, which involved more in-depth 

measurements and diagramming skills, and attendance at an accident reconstruction 

school. Detective Gunzenhauser began investigating fatality accidents about three years 
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before trial. During that time, the detective investigated approximately 70 fatal or lifethreatening accident scenes.

At trial, Detective Gunzenhauser first testified regarding his observations of the 

crash scene. The detective testified that the SUV was traveling southbound on 55th street 

when the driver tried to make a left-hand turn into an apartment complex. According to 

Detective Gunzenhauser, Kellum's vehicle was traveling northbound when it collided 

with the SUV. Based on damage to the vehicles, the detective determined that the impact 

occurred at a high-speed. Of note, the SUV had its headlights and turn signal on at the 

time of the collision.

Detective Gunzenhauser explained that he also had received training on examining 

crash data recorded on a vehicle's CDR. The purpose of this training was to teach 

participants to interpret information downloaded from a CDR. During this training, 

Detective Gunzenhauser observed a scenario where a CDR report revealed corrupted 

data.

After Detective Gunzenhauser testified regarding his training, the State sought to 

offer him as an expert on interpreting crash data from a CDR. The district court allowed 

Kellum to voir dire the detective regarding his qualifications as an expert. During this 

questioning, Detective Gunzenhauser agreed that the Kansas City, Kansas Police 

Department did not have the equipment required to download CDR information. Instead, 

his department used equipment owned by either the Lenexa or Shawnee Police 

Departments. Detective Gunzenhauser admitted that he never personally downloaded 

information from a CDR.

After Kellum concluded his voir dire, he argued that Detective Gunzenhauser was 

not an expert on examining crash data reports. The district court ruled that Detective 

Gunzenhauser was qualified to read the CDR information. However, the district court 
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questioned the State's foundation to admit the CDR information because it had not yet 

established how that information was collected. Kellum requested a continuing objection 

to Detective Gunzenhauser's testimony regarding the CDR information because "Officer 

Seawood is not here to testify about that data." The district court granted Kellum's 

continuing objection.

Detective Gunzenhauser next explained that Officer Seawood from the Shawnee 

Police Department used a "Bosch reader" and a laptop to obtain the information from the 

CDR in Kellum's vehicle. Officer Seawood downloaded the information to a thumb drive 

and gave the thumb drive to Detective Gunzenhauser. Of note, Detective Gunzenhauser 

was present when Officer Seawood downloaded the information from Kellum's CDR. 

Based on his training and experience, Detective Gunzenhauser determined that the 

downloaded CDR report was not corrupted.

Relying on the CDR report, Detective Gunzenhauser testified that Kellum's 

vehicle was traveling 101 miles per hour in a 30 mile-per-hour zone five seconds before 

impact. The CDR also recorded the vehicle's speed at every half-second interval before 

the collision. Without additional objection, Detective Gunzenhauser noted the CDR 

report revealed that Kellum's vehicle was traveling the following speeds before the 

accident:

4.5 seconds = 101 miles per hour

4 seconds = 101 miles per hour

3.5 seconds = 93 miles per hour

3 seconds = 85 miles per hour

2.5 seconds = 92 miles per hour

2 seconds = 86 miles per hour

1.5 seconds = 84 miles per hour

1 second = 78 miles per hour
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.5 seconds = 68 miles per hour

Detective Gunzenhauser explained that Kellum began braking during the last 3.5 

seconds before impact. The detective opined that persons near the crash site would not 

have seen Kellum's vehicle driving towards them until three seconds before impact.

At the instructions conference, the parties agreed not to instruct the jury on the 

speeding charge. The jury found Kellum guilty of two counts of the lesser included 

offense of vehicular homicide. The district court also found Kellum guilty of speeding. 

The district court sentenced Kellum to 12 months of probation, with an underlying jail 

term of 12 months, and an $810 speeding fine. Kellum appeals.

ADMISSIBILITY OF THE CDR REPORT TESTIMONY

On appeal, Kellum contends the district court erred by allowing Detective 

Gunzenhauser to testify regarding the contents of the CDR. Kellum first argues this 

testimony was inadmissible because the CDR report was not admitted in evidence and, 

therefore, was neither perceived by nor made known to Detective Gunzenhauser when he 

testified at trial. Next, Kellum asserts the State failed to present an adequate foundation 

for the detective's testimony because he did not personally download the CDR 

information, he was not trained to download that information, and Officer Seawood, who 

did download the information, did not testify. The State responds that Kellum failed to 

preserve this issue for appeal.

Preservation

K.S.A. 60-404 generally precludes this court from reviewing an evidentiary 

challenge absent a timely and specific objection made on the record when the evidence is 

presented at trial. State v. Miller, 308 Kan. 1119, 1159, 427 P.3d 907 (2018). 
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Additionally, a party may not object to the admission of evidence on one ground at trial 

and argue a different ground on appeal. State v. Campbell, 308 Kan. 763, 770, 423 P.3d 

539 (2018). One purpose of the contemporaneous objection rule is to provide the district

court with the opportunity to conduct the trial without exposure to tainted evidence. State 

v. Brown, 307 Kan. 641, 645, 413 P.3d 783 (2018). "This rule not only gives the trial 

court the opportunity to address the issue, but practically it also constitutes 'one of 

necessity if litigation is ever to be brought to an end.'" 307 Kan. at 645 (quoting State v. 

Fisher, 222 Kan. 76, 83, 563 P.2d 1012 [1977]).

Whether a party preserved an objection for appellate review is a question of law 

subject to unlimited review. Campbell, 308 Kan. at 770. Kellum makes two arguments in

support of his complaint that Detective Gunzenhauser's testimony regarding the CDR 

report was inadmissible. First, Kellum asserts that under State v. Gonzalez, 282 Kan. 73, 

87, 145 P.3d 18 (2006), "an expert is prohibited from giving an opinion based on facts or 

data not 'perceived by or personally known or made known' to the expert at trial." 

Relying on this premise, Kellum claims that—because the CDR report was not admitted 

in evidence—the report was not made known to Detective Gunzenhauser and the district 

court erred by allowing him to testify regarding its contents.

But Kellum never raised this objection at trial. The issue identified in Gonzalez—

which Kellum now raises on appeal—differs from the objections he made at trial. In 

Gonzalez, the defendant presented an expert to testify about Gonzalez' competency to 

stand trial. But the State objected on hearsay grounds because the expert testimony relied 

on California medical records which had not been admitted in evidence. The Gonzalez

court noted that K.S.A. 60-456(b) precluded an expert witness from giving an opinion 

based on facts or data not "'perceived by or personally known or made known'" to the 

witness at the hearing. 282 Kan. at 87. Since the phrase "at the hearing" referred to facts 

admitted in evidence, our Supreme Court found that expert opinions based on hearsay 

were inadmissible. 282 Kan. at 87. Accordingly, the California medical records—which 
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were inadmissible hearsay—could not form the basis for the expert's opinion under 

K.S.A. 60-456(b) regarding the defendant's competency.

We note the language in Gonzalez that Kellum relies on has been abrogated by the 

Kansas Legislature. When Gonzalez was decided, K.S.A. 60-456(b) provided that 

opinion testimony by expert witnesses was limited to opinions "(1) based on facts or data 

perceived by or personally known or made known to the witness at the hearing and (2) 

within the scope of the special knowledge, skill, experience or training possessed by the 

witness." However, in 2014, the Kansas Legislature amended K.S.A. 60-456 through 

K.S.A. 60-458. L. 2014, ch. 84, § 2-4. Now K.S.A. 2019 Supp. 60-458 explicitly 

provides that expert testimony may be based on facts or data not admitted into evidence:

"The facts or data in the particular case upon which an expert bases an opinion or 

inference may be those perceived by or made known to the expert. If of a type reasonably 

relied upon by experts in the particular field in forming opinions or inferences upon the 

subject, the facts or data need not be admissible into evidence in order for the opinion or 

inference to be admitted."

Regardless, unlike the State's objection in Gonzalez, Kellum did not object to 

Detective Gunzenhauser's testimony on hearsay grounds. Kellum never argued that the 

detective's testimony was inadmissible because the State failed to admit the CDR report 

in evidence. Instead, Kellum's continuing objection only maintained that Detective 

Gunzenhauser's testimony regarding the CDR information lacked an evidentiary 

foundation because Officer Seawood, the officer who actually downloaded the CDR 

information from Kellum's vehicle, was unavailable to testify at trial. Since Kellum failed 

to object to Detective Gunzenhauser's testimony on the grounds that the CDR report was 

not admitted in evidence, he failed to preserve this argument for appeal.
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Turning to Kellum's second argument, we next consider whether Kellum's 

objection that Detective Gunzenhauser could not provide an adequate foundation for 

testimony regarding the CDR report was preserved for appeal.

If a party makes a continuing objection to the admissibility of evidence, the failure 

to object when the evidence is later admitted does not bar appellate review. McKissick v. 

Frye, 255 Kan. 566, 582, 876 P.2d 1371 (1994). Here, Kellum lodged a specific 

continuing objection to Detective Gunzenhauser's testimony, arguing Officer Seawood 

needed to lay a foundation for evidence of the CDR report. Kellum explained that 

Detective Gunzenhauser could not provide an evidentiary foundation because his 

department did not own the downloading equipment and he did not personally download 

the CDR information. The district court noted that Kellum "protected [the] record" on 

that objection.

Kellum preserved his argument that the State failed to provide a sufficient 

foundation for Detective Gunzenhauser's testimony regarding the CDR report. Despite 

the State's objection that this issue was not preserved, we are persuaded that it merits our 

consideration on appeal.

Analysis of Objection to Foundation

"Evidentiary foundations come in all shapes and sizes, so there's no one-size-fitsall rule beyond the idea that the evidence be reliable enough to consider." Woessner v. 

Labor Max Staffing, 56 Kan. App. 2d 780, 793, 437 P.3d 992 (2019), rev. granted 310

Kan. ___ (September 19, 2019). The district court thus has considerable discretion when 

deciding whether evidentiary foundation requirements have been met. The district court's 

determination will not be reversed absent an abuse of that discretion. Wiles v. American 

Family Life Assurance Co., 302 Kan. 66, 73, 350 P.3d 1071 (2015).
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Whether a party laid an adequate evidentiary foundation is a question of fact. As a 

result, we will not disturb the district court's finding if substantial competent evidence 

supports its decision. 302 Kan. at 73. Substantial competent evidence is such legal and 

relevant evidence that a reasonable person could accept as adequate to support a 

conclusion. Geer v. Eby, 309 Kan. 182, 190, 432 P.3d 1001 (2019).

"'The proponent of a particular kind of evidence, whether it be a physical object or 

the testimony of a witness, is required to lay a foundation before it may be admitted into 

evidence.'" Wiles, 302 Kan. at 74 (quoting 3 Barbara, Kansas Law and Practice, Lawyers 

Guide to Kansas Evidence, § 1.9, p. 28 [5th ed. 2013]). No evidentiary rule explicitly 

requires a foundation for admission. Instead, a foundation is a "'loose term for 

preliminary questions designed to establish that evidence is admissible.'" Wiles, 302 Kan. 

at 74 (quoting A.I. Credit Corp. v. Legion Ins. Co., 265 F.3d 630, 637 [7th Cir. 2001]). 

The purpose of a sufficient foundation is to prevent the finder of fact from being exposed 

to inadmissible evidence. Wiles, 302 Kan. at 74.

Detective Gunzenhauser's testimony established that the CDR data was computergenerated information. Computer-generated information is a record entirely selfgenerated by the internal operations of a computer system and is not hearsay. See State v. 

Schuette, 273 Kan. 593, 596-98, 44 P.3d 459 (2002), disapproved of on other grounds by

State v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006). At trial, Detective Gunzenhauser 

explained that the CDR data was self-generated and stored by the internal operations of 

the vehicle's CDR. Since the CDR report was a computer-generated read out, it is not 

hearsay. Schuette, 273 Kan. at 598.

Although the CDR data is not hearsay, "Kansas courts require foundation 

testimony of the method of recording and the proper functioning of a mechanical device 

before the information obtained from the device is admissible." State v. Estill, 13 Kan. 

App. 2d 111, 114-15, 764 P.2d 455 (1988); see Schuette, 273 Kan. at 597-98 (noting a 
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foundation requirement of reliability which is satisfied through witness testimony 

providing that the device was operating properly). But even without testimony from 

Officer Seawood, a reasonable person could find that the State presented sufficient 

evidence to establish that the CDR was functioning properly and produced reliable 

information.

During trial, Detective Gunzenhauser testified regarding how a vehicle's CDR 

records information. Detective Gunzenhauser explained that Kellum's specific CDR 

would be triggered at a five-mile-an-hour impact and recorded data such as speed, seat 

belt usage, and cruise control usage. When triggered, the CDR stores this data and the 

information cannot be manipulated or removed. Detective Gunzenhauser testified that he 

received training on examining the data recorded from a vehicle's CDR. Based on his 

training, Detective Gunzenhauser determined the information downloaded from Kellum's 

CDR was not corrupted.

While Detective Gunzenhauser was not trained on using the CDR download 

equipment, he knew from personal experience how to use it. He watched others 

download information from a CDR about 15 or 20 times. On this occasion, Detective 

Gunzenhauser watched Officer Seawood use the same downloading equipment that other 

Shawnee officers used in his presence. Detective Gunzenhauser saw no glitches, 

connection troubles, or any other download problems when Officer Seawood obtained the 

data from Kellum's CDR. Moreover, the detective's testimony that the vehicles' 

respective damage suggested a high-speed impact collision adds to the reliability and 

trustworthiness of the CDR report. See Estill, 13 Kan. App. 2d at 116. The evidence 

provides a sufficient foundation to establish that the CDR was properly functioning and 

the information contained in the CDR report was reliable.

Relying on State v. Hurd, No. 113,867, 2016 WL 3128771 (Kan. App. 2016) 

(unpublished opinion), Kellum argues that the individual who downloaded the data—
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Officer Seawood—must testify before the CDR data was admissible in evidence. In 

Hurd, the district court admitted information collected from Hurd's cellphone in evidence 

even though the person who downloaded the information did not testify. A detective said 

he took the cellphone to "ITC" and ITC made an image of the cellphone's contents before 

categorizing the cellphone's information. 2016 WL 3128771, at *3.

On appeal, Hurd contended the State failed to provide an adequate foundation to 

admit the cellphone evidence. Our court did not directly address whether an adequate 

foundation was laid, but our court held that any potential error by the district court was 

harmless. 2016 WL 3128771, at *6. In dicta, our court noted, "[a]t the very least, it would 

seem that the State should have called the technician who downloaded the information 

from [Hurd's] cellphone to identify the software used and established the technician's 

familiarity with the software and confirmed its accuracy." 2016 WL 3128771, at *6.

Unlike the detective's testimony in Hurd, Detective Gunzenhauser could identify 

the equipment used and established his familiarity with the software used to download 

the CDR information. Detective Gunzenhauser identified that Officer Seawood used a 

Bosch system with a crash data retrieval tool which operated with the most recent version 

of the software at the time. The detective had observed this equipment in use and testified 

the he could personally operate the equipment. Finally, based on his training, Detective 

Gunzenhauser was able to determine the information was not corrupted.

The district court's determination that the State laid an adequate evidentiary 

foundation is supported by substantial competent evidence. We find that the district court 

did not abuse its discretion by admitting Detective Gunzenhauser's testimony about the 

CDR report.
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SUFFICIENCY OF EVIDENCE

Kellum next contends there was insufficient evidence at trial to support his 

convictions of vehicular homicide. Kellum asserts that even if he were driving 101 miles

per hour, the State's evidence was insufficient because speeding alone does not support a 

conviction for vehicular homicide.

When the sufficiency of evidence is challenged in a criminal case, we review all 

evidence in the light most favorable to the State. State v. Chandler, 307 Kan. 657, 668, 

414 P.3d 713 (2018). The conviction will be upheld if we are convinced that a rational 

fact-finder could have found the defendant guilty beyond a reasonable doubt based on 

that evidence. 307 Kan. at 668. In determining whether there is sufficient evidence to 

support a conviction, our court generally will not reweigh the evidence or reassess 

witness credibility. 307 Kan. at 668. Additionally, a verdict may be supported by 

circumstantial evidence if that evidence provides a basis for a reasonable inference by the 

fact-finder on the fact in issue. To be sufficient, circumstantial evidence need not exclude 

every other reasonable conclusion. State v. Logsdon, 304 Kan. 3, 25, 371 P.3d 836 

(2016).

Vehicular homicide is defined in K.S.A. 2019 Supp. 21-5406(a):

"Vehicular homicide is the killing of a human being committed by the operation 

of an automobile . . . in a manner which creates an unreasonable risk of injury to the 

person or property of another and which constitutes a material deviation from the 

standard of care which a reasonable person would observe under the same 

circumstances."

As used in the vehicular homicide statute, a "material deviation" is conduct 

amounting to more than simple or ordinary negligence but does not amount to gross and 

wanton negligence. State v. Krovvidi, 274 Kan. 1059, 1069, 58 P.3d 687 (2002); K.S.A. 
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2019 Supp. 21-5406(c). The totality of the circumstances must be considered when 

determining whether the manner in which the defendant operated the vehicle amounted to 

a material deviation from ordinary due care. 274 Kan. at 1069. In Krovvidi, the court held 

that a defendant's action of inattentively running a red light without other aggravating 

factors present—such as drinking, drug use, reckless driving, accelerating while 

approaching an intersection, or speeding—was not a material deviation from the ordinary 

standard of care. 274 Kan. at 1075.

Citing Perry v. Schmitt, 184 Kan. 758, 339 P.2d 36 (1959), Kellum argues that 

speeding alone cannot establish a material deviation from the ordinary standard of care. 

In Perry, the defendant argued that evidence of his speed failed to establish gross and 

wanton negligence. The court noted that "[w]hile speed alone is not sufficient to establish 

gross and wanton negligence, it is properly considered along with other facts and 

circumstances surrounding the occasion in determining whether defendant was guilty of 

wantonness." 184 Kan. at 763. The Perry court ultimately held that sufficient evidence 

supported the jury's finding of gross and wanton negligence because the defendant had 

been drinking, he drove 80 to 85 miles per hour on a highway, and the incident occurred 

on Christmas Eve when traffic was expected to be heavy.

Although speed alone may not establish gross and wanton negligence, vehicular 

homicide requires less culpability than that examined in Perry. Moreover, the degree of a 

speeding violation, when considered with the factual circumstances of the case, may be 

considered an aggravating factor supporting a material deviation from the ordinary 

standard of care. State v. Hazlett, No. 109,999, 2014 WL 4916558, at *9 (Kan. App. 

2014) (unpublished opinion) ("[I]f the [traffic] violation is speeding, the degree of 

speeding could be an aggravating factor."). Our Supreme Court has recognized that under 

certain circumstances, speeding may amount to a material deviation:
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"A driver of a vehicle exceeding the speed limit by 5 miles per hour would be in violation 

of the statute or ordinance establishing the same but would not be considered to be 

materially deviating from the standard. On the other hand a violation of exceeding the 

limit by 30 miles per hour, under certain circumstances such as in a school zone, might be 

a material deviation." State v. Randol, 226 Kan. 347, 354, 597 P.2d 672 (1979).

During trial, the State presented evidence that Kellum was driving over 100 miles

per hour in a residential area with a 30 mile-per-hour speed limit just before the collision. 

Kellum's excessive speeding occurred at night and while he was intoxicated. Kellum 

admitted to drinking before the collision, he had noticeably poor balance following the 

accident, and he had a BAC of .10 which would impair motor function and judgment.

Of note, although the jury acquitted Kellum of DUI, we may consider evidence of 

Kellum's intoxication in deciding whether the evidence supports the jury's guilty verdict 

on vehicular homicide. See State v. Hargrove, 48 Kan. App. 2d 522, 559-61, 293 P.3d 

787 (2013) (Even if a jury acquits a defendant of one charge, the court may consider 

evidence common to that charge and a second charge in determining the sufficiency of 

the evidence supporting the jury's guilty verdict on the second charge.).

Here, the State presented sufficient evidence from which a rational jury could find 

that Kellum's conduct amounted to more than ordinary or simple negligence under the 

totality of the circumstances. Viewing the evidence in the light most favorable to the 

State, we find that a rational jury could have found Kellum guilty of vehicular homicide 

beyond a reasonable doubt. Accordingly, Kellum's convictions of vehicular homicide are 

supported by sufficient evidence.

Affirmed.