1

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 115,227

STATE OF KANSAS,

Appellee,

v.

JEREMY CLAERHOUT,

Appellant.

SYLLABUS BY THE COURT

1.

Evidence of a prior diversion agreement for driving while intoxicated may be 

relevant to establishing that a defendant was on notice that driving while intoxicated is 

dangerous.

2.

The admissibility of evidence under K.S.A. 60-455 is subject to harmless error 

analysis on appeal.

3.

It is not necessary that an expert witness demonstrate expertise in every theory, 

principle, or scientific discipline underlying the knowledge, skill, experience, training, or 

education that may qualify an expert witness to give testimony.

4.

Voluntary intoxication is not a defense to reckless second-degree murder.
2

Review of the judgment of the Court of Appeals in 54 Kan. App. 2d 742, 406 P.3d 380 (2017). 

Appeal from Johnson District Court; SARA WELCH, judge. Opinion filed December 6, 2019. Judgment of 

the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

Meryl Carver-Allmond, of Capital Appellate Defender Office, argued the cause and was on the 

brief for appellant. 

Kendall S. Kaut, assistant district attorney, argued the cause, and Shawn E. Minihan, assistant 

district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, were on the 

brief for appellee.

The opinion of the court was delivered by

ROSEN, J.: Driving while intoxicated, Jeremy M. Claerhout caused the death of 

another driver in a rear-end collision. He was convicted of reckless driving and seconddegree murder for unintentional but reckless homicide. A divided panel of the Court of 

Appeals affirmed the conviction, and this court granted review on all issues for which 

review was sought.

The facts underlying the legal issues in this case are essentially undisputed.

FACTS

On the afternoon and evening of January 11, 2015, Claerhout and two friends

visited several bars in Olathe, Kansas. All three men consumed beers and cocktails at 

each of the bars, and, based on his own recollections and the testimony of bartenders, it is 

estimated that Claerhout consumed approximately five 12-ounce beers, four 24-ounce 

beers, one 32-ounce beer, and one or two vodka cocktails that afternoon and evening. 
3

After about an hour at the third bar, the three men got into Claerhout's black Ford F-150 

pickup truck and headed back toward a bar they had visited earlier. Claerhout was 

driving. 

A short time later, a witness standing outside her place of employment saw a white 

car drive by; a few seconds later she saw a black Ford truck go by at a high rate of speed, 

its engine revving and the tires spraying water in the rain. Ten to 15 seconds afterwards, 

she heard a loud impact sound, which prompted her to call 911. Another witness, who 

was stopped at an intersection, saw a white Mazda propelled past the intersection at 

approximately 90 miles per hour out onto the right side of the grassy shoulder, hit and 

break a cable pole, proceed at least another 100 yards, and come to a stop upon colliding 

with an iron fence on the other side of the street. She saw a black pickup truck 

approaching from behind and at the same speed as the Mazda; it then slowed to a stop. 

She also called 911.

Police and paramedics found the Mazda smashed into a wrought iron fence. The 

driver was wearing his seatbelt, and the airbags had deployed. The driver's seat was 

broken off its track and had slid backwards, and the driver was unconscious, on the 

dashboard and facing the roof. 

The front of the truck was damaged, and a piece from the rear end of the Mazda 

was stuck in the front end of the truck. The three occupants of the truck all told police 

that they did not know what had happened. Claerhout had bloodshot, watery eyes and the 

odor of alcohol on his breath, and he was slurring his words. He was smoking a freshly lit 

cigarette, which officers asked him to extinguish. He put out the cigarette but then lit 

another one and continued to smoke it after being asked to put it out. He said he had no 

idea what happened. Police performed walk-and-turn and one-leg-stand field sobriety 
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tests on him, which he failed. He was arrested and taken to a police station, where an 

Intoxilyzer 8000 breath test was administered at 11:30 that night. The breath sample 

indicated a blood alcohol content of .211, more than twice the legal limit of .08. 

The accident took place in a mixed residential and office area where the speed 

limit was 40 miles per hour. Based on tracks on the grass and the roadway as well as 

damage to objects along the way, Officer John Moncayo reconstructed what happened 

before and after the collision. There was no braking by either vehicle before the collision. 

The truck struck the Mazda at a slight angle on the rear passenger side, propelling the 

Mazda onto the grass, where it struck and sheared off a medium-sized tree at its base. The 

car continued forward and struck a utility pole, breaking it in half and leaving the top half 

of the pole suspended by the cable line. The car then swerved back onto the road, crossed 

the center line, struck the curb, went over a small hill, and stopped when it struck a 

wrought iron fence. In all, the Mazda traveled some 848 feet after the impact. 

The driver, Christopher Willdermood, was taken to a nearby hospital, where 

imaging showed significant bleeding in the back of his brain. He was declared brain-dead 

on February 14, 2015. Blood analyses showed no signs of narcotics or alcohol in his 

body. The cause of death was listed as complications from a blunt injury to the head. 

The State charged Claerhout with second-degree murder for unintentional but 

reckless homicide or, in the alternative, involuntary manslaughter while driving under the 

influence of alcohol, and an additional count of reckless driving. The defense theory at 

trial was that Claerhout was highly intoxicated and incapable of safely driving at the time 

of the accident, and he therefore was guilty of involuntary manslaughter but not guilty of 

second-degree murder. 
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The jury entered a verdict of guilty on the count of second-degree murder, guilty 

on the count of involuntary manslaughter while driving under the influence of alcohol, 

and guilty of the count of reckless driving. Because the jury found Claerhout guilty of 

both alternative homicide charges, the trial court vacated the conviction on the count of 

involuntary manslaughter while driving under the influence. The court sentenced him to a 

standard term of 117 months for second-degree murder and a concurrent 30-day sentence 

for reckless driving. 

A panel of the Court of Appeals affirmed the conviction, with one judge 

dissenting. State v. Claerhout, 54 Kan. App. 2d 742, 406 P.3d 380 (2017) This court 

granted review on all issues raised in the petition for review. 

ANALYSIS

Evidence of Prior Diversion Agreement

In 2010, Claerhout entered into a diversion agreement subsequent to an arrest for 

driving while intoxicated. According to the statements of counsel at a motion to suppress, 

the arrest was made after a stop for a missing tail light; there was no indication of 

dangerous driving and no accident was involved. At trial, the State was allowed to 

introduce the diversion agreement, without explanation, for the purpose under K.S.A. 

2016 Supp. 60-455(b) of proving knowledge that driving while intoxicated is dangerous. 

Claerhout argues that this evidence should not have been introduced at all, and the 

manner in which it was introduced defeated the statutory basis for admitting it.

K.S.A. 2018 Supp. 60-455(a) makes evidence of a prior crime or civil wrong 

inadmissible for the purpose of proving a disposition to commit such an act on another 
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occasion. K.S.A. 2018 Supp. 60-455(b) allows such evidence of a prior crime or civil 

wrong when it is "relevant to prove some other material fact including motive, 

opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or 

accident."

When the State seeks to introduce evidence of prior bad conduct under K.S.A. 60-

455, that evidence must be material, and its probative value must outweigh its potential 

for producing undue prejudice. State v. Gunby, 282 Kan. 39, 48, 144 P.3d 647 (2006). 

Whether such evidence is material—meaning that the evidence has some real bearing on 

the decision in the case—is reviewed independently, without deference to the district 

court. Whether the evidence is relevant to prove a disputed material fact is reviewed only 

for abuse of discretion. Whether the probative value of the evidence outweighs the 

potential for undue prejudice against the defendant is also reviewed only for abuse of 

discretion. State v. Haygood, 308 Kan. 1387, 1392-93, 430 P.3d 11 (2018). 

A district court abuses its discretion when: (1) no reasonable person would take 

the view adopted by the judge; (2) a ruling is based on an error of law; or (3) substantial 

competent evidence does not support a finding of fact on which the exercise of discretion 

is based. State v. Boysaw, 309 Kan. 526, 539, 439 P.3d 909 (2019). 

The jury found Claerhout guilty of both reckless second-degree murder and 

involuntary manslaughter. Claerhout contends the diversion agreement was improperly 

introduced in order to prove recklessness and, without it, the jury might have convicted 

him of only the involuntary manslaughter charge.

K.S.A. 2018 Supp. 21-5403(a)(2) defines reckless second-degree murder as the 

killing of a human being committed "unintentionally but recklessly under circumstances 
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manifesting extreme indifference to the value of human life." This crime is a severity 

level 2 person felony. K.S.A. 2018 Supp. 21-5403(b)(2).

Advocating outside the presence of the jury for admitting the diversion agreement, 

the prosecutor stated the purpose of the diversion evidence was to prove to the jury that 

Claerhout had been educated to the reality that driving while intoxicated was dangerous 

and his decision to drive while intoxicated was therefore reckless.

The court agreed with the State's basis for admitting the evidence, stating that the 

diversion agreement would demonstrate that Claerhout "should be on notice as to what 

the problems of drinking and driving are based upon his prior experience." The Court of 

Appeals agreed, holding that the diversion agreement was relevant to show Claerhout's 

heightened knowledge of the risks of driving under the influence. 54 Kan. App. 2d at 

750-51.

The Tenth Circuit Court of Appeals has considered a similar question and agreed 

that evidence of prior drunk driving is admissible as tending to show knowledge of the 

dangers of driving while intoxicated: 

"A jury could infer from Defendant's prior drunk driving convictions that he is 

especially aware of the problems and risks associated with drunk driving. We agree that 

'[o]ne who drives a vehicle while under the influence after having been convicted of that 

offense knows better than most that his conduct is not only illegal, but entails a 

substantial risk of harm to himself and others.'" United States v. Tan, 254 F.3d 1204, 

1210 (10th Cir. 2001) (quoting People v. Brogna, 202 Cal. App. 3d 700, 709, 248 Cal. 

Rptr. 761 (1988).
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Many courts have cited to Tan as support for admitting evidence of prior 

convictions for driving while intoxicated. See, e.g., United States v. New, 491 F.3d 369, 

374-75 (8th Cir. 2007) (while evidence of prior crimes is not admissible to prove bad 

character or propensity to commit bad acts, it may be admissible to prove requisite 

knowledge); United States v. Norris, 649 F. Supp. 2d 968, 969-70 (D. Ariz. 2009) 

(evidence showing defendant previously convicted of driving under the influence 

admissible to prove malice), United States v. Miller, No. 13-CR-1867 WJ, 2014 WL 

12796762 (D. N. Mex. 2014) (unpublished opinion); State v. St. Clair, 101 Haw. 280, 

288, 67 P.3d 779 (2003) (evidence showing defendant involved in automobile accident 

while driving intoxicated less than four years before charged accident involving 

pedestrian death was relevant in manslaughter prosecution to prove defendant acted 

recklessly when driving after consuming at least 12 beers); Commonwealth v. Diehl, 2016 

Pa. Super. 93, 140 A.3d 34, 40 (2016) (evidence of defendant's prior DUI convictions and 

alcohol awareness classes was admissible to establish mens rea in vehicular homicide 

case premised on DUI accident). See also United States v. Loera, 923 F.2d 725, 729 (9th 

Cir. 1991) (prior convictions admitted to prove malice); United States v. Fleming, 739 

F.2d 945, 949 (4th Cir. 1984) ("[T]he driving record was relevant to establish that 

defendant had grounds to be aware of the risk his drinking and driving while intoxicated 

presented to others.").

We agree with our Court of Appeals and with courts in other jurisdictions. And 

while a diversion for driving under the influence is not a conviction, the statutory 

requirements and specific details outlined in the agreement essentially serve the same 

purpose in showing its relevance. (See generally K.S.A. 2018 Supp. 8-1567[i][1] and 

[i][6].) Even if it was never demonstrated what the content of the required instruction 

mandated by the diversion agreement was, or even whether he actually attended the 

educational programs, by agreeing to and signing the agreement Claerhout acknowledged 
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an understanding that driving while intoxicated is a dangerous and illegal activity. The

jury reasonably could have concluded from the diversion agreement that Claerhout was 

on notice that driving while intoxicated is risky behavior, and his decision to engage in 

that behavior demonstrated reckless conduct. 

This is not the end of the analysis, however. Claerhout argues that, even if the 

diversion agreement had some probative value, that value was outweighed by its 

prejudicial effect. 

This court has established safeguards limiting the introduction of K.S.A. 60-455 

evidence: The material fact that the evidence is introduced to prove must be disputed, 

and the probative value of the evidence must outweigh its potential for producing undue 

prejudice. Boysaw, 309 Kan. at 539.

The district court in the present case conducted a generalized, superficial weighing 

of the probative value of the evidence against the potential for undue prejudice, making 

the conclusory determination that "the probative value of the evidence outweighs its 

prejudicial effect."

Recognizing the risks that inhere in admitting evidence of other crimes or previous 

bad conduct, we recently articulated an analytic framework for district courts to apply 

before exposing jurors to such potentially prejudicial evidence:

"In evaluating the probative value of evidence of other crimes or civil wrongs, 

the district court should consider, among other factors: how clearly the prior act was 

proved; how probative the evidence is of the material fact sought to be proved; how 

seriously disputed the material fact is; and whether the government can obtain any less 
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prejudicial evidence. In evaluating the possible prejudicial effect of evidence of other 

crimes or civil wrongs, the district court should consider, among other factors: the 

likelihood that such evidence will contribute to an improperly based jury verdict; the 

extent to which such evidence may distract the jury from the central issues of the trial; 

and how time consuming it will be to prove the prior conduct." Boysaw, 309 Kan. at 541.

In the present case, the district court's stated reasoning was so abbreviated that we 

cannot determine what factors, if any, it considered in reaching its conclusion that the 

probative value outweighed the potential prejudicial effect. To be sure, the Boysaw

factors are not exclusive or all-encompassing, but the district court skirted carrying out its 

duty to protect a defendant from undue prejudice.

We need not at this time decide how little or how much analysis a district court 

must display to satisfy the Boysaw due process mandates. Reversible error does not 

necessarily result in failing to weigh various factors on the record. We have recognized 

an implicit determination by a district court that the probative value of K.S.A. 60-455 

evidence outweighs the risk of undue prejudice when the court stated that it had reviewed 

other caselaw for guidance in carrying out such a weighing procedure. State v. Remmert, 

298 Kan. 621, 628, 316 P.3d 154 (2014), disapproved on other grounds by State v. Jolly, 

301 Kan. 313, 342 P.3d 935 (2015). Although the district court in the present case did not 

state on the record as much analysis as did the Remmert district court, we hold that any 

deficiency in the analysis was harmless. 

Admission of evidence under K.S.A. 60-455 is subject to harmless error analysis. 

See, e.g., Gunby, 282 Kan. at 59. Here, the evidence was introduced for the stated 

purpose of tending to show that Claerhout was aware that driving while intoxicated is 

dangerous. Claerhout contends that the risk of prejudice is that the jury might instead 
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view the diversion agreement as evidence that he had a propensity to drive while 

intoxicated, thus suggesting that, even in the absence of evidence of actual intoxication in 

the present case, the jury would assume he was intoxicated or punish him for his prior 

offense. 

That risk of undue prejudice is minimal here. The evidence that he was intoxicated 

was substantial and uncontroverted; Claerhout conceded intoxication in his opening and 

closing arguments. He further conceded that he was driving at a speed far in excess of the 

legal limit and that his driving caused the death of the victim. 

Furthermore, the district court gave the jury a limiting instruction: 

"Evidence has been admitted tending to show that the defendant committed a 

crime other than the present crime charged. This evidence may be considered solely for 

the purpose of determining whether or not the defendant acted with extreme indifference 

to the value of human life as alleged in Count I." 

This limiting instruction is required as a prophylactic to guard against the danger 

that the jury will view K.S.A. 60-455 evidence as tending to show propensity. See

Gunby, 282 Kan. 39, Syl. ¶ 3; State v. Wilkerson, 278 Kan. 147, 153, 91 P.3d 1181 

(2004). If such an instruction did not provide some protection against the harm of which 

Claerhout complains, it would be nothing more than a superfluous requirement. 

We continue to encourage district courts to state on the record the factors

considered in weighing the admissibility of K.S.A. 60-455 evidence. We disagree with 

the Court of Appeals panel majority when it stated that the district court was not required 

to explicitly weigh factors used in determining that the probative value of the evidence 
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outweighed its prejudicial effect because the same risk that the jury would be inclined to 

view the diversion agreement as propensity evidence arises every time K.S.A. 60-455 

evidence is admitted. Claerhout, 54 Kan. App. 2d at 754. Not all evidence is equally 

prejudicial, just as not all evidence is equally probative. We nevertheless find any 

deficiencies in the district court's reasoning to be harmless.

Police Officer's Testimony About Vehicle Speeds

Over Claerhout's pretrial motion to exclude and over a continuing objection at 

trial, Officer Matt Misemer testified to crash data retrieval reports he generated from data 

stored in both the truck's and the car's airbag control modules. Misemer testified about his 

training in investigation and reconstruction, including the ability to analyze crash data 

retrieval download information. He concluded with an evaluation of the relative speeds of 

the two vehicles at the time of the collision. Claerhout argues on appeal that Misemer was 

not qualified to testify about scientific and mathematical conclusions.

The admission of expert testimony lies within the discretion of the district court 

and will not be reversed without a showing that the court abused its discretion. State v. 

Graham, 246 Kan. 78, 81, 785 P.2d 983 (1990).

Misemer testified about the relative speeds of the two vehicles at the time of the 

collision. He testified that the airbag control module records such information as vehicle 

speed, braking, throttle, and engine rotation and retains that information for five seconds. 

He explained that he used software that connected to the modules and that translated the 

raw data into usable information, such as vehicle speed. 
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His report on the data processing results showed that the truck was moving 86 

miles per hour five seconds before impact and had accelerated to 92 miles per hour at the 

time of impact. The results showed that the truck was being driven at full throttle during 

that time; it could not accelerate any faster. Both the module data and the absence of skid 

marks showed that the brakes of the truck were not applied during the five seconds before 

contact. 

Misemer next testified about the results downloaded from the Mazda. The data 

contained information about the five seconds before the car struck the tree, triggering the 

airbag. Earlier information, specifically at the moment of impact with the truck, was not 

preserved within the five-second loop. Five seconds before the car struck the tree, it was 

traveling 62 miles per hour, and it slowed to 47 miles per hour by the time of impact with 

the tree. Misemer entered this information, along with the data from the truck and the 

weight of the respective vehicles, into a formula to calculate the speed of the Mazda 

when the truck ran into it. He calculated that the Mazda was traveling at 47 miles per 

hour, plus or minus five percent, at the moment of the collision with the truck. 

Claerhout did not cross-examine Misemer, and he offered no evidence to rebut 

Misemer's testimony.

K.S.A. 2018 Supp. 60-456(b) governs whether an expert witness is qualified to 

testify: 

"If scientific, technical or other specialized knowledge will help the trier of fact 

to understand the evidence or to determine a fact in issue, a witness who is qualified as an 

expert by knowledge, skill, experience, training or education may testify thereto in the 

form of an opinion or otherwise if: (1) The testimony is based on sufficient facts or data; 
14

(2) the testimony is the product of reliable principles and methods; and (3) the witness 

has reliably applied the principles and methods to the facts of the case."

Claerhout challenges Misemer's expertise to testify about the scientific basis for 

reaching his conclusions about the velocities and acceleration or deceleration rates of the 

vehicles. Misemer conceded at a motion to suppress hearing that he did not understand 

the laws of physics on which the software platforms were based. On the other hand, 

Misemer presented considerable evidence that he was experienced and qualified to utilize 

the software and to understand the data that it provided him. 

Claerhout would have this court adopt a requirement that experts be able to 

demonstrate their expertise from the ground up. For example, Claerhout challenged 

Misemer to show that he would be able to teach a college physics class and explain the 

difference between Newtonian and Einsteinian laws governing mass and momentum. 

Claerhout's challenge would seem to require that an expert who presents testimony 

on what he or she has seen through a microscope must also be able to explain the optical 

qualities of microscopes, or that an expert on reading radiograms should be able to 

explain the high-energy physics of x-ray generation. We disagree that expertise in an area 

must extend to the theories and principles underlying the discipline that is the subject of 

the expert's testimony.

This court has not previously ruled on the degree to which an expert must be able 

to demonstrate knowledge of the principles underlying the expert's expertise. The statute 

states with simple clarity that "knowledge, skill, experience, training or education" are the 

prerequisite qualifications for serving as an expert witness. The statute does not require 

that training or experience must be so thorough that the expert understands the physics or 
15

chemistry underlying the training or experience. As one federal district court stated: "We 

do not practice science in court and we do not insist that our expert witnesses do either." 

Mercado v. Ahmed, 756 F. Supp. 1097, 1101 (N.D. Ill. 1991).

Discussing a statute similar to our Kansas rule for admitting expert witnesses, the 

Georgia Court of Appeals explained: 

"The requirements for qualification as an expert witness are minimal; generally, nothing 

more is required to qualify an expert than evidence that the person has been educated in a 

particular trade, science, or profession. Formal education or training in an area of 

expertise is not necessary, provided the witness possesses the qualifications of such area 

of expertise through skill and experience. It is the possession of special knowledge 

derived either from experience, study, or both in a field of expertise that makes one an 

'expert.' [Citations omitted.]" In the Interest of C.W.D., 232 Ga. App. 200, 206, 501 

S.E.2d 232 (1998).

Misemer testified to his training, proficiency testing, and extensive experience in 

accident reconstruction and using crash data retrieval. He demonstrated a special 

knowledge that would be helpful to the trier of facts. This background sufficed to meet 

the statutory requirements for qualification as an expert witness. 

Claerhout did not challenge the reliability of the hardware in the vehicles at 

measuring data or of the software used in processing the data. The results to which 

Misemer testified were consistent with other evidence admitted at trial. Eyewitness 

Megan Kliethermes testified she thought Claerhout was driving 90 miles per hour just 

before the collision and the victim was not driving that fast. Eyewitness Hilda Avila 

testified that there was nothing unusual or contributory in the manner the victim was 

driving; his car drove past her "like any other vehicle would drive by." Misemer's 
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analysis of the electronic data provided simply confirmed the visual impressions of those 

witnesses. 

We find nothing in the record that undermines either Misemer's expertise in 

reading crash data retrieval or the reliability of his testimony. Accordingly, we find no 

error.

Voluntary Intoxication Instruction

Claerhout sought to assert a voluntary intoxication defense against the charge of 

reckless second-degree murder, contending that his intoxication rendered it impossible 

for him to have a reckless state of mind. The district court denied his requested 

instruction, and the Court of Appeals affirmed. 54 Kan. App. 2d at 762-63. He argues that 

the defense refutes the element of a reckless state of mind.

This court follows a four-step progression when reviewing challenges to jury 

instructions: First, it considers the reviewability of the issue from both jurisdiction and 

preservation viewpoints, exercising an unlimited standard of review; next, it applies 

unlimited review to determine whether the instruction was legally appropriate; then, it 

determines whether there was sufficient evidence, viewed in the light most favorable to 

the defendant or the requesting party, that would have supported the instruction; and 

finally, if the district court erred, this court determines whether the error was harmless, 

utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 

P.3d 801 (2011), cert. denied 565 U.S. 1221 (2012). State v. Murrin, 309 Kan. 385, 391, 

435 P.3d 1126 (2019).
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We limit our analysis here to the question of whether, under the uncontested facts 

of this case, the requested instruction was factually appropriate. Generally, a defendant is 

entitled to instructions on the law applicable to his or her defense theory if the evidence 

suffices for a rational factfinder to find for the defendant on that theory. If that defendant 

requests an instruction at trial, the court must view the evidence in the light most 

favorable to the defendant. This court examines jury instructions as a whole, without 

focusing on any single instruction, to determine whether they properly and fairly state the 

applicable law or whether it is reasonable to conclude that they could have misled the 

jury. Murrin, 309 Kan. at 391-92.

It is counterintuitive to posit that an individual can be so drunk that he or she is 

incapable of engaging in reckless conduct. The statutory definition of reckless seconddegree murder involves a killing committed "unintentionally but recklessly under 

circumstances manifesting extreme indifference to the value of human life." (Emphasis 

added.) K.S.A. 2018 Supp. 21-5403(a)(2). The qualifying words suggest an objective 

element of the crime: the circumstances show whether the behavior was reckless. If the 

circumstances manifest extreme indifference to the value of human life, the offense was 

committed recklessly. 

The uncontested evidence showed that Claerhout got into his truck, started it, 

drove down a roadway, decided to accelerate to 90 miles per hour, conversed with the 

two passengers, stopped his truck when he realized that he had hit something, and lit and 

smoked cigarettes when interviewed by police. We conclude that the mental capability to 

engage in and carry out those activities demonstrated the minimal sufficient mental 

capacity to engage in reckless conduct. Had he been so extremely intoxicated that he lost 

the capacity to consciously disregard a risk of harming others, he also would have lost the 

capacity to consciously operate a vehicle in this fashion and converse with others. 
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In Murrin, this court quoted from LaFave on Substantive Criminal Law. 309 Kan. 

at 394. LaFave suggests that the degree of consciousness required for recklessness is 

quite low, perhaps even as low as the degree of consciousness required to put a key in a 

truck's ignition: 

"'Recklessness' in causing a result exists when one is aware that his conduct might cause 

the result, though it is not substantially certain to happen. One may act recklessly if he 

drives fast through a thickly settled district though his chances of hitting anyone are far 

less than 90%, or even 50%. Indeed, if there is no social utility in doing what he is doing, 

one might be reckless though the chances of harm are something less than 1%. Thus, 

while 'knowledge' and the knowing-type of 'intention' require a consciousness of almostcertainly, recklessness requires a consciousness of something far less than certainty or 

even probability." 1 LaFave, Substantive Criminal Law §5.4(f) (3d ed. 2018).

Another treatise explains that courts have historically declined to give a voluntary 

intoxication instruction for crimes based on recklessness: 

"The mental state of 'recklessness' ordinarily requires that the defendant be aware 

of and disregard a substantial risk that a particular harm will occur. If the crime charged 

requires recklessness, intoxication is ordinarily not a defense. The intoxication may be so 

extreme as to prevent the defendant from being aware of the pertinent risk. Nevertheless, 

it is commonly provided that if the defendant, as a result of voluntary intoxication, is 

unaware of a risk of which he would have been aware had he been sober, such 

unawareness is immaterial. The supportive theory is that there is enough 'recklessness'

involved in voluntarily becoming grossly intoxicated—given the general understanding 

in our culture that extreme intoxication lessens inhibitions, provides an outlet for 

aggressive tendencies, and blunts perception and judgment—to warrant criminal 

liability." 2 Wharton's Criminal Law §111 (15th ed. 2019).
19

Consistent with Wharton's view, courts have allowed the prosecution to introduce 

evidence of voluntary intoxication to prove recklessness, which is the contrary of 

Claerhout's position that intoxication should be considered a defense to recklessness. 

State v. Jones, 283 Kan. 186, 209, 151 P.3d 22 (2007) (evidence of voluntary intoxication 

alone is not enough to warrant instruction on reckless second-degree murder), 

disapproved on other grounds by State v. Nelson, 291 Kan. 475, 243 P.3d 343 (2010); 

State v. Drennan, 278 Kan. 704, 715, 101 P.3d 1218 (2004) (intoxication can eliminate 

intent to kill but may not supply by itself extreme recklessness element of unintentional 

second-degree murder); see also People v. Miller, 75 Ill. App. 3d 775, 777-78, 394 

N.E.2d 783 (1979) (evidence of intoxication is admissible to prove recklessness in 

prosecution for reckless homicide); Commonwealth v. Cobb, 399 Mass. 191, 503 N.E.2d 

945 (1987) (reduction of conviction to manslaughter not abuse of discretion when 

evidence suffice to support finding that, due to intoxication, defendant acted in reckless 

fashion); People v. Colonna, 147 A.D.2d 582, 537 N.Y.S.2d 877 (1989) (defendant 

contended he could not have acted recklessly in killing victim; court disagreed, holding 

voluntary intoxication does not negate element of recklessness necessary to sustain 

conviction of second-degree manslaughter); People v. Vasquez, 104 A.D.2d 429, 478 

N.Y.S.2d 947 (1984) (evidence that defendant was drunk during incident would have 

supported finding that defendant acted recklessly and not intentionally; trial court should 

have instructed on lesser included offense of reckless manslaughter).

The common thread in all of these cases is that evidence of intoxication was 

treated by the courts as evidence of recklessness. We disagree with Claerhout's theory 

that evidence of his intoxication tends to show he could not attain a reckless state of mind 

because of his impaired mental function. 
20

Because we determine that the requested voluntary intoxication instruction was 

not factually appropriate, we need not determine whether it could have been legally 

appropriate. The district court did not err in refusing the requested instruction.

We conclude that no error infected the district court rulings on the three issues that 

Claerhout raised in his petition for review. We affirm the judgments of the Court of 

Appeals and the district court.

PATRICK J. MCANANY, Senior Judge, assigned.1

______________________

1REPORTER'S NOTE: Senior Judge McAnany was appointed to hear case No. 

115,227 under the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the 

vacancy on the court created by the retirement of Justice Johnson.