1

NOT DESIGNATED FOR PUBLICATION

No. 123,108

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

KRISTAL DAWN GASKILL,

Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; KEVIN J. O'CONNOR, judge. Opinion filed January 28, 

2022. Affirmed.

Rick Kittel, of Kansas Appellate Defender Office, for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, 

attorney general, for appellee.

Before WARNER, P.J., MALONE and BUSER, JJ.

BUSER J.: This is an appeal by Kristal Dawn Gaskill of the district court's 

revocation of her probation. Gaskill contends there was insufficient evidence to show that 

she violated her probation by committing the offense of fleeing or attempting to elude an 

officer. Upon our independent review of the evidence, we hold the district court did not 

err. Accordingly, we affirm the district court's revocation of probation.
2

FACTUAL AND PROCEDURAL BACKGROUND

This case originated with Gaskill pleading no contest to residential burglary, in 

violation of K.S.A. 2017 Supp. 21-5807(a)(1), (c)(1)(A)(i), misdemeanor theft, in 

violation of K.S.A. 2017 Supp. 21-5801(a)(1), (b)(4), and misdemeanor possession of 

drug paraphernalia, in violation of K.S.A. 2017 Supp. 21-5709(b)(2), (e)(3). In exchange 

for her pleas, the State agreed to not recommend the district court impose the applicable 

special sentencing rule, which would have made Gaskill's sentence presumptive

imprisonment. Instead, the State agreed to recommend that the district court "follow the 

presumption [absent the special rule], which is anticipated to be probation."

At sentencing, the district court found Gaskill's criminal history score was D. 

Based on her violation of the conditions of bond while awaiting sentencing, the district 

court found the State was not bound by its sentencing recommendations in the plea 

agreement. As a result, the State asked the district court to apply the special sentencing 

rule and impose imprisonment. The district court sentenced Gaskill to a controlling 

sentence of 26 months' imprisonment but granted her a 24-month probation based on her 

motion for a dispositional departure.

Gaskill did not successfully complete her probation. On the contrary, she 

repeatedly violated the law and the terms of her probation, which resulted in her serving 

intermediate jail sanctions. Still, she was allowed to remain on probation.

On October 30, 2019, a warrant was issued alleging Gaskill violated her probation 

because she failed to report to her probation officer several times, she was discharged 

from substance abuse treatment for not attending therapy, and she failed to appear for an

intake interview with Comcare, a mental health and substance abuse facility.
3

In January 2020, another warrant was issued alleging that Gaskill violated several 

terms of her probation in an incident involving a high-speed police chase. As a result of 

this incident, Gaskill was charged in a separate criminal case with fleeing or attempting 

to elude an officer in violation of K.S.A. 2019 Supp. 8-1568(b)(1)(E), (c)(2) and driving 

while suspended or revoked in violation of K.S.A. 2019 Supp. 8-262(a)(1).

On June 30, 2020, the district court held a combined hearing, which included an 

evidentiary hearing on the two probation violation warrants, and a preliminary hearing on 

the fleeing or attempting to elude charge. At the hearing, Buck Herber, a former deputy 

sheriff with the Sedgwick County Sheriff's Office, testified regarding the fleeing or 

eluding charge.

Herber testified that just before midnight on January 17, 2020, he observed a white 

car driven by Gaskill traveling eastbound on MacArthur Road at a high rate of speed. 

Herber's radar unit showed the car was traveling 75 miles per hour in a 55 miles per hour

zone. Upon confirming the car's speed, Herber testified he turned on his emergency lights 

to initiate a traffic stop but the car did not stop, and a pursuit ensued.

Herber testified that while in pursuit, the car remained on MacArthur Road, but it 

did not remain 20 miles over the speed limit. Instead, "[t]he speeds changed" and the car 

"accelerated quickly." Herber testified that when Gaskill's car was traveling past 135th 

Street West, it was speeding about 90 miles per hour. When the car was traveling past 

119th Street West, it was speeding about 100 miles per hour.

As the pursuit continued, Herber observed Gaskill's car violate a stoplight at the 

intersection of MacArthur Road and K-42 Highway. Gaskill's car then proceeded 

eastbound on MacArthur Road. Herber testified that at some point after, the car slowed 

down to allow a passenger to leave the vehicle. Once the passenger left the car, Gaskill's 

vehicle accelerated rapidly and continued down MacArthur Road.
4

Sometime after the passenger exited the vehicle, another officer with the sheriff's 

department deployed "stop sticks" on MacArthur Road near Ridge Road. The stop sticks 

punctured the tires of the vehicle, but the vehicle did not stop. Later, after the stop sticks 

were deployed, one of the vehicle's tires fell off. Still, Herber testified that once Gaskill's 

car reached West Street, it was traveling 60 miles per hour in a 55 miles per hour zone. 

Herber also testified that Gaskill's car violated a stoplight at the intersection of 

MacArthur Road and Hoover. Eventually, the car left the road, went into a field, and 

Gaskill ran away. She was apprehended by another sheriff's deputy near the scene.

Gaskill's car was searched, and a firearm was located under the driver's seat. A 

pair of brass knuckles were found under the front passenger seat, and drug paraphernalia 

was found in the backseat of the car and inside a jacket found outside the car. Testifying 

at the probation violation hearing, Gaskill admitted to driving the car, but denied 

possessing the recovered firearm.

During the hearing, Gaskill's counsel argued that the State was "short a moving 

violation." Specifically, that the State had presented insufficient evidence to prove that 

Gaskill had committed the crime of fleeing or attempting to elude an officer by means of 

committing five or more moving violations during the pursuit. While conceding that 

Gaskill violated two stoplights, and was speeding after crossing West Street, defense 

counsel argued there was only "one unbroken period of speeding from the initial 

beginning of the stop to the point where the car slows down to let out a passenger." In 

short, defense counsel argued that the State had shown only four moving violations—one 

less than required—to establish the elements of the offense of fleeing or attempting to 

elude an officer.

The district court disagreed. It found the State presented evidence that Gaskill 

committed multiple speeding violations, along with her other moving violations, because 
5

Herber testified to Gaskill committing speeding violations at three different locations and 

speeds. The district judge explained:

"And I do understand and appreciate that the initial speeding is not counted as the 

five violations because, of course, the vehicle would not be fleeing from a police officer 

at that moment so of course that 75 in a 55 is not scored. The . . . former deputy testified 

that Ms. Gaskill was driving at speeds of 90 in a 55; at 100 in a 55; that she ran a red 

light. And then after she went over the stop sticks, that she was traveling at 60 miles an 

hour in a 55-mile-an-hour zone. And then she ran a red light."

. . . .

"I appreciate the argument, that it is continuous speeding, but you also have 

different areas where MacArthur crosses other roads. . . . So I will find that there were 

five or more moving violations that were committed."

As to the preliminary hearing, the district court found there was probable cause to 

believe Gaskill committed the offense of fleeing or attempting to elude an officer. After 

making its preliminary hearing ruling, the district court heard additional evidence related 

to Gaskill's probation violations. The State presented the testimony of Gaskill's probation 

officer, Elizbeth Veeder. Veeder testified to Gaskill's repeated failures to report, her 

failures to attend substance abuse treatments and the Comcare intake appointment.

At the conclusion of the hearing, the district court found four of the five 

allegations contained in the October 2019 probation revocation warrant were true based 

on the evidence presented at the hearing. Regarding the allegations in the January 2020 

probation revocation warrant, the district court found that four of the five claimed 

violations were not proven. However, the district court found a preponderance of the 

evidence established that Gaskill fled or attempted to elude Deputy Herber and, therefore, 

violated her probation.
6

Upon hearing recommendations from the parties, the district court revoked 

Gaskill's probation and imposed the underlying sentences. In ordering incarceration, the 

district judge stated:

"Fleeing and elud[ing], even though it is a low severity level, is a very dangerous 

offense. Ms. Gaskill was speeding at great speeds. Based upon the evidence here, she had 

other individuals in the car, so she not only put herself at risk, she put others at risk. She 

put the deputy who chased her at risk. She put anybody else that was on the road that 

night at risk."

Gaskill appeals.

REVOCATION OF PROBATION

The district court found Gaskill violated her probation on multiple grounds. 

Although the State alleged that Gaskill had violated 10 conditions of her probation, the 

district court ruled the State had proven 6 violations by a preponderance of the evidence. 

Importantly, on appeal, Gaskill only challenges the district court's revocation of her 

probation based on the commission of the new crime of fleeing or attempting to elude an 

officer, which she contends was used "as a primary basis to revoke probation." Gaskill 

concludes that "the commission of this new crime figured so heavily in the district court's 

decision," that our court should remand the case for a new probation hearing.

On appeal, Gaskill reprises the argument that was made in the district court—there 

was insufficient evidence to support the district court's finding that she committed five or 

more moving violations and, therefore, the district court erred in relying on this new 

criminal offense to revoke her probation. Additionally, for the first time on appeal, 

Gaskill claims the State did not meet its burden of proof because it failed to present 

evidence that the traffic violations were moving violations.
7

Standards of Review

Probation is an act of judicial leniency afforded a defendant as a privilege rather 

than a right. State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). A district court's 

decision to revoke probation usually involves two steps: (1) a factual determination that 

the probationer has violated a condition of probation; and (2) a discretionary 

determination as to the appropriate disposition in light of the proved violations. State v. 

Skolaut, 286 Kan. 219, Syl. ¶ 4, 182 P.3d 1231 (2008). In the present case, Gaskill 

appeals the first step of the probation revocation process.

The State must establish a probation violation by a preponderance of the evidence. 

State v. Inkelaar, 38 Kan. App. 2d 312, 315, 164 P.3d 844 (2007). A preponderance of 

the evidence is established when the evidence demonstrates a fact is more probably true 

than not true. 38 Kan. App. 2d at 315.

Our court reviews a district court's findings of fact to determine whether they are 

supported by substantial competent evidence. State v. Weber, 297 Kan. 805, 816, 304 

P.3d 1262 (2013). Substantial competent evidence is legal and relevant evidence that a 

reasonable person could accept as being adequate to support a conclusion. State v. May, 

293 Kan. 858, 862, 269 P.3d 1260 (2012). When reviewing for substantial competent 

evidence, appellate courts do not reweigh the evidence or assess the credibility of 

witnesses. State v. Combs, 280 Kan. 45, 50, 118 P.3d 1259 (2005).

Sufficiency of Evidence to Prove the Traffic Offenses Were Moving Violations

To establish that Gaskill fled or attempted to elude an officer, the State was 

required to prove by a preponderance of evidence that Gaskill fled or attempted to elude a 

pursuing police vehicle by means of committing five or more moving violations. See 

K.S.A. 2019 Supp. 8-1568(b)(1)(E). Under this subsection, the crime of fleeing or 
8

attempting to elude a police officer is a severity level 9, person felony. See K.S.A. 2019 

Supp. 8-1568(c)(2).

For the first time on appeal, Gaskill contends the State's evidence was insufficient 

to prove that she fled or attempted to flee Deputy Herber because the State "produced 

absolutely no evidence as to what acts constitute a moving violation." In other words, 

Gaskill argues the State needed to present evidence of what constitutes moving violations 

and without this evidence, the State failed to prove that Gaskill committed the moving 

violations.

Relying on our Supreme Court's holding in State v. Richardson, 290 Kan. 176, 

180-81, 224 P.3d 553 (2010), Gaskill asserts "the complex nature of what constitutes a 

moving violation for any particular purpose requires that some sort of evidence be 

presented to show that the acts relied upon by the State actually constituted moving 

violations."

Gaskill does not favor us with any on-point legal authority in support of her novel 

proposition. Although she relies on Richardson to argue the definition of a moving 

violation is "complex," she does not explain why the "complex" nature of moving 

violations requires the State to present evidence regarding what constitutes a moving 

violation. 290 Kan. at 181. In Richardson, the defendant challenged his conviction for 

felony fleeing or eluding by arguing that the district court erred by not defining "moving 

violations" for the jury. 290 Kan. at 179. Our Supreme Court found that clear error 

existed because the fleeing or eluding statute did not define "moving violations" and 

"[t]he definition of moving violation [was] not a simple matter of common knowledge 

among jurors." 290 Kan. at 181.

The holding in Richardson, however, provides no support for Gaskill's argument. 

Richardson dealt with the necessity of providing a jury instruction defining the term 
9

"moving violations" so the jury could apply the law to the facts of the traffic offenses and 

determine if the traffic offenses were moving violations. 290 Kan. at 181. Richardson did 

not suggest that evidence must be presented to prove the meaning of "moving violations."

As the State argues in their brief: "What constitutes a moving violation is not a question 

of fact subject to the presentation of evidence. What constitutes a moving violation is a 

question of law."

Our Supreme Court has held K.A.R. 92-52-9 "refers to a list of Kansas statutes 

and states unequivocally that violations of these statues constitute moving violations."

State v. Jenkins, 311 Kan. 39, 55-56, 455 P.3d 779 (2020). Gaskill does not assert that the 

traffic offenses in this case did not constitute moving violations. Nevertheless, our 

reading of K.A.R. 92-52-9(a)(1)(Q) (speeding in violation of K.S.A. 8-1558 is a moving 

violation) and K.A.R. 92-52-9(a)(1)(I) (failure to obey a traffic control device in violation 

of K.S.A. 8-1507 is a moving violation) convinces us that the five traffic violations were 

properly designated as moving violations.

Gaskill's claimed error is simply that the State failed to present evidence proving 

the meaning of "moving violations." We agree with the State that the meaning of moving 

violations is a question of law not fact. Given that this probation revocation matter was 

presided over by a district judge knowledgeable in applying the law to the facts, we are 

convinced the State was not required to present evidence on this legal issue.

Sufficiency of Evidence to Prove Fleeing or Attempting to Elude an Officer

Next, Gaskill specifically challenges the district court's finding that, in addition to 

the two stoplight violations, Gaskill violated the speed limit on three occasions during the 

pursuit. On the contrary, Gaskill argues the three speeding violations "cannot be counted 

as separate acts of speeding" because they "occurred during the uninterrupted and 

continuous pursuit of the suspect car." According to Gaskill, "[o]nly one act of speeding 
10

could have arisen from the evidence that was produced." In summary, although in the 

district court Gaskill asserted the State had only proven four traffic violations, on appeal 

she argues that the State only proved three traffic violations—two stoplight violations 

and one continuous speeding violation.

Our independent review of Herber's testimony convinces us that he testified to 

three separate speeding violations in excess of three posted speed limits at three different 

locations at three different times. Herber testified:

"[PROSECUTOR:] At 135th Street West, how fast was the vehicle going?

"[HERBER:] She was going at approximately 90 miles an hour, ma'am.

"[PROSECUTOR:] Was that the marked speed limit on 135th Street?

"[HERBER:] No, ma'am.

"[PROSECUTOR:] Was that in violation of the marked speed limit?

"[HERBER:] Yes, ma'am.

"[PROSECUTOR:] What was the white vehicle driving at on 199th Street West?

"[HERBER:] Approximately 100 miles an hour, ma'am.

"[PROSECUTOR:] Was that the marked speed limit at 119th Street West?

"[HERBER:] No, ma'am.

"[PRSECUTOR:] was that a violation of that speed limit?

"[HERBER:] Yes, ma'am."

After Gaskill slowed the car to allow a passenger to leave the vehicle and the stop 

sticks were deployed, Herber observed Gaskill accelerate and once again exceed the 

posted speed limit for a third time:

"[PROSECUTOR:] Okay. At some point does the vehicle accelerate past the 

speed limit once the stop sticks have been deployed?

"[HERBER:] Yes, ma'am.

"[PROSECUTOR:] Where was that?

"[HERBER:] It was approximately West Street, ma'am.
11

"[PROSECUTOR:] And what was the posted speed limit on West Street?

"[HERBER:] 55, ma'am.

"[PROSECUTOR:] And did the vehicle go faster than that?

"[HERBER:] Yes, ma'am.

"[PROSECUTOR:] Do you know how much faster?

"[HERBER:] Approximately 60 miles an hour."

Despite Gaskill's assertion to the contrary, Herber's testimony shows that Gaskill 

committed three speeding violations. Herber observed Gaskill driving 90 miles per hour 

at 135th Street West, in violation of the 55 miles per hour posted speed limit. Herber then 

observed Gaskill driving 100 miles per hour at 119th Street West, in violation of the 55 

miles per hour posted speed limit. And after slowing the car to permit a passenger to 

leave the vehicle and the stop sticks were deployed, Herber observed Gaskill accelerate to 

60 miles per hour at West Street, in violation of the 55 miles per hour posted speed limit.

In Gaskill's view, there were not three instances of speeding but only one. He 

argues:

"The police pursuit in the instant case was continuous and uninterrupted from the 

time it began until the time it ended when the suspect car came to a full stop and Ms. 

Gaskill allegedly ran from the car. There were times during the pursuit when the suspect 

car slowed and accelerated, but these junctures did not interrupt the continuous pursuit."

Once again, Gaskill does not provide us with any on-point caselaw precedent in 

support of his legal contention, and we are unaware of any such precedent.

Gaskill's argument presumes that speeding violations may be continuous in nature. 

On the contrary, K.S.A. 2019 Supp. 21-5107(f) provides: "An offense is committed 

either when every element occurs, or, if a legislative purpose to prohibit a continuing 

offense plainly appears, at the time when the course of conduct or the defendant's 
12

complicity therein is terminated." Recently, our Supreme Court reaffirmed that "the 

doctrine [of continuing offenses] applies only in limited circumstances and requires a 

clear expression of legislative intent. Without that clear expression, courts presume the 

Legislature did not intend to create a continuing offense." (Emphasis added.) State v. 

Valdiviezo-Martinez, 313 Kan. 614, 627, 486 P.3d 1256 (2021) (citing State v. Gainer, 

227 Kan. 670, 672-73, 608 P.2d 968 [1980]).

The moving violation of speeding is committed when every element occurs. Under 

K.A.R. 92-52-9(a)(1)(Q) a "moving violation" includes violating the "[m]aximum speed 

limits" permitted under K.S.A. 2019 Supp. 8-1558. See K.A.R. 92-52-9(a)(1)(Q) 

("'Moving violation' means a conviction for violating . . . [a]ny of the following Kansas 

Statutes . . . K.S.A. 8-1555 through K.S.A. 8-1560b"); K.S.A. 2019 Supp. 8-1558 

(delineating "[m]aximum speed limits"). And under K.S.A. 2019 Supp. 8-1558(a), "the 

limits specified" by the statute "or established as authorized by law shall be maximum 

lawful speeds, and no person shall operate a vehicle at a speed in excess of such 

maximum limits." (Emphasis added.)

The plain language of the relevant statutes provides that when a person is 

operating a vehicle in excess of the maximum speed limit, that person violates K.S.A. 

2019 Supp. 8-1558, which qualifies as a moving violation under K.A.R. 92-52-

9(a)(1)(Q). There is no language in either the regulation or the statute that suggests the 

Legislature intended for the offense of speeding to be considered a continuing offense.

In summary, although Gaskill traveled on the same road—MacArthur Road—the 

speeding violations occurred at three different speeds, in excess of the 55 miles per hour

posted speed limit at three separate locations and at three separate times. A reasonable 

person could accept these facts as being adequate to support the conclusion that Gaskill 

committed three separate speeding violations. See 293 Kan. at 862. We hold that 

substantial competent evidence supports the district court's finding that Gaskill 
13

committed the crime of fleeing or attempting to elude an officer while she was on 

probation. Accordingly, the district court did not err by revoking Gaskill's probation and 

ordering her to serve the sentences imposed.

Affirmed.