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NOT DESIGNATED FOR PUBLICATION

No. 120,221

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

KENNETH EUGENE KLENKLEN,

Appellant.

MEMORANDUM OPINION

Appeal from Jefferson District Court; GARY L. NAFZIGER, judge. Opinion filed March 27, 2020. 

Affirmed.

Kevin P. Shepherd, of Law Office of Kevin P. Shepherd, of Topeka, for appellant. 

Joshua A. Ney, county attorney, and Derek Schmidt, attorney general, for appellee.

Before HILL, P.J., GREEN and WARNER,JJ.

PER CURIAM: Following a jury trial, Kenneth Eugene Klenklen was convicted on 

charges of driving under the influence (DUI), transporting an open container of alcohol, 

speeding, and driving on an expired license. Klenklen timely appeals his DUI conviction,

arguing that the State presented insufficient evidence for a finding of guilt beyond a 

reasonable doubt. For reasons stated later, we disagree.

Here, Klenklen argues that the State failed to prove beyond a reasonable doubt that 

he was so impaired that he could not safely operate his vehicle. Nevertheless, the State 

presented more than sufficient evidence to show that Klenklen was, in fact, too impaired 
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to drive. Specifically, the State introduced evidence that Klenklen smelled strongly of 

alcohol, that he had an open container of alcohol in his car within his reach, that he had 

bloodshot and watery eyes, that he appeared sluggish, that he could not maintain his 

balance while performing field sobriety tests, that he swayed back and forth during the 

tests, that he admitted to drinking earlier that day, and that he had difficulty following the 

officer's instructions. Klenklen maintains that there are alternative theories to explain 

why he was not drunk and why he could not perform the field sobriety tests—the same 

theories he presented at his jury trial. Thus, under a well-known appellate standard, this 

court is barred from reweighing the evidence or reevaluating witness credibility made 

below. When viewing the evidence in the light most favorable to the State, a reasonable 

fact-finder could believe beyond a reasonable doubt that Klenklen was impaired to the 

point that he could not operate his vehicle safely. So, we conclude that the State 

presented sufficient evidence to support Klenklen's DUI conviction and affirm the trial 

court.

On August 5, 2016, Oskaloosa Police Officer Jared Bammes stopped Klenklen for 

speeding after he saw Klenklen driving 52 mph in a 40-mph zone. When Bammes neared

Klenklen's car, he smelled a consumed alcoholic beverage odor and heavy cigarette 

smoke coming from inside the car. He also noticed that Klenklen's speech was slurred. 

Bammes asked Klenklen for his driver's license and proof of insurance. Although

Klenklen was able to provide his proof of insurance, he told Bammes that he did not have 

his driver's license. Klenklen gave Bammes his name and birthdate. While Klenklen was 

looking for his documentation, Bammes saw Klenklen smoking a cigarette and noticed an 

open Bud Light beer bottle in the rear center console cupholder and within Klenklen's 

reach. Bammes asked Klenklen if he had been drinking that night, and Klenklen 

responded, "No, sir." Bammes asked Klenklen about the Bud Light bottle in the rear 

cupholder near him, and Klenklen answered, "Who knows?" Klenklen stated that the 

bottle had not been from that night.
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Upon sending Klenklen's personal information to dispatch, Bammes learned that 

Klenklen's driver's license had expired on May 8, 2016. Bammes further learned that 

Klenklen had a previous DUI conviction from April 2012. Bammes then continued 

questioning Klenklen about the open container in the rear cupholder. Klenklen responded 

that he had people in his car earlier that day but assured Bammes, "I'm good, I'll tell you 

that." Bammes once again asked Klenklen if he had been drinking, and Klenklen 

responded he had one beer at 3 or 4 pm.

Bammes suspected that Klenklen was inebriated, so Bammes requested backup 

because he was not certified to administer standard field sobriety tests (SFSTs). 

Sometime later, Jefferson County Sheriff's Deputy Timothy Bacon arrived to help 

Bammes with his investigation. Bacon was certified to administer SFSTs and understood 

that he was called to help administer SFSTs on Klenklen. Bammes told Bacon that he 

stopped Klenklen for speeding, that he found an open Bud Light bottle in the car within 

Klenklen's reach, that Klenklen admitted to having one beer around 3 or 4 pm, and that 

he could only smell heavy cigarette smoke coming from the vehicle.

When Bacon neared the vehicle, he noticed the smell of consumed alcoholic 

beverage. He saw the open Bud Light bottle in the rear center console. Bacon also 

noticed that Klenklen's eyes were bloodshot and kind of watery and that Klenklen was 

smoking and had some sort of mint in his mouth. Bacon asked Klenklen how much 

alcohol had he drank that night. Klenklen responded, "Not shit." Shortly afterwards, 

Bacon asked Klenklen to step out of the car so that Bacon could administer the SFSTs. 

He also asked Klenklen when he had his last alcoholic drink, and he responded, "Three or 

four hours ago." Klenklen then admitted he had been drinking Bud Light beer just like 

the one that was open in the rear center console in his vehicle.

Bacon chose a smooth, flat surface on the shoulder of the road to administer the 

SFSTs. Bacon began with the walk-and-turn test. According to Bacon, this test is 
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designed to identify several impairment indicators, such as loss of balance during the 

instruction phase, starting the test too soon, stopping during the test, stepping off the line, 

using arms to balance, making an improper turn, or taking too many steps. While Bacon 

gave instructions on how to perform the test to Klenklen, Klenklen seemed to have 

difficulty following those instructions. For example, Klenklen tried starting the test 

approximately four times before Bacon finished giving him directions, even though 

Bacon told him to wait until after instructions were given. During this time, Klenklen also 

had trouble maintaining his balance, he appeared to sway back and forth, and he confused 

his left and right feet on two occasions.

Before officially beginning the test, Klenklen told Bacon that he had "health 

problems," but Bacon told Klenklen to start the test because Klenklen already tried 

starting the test several times and showed Bacon he could walk. During the test, Klenklen 

exhibited other signs of impairment: he raised his arms away from his body, he did not 

walk heel-to-toe all the way through the test as instructed, he stepped off the line, and he 

made an improper turn. Bacon determined that Klenklen had failed the walk-and-turn 

test.

Bacon then gave Klenklen instructions to perform the one-leg stand test, which is 

designed to identify the following impairment indicators: swaying, using arms to balance, 

and putting the foot down on the ground during the test. During the test, Bacon saw

Klenklen exhibiting various signs of impairment: he raised his arms up to help with 

balance, he lost his balance and his foot touched the ground several times, and he swayed 

from side to side. Bacon determined that Klenklen had failed the one-leg stand test. 

Based on Bammes' and Bacon's investigation and on Klenklen's failed SFSTs, Bammes 

arrested Klenklen for suspicion of DUI, transporting an open container of alcohol, 

speeding, and driving with an expired license.
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After handcuffing Klenklen and putting him in Bammes' patrol car, Bammes 

retrieved the open Bud Light bottle from the center rear console cupholder in Klenklen's 

vehicle. He noted that there was a little less than half a bottle of beer left. Bacon 

discovered a small empty bottle of Fireball whiskey lodged between the center console 

and the driver's seat of Klenklen's car. Bammes emptied the Bud Light bottle and bagged 

both the Bud Light and Fireball bottles for evidence. Bammes then transported Klenklen 

to the jail, and while Klenklen was in his patrol car, Bammes noted that he could smell 

the alcohol on Klenklen. 

On November 8, 2016, the State charged Klenklen with DUI in violation of K.S.A. 

2016 Supp. 8-1567(a)(3), transporting an open container, speeding, and driving without a 

valid driver's license. At the jury trial on August 21, 2018, the State called Bammes and 

Bacon to testify. Through Bammes and Bacon, the State presented the following 

evidence: (1) Klenklen had been speeding; (2) both officers noticed that Klenklen had an 

odor of alcohol in his vehicle and during the SFSTs; (3) Klenklen had bloodshot and kind 

of watery eyes; (4) Klenklen was heavily smoking and had a mint in his mouth—an 

indication that he was attempting to mask the smell of alcohol; (5) Klenklen was driving 

on an expired driver's license; (6) Klenklen had a prior DUI; (7) there was an open and 

partially full bottle of Bud Light in the center rear console cupholder within Klenklen's 

reach; (8) Klenklen's speech was slurred; (9) Klenklen appeared sluggish; (10) Klenklen 

exhibited a lack of balance at several points during the SFSTs; (11) Klenklen had 

difficulty following Bacon's instructions; (12) Klenklen failed the SFSTs; (13) Klenklen 

kept changing his story a bit each time, but ultimately admitted to drinking Bud Light 

beer earlier in the day; (14) there was a small empty bottle of Fireball whiskey in 

Klenklen's vehicle; and (15) Bammes noticed that Klenklen had an odor of alcohol in the 

patrol car. Specifically, both officers testified that based on what they saw, they believed 

that Klenklen was impaired to the point it would affect his ability to safely drive his 

vehicle.
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Klenklen testified in his defense. He stated that he was not drunk during the stop 

and that he had several health issues that prevented him from passing the SFSTs, such as 

hemochromatosis and Parkinson's disease. He further testified that these health issues 

affected his speech, balance, and coordination. Klenklen stated that he specifically told 

the officers that he could not perform the SFSTs because of these health issues. Yet, he 

also admitted that he drank three Bud Light beers earlier in the day but had stopped 

drinking by 4:30 or 5 p.m.

After deliberating, the jury found Klenklen guilty on all four counts. Klenklen's 

attorney moved for a judgment of acquittal based on lack of evidence, but the trial court 

denied the motion, stating that a reasonable man could find Klenklen guilty beyond a 

reasonable doubt based on the evidence presented. On October 4, 2018, the trial court 

sentenced Klenklen to one year in jail, but suspended the sentence, requiring Klenklen to 

serve only 48 hours in jail and 120 hours of electronic monitoring on house arrest. The 

trial court further ordered that Klenklen be placed on unsupervised probation for one year 

following his sentence. Klenklen timely appeals.

Was There Sufficient Evidence to Support Klenklen's DUI Conviction?

Standard of Review

When the sufficiency of the evidence is challenged in a DUI case, the standard of 

review is whether, after reviewing all the evidence in a light most favorable to the 

prosecution, the appellate court is convinced a rational fact-finder could have found the

defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence, 

resolve evidentiary conflicts, or make witness credibility determinations. State v. Duncan, 

44 Kan. App. 2d 1029, 1034, 242 P.3d 1271 (2010). Circumstantial evidence is sufficient 

for conviction if it provides a reasonable basis from which the fact-finder may reasonably 

infer each element. State v. Logsdon, 304 Kan. 3, 25, 371 P.3d 836 (2016). It is only in 
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rare cases in which trial testimony is so incredible that no reasonable fact-finder could 

find guilt beyond a reasonable doubt that a guilty verdict will be reversed. State v. 

Ramirez, 50 Kan. App. 2d 922, 936, 334 P.3d 324 (2014).

Discussion

Klenklen was convicted of DUI under K.S.A. 2016 Supp. 8-1567(a)(3), which 

states that no person shall "operat[e] or attempt[] to operate any vehicle [. . .] while [. . .] 

under the influence of alcohol to a degree that renders the person incapable of safely 

driving a vehicle." 

Klenklen argues that a rational fact-finder could not have found him guilty of DUI 

beyond a reasonable doubt because the State failed to produce direct evidence showing 

that Klenklen was so impaired he could not safely operate his vehicle. Klenklen contends 

that the evidence presented at trial shows that he only consumed alcohol at some point 

before driving his car. Specifically, Klenklen points out that Bammes was not trained to 

spot signs of impairment and could not properly suspect that Klenklen was impaired 

based only on the open container in Klenklen's vehicle, his admission that he had been 

drinking much earlier in the day, and the fact that he safely pulled his vehicle over for the 

stop. It should be noted that Klenklen does not challenge his convictions for transporting 

an open container of alcohol, speeding, or driving on an expired license. 

The evidence the State introduced at trial was more than sufficient to find that 

Klenklen was incapable of safely driving an automobile. Upon stopping Klenklen for 

speeding, Bammes smelled an odor of consumed alcohol and heavy cigarette smoke 

coming from inside Klenklen's car. Bammes noticed that Klenklen slurred his speech and 

appeared sluggish throughout each interaction. He saw an open and partially full Bud 

Light bottle in the rear cupholder well within Klenklen's reach. Klenklen could not 

produce his driver's license, and when Bammes ran Klenklen's information, he learned 
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that Klenklen had an expired license and had a previous DUI conviction. Klenklen 

admitted to Bammes that he had been drinking earlier that day. Based on this 

information, Bammes contacted Bacon to help perform the SFSTs.

When nearing Klenklen, Bacon also smelled an odor of consumed alcohol coming 

from the vehicle. He noted that Klenklen's eyes were bloodshot and watery. He saw the 

open Bud Light bottle in the rear cupholder. Klenklen admitted to Bacon that he had been 

drinking Bud Light beer—like the one in his car—earlier that day. While Bacon 

administered the walk-and-turn and one-leg stand tests, both he and Bammes smelled 

alcohol on Klenklen. They both saw him having difficulty listening and following 

Bacon's instructions. They both saw Klenklen sway and lose his balance at several points 

throughout the testing. They both witnessed Klenklen fail to perform the walk-and-turn 

and the one-leg stand tests correctly. Based on those observations, both officers 

determined that Klenklen was impaired to the point it would affect his ability to safely 

drive. So, Bammes arrested Klenklen. After arresting Klenklen, the officers found an 

empty bottle of whiskey in Klenklen's car, which was lodged between the center console 

and the driver's seat. While transporting Klenklen to the jail, Bammes also noted that 

Klenklen had a strong odor of alcohol coming from him. 

This court has upheld DUI convictions under K.S.A. 2016 Supp. 8-1567(a)(3)

based on similar circumstances in other cases. See Duncan, 44 Kan. App. 2d at 1034-35

(finding sufficient evidence of DUI was presented where defendant smelled of alcohol, 

had bloodshot and watery eyes, slurred his speech, had open alcoholic containers in his 

vehicle, failed the same SFSTs, and admitted to drinking earlier that day); State v. 

Wahweotten, 36 Kan. App. 2d 568, 591, 143 P.3d 58 (2006) (finding sufficient evidence 

of DUI was presented where defendant was speeding, had slurred speech and bloodshot 

eyes, smelled of alcohol, admitted to drinking earlier that day, and failed the same 

SFSTs); State v. Huff, 33 Kan. App. 2d 942, 945-46, 111 P.3d 659 (2005) (finding 

sufficient evidence of DUI was presented where defendant was speeding, driving off the 
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roadway, had slurred speech and bloodshot eyes, smelled of alcohol, and had a prior DUI 

conviction).

Klenklen provides various alternative explanations for his conduct during the 

traffic stop, but in doing so, he asks this court to reweigh the evidence and to reevaluate 

witness credibility. This court cannot do that. Viewing all of this evidence in the light 

most favorable to the State, a rational fact-finder could find that Klenklen consumed 

alcohol before operating a vehicle and that, based on his demeanor during the traffic stop 

and his performance on the field sobriety tests, such consumption impaired his ability to

safely drive his vehicle. In other words, a rational fact-finder could find beyond a 

reasonable doubt that Klenklen was operating his vehicle while under the influence of 

alcohol to a degree that rendered him incapable of safely driving a vehicle. For these 

reasons, we conclude that the State presented sufficient evidence to convict Klenklen of 

DUI under K.S.A. 2016 Supp. 8-1567(a)(3).

Affirmed.