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Buser, J.:
T.G., a juvenile, appeals the district court’s denial of credit for time served while in a residential juvenile sexual misconduct program prior and subsequent to his sentencing. We affirm.
Factual and Procedural Background
T.G. was charged with one count of rape on April 30, 2003. He was placed in a juvenile detention center, and a detention hearing was set for May 2, 2003. The journal entry of the detention hearing indicates T.G. was placed in the custody of the Juvenile Justice Authority (JJA) with the “recommendation he remain in detention until placement is available.” On May 20,2003, the JJA placed T.G. at the Marillac Center, where he was enrolled in a juvenile sexual misconduct program.
T.G. filed an “ADMISSION TO CHARGE” in the juvenile case on September 22, 2003. The document, signed by T.G. and witnessed by his counsel, contained the following agreement:
“The State will amend the sole count of the complaint to aggravated indecent solicitation of a child, a violation of K.S.A. 21-3511, a severity level 6 person felony. [T.G.] will stipulate to the amended charge. The parties agree to a 24 month underlying sentence in a juvenile correctional facility, to be stayed for a period of 36 months for placement in JJA custody with authority for out of home placement. Both parties will recommend that [T.G.] receive residential treatment focused on sexual behavior problems.”
The district court accepted T.G.’s plea on the same day. The district court maintained custody with the JJA and ordered a juvenile presentence investigation report (PSI).
The court services officer recommended a minimum term of 18 months in a juvenile correctional facility and 12 months of aftercare. He recommended that the sentence be stayed, that T.G. be kept in JJA custody with authority for out of home placement, and that T.G. be ordered “to complete an approved Sexual Offender treatment program prior to his release from JJA and follow all recommendations of treating physicians and therapists while in custody.”
At sentencing on November 3,2003, the district court sentenced T.G. “to a term of incarceration in Juvenile Correctional Facility for a period of 18 months,” with 24 months of aftercare. The district court further ordered “that the term of incarceration previously imposed herein be stayed and that [T.G.] remain [in] the care, custody and control of the [JJA] with authority for placement.” The district court recommended placement at Marillac. The district court also ordered “that [T.G.] complete the Sexual Offenders Program and follow all the recommendations for treatment and aftercare.”
T.G. made initial progress at Marillac, but on November 5,2004, the State filed a motion to “revoke the placement of [T.G.] with the [JJA], that [T.G.] be ordered to serve the sentence previously imposed herein and that [T.G.] be ordered to complete all Sexual Offender counseling available while incarcerated in the Juvenile Correctional Facility.” At a hearing November 15, 2004, T.G/s counsel stipulated that his client had failed to complete the sexual offender treatment program at Marillac. Based on this stipulation, the district court found “no question . . . that [T.G.] is in violation of die order of this Court which had directed the completion of a sex offender treatment program.” The district court said the only remaining issue was “what disposition order can or should be made.”
T.G/s counsel argued his client should receive credit for the time at Marillac because “that placement did occur as a result of a Court order,” and that T.G. “was in fact in custody for purposes of the statute and should receive full credit for time served.” The district court rejected T.G/s argument, however, holding T.G. was not incarcerated because Marillac is a treatment facility. The district court also noted that T.G., as a juvenile, would be in placement somewhere, and “it would work against the terms of tire intended meaning of this statute to allow someone that has been in an alternative placement to get credit for that placement.”
Jurisdiction
Prior to oral arguments, we issued a show cause order requesting that the parties brief whether we had jurisdiction pursuant to K.S.A. 38-1681(c)(2)(B). In particular, we raised the issue of whether T.G. was attempting to impermissibly appeal from a sentence that was the result of an agreement between the State and the defendant which was approved on the record by the sentencing court.
The State argues that “K.S.A. 38-1681(c)(2)(B) specifically states that the appellate court cannot review any sentence resulting from an agreement between the state and the defendant which the sentencing court approves on the record.”
T.G. asserts a two-fold argument. First, K.S.A. 38-1681(c)(2)(B) “does not state, however, whether it is referring to agreements as to a specific sentence or simply to agreements regarding a specific offense.” Second, even if the statute applies, “its provisions do not extend to the determination of credit for time served because that determination is a separate and distinct issue having no impact on the sentence imposed.”
We are persuaded that the crux of T.G/s appeal is not to review the propriety of the sentence imposed in this case, but simply to consider whether the district court properly denied T.G. credit for time served prior and subsequent to the sentence imposed. As a result, the provisions of K.S.A. 38-1681(c)(2)(B) do not preclude appellate jurisdiction and we may consider the sole issue of credit for time served.
Credit for Time Served
T.G. maintains the district court was required under K.S.A. 38-16,133 to provide credit for the time he spent at Marillac against the term of his commitment to a juvenile correctional facility. Interpretation of a statute is a question of law subject to unlimited review. State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003).
K.S.A. 38-16, 133 states in part:
“In any action pursuant to the Kansas juvenile justice code . . . the judge, if sentencing the respondent to confinement, shall direct that, for the purpose of computing respondent’s sentence and release, eligibility and conditional release dates thereunder, that such sentence is to be computed from a date, to be specifically designated by the court in the sentencing order. Such date shall be established to reflect and shall be computed as an allowance for the time which the respondent has spent incarcerated pending the disposition of the respondent’s case.” (Emphasis added.)
Although the Juvenile Justice Code does not define the word “incarcerated,” the statutes which authorized T.G/s eventual placement at Marillac provide some definitional guidance. Under K.S.A. 38-1663(a)(4), placement in the custody of the JJA must be accomplished “as provided in K.S.A. 38-1664.” Pursuant to that statute, “[t]he court shall have no power to direct a specific placement by the commissioner, but may make recommendations to the commissioner.” K.S.A. 38-1664(b). The JJA has the power to place a juvenile offender in “a community mental health center,” among other options. K.S.A. 38-1664(b).
Regardless of the restrictive life at Marillac, T.G. was not there pursuant to a court order. In the ADMISSION TO CHARGE, T.G. voluntarily requested placement in “residential treatment focused on sexual behavior problems,” and the JJA, which had custody of T.G. after his removal from home, determined the appropriate placement of T.G. was at Marillac. These facts are important to the determination of whether T.G. may be considered to have been incarcerated while at Marillac.
Juvenile proceedings are not part of the criminal code, but the operative clause in K.S.A. 2004 Supp. 21-4614, “time which die defendant has spent incarcerated pending the disposition of the defendant’s case,” is repeated in K.S.A. 38-16,133, with the substitution, in this instance, of “respondent” for “defendant.” In the criminal context, the Kansas Supreme Court recently examined whether a defendant should receive jail time credit under K.S.A. 21-4614 for time spent under “house arrest, where he was electronically monitored and ordered to be locked down’ 24 hours a day.” State v. Guzman, 279 Kan. 812, 814, 112 P.3d 120 (2005).
In Guzman, our Supreme Court analyzed three cases cited by T.G. on appeal, State v. Palmer, 262 Kan. 745, 942 P.2d 19 (1997), State v. Mackley, 220 Kan. 518, 552 P.2d 628 (1976), and State v. Parks, 27 Kan. App. 2d 544, 6 P.3d 444 (2000), not in terms of the restrictions placed on the respective defendants, but on whether they were out of jail on bond. Guzman, 279 Kan. at 814-15. Where, as in Palmer and Paries, the defendants were out on bond, they received no jail time credit. In Mackley, by contrast, the defendant received jail time credit while in court-ordered custody at a state hospital to determine his competency to stand trial. Applying its analysis to the facts in Guzman, our Supreme Court held the defendant there was not entitled to jail time credit:
“Unlike Mackley, Guzman was free on bail, i.e., he had control over his place of custody inasmuch as he had a choice between (1) being released on bond to be in his own home under house arrest and (2) remaining in jail.
“Guzman, choosing to be released on bail bond and accepting house arrest with 24-hour-a-day electronic monitoring as additional conditions of release, is not entitled to jail time credit for that period.” 279 Kan. at 815.
Just as in the criminal context a defendant may accept certain restrictions to be out of jail on bond, in the juvenile context a respondent may voluntarily request and agree to certain restrictions to be in the custody of the JJA rather than at a juvenile correctional facility. Guzman suggests that, once a defendant or respondent accepts those restrictions as preferable to incarceration, that individual may not claim those restrictions rendered his or her situation equivalent to incarceration.
Finally, we note that a case similar to the present one was decided by this court in In re W.M., Case No. 90,277, unpublished opinion filed December 24,2003. In that case, W.M. was a juvenile offender who stipulated to the commission of indecent liberties with a child. The issue before the court was whether W.M., upon his later commitment to a juvenile correctional facility was entitled to credit for time previously served while at Maxillae.
In analyzing K.S.A. 38-16,133, Judge Lewis observed: “It is perfectly obvious from reading the statute that a juvenile offender is only entitled to jail time credit for time he or she has spent incarcerated pending the disposition of his or her case.” Slip op. at 3. The determinative factor, the court reasoned, was whether the individual claiming the credit had been sent to that facility pursuant to court order. The court concluded that incarceration as used in K.S.A. 38-16,133 meant placexnent in a facility where the juvenile offender, if he or she escaped, would be subject to a charge of escape from custody in violation of K.S.A. 21-3809 or 21-3810. The critical factor to both statutes was whether the individual was placed at a facility pursuant to court order.
In In re W.M., the court held:
“W.M. was not placed in the treatment facilities by court order. The Juvenile Justice Authority placed him in those facilities in an effort to rehabilitate him. Since he was not in a treatment facility pursuant to court order, he would not be subject to an escape charge if he left the facility; therefore, he was not incarcerated per K.S.A. 38-16, 133 and is not entitled to any credit for time spent in the treatment facilities.” Slip op. at 4.
We are persuaded by the reasoning in In re W.M.
In the present case, T.G. willingly entered into a beneficial agreement by which he avoided incarceration by voluntarily seeking “residential treatment focused on sexual behavior problems.” This residential treatment afforded by Marillac was not ordered pursuant to the court, but by the JJA. Whether employing our Supreme Court’s analysis in Guzman or the rationale used in In re W.M., we hold that T.G. was not entitled to credit for time spent at Marillac prior and subsequent to his sentencing.
Affirmed. | [
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Caplinger, J.:
Slone Hayes appeals the district court’s denial of her motion to suppress and motion to dismiss for lack of jurisdiction. She argues the police officer who stopped the vehicle in which she was a passenger was outside of his jurisdiction at the time of the stop, requiring dismissal of the charges. She further asserts that the stop was unlawful because the driver of the vehicle was detained longer than necessary for purposes of the initial traffic stop, and the driver’s subsequent consent was tainted by the illegal stop.
We affirm the trial court’s denial of Hayes’ motion to dismiss, finding the officer had jurisdiction to make the stop pursuant to K.S.A. 2005 Supp. 22-2401a(2)(b). However, we reverse the trial court’s denial of Hayes’ motion to suppress based upon our conclusion that the driver was detained longer than necessaiy to complete the traffic stop and her subsequent consent did not purge the taint of the illegal detention.
Background
On October 18,2004, at 2:25 a.m., City of Newton Police Officer Bryan Hall responded to a call for assistance from a fellow officer located at mile marker 33 on Interstate 135 (1-135) in Newton. As he traveled east on Highway 50 to 1-135 North, Hall left the city limits. However, before Hall arrived at his destination, the call for assistance was cancelled.
Hall continued to travel east on Highway 50, knowing he would reenter the city limits at the Anderson Avenue exit. Just before he reached that exit, Hall observed a vehicle east of the exit and within the city limits traveling westbound approximately 8 miles over the speed limit. Hall turned around and caught up with the vehicle outside city limits. Hall activated his emergency lights and pulled the vehicle over.
Officer Hall then proceeded to ask the driver, Cleopatra Nichols, a series of questions, including where she was headed; why she was on Highway 50 east instead of 1-135 north; where she lived; why her vehicle had Virginia plates; and how long she and her passenger, Slone Hayes, had been traveling together. Nichols responded to each of these questions in turn, indicating that she and Hayes were traveling to Junction City from Arkansas, where Nichols had dropped off her child; that she apparently was lost because she thought she was on 1-135; that she lived in Junction City but had Virginia license plates because she was in the military, stationed at Fort Riley; and that she and Hayes had been traveling for 2 days.
Officer Hall testified that as he questioned Nichols, he looked for evidence she and Hayes had been traveling. Hall documented his findings in his police report:
“I noticed even though the two had just taken a trip with a small child, there wasn’t a single item of luggage in the passenger’s compartment of the vehicle. I noticed a blanket and a coat in the back seat, but no over night bag, children’s games, snacks, or beverage containers. I found it odd there would be no luggage or toiletry items for two women taking a two day trip.”
Hall returned to his patrol car and ran computer checks, but nothing came back suspect. Hall also called for a back-up officer and waited for the other officer to arrive before again contacting Nichols.
At the preliminary hearing, Hall testified regarding his subsequent contact with Nichols:
“A. I decided to give the driver a warning.
“Q. Okay. Did you go inform the driver of that?
“A. Yes. I contacted the driver and asked her to come back to the back of the car to where I could speak with her and she walked back with me.
“Q. Okay.
“A. I gave her back her driver’s license and her insurance paperwork and I told her that I wasn’t going to write her a ticket and that I would be happy to give her directions back to 1-135 so she could head north towards Salina and eventually to Junction City.
"Q. What happened after that, Officer Hall?
“A. She said that she was appreciative of that and I asked her that if I could ask her a few questions.
“Q. Okay. What was her reply?
“A. She said to go ahead.”
Officer Hall’s preliminary hearing testimony essentially repeated the information in his police report. Hall’s suppression hearing testimony, however, differed as to his conversation with Nichols when he returned her documentation:
“A. I decided to give the driver a warning, I exited my patrol car, I recontacted her, I asked her if she would step out and come to the back with me. She did.
“I gave her back her information, I told her I was going to give her a warning on the speeding. And then I told her that as far as that was concerned, we were done and that I would be happy to give her directions back to 1-135 and on to Salina.
“Q. Okay. And what happened next?
“A. Uh, she thanked me for — for giving her a warning and letting her go and being willing to give her directions. I asked her if I could ask her a few questions for a moment, she said, sure.” (Emphasis added.)
Rather tiran provide Nichols with directions as Hall had indicated he would, Hall testified he then questioned Nichols again about her destination and where she had come from. Hall also asked Nichols about her relationship to Hayes and asked if Nichols had any weapons in her car, to which she laughingly responded no. However, according to Hall, when he asked Nichols if she had drugs in her car, she sheepishly responded no. Hall testified this led him to believe there might be narcotics in tire vehicle.
Hall then asked Nichols if she minded if he searched her vehicle, and Nichols replied yes, while motioning with her hand towards the vehicle. Hall clarified with Nichols that she was agreeing to permit him to search the vehicle, and she again responded yes. At this point, Hall asked Hayes to step out of the vehicle and stand with the officer who had arrived to assist Hall.
Hall searched the vehicle and found an “Oreo Minis” cup containing a small Ziploc bag of marijuana. The State charged Hayes with possession of a marijuana without a drug tax stamp, possession of marijuana, and possession of drug paraphernalia. However, tire State dismissed the tax stamp charge after the subsequent KBI lab report indicated the marijuana weighed less than the 28 grams required to charge the defendant with failure to affix a drug tax stamp. See K.S.A. 79-5202; K.S.A. 79-5204; K.S.A. 2005 Supp. 79-5205; K.S.A. 79-5208.
In the district court, Hayes moved to dismiss for lack of jurisdiction arguing Hall was outside his jurisdiction at the time of the stop. Hayes also filed a motion to suppress arguing Hall unjustifiably prolonged the detention and Nichols’ consent to search was involuntary. At the suppression hearing, the district court denied the motion to dismiss finding Hall had jurisdiction to conduct the stop outside the city limits because he was in “fresh pursuit” pursuant to K.S.A. 2005 Supp. 22-2401a(2)(b).
The district court issued a letter decision denying the motion to suppress based upon a finding the traffic stop became a consensual encounter after Officer Hall returned Nichols’ documentation. The district court made no factual findings, provided no legal authority for its decision, but did indicate an intent to issue a more detailed decision at a later time. However, the record contains no such subsequent decision.
At the bench trial, the parties stipulated to the facts presented in the preliminary hearing, the suppression hearing, and the officers’ reports. The district court found Hayes guilty of possession of marijuana and possession of drug paraphernalia and noted Hayes reserved her right to appeal the legal issues raised in her prior motions.
Hayes appeals, arguing the district court erred in finding Officer Hall had jurisdiction to conduct the traffic stop pursuant to K.S.A. 2005 Supp. 22-2401a(2)(b). She further argues the district court erroneously denied her motion to suppress because the driver and she were detained longer than necessary to complete the traffic stop, and the driver’s subsequent consent did not purge the taint of the illegal detention. Finally, Hayes argues the district court erred by finding sufficient evidence to bind her over for trial on the charge of possession of a controlled substance without a tax stamp.
Initially, we note this latter issue is moot as the State ultimately dismissed the tax stamp charge. See State v. Aleman, 16 Kan. App. 2d 784, 786, 830 P.2d 64, rev. denied 251 Kan. 940 (1992) (“An appellate court will not render opinions in appeals which present moot issues or where the judgment could have no practical effect on a then-existing controversy.”).
Officer s jurisdiction for the stop
Hayes first argues the district court erred in denying her motion to dismiss as Hall was outside his jurisdiction at the time of the stop. Because this issue involves interpretation of K.S.A. 2005 Supp. 22-2401a(2)(b), we exercise unlimited review. See State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003).
In relevant part, K.S.A. 2005 Supp. 22-2401a(2)(b) states: “Law enforcement officers employed by any city may exercise their powers as law enforcement officers: . . . (b) in any . . . place when ... in fresh pursuit.” K.S.A. 2005 Supp. 22-2401a(9)(d) defines “fresh pursuit” as “pursuit, without unnecessary delay, of a person who has committed a crime, or who is reasonably suspected of having committed a crime.”
Without benefit of authority, Hayes argues Hall was not in fresh pursuit because Hall was outside the city limits and not in pursuit of Nichols when he first saw Nichols commit a traffic violation. We find no basis to conclude the “fresh pursuit” provision of K.S.A. 2005 Supp. 22-2401a(2)(b) limited Hall’s jurisdiction to stop Nichols’ vehicle in this instance. See City of Prairie Village v. Eddy, 14 Kan. App. 2d 661, 798 P.2d 66 (1990) (municipal police officer’s extraterritorial arrest of defendant was valid as having been made after a fresh pursuit, where officer’s pursuit of defendant’s vehicle was continuous and without delay and was based upon officer’s observation of defendant committing a traffic infraction).
Although Officer Hall was outside the city limits when he observed tire traffic violation, Nichols was within the city limits when she committed it. Without unnecessary delay, Officer Hall briefly pursued Nichols and stopped her vehicle just outside the city limits. We agree with the district court that the stop came within the officer’s jurisdiction under K.S.A. 2005 Supp. 22-2401a(2)(b), and we thus affirm the denial of Hayes’ motion to dismiss.
Scope of detention
In arguing the district court erred in denying her motion to suppress, Hayes does not contest the validity of the initial traffic stop but instead maintains Officer Hall detained Nichols and Hayes longer than necessary to complete the traffic stop.
Before considering the merits of Hayes’ argument, we note that although Hayes was a passenger in Nichols’ vehicle, she has standing to challenge the scope of the stop. See State v. Epperson, 237 Kan. 707, 717-18, 703 P.2d 761 (1985) (although passenger had no standing to challenge the search of a car that did not belong to him, he had standing to challenge the search of the vehicle where the search resulted from an illegal stop); see also State v. Maybin, 27 Kan. App. 2d 189, 200, 2 P.3d 179, rev. denied 269 Kan. 938 (2000) (passenger’s right to challenge search of vehicle is a consequence of the illegal seizure of the passenger’s person).
When reviewing a motion to suppress evidence, we determine whether the factual underpinnings of the trial court’s decision are supported by substantial competent evidence. However, the ultimate legal conclusion drawn from those facts is a legal question requiring the appellate court to apply a de novo standard of review. We do not reweigh the evidence. See State v. Green, 32 Kan. App. 2d 789, 792, 89 P.3d 940, rev. denied 278 Kan. 849 (2004). When the facts material to a trial court’s decision on a motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law over which an appellate court has unlimited review. State v. Ramirez, 278 Kan. 402, 404, 100 P.3d 94 (2004).
A law enforcement officer conducting a routine traffic stop may request a driver’s license and vehicle registration, run a computer check, and issue a citation. However, when the driver has produced a valid license and proof that he or she is entitled to operate the car, the driver must be able to proceed on his or her way without being subject to further delay by the officer for additional questioning. State v. Mitchell, 265 Kan. 238, 245, 960 P.2d 200 (1998). Indeed, “[a]n investigative detention must last no longer than is necessary to effectuate the purpose of the stop. [Citation omitted.]” State v. DeMarco, 263 Kan. 727, 734, 952 P.2d 1276 (1998). Further questioning is permissible only if (1) the encounter between the officer and the driver ceases to be a detention, but becomes consensual, and the driver voluntarily consents to additional questioning or (2) during the traffic stop, the officer gains a reasonable and articulable suspicion that the driver is engaged in illegal activity. See DeMarco, 263 Kan. at 734.
Here the State does not suggest Officer Hall had reasonable suspicion to subject Nichols to additional questioning. Instead, the State maintains the stop became a consensual encounter when Hall returned Nichols’ documentation and she agreed to answer more questions.
Although Hall had returned Nichols’ documentation at that time he asked her to answer a few more questions, this “does not always indicate that an encounter has become consensual.” United States v. Anderson, 114 F.3d 1059, 1064 (10th Cir. 1997). In determining whether an encounter between an officer and citizen has ceased to be a detention and has instead become a consensual encounter, we consider whether a reasonable person in the defendant’s position would feel free “ ‘ “to disregard the police and go about his business.” ’ ” State v. Reason, 263 Kan. 405, 410, 951 P.2d 538 (1997). In conducting this analysis, we must consider the totality of the circumstances. State v. Moore, 34 Kan. App. 2d 795, 802, 124 P.3d 1054 (2005) (citing Anderson, 114 F.3d at 1064).
Several objective factors may indicate a coercive show of authority, including the presence of more than one officer, the display of a weapon, physical contact by the officer, or use of a commanding tone of voice. Moore, 34 Kan. App. 2d at 802. Further, in considering whether the detention becomes a consensual encounter, the court may consider whether the officer informed tire person subject to the traffic stop of the freedom to depart. Nevertheless, a law enforcement officer is not required to inform an individual of his or her right to terminate the encounter. Moore, 34 Kan. App. 2d at 802 (citing Reason, 263 Kan. at 413).
Here, Officer Hall stopped Nichols for speeding at approximately 2:25 a.m. and activated his emergency lights. A second officer was called to provide back-up. At the time Officer Hall returned Nichols’ documentation, Nichols was standing outside of her vehicle in front of both officers and both patrol vehicles, as she had been requested to do by Officer Hall. According to his testimony at the preliminary hearing, Officer Hall did not indicate whether Nichols was free to go at that time. Assuming the trial court accepted Officer Hall’s suppression testimony, however, then Officer Hall told Nichols “as far as that [is] concerned, we [are] done.”
In determining whether the officer exceeded the scope of the initial stop when he asked Nichols to answer further questions after returning her documentation, we are guided by the court’s analysis in Moore, 34 Kan. App. 2d 795. There, the defendant was stopped for a traffic infraction and as the officer returned the defendant’s documentation, he told the defendant he was “finished with him” or had nothing further for him. 35 Kan. App. 2d at 802. The officer then immediately asked the defendant to answer questions, without moving away from the defendant’s vehicle. Another officer on the scene also was standing next to the defendant’s vehicle.
The Moore court concluded no reasonable person would have felt free to leave under these circumstances. The court held: “When two officers are standing next to a stopped vehicle, presumably with the emergency fights in the patrol vehicles still activated, no reasonable person would feel free to drive away.” 34 Kan. App. 2d at 802 (citing State v. Morris, 276 Kan. 11, 22-23, 72 P.3d 570 [2003]). Ultimately, the court found the defendant’s continued detention was justified by the officer’s reasonable suspicion of drug trafficking. 34 Kan. App. 2d at 803-06.
The facts here present an even more compelling basis to find that a reasonable person would not have felt free to go. Here, when Officer Hall returned Nichols’ documentation, she was not even in her vehicle. Rather, in order to receive her warning citation, Nichols was required exit and stand outside of her vehicle in the presence of two officers and in front of both patrol vehicles, with emergency fights flashing. Further, instead of telling Nichols she was free to go, or that he had nothing further for her, Officer Hall told Nichols “as far as that [is] concerned we [are] done.” (Emphasis added.)
We believe that under the circumstances, this statement would imply to a reasonable person that other matters remained to be addressed, particularly where, as here, the statement was followed by the officer’s offer to provide Nichols with directions. Significantly, even though this offer was accepted by Nichols, Officer Hall did not immediately give her directions or walk her back to her vehicle. Rather, he asked her if he could ask her a few more questions.
Under the totality of the circumstances, we conclude that at the time Officer Hall returned Nichols’ documentation and issued her a warning citation, a reasonable person would have felt additional matters remained to be addressed before the encounter could be terminated and would not have felt free to go. We therefore hold that Nichols’ agreement to answer additional questions was not consensual and Officer Hall’s questioning of Nichols following the return of her documentation exceeded the scope of the traffic stop.
.Nichols’ consent to search
Having concluded Nichols and Hayes were unlawfully detained beyond the scope of the stop, we must next consider whether Nichols’ consent to search purged the taint of the detention’s illegality. See Reason, 263 Kan. at 409-10. “Consent to search removes the taint of a prior illegal seizure if it was voluntarily given under the totality of the circumstances.” State v. Grace, 28 Kan. App. 2d 452, 460, 17 P.3d 951, rev. denied 271 Kan. 1039 (2001). The district court did not reach this issue because it concluded the stop became consensual prior to Hall obtaining consent. Nevertheless, this court may decide the issue if the record on appeal is sufficient to do so. 28 Kan. App. 2d at 456.
Factors to be considered in determining whether consent purged the taint of an illegal detention are “ ‘the proximity in time of the Fourth Amendment violation and the consent, intervening circumstances, and particularly the “purpose and flagrancy” of the officers’ misconduct.’ [Citations omitted.]” State v. Rice, 264 Kan. 232, 242, 955 P.2d 1258 (1998).
Here, Hall asked Nichols for consent to search her vehicle during the illegal detention, and no intervening circumstances separated the consent from the illegality. Moreover, while there is no evidence the stop was pretextual, Hall’s testimony indicates his focus quickly changed from investigating a traffic violation to investigating general “criminal activity.”
Significantly, Officer Hall’s amorphous suspicion of “criminal activity” was based on little more than the lack of luggage and children’s toys in the passenger compartment of the vehicle. Moreover, Hall’s testimony indicates his suspicion did not become focused on narcotics until after he asked Nichols if she had drugs in her car — a question which occurred during the illegal detention after Hall had returned Nichols’ documents. Further, Hall testified he thought Nichols and Hayes were being truthful during his initial questioning, and there is no evidence Hall feared for his safety at any time.
Thus, it appears Officer Hall requested that Nichols step out of the vehicle for the purpose of obtaining consent and ultimately to search the vehicle based on nothing more than a nonparticularized hunch of criminal activity.
Accordingly, under these circumstances, we conclude Nichols’ consent did not purge the taint of the illegal detention. We thus reverse the district court’s denial of Hayes’ motion to suppress the evidence found in the search of the vehicle, reverse her subsequent convictions, and remand to the district court for further proceedings in accordance with this opinion.
Reversed and remanded. | [
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Per Curiam:
Juan Garcia appeals the district court’s denial of his motion to withdraw his nolo contendere plea before sentencing. The majority of the Court of Appeals panel affirmed the denial. Garcia’s primary contention is that the district court may have relied upon State v. Ford, 23 Kan. App. 2d 248,930 P.2d 1089 (1996), whose insistence on an allegation of innocence in a presentencing plea withdrawal motion has been rejected by this court.
Garcia’s second argument—that his prior convictions were used improperly to increase his sentence because they were not proved to a jury beyond a reasonable doubt—has no merit and will not be further discussed. See State v. Bennington, 293 Kan. 503, Syl. ¶ 9, 264 P.3d 440 (2011); State v. Riojas, 288 Kan. 379, 388, 204 P.3d 578 (2009); State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002).
Because it is unclear whether the district judge relied upon that part of Ford that has been disapproved, we reverse and remand for a new hearing to consider Garcia’s motion under the appropriate legal standard.
Factual and Procedural Background
The chronological order of events in this case and filing of decisions from our court is critical to an understanding of our ultimate holding. We therefore recite this order in some detail.
On June 18, 2008, Juan Garcia was charged with attempted second-degree murder and intentional aggravated battery. Clinton Peterson was appointed to represent Garcia and negotiated a plea bargain with the State. Under the plea agreement, the State agreed to reduce the aggravated battery charge from a severity level 4 felony to a severity level 5 felony. It also agreed to dismiss the second-degree murder charge and the charges pending in another criminal case. At a later arraignment hearing, Garcia pleaded nolo contendere to reckless aggravated battery, and the district court dismissed the other charges.
At that hearing, the district court advised Garcia of the potential minimum and maximum sentences on the reckless aggravated battery and further advised that Garcia’s actual sentence length would depend on his criminal history:
“THE COURT: . . . Mr. Garcia, without knowing your prior criminal history with the aggravated charge being a level five person felony, if you are convicted, you can be sentenced from 31 months to 136 months in the custody of the Secretary of Corrections and fined up to $300,000 depending upon your financial condition. Do you understand?
“THE DEFENDANT: Yes sir.”
The court also informed Garcia that it was not bound by any agreement between the State and his attorney:
“THE COURT: Now, you’ve heard the announcement of the plea negotiations?
“THE DEFENDANT: Yes.
“THE COURT: Has anyone promised if you enter a plea here today that you will get probation?
“THE DEFENDANT: No.
“THE COURT: You understand at the time of sentencing, the Court’s not bound by any agreement between your attorney and tire County Attorney as to what your sentence should be?
“THE DEFENDANT: Yes.
“THE COURT: You understand the Court’s left to its discretion to sentence in compliance with the Kansas Sentencing Guidelines?
“THE DEFENDANT: Yes.”
After Garcia’s plea was accepted and he was found guilty, a Pre-sentence Investigation Report (PSI) was prepared. It showed Garcia’s criminal history score was B. Garcia had expected his criminal histoiy score to be C, apparently believing that only his prior adult criminal convictions would count toward his score, i.e., he was unaware that a prior juvenile adjudication from 13 years before would be treated as a person felony. The score of B more than doubled his presumptive sentence range from 53 to 60 months to 114 to 128 months.
Garcia obtained new counsel and filed a motion to withdraw plea on November 8, 2008, arguing that holding him to his plea would be manifest injustice.
On December 12, 2008, this court filed its decision in State v. Schow, 287 Kan. 529, Syl. ¶ 3, 197 P.3d 825 (2008), which held that “[wjhere a defendant has pled guilty pursuant to a plea agreement which was based upon a mutual mistake as to defendant’s criminal history score, the district court may consider the circumstances giving rise to the mutual mistake to the extent they may implicate the factors applicable to the existence of good cause to withdraw a plea.” Schow also observed that this court’s earlier decision in State v. Vasquez, 272 Kan. 692, 696, 36 P.3d 246 (2001), had rejected the proposition that a presentencing motion to withdraw must allege innocence. 287 Kan. at 541. The Court of Appeals decision in Ford had been among the Kansas cases stating that a presentencing motion should be justified by an allegation “ ‘that defendant is not guilty of the offense charged and that the plea was made because of fraud, duress, mutual mistake, or lack of understanding of the charge and the effect of the plea.’ ” Ford, 23 Kan. App. 2d at 251 (quoting State v. Johnson, 258 Kan 607, 610-11, 907 P.2d 140 [1995]).
Garcia filed an amended motion on December 31, 2008, to correct his invocation of a manifest injustice standard applicable to postsentencing plea withdrawal to the lesser good cause standard applicable to presentencing plea withdrawal. Garcia relied on the fact that his criminal history score was higher than he expected.
Garcia’s amended motion stated that he had informed attorney Peterson that his “criminal history score was a level C, consisting of one person felony conviction and one nonperson/drug felony conviction.” The motion implies that Garcia did not inform Peterson that he had a prior juvenile adjudication: “The Defendant was under the impression that the Court was only going to look at the criminal convictions, thus leading him to believe he had only one person felony conviction and one nonperson/drug felony conviction .... The Defendant spoke with counsel about his criminal history, stating that he had two felony convictions.”
Garcia further stated that the
“focus of plea negotiations was for the duration of the prison sentence and not amending the crime or the nature of the crime .... By agreeing to the level 5 felony, the Defendant had bargained to be placed in a sentencing box with a range of [53 to 60] months .... The sole purpose of this plea was to control the box in which the Defendant fell for the purpose of sentencing.... [I]t cannot be stated nor proven that tire Defendant understood the plea that was made, especially given the nature of plea negotiations and the attempt to control where on the sentencing guidelines the Defendant would be placed as a result of the plea.”
The motion urged the district court to conclude that the plea had not been understandingly or fairly entered and that the absence of any discussion of juvenile adjudications in the time during which the plea was negotiated and accepted meant the defendant had been misled. Refusal to grant the plea withdrawal would violate Garcia’s constitutional rights.
Garcia’s amended motion did not cite to the new Schow decision or to the 2001 Vasquez decision.
The State also did not cite to Schow or Vasquez. It disputed Garcia’s allegation that the parties agreed upon a sentence between 53 and 57 months. In its response motion it stated: “No mention of the Defendant’s criminal history was made during the plea negotiations other than that it was believed the Defendant would receive approximately fifty-five (55) months in the Department of Corrections.” It requested that Garcia’s motion be denied and that, per his criminal history score of B, he be sentenced to between 114 and 128 months in prison.
At the plea withdrawal hearing on January 6, 2009, Garcia’s testimony reinforced that his main focus in the plea negotiations was the amount of time he would be serving. When he entered the plea, his understanding was that he would be facing a 53- to 60-month sentence and, although he had a prior juvenile case, he “did not know [it] was going to affect sentencing.” Garcia also said that he was misled into accepting a plea deal because he believed his criminal history score was C.
For the State, the prosecutor elaborated upon the reference to a 55-month sentence contained in his response to Garcia’s amended motion, alleging it represented only the minimum amount of time Garcia would serve:
“With regard to the negotiations of the plea, I was intimately involved in that, Your Honor. The only reason the 55 months was ever mentioned was to make sure that I was comfortable with the amount of time at a minimum, that he was going to do. It wasn’t a guarantee this is what you’re going to get, any of that. Mr. Peterson [defense counsel] came up to me and said, “We can send him for 55 months.’ I said, That sounds fine.’ There was no guarantee .... That’s the only thing that was ever discussed with regard to the quote unquote, 55 month issue.” (Emphasis added.)
In short, the prosecutor denied that there had been any meeting of the minds or agreement on Garcia’s criminal history score.
The defense nevertheless argued that, because the State wanted Garcia to serve about 55 months:
“[I]t can be [deduced] that the parties were in agreement that that’s where his criminal history score was [‘C’] .... [W]e both agree that that’s the box that we thought he was going to land in and that’s the box where he moved under, and that’s where the sentence was supposed to be.”
Defense counsel also made clear at the plea withdrawal hearing that he and Garcia were not alleging ineffective assistance of Garcia’s plea counsel:
“And I think my brief explains to tire Court that the elements that you must consider for good cause shown [to withdraw a plea] are three. And they are [1] that the defendant was represented by competent counsel. Now, in regards to Mr. Peterson, we’re not making a claim that he’s incompetent. That’s not an issue.”
The district court judge denied Garcia’s motion. He began by mentioning State v. Ford, 23 Kan. App. 2d 248. He then reviewed several factors for determining whether he should permit Garcia’s plea to be withdrawn for good cause.
“THE COURT: Well counsel, I’ve read both briefs and I’ve dealt with these motions on a number of occasions in the past. You know, one of the cases that the Court has looked at and was cited by tire State, was State v. Ford at 23 Kan. App. 2d 248. And the Court’s well aware of the issues on a motion to withdraw for good cause and the considerations of one [factor whether] the defendant was represented by competent counsel. There’s ... no dispute here. And this court is well aware of the experience and the ability of Mr. Peterson as an attorney to represent defendants in criminal matters. And this Court has no doubt about the competence of Mr. Peterson. And that’s not an issue being made here.”
The judge continued by addressing a second factor for determining whether a plea should be withdrawn for good cause:
“[THE COURT:] The second one is that the defendant was misled, coerced, mistreated or unfairly taken advantage of. I don’t know how the Court gets to those points. There is no allegation of coercion. There’s no allegation of mistreatment. And there’s no allegation that he was unfairly taken advantage of. The case law says that the defendant knows his own criminal history and is presumed to know his own criminal history. Now, the argument might be said that he was misled, because he drought he was going to get 55 months. Now, that’s his perception. The Court at the time of his plea, advised him of die minimum and maximum sentence that could be imposed on a level five felony. So, and the Court told him diat that sentence would depend upon his prior criminal history. There’s no misleading here. There may have been a misperception on his part, but die Court does not find that he was misled.”
The judge continued by addressing a third factor:
“[THE COURT:] Finally, diat the plea was fairly and understandingly made. The Court went through a long list of questions with Mr. Garcia at the tíme he entered his plea. Explained the ramifications, the rights that he was giving up. The options that he had. And again, went through the potential sentence range that he would be subjecting himself to if he entered a plea to a level five felony. The Court at the time of his plea had no knowledge whether he was an I or an A [criminal history range] or anywhere in between. All this Court knew was that Mr. Garcia was entering a plea to a level five, and that his sentencing range would depend upon his prior criminal history.
“So diis Court does not find that there was—that the plea was not fairly and understandingly made.”
After addressing these three factors, the judge continued in relevant part:
“[THE COURT:] Now, the Court will also address die questions raised in State v. Ford or the issues.
“There’s no allegation in the motion that this Court has seen, that the defendant is not guilty of the crime that he was convicted of. He—this allegation is that Mr. Garcia entered a plea. Upon entering the plea, now does not like the presentence investigation and wants to withdraw the plea, because he doesn’t like die pre-sentence investigation. That is not a basis and tiiat is not good cause. This Court asked Mr. Garcia at the time of his plea, all of the questions that are required, as tiiis Court is aware of, for the entering of a plea, so that tire Court is aware that the plea was knowingly, voluntarily, and intelligently entered with knowledge of the consequences. Mr. Garcia had knowledge of the consequences by the minimum and maximum number of months that he could be sentenced depending upon his prior criminal history, if any. The Court addressed Mr. Garcia personally, and Mr. Garcia answered the Court’s questions in the appropriate way as the record reflects. This Court, also, advised Mr. Garcia that it was not bound by any agreement.” (Emphasis added.)
The judge ultimately denied the motion:
“THE COURT: And based upon all [these] reasons, the Court finds that the motion to withdraw his plea for good cause shown is denied and fails. That he has shown no good cause, other than the fact that he is now dissatisfied with tire results of the presentence investigation, because it shows that he is a criminal history C instead of a criminal history B. It shows him as to a criminal history B instead of what he thought he would be, a criminal history score C, I’m sorry if I read it backwards. So the motion is denied.”
The judge sentenced Garcia to 128 months’ incarceration. This was the high figure in the grid box applicable to a defendant guilty of a level 5 felony with a criminal history score of B.
On appeal to the Court of Appeals, Garcia relied principally on Schow, arguing that an allegation of innocence is not necessaiy to a showing of good cause and that a mutual mistake of fact on a criminal history score can be. For its part, the State argued that the district judge’s reference to Ford did not indicate his imposition of a requirement of an allegation of innocence and that even Schow prescribed examination of three factors to determine the existence of good cause: (1) whether the defendant was represented by competent counsel; (2) whether the defendant was misled, coerced, mistreated, or unfairly taken advantage of; and (3) whether the plea was fairly and understanding^ made. See Schow, 287 Kan. at 542; State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006).
A majority of the Court of Appeals panel affirmed the motion denial, holding that Garcia had not established that the district judge based his decision on an incorrect understanding of the law. “[T]he district court did not make an innocence allegation a prerequisite to plea withdrawal.” State v. Garcia, No. 102, 140, 2010 WL 3323813, at s4 (Kan. App. 2010) (unpublished opinion). The majority held that, although the district court cited Ford, he simply made a one-sentence observation about the lack of an allegation of Garcia’s innocence. In the alternative, the majority said, the lack of an innocence allegation was appropriately included as one factor in the district court’s plea withdrawal analysis. The majority distinguished this case from Ford, because the district judge had not ruled that the absence of an innocence allegation was dispositive against the defendant.
Judge Leben dissented. His first basis was the district judge’s citation to Ford without a citation to this court’s later decision in Schow. He believed this meant the district judge “operated under a mistaken understanding of the law.” Garcia, 2010 WL 3323813, at *6 (Leben, J., dissenting).
Second, as Garcia had argued, Judge Leben believed the district judge had not followed other Schow dictates. Specifically, the court failed to consider the circumstances giving rise to the “mutual mistake” about Garcia’s criminal histoiy score and their effect on the factors contained in Edgar, 281 Kan. at 36. Rather, the court simply relied upon the standard warnings it had given before taking the plea: cautionary comments about potential máximums and about the final sentence being determined by Garcia’s full criminal history score shown in the presentence investigation report. Judge Leben would have remanded for district court consideration of the motion under the proper legal standards. Garcia, 2010 WL 3323813, at *8 (Leben, J., dissenting).
We granted Garcia’s petition for review.
Analysis
Generally, a district court’s decision to deny a motion to withdraw plea is reviewed for an abuse of discretion. State v. Freeman, 292 Kan. 24, 27, 253 P.3d 1 (2011). But Garcia alleges a particular type of abuse of discretion—application of the wrong legal standard. See State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011). To the extent we review whether the district court’s discretionary determination was guided by erroneous legal conclusions, we exercise unlimited review. State v. Gonzalez, 290 Kan. 747, 755-56, 234 P.3d 1 (2010).
As the party alleging abuse of discretion, Garcia bears the burden of establishing it. Schow, 287 Kan. at 541 (citing State v. Harned, 281 Kan. 1023, 1042, 135 P.3d 1169 [2006]).
Garcia primarily contends, as did Judge Leben in his dissent, that the district judge may have abused his discretion by relying upon Ford to require him to allege his innocence as a prerequisite to withdraw his guilty plea. Five years after tire Court of Appeals’ decision in Ford, we held to the contrary: “[T]his court does not require an allegation that defendant is not guilty as charged as a prerequisite for withdrawing a plea of guilty or nolo contendere prior to sentencing.” Vasquez, 272 Kan. at 696. And, more recently, in Schow, we reinforced Vasquez on this point. Garcia also endorses Judge Leben’s dissent in another respect, arguing that the district judge failed to follow Schow by considering the circumstances giving rise to a mutual mistake about Garcia’s criminal his-toiy score. Instead, Garcia asserts, the district judge relied exclusively upon the fact that Garcia received standard warnings given at plea hearings about the instability of predictions of sentencing ranges and a judge’s freedom to depart from the parties’ recommendations. Accordingly, Garcia asks that this case “be remanded for new consideration of Mr. Garcia’s presentence motion to withdraw his plea” under Schow.
As before the Court of Appeals, the State responds that the district judge merely used Ford to outline the Edgar factors and mentioned only in passing that Garcia had not asserted his innocence. The State also asserts that the district judge did follow Schow’s remaining rubric for evaluating whether a mutual mistake on Garcia’s criminal histoiy compelled withdrawal of his plea. Specifically, the judge conducted a thorough Edgar-style analysis that considered the circumstances giving rise to the purported mutual mistake. And, per Schow, Garcia had not been misled or induced unfairly to enter his nolo plea because the State had made no assurances as to his criminal histoiy. In the alternative, the State argues that any criminal histoiy mistake was not mutual, but unilateral, because Garcia would have known about his prior juvenile adjudication and failed to inform his counsel, the prosecutor, and the court until after he was confronted with its appearance in his PSI.
The parties are correct that, because Garcia filed his motion to withdraw his nolo contendere plea before sentencing, the district judge had discretion to allow him to withdraw once he had demonstrated good cause. K.S.A. 22-3210(b). Kansas courts generally consider the three “Edgar factors” when evaluating whether a de fendant has presented the requisite good cause. Edgar, 281 Kan. at 36; see State v. Aguilar, 290 Kan. 506, 511, 231 P.3d 563 (2010) (citing Edgar, 281 Kan. at 36). While the Edgar factors are “viable benchmarks for judicial discretion,” they should not be mechanically applied and should not be relied on to the “exclusion of other factors.” Aguilar, 290 Kan. at 512.
On the Ford allegation-of-innocence issue, Judge Leben accurately and succinctly articulated Kansas law: “[A] trial judge may consider whether the defendant is claiming innocence—such a claim might well support good cause. What the district court can t do is require a claim of innocence to withdraw a plea.” Garcia, 2010 WL 3323813, at ⅞6 (Leben, J, dissenting).
This rule is consistent with the approach in several federal circuits, including the Tenth Circuit. See United States v. Byrum, 567 F.3d 1255 (10th Cir. 2009) (factors to consider on motions to withdraw plea before sentencing included “whether the defendant has asserted his innocence”); United States v. King, 604 F.3d 125,139 (3d Cir. 2010) (same); United States v. Carreto, 583 F.3d 152, 157 (2d Cir. 2009) (same); United States v. Rodgriguez-Leon, 402 F.3d 17, 25 (1st Cir. 2005) (same). It is also consistent with our statement in Aguilar that a district court judge may consider all relevant factors, in addition to Edgar factors. 290 Kan. at 511.
The problem here is that the district judge’s statements at the plea withdrawal hearing—including his explicit reference to Ford and his failure to mention Vasquez or Schow—lead us to the conclusion that he may have given the absence of an allegation of innocence more weight than it deserved. We acknowledge that the district judge also correctly considered the Edgar factors, a calculus in which any mutual or unilateral mistake as to Garcia’s criminal history score may have been adequately included. See Schow, 287 Kan. 529, Syl. ¶ 3. We are simply not reassured enough by the district judge’s discussion of the Edgar factors so as to discount or disregard the possibly inappropriate emphasis on Ford and the absence of an allegation of innocence. As a result, the district judge’s decision may have been guided by an erroneous legal conclusion, making the denial of Garcia’s motion an abuse of discretion. As we said in Schow, “[T]o the extent the district court refused to grant the motion to withdraw plea based upon an erroneous understanding of the law, i.e., that an allegation of innocence was a prerequisite, the ruling would be an abuse of discretion.” 287 Kan. at 541.
Given this uncertainty, we must reverse the district judge’s denial of Garcia’s motion to withdraw plea and remand for another hearing and apply the appropriate legal standards. The judge must determine under the framework discussed here whether Garcia has made his good cause showing under K.S.A. 22-3210(b) and then exercise his discretion in ruling on the motion. Given this outcome on Garcia’s first argument, we do not reach the merits of his second argument on mutual mistake.
Reversed and remanded with instructions.
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The opinion of the court was delivered by
Rosen, J.:
On review of an unpublished opinion by the Court of Appeals, this court considers whether the district court properly found an enforceable oral contract to terminate Deborah L. Sandoval’s employment as a teacher with Unified School District No. 446, Independence, Kansas (the District).
Sandoval began her employment with the District on September 1, 2000. During the 2007-08 school year, she taught Spanish at Independence High School. On February 22, 2008, Principal Mitch Shaw informed her that he was recommending the District not renew her teaching contract for the 2008-09 school year and that the superintendant and the Board of Education of Unified School District No. 446 (board) supported his decision.
On the morning of March 10, 2008, a local Kansas National Education Association (KNEA) leader, Tim Knoles, informed Sandoval that Superintendent Chuck Schmidt would be available to talk with her before that evening’s board meeting. That afternoon, Sandoval met with Schmidt and with her KNEA UniServ Director, Tony White. A UniServ director is employed by KNEA to represent teachers in employment matters. The parties were unable to come to terms at that time.
White attended the board meeting that evening, where he sat in a different room from the board and staff and communicated in person with the board through Schmidt and with Sandoval by telephone. The board met in executive session to discuss Sandoval’s contract and possible resignation but took no action in open session.
During the course of the meeting, White called Sandoval and told her the board had made an offer of paid leave until the end of a disability period but had offered no insurance and no additional financial compensation. She rejected that offer and authorized White to make a counteroffer of 180 days of paid leave, medical insurance until she reached the age of 65, and a lump-sum payment of $20,000.
White subsequently called Sandoval again and reported that the board had made a counteroffer of 180 days of paid leave to qualify for KPERS disability benefits, which would require her to leave the classroom on March 28, 2008; paid insurance on the bottom tier for 5 years; and a lump-sum payment of $20,000 in the event that she did not qualify for disability benefits. Sandoval told White to accept the proposal on her behalf.
District policy allows the board to consider the resignation of any certified employee that is submitted to the board in writing. After the meeting, White approached Schmidt and asked him how the board wanted to arrange putting the settlement in writing. White offered to provide a draft based on standard settlement agreements, which typically address personnel files, removal of personal property, and confidentiality. Schmidt responded that an attorney for the board would draft the agreement. On the afternoon of March 12, 2008, White received from Schmidt an e-mail draft of a settlement agreement. White sent a reply, suggesting several modifications of the terms. The two exchanged additional messages relating to the acceptability of the modifications.
Later in the day on March 12, Sandoval informed Knoles that she had changed her mind and wanted to proceed with a due process hearing. She repeated this information to White on the following day. White immediately tried to get in touch with Schmidt and, later that week, he notified Schmidt that Sandoval was no longer willing to accept tire board’s terms communicated to her on the evening of March 10.
On March 24, 2008, Schmidt sent Sandoval a letter stating that the board had deferred nonrenewal of her contract from the March 10 meeting because it understood that an agreement had been reached. The letter went on to say: “Since we have now been informed that you changed your mind on this settlement, this letter is to inform you that the USD 446 Board of Education will proceed with a resolution to non-renew your contract at the board meeting on April 14, 2008.”
On March 28, 2008, Sandoval went to the school and taught her class as she usually did. The District provided no substitute teacher for her classroom on that day or any of the following days. She finished her teaching assignment for the 2007-08 school year. On April 14, 2008, the hoard adopted a resolution of nonrenewal of Sandoval’s contract, including a clause reserving the right to enforce the oral agreement that had been arrived at during the March 10 board meeting.
After the end of the school term, the District filed a petition in Montgomery County District Court. The petition sought a declaratory judgment that Sandoval had entered into an oral contract governing the terms of her separation from the District. It also sought an injunction barring a statutory due process hearing because she had agreed to terminate her employment. The district court granted the temporary injunction. The parties both filed motions for summary judgment.
On August 29, 2008, the district court entered an order granting summary judgment to the District, holding that Sandoval had entered into a binding oral contract with the District. As a consequence, she had waived her statutory due process hearing. The Court of Appeals affirmed the decision in an unpublished opinion. This court granted Sandoval’s petition for review.
Both parties urge this court to decide the issue based on the pleadings and uncontroverted facts. The parties filed cross-motions for summary judgment, and the uncontroverted facts contained in the motions provide a sufficient basis for this court to determine as a matter of law whether the parties were bound by an enforceable oral contract.
When the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. The district court is required to resolve all facts and inferences that may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, the same rules apply; summary judgment must be denied if reasonable minds could differ as to the conclusions drawn from the evidence. Questions of law, including those at the heart of summaiy judgment decisions, are subject to de novo review on appeal. Thomas v. Board of Shawnee County Comm’rs, 293 Kan. 208, Syl. ¶¶ 1, 2, 262 P.3d 336 (2011).
Whether a contract exists depends on the intentions of the parties and is a question of fact. Reimer v. Waldinger Corp., 265 Kan. 212, 214, 959 P.2d 914 (1998); Augusta Bank £ Trust v. Broomfield, 231 Kan. 52, 60, 643 P.2d 100 (1982). However, when the legally relevant facts are undisputed, the existence and terms of a contract raise questions of law for the court’s determination. Nungesser v. Bryant, 283 Kan. 550, 566, 153 P.3d 1277 (2007). Also, when the material facts are uncontroverted, an appellate court reviews summaiy judgment de novo. Superior Boiler Works, Inc. v. Kimball, 292 Kan. 885, 890, 259 P.3d 676 (2011).
In order to form a binding contract, there must be a meeting of the minds on all the essential elements. Albers v. Nelson, 248 Kan. 575, 580, 809 P.2d 1194 (1991). An unconditional and positive acceptance is required to form a contract; a conditional acceptance of a settlement offer is but a counteroffer, which does not create a contract. Nungesser, 283 Kan. 550, Syl. ¶ 5.
The standard of proof for demonstrating the existence of an oral contract is the preponderance of the evidence. In re Estate of Strat-mann, 248 Kan. 197, 806 P.2d 459 (1991). In an action based on contract, the plaintiff bears the burden of proving the existence of the contract alleged in the petition. Steele v. Harrison, 220 Kan. 422, 428, 552 P.2d 957 (1976).
The terms of an oral contract and the consent of tire parties may be proven by the parties’ acts and by the attending circumstances, as well as by the words that the parties employed. Quaney v. To-byne, 236 Kan. 201, Syl. ¶ 3, 689 P.2d 844 (1984). It is not necessary that a party expressly declare an admission of entering into an oral contract. Tobyne, 236 Kan. at 210.
Sandoval essentially contends that all of the communications about the terms of her resignation constituted nothing more than preliminary negotiations in preparation for a final, written settlement agreement. The District, on tire other hand, maintains that the communications produced a valid, enforceable separation contract.
Professors Arthur L. Corbin and Joseph M. Perillo discuss the distinguishing characteristics of preliminary negotiations and binding agreements in terms of the parties’ intentions and their manifest expressions of agreement:
“The term preliminary negotiation’. . . may be used to include all those communications and other events in a bargaining transaction that are antecedent to acceptance, that is, antecedent to the completion of the contract. In this sense, eveiy offer is a part of the negotiation that is preliminary to the making of a contract. Indeed, there may be more than one offer. In tire preliminary haggling process, there are frequently offers and counteroffers, each one of which has a certain legal operation, but, none of which is transformed into a contract. To determine whether or not a bargaining transaction actually results in the making of a contract, courts must consider all of the preliminary negotiations, all of the offers and counteroffers, interpret the various expressions of the parties, and form a judgment as to whether they ever finally expressed themselves as in agreement on complete and definite terms.
"In the process of negotiation a party may use words that standing alone would normally be understood to be words of ‘contract,’ at the same time limiting them in such a way as to show that a subsequent expression of assent on Iris or her part is required. In such a case the expression is neither an operative offer nor an operative acceptance. It is merely part of preliminary negotiation.” 1 Corbin on Contracts § 2.1, pp. 100-01 (rev. ed. 1993).
Some evidence in the record, taken in isolation, supports the district court’s determination that Sandoval formed a binding oral contract on March 10, 2008. The Court of Appeals relied on this standard of review in affirming the district court. This is, however, the incorrect standard for reviewing undisputed evidence in sum-maiy judgment motions and for determining whether a contract exists, which are questions of law. See Superior Boiler Works, 292 Kan. at 890; Nungesser, 283 Kan. at 566.
A number of factors mitigate against finding that the parties formed the intent to establish a contract.
First, the parties, through their agents, entered into subsequent discussions relating to modifications of the terms of the agreement, particularly with respect to confidentiality and custody of school and personal property. Although a contract may exist even though the parties agree to resolve nonessential terms at a later time, and minor differences between an offer and an acceptance may not prevent the formation of a contract, there must be an acceptance of the exact terms of an offer, and the acceptance must be unconditional and unequivocal. Nungesser, 283 Kan. at 568. The fact that the parties continued to exchange communications demonstrates that the parties did not understand that they had reached a full meeting of the minds and had bound themselves and each other as of March 10.
Second, District policy stated that resignations would be considered if submitted in writing. This policy may have led Sandoval to the reasonable expectation that her acceptance of the board’s offer would not become binding until she signed a written settlement agreement.
Third, the board did not accept Sandoval’s resignation in open meeting, and the board’s minutes did not mention Sandoval’s resignation, even though the minutes expressly stated that another employee’s resignation had been accepted. While a contract reached in violation of the Open Meetings Act is not inherently defective, see Krider v. Board of Trustees of Coffeyville Community College, 277 Kan. 244, Syl. ¶ 5, 83 P.3d 177 (2004), the absence of ratification in open meeting and the absence of the acceptance of Sandoval’s resignation in the minutes are compelling evidence that the board did not intend the agreement to be find as of March 10.
Fourth, White signed an affidavit stating that in his many years of negotiating teacher resignations, the terms of resignation settlement agreements were always set out in writing. This testimony does not in itself belie the existence of an oral contract, but it suggests that there was no understanding by Sandoval that she would be bound by her oral communication of resignation, and there was therefore no meeting of the minds as to a binding contract as of March 10.
The board has failed to prove a meeting of the minds on all the essential elements of the negotiated terms and has failed to prove an unconditional and positive acceptance of the board’s terms by Sandoval. The dialogue between the parties constituted nothing more than preliminary negotiations and did not culminate in a binding contact, either on March 10 or at any later date.
Even assuming arguendo that the parties formed a contract on March 10, the uncontroverted facts presented in the motions for summary judgment established that the parties later mutually rescinded any such contract. The dissent maintains that repudiation was not specifically raised by Sandoval and that considering the issue violates our rules of appellate procedure. Applying legal consequences to uncontroverted facts is not prohibited by our rules, especially when the facts demonstrate so clearly that the board’s actions were entirely inconsistent with the veiy terms they maintain were in force. The court is not required to reach the wrong conclusion when the parties do not advocate for the correct application of the law to the facts.
The parties to a contract may mutually rescind their contractual obligations. Blakesley v. Johnson, 227 Kan. 495, 501, 608 P.2d 908 (1980). We have specifically recognized that teachers and school districts may rescind their contractual agreements by conduct inconsistent with the continued existence of the contract. Mutual assent to abandon the contract may be inferred both from the parties’ conduct and by tire attendant circumstances. Brinson v. District, 223 Kan. 465, 474, 576 P.2d 602 (1978), overruled on other grounds by Umbehr v. Board of Wabaunsee County Comm’rs, 252 Kan. 30, Syl. ¶ 2, 843 P.2d 176 (1992).
Assuming a contract existed, an essential term of the contract required Sandoval to leave the classroom by March 28 in order to qualify for KPERS disability benefits. Nevertheless, the District provided no substitute teacher beginning on March 28 and did not inform Sandoval that she was not to come to the school and teach her classes as of that date. Instead, she finished her teaching duties for the year, and the District paid her salary for that term. The board sent her a letter informing her that it would nonrenew her contract, and on April 14, 2008, the board adopted a resolution of nonrenewal.
A contract ceases to be in force when it is rescinded by mutual consent, and the courts will treat a contract as abandoned when one party acquiesces to the acts of another party that are inconsis tent with the existence of a contract. See Dickinson v. Lawrence Lodge, 135 Kan. 87, 90, 9 P.2d 985 (1932). The actions by both the board and Sandoval were clearly inconsistent with the existence of a contract to terminate her employment as of March 28 and each acquiesced in the conduct of the other. Even if the parties formed the intent to be bound by an oral termination agreement, they both soon abandoned both that intent and the agreement.
The parties agree that the essential facts are uncontroverted. The conclusions of law that they—and judges applying tire law to those facts—reach are, on the other hand, highly controverted. Applying law to agreed-upon facts is a proper function of this court; we see no purpose to be served by remanding this case to tire district court to perform the same duty that we are able to perform at this level. We conclude as a matter of law that no enforceable contract exists between the parties.
The judgment of the Court of Appeals affirming the district court is reversed. The judgment of the district court is reversed. | [
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The opinion of the court was delivered by
Herd, J.:
This is a criminal action wherein Sullivan Mack Holloman appeals from his jury conviction of aggravated kidnapping, K.S.A. 21-3421; aggravated criminal sodomy, K.S.A. 1985 Supp. 21-3506; indecent liberties with a child, K.S.A. 1985 Supp. 21-3503; and two counts of kidnapping, K.S.A. 21-3420.
Holloman’s convictions arose from the following incidents:
In the late afternoon of August 26, 1985, ten-year-old M and her cousins, nine-year-old J and 11-year-old L, were riding bicycles in an area near the Joyland Amusement Park in Wichita. The boys rode their bikes down an incline on a walkway over 1-135, but M hesitated. A black man on a ten-speed bicycle (later identified to be the appellant) happened by at this time. He encouraged M to follow the boys down the incline. M responded by riding down the ramp. The appellant followed on his own bike. Holloman then warned the children it was dangerous to ride on the street. He seemed to enjoy having an audience and warmed to his task by telling them a story about his little brother who had once come down the same street and “the whole side of his face came off’ when he was hit by a car.
Holloman continued to talk to the children, mentioning God and his beliefs. He showed them a certificate he said was the title to a car he owned.
During this conversation, the children and Holloman were joined by two other children who were acquainted with Holloman. The new visitors were later identified to be Bernard Birch and Cornelius Bell. After a brief conversation, Birch and Bell moved on, leaving Holloman alone with the other three children.
At this time Holloman told the children to go home and “get more permission to stay.” The children started to go home, but the appellant had second thoughts and called them back, suggesting they join him under a nearby bridge to avoid the summer heat. The children complied with this request and at Holloman’s directions they moved their bicycles beneath the bridge.
Once they were isolated under the bridge, Holloman’s personality changed. He became threatening. He said, “Now, don’t try to move or do anything funny ‘cause I’ve got a gun here.” The gun was never displayed but all three children later recalled hearing the appellant say he had a gun in his sock. He also told the children, “Do you know if I wanted to, I could get your shoelaces from you and tie you up with them?” This statement was followed by the appellant’s command to the children to “[s]tay there and don’t whisper or do anything because I have to go look around the corner and see if anybody is there.”
Holloman then ordered the two boys to sit against a wall (bridge support) and commanded M to follow him to the other side of the wall. While M and the appellant were behind the wall, the boys remained seated as they were scared the appellant had a gun. L considered running away but didn’t do so because he thought if he ran, he would leave M and J at Holloman’s mercy.
While the boys waited on the other side of the wall, the appellant sexually assaulted M. M complied with all of appellant’s demands upon her because she didn’t want to get hurt. At trial, the sexual abuse related by M was corroborated by a physician’s testimony that his examination conducted the evening of August 26, 1985, revealed a fresh tear of the tissue of the vaginal entrance which appeared to have occurred when the tissue was stretched beyond its normal limits.
After the appellant had finished with M, he asked her if she was going to tell anyone and she responded that she would not. About that time, L came around the corner saying, “1 thought you called us.” The appellant then directed the children to get their bikes and told L to leave first, then J, and then M. When they got home, they told their parents what had happened and described their assailant as a black man wearing brown corduroy pants, white leather tennis shoes, and a black hat with a wing design on it. The police were immediately notified of the incident and the children’s parents began searching for the assailant.
Officer Philippe Jacob, a Wichita police officer, was on duty, patrolling an area about four blocks from Joyland when he received the dispatch informing him a rape had occurred near Joyland. The suspect was described as a black male on a grey ten-speed bicycle. The officer almost immediately observed a black male riding a grey ten-speed bicycle on Hillside Street, near Joyland. The officer knew the man to be L. C. Holloman.
L. C. Holloman was stopped, searched, handcuffed, and taken to police headquarters. The children were asked to identify the suspect and both L and J positively identified L. C. as the man they had been with that afternoon. M did not positively identify L. C. Holloman as the man who had assaulted her. All three children said the bike L. C. was riding was the same bike ridden by the man they had seen that afternoon.
L. C. Holloman told Officer Jacob that he (L. C.) was the only person who had ridden the bike that day. L. C. was arrested and charged with aggravated kidnapping, aggravated criminal sodomy, indecent liberties with a child, and two counts of kidnapping.
Detective Michael Clark, in his investigation of the case, interviewed Bernard Birch, one of the children who had spoken to the other three children during the incident. Bernard told Detective Clark that Mack Holloman, not Mack’s brother L. C., was the man whom he had seen talking to the three children.
Detective Clark also interviewed M, who told him that the man who had assaulted her did not look like L. C. Holloman. She said that L. C. was “skinnier” and the pants he wore were darker than those of her assailant. She further stated that although L. C. had a scar on his face she could not remember a scar on the man who had attacked her. Finally, M told Detective Clark that “she did not think [L. C.] was the guy.”
Based on this information, Detective Clark informed the prosecutor’s office he believed the wrong person had been arrested. On September 11,1985, a search warrant was issued to look for a black hat, a billfold, a car title, and tennis shoes at 2756 Holyoke Court, the home of L. C. and Mack Holloman and their mother, Mrs. Bernice Bush.
This warrant was executed in the presence of both Mack and Mrs. Bush, and the hat, the shoes, and the billfold were discovered in Mack’s bedroom and seized. A search of L. C.’s room yielded nothing named in the warrant.
Mack Holloman ultimately confessed in a tape-recorded statement to the acts described by the children, with the exception that he denied one act of aggravated sodomy with M. Following Mack’s confession, L. C. was released. Upon his release, L. C. informed Detective Clark that his brother Mack had brought his bike back to the house just prior to the time L. C. had left on it.
After a jury trial, Mack Holloman was convicted of aggravated kidnapping, aggravated criminal sodomy, indecent liberties with a child, and two counts of kidnapping.
The appellant received a sentence of life imprisonment for the aggravated kidnapping, five to 20 years for aggravated sodomy, three to ten years for indecent liberties, and five to 20 years for each charge of kidnapping, with said sentences to run concurrently. Holloman timely appeals his convictions.
Appellant first challenges the sufficiency of the evidence to support his conviction of the aggravated kidnapping of M.
Before considering this challenge, we note the scope of appellate review when a defendant challenges the sufficiency of the evidence to support a conviction is whether the evidence, viewed in a light most favorable to the prosecution, convinces an appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. The appellate court looks only to the evidence in favor of the verdict to determine if the essential elements of the charge are sustained. State v. Van Cleave, 239 Kan. 117, 121, 716 P.2d 580 (1986).
K.S.A. 21-3420(b) provides that kidnapping is a “taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person . . . [t]o facilitate flight or the commission of any crime.” Aggravated kidnapping is kidnapping where bodily harm is inflicted. K.S.A. 21-3421. The appellant contends M was not taken or confined against her will and therefore could not have been kidnapped. He further argues any taking which occurred was slight, inconsequential, and merely incidental to the crimes of indecent liberties and aggravated sodomy.
We recently discussed the difference between a taking to facilitate the commission of a crime and a taking which is merely incidental to the main crime in State v. Jackson, 238 Kan. 793, 802-03, 714 P.2d 1368 cert. denied_ U.S__(1986). There we said:
“ ‘[I]f a taking or confinement is alleged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement or confinement:
“ ‘(a) Must not be slight, inconsequential and merely incidental to the other crime;
“ ‘(b) Must not be of the kind inherent in the nature of the other crime; and
“ ‘(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.’” (Quoting State v. Buggs, 219 Kan. 203, 216, 547 P.2d 720 [1976]).
The movement of M from a place next to her cousins to behind the bridge support out of view of the boys clearly made the commission of the aggravated sodomy and indecent liberties more difficult to detect. As such, the movement constituted kidnapping. See State v. Bourne, 233 Kan. 166, 168, 660 P.2d 565 (1983) (movement of little girl from one room to the next was sufficient movement to constitute kidnapping).
We further hold the evidence was sufficient to establish a taking or confining by “force or threat of force.” In State v. Tillery, 227 Kan. 342, 345, 606 P.2d 1031 (1980), we held the kidnapping of a child may be accomplished by using minimal force. We noted each case will depend upon the particular facts of the taking or confining. Thus, the appellant’s reference to a gun and his suggestion that he could tie the children up with their shoelaces was a sufficient threat of force to constitute a “taking or confining.” Moreover, M testified that she complied with the appellant’s demands out of fear of being hurt. The facts are sufficient to support the appellant’s conviction of aggravated kidnapping.
The appellant next argues the evidence was insufficient to convict him of the kidnapping of L and J.
Although it appears the children were not “taken” to the area underneath the bridge by force or threat of force, once they got there they were “confined” by threat of force. See State v. Coberly, 233 Kan. 100, 103-04, 661 P.2d 383 (1983) (’’confined” distinguished from “taking”).
Both boys heard the appellant say he had a gun in his sock and both boys also heard him suggest he could tie them up with their shoelaces. The appellant ordered the children to sit next to a wall beneath the bridge and both boys testified they remained seated there for fear of harm from the appellant. Additionally, during his sexual assault on M, the appellant checked on the two boys periodically and ordered them to remain silent. Holloman’s restraint of the boys is independent of the other crimes and substantially lessened the risk of detection.
Thus, the evidence is sufficient to hold the appellant kidnapped the two boys.
As his final challenge to the sufficiency of the evidence, appellant argues the evidence did not establish he was the individual who committed the crimes charged.
The appellant relies heavily upon the fact that both L and J erroneously identified L. C. Holloman as the perpetrator of the crimes a short time after they occurred. At a line-up two months after the incident, only L positively identified Mack Holloman as the assailant. At trial, none of the three children identified Mack as their assailant.
The victims were admittedly somewhat confused as to the identity of the individual who committed the crimes. However, we have consistently held that a conviction of even the gravest offense may be sustained by circumstantial evidence. State v. Hanks, 236 Kan. 524, 528, 694 P.2d 407 (1985); State v. White & Stewart, 225 Kan. 87, 99, 587 P.2d 1259 (1978).
Although circumstantial, there was ample evidence from which to convict the appellant of the crimes charged. All three children positively identified the bicycle seized by the police as the one used by the assailant. In a tape-recorded statement which was played to the jury, the appellant confessed to the acts of sodomy and indecent liberties committed upon M. The appellant admitted at trial that the billfold and hat taken from his room in the search belonged to him. These items closely resembled the billfold and hat that all three victims described as being in the assailant’s possession the day the crimes occurred. In addition, Bernard Birch identified Mack Holloman as the man he had seen talking to the three cousins on that day.
We hold the evidence is sufficient to convict Mack Holloman of the crimes charged.
Appellant next argues the items seized pursuant to the search warrant were improperly admitted as evidence at trial.
The trial court ruled that because the residence from which the items were seized was owned by the mother of Mack Holloman, the appellant lacked standing to challenge the search warrant. Accordingly, the trial court admitted the items seized. On appeal, the State concedes the trial court erred in finding the appellant lacked standing to raise this issue. However, we must still determine whether technical irregularities in the execution of the search warrant justify a finding that the trial court committed reversible error in admitting items seized in the search.
It is undisputed Detective Clark gave a duplicate of the warrant and an inventory of the items seized to the appellant’s mother, Bernice Bush. This procedure was in violation of K.S.A. 22-2506, which provides that a “duplicate copy [of the warrant] shall be left with any person from whom any things are seized.” It also violated K.S.A. 22-2512, which provides that the officers “seizing the property shall give a receipt to the person detained or arrested particularly describing each article of property held.”
K.S.A. 22-2511 provides:
“No search warrant shall be quashed or evidence suppressed because of technical irregularities not affecting the substantial rights of the accused.”
Thus, the issue for our determination is whether the technical irregularities in the execution of the search warrant substantially affected the rights of the accused.
Although it is not specifically stated in appellant’s brief, he appears to be arguing that “but for” the technical irregularities in the search warrant, he would not have agreed to go to the police station to discuss the case. This argument presupposes that the appellant was not aware he was a “suspect” in the case and if he had been personally handed a receipt for the items seized, the appellant would have then realized he was a suspect.
The State points out in its brief that the contents of the search warrant were read aloud to everyone present in the home, including Mack Holloman. The appellant was thus aware of the evidence sought in the warrant and also realized that the items seized in the search were located in his bedroom. Further, the appellant specifically asked the detective if he had to go with him or if the detective had a warrant for his arrest.
Under these circumstances, we hold the appellant failed to demonstrate any substantial prejudice resulting from the technical irregularities in the execution of the warrant. Accordingly, the trial court did not err in admitting into evidence the items seized pursuant to the warrant.
Finally, appellant asserts the trial court erred in holding his confession was freely and voluntarily made.
Appellant argues his confession was the result of coercion because he was faced with “helping his brother out” by confessing or letting his brother stay in jail. Appellant contends that Detective Clark, in questioning the appellant, advised him to “tell the truth” to “get L. C. out of jail.” We must determine whether such statements, if made, constituted impermissible coercion such as to violate the appellant’s Fourth Amendment right to due process.
We recently discussed the concept of coercion as it relates to obtaining a confession in State v. Waugh, 238 Kan. 537, 541, 712 P.2d 1243 (1986). There, we stated:
“Under the Fourteenth Amendment due process voluntariness test, a case-by-case evaluation approach is employed to determine whether coercion was impermissibly used in obtaining a confession. Coercion in obtaining a confession from an accused can be mental as well as physical. In determining the voluntariness of a confession of crime, the question in each case is whether the defendant’s will was overborne at the time of the confession; if so, the confession cannot be deemed the product of a rational intellect and a free will.”
We first note appellant’s assertion that he was faced with the choice of helping his brother out or letting his brother stay in jail is unfounded. This statement is not supported by the record on appeal. Nor is the statement that Detective Clark encouraged Mack Holloman to “tell the truth” to “get L. C. out of jail” an accurate statement of their conversation.
However, even if the appellant had been told that if he confessed L. C. would be released, the confession would still be admissible. In State v. Churchill, 231 Kan. 408, Syl. ¶ 1, 646 P.2d 1049 (1982), we held:
“A confession induced by a promise of a collateral benefit, with no assurance of benefit to accused with respect to the crime under inquiry, is generally considered voluntary and admissible in evidence, unless the circumstances surrounding the promise of the collateral benefit were such as to render the confession untrustworthy or the promise could reasonably be calculated to produce a confession irrespective of its truth or falsity.”
Here, the appellant does not contend he was ever promised any personal benefit if he confessed. Nor is there any contention the circumstances surrounding the alleged collateral benefit (that L. C. would be released from jail) were such as to render the confession untrustworthy.
The evidence does not support appellant’s contention his confession was not freely and voluntarily given.
The judgment is affirmed.
Lockett and Allegrucci, JJ., not participating. | [
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The opinion of the court was delivered by
Lockett, J.:
The defendant appeals from his conviction of one count of aggravated kidnapping and two counts of rape. The defendant was sentenced to two terms of 30 years to life on the rape charges and a life sentence on the kidnapping charge, all sentences to run consecutively. On appeal the defendant raises numerous issues.
On July 15, 1985, S.C., the 15-year-old daughter of Floyd Carmichael, was sleeping when her father awakened her. Carmichael told S.C. he had been fighting with her mother and wanted S.C. to come with him to talk. After dressing, S.C. went upstairs. Carmichael told her he had killed her mother and he was going to rape her. He pulled a knife and led her into another room where he obtained a gun. S.C. was forced to return to her bedroom where she was raped.
The defendant then handcuffed S.C. and taped her head. She was placed in the back seat of a vehicle and driven around town. She was brought back to the home and raped again. Carmichael handcuffed and tied her hands, then locked her in the trunk of the car. After driving around for two hours, he stopped on a dirt road. After S.C. began to scream, her father released her from the trunk. S.C. attempted to talk him into driving her back to Wichita so she could go to school. Instead, he drove her to a coffee shop. While S.C. attempted to clean up in the restroom, Carmichael called his wife and told her that S.C. had run away the night before.
When the victim’s mother returned home from work, there was no one at home. Her husband had not slept in his bed. After receiving Carmichael’s call, she picked up S.C. at the coffee shop. Safely in her mother’s car, S.C. told her mother what had happened. The mother took S.C. home and called the police.
During the trial Carmichael testified that S.C. had run away the night of July 15, that he drove around the neighborhood looking for S.C. until about 4 a.m, and that he went to work about 6:30 but, being concerned about S.C., he left work to look for her and found her walking near the high school.
The jury found Carmichael guilty of two counts of rape and one count of aggravated kidnapping. The State moved to enhance the sentence pursuant to the Habitual Criminal Act, K.S.A. 1985 Supp. 21-4504. The State used only the defendant’s out-of-court statement to the court services officer about prior felonies to enhance the sentence.
The court applied the Habitual Criminal Act. It also found that a gun was used in the commission of the offenses. Carmichael was sentenced to a term of not less than life on count one, 30 years to life on count two, and 30 years to life on count three, the sentences to run consecutively.
Carmichael claims that his Fourteenth Amendment due process rights were violated because the State destroyed evidence that would have proven him innocent. His motion to dismiss based on the loss of exculpatory evidence was denied by the district court.
Carmichael was arrested on July 16. Unable to post bond, he was committed to the county jail. On July 19, S.C.’s social worker informed the Sedgwick County Sheriff s office that medical tests showed that S.C. had gonorrhea and Carmichael might have contracted it. The jail’s medical clinic physician was called and given the information.
On July 25, a physician’s assistant questioned Carmichael to determine if he exhibited symptoms of gonorrhea. Although he denied having symptoms, he was administered penicillin and another drug. The defendant neither objected to the treatment nor requested to consult with counsel.
The following day, defendant informed his counsel about the medical treatment. The defense counsel requested that the jail take a culture for gonorrhea. The physician’s assistant refused to administer such a test, stating a valid culture was unlikely and the clinic was not equipped to take a culture.
The defendant contends that any evidence concerning his lack of gonorrhea was clearly exculpatory evidence. He argues that, since his wife did not have gonorrhea, evidence showing that he did not have gonorrhea would support his contention that he did not have intercourse with his daughter.
The State concedes that the actions of the jail’s personnel are attributable to the prosecution. See generally State v. Humphrey, 217 Kan. 352, 537 P.2d 155 (1975). It argues, however, that the evidence was not clearly and unquestionably exculpatory and that the unavailability of such evidence was not clearly prejudicial to the defendant. It argues that it was not necessary for the court to institute sanctions for destruction of exculpatory evidence.
Written stipulations concerning the defendant’s motion to dismiss showed that approximately 20 percent of human males who contract gonorrhea do not exhibit the two typical symptoms of the disease, a discharge and a burning sensation during urination. Between 25 and 50 percent of those males who have consensual sexual contact with a female who has infectious gonorrhea will contract the disease. A recent study showed that, of males who sexually assaulted females, approximately six percent contracted gonorrhea as a result of the assault. When sexual contact between a noninfected male and an infectious female is nonconsensual, less than 25 percent of the males would be expected to contract gonorrhea as a result.
A defendant has a constitutionally protected privilege to request and obtain from the prosecution evidence that is material to the guilt or innocence of the defendant. Suppression of such evidence is a violation of the defendant’s Fourteenth Amendment due process rights. Brady v. Maryland, 373 U.S. 83, 87, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). Prosecutors are under a positive duty, independent of court order, to disclose exculpatory evidence to a defendant. To justify a reversal of a conviction for failure to disclose evidence, the evidence withheld by the prosecution must be clearly exculpatory and the withholding of the evidence must be clearly prejudicial to the defendant.
There are three classifications regarding suppression of evidence: (1) where there is a deliberate bad faith suppression for the purpose of obstructing the defense or intentional failure to disclose evidence which has high probative value and which could not have escaped the prosecutor’s attention; (2) where there is a deliberate refusal to honor a request for evidence where evidence is material to guilt or punishment, irrespective of the prosecutor’s good or bad faith in refusing the request; and (3) where suppression was not deliberate and no request for evidence was made, but where hindsight discloses that the defense could have put the evidence to significant use. State v. Kelly, 216 Kan. 31, 34, 531 P.2d 60 (1975).
In the present case, there is no evidence to suggest a deliberate bad faith suppression of the evidence or an intentional failure to disclose evidence by the prosecution. The testimony was that the prosecutor did not order treatment for Carmichael and only learned of the treatment for gonorrhea after it occurred. The physician’s assistant testified that when jail clinic personnel are informed that an inmate may have been exposed to any venereal disease, they are required by state law to treat the inmate, even without a court order, due to the risk of spreading venereal disease throughout the jail population.
Evidence is exculpatory if it tends to disprove a fact in issue which is material to guilt or punishment. In the present case, the presence of gonorrhea in the defendant would be more likely to show that he had had intercourse with the victim, since his wife did not have gonorrhea. The lack of gonorrhea would not disprove that the defendant had intercourse with the victim and would not be clearly exculpatory.
The question then is whether the defendant was materially prejudiced by the unavailability of the evidence. There are at least three different standards for determining materiality: (1) evidence which may be merely helpful to the defense; (2) evidence which raises a reasonable doubt as to defendant’s guilt; and (3) evidence which is of such a character as to create a substantial likelihood of reversal. Comment, Materiality and Defense Requests: Aids in Defining the Prosecutor’s Duty of Disclosure, 59 Iowa L. Rev. 433, 445 (1973).
The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the record. United States v. Agurs, 427 U.S. 97, 112, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1976).
Here, even if evidence defendant did not have gonorrhea had been admitted, there was still sufficient evidence to find the defendant guilty beyond a reasonable doubt. For example, the physician who examined the victim after the rape found superficial cuts on her throat and chin, a bruise mark on one shoulder, and contusions and bumps on both legs. Seminal fluid was found in the pelvic area. Handcuffs, a sleeping bag, rope, and tape were found in the trunk of the defendant’s car. Footprints and a burned cigarette were found in the area where the victim was released from the trunk. The gun, knives, and a roll of tape were found in the defendant’s bedroom. Laboratory analysis of hair samples and blood types also supported the victim’s story.
Evidence that the defendant did not have gonorrhea would not have prevented the jury from finding the defendant guilty beyond a reasonable doubt. The physical evidence plus the victim’s statements support the jury’s verdict. The unavailability of the evidence regarding the gonorrhea did not matérially prejudice the defendant’s Fourteenth Amendment due process rights.
The defendant claims that the district court erred in denying his motion to allow introduction of evidence concerning the ■presence of venereal disease in the victim. Six days before trial, the defendant filed a motion pursuant to K.S.A. 1985 Supp. 21-3525(2) seeking permission to introduce that evidence. The court indicated in chambers it would not allow waiver of the seven-day notice required by statute, even though all of the proffered evidence had been presented and discussed during the defendant’s motion to dismiss.
The defendant’s counsel argues that, although he filed the motion to admit the evidence pursuant to the rape shield statute, the evidence did not involve prior sexual conduct and was not covered by the rape shield statute and he would not have offered any evidence as to prior sexual conduct of the victim to determine the source of the venereal disease. Defense counsel would have proffered evidence to show that at the time the defendant was taken into custody, S.C. had a venereal disease, while the defendant did not. Without stating any reasons, the court denied the motion.
Since it could not be established that the defendant had or had not contracted gonorrhea, the evidence that the victim had gonorrhea was no longer relevant. The evidence would only show that the victim probably had intercourse with someone prior to the rape. This would indicate prior sexual conduct which the rape shield statute prohibits being admitted into evidence. Our legislature and a number of other state legislatures, as well as Congress, have enacted rape shield laws designed to restrict or prohibit the use of evidence regarding the chastity of the rape victim. The district court did not err in refusing to allow the defendant to introduce evidence that would infer that the victim had previously engaged in sexual intercourse.
The defendant next argues that the Kansas rape shield statute is unconstitutionally vague because it fails to define “sexual conduct.” He contends that evidence of venereal disease is not evidence of sexual conduct.
In determining whether a statute which uses the term “sexual conduct” is void for vagueness, two inquiries are appropriate: (1) whether the statute gives fair warning to those persons potentially subject to it, and (2) whether the statute adequately guards against arbitrary and discriminatory enforcement. A statute will not be declared void for vagueness and uncertainty where it employs words commonly used, previously judicially defined, or having a settled meaning in law. State v. Robinson, 239 Kan. 269, 273, 718 P.2d 1313 (1986).
In other cases before this court concerning the rape shield statute, attorneys and courts have been able to determine when “sexual conduct” was involved. For example, in State v. Zuniga, 237 Kan. 788, 792-93, 703 P.2d 805 (1985), defendant sought to introduce evidence of the victim’s alleged pregnancy. The evidence was excluded as an attempt to evade the rape shield statute. In State v. McQuillen, 236 Kan. 161, 689 P.2d 822 (1984), motions were filed to consider the admissibility of evidence of rape trauma syndrome. In State v. Bressman, 236 Kan. 296, 689 P.2d 901 (1984), motions were filed to seek admission of evidence of a victim’s possible gonorrhea.
Our research discloses no other jurisdictions which have considered whether the term “sexual conduct” is unconstitutionally vague. Alabama, in Young v. State, 429 So. 2d 1162, 1163 (Ala. Crim. App. 1983), held that the phrase “evidence relating to past sexual behavior” used in its rape shield statute was not void for vagueness. The court said that the statute was not so incomplete or irreconcilably conflicting or so vague and indefinite that it cannot be executed, and the court was able to determine with a reasonable degree of certainty what the legislature intended.
The defendant argues that sexual conduct involves acts or manner of behavior, while a disease is merely a condition of the body. While it is true that the term “venereal disease” does not by itself connote conduct, when it is used in the context of a rape trial it indicates some evidence of sexual conduct. There would be no point in introducing evidence of such at a rape trial unless some form of sexual conduct was involved.
Within the context of the rape shield statute, a court is able to determine what conduct is sexual in nature and what evidence of such is prohibited by the statute. The term “sexual conduct,” as used in the context of the rape shield statute, is not so vague that a person of common intelligence must necessarily guess at its meaning. The rape shield statute is not constitutionally void because of vagueness.
The defendant contends that the trial court violated his constitutional rights by limiting defense counsel’s direct examination of the defendant. During the trial several verbal exchanges occurred between the judge and the defendant’s attorney in the presence of the jury. Neither the judge nor the attorney chose to conduct a hearing outside the presence of the jury to discuss the points of law in question.
The State cites prior incidents during the trial where the attorney for the defendant objected to the State proceeding in a similar manner. Based on objections by the defendant’s counsel, when questioning a witness, the State was restricted, which necessitated the witness being recalled later in the trial. Whether or not both the State and the defendant were limited in a similar manner is not the question. The question is whether the accused received a fair trial under the circumstances.
After the defense counsel had finished direct examination of the defendant, the following colloquy occurred between the judge and the defendant’s attorney:
“Mr. Pullman: Thank you, Floyd. I don’t have any further questions for you right now. Miss Craft might. Excuse me, I do have a couple questions, if the Court will briefly indulge. They’re so obvious, I forgot to ask them.
“The Court: Well, if they’re so obvious, you can withdraw them. Go ahead, Miss Craft.
“Mr. Pullman: They’re obvious to me, Your Honor.
“The Court: Be seated, Mr. Pullman.
“Mr. Pullman: I would like to make an objection on the record about not even being able to proffer the questions for the Court’s consideration.
“The Court: Be seated, Mr. Pullman.
Mr. Pullman: Yes, sir.”
The record on appeal discloses at the close of the State’s cross-examination no effort by the defense counsel to ask further questions or conduct redirect examination. Counsel neither attempted to recall the defendant to the stand to ask further questions, nor did he specifically raise these questions in his motion for mistrial at the close of final argument or in his motion for new trial.
The purpose of the trial is to ascertain the truth or falsehood of the charges against the accused. The admission of evidence lies within the sound discretion of the trial court subject to the exclusionary rules. McGuire v. Sifers, 235 Kan. 368, 371, 681 P.2d 1025 (1984). It is also a matter of discretion whether the trial court permits either or both of the parties to reopen a case for introduction of additional evidence after having rested. McDaniel v. Jones, 235 Kan. 93, 114, 679 P.2d 682 (1984). An abuse of discretion exists only when no reasonable man would take the view adopted by the trial court. Wilson v. American Fidelity Ins. Co., 229 Kan. 416, 422, 625 P.2d 1117 (1981).
In the present case, the trial court was exercising its control over the trial. It was a matter of discretion whether the court allowed defense counsel to reopen his examination of the defendant. Even though he was not allowed to ask his questions at that point, he had later opportunities when he could have questioned the defendant. Under the circumstances, there is no evidence of abuse of discretion on the part of the trial court.
The defendant contends that certain statements by the trial judge during closing arguments suggested to the jury that the burden to prove the defendant’s guilt did not rest on the State but switched to the defendant.
During closing argument, the defense counsel stated: “Well, as has been indicated during the picking of the jury, the defense doesn’t have to prove . . . .” At this point, the judge interrupted him, stating that “picking the jury is not part of argument of the case,” and the defense counsel replied that the defense doesn’t have to prove anything. The judge answered that there was no instruction to that effect. Then, a few minutes later, the defense counsel objected to a statement made during the State’s closing argument that the defendant had claimed alibi but had failed to present corroborating evidence that was readily available. The defendant’s attorney argued that the statement implied that the defendant had the burden of proof. The judge replied, “State has the burden, but that doesn’t mean the Defendant doesn’t have the burden of meeting the evidence. Overruled.” Additional exchanges regarding points of law took place between the judge and the defendant’s attorney at this point in the presence of the jury.
Latitude permitted counsel in closing argument lies largely within the discretion of the trial court. State v. Burton, 235 Kan. 472, 483, 681 P.2d 646 (1984); Skelly Oil Co. v. Urban Renewal Agency, 211 Kan. 804, 508 P.2d 954 (1973). Allegations of judicial misconduct during trial must be decided on the particular facts and circumstances surrounding such alleged misconduct. In order to warrant or require the granting of a new trial, it must affirmatively appear that the conduct was of such a nature that it prejudiced the substantial rights of the accused. State v. Diaz & Altemay, 232 Kan. 307, 654 P.2d 425 (1982).
In this case, an instruction on the burden of proof, PIK Crim. 2d 52.02, was given to the jury. It clearly stated that the burden of proof was on the State. Any confusion the statements made by the judge may have created was clarified by the instructions. Under the circumstances, the court’s statements were neither so prejudicial nor so unfair as to require that the defendant be given a new trial.
The defendant argues that he cannot be charged with the aggravated kidnapping of his daughter because, in the absence of a court order, he had legal custody of her. As authority, he cites domestic cases where one parent not having legal custody takes the child from a parent with legal custody.
We have found a State of Washington case that agrees with the defendant’s claim that a parent having legal custody of a child cannot be convicted of kidnapping that child. In State v. LaCaze, 95 Wash. 2d 760, 630 P.2d 436 (1981), the father, while on furlough from the state penitentiary, went to his children’s home where they lived with their mother. He told them that he had permission from the parole board to take custody of them for two weeks and that he was going to take them to Disneyland. During the trip he engaged in an incestuous relationship with the eldest daughter. The father was convicted of second-degree kidnapping of his own children. In a split decision, the Washington court determined under their second-degree kidnapping statute the defendant was not guilty because the statute required that the restraint of the children be by one “without legal authority”. Since there was no court order taking legal custody of the children from the father, he could not kidnap the children.
The Washington statute is similar to our previous kidnapping statute. G.S. 1949, 21-449 made it unlawful for any person to willfully seize, confine, inveigle, decoy, kidnap, or take or carry away any person “without lawful authority.” Under our prior statute, Carmichael’s argument may have had some merit, but in 1969 our legislature changed the statute significantly.
K.S.A. 21-3420 provides:
“Kidnapping is the taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person:
(a) For ransom, or as a shield or hostage; or
(b) To facilitate flight or the commission of any crime; or
(c) To inflict bodily injury or to terrorize the victim or another; or
(d) To interfere with the performance of any governmental or political function.
Kidnapping is a class B felony.”
The legislature deleted the phrase “without lawful authority.” Kidnapping is now defined as the taking or confining of any person by force, threat, or deception with the intent to hold the person for specified purposes. Our kidnapping statute is now a general statute which includes a parent’s intentionally committing acts prohibited by the statute.
Carmichael claims under the statute every parent who cares for and disciplines his or her child could be guilty of an infinite number of kidnappings. The rule of strict construction concerning penal statutes is subordinate to the rule that judicial interpretation must be reasonable and sensible to effectuate legislative design and the true intent of the legislature. State v. Fowler, 238 Kan. 213, 708 P.2d 539 (1985). Carmichael’s concern that every caring parent who disciplines a child could be guilty of kidnapping is not justified. The kidnapping statute requires a specific intent on the part of the accused to commit one of the acts stated in the statute. The legislature never intended that parents not be allowed to discipline their children. Parents may discipline their children without violating the kidnapping statute. A parent who intends to inflict bodily injury to his or her child cannot, under the guise of parental discipline, bind the child with ropes and handcuffs, place the child in the trunk of an automobile, and move the child for the purpose of raping the child. Such conduct by a parent violates our kidnapping statute.
In his final argument, defendant contends the trial court lacked competent evidence to impose the Habitual Criminal Act. Prior to sentencing, the presentence investigator questioned the defendant without notifying counsel and without informing the defendant of his right to silence and his right to counsel. During that interview, the defendant admitted he had been convicted of three prior felonies. The State did not attempt to introduce journal entries or other documents to verify defendant’s prior convictions at the sentencing hearing. The defendant’s out-of-court statements alone were used for enhancement of sentence.
This same issue was raised in State v. Hicks, 11 Kan. App. 2d 76, 714 P.2d 105 (1986). In Hicks, the defendant contended that the court erred in imposing the Habitual Criminal Act when the only evidence of prior convictions was the testimony of a court services officer that defendant had told him during the course of the presentence investigation he had a prior federal felony conviction. 11 Kan. App. 2d at 86-87. The Court of Appeals correctly found that the defendant’s Fifth Amendment rights against self-incrimination were not violated, but held that the defendant’s testimony did not constitute sufficient competent evidence under K.S.A. 1985 Supp. 21-4504(e) to enhance the penalty. We agree that the defendant’s out-of-court statements were not sufficient competent evidence for enhancement. Defendant’s sentences are vacated.
The convictions are affirmed and the sentences imposed are vacated. The case is remanded to the district court for resentencing pursuant to the law.
Schroeder, C.J., dissenting: I must respectfully dissent from Syllabus ¶ 6 and the corresponding portion of the opinion.
Construing K.S.A. 21-3420, as the court has done, will lead to absurd results. For example, where a father takes his child over whom he has custody by the arm and leads the child against its will from the house to a nearby barn to place the child on a gentle horse, knowing it will terrorize the child because of the child’s fear of horses, it is kidnapping.
It must be conceded the facts in this case are hard, and the jury had sufficient evidence to find the defendant guilty of rape and other heinous acts had they been charged, but not kidnapping.
If the court’s construction stands, it will also apply to a husband and wife. For example, the husband may take his wife by the arm and against her will to a bedroom upstairs, knowing the wife will be terrorized when she sees her children in the bed room playing with a harmless grass snake. Should this be kidnapping? I think not. | [
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The opinion of the court was delivered by
McFarland, J.:
This is an action by plaintiff Virginia Allen seeking damages against defendant Kansas Department of Social and Rehabilitation Services (SRS) for injuries she sustained when she fell in a hallway outside of office premises leased by defendant SRS. The district court sustained a motion to dismiss filed by SRS on the ground of immunity under the discretionary function exception (K.S.A. 75-6104[d]) of the Kansas Tort Claims Act (K.S.A. 75-6101 et seq.). Plaintiff appeals therefrom.
SRS leased office space on the first floor of One Gateway Center, Kansas City, Kansas. Under the lease SRS had no duty to clean or maintain the hallway adjacent to the leased premises. The building was owned by Gateway Complex, Inc. Janitorial services in the building were provided by B & G Maintenance Management, Inc., through a contract with the owner.
On March 15, 1985, an SRS client vomited in the hallway adjacent to the SRS offices. An SRS employee notified the management firm of what had occurred. When no one from the management firm arrived to remedy the problem, SRS sent one of its employees to clean up the mess. The employee cleaned the area. Thereafter, plaintiff, on her way to attend class at the Dickinson Business School which was also located at One Gateway Center, slipped and fell on the wet hallway floor, sustaining serious injury.
Plaintiff brought this action against SRS, Gateway Complex, Inc., and B & G Maintenance Management, Inc. The action between plaintiff and B & G was settled. As previously stated, the district court dismissed the action as to SRS. The case went to trial as to plaintiffs claim against Gateway, with SRS remaining in the action for comparison of fault purposes only. The jury found in favor of plaintiff and fixed her damages at $80,000. Fault was apportioned as follows: plaintiff (0%); Gateway Complex, Inc. (45%); and SRS (55%).
The only issue on appeal is the propriety of the district court’s dismissal of plaintiff s claim against SRS on the ground of immunity.
K.S.A. 75-6103 provides in part:
“(a) Subject to the limitations of this act, each governmental entity shall be liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be liable under the laws of this state.”
K.S.A. 75-6104 provides in pertinent part:
“A governmental entity or an employee acting within the scope of the employee’s employment shall not be liable for damages resulting from:
“(d) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee, whether or not the discretion be abused.”
As we stated in Jackson v. City of Kansas City, 235 Kan. 278, 680 P.2d 877 (1984):
“In construing subsection (c) and all other exemptions specified in K.S.A. 1983 Supp. 75-6104, it should be borne in mind the Kansas Tort Claims Act takes an open-ended approach to governmental liability. In other words, liability is the rule while immunity the exception. This approach is consistent with the general principle of law that for negligent or tortious conduct, liability is the rule, immunity the exception. Durflinger v. Artiles, 234 Kan. 484, 501, 673 P.2d 86 (1983); Noel v. Menninger Foundation, 175 Kan. 751, 762, 267 P.2d 934 (1954). K.S.A. 1983 Supp. 75-6103(a) declares:
“ ‘Subject to the limitations of this act, each governmental entity shall be liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be liable under the laws of this state.’
K.S.A. 1983 Supp. 75-6104 contains the immunity exceptions to the general rule of governmental liability. In Broadhurst Foundation v. New Hope Baptist Society, 194 Kan. 40, 397 P.2d 360 (1964), this court observed ordinarily a strict or narrow interpretation must be applied to statutory exceptions. 194 Kan. at 44. In construing a statute, any doubt should be resolved against the exception, and anyone claiming to be relieved from the statute’s operation must establish it comes within the exception. In other words, the burden is not upon the claimants herein to establish the defendants do not come within one or more of the K.S.A. 1983 Supp. 75-6104 exceptions. Rather, the burden is upon the defendant governmental entity, or defendant employee, to establish governmental immunity under one or more of the exceptions of K.S.A. 1983 Supp. 75-6104. If the party claiming this exception cannot meet this burden, the general rule of liability, in K.S.A. 1983 Supp. 75-6103, governs.” 235 Kan. at 286.
For the purposes of the issue before us, we must assume that the physical cleanup was done in a negligent manner by the SRS employee and that such negligence was a cause of plaintiff s injury. Did the district court correctly determine that SRS had carried its burden to establish governmental immunity therefor under K.S.A. 75-6104(d)? We believe not.
SRS contends its decision to clean the floor and the actual physical cleanup constituted one discretionary activity for which immunity is granted under K.S.A. 75-6104(d). Plaintiff contends two actions occurred. The first act was the SRS determination to undertake the cleanup of the floor although SRS was under no legal obligation to do so. The second act was the actual physical cleanup of the area. Plaintiff argues the discretionary function exception is inapplicable to the actual cleanup operation.
Clearly SRS had no contractual duty to clean the hallway. The notification to the corporation responsible for hallway maintenance was all SRS was legally obligated to do under the circumstances. Had plaintiff fallen because the building management had failed to clean up the vomit or had improperly cleaned the area, dismissal of SRS would clearly have been proper. However, this is not the factual situation before us. Although under no legal obligation to do so, SRS voluntarily undertook to clean the hallway floor. This decision was clearly within the discretionary function exception, but was the actual physical cleanup activity an indivisible part of the exercise of the discretionary function and hence immune from liability under K.S.A. 75-6104(d)? We believe not. Whether the employee used a wet or dry mop or plain water of a detergent, in carrying out his assignment, were choices not involving any particular skill or training. The actual cleanup of vomit on a floor is about as ministerial as an act can be. The discretionary decision to undertake a purely ministerial task of janitorial work cannot cloak the negligent performance of the ministerial act with immunity under the discretionary function exception contained in K.S.A. 75-6104(d).
We conclude the district court erred in dismissing the action as to defendant SRS on the ground of immunity under K.S.A. 75-6104(d).
The judgment is reversed and the case is remanded for further proceedings.
Allegrucci, J., not participating. | [
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The opinion of the court was delivered by
Prager, J.:
This is a direct appeal by the defendant, Luis Ramos, from jury convictions of aggravated indecent liberties with a child (K.S.A. 1983 Supp. 21-3504) and misdemeanor battery (K.S.A. 21-3412).
The facts in the case are not greatly in dispute and are as follows: About one week prior to June 16, 1984, the defendant, Luis Ramos, attempted to show a pornographic magazine to his daughter, age ten. Defendant was interrupted in this act by the arrival in the room of a younger child. Four or five days later, defendant called his daughter from the hall into a bedroom to massage his legs and scratch his head. Defendant was lying on the bed, partially clothed. As the child scratched his head, defendant raised up and placed a kiss on her mouth. Defendant had never kissed his daughter or his other children in this way before. The daughter reacted by drawing in her lips. Defendant then pulled his daughter onto the bed and got on top of her, but then acquiesced to his daughter’s protests and allowed her to leave.
The daughter went downstairs to watch TV, followed by defendant about five minutes later. When the daughter approached defendant to report to him that her brothers had not done as they had been told, defendant hugged his daughter and took her by the arm and led her into the kitchen. In that room, he fondled and touched her buttocks and pubic area through her clothes. Again the child protested, and again defendant allowed her to leave.
The daughter stayed out of the house until her mother returned, and she immediately told her mother what had happened. The mother told her never to be in the house alone with the defendant. The child later told her aunt about the incident when she stayed overnight with her cousin on June 15-16, 1984.
In the early morning hours of June 16, 1984, defendant came home drunk and demanded sex from his wife. She refused, ran from the bedroom, and was pursued downstairs by defendant. He struck his wife between her stomach and breasts, which caused her to scream loudly enough that one of the children called the police. A call was also placed to the aunt keeping the daughter for the night. She arrived at defendant’s home the same time as the police. The aunt reported the daughter’s complaints about the sexual molestation by the defendant. Defendant was subsequently charged.
At the trial, the only evidence presented was the testimony of the State’s witnesses. The defendant had asserted the defense of insanity but presented no expert witnesses or other evidence to support the defense. The jury found the defendant guilty as charged. The defendant appealed.
The first issue raised on the appeal is whether the State’s evidence was sufficient to support defendant’s conviction of aggravated indecent liberties with a child (K.S.A. 1983 Supp. 21-3504). Defendant maintains that the evidence as to the touching and fondling of the child did not rise to the level of being “lewd” as required by K.S.A. 1983 Supp. 21-3504. Defendant further argues that there was insufficient evidence of defendant’s intent to arouse or satisfy his sexual desires.
In a criminal action, when the defendant challenges the sufficiency of the evidence to support a conviction, the standard of review on appeal is whether the evidence, viewed in the light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. The appellate court looks only to the evidence in favor of the verdict to determine if the essential elements of the charge are sustained. State v. Wise, 237 Kan. 117, 697 P.2d 1295 (1985); State v. Pink, 236 Kan. 715, 729, 696 P.2d 358 (1985).
The requirement of a “lewd touching or fondling” as an element of indecent liberties with a child was discussed in State v. Wells, 223 Kan. 94, 97-98, 573 P.2d 580 (1977). In that opinion, we construed the words “lewd fondling or touching” of the person of either the child or the offender to require the State to prove a fondling or touching in a manner which tends to undermine the morals of the child, which is so clearly offensive as to outrage the moral senses of a reasonable person, and which is done with the specific intent to arouse or to satisfy the sexual desires of either the child or the offender or both.
In this case the term “lewd” was defined in a manner consistent with that definition. The question of lewdness was an important element in the case which was argued to the jury by both attorneys. In our judgment, the evidentiary record before us is sufficient to show not only that the touching of the child by the defendant was lewd, but that it was done with the intent to arouse or satisfy defendant’s sexual desires. It was undisputed that the defendant had attempted to show the child some pornographic pictures several days before the touching occurred. The defendant kissed the child while she was massaging his legs and scratching his head. He pulled her onto the bed. Shortly thereafter, he hugged her in the dining room and led her into the kitchen, where he fondled and touched her buttocks and pubic area. Viewed in the light most favorable to the prosecution, in our judgment there was sufficient evidence to sustain the conviction of aggravated indecent liberties with a child.
The next point raised on the appeal is that the trial court erred in failing to give an instruction on the lesser offense of aggravated sexual battery under K.S.A. 1983 Supp. 21-3518. K.S.A. 1985 Supp. 21-3107(3) requires a trial court to instruct on a lesser offense when there is evidence introduced to support a conviction of the lesser offense. State v. Hutton, 232 Kan. 545, 552, 657 P.2d 567 (1983). The defendant in this case was tried and convicted on the charge of aggravated indecent liberties with a child under K.S.A. 1983 Supp. 21-3504, which provided in part as follows:
“21-3504. Aggravated indecent liberties with a child. (1) Aggravated indecent liberties with a child is the commission of indecent liberties with a child, as defined in K.S.A. 21-3503 and amendments thereto, by:
“(a) A parent, adoptive parent, stepparent or grandparent of the child; or . . . .”
Indecent liberties with a child was defined in K.S.A. 1983 Supp. 21-3503 as follows:
“21-3503. Indecent liberties with a child. (1) Indecent liberties with a child is engaging in either of the following acts with a child who is not married to the offender and who is under 16 years of age:
“(a) Sexual intercourse; or
“(b) any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender or both.”
K.S.A. 1983 Supp. 21-3518 provided for the crime of aggravated sexual battery as follows:
“21-3518. Aggravated sexual battery. (1) Aggravated sexual battery is:
“(a) The unlawful, intentional application of force to the person of another who is not the spouse of the offender and who does not consent thereto, with the intent to arouse or satisfy the sexual desires of the offender or another;
“(b) sexual battery, as defined in K.S.A. 1983 Supp. 21-3517 and amendments thereto, against a person under 16 years of age.”
K.S.A. 1983 Supp. 21-3517 defined sexual battery as follows:
“21-3517. Sexual battery. (1) Sexual battery is the unlawful, intentional touching of the person of another who is not the spouse of the offender and who does not consent thereto, with the intent to arouse or satisfy the sexual desires of the offender or another.”
Prior to July 1, 1983, the crime of aggravated indecent liberties with a child under K.S.A. 21-3504 was a class B felony. Aggravated sexual battery under K.S.A. 1983 Supp. 21-3518 was enacted July 1, 1983, as a class D felony.
Although the elements of the two crimes were quite similar, the distinguishing factor was that aggravated indecent liberties with a child required a lewd fondling or touching by a parent, adoptive parent, stepparent, or grandparent of the child. This relationship was not required by the aggravated sexual battery statute. From a reading of these statutes, it is clear to us that the legislature intended to establish certain sex offenses applicable where family relationships were not involved. The legislature also intended that when lewd acts for sexual gratification were directed by a parent against his own child, it constituted a more serious offense than when the acts were perpetrated by a defendant against a child with whom he had no family relationship.
In this case, the defendant did not request an instruction on aggravated sexual battery under K.S.A. 1983 Supp. 21-3518. The case was tried on the basis that the defendant was either guilty of aggravated indecent liberties with his own child or was not guilty of any offense. We have concluded that the trial court did not err in failing to give an instruction on aggravated sexual battery under 21-3518.
The next point raised is that the sentence of ten-to-fifty years imposed by the trial court constituted punishment in violation of the constitutional prohibition against cruel and unusual punishment. The defendant complains that, at the time the offense was committed, it was classified as a class B felony and that two weeks later, after July 1, 1984, the classification of the crime was changed to a class D felony (K.S.A. 1985 Supp. 21-3603). Thus, a person convicted of committing the same act just two weeks later than the act committed by the defendant could be sentenced at the very most to three-to ten years in prison. At the time defendant was sentenced, the minimum term prescribed for a class B felony was a term of not less than five nor more than fifteen years, with a maximum of not less than twenty nor more than life. The sentence imposed by the court was not the maximum term permitted by statute. Thus, the sentence imposed was within the statutory limits. In State v. Maxwell, 10 Kan. App. 2d 62, 691 P.2d 1316 (1984), rev. denied 236 Kan. 876 (1985), the defendant contended that the sentence imposed violated the prohibition against cruel and unusual punishment, although the sentence was within the statutory limits. In the opinion, the court stated that generally Kansas courts will not interfere with a sentence handed down by a trial court which is within the permissible statutory limits in the absence of special circumstances showing an abuse of discretion. See State v. Stellwagen, 232 Kan. 744, 750, 659 P.2d 167 (1983).
The record in the present case shows that the trial judge considered the policy mandates of K.S.A. 21-4601 and the minimum sentence criteria of K.S.A. 21-4606. The fact that K.S.A. 1983 Supp. 21-3504 was amended to provide a lesser sentence does not render invalid the sentence actually imposed. In State v. Armstrong, 238 Kan. 559, 712 P.2d 1258 (1986), this court held that where a new criminal statute is passed in a field already occupied by an older statute, the new enactment will not apply as to crimes already committed at the time the new statute is passed. Ordinarily, the criminal statute and penalty in effect at the time the criminal offense was committed is controlling. We hold that the trial court did not err in the sentence which it imposed in this case.
The last point raised on the appeal is that the trial court erred in instructing the jury on the presumption of intent as set forth in PIK Crim. 2d 54.01. At the trial, defense counsel approved the instruction. On the appeal, new defense counsel now complains that the instruction was erroneous because it relieved the State of its burden to prove beyond a reasonable doubt the existence of criminal intent and, therefore, there was a violation of the due process clause of the Fourteenth Amendment. In State v. Patchett, 229 Kan. 163, 621 P.2d 1011 (1981), this court held that the instruction in question creates only a permissible inference and does not shift the burden of proof to the defendant. The instruction was recently upheld in State v. Mason, 238 Kan. 129, 708 P.2d 963 (1985), and again in State v. Ransom, 239 Kan. 594, 722 P.2d 540 (1986).
The jury was also instructed that, in order to find the defendant guilty of the crime charged, the State was required to prove that his conduct was intentional, and that intentional means willful and purposeful and not accidental. Considering the instructions as a whole, we hold that the instruction complained of did not shift the burden of proof to the defendant to prove he had no criminal intent. The instruction was not erroneous, and we find no error.
For the reasons set forth above, the defendant’s conviction and the sentence imposed thereon are affirmed.
Allegrucci, J., not participating. | [
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The opinion of the court was delivered by
Herd, J.:
The appellant, Michael Tom Sawyer, challenges the constitutionality of the Kansas Mail Ballot Election Act, K.S.A. 1985 Supp. 25-431 et seq. The district court denied Sawyer’s petition for injunctive and declaratory relief and Sawyer appeals. The facts are:
The appellant is a resident of and taxpayer and voter in Sedgwick County. The appellees are the county and state public officials who, in the course of their official duties, order, conduct, and supervise mail ballot elections in Sedgwick County.
In May of 1985, the appellee, Board of County Commissioners of Sedgwick County (Board), authorized a countywide mail ballot election pursuant to the Mail Ballot Election Act. The purpose of the election was to obtain voter approval or disapproval of a 1% county wide retailers’ sales tax. The sales tax election was conducted by appellee Marilyn Chapman, Sedgwick County Election Commissioner, under a plan approved by appellee Jack Brier, Kansas Secretary of State. The election took place from July 9, 1985, through July 30, 1985, and resulted in approval of the sales tax levy by a margin of 61,030 to 50,616. Prior to this July 1985 election, Sedgwick County voters had defeated sales tax proposals in standard booth and polling place elections on four previous occasions.
On January 29 of this year, the Board enacted a second resolution authorizing a countywide mail ballot election to obtain voter approval or disapproval for the issuance of $23,870,000 in bonds for the construction of a new jail. This election took place from March 20, 1986, to April 10, 1986, and resulted in defeat of the bond proposal by a margin of 55,095 to 34,156.
Before the ballots were mailed in the second mail ballot election, the appellant filed a petition for a temporary restraining order, injunctive relief, and declaratory judgment. Under Count I of the petition, appellant sought to enjoin the conducting of the jail construction bond election and the final counting of the ballots. After an evidentiary hearing, the district court denied Sawyer’s request for injunctive relief on April 7, 1986. Count I was later rendered moot by the results of the election.
In Count II of his petition, appellant sought a declaratory judgment that the Kansas Mail Ballot Election Act is unconstitutional. Appellant contends the Act, and mail ballot voting thereunder, infringe on his right to vote by secret ballot and increase the potential for fraud, intimidation, manipulation, undue influence, and abuse in the voting process. An evidentiary hearing was conducted upon this claim on May 12, 1986, at the conclusion of which the district court denied Sawyer’s petition for declaratory relief and stated its findings of fact and conclusions of law on the record. The appellant timely filed notice of appeal with the Court of Appeals and the case was later transferred to this court pursuant to K.S.A. 20-3016(a)(2),(3), and (4).
Before considering the appellant’s constitutional challenges, we are first faced with the preliminary issue of standing. The appellees argue the appellant lacks standing to bring this action because he has not suffered damages different in kind from that of the public generally.
It has long been the rule in Kansas that a private person, merely by virtue of being a citizen and taxpayer, may not main tain an action against a public board and its members unless he pleads and proves that he has or will suffer, as a result of the action complained of, damages different in kind from that of the public generally. Linker v. Unified School District 259, Wichita, Kansas, 344 F. Supp. 1187, 1195 (D. Kan. 1972).
Appellant argues his personal right to vote cannot be “merged” into the voting rights of the general public simply because others may vote. As support for his contention that he has standing to challenge the Mail Ballot Election Act, appellant cites Dutoit v. Board of Johnson County Comm’rs, 233 Kan. 995, 1003, 667 P.2d 879 (1983). There, we held that standing to sue means that a party has a sufficient stake in an otherwise justiciable controversy to obtain judicial resolútion of that controversy.
The general rule with regard to standing applies in the absence of statute. Election contests have been given special consideration by the legislature in K.S.A. 25-1434 et seq. K.S.A. 25-1435 provides: “Any registered voter may contest . . . the result of any question submitted election at which such voter had the right to vote” on the grounds set out in K.S.A. 1985 Supp. 25-1436(c) if “illegal votes were received . . . which could change the result of the election.”
This presents the question of whether challenging the constitutionality of voting by mail falls within the purview of the foregoing statutes. If appellant’s argument is correct that mail voting violates the guarantee of a secret ballot, then the ballots cast in the election are illegal and if voided could change the result of the election. We therefore hold appellant has standing to maintain a constitutional challenge to K.S.A. 1985 Supp. 25-431 et seq.
Let us now consider appellant’s contention that the Mail Ballot Election Act, K.S.A. 1985 Supp. 25-431 et seq., is unconstitutional.
The Kansas Mail Ballot Election Act authorizes the use of mail ballots in certain specified elections (K.S.A. 1985 Supp. 25-432). The Act, which was first passed by the 1983 legislature, originally provided it would expire on December 31, 1985; however, the 1984 legislature unanimously voted to repeal the Act’s sunset provision, thus extending the Act.
Appellant’s primary argument is that Article 4, Section 1, of the Kansas Constitution mandates a secret ballot and the Mail Ballot Act violates that mandate. Article 4, Section 1 provides:
“All elections by the people shall be by ballot or voting device, or both, as the legislature shall by law provide.”
Prior to considering the constitutionality of the Mail Ballot Election Act, we must first determine whether Article 4, Section 1, of the constitution guarantees the right to a secret ballot. The appellant contends that while our constitution does not specifically state that voting shall be “secret,” this court has impliedly so held in numerous cases.
In State, ex rel., v. Beggs, 126 Kan. 811, 271 Pac. 400 (1928), this court was faced with the constitutionality of a statute which compelled general election voters to declare their party affiliations before being given ballots. In stating the argument, the court noted that Article 4, Section 1, of the Kansas Constitution “implies secrecy of voting and secures to the voter absolute secrecy as to how he voted.” (Emphasis added.) 126 Kan. at 814. The court then held:
“The secrecy required is as to his vote for candidates, not as to political leaning or party affiliation. Again, the secrecy is not as to how he intends to vote or is inclined to vote, but how he has in fact voted. We are not persuaded that the divulgence of party affiliation immediately prior to voting violates the secrecy of the ballot guaranteed by the constitution, and therefore conclude that section 4 is not for this reason unconstitutional.” 126 Kan. at 814.
Moreover, in an earlier case, Taylor v. Bleakley, 55 Kan. 1, 39 Pac. 1045 (1895), this court upheld the constitutionality of an enactment implementing the “Australian ballot” or “secret ballot.” In so holding, we reasoned:
“The legislature, within the terms of the constitution, may adopt such reasonable regulations and restrictions for the exercise of the elective franchise as may be deemed necessary to prevent intimidation, fraud, bribery, or other corrupt practices, provided that the voting be by ballot, and that the person casting the vote may do so in absolute secrecy.” 55 Kan. 1, Syl. ¶ 1 (Emphasis added.)
The appellees disagree with the rationale of Taylor, and rely instead on Lemons v. Noller, 144 Kan. 813, 63 P.2d 177 (1936). In Lemons, this court upheld the constitutionality of the Absentee Voters Act, K.S.A. 25-1101 et seq., (now at K.S.A. 25-1114 et seq.) and interpreted Article 4, Section 1, of the Kansas Constitution as follows:
“It is also argued that the statutes under consideration cannot be upheld because they do not preserve the secrecy of the ballot. It should be observed that the requirement of article 4, section 1 of our constitution is that ‘all elections by the people shall be by ballot/ and not by secret ballot, and the matter of secrecy is one for legislative determination. The securing of secrecy in voting has been the result of gradual growth in the statutes, even though it be conceded that an election by ballot means a secret ballot,” (Emphasis added.) 144 Kan. at 828 (citing State, ex rel., Beggs, 126 Kan. 811).
The court then concludes that the “constitutional right of a voter to cast his vote in secrecy” is a right which he may waive. 144 Kan. at 832.
When the Lemons holding is analyzed with our previous opinions, it is clear Lemons does not stand for the proposition that there is no constitutional right to secrecy in voting. In fact, the opposite is true. Lemons confirms the right of individuals to a secret ballot, but holds how that secrecy is preserved is a matter for legislative determination. We conclude Kansas voters are constitutionally guaranteed the right to a secret ballot.
Let us now determine whether or not the Mail Ballot Election Act violates that right.
Appellant points out numerous ways the mail ballot act violates the right to a secret vote and compromises the integrity of the election process.
He first contends nothing prevents a volunteer canvasser who is tabulating election votes from seeing how a voter’s ballot is marked. K.S.A. 1985 Supp. 25-433(b) provides that upon receipt of a ballot, the voter shall mark it, sign the return identification envelope, and return the marked ballot to the county election officer. Appellant argues this procedure enables a canvasser to look at the signature on the envelope and then compare it with the marked ballot upon its removal from the envelope.
Appellee Jack Brier responds by pointing out that county election officers are required to verify the signature on the return envelope with the signature on the elector’s registration records. The official must then remove the ballot from the envelope in such a way that the vote is not disclosed or observed. The back side of the ballot contains an irregular pattern and number and if the worker starts to remove the ballot from the envelope and does not see the pattern or number, he or she is to turn the ballot and envelope over so the ballot is removed from the envelope face down.
While Brier concedes it is possible a worker might “peek” at a mailed ballot upon its removal from the envelope, he argues there are safeguards to prevent such abuses from happening. He points out that workers are told both orally and in writing not to view the ballots when removing them from the envelopes; further, the election workers are under observation to insure they do not do so. Finally, he notes that the numerous punitive provisions in the Kansas election laws are added deterrents to any mishandling of ballots. See, e.g., K.S.A. 25-2419, (misconduct of election officer), K.S.A. 25-2420 (election fraud by an election officer), and K.S.A. 25-2432 (forfeiture of office or employment upon conviction).
Appellant next argues no protections are afforded to assure that during the period of time the voter retains the ballot, he or she will not be subject to intimidation and undue influence through door-to-door solicitation, media pressure, and group electioneering. Appellee Brier responds by showing that if a voter is subjected to undue influence by someone attempting to persuade the voter on how to vote or to reveal his vote, there are several safeguards to protect the voter. For example, the voter can warn the perpetrator of the various punitive provisions applicable to voting. See K.S.A. 25-2412 (election forgery), K.S.A. 25-2416 (voting without being qualified), and K.S.A. 25-2431 (false impersonation of a voter). Moreover, if necessary, the voter can report the incident to authorities.
Finally, Sawyer argues the Act provides no protection to insure voters do not vote more than once or that the ballot inside the envelope is the vote cast by the individual who signed the envelope. Brier does not argue that this could not take place but suggests that if a person’s ballot is wrongfully voted by another, the voter can go to the county election officer, report the incident, and obtain a replacement ballot.
It is apparent the Mail Ballot Election Act does not violate the guarantee of a secret ballot by its terms, but it must be conceded that voting by mail increases the potential for compromise of secrecy and opportunity for fraud. The question then is whether the objectives to be attained by the Act when weighed against the potential for voter fraud and loss of secrecy are worth the added risk.
Appellees argue the mail ballot act serves a compelling state interest as a reasonable effort by the legislature to obtain increased participation in the democratic process. Appellant argues the need to protect the sanctity of the ballot outweighs the state’s interest in increasing the number of voters. This is the same argument made and accepted in closing voter registration prior to heightened voter interest in the final weeks before election day.
This is an issue of first impression in Kansas. Let us examine statutory and case law from other jurisdictions. First, it should be noted only four states other than Kansas have adopted mail ballot election acts: California (Cal. Elec. Code §§ 1340-1353, 23511.1 [West 1986 Supp.]); Montana (Mont. Code Ann. § 13-19-301 et seq. [1985]); Oregon (1981 Or. Laws, Ch. 805 as amended [temporarily codified as notes preceding Or. Rev. Stat. § 254.005 (1986)]); Washington (Wash. Rev. Code § 29.36.120 et seq.) (1985).
Of these four states, only California has construed the constitutionality of its mail ballot election act. In Peterson v. City of San Diego, 34 Cal. 3d 225, 193 Cal Rptr. 533, 666 P.2d 975 (1983), the California Supreme Court affirmed a trial court ruling and held that the California constitution does not preclude mail ballot voting. In so holding, the California court reasoned that reducing or eliminating the burdens and inconveniences of voting and thereby increasing voter turnout is not only a proper subject of legislation, but is also fundamental to the maintenance of a representative government. 34 Cal. 3d at 229. Accordingly, the court found a compelling state interest existed to justify mail ballot voting.
The legislature weighed the added potential for fraud and loss of secrecy under mail ballot elections against the compelling state interest in increased participation in the election process and concluded the risk worth taking. Its action was lawful. We hold the Kansas Mail Ballot Election Act, K.S.A. 1985 Supp. 25-431 et seq., is constitutional.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Nuss, C.J.:
This case requires us to determine whether sufficient evidence exists to support the bench trial conviction of Oliver McWilliams (McWilliams) under K.S.A. 21-3846(a)(l) for defrauding the Medicaid program. Because we conclude that it does, we affirm the district court and reverse the Court of Appeals.
Facts
Mary McWilliams is a Medicaid beneficiary who received Medicaid’s “Home and Community Based Services.” Under the program she received help with her day-to-day life activities, including assistance from “personal care attendants” (PCAs). Mary had two PCAs—her husband, Oliver McWilliams, and her daughter, Shar-nette McWilliams. While a beneficiary’s spouse generally may not provide services per K.A.R. 30-5-307, McWilliams apparently received a spousal exemption under the regulation.
McWilliams submitted his work timesheets to SKIL, a payroll agency, which then submitted the paperwork to Medicaid. After deductions by SKIL, he received $7.75 net per hour for his daytime services and a $20 payment for overnight “sleep cycle support.”
As stated in a form McWilliams signed as part of his enrollment with SKIL, Medicaid prohibits PCAs from providing services to the Medicaid beneficiary while the beneficiary is in a hospital. The form also advises of the prohibition against PCAs submitting a claim to be paid for that time. Yet McWilliams claimed payment for 182.98 service hours and 76 sleep cycles while Mary was hospitalized. And Medicaid paid for these hospital hours.
After an investigation into McWilliams’ timesheets, the State charged both Shamette and McWilliams with Medicaid fraud and tried them separately. Count I of the first amended complaint/ information charged McWilliams with engaging in a conspiracy with Sharnette to defraud Medicaid. Count II essentially charged him with defrauding Medicaid in the amount of $3,704.78 by submitting a false claim for the hospital hours:
“Oliver McWilliams, for himself, did then and there, unlawfully, feloniously, knowingly, and with the intent to defraud, engaged in a pattern of... submitting . . . false or fraudulent statements ... for services for which payment may be made, in whole or in part, under the Kansas Medicaid program, whether or not the claims for payment for services is allowed or allowable ... to wit; In violation of K.S.A. 21-3846(a)(l), Oliver McWilliams did knowingly and intentionally and with foe intent to defraud, . . . submit[ ] ... to foe Kansas Medicaid program, false and fraudulent statements, representations, books, records, documents and claims for personal care services which were not provided by Oliver McWilliams, and were therefore not allowable under the Kansas Medicaid program. As a result of said conduct the Kansas Medicaid program paid $3,704.78, which should not have been paid.”
At the bench trial, McWilliams did not dispute that he had claimed payment for hospital hours. But he argued that Mary needed PCA support to receive adequate care while hospitalized because she was “about dead.” He further testified that her case manager, Lawrence Reece-—-who did not testify and was described by McWilliams as “the boss”—permitted him to claim payment for hospital hours. McWilliams also testified that he was not aware of Medicaid’s ban on PCA hospital hours until the State began the fraud investigation. SKIL employee Rebecca Lemon testified for the State that Medicaid makes “no allowance for someone who is hospitalized” to receive personal care services.
The district court acquitted McWilliams of the conspiracy charge. But it found him guilty of fraudulently billing Medicaid for the hospital time. The court primarily based its ruling on the “Personal Care Attendant Acknowledgement” form which it found that McWilliams had signed. It quoted the form’s language: “Under no circumstances will Personal Care Attendants be authorized to provide services nor submit hours for the time that an employer is hospitalized or receiving any other institutional care.” The court found this language “to be pretty compelling in support of a conviction for Count II” because the form “clearly, unequivocally, veiy specifically says that under no circumstances may a personal care attendant provide services to the employer/patient while the employer/patient is hospitalized.”
In addition to this language, the court also emphasized that this form signed by McWilliam states:
“I have read and understand the information provided in the Personal Care Attendant Acknowledgement and I agree to perform my duties as a Personal Care Attendant accordingly. I further understand my responsibility to record accurate and timely information in correlation to the information provided.”
The court then sentenced McWilliams to 12 months’ probation with an underlying sentence of 6 months in jail and ordered restitution of $3,704.78 and court costs.
The Court of Appeals reversed McWilliams’ conviction, holding that the evidence at trial did “not support a guilty finding for the specific act charged in the complaint.” State v. McWilliams, No. 102, 688, 2010 WL 3564738, at *2 (Kan. App. 2010) (unpublished opinion) rev. granted November 5, 2010. More particularly, it adopted McWilliams’ contention: he “specifically argues the complaint charges that he submitted statements for services he did not provide, while the evidence establishes that he actually did provide the services for which he. submitted statements.” (Emphasis added.) 2010 WL 3564738, at *2.
We granted the State’s petition for review. Our jurisdiction is under K.S.A. 20-3018(b).
Analysis
Issue: Sufficient evidence supports McWilliams’ conviction for Medicaid fraud.
Standard of Review
In analyzing this issue we consider “whether, after review of all the evidence, viewed in the light most favorable to the prosecution, [we are] convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Gutierrez, 285 Kan. 332, 336, 172 P.3d 18 (2007).
Discussion
The State’s complaint/information charged McWilliams with making a false or fraudulent Medicaid claim in violation of K.S.A. 21-3846(a)(l), which states:
“(a) Malang a false claim, statement, or representation to the medicaid program is, knowingly and with intent to defraud, engaging in a pattern of making, presenting, submitting, offering or causing to be made, presented, submitted or offered:
(1) Any false or fraudulent claim for payment for any goods, service, item, facility, accommodation for which payment may be made, in whole or in part, under the medicaid program, whether or not the claim is allowed or allowable.”
The State asserts that it proved beyond a reasonable doubt that McWilliams (1) knowingly and with intent to defraud, (2) submitted a false or fraudulent claim for payment of services under the Medicaid program, and (3) received between $1,000 and $25,000 in illegal payments. See PIK Crim. 3d. 60.40.
McWilliams responds that the State has not established an intent to defraud because he received permission to provide the service in the hospital. He also asserts that he did not defraud Medicaid because he actually provided the services claimed on his timesheets for payment. Both of his points will be addressed in turn.
A. Sufficient evidence supports McWilliams’ intent to defraud Medicaid with a false claim.
In 1965, Congress established Medicaid in Title XIX of the Social Security Act, now codified as amended at 42 U.S.C. § 1396 et seq. (2006). Medicaid is jointly funded by the federal government and participating States to provide medical assistance to certain categories of low income individuals.
The Code of Federal Regulations defines “personal care services” under Medicaid as
“services furnished to an individual who is not an inpatient or resident of a hospital, nursing facility, intermediate care facility for the mentally retarded, or institution for mental disease that are—
(1) Audrorized for die individual by a physician in accordance with a plan of treatment or (at die option of the State) otherwise audiorized for die individual in accordance witii a service plan approved by the State;
(2) Provided by an individual who is qualified to provide such services and who is not a member of the individual’s family; and
(3) Furnished in a home, and at die State’s option, in another location.” (Emphasis added.) 42 C.F.R. § 440.167(a); accord 42 U.S.C. § 1396d(a)(xvii)(24) (2006).
Against this backdrop, McWilliams argues that he did not intend to violate Medicaid and accompanying Kansas law because he received permission from Lawrence Reece to provide the hospital services and to file those claims for payment. The State responds that intent may be inferred from “ ‘ “acts, circumstances, and inferences reasonably deducible therefrom.” State v. Martinez, 290 Kan. 992, 1004, 236 P.3d 481 (2010). And evidence of intent can be found in the “Personal Care Attendant Acknowledgement” form that McWilliams signed.
The district court accurately found the form clearly provides that “[u]nder no circumstances will [PCAs] be authorized to provide services nor submit hours for the time that an employer is hospitalized or receiving any other institutional care.” The form is echoing Medicaid law which prohibits payment for services provided in a hospital. The form also contains McWilliams’ signed acknowledgment that he had read and understood the form, his agreement to perform his duties in accordance with the form’s provisions, and his acknowledgment of his responsibility to record accurate and timely information.
Consequently, we hold that the district court, as the finder of fact, could reasonably infer from this evidence that McWilliams’ later-submitted claims for payment for hospital hours sufficiently demonstrated his intent to defraud the Medicaid program. See Martinez, 290 Kan. at 1004. Reweighing this evidence with the conflicting evidence emphasized by McWilliams is not our function. See State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011) (stating “we do not reweigh evidence, resolve conflicts in the evidence, or pass on the credibility of witnesses” when reviewing a conviction for sufficient evidence).
B. Sufficient evidence supports the conviction.
As mentioned, the State’s complaint/information against Mc-Williams alleged in relevant part that
“[i]n violation of K.S.A. 21-3846(a)(l), Oliver McWilliams did knowingly and intentionally and with the intent to defraud,... submit[ ]... to the Kansas Medicaid program, false and fraudulent statements, representations, books, records, documents and claims for personal care services which were not provided by Oliver McWilliams, and were therefore not allowable under the Kansas Medicaid program.”
McWilliams primarily argues that the State has insufficient evidence to convict him of Medicaid fraud because it could not prove that he made a false statement. See Slaymaker v. Westgate State Bank, 241 Kan. 525, Syl. ¶ 2, 739 P.2d 444 (1987) (fraud requires an untrue statement known to be untrue by the party maiding it). More specifically, he argues that because he actually provided the services during his wife’s hospitalization, he could not be prose cuted for an offense alleging he falsely submitted claims for services not provided. So his conviction must be overturned. As mentioned, the Court of Appeals adopted this argument.
McWilliams argues we should follow the panel’s specific lead and analogize his case to State v. McMannis, 12 Kan. App. 2d 464, 747 P.2d 1343 (1987) rev. denied 242 Kan. 905 (1988). There, the Court of Appeals reversed McMannis’ conviction because while he indisputably had possessed methamphetamine, he instead was charged with, and convicted of, possession of amphetamine with intent to sell. The panel correctly observed that methamphetamine and amphetamine are “listed separately under Schedule II of the Controlled Substances Act. K.S.A. 1986 Supp. 65-4107(d)(l) and K.S.A. 1986 Supp. 65-4107(d)(3).” 12 Kan. App. 2d at 465. The panel therefore concluded the jury’s verdict was not supported by substantial evidence.
The McMannis court substantially relied on our reasoning in State v. Houck, 240 Kan. 130, 727 P.2d 460 (1986). In Houck, the defendant burned two homes, one that was insured and one that was subject to a mortgage. He was charged with, and convicted of, aggravated arson which, as elected by the State in the complaint, required proof under K.S.A. 21-3718(l)(a) (Weeks 1974) of damage to a building or property in “which another person has any interest without the consent of such other person.”
On appeal, we determined that as a matter of law, neither the insurance company nor the mortgagee had a property interest in the homes. So the evidence at trial did not support a conviction for the offense charged. We noted feat by contrast K.S.A. 21-3718(l)(b) (Weeks 1974) covered “damage[ing] any building or property with intent to injure or defraud an insurer or lienholder ‘ yet was not the basis for the State’s charge. (Emphasis added.) 240 Kan. at 135. We concluded:
“Whether the State’s evidence would or would not be sufficient to prove a charge under K.S.A. 21-3718(l)(b) is an academic question not properly before us. The State has the responsibility to appropriately charge the accused with the crime it believes the accused has committed. If the evidence introduced at trial does not support a conviction of the offense charged, the accused cannot be found guilty of some other offense which the State did not see fit to charge. Here, the State did not prove the charges it brought against Houck and, therefore, the convictions of aggravated arson must be reversed.” Houck, 240 Kan. at 135-36.
The panel essentially agreed with McWilliams’ contention that just as the evidence was insufficient to convict the defendants in McMannis and Houck of their charged offenses, there was insufficient evidence that he submitted a claim for “services which were not provided” because he did provide all of the services claimed on his timesheets. The panel held that he
“was charged with making claims for services which were not provided by Oliver McWilliams.’ All the evidence establishes he did, in fact, provide the services he billed for. Because the record lacked evidence to prove that he did not provide tire services, his conviction cannot stand.” (Emphasis added.) McWilliams, 2010 WL 3564738, at "5.
But as the State contends, these conclusions are the result of incomplete analyses. And in our review, we discern no meaningful parallels between McWilliams’ situation and those defendants in McMannis and Houck, as explained below.
Stated plainly, the State’s complaint/information did not charge McWilliams with simply submitting statements for general “services” he did not provide. Rather, the complaint/information specifically charged him with submitting statements “for personal care services which were not provided by Oliver McWilliams, and were therefore not allowable under the Kansas Medicaid program.” (Emphasis added.) As discussed above in Section A, “personal care services” do not, and cannot, include services provided to a hospitalized beneficiary. See, e.g., 42 C.F.R. § 440.167(a) (“Personal care services means services furnished to an individual who is not an inpatient or resident of a hospital. . . .”)
Accordingly, the services McWilliams indisputably performed in the hospital simply were not “personal care services.” And he previously signed the form expressly acknowledging that he was not authorized to provide the hospital services. So his representation that he had performed personal care services during those times would be knowingly false. This alone is ample evidence of the specific fraud element that. McWilliams contends is insufficient for conviction: the untrue statement known to be untrue by the party making it. See Slaymaker, 241 Kan. 525, Syl. ¶ 2 (element of fraud is an untrue statement known to be untrue by the party making it and made with the intent to deceive).
Because McWilliams did not perform personal care services, he is not entitled to be paid by Medicaid for performing them. And he previously signed the form expressly acknowledging that he was not authorized to submit hours for his hospital services. So his claims submission seeking payment for performance of personal care services in the hospital would also be knowingly false. This too is ample evidence of fraud, e.g., the intent to deceive. See Gutierrez, 285 Kan. at 336 (when reviewing sufficiency of evidence claim on appeal, evidence is viewed in light most favorable to tire prosecution). We end this analysis by noting that the precise statute the complaint/information charged McWilliams with violating, K.S.A. 21-3846(a)(l), unambiguously prohibits the submission of “false or fraudulent claim[s]” to Medicaid. See McMannis, 12 Kan. App. 2d 464, Syl. ¶ 3 (“The facts alleged in an indictment or an information must constitute an offense within the terms and meaning of the statute upon which the offense is based.”).
In short, we reject McWilliams’ sole claim on appeal: that the evidence is insufficient to prove the fraud element that requires him to make an untrue statement with the intent to deceive, i.e., that the evidence did not support the specific crime charged. His conviction is therefore affirmed.
The judgment of the Court of Appeals reversing the district court is reversed. The judgment of the district court is affirmed.
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On December 8, 2006, this court suspended the respondent, Daniel Heath Lampson, from the practice of law in Kansas for an indefinite period of time. See In re Lampson, 282 Kan. 700, 147 P.3d 143 (2006). Before reinstatement, the respondent was required to pay the costs of the disciplinary action, comply with Supreme Court Rule 218 (2011 Kan. Ct. R. Annot. 379), and comply with Supreme Court Rule 219 (2011 Kan. Ct. R. Annot. 380).
On February 1, 2012, the respondent filed a petition with dris court for reinstatement to the practice of law in Kansas. The petition was referred to the Disciplinary Administrator for consideration by the Kansas Board for Discipline of Attorneys, pursuant to Supreme Court Rule 219. On July 12, 2012, a hearing was held before a hearing panel of the Kansas Board for Discipline of Attorneys to consider the respondent’s request for reinstatement.
On August 7, 2012, the panel filed its report setting out the circumstances leading to respondent’s suspension, a summary of die evidence presented, and its findings and recommendations. The panel unanimously recommended that respondent’s petition for reinstatement to the practice of law in Kansas be granted.
The court, after carefully considering the record, accepts the findings and recommendations of the panel that the respondent be reinstated to the practice of law in Kansas.
It Is Therefore Ordered that the respondent be reinstated to the practice of law in the state of Kansas conditioned upon his compliance with the annual continuing legal education requirements and upon his payment of all fees required by the Clerk of the Appellate Courts and the Kansas Continuing Legal Education Commission. When the respondent has complied with the annual continuing legal education requirements and has paid the fees required by the Clerk of the Appellate Courts and the Kansas Con tinuing Legal Education Commission, the Clerk is directed to enter respondent’s name upon the roster of attorneys engaged in the practice of law in Kansas.
It Is Further Ordered that this order of reinstatement for Daniel Heath Lampson shall be published in the Kansas Reports and that the costs of the reinstatement proceedings are assessed to tire respondent.
Dated this 27th day of August, 2012. | [
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The opinion of the court was delivered by
Holmes, J.:
This appeal is before the court for review of the unpublished opinion of the Kansas Court of Appeals in Bowers v. Ottenad, No. 57,534, filed March 6,1986. Betty Bowers filed this action to recover damages for extensive burns sustained in an accident at the home of Richard and Joyce Ottenad. The trial court found as a matter of law that Bowers was a licensee upon the premises and the jury, failing to find any wanton conduct upon the part of the defendants, returned a verdict for the defendants. The Court of Appeals affirmed the trial court judgment and we granted the petition for review filed by Bowers.
The facts are not in dispute. On the evening of March 13, 1982, the gourmet group of an organization known as the Johnson County Young Matrons, Inc., gathered for dinner at the home of Richard and Joyce Ottenad. As was their custom, the gourmet group met periodically at the home of one of their members for a social gathering of dinner and drinks. On each occasion three members of the group would act as co-hostesses for the evening, one of whom was an occupant of the premises where the event was to be held. On the fateful evening, plaintiff/appellant Betty Bowers, Alice Petersen, and Joyce Ottenad were the co-hostesses. Following dinner, Bowers and appellees Gerald D. Petersen and Richard Ottenad were preparing flaming Irish coffees to be served as after-dinner drinks. One hundred ninety proof grain alcohol was being used by the trio to create the flame upon the coffee. While mixing the coffees, the vapors from the alcohol bottle ignited and fire burst forth in the form of a “fireball.” The flames struck appellant and she suffered severe burns.
In this action filed against Mr. and Mrs. Ottenad and Dr. and Mrs. Petersen, the court granted summary judgment in favor of Joyce Ottenad and Alice Petersen, the other two co-hostesses. No appeal is taken from that judgment and they are not involved in the case now before this court. The trial court also ruled as a matter of law that appellant was a licensee for the purposes of establishing the duty owed to her under the premises liability or status classification doctrine and therefore was not entitled to recover unless the jury found that Richard Ottenad or Gerald Petersen was guilty of wanton negligence resulting in appellant’s injuries. No contention was made that the injuries resulted from willful conduct of the defendants. The jury rendered a verdict for the defendants and Mrs. Bowers has appealed. The Court of Appeals, based upon our existing case law, affirmed the trial court judgment and we granted the appellant’s petition for review.
Appellant raises several issues, only two of which require consideration here. First, appellant contends that this court should abandon the common-law premises doctrine which establishes liability of a landowner or occupier of real property based upon the status of the injured party and adopt the traditional negligence standard of reasonable care under all the existing circumstances, at least to the extent of adopting such standard for licensees. Second, it is asserted that if this court does not consider it appropriate to abandon the existing premises doctrine we should follow the active negligence exception recognized by this court in Montague v. Burgerhoff, 150 Kan. 217, 92 P.2d 98 (1939).
As to the first issue, whether we should abandon the common-law doctrine of premises liability based upon the status of the injured party as a trespasser, licensee, or invitee, much has been written in recent years. This court has been asked on at least four occasions to abandon the premises liability or status classification doctrine of landowner or occupier liability and on each occasion a majority of the court has declined to do so. Britt v. Allen County Community Jr. College, 230 Kan. 502, 638 P.2d 914 (1982); Zuther v. Schild, 224 Kan. 528, 581 P.2d 385 (1978); Gerchberg v. Loney, 223 Kan. 446, 576 P.2d 593 (1978); Frazee v. St. Louis-San Francisco Rly. Co., 219 Kan. 661, 549 P.2d 561 (1976). We see nothing to be gained by rehashing the pros and cons of the argument as they are adequately covered in our existing cases. Suffice it to say, a majority of the members of this court remains of the opinion that there are compelling reasons not to depart from the existing doctrine. The traditional common-law doctrine of premises liability based upon the status of the party injured or damaged as a trespasser, licensee, or invitee is approved and confirmed as the law of this state. We therefore decline to overrule the cases cited. For those interested in additional authority on the subject, comprehensive annotations may be found at 32 A.L.R.3d 508 and 22 A.L.R.4th 294. See also Westerbeke, Survey of Kansas Law: Torts, 27 Kan. L. Rev. 321, 334 (1979); and Comment, Torts: Landowner Liability and Attractive Nuisance — Kansas Rejects the Modern Trend, 18 Washburn L. J. 190 (1978).
Next, appellant argues, in the alternative, that if this court does not see fit to abolish the premises liability or status classification doctrine, we should at least recognize and apply the so-called “active negligence” exception to licensees upon the premises.
A number of jurisdictions, which have retained the common-law status classification or premises liability doctrine, have recognized and adopted an exception in the case of licensees based upon what is often called a distinction between active and passive negligence. At the outset, a clarification of those terms would appear to be appropriate. The terms are often confused and some courts have recommended that the distinction should not be couched in language of active as opposed to passive negligence, but in terms of whether the condition of the premises is the cause of injury or damage as opposed to that caused by the activity being carried on upon the premises. In Ragnone v. Portland School Dist. No. 1J, 291 Or. 617, 633 P.2d 1287 (1981), the court explained the dichotomy:
“Stating the duty in terms of active or passive negligence has led to confusion. This case is illustrative. Both the trial court and the Court of Appeals erroneously equated active negligence with commission, passive negligence with omission. The term ‘active negligence’ or ‘affirmative negligence,’ as used in our previous decisions, refers to the negligent conduct of activities upon the land, and the term ‘passive negligence,’ as used in our previous decisions, refers to hazards arising from the physical condition of the land, the existence of which normally does not create liability in favor of an injured person. ‘Active negligence’ does not equate with commission; ‘passive negligence’ does not equate with omission. See Elliott v. Rogers Construction, 257 Or. 421, 479 P.2d 753 (1971) (highway contractor not liable to licensee injured because of condition of an unopened highway); Blystone v. Kiesel, 247 Or. 528, 532, 431 P.2d 262 (1967) (homeowner liable to licensee when homeowner was running down the hallway and collided with the licensee); Burch v. Peterson, 207 Or. 232, 234, 295 P.2d 868 (1956) (homeowner not liable to social guest who was injured when a step gave way). It would be better if we cease to refer to ‘active’ or ‘passive’ negligence, and state the rule in terms of conditions upon or within the premises as contrasted with activities carried on upon the premises.
“Whether a school district is conducting activities at a public park not owned or controlled by the district or in a school gymnasium owned and controlled by it, the risk of injury from such activities to persons whose presence is known may be similar, even identical. The fortuitous circumstance that the plaintiff was standing on land belonging to the defendant is largely irrelevant in a case where injury arises from an activity, Blystone v. Kiesel, supra, 247 Or. at 532. While there may be cases in which it may be difficult to say, as a matter of law, whether the injury arose from a ‘condition’ of the premises, as distinct from an ‘activity’ carried on upon the premises, no such difficulty exists here.
“The plaintiff alleged that the defendant was negligent in conducting an activity without adequate supervision and without maintaining proper control. Although these allegations, in a sense, allege omissions to act, the carrying on of the activity without maintaining ‘proper control’ is no more an omission to act than is the driving of an automobile on a highway without maintaining ‘proper control.’ In view of the fact that the plaintiff was lawfully on the premises, whether she was an invitee or a licensee, under the authorities cited above, the defendant had an obligation to exercise reasonable care in the conduct of its activities.” pp. 622-24.
In Potter Title and Trust Co. v. Young, 367 Pa. 239, 80 A.2d 76 (1951), a licensee lawfully upon the premises of the defendant was injured when struck by a truck on a construction project. The court, after citing several examples of “active” as opposed to “passive” negligence, explained the difference stating:
“The distinction that has thus been established, therefore, is that, while the possessor of the premises is not generally liable to a gratuitous licensee, in the absence of wilful or wanton injury, for an accident due merely to existent conditions upon the premises, he is liable for injury occasioned by any affirmative or ‘active’ negligence on his part in connection with activities conducted on the premises. A large number of cases in the several jurisdictions, illustrating this distinction, are to be found in 49 A.L.R. 778 et seq. and 156 A.L.R. 1226 et seq. Applying this principle, it is clear that, if Jones had been injured as the result of a dangerous or unsafe condition of the highway under repair, he would not, as a mere licensee, have been entitled to recover for the injury thus sustained; but, since his injury resulted from ‘active’ negligence in the operation of a moving vehicle, and since the duty owed him under such circumstances was not merely to refrain from wilful or wanton conduct but to exercise ordinary care, recovery may be had.” p. 244.
Thus it appears clear that the use of the term active negligence as opposed to passive negligence, when applied to the exception recognized under the premises liability doctrine, does not refer to acts of commission as opposed to acts of omission, but refers to activities upon the premises as opposed to the condition of the premises itself. That is, when liability is predicated upon the actions of the defendant occupier, as opposed to the conditions of his land, liability may arise from either an act of commission or an act of omission. For lack of better terms we will, throughout this opinion, continue to use the terms “active” and “passive” negligence as contemplated in Ragnone and Potter Title and Trust Co. and as, it is hoped, explained above. See 62 Am. Jur. 2d, Premises Liability § 77 for a further explanation and numerous examples of active and passive negligence.
In the instant case, appellant’s injuries were not the result of any defective or dangerous property conditions existing at the Ottenad residence. Rather, the injuries were the result of the activity of appellant and appellees mixing the flaming drinks. The same unfortunate injuries could have been received at any other place or location under similar circumstances. The condition of the Ottenad property had absolutely no connection with the injuries suffered by plaintiff and, under the discussion and authorities cited above, we are faced with an issue of active negligence attributed to appellees. Thus, the issue squarely before the court is whether we recognize an active negligence exception to the premises or status classification doctrine insofar as licensees are concerned.
The issue is really not so much whether we adopt' such an exception as one of recognizing and clarifying the law as it already exists. In Montague v. Burgerhoff, 150 Kan. 217, (Montague T) this court recognized for the first time an active negligence exception to the premises liability doctrine where there was injury to a licensee. Plaintiff Montague was a licensee lawfully upon the business premises of defendants Gilbert Burgerhoff and William H. Phillips, co-partners, doing business as Burgerhoff & Phillips Ice Company. As Montague was preparing to enter one of the defendants’ buildings, Burgerhoff, who was engaged in an altercation with one of his employees, shoved or threw the employee out the doorway at the same time Montague began to enter through the doorway. The employee was shoved or thrown into Montague, knocking him down and causing personal injury. The case proceeded to trial on a theory of simple negligence based upon the acts of Burgerhoff in scuffling with his employee. At the close of plaintiff s evidence, defendants demurred to it on the grounds that it did not prove any cause of action against the defendants. The demurrer to the evidence, which in modern practice is termed a motion for directed verdict, was overruled. The defendants proceeded with evidence and when the case was submitted to the jury it could not reach a verdict and was discharged. Defendant Burgerhoff then appealed the order overruling the demurrer to the evidence along with a pretrial order which had overruled a defense motion for judgment upon the pleadings. One of the arguments of the defendant Burgerhoff on appeal was that, as Montague was only a licensee on the property, the only duty owed to him was for Burgerhoff to refrain from any acts of willful or wanton negligence. In considering this argument, the court stated:
“In the first place the plaintiff was at least a licensee upon the premises. The contention of the defendant is that since plaintiff was a mere licensee on the premises that he only owed him the duty to refrain from acts of willful and wanton negligence. Defendant argues that there is no claim of such a high degree of negligence here.
“There is a further refinement of that rule, however. It is stated in Brigman v. Construction Co., 192 N.C. 791, 136 S.E. 125. There the court said:
‘The general rule is that a trespasser or permissive or bare licensee upon the property of another cannot recover for defects, obstacles, or pitfalls upon the premises, unless the injury shall result from willful or wanton negligence. . . . The strict rule exempting the owner of premises from liability to a licensee is ordinarily applied when the negligence of the owner is passive. If the owner, while the licensee is upon the premises in the exercise of due care, is affirmatively and actively negligent in the management of his property or business, as a result of which the licensee is subjected to increased hazard and danger, the owner will be liable for injuries sustained, as a result of such active and affirmative negligence . . (pp. 794, 795.)
“In that case a woman and her husband had come on the premises of the defendant in an automobile. While she was sitting in the car waiting for her husband a truck of the defendant company backed into the car in which she was sitting and injured her. In holding the company liable the court said:
‘So, applying the established rules of liability to the facts of this case, even if the plaintiff was a trespasser or permissive licensee, as contended by the defendant, she was not injured as a result of existent conditions upon the premises or as a result of the passive negligence of omission, but she was injured by the actual negligence of the defendant in backing upon the car in which she was sitting, a loaded truck, without notice or warning, and while she was at a place which the defendant had designated as a parking place for automobiles.’ (p. 797.)
“In Corrigan v. Union Sugar Refinery, 98 Mass. 577, 96 Am. Dec. 685, the plaintiff in going through a private passageway owned by the defendant was struck and injured by barrels thrown out the windows of the building by defendant’s agents. The court, in citing Sweeny v. Old Colony Railroad Co., 10 Allen, 368, held the company liable, and said:
‘Even ¡if he was there under a permission which they might at any time revoke, and under circumstances which did not make them responsible for any defect in the existing condition of the way, they were still liable for any negligent act of themselves or their servants, which increased the danger of passing and in fact injured him.’ (p. 578.)
(See, also, Note in 49 A.L.R. 778; also, 45 C.J. 804; also Restatement, Torts, § 341.)
“In this case the basis of liability is not some claimed defect in the premises, but is the act of defendant in knocking the discharged employee against plaintiff in such a negligent manner as to injure plaintiff.
“The judgment of the trial court overruling the demurrer of defendant to the evidence of plaintiff is affirmed.” pp. 223-224.
Following our decision in Montague I, the case was retried and plaintiff recovered a verdict and judgment against Burgerhoff. The case was.tried, in accordance with our decision in the earlier case, upon a theory of ordinary negligence with no apparent contention that the premises liability doctrine was applicable or that Burgerhoff was guilty of any willful or wanton actions. Burgerhoff again appealed and in Montague v. Burgerhoff, 152 Kan. 124, 102 P.2d 1031 (1940), (Montague II) this court unanimously upheld the verdict and judgment. The court stated:
“Defendant urges plaintiff did not plead the negligence relied upon now. The contention is not well taken. The petition sufficiently pleaded the facts and circumstances out of which the injury arose. It was sufficient to sustain a verdict rendered on the ground of negligence. . . .
“. . . The subject of defendant’s liability for negligence toward the plaintiff was treated in the previous case [Montague I\ and need not be repeated here. . . .
“. . . The jury determined he [Burgerhoff] was liable on the theory of negligence.” pp. 128-29.
Thus it appears clear that in 1940 this court had recognized and was committed to the active negligence exception to the premises liability doctrine insofar as licensees were concerned. While the exception recognized in the Montague cases has never been specifically overruled, our court in recent decisions has declined to follow its holdings in Montague I and II and therefore a review of the cases since is deemed advisable.
It was not until the decision in Ralls v. Caliendo, 198 Kan. 84, 422 P.2d 862 (1967), that the rule of Montague I was again mentioned by this court. In Ralls the plaintiff was a social guest at a Christmas dinner party at the home of the defendants, Mr. and Mrs. Caliendo. Plaintiff, eighty-five years of age, slipped and fell in the defendants’ kitchen. It appears the cause of the fall was water upon the floor either from melting ice cubes dropped while defendants were preparing drinks or from the dog’s water dish. In either case defendants were aware of what Mr. Caliendo testified was a “dangerous condition.” The district court sustained a motion to dismiss at the close of all the evidence. The trial court determined that Mrs. Ralls was a social guest and that, as no willful, wanton, or reckless conduct was shown, the plaintiff was precluded from recovery. This court affirmed the trial court on the same basis. In his concurring and dissenting opinion, Justice Fatzer stated:
“Assuming, arguendo, the plaintiff, by reason of the express invitation to attend the family Christmas dinner at the defendants’ home, was nothing more than a mere licensee, the case should be reversed and remanded for a new trial.
“This court has refined the rule with respect to the duty an owner of land owes to a licensee, at least to the extent that if the owner, while the licensee is upon the premises in the exercise of due care, is actively negligent in the management of his property, as a result of which the licensee is subjected to increased hazard and danger, the owner will be liable for injuries resulting from such active misconduct. (Montague v. Burgerhoff, 150 Kan. 217, 223, 224, 92 P.2d 98.) Montague has not been cited or applied by this court since it was decided in 1939, until in Morris v. Atchison, T. & S.F. Rly. Co., 198 Kan. 147, 422 P.2d 920. Hence, it follows that an owner now has the duty not only to refrain from willfully, intentionally or recklessly injuring a licensee, but in addition, to refrain from injuring him by active conduct which would constitute active negligence.
“While the distinction between an injury resulting from passive negligence — negligence which causes dangers arising from the physical condition of the land itself, on the one hand, and an owner’s active negligence, on the other, may not always be clear cut, courts which have considered the question have generally held that ‘active negligence’ is negligent conduct of active operations on the premises or in the management of the property, as a result of which the licensee is subjected to increased hazard and danger.” pp. 89-90.
At the same term of court Morris v. Atchison, T. & S.F. Rly Co., 198 Kan. 147, 422 P.2d 920 (1967), was decided. In Morris the plaintiff was determined to be a trespasser upon the defendant’s right-of-way at the time he was seriously injured when run over by one of the defendant’s railroad cars. On appeal this court adopted the lengthy and exhaustive memorandum decision of District Judge David Prager (now Justice Prager), wherein the trial court granted summary judgment to the defendant on the basis of plaintiff s status as a trespasser coupled with a total lack of any willful or wanton acts on the part of the defendant’s employees. However, in discussing the duty owed a licensee, the learned trial judge stated:
“ ‘The more recent cases severely criticize the common law rule of liability with respect to a licensee and the modern cases now generally recognize a distinction between cases involving injury from the active negligence of the landowner and cases of injury resulting from a physical condition of the premises. Under this view the landowner is liable for failure to exercise ordinary care to a licensee whose presence is known or reasonably could have been known when the injury results from active misconduct. In the case of Montague v. Burgerhoff, 150 Kan. 217, 92 P.2d 98, the Supreme Court recognizes the more modern view and the active negligence theory and in that case followed a rule that if the owner is affirmatively and actively negligent causing injury to a licensee, the owner will be liable for injuries sustained as a result of such active and affirmative negligence. This case has apparently not been cited or applied since it was decided in 1939/ ” p. 154.
In the brief discussion of the trial court’s opinion, this court tacitly recognized the active negligence exception when injury to a licensee is involved, stating:
“Finally, it is contended that even though plaintiff was a trespasser or licensee, the trial court erred in failing to find there was an issue of negligence to be tried — because defendant’s negligence was ‘active’ after plaintiff was on the premises and therefore its duty to him was that of due care.
“This contention likewise is covered and answered in the decision of the trial court — and correctly so. This is not a situation where the presence of a licensee is known or reasonably could have been known — and notwithstanding, the owner of die premises thereafter is affirmatively and actively guilty of negligence causing injury.” p.160.
The next reference to Montague I is found in Roberts v. Beebe, 200 Kan. 119, 127, 434 P.2d 789 (1967), where it is cited in a brief two-sentence concurring and dissenting opinion. The plaintiff in the case, a nine-year-old girl, suffered injury when shot in the eye by a boy with a BB gun. A majority of the court found there was no showing of willful, wanton, or reckless conduct on the part of the defendants and denied plaintiff recovery.
In Lemon v. Busey, 204 Kan. 119, 461 P.2d 145 (1969), a five-year-old child fell to her death from the roof of a church. The action was brought against the trustees of the church and Montgomery Elevator Company claiming that one or more of the defendants was negligent in leaving a door unlocked which allowed the child to gain access to the roof. Summary judgment was granted defendants at the pretrial conference. On appeal this court found that plaintiff s status did not rise to that of an invitee and, therefore, in the absence of willful, wanton, or reckless conduct by the defendants, summary judgment was proper. The majority made no mention of the active negligence doctrine as enunciated in Montague I, although the negligence was referred to as passive negligence in that it involved a failure to lock the door rather than affirmative acts by any of the defendants. Again Justice Fatzer, in his dissenting opinion, attempted to clarify and explain the active versus passive negligence dichotomy in premises liability cases, stating:
“The basis of liability in this case was not some claimed defect or obstacle in or on the church premises, but was the overt act of the defendants, and particularly the elevator company, in leaving the door on the fifth floor leading to the church roof unlocked so as to afford the little girl access to the roof of the church from which she fell.
“Under the rule announced in Montague v. Burgerhoff, 150 Kan. 217, 92 P.2d 98, affirmed in Morris v. Atchison, T. & S.F. Rly. Co., 198 Kan. 147, 422 P.2d 920, the plaintiff was entitled to present his case to a jury. The negligence which was conceded by both defendants, was not passive negligence — negligence which causes dangers arising from the physical condition of the premises — but was active negligence in the managment of the church property- — -leaving the door unlocked — which resulted in the little gird being subjected to increased hazards and danger. Active negligence as applied in Montague is conduct which represents an increased hazard or danger to the licensee, or may be deemed an overt act of negligence. See James, Tort Liability of Occupiers of Land: Duties owed to Licensees and Invitees, 63 Yale L.J. 605.” p. 128.
Duckers v. Lynch, 204 Kan. 649, 465 P.2d 945 (1970), involved injury to a social guest who fell down the basement stairs at the home of his host. Plaintiff was attempting to make his way to the bathroom when he opened the wrong door, stepped in and fell down the stairs. Plaintiff recovered a judgment in the trial court and the defendant host appealed. The plaintiff s case was based upon the alleged wanton and reckless conduct of his host. This court reversed the judgment, holding that an unlocked door did not constitute willful, wanton, or reckless conduct which would create liability necessary for recovery by a licensee. Justice Fatzer, in a short dissent, again contended the case was controlled by the earlier decision in Montague I, and that the negligence on the part of the host was active negligence as contemplated in the Montague I decision.
Next in line is the much-discussed case of Gerchberg v. Loney, 223 Kan. 446, 576 P.2d 593 (1978), wherein a five-year-old boy suffered serious injury from burns received while playing at a neighbor’s trashburner. Appellees in the case at bar rely heavily on Gerchberg, which examined in depth the premises liability doctrine wherein liability is based upon the status of the injured party. The issue was raised that this court should join those jurisdictions which have abolished the doctrine of liability based upon the status of the injured party. Justice Prager, in an eloquent dissent, adequately stated the position for abolition of the doctrine and adoption of a standard of ordinary negligence. The problem with Gerchberg is that the case was decided on the basis that the evidence supported submission of the case to a jury on the theory of attractive nuisance. Attractive nuisance has long been recognized as an exception to the premises liability doctrine. Roberts v. Beebe, 200 Kan. at 124-25; Westerbeke, Survey of Kansas Law: Torts, 27 Kan. L. Rev. 321, 334 (1979). In concluding the opinion, the court, after holding there was a submissible case of attractive nuisance, stated “even if a majority of this court were inclined to do so, this case is not a proper vehicle for discarding the traditional classifications.” 223 Kan. at 454. The late Justice Owsley, in a concise concurring opinion, stated:
“Having so found [that the issue was one of attractive nuisance] it appears to me the issue of whether the child was an invitee, a licensee or a trespasser is not an issue in this litigation. Apparently the majority opinion and the dissent see fit to make it an issue. It is my thought that the challenge to the premises law in Kansas as it now stands should be left to a case where the decision has a bearing on the outcome of the litigation.” p. 458.
Thus, while the case comprehensively addresses the subject, it could also be said that the bulk of the four opinions (an opinion was also written by Justice Miller) is dicta and not germane to the ultimate decision in the case. In that case the majority opinion, in attempting to distinguish active from passive negligence, stated that the decisions in Montague I and in Morris v. Atchison, T. & S.F. Rly. Co., 198 Kan. 147, “merely speak of wilful and wanton acts as active negligence which injure a person whose presence is known.” 223 Kan. at 453. The opinion then goes on to state that this court has not adopted active negligence as an exception to the traditional classifications recognized in premises law. These statements were clearly erroneous as may be seen by a careful study of Montague I and Morris, which were both based upon ordinary negligence. Reliance by appellees on Gerchberg adds little, if any, weight to their arguments on the present issue.
In Britt v. Allen County Community Jr. College, 230 Kan. 502, 638 P.2d 914 (1982), the court was again asked to abandon the distinctions between licensees and invitees or in the alternative to recognize the active negligence exception. The majority opinion by the late Justice Fromme and the dissenting opinion of Justice Prager plowed no new ground which had not been covered in Gerchberg and earlier cases and an additional review of the opinion would add little to this opinion.
Finally, we reach Mercer v. Fritts, 236 Kan. 73, 689 P.2d 774 (1984), where this court applied an animal exception which has been adopted to avoid the harsh and often unfair results in cases where the injury was caused by an animal and liability is based solely upon the status of the injured party. Plaintiff Mercer was injured when she was thrown from a horse belonging to defendants and being ridden with the defendants’ permission upon the defendants’ property. The plaintiff was a social guest at defendants’ rural home and while she was riding a stallion, the defendant Elden Fritts brought a mare into the view of the stallion causing him to become excited, rear, and fall upon the plaintiff. The trial court granted summary judgment to the defendants, holding the law of premises liability controlled and, in the absence of any willful or wanton conduct, the defendant landowners could not be held responsible for injury to a social guest who was a licensee upon their property. The Court of Appeals reversed the trial court (Mercer v. Fritts, 9 Kan. App. 2d 232, 676 P.2d 150 [1984]) in an opinion in which the majority found that animal law as set forth in 4 Am. Jur. 2d, Animals § 104, and Restatement (Second) of Torts §§ 509 and 518 (1976), was applicable to the case rather than the premises liability or status classification doctrine of the law. The late Chief Judge Foth dissented on the grounds that our decisions in Britt v. Allen County Community Jr. College, 230 Kan. 502; Zuther v. Schild, 224 Kan. 528; and Gerchberg v. Loney, 223 Kan. 446, precluded the application of animal law as an exception to the general rules of premises liability law. We granted review and in a short opinion a majority of this court affirmed the Court of Appeals. In a concurring opinion, Justice Prager stated:
“In this case, the injured social guest, Renee Mercer, urged the Court of Appeals to abolish the status classification and to place upon a landowner the duty to a social guest to use reasonable care under the circumstances. This contention was rejected by the Court of Appeals. Renee also urged the Court of Appeals, at the very least, to authorize an active negligence exception to the premises doctrine in Kansas. The Kansas Court of Appeals likewise rejected the active negligence exception. Those courts which have adopted the active negligence exception have modified the premises doctrine to hold that if the owner, while the licensee is upon the premises in the exercise of due care, is affirmatively and actively negligent in the management of his property or business, as a result of which the licensee is subjected to increased hazard and danger, the owner will be liable for injuries sustained as a result of such active misconduct. That rule was recognized and followed by this court in Montague v. Burgerhoff, 150 Kan. 217, 223-24, 92 P.2d 98 (1939). Montague has been cited in subsequent Kansas cases but has never been expressly overruled. The active negligence exception to the premises doctrine, however, has been expressly and unequivocally rejected in our recent cases. Gerchberg v. Loney, 223 Kan. 446; and Britt v. Allen County Community Jr. College, 230 Kan. 502.
“In this case, the Court of Appeals, and the majority of this court on petition for review, have likewise rejected the active negligence exception to the common-law rule. The majority of the panel, and Chief Judge Foth in his dissenting opinion, have strongly indicated their philosophical dissatisfaction with the premises doctrine. They felt compelled, however, to follow the decisions of this court which have rejected any modifications of the premises doctrine, including the active negligence exception. But the majority of the Court of Appeals and the majority of this court have apparently found a way to apply indirectly the active negligence exception where a social guest is injured by a horse. They have done so by holding that the premises doctrine is to be ignored and that animal law is to be applied in this case. Chief Judge Foth, in his dissenting opinion, could not accept this reasoning, because he could not see the doctrine of “animal law” as affording a route around the obstacle posed by Britt and Gerchberg. He correctly observed that the basis of liability of the keeper of an animal is failure to exercise reasonable care or ordinary negligence. We so held in Gardner v. Koenig, 188 Kan. 135, 360 P.2d 1107 (1961).
“As the law of Kansas now stands, in view of the opinion of the Court of Appeals adopted by this court, if a social guest is injured by a horse as a result of the negligence of her host, there may be a recovery in the courts. But the same protection may not be given where the social guest is injured by active negligence of the host by some act not involving animal law. Whatever happened to equal protection of the laws?
“A ‘bay horse’ case, decided by the Supreme Court of Rhode Island in 1966, is Perry v. St. Jean, 100 R.I. 622, 218 A.2d 484 (1966). In Perry, the plaintiff, a social guest, while on the premises of her host, suffered personal injury when she fell from her host’s horse as a result of the negligent saddling of the horse by the host’s agent. Up to that time, the Supreme Court of Rhode Island had followed the premises doctrine and had not recognized the active negligence exception. The Supreme Court of Rhode Island, in its wisdom, adopted the active negligence exception to the premises doctrine. It made a distinction between an injury resulting from apassive condition of the premises on the one hand and the occupier’s active negligence on the other by quoting the following language from Potter Title & Trust Co. v. Young, 367 Pa. 239, 242-43, 80 A.2d 76 (1951):
‘ * *‘[P]assive negligence’ denotes negligence which permits defects, obstacles or pitfalls to exist upon the premises, in other words, negligence which causes dangers arising from the physical condition of the land itself. ‘Active negligence’, on the other hand, is negligence occurring in connection with activities conducted on the premises, as, for example, negligence in the operation of machinery or of moving vehicles whereby a person lawfully upon the premises is injured.’ ” ’ 100 R.I. at 624.
“The court gave some examples of active negligence on the part of the landowner. Included were situations where the landowner fails to shut off the gas in his heater, or swings a golf club, or operates a motorboat, or places a hose reel on a path where he knows his guest will walk after dark, or operates an elevator, or drives a sleigh. The Rhode Island court held the active negligence exception was applicable to a social guest who was injured by a horse.” pp. 76-78.
It now appears clear that our cases have been inconsistent in their treatment of the active negligence exception unanimously adopted by this court in Montague I. Statements in recent cases to the effect that the court has consistently refused to recognize the active negligence exception are not accurate. It is time to clarify the issue and set the record straight. A majority of this court is of the opinion the active negligence exception as originally adopted in Montague 7 is a correct statement of what the law should be in Kansas. The cases and authorities cited herein adequately cover all of the arguments pro and con relating to the active negligence exception and nothing would be gained by prolonging this opinion with a rehash of the rationale supporting the adoption or recognition of the exception.
We hold that an active negligence exception, as discussed in this opinion, should be recognized in Kansas and that when a licensee, whose presence is known or should be known, is injured or damaged by some affirmative activity conducted upon the property by the occupier of the property the duty owed to such person is one of reasonable care under the circumstances. When the injury or damage results from the condition of the premises as opposed to the activity thereon, the duty of the occupier to the licensee is only to refrain from willfully or wantonly injuring the licensee.
We recognize that there will be instances when it will be difficult to determine whether the alleged negligence falls within the area of an activity carried on by the occupier of the property or is due to the condition of the premises. However, the fact that some cases may be difficult for determination is no justification for refusing to recognize a proper rule of law. Our prior cases, including Britt v. Allen County Community Jr. College, 230 Kan. 502; and Gerchberg v. Loney, 223 Kan. 446, are overruled to the extent that they are inconsistent with the views expressed in this opinion.
The decisions of the Court of Appeals and the district court are reversed and the case is remanded for a new trial. | [
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The opinion of the court was delivered by
Schroeder, C.J.;
The defendant, Robert W. Armstrong, directly appeals his convictions by a Sedgwick County jury of two counts of first-degree murder for the murders of Don and Norma Earl. This was defendant’s third jury trial. The first trial ended in a mistrial due to a hung jury. The second trial ended in a mistrial when the trial judge ruled that the defendant was not mentally competent to proceed.
On Saturday, June 2,1979, Don and Norma Earl made plans to get a drink at the Copacabana, a tavern owned by Cecil Stem-bridge. Later that evening, Norma Earl called her babysitter and said she and her husband were playing pool at Leroy Willcox’s house and would be home in one hour. The Earls were never seen by their family again.
Prior to his death, Don Earl was being investigated by the FBI for involvement in a stolen money order and counterfeit check operation. When questioned by the FBI, Don Earl said the defendant, an employee of NCR, had allowed Don to run checks at NCR. The FBI then questioned the defendant, without telling him Don Earl had informed on him, and the defendant denied any involvement.
Over four years later, in October of 1983, Cecil Stembridge was arrested in Texas on a kidnapping charge which originated in Kansas. At that time, Stembridge was questioned about the disappearance of Don and Norma Earl. After talking with his daughter, Tammy Stembridge, Cecil requested information on the federal witness protection program and agreed to talk about the Earls’ disappearance in exchange for a grant of immunity. After showing police where the bodies were located, Cecil Stembridge was granted immunity and was the prosecution’s key witness against the defendant.
Stembridge directed officers of the Sédgwick County- Sheriffs Department to the grave site located in rural Kingman County, Kansas. The bodies were buried wrapped in yellow shower curtains and found in regular street clothes. The bodies were exhumed and autopsies performed.
Cecil Stembridge stated Don Earl told him in June of 1979 that Don thought people, including the defendant, were after him (Don) because they thought he had snitched on them regarding a check-writing scheme. Cecil stated Don and Norma Earl arrived at the Copacabana some time during the afternoon of June 2, 1979. While at the Copacabana, Cecil spoke with Leroy Willcox, who invited Cecil, Cecil’s brother and wife, and the Earls to his home to shoot pool and drink. They proceeded to Willcox’s house, where they played pool and had drinks in the basement. When the defendant arrived, Cecil stated Don Earl became quiet. Cecil walked his brother and wife to the door and upon returning to the basement, found Willcox grabbing Don Earl around the waist. A jumper cable was wrapped around Don’s neck. Willcox and the defendant strangled Don Earl, each pulling on one end of the cable. Norma Earl, who had observed all of this, stated she wanted to go home. Willcox and the defendant then took the cable off Don and wrapped it around Norma’s neck, strangling her. During the struggle, Norma scratched Willcox. Willcox then got some scissors and cut off her fingernails. After having some drinks upstairs, the three men (the defendant, Willcox, and Stembridge) then drove to a department store and bought two yellow shower curtains. They wrapped the bodies in shower curtains, waited until dark, and then loaded them in the trunk of Willcox’s car.. They drove to the country, where they dug a single hole and buried the Earls together. When they returned to town, they drove Don Earl’s car to an apartment complex, where they left it.
The defendant, charged and convicted of two counts of first-degree murder, filed this appeal. Willcox, who was also charged with two counts of first-degree murder, was tried separately and, on his fourth trial, was acquitted of two counts of second-degree murder.
First, the defendant argues the trial court erred in denying the defendant’s motion for a new trial on the basis of newly discovered evidence. Following the defendant’s conviction, the final trial of Leroy Willcox commenced. Charles O’Hara, one of the defendant’s court-appointed attorneys at his third trial, represented Willcox. During trial preparation for the Willcox trial, Assistant District Attorney Greg Waller turned over all his files to Mr. O’Hara. In these files, Mr. O’Hara discovered a memorandum from Major Leo Willey to Assistant District Attorney Waller. Also, as Mr. O’Hara prepared for the testimony of FBI Agent Robert K. Jobe, he discovered Agent Jobe’s field notes. These two items, the memorandum and the field notes, are the basis for the defendant’s motion for a new trial due to newly discovered evidence.
The memorandum dated January 5,1984, from Major Willey to Assistant District Attorney Waller, concerns Tammy Stembridge. The memo stated that in December of 1983, after Cecil Stem-bridge had been granted immunity, Major Willey’s office was contacted by an attorney looking for Tammy. The attorney, who represented the natural father of Tammy’s child, explained Tammy had apparently contacted the natural father and grandparents to arrange a transfer of custody of her child to the natural father. Tammy then failed to appear in court for the adoption proceeding. At that time, Tammy was staying with her father in protective custody. When Tammy’s case was rescheduled, one of the guards assigned to protect Cecil Stembridge transported Tammy to court. Then, in the middle of December, Tammy, who was no longer staying with her father, came to Major Willey’s office and said what she thought had been a temporary custody situation for her child had turned out to be a permanent adoption. Tammy said she wasn’t sure she was interested in the witness protection plan if she could not have her child. She asked Major Willey to look into the situation. Major Willey sent an officer to talk to the probate judge, who refused to give information to the officer but stated if Tammy had an attorney he would talk to the attorney. Major Willey then contacted an attorney, Stuart Gribble, and asked him, as a personal favor, to talk to the judge hearing the adoption proceeding. It was arranged for Tammy to talk to Mr. Gribble, who then talked to the judge. The judge stated he had explained to Tammy it was a permanent adoption and that she should have an attorney, yet, Tammy insisted on going through with the adoption. Mr. Gribble relayed this information to Major Willey and to Tammy. Several days later, Tammy complained to Major Willey concerning the lack of action taken by his office. He explained that he did not feel his office had any legal obligation to attempt to regain custody of her child for her, that she was not the protective witness, and that his office had done what she had requested. When Willey talked to Cecil Stembridge a few days later, Stem-bridge stated he realized the sheriff s department had no responsibility in the adoption matter. In conclusion, the memo stated:
“That’s the last I heard about the situation until the day that we had the meeting with JOHN CLEVELAND, the Inspector from the Federal Marshal’s Office, and JACK WILLIAMS, the Deputy United States Attorney, and GREG WALLER, the Assistant District Attorney for Sedgwick County, myself, CECIL STEMBRIDGE, his son PHILIP, and his daughter TAMMY, at which time TAMMY brought it up again. I am reducing this information to writing for MR. JOHN CLEVELAND of the Federal Marshal’s Office and I am sending a copy of it to MR. GREG WALLER, the Assistant District Attorney.
“It is not for general publication and I do not intend for it to be given to anyone else. And my personal opinion is that it has no bearing whatsoever on the criminal prosecutions that MR. CECIL STEMBRIDGE is a witness in. And it is strictly a family matter of his daughter’s who is a legal adult in the State of Kansas, TAMMY STEMBRIDGE.”
Agent Jobe’s field notes concerned the Mother’s Day ring, which was one item used to identify the body of Norma Earl. At trial, the defendant argued strongly the bodies found were not those of the Earls. Although Dr. Eckert did not remember seeing a ring on the body’s finger at the gravesite, one was present at the autopsy. Cecil Stembridge testified Leroy Willcox took the ring off Norma and kept it. Detective Thompson identified the ring, with three colored stones of yellow, green, and red, as the ring recovered along with the female victim. At trial, Rhonda Jackson, Norma Earl’s daughter, identified the ring with the three stones of yellow, red, and green as belonging to her mother. Agent Jobe’s field notes concern an earlier statement made by Rhonda Jackson describing the stones as red, blue, and blue. The handwritten notes state the following:
“Rhonda Jackson . . . Ring bought her on a Mother’s Day [about] 5-6 [years] ago after her real Dad died. [Rought about] ‘76. Silver. (3) birthstones. Garnet her’s [sic] is ruby red. Jodi [light] blue (pale). Rick “ [ditto marks indicating stone was also light blue]. All 3 stones in a row.”
The rules relative to the granting of new trials on the basis of newly discovered evidence pursuant to K.S.A. 22-3501 were summarized in State v. Richard, 235 Kan. 355, 363, 681 P.2d 612 (1984), as follows:
“ ‘ “The granting of a new trial for newly discovered evidence is in the trial court’s discretion. (State v. Larkin, 212 Kan. 158, 510 P.2d 123, cert. den. 414 U.S. 848, 38 L. Ed. 2d 95, 94 S. Ct. 134.) A new trial should not be granted on the ground of newly discovered evidence unless the evidence is of such materiality that it would be likely to produce a different result upon re-trial. (State v. Hale, 206 Kan. 521, 479 P.2d 902.) The credibility of the evidence offered in support of the motion is for the trial court’s consideration. (State v. Anderson, 211 Kan. 148, 505 P.2d 691; State v. Larkin, [212 Kan. 158].) The burden of proof is on defendant to show the alleged newly discovered evidence could not with reasonable diligence have been produced at trial. (State v. Lora, 213 Kan. 184, 515 P.2d 1086; State v. Arney, 218 Kan. 369, 544 P.2d 334.) The appellate review of an order denying a new trial is limited to whether the trial court abused its discretion. (State v. Campbell, 207 Kan. 152, 483 P.2d 495; State v. Anderson, [211 Kan. 148].)” ’ ”
In State v. Kelly, 216 Kan. 31, 531 P.2d 60 (1975), prior inconsistent statements made by the prosecution’s key witness were the basis for a new trial. Assuming the evidence was withheld by the prosecutor, the court applied a two-part test to determine if a new trial was warranted: first, whether the evidence was exculpatory and, second, whether the evidence was so material to the outcome of the case that its withholding would be clearly prejudicial. Regarding the first test, it was stated:
“It has generally been held that evidence is exculpatory if it tends to disprove a fact in issue which is material to guilt or punishment. (Brady v. Maryland, [373 U.S. 83, 10 L.Ed. 2d 215, 83 S. Ct. 1194 (1963).]) However, this rule was somewhat expanded in Giglio v. United States, 405 U.S. 150, 31 L. Ed. 2d 104, 92 S. Ct. 763, to include evidence bearing upon the credibility of a key witness on an important issue in the case. In Giglio it was held that credibility may be a material issue when the prosecution’s case rests almost entirely upon the testi mony of that witness. In such a case the reliability of the testimony of the witness may well be a determining factor by which the jury arrives at guilt or punishment. For this reason evidence materially affecting credibility may fall under the heading of exculpatory evidence.” 216 Kan. at 36-37.
It was found the evidence in issue “might rise to the level of exculpatory evidence” but a different result would not have been reached. The key witness’ credibility had been impeached at trial both by the prosecutor and the defendant. Therefore, the defendant was only deprived of the opportunity to recall the witness in order to further confront him with his prior inconsistent statements.
In its ruling on the defendant’s motion for a new trial, the trial court stated the memorandum and the field notes went to the credibility of certain witnesses and, although the field notes were withheld due to inadvertence, the memo was intentionally withheld by the State and was material to the issue of the defendant’s guilt or innocence. The trial court then determined that a different result would not have resulted had the jury known of these two pieces of evidence:
“The matter for determination at this point is whether or not the new evidence discovered would have resulted in a different verdict being returned had the jury known of such evidence (State vs. Larkin, 212 Kan. 158, 510 P.2d 123 [1973]; State vs. Ashworth, 231 Kan. 623, 647 P.2d 1281 [1982]; State vs. Richard, 235 Kan. 355, 681 P.2d 612 [1984]).
“At his fourth trial, Mr. Armstrong represented himself with lawyers assigned to assist upon request of Mr. Armstrong. Mr. Armstrong directed his lawyers not to explore by way of cross examination certain areas that went to the credibility of the accomplice witness. In particular, Mr. Armstrong would not allow the lawyers to cross examine the accomplice as to money paid by the State to the witness for his support and upkeep.
“The questioned evidence then becomes something that could have been used by the defendant had he known about it and chose to use it at trial. It cannot be said that a different result would have been obtained.” (Emphasis added.)
The defendant argues the trial court improperly speculated on whether the defendant would have used this evidence to impeach these witnesses. We disagree. In ruling on a motion for new trial based upon newly discovered evidence, the trial court must engage in a certain degree of speculation when determining whether the evidence is of such materiality that it would be likely to produce a different result on retrial. The trial court was not speculating whether the defendant would use the evidence, but whether, if the evidence was used upon retrial, a different verdict would result.
Our review is limited to determining whether the trial court abused its discretion in denying the defendant’s motion, and we find it did not. The trial court had heard the evidence of this case on three separate occasions. It saw and heard the witnesses and had a better opportunity to know whether a different verdict would have resulted on retrial. State v. Lackey, 72 Kan. 95, 99, 82 Pac. 527 (1905). The memorandum would have been offered to impeach the credibility of Cecil Stembridge. The jury clearly chose to believe Cecil Stembridge when it convicted the defendant of two counts of first-degree murder. This was after the defendant had impeached Cecil Stembridge with his prior inconsistent statements and alleged “concessions” made to his son, Philip Stembridge, by the State’s dismissal of criminal charges brought against Philip. We do not believe a different result would have occurred by confronting Cecil with the alleged “concessions” made to his daughter Tammy.
The field notes would be offered merely to impeach the credibility of Rhonda Jackson, who was not a key witness in the case, as having made a prior inconsistent statement. This evidence would not likely have produced a different result. Furthermore, it is a long-established rule that a new trial is not granted on the basis of newly discovered evidence which merely tends to impeach or discredit the testimony of a witness. State v. Hobson, 237 Kan. 64, 66, 697 P.2d 1274 (1985); State v. Richard, 235 Kan. at 363; State v. Foy, 224 Kan. 558, 569, 582 P.2d 281 (1978); Davis v. State, 210 Kan. 709, 715-16, 504 P.2d 617 (1972); State v. Watson, 204 Kan. 681, 685, 466 P.2d 296 (1970); State v. Wolf, 7 Kan. App. 2d 398, 405, 643 P.2d 1101, rev. denied 231 Kan. 802 (1982). The trial court did not err in denying the defendant’s motion for a new trial.
Next, the defendant argues his conviction should be reversed and he should be granted a new trial because his waiver of the right to counsel was not knowingly and intelligently made. The defendant argues his waiver needs to be made with an apprehension of the nature of the charges, their punishment, and their defenses; that he needs to be informed that he will be held to the same standard as an attorney, that the judge will not aid him, and that it is advisable to have a lawyer.
After the defendant’s second trial ended in a mistrial, one of the defendant’s court-appointed counsel moved to withdraw upon the defendant’s request. The defendant at that time indicated he wanted to represent himself. District Court Judge Ray Hodge advised the defendant he was losing a valuable asset and allowed defendant’s court-appointed counsel to withdraw. Judge Hodge granted the defendant’s request to appear pro se and appointed two attorneys to aid the defendant at his third trial.
Although Judge Hodge did not warn the defendant of the pitfalls of self-representation at the time of accepting the defendant’s waiver of his right to counsel, Judge Paul Clark, the trial judge at defendant’s third trial, did warn the defendant. After the jury was selected, but before the presentation of evidence, Judge Clark told the defendant the quote attributed to Abraham Lincoln that the lawyer who represents himself has a fool for a client. Judge Clark told defendant of Clarence Darrow, a great criminal lawyer who hired an attorney to represent him rather than representing himself. Judge Clark also explained to the defendant that he must follow the rules of evidence. Judge Clark then asked the defendant what he thought about representing himself and the defendant stated he knew the facts, and his attorneys knew the law, and if they did not question a witness the way the defendant wanted, then the defendant would question the witness.
In Faretta v. California, 422 U.S. 806, 45 L. Ed. 2d 562, 95 S. Ct. 2525 (1975), the United States Supreme Court recognized there is a constitutional right to self-representation. See State v. Ames, 222 Kan. 88, 563 P.2d 1034 (1977). A waiver of one’s Sixth Amendment right to counsel must be voluntary and must be a knowing and intelligent relinquishment or abandonment of a known right or privilege. Whether a waiver is made knowingly and intelligently depends upon the particular facts and circumstances surrounding each case, including the accused’s background, experience and conduct. Edwards v. Arizona, 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880, reh. denied 452 U.S. 973 (1981). The crucial question is not the defendant’s legal background, but “whether he has properly been made aware of the dangers and disadvantages of self-representation — so that the record will establish that he understands what he is doing and has made his choice with his eyes open.” State v. Cunningham, 222 Kan. 704, 706, 567 P.2d 879 (1977).
Under circumstances similar to the instant case, this court has found the defendant voluntarily and intelligently waived his right to counsel in State v. Williams, 226 Kan. 82, 87, 595 P.2d 1104 (1979). There, the trial judge established the following:
“The trial judge established by his inquiry that Williams wanted to try his own case; that he knew very little about a trial; no rules of evidence; nothing about voir dire; nothing about the elements of the crime; that the court wouldn’t help him; that he needed a lawyer; that he knew the range of punishment in case of conviction.”
It was ruled the trial court had adequately advised the defendant of the dangers of self-representation for the defendant to voluntarily and intelligently waive his right to counsel.
In United States v. Romero, 640 F.2d 1014 (9th Cir. 1981), the defendant was advised of his right to counsel and a public defender was appointed to represent him. The defendant, however, decided he wanted to represent himself and the trial judge advised him self-representation would be extremely unwise. The federal circuit court ruled the defendant knowingly and intelligently waived the assistance of counsel.
In Fillipini v. Ristaino, 585 F.2d 1163 (1st Cir. 1978), the circuit court of appeals held that, in determining whether to accept an accused’s waiver of his right to counsel, the district court can consider the defendant’s background, experience, conduct, involvement in a previous criminal trial, and his representation by counsel before trial. There, the defendant had refused appointed counsel many times, stating he was going to retain an attorney. The defendant, however, was unable to get his own attorney and signed a waiver of his right to counsel. In determining the defendant had failed to show by a preponderance of the evidence his waiver was not made with knowledge and understanding, the appellate court considered the fact that the defendant had been charged and convicted before on an unrelated charge and a previous trial on the current charge had ended in a mistrial.
Here, we find the defendant voluntarily and intelligently waived his right to counsel. As this was the defendant’s third trial, he knew the nature of the charges, the penalties, and any defenses. He was represented by a public defender at his first trial and, at his second trial, he was represented by two court-appointed attorneys. At the defendant’s third trial, he was not strictly held to his waiver of counsel, but was allowed a hybrid representation in which court-appointed counsel argued certain motions for the defendant, examined certain witnesses, and argued the jury instructions in closing argument. Judge Clark, who warned the defendant prior to trial that it was not wise to represent himself and that he would be bound by the rules of evidence, was also the trial judge at the defendant’s first trial. Under these circumstances, we find the defendant had his eyes “wide open” when he waived his right to counsel.
The defendant also argues his conviction must be reversed and a new trial granted for failure to satisfy K.S.A. 22-3426(a), which requires a journal entry of judgment to include “a statement that the defendant was duly represented by counsel naming such counsel, or a statement that the defendant has stated in writing that he or she did not want counsel to represent him or her.” In the instant case, the journal entry of judgment states only that “[t]he defendant appears in person, pro se” with his court-appointed advisors.
The issue of satisfying the requirements of K.S.A. 22-3426(a) was recently raised in State v. Turner, 239 Kan. 360, 367-68, 721 P.2d 255 (1986). There, the defendant entered his plea of guilty pro se. On appeal, he argued noncompliance with K.S.A. 22-3426(a) required his guilty plea be set aside. In the opinion, Justice Prager reviewed case law involving K.S.A. 62-1516 (Cor-rick), the predecessor to K.S.A. 22-3426(a):
“In Selbe v. Hudspeth, 175 Kan. 154, 157, 259 P.2d 204 (1953), the court stated that the purpose of K.S.A. 62-1304 (Corrick), a similar statue, was to provide for a record that disclosed fully what had occurred, so that there could be no controversy as to what advice was given to the accused by the court and his responses and answers to any questions asked him or as to whether the trial court made the findings requisite under the statute.
“In Goetz v. Hand, 185 Kan. [788,] 793, [347 P.2d 349 (1959),] this court stated that the judgment record is prima facie evidence of the facts which it recites. Where a question of waiver of the right to counsel arises, the Kansas decisions simply hold that there must be some written evidence in the record to show that the defendant was fully advised as to his right to appointed counsel.” 239 Kan. at 367.
This court found the requirements of K.S.A. 22-3426(a) were satisfied because the journal entry covering the defendant’s first appearance in district court stated, without equivocation, that the court had informed the defendant of his right to counsel and that if the defendant was unable to afford counsel, counsel would be appointed to represent him.
Here, the trial transcript, viewed as written evidence, establishes the defendant knowingly and voluntarily waived his right to counsel. The question then becomes how to correct the journal entry.
In State v. Andrews, 5 Kan. App. 2d 678, 623 P.2d 534 (1981), the Court of Appeals stated that where a journal entry is “merely incomplete and subject to correction to reflect the truth of what has in fact occurred, the judgment may be affirmed upon an entry nunc pro tunc.” 5 Kan. App. 2d at 681. The record in Andrews was completely silent on the issues of whether the court had advised the defendant of his right to counsel and whether it had inquired into the defendant’s request to waive that right. The trial record stated only that the defendant “is appearing personally, acting in his own defense, having waived his right to counsel.” The Court of Appeals ruled a nunc pro tunc order could not be used to correct the incomplete journal entry in Andrews because the trial record did not support such a correction.
Here, the record does support such a correction. The journal entry is merely incomplete and can be corrected by a nunc pro tunc order. Such a correction has been allowed in cases involving K.S.A. 62-1516 (Corrick). Browning v. Hand, 184 Kan. 365, 366, 336 P.2d 409 (1959), cert. denied 361 U.S. 926 (1960) (journal entry which failed to contain recital of details of the defendant’s former convictions as required by G.S. 1949, 62-1516 subject to correction); Jamison v. Hudspeth, 168 Kan. 565, 567-68, 213 P.2d 972 (1950) (failure of journal entry to state statute under which defendant’s sentence was imposed, as required by 62-1516, subject to correction); and Wilson v. Hudspeth, 165 Kan. 666, 668-69, 198 P.2d 165 (1948), cert. denied 335 U.S. 909, reh. denied 336 U.S. 911 (1949) (journal entry’s failure to state section of statute under which verdict was rendered and sentence imposed subject to correction). Where, as in the instant case, the record supports a finding that the defendant knowingly and voluntarily waived his right to counsel, an incomplete journal entry may be corrected by way of a nunc pro tunc order.
Next, the defendant argues he was denied a fair trial by the intentional destruction and negligent loss of material evidence by the State — a set of dentures and fibers from the victims’ clothing.
At the time the bodies were first exhumed from their common grave, a set of dentures was removed with the male body. However, at the time of trial, the dentures had inexplicably disappeared. The defendant argues this made it impossible for him to demonstrate that the remains were not those of the Earls, but belonged to another couple with whose disappearance Cecil Stembridge was connected.
At the time of the autopsy, Dr. Eckert, the coroner, removed the clothing from the bodies and hand washed them in bleach and detergent before any fibers could be removed from the clothing to be analyzed. This caused problems when comparing fibers from the clothes with carpet fibers found in Willcox’s basement.
The defendant relies on State v. Wright, 87 Wash. 2d 783, 557 P.2d 1 (1976), to support his argument that his convictions must be reversed and charges dismissed. There, the clothing from a woman’s body, found in a decomposing condition, was removed from the body and destroyed because the police did not have adequate facilities to store it. Furthermore, all evidence found in the room where the body was discovered was also destroyed. It appears that no analysis of any kind was performed on the evidence prior to its destruction. The defendant, the victim’s husband, whose conviction of first-degree murder was based entirely on circumstantial evidence, enumerated on appeal nine ways the evidence could have assisted him; for example, another man’s coat found in the room could have been analyzed for blood, and the blood on the victim’s clothing could have been tested to show it was dissimilar to the defendant’s blood type. As a sanction against the State for failing to insure the defendant a fair trial by preserving evidence, the court reversed the defendant’s conviction and dismissed the proceedings.
The instant case is distinguishable from State v. Wright, 87 Wash. 2d 783. Here, the defendant was not convicted entirely on circumstantial evidence but, rather, on the testimony of an eyewitness to the crime. Furthermore, the evidence in issue here was analyzed. Dr. Eckert testified the final identification of the male body was based on dental records, those of Don Earl, sent from Leavenworth. Dr. Eckert testified this identification was made by the sheriff s department detectives. When the defendant questioned the whereabouts of the dentures during the presentation of his case, it was learned the dentures were buried with the bodies after completion of the investigation and that during a subsequent exhumation of the bodies, the dentures appeared to still be in the body bags. The State explained a videotape of the exhumation existed which could confirm whether the dentures were present at the exhumation and suggested another exhumation take place. The defendant stated he wanted the trial to proceed, that it was unnecessary to exhume the bodies to find the dentures, and that he was satisfied with the evidence given as to what had happened to the dentures.
Regarding the fibers, both the defendant and the State had experts who testified concerning the effect the bleaching done by Dr. Eckert had on the evidence. Andrew Podolak, a special agent with the FRI, testified for the State that the bleach didn’t make any difference on the generic composition of the fibers. He felt the loss of color from the clothing fibers resulted more from the decomposition of the bodies, which produces a tremendous amount of heat, rather than from the bleaching. In comparing the clothing fibers and carpet fibers, he concluded the fibers on the clothing could have come from the carpet in Willcox’s basement. Patrick Glynn, a forensic scientist testifying for the defendant, compared only the colors of the clothing fibers and the carpet fibers and found they didn’t match.
In California v. Trombetta, 467 U.S. 479, 488-89, 81 L. Ed. 2d 413, 104 S. Ct. 2528 (1984), involving the presentation of breath samples in a DUI case, the United States Supreme Court stated the following:
“Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect’s defense. To meet this standard of constitutional materiality, see United States v. Agurs, 427 U.S. at 109-110, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.”
Under the facts presented, we find the standards set forth above are not satisfied and defendant was not denied a fair trial.
Finally, the defendant argues the trial court erred when it failed to instruct the jury on the lesser included offense of second-degree murder. The defendant did not request an instruction on second-degree murder and, in fact, the defendant had his court-appointed attorneys tear up a request for instruc tions on lesser included offenses that they had prepared at the close of the evidence.
First, the State argues the defendant waived the issue of lesser included offense instructions when the defendant failed to request those instructions.
K.S.A. 21-3107(3) explicitly places the duty of instructing the jury on lesser included offenses on the trial court, regardless of whether requests or objections were made by the parties. State v. Marks, 226 Kan. 704, 713, 602 P.2d 1344 (1979); State v. Johnson, 220 Kan. 720, 723, 556 P.2d 168 (1976); State v. Clark, 214 Kan. 293, 297, 521 P.2d 298 (1974); State v. Weyer, 210 Kan. 721, 727, 504 P.2d 178 (1972); State v. Fonts, 169 Kan. 686, 692, 221 P.2d 841 (1950). The duty of the trial court to instruct on lesser included homicide offenses is applicable only when the evidence introduced during trial is such that the defendant might reasonably have been convicted of the lesser offense. State v. Pearson, 234 Kan. 906, 918, 678 P.2d 605 (1984); State v. Hutton, 232 Kan. 545, 554, 657 P.2d 567 (1983); State v. Sullivan & Sullivan, 224 Kan. 110, 120, 578 P.2d 1108 (1978); State v. McCorgary, 218 Kan. 358, 365, 543 P.2d 952 (1975), cert. denied 429 U.S. 867 (1976). The evidence supporting the lesser crime, however, need not be overwhelming. The accused has the right to have his theory of the case presented to the jury under appropriate instructions where there is support in the evidence even though the evidence may be weak and inconclusive. State v. Seelke, 221 Kan. 672, 676, 561 P.2d 869 (1977). If the evidence at trial excludes a theory of guilt on the lesser offense, the failure to instruct the jury on some lesser degree of the crime charged is not grounds for reversal. State v. Sullivan & Sullivan, 224 Kan. at 120. The question is not whether, in the mind of the court, the evidence as a whole excludes the idea that the defendant is guilty of a lesser included offense, but whether there is any substantial evidence tending to prove that lesser included offense. If there is, then the question of such degree should be submitted to the jury. State v. Clark, 214 Kan. at 299; State v. Buffington, 66 Kan. 706, 72 Pac. 213 (1903).
There is no question second-degree murder is a lesser included offense of first-degree murder. All of the elements of second-degree murder are included in the elements of first-degree murder, which contains the additional element of premedi tation. State v. Arney, 218 Kan. 369, 375, 544 P.2d 334 (1975). The defendant argues there was no evidence of premeditation to support the first-degree murder charge and, therefore, the trial court should have instructed the jury on second-degree murder. The defendant also gives the example of Willcox’s experience to show the error of not instructing on second-degree murder. At his third trial, Leroy Willcox, who was charged with first-degree premeditated murder and tried separately, was convicted of two counts of second-degree murder just months before the defendant’s trial. The State argues the evidence doesn’t support an instruction on second-degree murder, as the defendant’s defense was that of nonparticipation in the crime and that the bodies found in the graves were not those of Don and Norma Earl.
In order for the evidence to be sufficient to require instructions on lesser included offenses, testimony supporting such instructions must be offered either by the State or by the defense for the purpose of proving what events occurred at the time the homicide was committed. Contradictory statements of a witness offered only to destroy credibility and not as positive evidence to prove the matters contained in the statements are not alone sufficient to require an instruction on the lesser degrees of homicide. State v. Marks, 226 Kan. at 714.
Here, the defendant did not testify. The only witness who testified concerning how the deaths of the Earls occurred was Cecil Stembridge. Cecil Stembridge testified that at the time of the murders the only people present were Stembridge, Leroy Willcox, and the defendant. On direct examination, Stembridge stated the defendant and Leroy Willcox strangled both Don and Norma Earl with the use of jumper cables. On cross-examination, Stembridge indicated that no one had planned anything. The primary goal of the defense in this case was to challenge the credibility of Cecil Stembridge, and on this approach the defendant failed. If the defendant himself had testified that nobody had planned anything, that unsupported testimony standing alone would be sufficient to require the court to instruct on the lesser offense of second-degree murder. State v. Buffington, 66 Kan. at 710.
The entire thrust of the defense in this case as presented to the jury by the defendant was that he did not participate in the crimes and that the bodies found in the graves were not those of Don and Norma Earl. We find that, under all the evidence presented in this case, the trial court did not err in its failure to instruct on second-degree murder.
The judgment of the lower court is affirmed. The State is directed to correct the journal entry by procuring an order nunc pro tunc.
Approved by the court prior to the retirement of Schroeder, C.J.
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The opinion of the court was delivered by
Johnson, J.:
Travis A. Montgomery pled nolo contendere to and was convicted of a second drug offense that required his participation in a mandatory drug treatment program. He was sentenced to an underlying prison term of 11 months and placed on 18 months’ probation. By his own admissions, Montgomery failed to comply with the terms of his probation, prompting the district court to revoke his probation and order him to serve his 11-month prison sentence. Montgomery appealed, claiming that the district court should have imposed a different sanction for his probation violation. By the time the matter came before the Court of Appeals, Montgomery had completed his prison sentence and had been released from State custody and supervision. The Court of Appeals dismissed the appeal as moot, and Montgomery petitioned for our review of that decision. State v. Montgomery, 43 Kan. App. 2d 397, 402, 225 P.3d 760 (2010). Finding that Montgomery has failed to refute the State’s contention that the actual controversy has ceased or to establish an exception to the general rule that precludes appellate review of moot issues, we affirm.
Factual and Procedural Overview
On February 9, 2007, the district court sentenced Montgomery to probation pursuant to a plea agreement. The conditions of probation included the requirements that the defendant report as directed by his probation supervisor, that he abstain from illegal drug use, that he participate in drug and alcohol treatment, and that he obtain legal employment.
Some 4 months later, the State filed a motion to revoke probation, alleging that the defendant failed to report as directed, failed to abstain from illegal drug use, failed to participate in drug and alcohol treatment, and failed to obtain legal employment. At the revocation hearing, the defendant stipulated to violating his probation as alleged by the State.
The district court deferred disposition for 30 days to give Montgomery an opportunity to demonstrate his seriousness about the probation. The dispositional hearing was further delayed, however, because the defendant missed several court dates and was placed on absconder status. When the dispositional hearing was finally conducted on the admitted probation violations, defense counsel argued that if the district court sent Montgomery to prison, he would not get the drug treatment that he needed. Counsel requested that the court place Montgomery in either the county jail or an in-patient treatment facility. Pointing out that Montgomery had reported sporadically and had not shown any attempt to get treatment, the district court rejected the defense’s request and ordered Montgomery to serve tire original 11-month prison sentence.
Montgomery appealed the revocation of his probation on January 28, 2009. Prior to the case being heard on appeal, Montgomery was released from prison on September 28, 2009. Montgomery, 43 Kan. App. 2d at 397-98. In response to the Court of Appeals’ directive for the parties to brief the issue of mootness, Montgomery argued that the issue of his probation revocation was not moot because some judge in a future case may use the revocation to support a finding of nonamenability to probation and thereby either deny probation or impose an upward dispositional sentence in that future case.
The Court of Appeals acknowledged an apparent conflict among panels on whether such future use was sufficient to refute mootness but nevertheless held that Montgomery’s case was “clearly moot” because “Montgomery has served his entire sentence.” Montgomery, 43 Kan. App. 2d at 402. This court granted Montgomery’s petition for review, in part to attempt to resolve the conflict in the Court of Appeals.
Mootness of Probation Revocation Appeal After Completion of Sentence
In his petition for review, Montgomery contends that the revocation of his probation can have consequences that are similar to those caused by a criminal conviction. Specifically, he argues that the probation revocation in this case could be used in the future to deny Montgomery probation or to subject him to an upward departure sentence. See State v. Snow, 40 Kan. App. 2d 747, 757, 195 P.3d 282 (2008) (“nonamenability to probation may constitute a substantial and compelling reason for an upward durational departure, as well as a substantial and compelling reason for a dis-positional departure”), rev. denied 289 Kan. 1285 (2009). Therefore, Montgomeiy argues that the Court of Appeals erred in dismissing this appeal just because the State’s supervision had terminated in this case.
Standard of Review/Legal Maxims
Generally, Kansas appellate courts do not decide moot questions or render advisory opinions. State v. McKnight, 292 Kan. 776, 778, 257 P.3d 339 (2011). This court has previously described the mootness doctrine as a court policy, which recognizes that the role of a court is to “ ‘determine real controversies relative to the legal rights of persons and properties which are actually involved in the particular case properly brought before it and to adjudicate those rights in such manner that the determination will be operative, final, and conclusive.’ ” State v. Bennett, 288 Kan. 86, 89, 200 P.3d 455 (2009) (quoting Board of Johnson County Comm'rs v. Duffy, 259 Kan. 500, 504, 912 P.2d 716 [1996]).
A justiciable controversy has definite and concrete issues between the parties and “adverse legal interests that are immediate, real, and amenable to conclusive relief.” State ex rel. Morrison v. Sehelius, 285 Kan. 875, 890-91, 179 P.3d 366 (2008). The Court of Appeals relied on this court’s previous declaration that “[a]n appeal will not be dismissed as moot unless it clearly and convincingly appears the actual controversy has ceased and the only judgment which could be entered would be ineffectual for any puipose and an idle act insofar as rights involved in the action are concerned.” In re M.R., 272 Kan. 1335, Syl. ¶ 2, 38 P.3d 694 (2002). Subsequently, we phrased the test for mootness as being whether “it is clearly and convincingly shown the actual controversy has ended, the only judgment that could be entered would be ineffectual for any purpose, and it would not impact any of the parties’ rights.” McAlister v. City of Fairway, 289 Kan. 391, 400, 212 P.3d 184 (2009).
Yet, the mootness doctrine is not a question of jurisdiction. Therefore, it is amenable to exceptions. One commonly applied exception is the circumstance where a moot issue “is capable of repetition and raises concerns of public importance.” State v. DuMars, 37 Kan. App. 2d 600, 605, 154 P.3d 1120, rev. denied 284 Kan. 948 (2007). In that context, public importance means “ ‘ “something more than that the individual members of the public are interested in the decision of the appeal from motives of curiosity or because it may bear upon their individual rights or serve as a guide for their future conduct as individuals.” 5 ” Skillett v. Sierra, 30 Kan. App. 2d 1041, 1048, 53 P.3d 1234, rev. denied 275 Kan. 965 (2002) (quoting State ex rel. Stephan v. Johnson, 248 Kan. 286, 290, 807 P.2d 664 [1991]).
A court policy necessarily comes about through prior opinions of die court, i.e., the mootness doctrine developed through court precedent. Accordingly, our review is unlimited. See State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012) (“To the extent our decision involves . . . the interpretation and application of. . . court precedent, we are resolving questions of law and, thus, exercising unlimited review. Johnson v. Brooks Plumbing, 281 Kan. 1212, 1213, 135 P.3d 1203 [2006].”).
Analysis
Montgomery has fully satisfied the sanction imposed for his probation violation, which was serving the entire underlying prison term of his original sentence. Montgomery’s debt to society has been paid in full, even if his claim that he was overcharged is correct. Likewise, the State of Kansas has no authority to punish or supervise Montgomery any further in this case. Accordingly, the Court of Appeals correctly stated that “[a]ny action this court might take in regards to his probation revocation would be an idle act insofar as Montgomery’s rights in this action are concerned.” Montgomery, 43 Kan. App. 2d at 402.
But citing to State v. Flanagan, 19 Kan. App. 2d 528, 529, 873 P.2d 195 (1994), Montgomery contends that his case is not moot because it “may have adverse legal consequences in the years to come.” Flanagan was a challenge to a contempt conviction where the defendant was sentenced to time served. Challenging the efficacy of a conviction is simply a different proposition than is presented here. The possible collateral consequences of a conviction are “too obvious to declare [an] appeal [of the conviction] moot simply because defendant cannot be subjected to additional jail time.” 19 Kan. App. 2d at 530. The impact of a conviction is tangible and immediate.
For instance, a conviction is immediately added to the defendant’s criminal history score and will thereafter accompany the defendant as a fact that speaks for itself. The criminal history score will be a fact that subsequent courts must use to calculate future sentences; a district court cannot exercise its discretion to disregard a prior conviction. Cf. K.S.A. 21-4713(1) (prosecutor is not permitted to “make any agreement to exclude any prior conviction from the criminal history of the defendant”). Prior convictions are much more than merely factors to consider when assessing a defendant’s likelihood to perform on probation.
But Montgomery can also point to State v. White, 41 Kan. App. 2d 943, 206 P.3d 553 (2009), to support his claim that a probation revocation can have future adverse consequences that negate mootness. The White panel opined:
“Arguably, because the probation revocation will remain on his record, it could affect his rights in the long run. For example, if he should become eligible for probation at anytime in the future, tire trial court could refuse probation based on a finding that this revocation showed [the defendant] was not amenable to probation.” 41 Kan. App. 2d at 946.
The State counters with two bases for us to reject the holding in White. First, the State contends that White is factually distinguishable because the defendant in that case was still serving a concurrent prison term at the time the Court of Appeals considered mootness. We find that argument to be unpersuasive because tire White panel did not rely on or utilize the alleged distinguishing fact to reach its decision. Rather, the opinion clearly relied on the potential impact of die current revocation on an assessment of amenability to probation in future cases.
Secondly, the State points us to the decision of another Court of Appeals panel in State v. Brown, No. 95, 985, 2008 WL 2422761, at *2 (Kan. App. 2008) (unpublished opinion), rev. denied 287 Kan. 766 (2008), for the proposition that this question of mootness has already been resolved by the United States Supreme Court in Spencer v. Kemna, 523 U.S. 1, 118 S. Ct. 978, 140 L. Ed. 2d 43 (1998). See also Lee v. State, No. 106,274, 2012 WL 2476991, at *2 (Kan. App. 2012) (unpublished opinion) (potential use of probation revocation to argue in a future case that the defendant is not amenable to probation is “too speculative to refute a finding of mootness”). Pointedly, the State does not discuss that Spencer was a federal habeas corpus proceeding or that mootness in federal jurisprudence emanates from the case or controversy language in Article III, § 2 of the Constitution of the United States. In other words, the United States Supreme Court’s rulings on the issue of mootness are not binding authority on this court.
Nevertheless, we can consider Spencer for whatever persuasive effect it might have on our rationale. Spencer distinguished between two types of collateral consequences that may be present after the expiration of a sentence: (1) concrete or continuing consequences that are “imminently threatened, or that [are] imposed as a matter of law (such as deprivation of the right to vote, to hold office, to serve on a jury, or to engage in certain businesses),” 523 U.S. at 8; or (2) hypothetical consequences that are speculative or mere possibilities, such as the potential use of a parole revocation as a factor to deny parole in a future case. 523 U.S. at 13. The Court pointed out that hypothetical or speculative consequences, such as the possibility that a parole revocation would affect a sentence imposed in a future criminal proceeding, are “nonstatutory consequences,” dependent upon the sentencing judge’s discretion, rather than the mere presence of a prior parole revocation. 523 U.S. at 13. Moreover, that future decision might well be more directly influenced by “ ‘the underlying conduct that formed the basis for the parole violation.’ ” 523 U.S. at 13.
Spencer’s observation—that the fact of a parole revocation may not be as influential or consequential in a subsequent criminal proceeding as the underlying conduct giving rise to the revocation— is particularly cogent in this case. Montgomery contends that, if the district court’s order of imprisonment is allowed to stand, a future court will use that fact to find that he is not amenable to probation. But the reason a prior probation revocation is relevant to a defendant’s future amenability to probation is that revocation necessarily follows a probation violation, and a probation violation reveals that the probationer was unable or unwilling to conform to and comply with the terms and conditions of probation. Here, Montgomery admitted violating his probation in a number of ways, effectively establishing that he was not amenable to his current probation. Regardless of the sanction that the district court imposed for those probation violations, its finding that probation was violated was sufficient to demonstrate that Montgomery cannot always follow the rules and may not be amenable to probation in dre future.
In this appeal, Montgomery complains that, after he admitted to breaking the rules of probation, the district court did not grant his request to go to drug treatment or the county jail, instead of prison. In otirer words, Montgomery does not challenge the fact that he violated the terms and conditions of his probation; he merely complains about the resulting punishment. We cannot change the sanction imposed for the probation violation because the prison term that Montgomery was ordered to serve has been completed. Likewise, as noted above, any answer that we might give on the appropriateness of the sanction imposed will not impact any future assessment of his amenability to probation. Therefore, this appeal presents a request for an advisory opinion on a moot issue. Moreover, Montgomery has not shown, nor do we discern, any reason to invoke an exception to the rule that appellate courts will not entertain moot issues. Accordingly, we affirm the Court of Appeals’ dismissal for mootness.
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The opinion of the court was delivered by
Herd, J.:
The appellant, Nelson Ray Johnson, appeals his jury conviction of one count of aggravated criminal sodomy in violation of K.S.A. 1985 Supp. 21-3506.
Johnson was originally charged with three counts of indecent liberties with his daughter, R.J., and one count of aggravated criminal sodomy with his stepson, J.W.
At trial, the State presented the videotaped testimony of R.J., pursuant to K.S.A. 1985 Supp. 22-3433 and K.S.A. 1985 Supp. 22-3434. In addition to testifying regarding the indecent liberties charges, R.J. testified she saw the appellant sodomize her brother, J.W..During the first part of the videotaped testimony, R.J. and Sherry Radcliffe (a social worker) were the only persons present in the room. During the second portion of the videotape, a number of people were present — R.J., her foster mother, Ms. Radcliffe, the State’s attorney, the defense attorney, and the court reporter. The appellant was not present during the videotaping.
The State also presented the testimony of the stepson. Although his testimony was not videotaped, J.W. testified the appellant had sodomized him several times over a two- to three-year period. However, he further testified he was unaware that R.J. had seen any of these acts.
The jury found the appellant guilty of the aggravated sodomy of J.W., but were unable to reach a verdict on the three counts of indecent liberties with R.J. Accordingly, the trial court declared a mistrial upon the indecent liberties charges. These charges were later dismissed upon the State’s motion.
Prior to sentencing, appellant filed a motion for new trial on the grounds of newly discovered evidence. The trial court denied Johnson’s motion on the ground the evidence could have been presented at trial. The appellant was then sentenced to a minimum of 10 and a maximum of 20 years’ imprisonment.
The appellant first argues the admission of the videotaped testimony of R.J. under the provisions of K.S.A. 1985 Supp. 22-3433 and 22-3434 violated his right of confrontation secured by both the United States and Kansas Constitutions. Before considering this issue, it should be noted the videotaped testimony of R.J. is relevant even though the appellant was not convicted of the charges involving R.J. The videotape is significant because R.J. testified she saw appellant commit the crime for which he was ultimately convicted.
The statutes in question provide for the admission of a prior videotaped recording of a statement made by a child alleged to be the victim of a crime if specific procedures are followed. K.S.A. 1985 Supp. 22-3433 provides for the admission of statements made prior to the initiation of criminal proceedings. It states:
“Recorded statement of child [victim] admissible in certain cases; limitations. (a) In any criminal proceeding in which a child less than 13 years of age is alleged to be a victim of the crime, a recording of an oral statement of the child, made before the proceeding began is admissible in evidence if:
“(1) The court determines that the time, content and circumstances of the statement provide sufficient indicia of reliability;
“(2) no attorney for any party is present when the statement is made;
“(3) the recording is both visual and aural and is recorded on film or videotape or by other electronic means;
“(4) the recording equipment is capable of making an accurate recording, the operator of the equipment is competent and the recording is accurate and has not been altered;
“(5) the statement is not made in response to questioning calculated to lead the child to make a particular statement or is clearly shown to be the child’s statement and not made solely as a result of a leading or suggestive question;
“(6) every voice on the recording is identified;
“(7) the person conducting the interview of the child in the recording is present at the proceeding and is available to testify or be cross-examined by any party;
“(8) each party to the proceeding is afforded an opportunity to view the recording before it is offered into evidence, and a copy of a written transcript transcribed by a certified shorthand reporter is provided to the parties; and
“(9) the child is available to testify.
“(b) If a recording is admitted in evidence under this section, any party to the proceeding may call the child to testify and be cross-examined, either in the courtroom or as provided by K.S.A. 1985 Supp. 22-3434.”
K.S.A. 1985 Supp. 22-3434 provides:
“Videotape of testimony of child victim admissible in certain cases; limitations; objections, restrictions, (a) On motion of the attorney for any party to a criminal proceeding in which a child less than 13 years of age is alleged to be a victim of the crime, the court may order that the testimony of the child be taken:
“(1) In a room other than the courtroom and be televised by closed-circuit equipment in the courtroom to be viewed by the court and the finder of fact in the proceeding; or
“(2) outside the courtroom and be recorded for showing in the courtroom before the court and the finder of fact in the proceeding if: (A) The recording is both visual and aural and is recorded on film or videotape or by other electronic means; (B) the recording equipment is capable of making an accurate recording, the operator of the equipment is competent and the recording is accurate and has not been altered; (C) every voice on the recording is identified; and (D) each party to the proceeding is afforded an opportunity to view the recording before it is shown in the courtroom, and a copy of a written transcript transcribed by a certified shorthand reporter is provided to the parties.
“(b) At the taking of testimony under this section:
“(1) Only the attorneys for the defendant, the state and the child, any person whose presence would contribute to the welfare and well-being of the child and persons necessary to operate the recording or closed-circuit equipment may be present in the room with the child during the child’s testimony;
“(2) only the attorneys may question the child;
“(3) the persons operating the recording or closed-circuit equipment shall be confined to an adjacent room or behind a screen or mirror that permits them to see and hear the child during the child’s testimony but doesnot permit the child to see or hear them; and
“(4) the court shall permit the defendant to observe and hear the testimony of the child in person, but shall ensure that the child cannot hear or see the defendant.
“(c) If the testimony of the child is taken as provided by this section, the child shall not be compelled to testify in court during the proceeding.
“(d)(1) Any objection by any party to the proceeding to a recording under subsection (a)(2) is inadmissible must be made by written motion filed with the court at least seven days before the commencement of the trial. An objection under this subsection shall specify the portion of the recording which is objectionable and the reasons for the objection. Failure to file an objection within the time provided by this subsection shall constitute waiver of the right to object to the admissibility of the recording unless the court, in its discretion, determines otherwise.
“(2) The provisions of this subsection (d) shall not apply to any objection to admissibility for the reason that the recording has been materially altered.”
The confrontation clause of the Sixth Amendment of the United States Constitution guarantees the right of an accused in a criminal prosecution “to be confronted with the witnesses against him.” The right of confrontation is guaranteed to defendants in state as well as federal criminal proceedings. Pointer v. Texas, 380 U.S. 400, 13 L. Ed. 2d 923, 85 S. Ct. 1065 (1965). The right of confrontation encompasses both the right to cross-examine and the right to observe an accuser face to face. However, the primary purpose of the confrontation clause is to give the accused the opportunity for cross-examination. Delaware v. Van Arsdall, 475 U.S. 673, 89 L. Ed. 2d 674, 683, 106 S. Ct. 1431 (1986), Davis v. Alaska, 415 U.S. 308, 315, 39 L. Ed. 2d 347, 94 S. Ct. 1105 (1974).
This court has not previously considered the constitutionality of K.S.A. 1985 Supp. 22-3433 and 22-3434. However, in State v. Myatt, 237 Kan. 17, 697 P.2d 836 (1985), we considered the constitutionality of K.S.A. 1985 Supp. 60-460(dd), which provides an exception to the rule against hearsay for the out-of-court statements of child victims. Since videotaped testimony is hearsay, our holding and analysis in Myatt are relevant here.
The appellant in Myatt contended that K.S.A. 60-460(dd) is unconstitutional because it violates the Sixth Amendment right to confront witnesses and the Fourteenth Amendment right to due process and equal protection. Before deciding the merits of this issue, Chief Justice Schroeder, for the court, discussed the purpose and function of the child victim hearsay exception in criminal proceedings:
“Often the child victim’s out-of-court statements constitute the only proof of the crime of sexual abuse. Witnesses other than the victim and perpetrator are rare as people simply do not molest children in front of others. [Citation omitted.] Most often the offender is a relative or close acquaintance who has the opportunity to be alone with the child. [Citation omitted.] Depending on the type of sexual contact, corroborating physical evidence may be absent or inconclusive. [Citation omitted.] The child may be unable to testify at trial due to fading memory, retraction of earlier statements due to guilt or fear, tender age, or inability to appreciate the proceedings in which he or she is a participant. Therefore, these hearsay statements are usually necessary to the proceedings as the only probative evidence available.
“It is also beginning to be recognized that a child’s statements about sexual abuse are inherently reliable. First, it is highly unlikely that a child will persist in lying to his Or her parents, or other figures of authority, about sexual abuse. Second, children do not have enough knowledge about sexual matters to lie about them. [Citation omitted.] Consequently, in light of the need for child hearsay statements in sex abuse cases, as well as their potentially superior trustworthiness to in-court testimony, the traditional reasons for barring use of such hearsay statements become less compelling.
“Moreover, the incidence of sexual abuse of young children has increased dramatically in recent years. [Citation omitted.] Statistics show that there has been a 200% increase in the reporting of sexual abuse since 1976. By 1980, there were 25,000 reported cases annually. A substantial number of cases are never reported; estimates of the actual incidence vary from 100,000 to 500,000 per year.” 237 Kan. at 21-22.
In analyzing the merits of the defendant’s challenges to the constitutionality of K.S.A. 60-460(dd), this court in Myatt first noted that admitting a declarant’s out-of-court statements in situations where the declarant is available does not violate the confrontation clause. (Citing California v. Green, 399 U.S. 149, 158-61, 26 L. Ed. 2d 489, 90 S. Ct. 1930 [1970].) However, the court further noted that when the declarant is not testifying and is unavailable to be cross-examined, the use of hearsay exceptions must fulfill certain constitutional requirements. Specifically, the court held that in order to admit out-of-court statements of a witness who does not testify, (1) the witness must be shown to be unavailable, and (2) the trial court must determine that the witness’s out-of-court statements have an “adequate indicia of reliability.” (Following Ohio v. Roberts, 448 U.S. 56, 66, 65 L. Ed. 2d 597, 100 S. Ct. 2531 [1980].) 237 Kan. at 24. Since K.S.A. 1985 Supp. 60-460(dd) allows for the admission of a child victim’s hearsay statements only if the child is unavailable as a witness and the statement is apparently reliable, the Myatt court held that the statute does not per se violate the Sixth Amendment right to confrontation. 237 Kan. at 25.
Keeping in mind the requirements which must be met before child victim hearsay may be admitted, we now consider the constitutionality of K.S.A. 1985 Supp. 22-3433. That statute provides for the admission of videotaped testimony of a child victim where the child is available to testify and be cross-examined and if the court determines that the time, content, and circumstances of the statement provide sufficient indicia of reliability. Under 22-3433, no attorney for either party may be present when the recording is made. Thus, no opportunity exists for cross-examination during the recording. However, K.S.A. 1985 Supp. 22-3433 does not violate a defendant’s right to confrontation because the child must be available to testify and be cross-examined either in the courtroom or as provided by K.S.A. 1985 Supp. 22-3434. Moreover, the statute requires that the court find the statement contains “sufficient indicia of reliability” before it can be admitted. Thus, K.S.A. 1985 Supp. 22-3433 satisfies the two-part test set out in Myatt for admission of child victim hearsay.
We now turn to K.S.A. 1985 Supp. 22-3434. That statute also provides for the admission of videotape testimony of child victims, but differs considerably from K.S.A. 1985 Supp. 22-3433. Under 22-3434, a number of individuals are permitted to be present during the recording of the child’s testimony, including the attorneys for the defendant, the State, and the child; however, only the attorneys may question the child. K.S.A. 1985 Supp. 22-3434(b)(l) and (2). Section (b)(4) of the statute permits the defendant to observe and hear the testimony of the child in person, but the court must insure that the child cannot see or hear the defendant. Section (c) provides that if the testimony of a child is taken as provided by this section, the child shall not be compelled to testify in court during the proceeding.
Since the statute specifically provides that the witness cannot be compelled to testify at trial, it would seem to preclude a finding by the trial judge that the child is unavailable as required in the first part of the test set forth in Myatt.
The second part of the Myatt test, that the trial court find the statements contain sufficient indicia of reliability, is also not provided for in K.S.A. 1985 Supp. 22-3434.
In Myatt, we held the determination of the reliability and trustworthiness of the victim must be made on a case-by-case basis. We also set forth some of the factors to be considered by the trial court when determining the reliability of the witness, such as: the age of the child; his or her physical or mental condition; the circumstances of the alleged event; the language used by the child; the child’s family, school, and peer relationship; any motive to falsify or distort the event; and the reliability of the testifying witness. 237 Kan. at 25.
We find the detailed requirements of K.S.A. 1985 Supp. 22-3434 make consideration of such factors unnecessary. Specifically, K.S.A. 1985 Supp. 22-3434 gives the attorney for the defendant, the State, and the child the opportunity to cross-examine the child. Thus, the factors discussed in Myatt for determining the reliability and trustworthiness of the child’s statements can all be brought out during the questioning of the child and need not be reconsidered by the trial court.
We hold K.S.A. 1985 Supp. 22-3433 and 22-3434 are constitutional and do not violate the appellant’s right to confront the witnesses against him.
The appellant next alleges the trial court erred in admitting the videotaped testimony of R.J., as it did not comply with the statutory requirements of K.S.A. 1985 Supp. 22-3433. Basically, the appellant argues that even if the statute is constitutional on its face, it is unconstitutional as applied to the appellant.
The appellant failed to raise this objection at the trial court level, but now argues that even though no objection was raised, this court should address the issue in the “interest of justice.” We have often held that where constitutional grounds for reversal are asserted for the first time on appeal, they are not properly before the appellate court for review. State v. O’Neal, 238 Kan. 183, 187, 708 P.2d 206 (1985); State v. Budden, 226 Kan. 150, 154, 595 P.2d 1138 (1979); State v. Estes, 216 Kan. 382, 385, 532 P.2d 1283 (1975). Accordingly, the appellant’s failure to object at trial renders this issue without merit.
Finally, appellant contends the trial court erred in denying his motion for new trial.
The appellant’s motion for new trial was based on newly discovered evidence. At the hearing on the motion, the court heard the testimony of Penny Sager, who was identified as a friend of the Johnson family since 1979. Ms. Sager testified that she talked to J.W. after his testimony on the first day of trial and that she asked J.W., “Why are you doing this to Nelson?” According to Ms. Sager, J.W. responded, “[t]his is the only way that we know how to get rid of him.”
The granting of a new trial for newly discovered evidence is in the trial court’s discretion and a new trial should not be granted unless the evidence is of such materiality that it would be likely to produce a different result upon retrial. State v. Johnson, 222 Kan. 465, 471, 565 P.2d 993 (1977). When a defendant moves for a new trial, he or she bears the burden of proof to show the alleged newly discovered evidence could not with reasonable diligence have been produced at trial. State v. Myrick & Nelms, 228 Kan. 406, Syl. ¶ 10, 616 P.2d 1066 (1980).
In this case, the trial court held that Ms. Sager’s testimony could have been discovered and presented at trial. This conclusion is supported by Ms. Sager’s testimony that she attempted to give the information regarding her discussion with J.W. to defense counsel during the trial, but counsel was too busy to talk to her until the conclusion of the trial. In addition, it should be pointed out that the same evidence, i.e., that the children wanted their mother to divorce appellant, was introduced at trial in the form of testimony from J.W. Also, J.W.’s statement does not necessarily mean he was fabricating it. He frankly admitted he wanted to get rid of appellant. It would be indeed abnormal if the victim did not want to rid the home of a person of appellant’s caliber.
The trial court did not abuse its discretion in denying the appellant’s motion for new trial.
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The opinion of the court was delivered by
Luckert, J.:
In past decisions, this court has applied a super-sufficiency requirement for evidence in alternative means cases. When a single criminal offense may be committed by alternative means, jury unanimity is not required as to the means by which the crime was committed, as long as substantial evidence supports each alternative means set out in the juiy instructions. If the evidence is insufficient on one or more of the means on which the jury has been instructed, the conviction must be reversed.
Defendant George L. Brown II’s first issue on appeal requires us to consider specifically for the first time the starting point of an alternative means analysis: When does a statute—and thus a jury instruction employing its language—set out alternative means to commit a crime?
We hold that a statute—and any instruction that incorporates it—must list distinct alternatives for a material element of the crime, not merely describe a material element or a factual circumstance that would prove the crime, in order to qualify for an alternative means analysis and application of the super-sufficiency requirement. This holding leads us to conclude that Brown’s jury was not presented with alternative means on the aggravated indecent liberties or the lewd and lascivious behavior charges against him in this case.
In his second issue, Brown argues the trial court erred in allowing tire State to reopen its case-in-chief to present evidence of his age. We reject this argument because the trial court did not abuse its discretion in granting the State’s request; as the trial court determined, the additional evidence could assist the jury in determining Brown’s guilt of the off-grid crime of aggravated indecent liberties with a child, and the timing of the additional evidence did not cause legal prejudice.
We also reject Brown’s third argument that the prosecutor committed reversible misconduct during jury selection and closing argument; while we find the prosecutor committed misconduct, the misconduct was harmless.
As to Brown’s fourth issue, we agree with Brown’s argument that the trial court erred in imposing lifetime postrelease supervision and, consequently, we vacate this portion of his sentence. Finally, we reaffirm the long line of cases holding that the use of a defendant’s prior criminal history is not contrary to the right to a jury trial.
Ultimately, we affirm Brown’s convictions, vacate the imposition of lifetime postrelease supervision and otherwise affirm his sentence, and remand the case with directions.
Facts and Procedural Background
A juiy found Brown guilty of one count of aggravated indecent liberties with a child under the age of 14 and one count of lewd and lascivious behavior in the presence of a person under the age of 16. These convictions were related to conduct that occurred during the weekend of April 17, 2009, to April 19, 2009, when an 8-year-old girl, G.V., stayed with Brown.
Brown worked with G.V.’s father and was a friend of G.V.’s family. Before that weekend, G.V.’s family had visited Brown’s house for social visits or to see his horses, and G.V. had spent the night at Brown’s house, without her parents, 5 to 10 times. G.V.’s mother testified that usually it was G.V. who wanted to go to Brown’s house, but a couple of times Brown asked if G.V. could come out to his house. After spending the April weekend with Brown, G.V. told her parents that Brown had been touching her in inappropriate places.
G.V. testified at trial that when she stayed at Brown’s house, she would sleep in Brown’s bed with him. Neither G.V. nor Brown wore any clothes while they slept in the bed. G.V. testified that Brown would “snuggle” with her and would touch her “[i]n the privates,” which G.V. also called her “middle.” Brown would also rub lotion all over G.V.’s body, including her “middle” and chest. G.V. testified that she had seen Brown naked before and that he had shown her his “privates.” She also stated that Brown would get on top of her while both of them were naked. On cross-examination, G.V. stated that she slept naked because Brown had a waterbed and she would get hot if she wore her nightgown.
G.V. also testified that Brown bought her an apron, which she wore without any other clothes while making eggs. G.V. stated that it was not her choice to wear the apron and nothing else.
The jury also viewed a video of a police interview of G.V. In the interview, beyond detailing the same events described in her testimony, G.V. also stated that Brown’s mouth and hands would touch her “boobies” and that he would lick her “boobies.” G.V. also stated that Brown would make G.V. get on top of him while they were both naked and he would kiss her on the lips.
The interviewing officer, Christina McDonald, testified at trial that by using anatomical dolls, G.V. indicated that Brown rubbed lotion on her “boobies” and “middle.” In addition, Officer McDonald testified regarding the execution of a search warrant at Brown’s residence that resulted in officers finding five bottles of lotion on the headboard of Brown’s bed, a photograph of G.V. on Brown’s desk, and a child-size, red and white apron. These items were admitted at trial.
Officer McDonald also interviewed Brown after executing the search warrant. A video of the interview was played for the jury. Brown generally denied any touching qf G.V., although he admitted the two of them slept naked in his bed because of the heated waterbed. He also admitted to scratching G.V.’s back and to rub bing lotion on G.V. when she asked; he added that this was something “she just loved.”
After the State rested, Brown presented no evidence. The trial court excused the jury for the day, stating, “All the evidence that is going to be presented has been presented.” Brown then moved for judgment of acquittal, although he did not support the motion with any arguments. The trial court denied the motion and immediately conducted the jury instruction conference. At tire conference, the court proposed an instruction relating to the elements of aggravated indecent liberties with a child that stated in part that the State must prove “[t]hat at the time of the act the defendant was 18 years of age or older.”
When the trial reconvened tire next morning, outside the presence of the jury, the State sought to reopen its case. As will be discussed in more detail, the trial court granted the State’s oral motion, and the State then called Officer McDonald and asked one substantive question, “What is [Brown’s] date of birth?” Defense counsel did not cross-examine Officer McDonald and chose not to present any additional evidence.
After considering the evidence, the jury found Brown guilty of one count of aggravated indecent liberties with a child under the age of 14 in violation of K.S.A. 21-3504(a)(3)(A), an off-grid person felony, and one count of lewd and lascivious behavior in the presence of a person under 16 years of age in violation of K.S.A. 21-3508(a)(2), a severity level 9 person felony. The trial court sentenced Brown to life imprisonment with a mandatory minimum term of not less than 25 years for the aggravated indecent liberties conviction and to a concurrent sentence of 12 months’ probation with an underlying term of 12 months’ imprisonment for the lewd and lascivious behavior conviction. Although not announced at the sentencing hearing, the journal entry indicated the court also imposed a term of lifetime postrelease supervision for the aggravated indecent liberties conviction.
Brown filed a timely notice of appeal. This court has jurisdiction under K.S.A. 22-3601(b) (maximum sentence of life imprisonment imposed; appeal docketed prior to July 1, 2011).
Alternative Means
In his first issue on appeal, Brown argues both of his convictions must be reversed because the evidence was insufficient to support a finding of guilt on each of the various alternative means for committing the two crimes on which the jury was instructed. Brown’s argument rests on tire alternative means rule stated by this court in State v. Timley, 255 Kan. 286, 875 P.2d 242 (1994).
In Timley, the court established what we have referred to as the alternative means rule and its corollary super-sufficiency requirement when it held: “ ‘[W]here a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means.’ ” Timley, 255 Kan. at 289-90 (quoting State v. Kitchen, 110 Wash. 2d 403, 410, 756 P.2d 105 [1988]); see State v. Wilson, 220 Kan. 341, 345, 552 P.2d 931 (1976) (recognizing premeditated and felony murder as alternative theories of first-degree murder; upholding verdict because it “can be justified on either of two interpretations of the evidence”), disapproved on other grounds by State v. Quick, 226 Kan. 308, 597 P.2d 1108 (1979). More recently, this court explained that the Timley alternative means rule/super-sufficiency requirement “is the only choice to ensure a criminal defendant’s statutory entitlement to jury unanimity.” State v. Wright, 290 Kan. 194, 206, 224 P.3d 1159 (2010).
Citing the super-sufficiency requirement, Brown points to the two jury instructions in his case that identified the elements of the charged crimes and argues that alternatives within the instructions—terms separated by the word “or”—stated alternative means of committing the crimes.
Specifically, regarding his conviction for aggravated indecent liberties with a child, Brown focuses on the portion of the jury instruction that told tire jury the State must prove “[t]hat the defendant fondled or touched the person of [G.V.] in a lewd manner, with the intent to arouse or satisfy the sexual desires of either [G.V.], or the defendant, or both.” (Emphasis added.) He argues three alternative means are presented because the intent element—stated as the intent to arouse or satisfy sexual desires—has three potential objects: the victim, the defendant, or both.
Similarly, regarding Brown’s second conviction, he focuses on the intent element of the jury instruction on lewd and lascivious behavior, which required die State to prove that Brown “exposed his sex organ in the presence of a person not his spouse and who had not consented thereto, with the intent to arouse or to gratify the sexual desires of the defendant or another.” (Emphasis added.) Brown argues the italicized language creates two alternative means because of the two potential objects: the defendant or another.
According to Brown, the State’s evidence as to both crimes proved only that Brown intended to arouse or satisfy his own sexual desires; it failed to prove that he intended to arouse or satisfy G.V.’s sexual desires or those of another. Thus, Brown maintains, there was not substantial evidence to support each alternative means.
The State, on the other hand, characterizes this as an atypical alternative means case. In part, it argues: “[T]he alternatives are not in what Defendant did (the ‘means’) that constitutes the offense[s] charged but why Defendant did what he did. What was his intent in doing what he did? That there was sufficient evidence to support a unanimous verdict that the physical acts occurred is not being questioned.” In addition, at oral argument, the State for the first time asked us to overturn Wright and return to the reasoning of State v. Dixon, 279 Kan. 563, 604-06, 112 P.3d 883 (2005), which we disapproved in Wright. See Wright, 290 Kan. at 205-06.
Regarding this last point, we decline the State’s invitation to revisit our recent decision in Wright based solely on a passing comment made during oral argument because an issue not briefed by the appellant is deemed waived and abandoned. State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011). We will more fully discuss the State’s other arguments, however, which present issues we have not fully addressed in previous opinions.
Identifying Alternative Means Crimes
The first thing that a prosecutor and trial judge must do to try to ensure that an alternative means analysis and its super-suffi ciency requirement will not compel reversal of any conviction is to identify whether the criminal statute supporting the charged crime is an alternative means statute. If so, the elements jury instruction incorporating the statute should be tailored to include only those alternative means supported by some evidence.
In this case, there was no tailoring, leaving the question of whether various phrases separated by the word “or” presented alternative means. The State argues the alternatives cannot state alternative means because they relate to the mens rea element, not to alternative acts. In contrast, Brown suggests every option provided for in the respective statutes is an alternative means.
• Mental States—Mens Rea-—Can Be An Alternative Means
We first address the State’s argument that a statute’s inclusion of alternative mental states can never give rise to an alternative means issue. In the State’s view, a jury instructed on alternative mental states relating to a crime—the proscribed mens rea—has not been instructed on an alternative means crime, whereas a jury instructed on alternative acts that constitute the crime—the proscribed actus reus—has been instructed on an alternative means crime.
We have never directly addressed this issue, but the United States Supreme Court has done so in Schad v. Arizona, 501 U.S. 624, 111 S. Ct. 2491, 115 L. Ed. 2d 555 (1991). In Schad, the Court considered whether premeditated murder and felony murder were separate offenses or alternative means of committing tire same crime. The Court noted the question “involves a general verdict predicated on the possibility of combining findings of what can best be described as alternative mental states, the one being premeditation, the other the intent required for murder combined with the commission of an independently culpable felony.” Schad, 501 U.S. at 632. Such a situation was not unlike tiróse in which alternative conduct was alleged, the Court concluded. See Schad, 501 U.S. at 631-32. As an example, the Court cited a prior case in which a seaman shot a shipmate and immediately threw the victim into the sea. The seaman was charged in a single count with murder by inflicting a mortal gunshot wound or by drowning. Including the alternative causes of death in a single count did not make the charge defective because “it was immaterial whether death was caused by one means or the other.” Schad, 501 U.S. at 631 (discussing Andersen v. United States, 170 U.S. 481, 504, 18 S. Ct. 689, 42 L. Ed. 1116 [1898]).
The Schad Court noted that in a case where there were alternative theories regarding the act that comprised the crime, “as in litigation generally, ‘different jurors may be persuaded by different pieces of evidence, even when they agree upon the bottom line. Plainly there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie tire verdict.’ ” Schad, 501 U.S. at 631-32 (quoting McKoy v. North Carolina, 494 U.S. 433, 449, 110 S. Ct. 1227, 108 L. Ed. 2d 369 [1990] [Black-mun, J., concurring]). The Court drew a line between facts that are “material” and tiróse that are “immaterial” and defined material facts as those “ ‘necessary to constitute the crime.’ ” Schad, 501 U.S. at 638 (quoting In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 [1970]). In the situation of the seaman, the material fact was that the seaman caused the death of the shipmate. The Schad Court then concluded there was no reason “why the rule that the jury need not agree as to mere means of satisfying the actus reus element of an offense should not apply equally to alternative means of satisfying the element of mens rea,” that is, to the requisite mental state. Schad, 501 U.S. at 632.
Our Kansas caselaw is in line with Schad. We have recognized that premeditated murder and felony murder are alternative means of committing first-degree murder, although we have not focused particularly on the inherent underlying premise that alternative means can be based on variations in mens rea, as well as in actus reus, or in a statutorily required causation element. See, e.g., State v. Kesselring, 279 Kan. 671, 679, 112 P.3d 175 (2005); State v. Morton, 277 Kan. 575, 579, 86 P.3d 535 (2004); State v. Hoge, 276 Kan. 801, 809, 813, 80 P.3d 52 (2003). We therefore reject the State’s argument that alternative means can never arise out of variations of the mens rea element.
• An “Or” Does Not Necessarily Equal an Alternative Means
Having rejected the State’s absolutist argument, we turn to Brown’s contrary absolutist argument that a statute’s inclusion of varying mental states always signals that alternative means are at issue. We reject this as well.
In past cases, to the extent we have defined the term “alternative means” at all, we have done so only obliquely through one broad sentence borrowed without elaboration or explanation from the Washington Supreme Court: “ 'In an alternative means case,... a single offense may be committed in more than one way.’ ” Timley, 255 Kan. at 289 (quoting Kitchen, 110 Wash. 2d at 410). This sentence, straightforward on its face but mind-bending in its application, has led to confusion and disagreement among panels of the Court of Appeals. See State u. Clary, 47 Kan. App. 2d 38,270 P.3d 1206 (2012) (2-1 decision regarding whether K.S.A. 21-3420[c] created alternative means of kidnapping through use of phrase “to inflict bodily injuiy or to terrorize the victim or another”). Compare State v. Foster, 46 Kan. App. 2d 233, Syl. ¶ 1, 264 P.3d 116 (2011) (concluding use of terms “made,” “altered,” or “endorsed” in the forgery statute, K.S.A. 21-3710[a], did not create alternative means), rev. granted 293 Kan. 1109 (February 17,2012) with State v. Owen, No. 102,814,2011 WL 2039738, at *4-5 (Kan. App. 2011) (unpublished opinion (concluding those terms did create alternative means of committing forgery), rev. granted 293 Kan. 1112 (February 17, 2012); see also State v. Killingsworth, No. 104,690, 2012 WL 1759398, at *5-6 (Kan. App. 2012) (unpublished opinion) (noting confusion between multiple acts and alternative means).
Referring to this general, definitional sentence from Timley, Brown argues that the jury in his case was instructed on alternative means because it could have found he committed the crimes in one way if he had the intent to arouse or satisfy his own sexual desires or he could have committed the crimes in another way if he had the intent to arouse or satisfy G.V. His argument focuses simply on the fact that these possibilities were stated as alternatives—as terms stated in a series and separated by the disjunctive “or.” In essence, his argument is that any such alternatives in a statute that find their way into a jury instruction on the elements of a crime requires a super-sufficiency of evidence to support each alternative means.
The Washington Supreme Court, from whom we borrowed our single-sentence definition of “alternative means,” recently rejected such a superficial view, stating: “The mere use of a disjunctive in a statute does not an alternative means crime make.” State v. Peterson, 168 Wash. 2d 763, 770, 230 P.3d 588 (2010).
We agree. Identifying an alternative means statute is more complicated than spotting the word “or.”
• Legislative Intent Governs
To determine if an “or” separates an option that is not an alternative means or separates alternative means, there are several considerations.
First, as with any situation in which the courts are called upon to interpret or construe statutory language, the touchstone is legislative intent. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010); see also State v. Arndt, 87 Wash. 2d 374, 378-79, 553 P.2d 1328 (1976) (discussing role of legislative intent in determining if alternative means or separate crimes are set out in statutes). As the United States Supreme Court recognized in Schad: “Decisions about what facts are material and what are immaterial, or . .. what Tact[s] [are] necessary to constitute the crime,’ and therefore must be proved individually, and what facts are mere means, represent value choices more appropriately made in the first instance by a legislature than by a court.” Schad, 501 U.S. at 638 (quoting In re Winship, 397 U.S. at 364); see Peterson, 168 Wash. 2d at 769; State v. Smith, 159 Wash. 2d 778, 784, 789, 154 P.3d 873 (2007).
To divine legislative intent, courts begin by examining and interpreting the language the legislature used. Only if that language is ambiguous do we rely on any revealing legislative history or background considerations that speak to legislative purpose, as well as the effects of application of canons of statutory construction. See Double M Constr. v. Kansas Corporation Comm’n, 288 Kan. 268, 271-72, 202 P.3d 7 (2009). Issues of statutory interpretation and construction, including issues of whether a statute creates alter native means, raise questions of law reviewable de novo on appeal. See State v. Burnett, 293 Kan. 840, 847, 270 P.3d 1115 (2012); see also Kesselring, 279 Kan. at 678 (court exercises de novo review over juiy unanimity issues).
• Alternative Means State Distinct, Material Elements
In examining legislative intent, a court must determine for each statute what the legislature’s use of a disjunctive “or” is intended to accomplish. Is it to list alternative distinct, material elements of a crime—that is, the necessary mens rea, actus reus, and, in some statutes, a causation element? Or is it to merely describe a material element or a factual circumstance that would prove the crime? The listing of alternative distinct, material elements, when incorporated into an elements instruction, creates an alternative means issue demanding super-sufficiency of die evidence. But merely describing a material element or a factual circumstance that would prove the crime does not create alternative means, even if the description is included in a jury instruction. See Wright, 290 Kan. at 201 (“Tim-ley required sufficiency of evidence to support each alternative means upon which a jury is instructed, in order to protect a criminal defendant’s right to a unanimous jury verdict.” [Emphasis added.]); see also Peterson, 168 Wash. 2d at 769 (focus of the alternative means rule is on the juiy instructions).
The Washington Supreme Court’s decision in Peterson illustrates this emphasis on whether statutoiy alternatives list two or more essential, distinct elements, either (1) mental state, the mens rea, (2) conduct, the actus reus, or (3) in some statutes, an indispensable causation element. See Peterson, 168 Wash. 2d at 772.
The issue in Peterson was whether a statute requiring sex offenders to reregister within a certain time period if the offender changed residences set out alternative means of committing the crime. Under the Washington statute, tire time period to reregister varied depending on the circumstances of the change of residence, specifically whether the offender became homeless, moved within a county, or moved to another county. The Washington court rejected the defense argument that the alternative factual circumstances constituted alternative means. In reaching this conclusion, the court contrasted the registration statute with the Washington theft statute, which does set out distinct alternative means of committing the crime:
“The alternative means available to accomplish theft describe distinct acts that amount to the same crime. That is, one can accomplish theft by wrongfully exerting control over someone’s property or by deceiving someone to give up their property. In each alternative, the offender takes something that does not belong to him, but his conduct varies significantly. In contrast, the failure to register statute contemplates a single act that amounts to failure to register: the offender moves without alerting the appropriate authority. His conduct is the same—he either moves without notice or he does not. The fact that different deadlines may apply, depending on the offender’s residential status, does not change the nature of the criminal act: moving without registering.” Peterson, 168 Wash. 2d at 770.
Because the alternatives stated in the sex offender registration statute were not material elements requiring two or more distinct—meaning separate or different—mental states, distinct conducts or distinct causations, the Peterson court held the registration statute did not create alternative means. Peterson, 168 Wash. 2d at 771-72 (“The ‘elements of a crime’ are commonly defined as ‘ “[t]he constituent parts of a crime—[usually] consisting of the actus reus, mens rea [sic], and causation—that the prosecution must prove to sustain a conviction.” ’ ”); see K.S.A. 2011 Supp. 21-5201(a) (“A person commits a crime only if such person voluntarily engages in conduct, including an act, an omission or possession.”); K.S.A. 2011 Supp. 21-5202(a) (defining culpable mental states and noting that “[e]xcept as otherwise provided, a culpable mental state is an essential element of every crime defined by this code”). The Peterson court concluded that the State could prove the crime of failure to register as a sex offender by establishing that the offender did not register within any of the time periods; the nature of the change of residence—homelessness, a move within a county, or a move to a different county—was not an element of the crime. Peterson, 168 Wash. 2d at 772. In other words, the alternatives described different circumstances or ways to prove the crime had been committed.
On its way to its conclusion in Peterson, the Washington court also referred to a line of cases in which it had drawn a critical distinction between alternative means and “means within a means.” Peterson, 168 Wash. 2d at 769-71 (citing State v. Linehan, 147 Wash. 2d 638, 644-45, 646-47, 56 P.3d 542 [2002]). This distinction provides yet another consideration for determining if a statute provides alternative means.
• Options Within a Means Are Not Alternative Means
The “means within a means” label was first used by the Washington Supreme Court in In re Jeffries, 110 Wash. 2d 326, 339-40, 752 P.2d 1338 (1988). In Jeffries, the court considered a defendant’s contention that a jury was required to agree unanimously on alternative ways of satisfying each of several distinct aggravating circumstances that could lead to a conviction for aggravated murder in the first degree. Such an argument, the court noted, “raises the spectre of a myriad of instructions and verdict forms whenever a criminal statute contains several instances of use of the word ‘or.’ ” Jeffries, 110 Wash. 2d at 339. The court regarded such an approach as unworkable and unjustified. See Jeffries, 110 Wash. 2d at 339-40.
After the Jeffries decision, the Washington Supreme Court further stated that “[a]s a general rule, [alternative means] crimes are set forth in a statute stating a single offense, under which are set forth more than one means by which the offense may be committed.” Smith, 159 Wash. 2d at 784. Typically, it observed, a legislature will signal its intent to state alternative means through structure, separating alternatives into distinct subsections of the same statute. See Smith, 159 Wash. 2d at 784-86. Such structure is an important clue to legislative intent.
Regardless of such subsection design, however, a legislature may list additional alternatives or options within one alternative means of committing the crime. But these options within an alternative do not constitute further alternative means themselves if they do not state additional and distinct ways of committing the crime, that is, if they do not require proof of at least one additional and distinct material element. Rather they are only options within a means if, as discussed above, their role is merely to describe a material element or to describe the factual circumstances in which a material element may be proven. Smith, 159 Wash. 2d at 783-87. In Washington at least, a “ ‘means within a means’ scenario does not trigger jury unanimity protections.” Smith, 159 Wash. 2d at 787.
In Kansas, we accept this general concept, which we would describe as the legislature’s creation of an option within a means. An option within a means scenario is another important clue to legislative intent because such options signal secondary status rather than an intent to create a material, distinct element of the crime. Options within a means—that is, the existence of options that do not state a material, distinct element—do not demand application of the super-sufficiency requirement. See, e.g., Peterson, 168 Wash. 2d at 769-72; see McKoy, 494 U.S. at 449 n.5 (Blackmun, J., concurring) (“ ‘[u]nanimity . . . means more than a conclusory agreement’ ” but “does not require that each bit of evidence be unanimously credited or entirely discarded”; the jury must agree on “ ‘the principal factual elements underlying a specified offense’ ”); see also Schad, 501 U.S. at 636 n.6 (rejecting dissent’s call for maximum verdict specificity and noting it would be “absurd” to require special verdicts as to every alternative in Arizona’s premeditated murder statute: willfulness, deliberation, and premeditation); Beier, Lurching Toward the Light: Alternative Means and Multiple Acts Law in Kansas, 44 Washburn L.J. 275, 290 n.84 (2005) (discussing die progression between verdicts that are too general and those that would require a level of specificity more demanding than statutorily or constitutionally mandated).
The Washington Supreme Court in Smith explained that requiring jury unanimity on such secondary matters that do not state alternative means would not “advance[] the two underlying purposes of the alternative means doctrine.” Smith, 159 Wash. 2d at 789. These purposes
“are to prevent jury confusion about what criminal conduct has to be proved beyond a reasonable doubt and to prevent the State from charging every available means authorized under a single criminal statute, lumping them together, and then leaving it to the jury to pick freely among the various means in order to obtain a unanimous verdict.” Smith, 159 Wash. 2d at 789.
We agree that requiring jury unanimity on only the distinct, material elements of a crime—the alternative means—is enough to satisfy these purposes. See Smith, 159 Wash. 2d at 789; see also Schad, 501 U.S. at 638 (discussing difference between “material” elements necessary to constitute crime and “immaterial” facts). Jury unanimity on options within a means—secondary matters—is generally unnecessary; therefore, on appeal, a super-sufficiency issue will not arise regarding whether there is sufficient evidence to support all options within a means.
The Washington Supreme Court has provided additional guidance as to what may be considered such secondary matters or options within a means.
(a) Definitions May State Options Within a Means
In drawing a line between material elements of a crime and secondary matters, in Washington, purely definitional statutory language that elaborates on or describes a material element has tended to signal a secondary matter—an option within a means'— that does not raise an alternative means issue. See Smith, 159 Wash. 2d at 784-87.
For example, in Linehan the Washington Supreme Court considered whether embezzlement was an alternative means of committing theft. The court first looked to the material elements set out in the statute defining the crime of theft. Within that statute, the legislature provided for the alternative means of “wrongfully obtaining]” property or “exert[ing] unauthorized control” over property. The statute did not include a reference to “embezzlement.” Rather, the term “embezzlement” surfaced only in a separate statute that defined the terms “wrongfully obtain” and “exert unauthorized control.” See Linehan, 147 Wash. 2d at 643-46, 647-48.
The Linehan court emphasized that a statute defining the crime was “different in land from those definition statutes that merely elaborate upon various terms or words.” Linehan, 147 Wash. 2d at 648. Simply stated, the court held: “Definition statutes [that merely elaborate on elements rather than define the crime] do not create additional alternative means of committing an offense.” Linehan, 147 Wash. 2d at 646; see Smith, 159 Wash. 2d at 794 (Bridge, J., dissenting) (noting importance of distinguishing between provi sions that define the material elements of the crime and provisions that define terms that explain tire material elements of the crime).
(b) Factual Circumstances Generally State Options Within a Means
In addition, the Linehan court cited State v. Laico, 97 Wash. App. 759, 763, 987 P.2d 638 (1999), as an example in which statutory language purely descriptive of factual circumstances that may prove the crime signaled secondary matters not giving rise to an alternative means issue.
In Laico, the Washington Court of Appeals explained that the Washington assault statute’s description of “great bodily harm” to include “ ‘bodily injury which creates a probability of death, or which causes significant serious permanent disfigurement, or which causes a significant permanent loss or impairment of the function of any bodily part or organ ” did not raise an alternative means issue when it was incorporated into a juiy instruction. Laico, 97 Wash. App. at 762. These alternate factual circumstances, the court reasoned, are “merely descriptive of a term that constitutes, among other things, an element of the crime of first degree assault.” Laico, 97 Wash. App. at 763. We note that this “merely descriptive” distinction drawn by the Laico court would essentially be echoed 11 years later in the Peterson court’s dismissive treatment of the factual circumstances giving rise to a registering sex offender’s need for change of residence. See Peterson, 168 Wash. 2d at 770.
Ultimately, in Linehan these definitions and factual description signals led the court to hold that embezzlement did not constitute an alternative means of committing theft. Linehan, 147 Wash. 2d at 646-50. “There is no requirement that the jury unanimously agree that Linehan’s conduct satisfies [what] ... is commonly referred to as theft by embezzlement, or that there be substantial evidence of theft by embezzlement.” Linehan, 147 Wash. 2d at 650.
• Summary
In summaiy, in determining if the legislature intended to state alternative means of committing a crime, a court must analyze whether the legislature listed two or more alternative distinct, material elements of a crime—that is, separate or distinct mens rea, actus reus, and, in some statutes, causation elements. Or, did the legislature list options within a means, that is, options that merely describe a material element or describe a factual circumstance that would prove the element? The listing of alternative distinct, material elements, when incorporated into an elements instruction, creates an alternative means issue demanding super-sufficiency of the evidence. Often this intent can be discerned from the structure of the statute. On the other hand, the legislature generally does not intend to create alternative means when it merely describes a material element or a factual circumstance that would prove the crime. Such descriptions are secondary matters—options within a means—that do not, even if included in a jury instruction, raise a sufficiency issue that requires a court to examine whether the option is supported by evidence.
Application of this Analysis to this Case
Returning to the specifics of this case, we must examine our legislature’s language defining the material elements of the crimes of aggravated indecent liberties with a child and lewd and lascivious behavior—language incorporated into the instructions to Brown’s jury—-to determine whether the statutory options on which he focuses on appeal were alternative means or merely secondary matters that do not demand application of the super-sufficiency requirement.
Aggravated Indecent Liberties With A Child
For K.S.A. 21-3504(a), its structure is certainly a clue to legislative intent. The statute contains subsections that provide several alternative means of committing the crime of aggravated indecent liberties with a child. These alternatives state distinct or different material elements. They include: (1) sexual intercourse with a child who is 14 or 15 years of age (K.S.A. 21-3504[a][l]); (2) any lewd fondling or touching of either a child who is 14 or 15 years of age or of the offender “done or submitted to with the intent to arouse or satisfy tire sexual desires of either the child or the offender, or both” (K.S.A. 21-3504[a][2][A]); (3) causing a child who is 14 or 15 years of age “to engage in any lewd fondling or touching of the person of another with the intent to arouse or satisfy the sexual desires of the child, the offender or another” (K.S.A. 21-3504[a][2][B]); (4) any lewd fondling or touching of either a child who is under 14 years of age or the offender “done or submitted to with the intent to arouse or satisfy the sexual desires of either the child or die offender, or both” (K.S.A. 21-3504[a][3][A]); or (5) causing a child who is under 14 years of age “to engage in any lewd fondling or touching of the person of another with the intent to arouse or satisfy the sexual desires of the child, the offender or another” (K.S.A. 21-3504[a][3][B]).
The State charged Brown with only one of these alternative means of committing aggravated indecent liberties with a child, the one set forth in K.S.A. 21-3504(a)(3)(A). Brown focuses on the options internal to that statutory subsection—options within a means of “either the child or the offender, or both”—arguing they identify alternative means as well.
We reject Brown’s argument. As discussed above, it is unlikely that the legislature intended for options within a means to constitute alternative means subject to the super-sufficiency requirement. In addition, the language on which Brown focuses is merely descriptive of the types of factual circumstances that may prove the distinct, material element of intent to arouse or satisfy sexual desires, that is, the mens rea required for commission of the offense. The crime occurs as soon as that mens rea coexists with the required actus reus, which is lewd fondling or touching of a child younger than 14 or of the offender; no distinct, material causation element exists in this statute. Actual arousal or satisfaction of the sexual desires of either participant is not necessary for the existence of the crime. It is purely incidental, as is the object of the required culpable mental state. See State v. Sprung, 294 Kan. 300, 310, 277 P.3d 1100 (2012) (discussing unit of prosecution test for multiplicity purposes, “K.S.A. 21-3504(a)(3)(A) possesses a unifying intent—‘to arouse or to satisfy tire sexual desires’—with the object of that intent being the child, the offender, or both”).
We therefore hold that the legislature did not define the requisite mens rea element for aggravated indecent liberties with a child under K.S.A. 21-3504(a)(3)(A) in two or more distinct ways. The phrase “either the child or the offender, or both” merely describes a secondary matter, the potential yet incidental objects of the offender’s required intent. This phrase also outlines options within a means, and it can be accurately described as purely descriptive of factual circumstances that may prove tire distinct, material mental state element of the crime.
The result of this holding is that this is not an alternative means case and concerns of jury unanimity were not triggered by the words “either the child or tire offender, or both” in K.S.A. 21-3504(a)(3)(A). The State chose only one means from the statute, and members of Brown’s jury, following the instructions given in this case that incorporated the statutory language, had to agree unanimously that Brown possessed the culpable mental state of an intent to arouse or satisfy sexual desires, but they did not have to agree unanimously on who had those desires. As Brown concedes, proof that he intended to arouse or satisfy his own sexual desires was ample. He is thus not entitled to reversal, because the super-sufficiency requirement of Timley does not apply and the one alternative chosen by the State was supported by substantial and sufficient evidence.
Lewd And Lascivious Behavior
As with K.S.A. 21-3504(a), K.S.A. 21-3508(a) provides alternative means for committing the crime of lewd and lascivious behavior. The various subsections of the statute, again, provide a structural clue to the legislature’s intent, stating distinct, material elements of intent and conduct, the mens rea and actus reus, that must coexist to have commission of the crime.
For example, one alternative prohibits publicly engaging in intercourse or sodomy under specified circumstances. K.S.A. 21-3508(a)(1). Another alternative, which was the only one with which Brown was charged in this case, prohibits “exposing a sex organ in the presence of a person who is not the spouse of the offender and who has not consented thereto, with intent to arouse or gratify the sexual desires of the offender or another.” (Emphasis added.) K.S.A. 21-3508(a)(2).
Again, as with K.S.A. 21-3504(a), the distinct, material mens rea of the crime at issue, as articulated by the legislature, is the unified intent to arouse or gratify sexual desires. The legislature’s further description of the potential incidental objects of that intent outline mere options within a means that are simply descriptive of the types of factual circumstances that may form the State’s proof. The phrase “offender or another” does not create alternative means and does not trigger concerns of jury unanimity or demand application of the super-sufficiency requirement. Consequently, Brown is not entitled to reversal of his conviction for lewd and lascivious behavior.
Conclusion
Having disposed of the alternative means claims in this appeal, we take this opportunity to again urge prosecutors and trial judges to attempt as much verdict specificity as possible by tailoring their jury instructions to the proof in a given case. The State should decide which alternatives it wants the jury to consider and advise the court of proposed instructions that eliminate options on which the State does not rely. And the court should consider whether there is zero evidence related to any option stated in a statute; if there is no evidence to support the option, it should not be included in a jury instruction. Such tailoring may avoid a later appellate fight over whether a statute sets out alternative means of committing the crime or over whether the super-sufficiency requirement has been met. See Schad v. Arizona, 501 U.S. 624,645, 111 S. Ct. 2491,115 L. Ed. 2d 555 (1991). Tailoring of instructions holds the most promise for minimizing the risk of reversal compelled by State v. Timley, 255 Kan. 286, 875 P.2d 242 (1994).
Reopening the State’s Case
In his second issue, Brown contends the trial court erred in allowing the State to reopen its case-in-chief to present evidence of Brown’s age at the time of the aggravated indecent liberties with a child offense. He asserts this court must vacate his sentence and remand with directions that the aggravated indecent liberties with a child conviction be sentenced as a severity level 3 person felony, rather tiran an off-grid person felony.
The trial court’s ruling came after the jury had been told it had heard all of the evidence. The jury had been sent home and instructed to return the next day to hear the jury instructions and closing arguments. The next morning, when the trial reconvened, the State made its motion to reopen its case. The prosecutor acknowledged there was no direct evidence of Brown’s date of birth and that proof of age was necessary if Brown was going to be convicted of a Jessica’s Law offense under K.S.A. 21-4643. The prosecutor stated that the evidence of Brown’s date of birth was not elicited during the State’s case-in-chief because of “an oversight.” The State argued that reopening its case for this question was not prejudicial to Brown because “it really is not what the defense was based on in this case.” Defense counsel objected to the motion.
The trial court permitted the State to reopen its case. See K.S.A. 22-3414(2). The court expressly applied the factors listed in State v. Murdock, 286 Kan. 661, Syl. ¶¶ 4, 5, 187 P.3d 1267 (2008). In Murdock, this court, quoting from United States v. Blankenship, 775 F.2d 735, 741 (6th Cir. 1985), explained tire factors a trial court should consider in exercising its discretionary authority to allow a party to reopen its case:
“ ‘In exercising its discretion, the court must consider the timeliness of the motion, the character of the testimony, and the effect of the granting of the motion. The party moving to reopen should provide a reasonable explanation for fail[ing] to present the evidence in its case-in-chief. The evidence proffered should be relevant, admissible, technically adequate, and helpful to the jury in ascertaining the guilt or innocence of the accused. The belated receipt of such testimony should not “imbue the evidence with distorted importance, prejudice the opposing party’s case, or preclude an adversary from having an adequate opportunity to meet the additional evidence offered.” [Citation omitted.]’ ” (Emphasis added.) Murdock, 286 Kan. at 672-73.
In reviewing these factors, the trial court noted that an element of a criminal offense can be proven by circumstantial evidence and, given that Brown was in his 60’s, the jury could find this over-the-age-of-18 element from its viewing of Brown in the videotaped interview. Based on this, the court determined that the additional evidence the State wished to present would not “imbue the evidence with distorted importance.” The court likewise reasoned that Brown would not be overly surprised by the additional testimony. Further, the testimony, according to the court, was relevant, admissible, technically adequate, and helpful to the jury.
In addition to applying the Murdock factors, the court allowed Brown the opportunity to reopen his case and challenge this additional evidence if he wished to do so. The court noted this procedure would not depart drastically from the typical order of trial because the defense had not presented any evidence and the State’s motion was made prior to the parties’ closing arguments and prior to the juiy receiving its instructions.
In arguing this ruling was in error, Brown takes issue with only two aspects of the trial court’s ruling—the trial court’s determination that the evidence of age would be helpful to the jury in determining his guilt or innocence and the conclusion that Brown was not prejudiced by the reopening. Therefore, we accept that all other Murdock factors weigh in favor of allowing the State to reopen its case. See State v. Raskie, 293 Kan. 906, 919, 269 P.3d 1268 (2012) (failure to adequately brief issue constitutes waiver).
District Court Standard and Standard of Appellate Review
The trial court’s authority for reopening the case after the State had rested is found in K.S.A. 22-3414. That statute outlines the order of a criminal trial and provides that once all parties have completed their case-in-chief, “[t]he parties may then respectively offer rebutting testimony only, unless the court, for good cause, permits them to offer evidence upon their original case.” K.S.A. 22-3414(2). This good-cause standard implies discretion, and that is the standard we have applied in past cases. See State v. Horton, 292 Kan. 437, 439, 254 P.3d 1264 (2011) (listing long line of cases recognizing that a trial court has the discretionaiy option to reopen a party’s case). As we previously noted, in Murdock we adopted factors that govern the trial court’s application of the good-cause standard, and the trial court in this case applied those factors.
Regarding appellate review of the trial court’s ruling, in Murdock we stated that an appellate court reviews a trial court’s decision to permit the State to reopen its case for an abuse of discretion. Mur-dock, 286 Kan. at 672. After the Murdock decision, we restated our abuse of discretion standard in a three-part statement that gathered various strands of cases stating the abuse of discretion standard in different ways. Under this three-part standard, judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable; in other words, if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law; in other words, if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact; in other words, if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert, denied 132 U.S. 1594 (2012).
Assisting the Jury in Ascertaining Guilt or Innocence
Citing State v. White, 279 Kan. 326, 332,109 P.3d 1199 (2005), which was a case that stated the abuse of discretion standard in terms similar to the second prong of the Ward standard, Brown contends the trial court committed a legal error as part of its analysis that evidence of Brown’s date of birth would assist the jury in ascertaining Brown’s guilt or innocence. Specifically, Brown argues this ruling was dependent on the belief that age was an element of the charged crime of aggravated indecent liberties with a child. To the contrary, Brown argues age is not an element of the offense. To support his argument, Brown cites State v. Momingstar, 289 Kan. 488, 213 P.3d 1045 (2009).
In Momingstar, the defendant contended there was insufficient evidence to convict him of rape of a child under tire age of 14 in violation of K.S.A. 21-3502(a)(2) because the State failed to present any evidence that the defendant was 18 years or older. In addressing this issue, the court stated:
“[T]he express terms of K.S.A. 21-3502(a)(2) contain two elements of rape: (1) sexual intercourse; and (2) with a child who is under 14 years of age. The defendant’s age is not an element under this statute. It is the enhanced sentencing statute, K.S.A. 21-4643, that requires tire additional factual determination about the defendant’s age before a court may impose a life sentence.” Morningstar, 289 Kan. at 493-94.
The court thus ruled that omitting the defendant’s age from the complaint or the juiy instructions did not eliminate the existence of the crime of rape of a child under 14 years of age or invalidate a criminal conviction of that offense. Morningstar, 289 Kan. at 494. Nevertheless, because the State failed to present any evidence of the defendant’s age at trial and failed to instruct the jury on his age, the court vacated the defendant’s off-grid sentence and remanded for resentencing on the Kansas Sentencing Guidelines Act grid. Morningstar, 289 Kan. at 495.
Brown relies on the language from Morningstar, 289 Kan. at 494, that “[t]he defendant’s age is not an element under this statute” to support his argument that his age was not helpful to the jury in determining his “guilt or innocence.” Brown is technically correct; evidence of his age was not necessary for the jury to find him guilty of aggravated indecent liberties with a child. Nonetheless, age is an element of the greater offense of aggravated indecent liberties punishable under Jessica’s Law, K.S.A. 21-4643, as this court has repeatedly held in the context of defendants’ challenges to their off-grid sentences when evidence that they were over the age of 18 was neither presented to the jury nor included in the jury instructions. As the court stated in State v. Reyna, 290 Kan. 666, 676, 234 P.3d 761 (2010), based on Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000):
[T]he defendant’s age at the time of the offense is an element of the crime if the State seeks to convict the defendant of the more serious, off-grid enhanced offense. See [State v. Gonzales, 289 Kan. 351, 366-70, 212 P.3d 215 (2009)]; [State v. Bello, 289 Kan. 191,195-98, 211 P.3d 139 (2009)]. The State’s argument that the age issue is merely a sentencing factor that, like a prior offense, maybe determined by the judge at sentencing ignores the full impact of Apprendi.” (Emphasis added.)
See, e.g., State v. Chanthaseng, 293 Kan. 140, 151, 261 P.3d 889 (2011) (based on Apprendi, defendant’s age at the time of the offense is an element of the crime if the State seeks to convict defendant of the off-grid level of the offense); State v. Brown, 291 Kan. 646, 662, 244 P.3d 267 (2011) (same); State v. Colston, 290 Kan. 952, 973, 235 P.3d 1234 (2010) (same).
In this case, the complaint charged Brown with an off-grid crime for “Aggravated Indecent Liberties With a Child, (an Off-grid Person Felony; Penalty: Pursuant to K.S.A. 21-4643—25 years to life in prison; Defendant was over the age of 18 at the time of the commission of the offense, D.O.B. 10/18/1947).” And the trial court instructed the jury that to convict Brown of the crime, the State must prove “[t]hat at the time of tire act the defendant was 18 years of age or older.” Thus, as the State argues, to obtain a conviction on the more serious, off-grid offense with which the State charged Brown, the State was required to prove Brown’s age at the time of the offense was 18 years or older.
Hence, tire trial court was correct in determining that knowing Brown’s date of birth would assist the jury in determining Brown’s guilt or innocence of the greater offense under Jessica’s Law. Significantly, the trial court found there was already circumstantial evidence of age in the record because an admitted exhibit, the videotaped interview of Brown, provided visual evidence that Brown was well over 18 years of age. This finding is not challenged on appeal. Therefore, the evidence presented when the State’s case was reopened was not essential to the State’s case. Yet, evidence of Brown’s date of birth assisted the jury’s consideration of whether the State proved the age element of the greater offense of aggravated indecent liberties widr a child as charged under Jessica’s Law. As such, Brown’s argument—that the trial court’s decision to allow the State to reopen his case was guided by an erroneous legal conclusion—fails.
Prejudice
Brown also argues the trial court erred in determining that Brown was not prejudiced by the reopening of the State’s case. He argues that the trial court’s ruling subjected him to a substantially longer sentence (lifetime imprisonment versus 100 months’ imprisonment).
The determination of whether the trial court erred in concluding that Brown was not prejudiced by the reopening of the State’s case is reviewed under the broadest abuse of discretion analysis—the first prong of the Ward standard—that upholds a trial court’s determination unless no reasonable person could agree. Ward, 292 Kan. at 550 (stating standard); Murdock, 286 Kan. at 672 (applying standard to ruling on State’s motion to reopen its case).
As the Murdock court noted, Blankenship provides that the “ ‘most important consideration’ ” in determining whether a party should be permitted to reopen its case is “ ‘whether the opposing party is prejudiced by reopening.’ ” Murdock, 286 Kan. at 673 (quoting Blankenship, 775 F.2d at 741). The Blankenship court stated:
“One of the critical factors in evaluating prejudice is the timing of the motion to reopen. If it comes at a stage in the proceedings where the opposing party will have an opportunity to respond and attempt to rebut the evidence introduced after reopening, it is not nearly as likely to be prejudicial as when reopening is granted after all parties have rested, or even after the case has been submitted to the jury.” Blankenship, 775 F.2d at 741.
In Blankenship, the court noted that while the defendant objected to the reopening, he did not attempt to challenge the additional evidence. Nor could he have been surprised by the additional evidence, tire court reasoned, because it was nothing more than a positive identification of the defendant. Blankenship, 775 F.2d at 741.
In Murdock, the court likewise noted that the motion to reopen was made immediately after the State rested its case-in-chief and before the defendant offered any evidence, allowing the defendant the opportunity to respond to and rebut the additional evidence. The court determined that admitting the evidence at this time did not imbue the evidence with distorted importance, prejudice the defendant’s case, or preclude the defendant from the opportunity to defend against the additional evidence offered. And the Mur-dock court noted that the evidence was not prejudicial to the defendant because it was evidence presented at the preliminary hearing and, therefore, known to the defendant. Murdock, 286 Kan. at 675.
Here, although both parties had rested before the State sought to reopen its case, the court offered Brown the opportunity to present rebuttal evidence. More significantly, the trial court made a factual finding that there was already circumstantial evidence in the record from which the jury could conclude Brown was older than 18 years of age. As support for this finding, the trial court cited an admitted exhibit, tire videotaped interview of Brown. Given this factual finding that is supported by an admitted exhibit, we conclude no legal prejudice resulted from the trial court allowing the State to reopen its case to call a witness to testify to something already established by circumstantial evidence. See Murdock, 286 Kan. at 685 (Beier, J., concurring in part).
Hence, we conclude that in this Jessica’s Law case the trial court did not abuse its discretion when it allowed the State to reopen its case to prove Brown’s age because there was already circumstantial evidence of age, the additional evidence was helpful to the jury in ascertaining whether the State had established the elements of the greater offense of aggravated indecent liberties with a child punishable under Jessica’s Law, and there was no legal prejudice to Brown.
Prosecutorial Misconduct
Brown contends the prosecutor committed reversible misconduct with two statements he made during jury selection and one statement made during closing argument.
Standard of Review
An appellate court’s review of an allegation of prosecutorial misconduct requires application of the familiar two-step analysis. First, the appellate court decides whether the prosecutor’s comments exceed the wide latitude of language and manner afforded the prosecutor when discussing the evidence. Second, the court determines whether the prosecutor’s comments constitute plain error. This occurs when the statements show ill will by the prosecutor or are so gross and flagrant that they prejudice the jury against the defendant and deny the defendant a fair trial. See Raskie, 293 Kan. at 914 (citing State v. Tosh, 278 Kan. 83, 85, 91 P.3d 1204 [2004]); State v. Inkelaar, 293 Kan. 414, 428, 264 P.3d 81 (2011). This second step involves several considerations that we will more fully discuss after examining whether there was misconduct.
Challenged Statements
Brown challenges the following italicized statements made by the prosecutor during jury selection:
“[The State]: This is a serious case. I certainly don’t want the fact that we have a little bit of laughter when we do voir dire, that may make you think it’s not a serious case. It is a very serious case for the defendant and a very serious case for the State. It is going to be a potentially emotional case, as well because we have a little girl who had some bad things happen to her. And that’s what the State is going to demonstrate to you. Is there anyone, who by the nature of the charges, just thinks to themselves: I can’t sit through this. There is no way I can sit through something like this. Any hands? [juror]?
“[Juror]: Because I’m pregnant, I’ve been very emotional lately. I might be able to; I might break down.
“[The State]: [Juror], you wouldn’t—or would you allow those emotions to be the basis for those decisions? Or would you try to use reason? Or would you just use emotion?
“[Juror]: I would definitely try to use reason.
“[The State]: There is nothing wrong loith using emotions either. Everyone has emotions. We’re not asking you to set that completely aside. You’re going to [sic] moved, but your decision needs to be based on the facts and the law, and not just emotion. Any other questions on that?” (Emphasis added.)
Brown argues the first statement-—-“some bad things happened to her”—was an expression of the prosecutor’s personal belief of Brown’s guilt. He argues the second statement—“[tjhere is nothing wrong with using emotions either”—distracted the juiy from its duty to base its decision on the law and the facts.
Brown also challenges the following statement made by the prosecutor during closing argument: “I will submit, the next element is the one you would probably talk about the most when you are in that jury room, that the defendant fondled or touched the person of [G.V.] in a lewd manner. I don’t think there is really a question of that. It’s for you to decide because you’re the fact-finder, but you heard what [G.V.] told you.” (Emphasis added.)
Step 1: Misconduct
(a) Personal Opinion of Guilt
Brown contends that with the first statement in jury selection and the statement during closing argument, the prosecutor “book-ended the trial with two statements expressing his belief that Mr. Brown was guilty.”
The State acknowledges that it is improper for a prosecutor to express a “ personal opinion regarding the ultimate guilt or innocence of the defendant/ ” See State v. Bennington, 293 Kan. 503, 530, 264 P.3d 440 (2011) (quoting State v. Corbett, 281 Kan. 294, 315, 130 P.3d 1179 [2006]); see also Kansas Rules of Professional Conduct (KRPC) 3.4 (2011 Kan. Ct. R. Annot. 566) (“A lawyer shall not: ...(e) in trial, . . . state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused.”); KRPC 3.8 (2011 Kan. Ct. R. Annot. 578) (special duties of a prosecutor). Additionally, the State essentially concedes that the statement made during closing argument—“I don’t think there is really a question of that”—was a personal opinion of guilt. As to the statement during voir dire—“some bad things happened to [G.V.]”— the State argues this was just an expression of the nature of the alleged crimes in the context of an attempt to see if any of the potential jurors should be excused because of an inability to handle the emotional nature of the testimony and trial.
While this may have been the purpose of the exchange, the statement was an affirmative statement that bad things happened. It was not couched in terms such as “it is alleged” or “the State intends to prove.” Rather, it was stated as a fact. Although not preceded by “I believe” or similar words, the prosecutor’s statement was the equivalent of a personal expression of guilt.
(b) Encouraging Use of Emotion
Brown also contends the prosecutor’s statement that there is “nothing wrong with using emotions” improperly “ ‘distract[ed] the jury from its duty to make decisions based on the evidence and the controlling law.’ ” Indeed, as we have often stated: “Prosecutors are not allowed to make statements that inflame the passions or prejudices of the jury or distract the jury from its duty to make decisions based on the evidence and the controlling law.” State v. Baker, 281 Kan. 997, 1016, 135 P.3d 1098 (2006).
The State argues the prosecutor was acknowledging that the trial evidence may take an emotional toll on the juiy but reiterating that the jury’s “decision needs to be based on the facts and the law, and not just emotion.” A correct statement would have been that the jury’s decision needs to be based on the facts and the law. See Raskie, 293 Kan. 906, Syl. ¶ 3 (“[A] prosecutor may comment on admitted evidence as long as the remarks accurately reflect the evidence, accurately state the law, and are not intended to inflame the passions or prejudices of the jury or divert the jury from its duty to decide the case based on the evidence and the controlling law.”); PIK Crim. 3d 51.07 (“You must consider this case without favoritism or sympathy for or against either party. Neither sympathy nor prejudice should influence you.”) (This instruction is disapproved for general use.).
Instead of explaining that the decision needs to be based on the facts and the law, the prosecutor added the statement, “and not just emotion.” This misstatement was emphasized by the statement, “There is nothing wrong with using emotions either.” While these statements may not have been intended to inflame the passions of the jury, they distracted the jury from making its decision based on the evidence and the controlling law.
Step 2: Harmlessness Inquiry
Having found that there was misconduct, we next consider whether the prosecutor’s misconduct was so prejudicial that it denied the defendant a fair trial. This requires a harmlessness inquiry. Three factors are considered: (1) Is the misconduct so gross and flagrant it denied the accused a fair trial; (2) Do tire remarks show ill will by the prosecutor; and (3) Is the evidence against the defendant of such a direct and overwhelming nature that the prosecutor’s statements would not have much weight in the jurors’ minds? No individual factor controls. See Inkelaar, 293 Kan. at 427.
Under the third factor, the State, as the party who benefitted from the misconduct, bears the burden to establish beyond a reasonable doubt that the error did not affect the defendant’s substantial rights; in other words, that there is no reasonable possibility the error affected the verdict. In short, the third factor cannot override the first two factors unless we are able to say the constitutional error standard of Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386 U.S. 987 (1967), has been met. Inkelaar, 293 Kan. at 430-31.
Applying these factors, we conclude the prosecutor’s statements were gross and flagrant because they broke well-established and long-standing rules regarding the latitude of prosecutors. See State v. Kemble, 291 Kan. 109, 121-25, 238 P.3d 251 (2010) (factors demonstrating gross and flagrant conduct include repeated comments, emphasis on an improper point, planned or calculated statements, violation of a well-established, “unequivocal” rule, violation of a rule designed to protect a constitutional right, and longstanding nature of the rule). Even if the misstatements were merely inarticulate or imprecise wording and not intentional, a prosecutor should be sensitive to our repeated warnings to not state personal opinions of guilt or unduly draw on sympathy. Further, the instances were repeated. These factors also provide some evidence of ill will. See Inkelaar, 293 Kan. at 430 (ill will demonstrated by deliberate conduct, repeated improper statements, or apparent indifference to a court’s ruling).
Nevertheless, there is no other indication in the record that these misstatements were the result of ill will on the part of the prosecutor. The points were not emphasized by the prosecutor, the prosecutor did not make the statements in defiance of court rulings, and the prosecutor exhibited no other behavior suggesting ill will.
Furthermore, we conclude there is no reasonable possibility the misconduct affected the verdict. The trial court instructed the jury that it was to base its decision on the law and the facts, and nothing suggests the juiy did not follow that admonition. And the prosecutor’s statements suggesting his belief in guilt were tempered by other statements that reminded the jury it was the finder of fact. Additionally, although the evidence against Brown consisted almost entirely of G.V.’s statements and testimony, the evidence was consistent. Brown himself lent credence to G.V.’s testimony by substantiating that the two of them slept naked in the same bed and that he rubbed lotion on G.V, which he stated she loved. The discovery of lotion and the child-sized apron provide further support for G.V.’s testimony.
Hence, while we find misconduct, that misconduct was harmless.
Lifetime Postrelease Supervision Rather Than Parole
Brown’s next issue on appeal relates to his sentence for the off-grid offense of aggravated indecent liberties with a child. The trial court sentenced Brown to life imprisonment with a mandatory minimum term of imprisonment of not less than 25 years under Jessica’s Law (an indeterminate sentence) and also imposed a term of lifetime postrelease supervision. Brown contends the trial court erred in imposing lifetime postrelease supervision, rather than parole.
This court has previously decided this issue, concluding that “ ‘[a]n inmate who has received an off-grid indeterminate life sentence can leave prison only if the successor to the Kansas Parole Board grants the inmate parole. Therefore, a sentencing court has no authority to order a term of postrelease supervision in conjunction with an off-grid indeterminate life sentence.’ ” State v. Summers, 293 Kan. 819, 832, 272 P.3d 1 (2012) (quoting State v. Cash, 293 Kan. 326, Syl. ¶ 2, 263 P.3d 786 [2011]).
In light of this authority, the State concedes this issue but points out that the trial court did not announce the term of lifetime post-release supervision from the bench during the sentencing proceeding. Nevertheless, the journal entry reflected lifetime post-release supervision as part of the sentence. As the State points out, the error lies with the journal entry, not the announced sentence.
Therefore, we vacate the journal entry and remand with directions to enter a nunc pro tunc order that conforms the journal entiy to the announced sentence. See K.S.A. 22-3504(1); State v. McKnight, 292 Kan. 776, 779, 257 P.3d 339 (2011) (sentence is effective when pronounced from the bench); State v. Lyon, 207 Kan. 378, 381-82, 485 P.2d 332 (1971) (allowing State’s nunc pro tunc motion to correct journal entry to conform with sentence).
Apprendi/Ivory Issue
Brown also argues the trial court violated his jury-trial rights under Apprendi v. New Jersey, 530 U.S. 466, 490,120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), when it considered his prior convictions in determining his sentence without requiring those convictions to be included in the criminal complaint or proved to a jury beyond a reasonable doubt.
Brown acknowledges that this court has consistently rejected this argument. See, e.g., Bennington, 293 Kan. 503, Syl. ¶ 9; State v. Riojas, 288 Kan. 379, 388, 204 P.3d 578 (2009); State v. Fewell, 286 Kan. 370, 394-96, 184 P.3d 903 (2008); State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002). The use of prior convictions for sentencing enhancement is constitutional.
Brown’s convictions are affirmed, his sentence is affirmed in part and vacated in part, and the case is remanded with directions.
Moritz, J., concurring: While I agree with the rationale developed by the majority for determining whether a statute contains alternative means, I respectfully concur in the decision because I would find it unnecessary to engage in that analysis in this case. Instead, I would accept the State’s invitation to reconsider State v. Wright, 290 Kan. 194, 224 P.3d 1159 (2010), and I would find that Wright permits a modified harmless error analysis in this case.
Specifically, I would find that when there is sufficient evidence of one alternative means but no evidence or argument regarding another means and thus no possibility of jury confusion, we need not engage in a complicated analysis to determine whether the legislature intended terms separated by an “or” to be alternative means. As the majority states:
“In examining legislative intent, a court must determine for each statute whether the legislature’s use of a disjunctive ‘or’ is intended to accomplish. Is it to list alternative distinct, material elements of a crime—that is, the necessary mens rea, actus reus, and, in some statutes, a causation element? Or is it merely to describe a material element or a factual circumstance that would prove the crime.” (Emphasis added.) Brown, slip op. at 17.
While I agree with the “identification approach” developed in this case for determining when a statute sets out alternative means and will apply that approach in future cases, I am concerned that this approach will needlessly result in inconsistent and result-oriented decisions. Instead, in this case as well as others, I would accept for purposes of argument Brown’s claim that die trial court instructed the jury on alternative means for which there was no evidence. Based on Brown’s concession that there was no evidence to support one means, I would find there was no possibility of jury confusion as to that means and any error was harmless beyond a reasonable doubt.
This Court Adopted the Griffin Rationale in Grissom
I find the genesis, but not the complete rationale, for this approach in Griffin v. United States, 502 U.S. 46,112 S. Ct. 466,116 L. Ed. 2d 371 (1991), reh. denied 502 U.S. 1125 (1992). There, the United States Supreme Court held that neither the Due Process Clause of the Fifth Amendment to the United States Constitution nor United States Supreme Court precedent required reversal of a general guilty verdict on a multiple-object conspiracy in a federal prosecution when the evidence was inadequate to support conviction as to one of the objects of the conspiracy. The Griffin Court specifically distinguished cases in which convictions were based on legally insufficient grounds, i.e., unconstitutional provisions of a statute or legally insufficient proof, from convictions based on insufficient factual proof to support one of several bases for the convictions. 502 U.S. at 51-60. The Court’s reasoning is instructive:
“Jurors are not generally equipped to determine whether a particular theoiy of conviction submitted to them is contrary to law—whether, for example, the action in question is protected by the Constitution, is time barred, or fails to come within the statutory definition of the crime. When, therefore, jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error. Quite the opposite is true, however, when they have been left the option of relying upon a factually inadequate theory, since jurors are well equipped to analyze the evidence, [citation omitted]. . . .
. . [I]f the evidence is insufficient to support an alternative legal theory of liability, it would generally be preferable for the court to give an instruction removing that theory from the jury’s consideration. The refusal to do so, however, does not provide an independent basis for reversing an otherwise valid conviction.” 502 U.S. at 59-60.
What I take from Griffin is that we can rely upon the jury to do what we instruct them to do—i.e., apply the law to the evidence and arrive at a verdict. So when we instruct a jury on a legal means for committing a crime for which there is no evidence and an alternative means of committing the same crime for which there is sufficient evidence and the juiy convicts the defendant of that crime, we can reliably conclude it did so unanimously upon the only means for which there was evidence.
Significantly, in State v. Grissom, 251 Kan. 851, 892, 840 P.2d 1142 (1992), this court adopted the above-quoted passage from Griffin and specifically disapproved of this court’s earlier decision in State v. Garcia, 243 Kan. 662, Syl. ¶ 6, 763 P.2d 585 (1988). In Garcia, this court had held that “ ‘[a] general verdict of guilty must be set aside if the jury was instructed that it could rely on any of two or more independent grounds, and one of those grounds is insufficient.’ ” See Grissom, 251 Kan. at 890, 892.
Ultimately, the Grissom court applied Griffin to conclude that “Grissom’s challenge to the three first-degree murder convictions [was] factual,” and “[bjecause he was charged in the alternative, if there is sufficient evidence to convict him of either premeditated or felony murder, the general verdict should be upheld.” (Emphasis added.) 251 Kan. at 893. Because the court found sufficient evidence to support premeditation, the court found it unnecessaiy to consider whether there was sufficient evidence to convict Gris-som of the felony murders of the three victims. 251 Kan. at 893.
While I do not agree with Grissoms wholesale adoption of Griffin, Grissom had it partially right. And as discussed below, because Wright did not overrule Grissom s adoption of the Griffin approach, I would take this opportunity to clarify our application of that approach.
Timley Did Not Explicitly Reject the Griffin Rationale
Two years after Grissom, in State v. Timley, 255 Kan. 286, 289-90, 875 P.2d 242 (1994), this court quoted a discussion from State v. Kitchen, 110 Wash. 2d 403, 410, 756 P.2d 105 (1988), which set forth a “super-sufficiency” concept. This concept, unlike the rule adopted in Grissom, requires “substantial evidence” to support each alternative means upon which the jury is instructed. Notably, this court did not discuss or specifically adopt this concept in Tim-ley, although it did reiterate the quote from Kitchen. See Timley, 255 Kan. 286, Syl. ¶ 1. Instead, it simply quoted from Kitchen in order to explain the distinction between multiple acts and alternative means. The Timley court then pointed out that Grissom “recognized and discussed the alternative means rule” and cited the following language from Grissom:
“ ‘If an accused is charged in one count of an information with both premeditated murder and felony murder, it matters not whether some members of the jury arrive at a verdict of guilt based on proof of premeditation while others arrive at a verdict of guilt by reason of the killer’s malignant purpose. Furthermore, the State is not required to elect between premeditated and felony murder because K.S.A. 21-3401 established the single offense of murder in tire first degree and only provides alternate methods of proving the crime.’ ” Timley, 255 Kan. at 290 (quoting Grissom, 251 Kan. 851, Syl. ¶ 7).
Unfortunately, Timley did not address the logical disconnect between quoting the “super-sufficiency” concept set forth in Kitchen, which requires “substantial evidence” to support each alternative means upon which the jury is instructed, and simultaneously reiterating language from Grissom which explicitly rejected any “super-sufficiency” requirement. Timley, 255 Kan. at 289-90. Assuming the Timley court was cognizant of this inconsistency, it seems likely the failure to address it was driven by the result in Timley, i.e., the State presented sufficient evidence of both means so it was unnecessaiy to address the conflict.
In any event, even if Timley could be interpreted to have adopted Kitchens approach of requiring substantial evidence of both means, it is clear that Timley did not resolve, or even touch upon, the next logical issue—e.g., whether reversal is automatically required when evidence of one means is insufficient or whether the court can apply a harmless error analysis.
This Court Applied a Harmless Error Approach in Dixon
More than 10 years later, in State v. Dixon, 279 Kan. 563, 602, 606,112 P.3d 883 (2005), disapproved of by Wright, 290 Kan. 194, the court had an opportunity to reach the harmless error issue. In Dixon, the court recognized Timley’s “substantial evidence” approach and, applying that approach, found “strong evidence supporting at least one theory of each burglary and no evidence of at least one other theory.” (Emphasis added.) Dixon, 279 Kan. at 606; see Wright, 290 Kan. at 204-06.
However, the Dixon court did not reverse outright the conviction for which there was no evidence. But see 279 Kan. at 622 (Beier, J., concurring in part and dissenting in part) (“I would reverse the defendant’s two burglary convictions as a straightforward and consistent application of our alternative means rule from State v. Tim-ley, 255 Kan. 286, 289, 875 P.2d 242 [1994].”). Nor did the court reverse the conviction and remand for a new trial on the means for which there was sufficient evidence. See Beier, Lurching Toward the Light: Alternative Means and Multiple Acts Law in Kansas, 44 Washburn L.J. 275, 294 (2005) (following a reversal for insufficient evidence of an alternative means, the defendant “can only be retried on the theory for which evidence was sufficient the first time, without the pollution of evidence or argument supporting the alternative theory”); State v. Stevens, 36 Kan. App. 2d 323, 346-48,138 P.3d 1262 (2006) (Johnson, J., dissenting) (concluding the State failed to prove the alternative means of attempting to operate a vehicle while under the influence and suggesting reversal and remand for retrial upon the means for which there was sufficient evidence—operating a vehicle while under the influence), off d in part, revd in part 285 Kan. 307, 172 P.3d 570 (2007).
Instead, the court applied a harmless error analysis, albeit without specifically identifying it as such. See Dixon, 279 Kan. at 604 (“The remaining question is whether Dixon’s burglary convictions can stand in spite of the absence of evidence sufficient to support each theory for the burglary charges.”). The Dixon court ultimately affirmed the defendant’s burglary convictions based on “strong evidence supporting at least one theory of each burglary and no evidence of at least one other theory.” 279 Kan. at 606. In adopting this harmless error approach, Dixon cited extensively from State v. Johnson, 27 Kan. App. 2d 921, 11 P.3d 67, rev. denied 270 Kan. 901 (2000), an alternative means case in which the Court of Appeals applied Grijfin. See Johnson, 27 Kan. App. 2d at 923-26 (applying Grijfin to find harmless error when defendant was convicted of kidnapping by “force, threat or deception,” and there was overwhelming evidence of threat, “little” evidence of force, and no evidence of deception). The Johnson panel also cited and distinguished State v. Ice, 27 Kan. App. 2d 1,997 P.2d 737 (2000), which I discuss later in this concurrence, wherein a separate Court of Appeals panel also applied and distinguished Grijfin. See Johnson, 27 Kan. App. 2d at 925.
Wright Clarified What We Failed to Make Clear in Timley
This court in Wright endorsed the language from Kitchen quoted in Timley as the “only choice” for ensuring jury unanimity as required by K.S.A. 22-3421. In so holding, the court overruled any contrary language in Dixon. Wright, 290 Kan. at 206. But Wright did not directly address Timley’s inconsistent citation to Grissom, nor did it reject or overrule Grissom and its adoption of Grijfin. See Wright, 290 Kan. 204-06. Moreover, although Wright explicitly rejected Dixons application of harmless error, 290 Kan. at 206, the court ultimately held that there was sufficient evidence of both alternative means and there was “no error under the Timley alternative means rule.” (Emphasis added.) 290 Kan. at 207. Because the Wright court found no error, it clearly did not need to reach the harmless error issue and I would hold that this aspect of Wright was dicta. And for this reason, I would accept the State’s invitation to reconsider Wright and I would clarify Wright’s holding as follows.
This Court Should Adopt a Modified Harmless Error Approach
First, I would reaffirm Wright’s determination that when a jury is instructed on alternative means of committing a crime, the State is required to present sufficient evidence of each means. And when sufficient evidence of each means is presented, we can affirm the conviction because, as we ultimately held in both Timley and Wright, if substantial evidence supported both means, juiy unanimity is not in question. That is because regardless of which means the individual jurors considered, the State presented sufficient evidence from which “ ‘a rational trier of fact could have found each means of committing the crime beyond a reasonable doubt.’ ” Tim-ley, 255 Kan. at 289 (quoting Kitchen, 110 Wash. 2d at 410).
But I would not, as Wright suggested in dicta, find that whenever there is insufficient evidence of any means, the conviction must be reversed. Instead, in order to determine whether there is a concern regarding our statutorily mandated requirement of jury unanimity, I would distinguish between two circumstances: (1) sufficient evidence of one means but no evidence of another; and (2) sufficient evidence of one means and some, but insufficient, evidence of another.
1. Sufficient evidence of one means and no evidence of another
When the first circumstance is present, i.e., there is sufficient evidence of one means but no evidence of another means, we can affirm the conviction despite its contravention of Wright’s super-sufficiency requirement. In this circumstance, I would depart from the dicta in Wright and apply the Griffin rationale adopted by this court in Grissom—a rationale which was discussed but not specifically rejected by Wright. Simply said, when a juiy is presented with no evidence of one means and sufficient evidence of another, we can reliably conclude the jury was not confused and that it unanimously decided the defendant’s guilt based upon the only means for which there was evidence.
The vast majority of alternative means cases presented to this court can be resolved by simply considering whether there was sufficient evidence of both of the alleged means or sufficient evi dence of one alleged means and no evidence of another. See, e.g., Wright, 290 Kan. at 205-06 (affirming rape conviction after finding sufficient evidence to establish that the victim was overcome by force or fear; noting that defendant did not challenge sufficiency of evidence to support alternative means that the victim could not consent because she was unconscious); State v. Dixon, 289 Kan. 46, 63-65,209 P.3d 675 (2009) (Dixon II) (affirming felony-murder conviction after finding sufficient evidence to support each of three alternative means of committing the underlying felony of burglary); State v. Stevens, 285 Kan. 307, 314-19, 172 P.3d 570 (2007) (affirming conviction of driving under the influence after finding substantial evidence to support alternative means of operating under the influence and attempting to operate under the influence); State v. Kesselring, 279 Kan. 671, 684,112 P.3d 175 (2005) (finding “no reason to doubt tire jurors’ unanimity regarding first-degree murder” when evidence was sufficient to support either premeditation or felony murder); Dixon, 279 Kan. at 606 (concluding it was harmless error to instruct jury on three alternative intents to support burglary charge when there was strong evidence of one means and no evidence of other means), disapproved of by Wright, 290 Kan. at 206; State v. Morton, 277 Kan. 575, 578-83, 86 P.3d 535 (2004) (affirming first-degree murder conviction after noting that defendant challenged only sufficiency of evidence to support premeditation and finding evidence sufficient to support premeditation); State v. Hemby, 264 Kan. 542, 551, 957 P.2d 428 (1998) (affirming aggravated criminal sodomy conviction after finding substantial evidence to support two alternative means of oral copulation; finding jury instruction that included third alternative means of anal copulation harmless when no evidence or argument was presented regarding anal copulation); State v. Kelly, 262 Kan. 755, 761-62, 942 P.2d 579 (1997) (affirming aggravated battery conviction after finding evidence could have supported a finding of guilt on any of the three alternative means upon which the jury was instructed); State v. Alford, 257 Kan. 830, 841-43, 896 P.2d 1059 (1995) (affirming aggravated kidnapping conviction after finding sufficient evidence to support alternatives of intent to facilitate flight and intent to facilitate commission of the crime of first-degree murder); Timley, 255 Kan. at 290 (affirming multiple rape convictions after finding sufficient evidence to establish guilt “either by the means of force or by the means of fear”).
Similarly, most of the alternative means cases decided by the Court of Appeals involve these circumstances. See, e.g., State v. Reed, 45 Kan. App. 2d 372, 385-86, 247 P.3d 1074 (affirming aggravated robbery conviction after finding sufficient evidence to support both means upon which jury was instructed), rev. denied 292 Kan. 968 (2011); State v. Dean, 42 Kan. App. 2d 32, 44-45, 208 P.3d 343 (2009) (concluding it was harmless error to instruct on alternative means of committing child endangerment when there was ample evidence of one means and no evidence of other means), rev. granted and remanded to dist. ct. in light of Wright, 290 Kan. at 206; State v. Smith, 36 Kan. App. 2d 606, 615-16, 142 P.3d 739 (applying Dixon, finding harmless error when jury was instructed on alternative means of committing burglary and there was sufficient evidence to support one means but no evidence to support other means), rev. denied 282 Kan. 795 (2006); State v. Thomas, 28 Kan. App. 2d 655, 661-62, 20 P.3d 82 (applying Griffin and finding jury instruction not clearly erroneous when instruction included alternative means not provided for in the statute because there was no evidence of that means presented to the jury), rev. denied 271 Kan. 1041 (2001); Johnson, 27 Kan. App. 2d at 924-26 (following Griffin/Grissom rationale and affirming kidnapping conviction when there was sufficient evidence of two alternative means of kidnapping but no evidence of third means).
2. Sufficient evidence of one means and some, hut insufficient, evidence of another
I would find that the rule enunciated in Wright—e.g., that when there is insufficient evidence of at least one alternative means, the conviction must be reversed—comes into play only when there is sufficient evidence of one means and some, but insufficient, evidence of another means. In this circumstance, there is a possibility of jury confusion, and we cannot reliably conclude the State presented sufficient evidence from which a rational trier of fact could have found each means of committing the crime beyond a reasonable doubt.
This circumstance was well demonstrated in Ice, 27 Kan. App. 2d 1. There, the defendant was convicted of rape after die jury was instructed it could convict if it found the sexual intercourse was committed without the consent of the victim because she was: (1) overcome by force or fear, or (2) physically powerless, or (3) incapable of giving consent because of mental deficiency or disease, which condition was known by or reasonably apparent to the defendant, or (4) incapable of giving valid consent because of the effect of any alcoholic liquor, which condition was known by or reasonably apparent to the defendant.
Applying Timley, the Ice panel found that although the prosecution had presented an expert witness regarding the victim’s mental capability, the expert had not established that the victim was incapable of giving consent because of her mental deficiency or disease. Instead, the expert had essentially established that the victim had difficulty comprehending the consequences of her behavior. 27 Kan. App. 2d at 5-6. Thus, the panel concluded that “[a]t least one means, that of mental deficiency, was not proven by sufficient evidence.” Ice, 27 Kan. App. 2d at 6. But the Ice panel refused to apply Griffin, instead reasoning:
“In the instant case, we have no idea whether the jury found Ice guilty of rape due to force and fear being used, or due to a lack of capacity of the victim to consent, or a combination of the two. This case differs from those where there was strong evidence supporting one theory and none on another, such as in Griffin. In a Griffin situation, one can reasonably assume the jury did not behave capriciously and convict on a theory in which there ivas no evidence, when there loas strong evidence supporting another theory.
“With so much testimony and prosecutorial effort invested in the ‘no capacity’ theory, we cannot say that there is no real possibility that the verdict here was based only on the force and fear theory. We must therefore reverse and remand for a new trial.” (Emphasis added.) 27 Kan. App. 2d at 7.
Another example of this circumstance is State v. Jones, 96 Hawaii 161, 29 P.3d 351 (2001). There, the State presented “considerable argument” and “some,” legally insufficient evidence regarding two grounds of ineffective consent in a sexual assault case; but the Hawaii Supreme Court reversed the defendant’s convictions, finding that the jury may have returned a verdict based on legally insufficient grounds. 96 Hawaii at 181-83. Citing Ice, the Hawaii court reasoned,
“We are not convinced by the reasoning of the Supreme Court in Griffin that the jury will necessarily reject a theory unsupported by legally sufficient evidence, particularly where there is some evidence adduced and considerable argument presented to the jury. However, we recognize, as did the Kansas Court of Appeals, that, where there is no real possibility that the juiy convicted based on an unsupported theory, e.g., where there is overwhelming evidence of one theory and absolutely no argument or evidence presented on another, there may be no reversible error. See Ice, 997 P.2d at 741.” Jones, 96 Hawaii at 181.
Like the Court of Appeals panel in Ice and the Hawaii Supreme Court in Jones, I would distinguish the United States Supreme Court’s holding in Griffin in this circumstance. Specifically, I would find that when there is some, but insufficient, evidence of one means, we cannot say beyond a reasonable doubt that there is no reasonable possibility that the error contributed to the verdict. In that circumstance, I would apply Wright’s insufficiency rule and reverse the conviction for insufficient evidence. But I would clarify Wright to malee clear that the insufficient evidence rule does not apply to cases in which there was no evidence of one means and thus no possibility of juiy confusion. In that circumstance, I would apply a modified harmless error approach.
3. Modified Harmless Error Approach
This approach essentially applies a modified harmless error analysis, which seems appropriate in alternative means cases. In analyzing alternative means cases, we blend concepts of sufficiency of the evidence, which is not subject to a harmless error analysis, with instructional error, which is subject to a harmless error analysis.
To this end, I would refine our suggestion in Wright that an insufficiency error “ ‘cannot be harmless because it means the State failed to meet its burden of proving the defendant guilty beyond a reasonable doubt.’ ” 290 Kan. at 205 (quoting Beier, 44 Washburn L.J. at 299). The problem with this statement is that while we generally do not apply a harmless error analysis when evidence is insufficient to support a charge, alternative means cases are not “pure” insufficiency cases because the jury also was instructed on a means for which there was sufficient evidence. Moreover, these cases also involve instructional error—i.e., the jury was instructed on a “means” that either has no factual support or has insufficient factual support.
I would find that an insufficiency error in an alternative means case can be harmless if no evidence was presented regarding one means but sufficient evidence was presented of another means. However, an insufficiency error cannot be harmless when some, but insufficient, evidence and/or argument was presented to tire juiy regarding one means, as the jury may understandably have applied the insufficient facts to the law and convicted the defendant upon an insufficient means.
4. Application of modified test to this case
Ultimately, application of a modified harmless error approach would lead me to reject Brown’s alternative means challenges in a very straightforward fashion—based on Brown’s own argument.
Brown challenges his conviction for aggravated indecent liberties with a child, on which tire jury was instructed “[tjhat the defendant fondled or touched the person of [G.V.] in a lewd manner, with the intent to arouse or satisfy the sexual desires of either [G.V.], or the defendant, or both.” (Emphasis added.) Brown concedes there was circumstantial evidence of his intent to satisfy his own sexual desires but argues there was no evidence that he intended to arouse or satisfy the sexual desires of G.V. or both he and G.V.
Brown also challenges the instruction for lewd and lascivious behavior, which required the State to prove that Brown “exposed his sex organ in the presence of a person not his spouse and who had not consented thereto, with the intent to arouse or to gratify the sexual desires of the defendant or another.” (Emphasis added.) Brown again argues that while there may be circumstantial evidence of his intent to arouse his own sexual desires, there was no evidence he intended to satisfy the sexual desires of another.
Since Brown concedes there was no evidence of either of the alleged “means” he challenges, I would simply find that even if the challenged instructional language did set out alternative means, there was no chance of jury confusion and the convictions should be affirmed. | [
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The opinion of the court was delivered by
Miller, J.:
This is an appeal by National Carriers, Inc., and Travelers Insurance Company, a workers’ compensation insurance carrier and lien intervenor, from the judgment of the District Court of Seward County, Kansas, which reduced the amount of the insurer’s subrogation lien by the percentage of fault attributed to the plaintiff s employer. The basic issue concerns the applicability of the 1982 amendment to K.S.A. 44-504 to the insurer’s subrogation rights. The injury occurred before the amendment, and recovery by the worker against the negligent third party occurred after the effective date of the amendment.
The factual and procedural background is as follows. On November 24, 1980, Anderson, an employee of National Beef Packing Company, was injured on the job when a truck of National Carriers, Inc., backed over him. Travelers Insurance Company, as National Beefs workers’ compensation carrier, made substantial payments to or on behalf of Anderson following his injury. On December 21, 1981, Anderson filed this lawsuit against National Carriers, Inc., as owner and operator of the truck which caused his injuries. On July 6, 1982, a settlement agreement in the workers’ compensation matter was entered into between Anderson and Travelers and was approved by the administrative law judge. That agreement provided in part that:
“It is understood by the claimant that the respondent, Idle Wild Foods, and insurance carrier, Travelers Insurance Co., [do] not by this settlement waive [their] statutory Workers’ Compensation subrogation lien as to any recovery made by the claimant pursuant [to] K.S.A. 44-504.”
Idle Wild Foods is the parent company of both National Beef and National Carriers.
On July 1,1982, the 1982 amendment to K.S.A. 44-504 became effective. Thus, at the time of the compromise settlement, July 6, the 1982 amendment to K.S.A. 44-504 was in effect. On September 3, 1982, Travelers filed its notice of lien and intervened in this case. On April 22, 1983, following a jury trial, judgment was entered in this case for the plaintiff. The jury attributed 29% fault to Anderson, 22% fault to National Carriers, and 49% fault to National Beef. It also found total damages in the amount of $700,000. The judgment was affirmed on appeal. Anderson v. National Carriers, Inc., 10 Kan. App. 2d 203, 695 P.2d 1293, rev. denied 237 Kan. 886 (1985). Thereafter, National Carriers paid to the district court the amount of the judgment against it, $154,000, with accrued interest. This amount was invested in an interest-bearing account pending disbursement. Travelers claimed a lien for the total amount of its workers’ compensation payments to Anderson, $96,219.39. In June 1985, the district court reduced Travelers’ subrogation claim by the percentage of fault attributed to Anderson’s employer, National Beef, (49%) and the district court also awarded one-third of the remaining subrogation lien as attorney fees for plaintiff s counsel. National Carriers and Travelers appeal.
Travelers contends that the trial court erred in reducing the subrogation lien for two reasons. It claims that the 1982 amendment to K.S.A. 44-504, now K.S.A. 1985 Supp. 44-504(d), could not be applied in this case because the accidental injury oc curred prior to the effective date of the amendment. It also contends that the compromise settlement should not be interpreted to allow reduction of the employer’s subrogation lien. Additionally, it argues that the trial court erred in allowing attorney fees to plaintiff s attorney; and finally, it argues that the district court erred in failing to award accrued interest to the employer and Travelers on the amount of the subrogation lien recovered as a result of this action.
We agree with the trial court and the Court of Appeals that the 1982 amendment, K.S.A. 1985 Supp. 44-504(d), applies in this case. We adopt the applicable portion of the opinion of the Court of Appeals which states:
“K.S.A. 1985 Supp. 44-504(a) allows an employee who is injured by a third party to sue such third party for damages and still be entitled to workers’ compensation benefits. In the event the employee recovers a judgment, the employer is subrogated ‘to the extent of the compensation and medical aid provided by the employer.’ K.S.A. 1985 Supp. 44-504(b). Prior to 1982, K.S.A. 44-504 did not provide for reduction of an employer’s subrogation lien if the employer was found to be partially at fault for the employee’s injuries, even though K.S.A. 60-258a provided for comparative fault. The Kansas Supreme Court recognized the inequities in allowing a partially negligent employer to recover full subrogation in Negley v. Massey Ferguson, Inc., 229 Kan. 465, 468-69, 625 P.2d 472 (1981). However, the Supreme Court refused to reduce the employer’s lien since ‘[t]he extent and nature of the subrogation rights of an employer under the workmen’s compensation statutes are matters for legislative determination.’ 229 Kan. at 469.
“To remedy this inequity, the Kansas Legislature amended K.S.A. 44-504 effective July 1, 1982, by adding subsection (d). This provision reads:
“ ‘(d) If the negligence of the worker’s employer or those for whom the employer is responsible, other than the injured worker, is found to have contributed to the party’s injury, the employer’s subrogation interest or credits against future payments of compensation and medical aid . . . shall be diminished by the percentage of the damage award attributed to the negligence of the employer or those for whom the employer is responsible, other than the injured worker.’ K.S.A. 1985 Supp. 44-504(d).
“Travelers contends that this provision was retroactively applied since the accident involved in this case occurred prior to the enactment of K.S.A. 1985 Supp. 44-504(d). As a general rule, a statute will only operate prospectively unless the statute clearly indicates legislative intent for it to operate retroactively. Tew v. Topeka Police & Fire Civ. Serv. Comm’n, 237 Kan. 96, 103, 697 P.2d 1279 (1985); Kopp’s Rug Co. v. Talbot, 5 Kan. App. 2d 565, 568-69, 620 P.2d 1167 (1980).
“The Kansas Supreme Court has interpreted K.S.A. 1985 Supp. 44-504(d) and has held that it only operates prospectively. McGraw v. Sanders Co. Plumbing & Heating, Inc., 233 Kan. 766, 768-69, 667 P.2d 289 (1983). Therefore, it is necessary to determine whether the district court applied the statute retroac tively in this case. Here, the injury to the employee occurred on November 24, 1980. The plaintiff-employee filed an amended petition against National Carriers on December 30, 1981. The trial leading to a judgment against National Carriers began on April 19, 1983, and the verdict was returned on April 22, 1983.
“The appellate courts of Kansas have dealt with the problem of retroactive application of amendments to the workers’ compensation statutes several times. In Johnson v. Warren, 192 Kan. 310, 387 P.2d 213 (1963), the Supreme Court dealt with a 1961 amendment which allowed an increased amount of medical benefits to be paid to injured workers. The court held that the increase in benefits could not be retroactively applied to injuries incurred prior to the effective date of the amendment. The court stated:
“ ‘The liability of an employer to an injured employee is a liability arising out of a contract between them] and the terms of the statute are embodied in the contract [citation omitted]; the injured employee must therefore recover upon the contract with his employer, and the cause of action accrues on the date of the injury. [Citations omitted.] Where parties are under the compensation act their substantive lights are determined by the law in effect on the date of the workmen’s injury. [Citation omitted.]’ 192 Kan. at 313-14.
“While this language would appear to apply to all rights between the employer and employee, including the employer’s right to subrogation, it should be noted that in Johnson v. Warren, 192 Kan. 310, and all other similar workers’ compensation cases, the courts dealt with legislative amendments which directly affected the employer’s liability for benefits to the injured employee. For example, in Lyon v. Wilson, 201 Kan. 768, 443 P.2d 314 (1968), the issue was the application of 1967 amendments which altered the conditions for which compensation would be paid to an injured employee in heart cases. The Supreme Court held that the amendments, which affected the amount of compensation, were not applicable to injuries which occurred prior to the effective date of the statute. Similarly, in Horton v. Fleming Co., 3 Kan. App. 2d 121, 590 P.2d 594, rev. denied 225 Kan. 844 (1979), this court refused to retroactively apply tire repealed setoff provision which would affect the employer’s liability to the employee for an injury which occurred prior to the repeal. These cases are distinguishable from the case at bar for the reason that in these cases the courts’ emphasis was to avoid the retroactive application of amendments which would affect the amount of compensation due an injured workman.
“This case does not involve the amount of compensation due an injured workman under the Workmen’s Compensation Act. This case involves the employer’s right of subrogation to the extent of the compensation and medical aid provided by the employer to the employee and the employer’s lien on a judgment obtained by the employee against a third-party tortfeasor. The employer’s right to subrogation and a lien on the judgment obtained by the employee is provided by K.S.A. 1985 Supp. 44-504(b) which commences with the words, ‘[i]n the event of recovery.’ The right to subrogation therefore only arises in cases where the injured workman obtains a judgment against a third-party tortfeasor and there is no right to subrogation unless and until the injured workman has obtained a judgment against the third-party tortfeasor.
“ ‘Rights are vested when the right to enjoyment, present or prospective, has become the property of some particular person or persons as a present interest. On the other hand, a mere expectancy of future benefit, or a contingent interest in property founded on anticipated continuance of existing laws, does not constitute a vested right.’ Board of Greenwood County Comm’rs v. Nadel, 228 Kan. 469, 473-74, 618 P.2d 778 (1980).
In this case, damages were awarded on April 22,1983, over nine months after the effective date of amendment (d) to 44-504. Since the statutory subrogation right does not exist until there is a recovery, the amended statute was not retroactively applied in this case. This finding is implicitly supported by the Kansas Supreme Court’s decision in McGraw v. Sanders Co. Plumbing & Heating, Inc., 233 Kan. 766. In McGraw, the court based its analysis on the fact that ‘at the time of trial’ the existing workers’ compensation statutes did not reduce an employer’s subrogation lien. 233 Kan. at 768. The court did not mention the date of the accident when discussing the retroactive application of the statute. For the foregoing reasons, the application of K.S.A. 1985 Supp. 44-504(d) to this case would not be retroactive.
“Travelers also contends that the district court erred by interpreting the compromise settlement entered into by the parties. The district court found that the parties intended to allow Travelers its subrogation claim, less the percentage of fault attributed to the employer. In the compromise settlement, the parties specifically referred to K.S.Á. 44-504. The settlement read in part:
‘It is understood by the claimant that the respondent, Idle Wild Foods, and insurance carrier, Travelers Insurance Co., does not by this settlement waive its statutory Workers’ Compensation subrogation lien as to any recovery made by the claimant pursuant ti [sic] K.S.A. 44-504.’
This compromise settlement was agreed to by the parties on July 6, 1982, five days after the effective date of K.S.A. 1985 Supp. 44-504(d).
“The scope of appellate review is broader when interpretation of contracts is involved. Furthermore, since the issues on appeal were submitted to the trial court on an agreed stipulation of facts and documentary evidence, the appellate court has the same opportunity to consider and evaluate the evidence as the trial court. Cosgrove v. Young, 230 Kan. 705, 716, 642 P.2d 75 (1982).
“ ‘It is a general rule that contracting parties are presumed to contract with reference to the existing law; indeed, they are presumed to have in mind all the existing laws relating to the contract, or to the subject matter thereof. Thus, it is commonly said that all existing applicable or relevant and valid statutes ... at the time a contract is made become a part of it and must be read into it as if an express provision to that effect were inserted therein, except where the contract discloses a contrary intention. Following Steele v. Latimer, 214 Kan. 329, 336, 521 P.2d 304 (1974).’ Cairo Cooperative Exchange v. First Nat’l Bank of Cunningham, 228 Kan. 613, Syl. ¶ 2, 620 P.2d 805 (1980).
“In reading the settlement agreement as a whole, it is clear that Travelers did not intend to waive its right to subrogation. At that time, the existing law provided that the statutory subrogation lien was diminished by the percentage of fault attributed to the employer. This interpretation does not result in a waiver of Travelers’ subrogation lien; it merely interprets the ‘statutory subrogation lien’ retained by the employer and its insurance carrier. The settlement agreement does not disclose any intention by the parties indicating they are not contracting with reference to existing law. The trial court therefore correctly found that the agreement was intended to allow the appellant a subrogation lien subject to reduction based on the fault attributed to the employer.” 11 Kan. App. 2d at 192-96.
Anderson, the claimant, and Travelers, the insurance carrier, were bound by the law as it existed at the time the compromise settlement agreement was effective. On July 6, 1982, the amendment was effective and was the then-existing law.
The next issue is whether the trial court erred in awarding fees to Anderson’s attorney out of Travelers’ subrogation proceeds. The attorney filed the action, tried it to a jury in district court, and successfully defended it on appeal and petition for review. Such fees are authorized, in the discretion of the trial court, by statute. K.S.A. 1985 Supp. 44-504(c). We agree with and adopt the opinion of the Court of Appeals on this point. That portion of the opinion reads:
“K.S.A. 1985 Supp. 44-504(c) gives the trial court the discretion to fix attorney fees to be paid proportionately by the employer and the employee when either brings an action against a third-party tortfeasor. Travelers contends that the trial court abused its discretion in awarding attorney fees amounting to one-third of the employer’s subrogation lien. Travelers bases its contentions on the unique relationship between the employer, National Beef, and the third-party tortfeasor, National Carriers. Both companies are wholly owned subsidiaries of Idle Wild Foods. Travelers contends that it should not have to pay any attorney fees since tire employer did not benefit from the bringing of the third-party cause of action. Because of insurance deductibles, Travelers argues that Idle Wild Foods will be paying itself and, therefore, it received no benefit from the bringing of the action.
“However, National Beef was the plaintiffs employer. Therefore, it is only relevant whether National Beef benefited from the bringing of the action. In interpreting the attorney fee provisions of the workers’ compensation statutes, the Kansas Supreme Court expressed concern about interpreting the statute to have a ‘chilling effect upon the prosecution by the employee of his cause of action.’ Nordstrom v. City of Topeka, 228 Kan. 336, 341, 613 P.2d 1371 (1980). Since it is clear that the employer recovered at least some of the benefits it paid plaintiff for workers’ compensation, it is within the purpose of the statute to allow the plaintiff to recover some attorney fees. To interpret it otherwise would have a definite chilling effect on an employee’s decision to bring an action.
“Abuse of discretion is defined as a decision by the trial court where no reasonable person would take the view adopted by the trial court. See Wilson v. American Fidelity Ins. Co., 229 Kan. 416, 422, 625 P.2d 1117 (1981); Cheek v. Hird, 9 Kan. App. 2d 248, 250, 675 P.2d 935 (1984). The district court’s action is not within the realm of abuse of discretion. In this case, the plaintiff recovered a judgment which resulted in a recovery of part of the benefits paid by the employer. Furthermore, the case went to a jury trial for resolution. Allowance of a fee of one-third of the subrogation recovery is not an abuse of discretion.” 11 Kan. App. 2d at 196-97.
On the allocation of interest issue, the Court of Appeals held that the employer, (or in its stead, the insurance carrier) is entitled to recover interest on the amount of its subrogation lien from the date of the judgment and remanded the case to the trial court for distribution of interest accordingly. That portion of the Court of Appeals decision is not challenged in this court, and we find it well reasoned, fair, and equitable, and a just determination of that issue.
The judgment of the Court of Appeals is affirmed. The judgment of the district court reducing the subrogation lien by the percentage of the employer’s fault and awarding attorney fees is affirmed. The district court’s award of all interest on the judgment to the plaintiff is reversed and the case is remanded to the trial court for distribution of interest according to the views expressed in this opinion and that of the Court of Appeals. | [
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The opinion of the court was delivered by
Miller, J.:
Stephen T. Bishop was convicted by jury trial in the district court of Bourbon County of two counts of aggravated assault, K.S.A. 21-3410; and one count each of aggravated burglary, K.S.A. 21-3716; rape, K.S.A. 1986 Supp. 21-3502; and aggravated kidnapping, K.S.A. 21-3421. He was sentenced to serve concurrent terms of three to five years for each count of aggravated assault, five to ten years for aggravated burglary, six to twenty years for rape, and life imprisonment for aggravated kidnapping. Since a firearm was used, sentence was imposed pursuant to K.S.A. 21-4618. The seven points raised on appeal challenge the sufficiency of the information to charge aggravated assault; multiplicity of the rape and aggravated assault charges; failure to instruct the jury on the lesser included offense of attempted rape; the sufficiency of the evidence to support the aggravated kidnapping conviction; the legality of the seizure of a shotgun which was received in evidence; and the propriety of the admission of certain expert testimony and testimony by the victim.
We turn to the pertinent facts of the incident giving rise to these charges. Additional facts will be discussed later as necessary to the issues raised. Gary Johnson and Ms. D lived together in a mobile home in Fort Scott, Kansas, with two minor children. Juanita Puckett is the children’s mother; Johnson is the father of the younger child.
Johnson and Ms. D testified that at about 5 o’clock a.m. on March 2, 1985, they were awakened by two men, armed with shotguns, who entered their bedroom and turned on the light. The men told Johnson and Ms. D not to move or they would be shot. One of the men disconnected the telephone and a CB radio. The men instructed the victims to turn over on their stomachs, and then bound their arms and legs with duct tape. Johnson and Ms. D had never seen either man before.
After the victims were bound, a woman the victims recognized as Juanita Puckett came into the room and struck Ms. D in the head, accusing her of trying to be a mother to Puckett’s children. Next, one of the men, later identified as defendant Bishop, stated that they should separate the victims. He instructed the other man, later identified as Buckley Brice, to take Ms. D into the bathroom. She was taken to the bathroom, clad only in her underpants, with her knees, ankles, and wrists bound with tape.
While she was in the bathroom, each of the men came in once in a while and fondled her breasts. At one point, Bishop came in and stayed. He fondled her breasts, made her bend over, and unsuccessfully attempted sexual intercourse. She felt the shotgun against the back of her leg. When Brice came to the door, Bishop zipped up his pants before answering the door. Later, Bishop again attempted to penetrate her and succeeded, penetrating her vagina “a little bit,” but he had trouble maintaining the penetration. He ultimately achieved an orgasm outside of the vagina, and ejaculated “all over her.” During this time, Puckett banged on the door, shouting, “How does it feel to be raped, Bitch?” Ultimately, Bishop, Brice, and Puckett left. Ms. D freed herself and then freed Johnson. The tires on their van had been slashed and their telephone lines severed. Johnson rewired the CB and called for help. When the police arrived, one officer took Ms. D to the hospital, where a rape kit was administered. Other officers remained at the mobile home and interviewed Johnson and collected evidence. The children were missing.
A warrant was issued for Puckett’s arrest. On March 15, 1985, the police were able to trace a phone call made by Puckett to Johnson, to the residence of Janis Monett in Fontana, California. The Bourbon County sheriff s office notified the Fontana police that they had an arrest warrant for Puckett, and that she was at Monett’s address in Fontana. The sheriff s office also related the circumstances of the crime and the involvement of two white males who were as yet unidentified.
On March 15, Puckett was arrested at Monett’s apartment in Fontana and was later extradited. Bishop was also arrested at the same time, but was released by the Fontana police since no warrant had been issued for his arrest. On April 4, Ms. D identified Bishop as the man who raped her. On May 16, an interview with Puckett confirmed Bishop’s involvement, and a warrant was issued for his arrest. Bishop was later arrested in the State of Washington, and Brice was arrested in Orange, California. All three were charged separately in Bourbon County. Puckett pled guilty to aggravated burglary, and Brice was tried on related charges.
Puckett, Bishop, and Brice all testified at Bishop’s trial. Their accounts differ one from the other, and they differ materially from the victim’s accounts. Puckett testified that she asked Brice and Bishop to come with her from California to Kansas to get her children. This was not in dispute. Prior to leaving, they purchased two shotguns; there was considerable conflict regarding who participated in the purchase. Bishop testified that they took one gun to Kansas, but no one took it into the house. He testified that he saw Brice and Puckett enter the home, and that he followed, but remained in the kitchen. According to Bishop, when Puckett emerged with two bags of the children’s clothing, he took the bags to the car at her request. Puckett and Brice then emerged with the children, and they all left. Bishop denied ever seeing Johnson or Ms. D. Brice testified that only Bishop and Puckett entered the residence; he did not. To his knowledge, neither Bishop nor Puckett had any guns with them when they went in. He did not see any guns at all that night. Puckett testified that she and Bishop entered the residence, and Brice followed later. She did not remember any guns being taken into the house. She wrapped each child in a blanket and took them to the car, then packed their clothing and toys in trash bags and carried them out to the car. She did not know what went on in the back of the house.
Janis Monett recalled Bishop giving her a different account of the events. She testified that when Puckett, Brice, Bishop, and the children returned from Kansas, Bishop was “all excited” and related to her how they went in the bedroom, held a gun on the victims, and threatened to blow their heads off. Monett also said that Bishop told her that they tied up Johnson and his girlfriend and put tape over their eyes and their mouths so that they couldn’t make any noises, and that he had separated them by putting the girlfriend in the bathroom.
Apparently the jury accepted the testimony of the victims over that of Puckett, Bishop, and Brice. It convicted Bishop on all counts.
As his first issue, defendant contends that the district court lacked jurisdiction to convict him of aggravated assault because the information was insufficient to charge that offense. K.S.A. 21-3408 defines assault. It reads:
“An assault is an intentional threat or attempt to do bodily harm to another coupled with apparent ability and resulting in immediate apprehension of bodily harm. No bodily contact is necessary.”
Aggravated assault is defined by K.S.A. 21-3410. That statute reads as follows:
“Aggravated assault is:
“(a) Unlawfully assaulting or striking at another with a deadly weapon; or
“(b) Committing assault by threatening or menacing another while disguised in any manner designed to conceal identity; or
“(c) Willfully and intentionally assaulting another with intent to commit any felony.”
The two paragraphs of the information charging aggravated assault of Johnson and Ms. D are drawn under 21-3410(a). The charges are substantially the same. They read:
“That . . . Stephen Thomas Bishop . . . did then and there unlawfully, feloniously, willfully, and intentionally threaten or attempt to do bodily harm to another, to-wit: Gary L. Johnson [Ms. D] with a deadly weapon, to-wit: a Mossberg 12 gauge pump shotgun, which resulted in the immediate apprehension of bodily harm to the person of said Gary L. Johnson [Ms. D], in violation of K.S.A. 21-3410, a Class “D” Felony, Pen. Sec. K.S.A. 21-4501 and 21-4503.”
The words “coupled with apparent ability,” included within the definition of assault contained in K.S.A. 21-3408, were not specifically included within the two separate counts of the information charging the aggravated assault. Appellant claims that the omission of this phrase renders the information fatally defective because it amounts to the omission of an essential element of aggravated assault. Appellant relies upon our opinion in State v. Slansky, 239 Kan. 450, 720 P.2d 1054 (1986). In Slansky, an aggravated assault charge was drawn under K.S.A. 21-3410(c) (willfully and intentionally assaulting another with intent to commit any felony). The State conceded that its information, which attempted to charge an aggravated assault without using the words “coupled with apparent ability,” was fatally defective. There was no charge in Slansky, however, that the assault was committed by intentionally threatening or attempting to do bodily harm to another with a deadly weapon, which resulted in the immediate apprehension of bodily harm to that person.
We agree that the information is the jurisdictional instrument on which the accused stands trial, and that an information must allege each essential element of the offense charged. See State v. Bird, 238 Kan. 160, 166, 708 P.2d 946 (1985); State v. Howell & Taylor, 226 Kan. 511, 513-14, 601 P.2d 1141 (1979). Further, a conviction based on an information which does not sufficiently charge the offense is void. State v. Bird, 238 Kan. at 166.
We have frequently held that an information which charges an offense in the language of the statute is sufficient. State v. Bird, 240 Kan. 288, 294, 729 P.2d 1136 (1986); State v. Barncord, 240 Kan. 35, 726 P.2d 1322 (1986); State v. Bird, 238 Kan. 160, Syl. ¶ 3, 708 P.2d 946 (1985). We have also held, however, that the exact statutory words need not be used in the information if the meaning is clear. See State v. Garner, 237 Kan. 227, 237, 699 P.2d 468 (1985), and cases there cited. Here, since the exact statutory language is not contained within the information, we must determine whether the language contained within the information reasonably charges the element of apparent ability. Upon a careful reading of the information, we believe that it does. The information charges that the defendant intentionally threatened or attempted to do bodily harm to the victims with a deadly weapon, which resulted in the immediate apprehension of bodily harm by the victims. Since the charge is that the defendant’s conduct, with a shotgun, placed the victims in the immediate apprehension of bodily harm, we hold that apparent ability was obvious and aggravated assault was sufficiently charged.
Defendant next claims that the aggravated assault charge pertaining to Ms. D is multiplicitous to the charges that he raped her and that she was the subject of aggravated kidnapping. We discussed the concept of multiplicity at length in State v. Games, 229 Kan. 368, 372-73, 624 P.2d 448 (1981). We said:
“Multiplicity in criminal pleading is the charging of a single offense in several counts. . . . Multiplicity exists when the State attempts to use a single wrongful act as the basis for multiple charges. The general principles for determining whether charges are multiplicitous are these:
“(1) A single offense may not be divided into separate parts; generally, a single wrongful act may not furnish the basis for more than one criminal prosecution.
“(2) If each offense charged requires proof of a fact not required in proving the other, the offenses do not merge.
“(3) Where offenses are committed separately and severally, at different times and at different places, they cannot be said to arise out of a single wrongful act.”
In the case at bar, the kidnapping charge is based on a taking or confinement of Ms. D by force or threat, done with intent to hold her to facilitate flight or to inflict bodily injury, and that bodily harm was inflicted upon her. The rape charge is based on nonconsensual sexual intercourse, committed under circumstances when Ms. D was overcome by force or fear. Rishop reasons that his possession and use of a gun was significant in establishing the force element in both the rape and the kidnapping charges, and cannot also provide the basis of the aggravated assault.
We held a charge of aggravated assault to be multiplicitous with kidnapping in State v. Racey, 225 Kan. 404, 408, 590 P.2d 1064 (1979), and rape in State v. Lassley, 218 Kan. 758, 761-62, 545 P.2d 383 (1976). In both cases, however, the court found a single, continuous act. In Lassley, the victim was accosted in the living room of a home where she was babysitting. Lassley ordered her outside, grabbed her by the hair, pushed her down an alley, held a knife to her throat, took her to some nearby shrubs, and raped her. We held that the defendant’s conduct constituted a single continuous transaction, a situation where there was a continuous act of force on the part of the defendant. We distinguished that case from State v. James, 216 Kan. 235, 531 P.2d 70 (1975), where there was a break in the action — an assault at one place and a subsequent rape at another. The facts in Racey are somewhat similar to those in Lassley. Racey continually threatened the victim with a gun throughout the entire sequence of events. There was one continuing unbroken act of force. Thus, we concluded that Racey could not be convicted of both aggravated assault and kidnapping.
The facts in the case at hand are distinguishable from Racey and Lassley. Here, as in James, there was a significant break in the action. The aggravated assault was completed when the defendant and Brice entered the bedroom, pointed shotguns at the victims, and threatened to blow their heads off if they didn’t do as they were told. The victims were then bound with tape. Ms. D was taken, bound and by force, into the bathroom. One at a time, Brice and Bishop would come into the bathroom and fondle her. Still later, she was raped by Bishop, her resistance overcome by force or fear. The offenses of aggravated assault, taking and confining, and the subsequent rape were separate and distinct. The offenses occurred at separate times and in separate places. They were not a part of a single, continuous act, as in Lassley or Racey. There was no use or threatened use of the guns during the kidnapping or the rape. Since the offenses were not part of a single continuous act, we hold that the aggravated assault is not multiplicitous with the kidnapping or the rape.
Bishop contends that the trial court erred by refusing his request for an instruction on the lesser included offense of attempted rape. The victim testified that the defendant penetrated her vagina “a little bit.” Mere contact of the sexual organs is not sufficient to establish rape. State v. Grubb, 55 Kan. 678, 41 Pac. 951 (1895). Proof of actual penetration is necessary. However, even the slightest penetration is sufficient. State v. Korbel, 231 Kan. 657, 659, 647 P.2d 1301 (1982); State v. Ragland, 173 Kan. 265, 246 P.2d 276 (1952). The victim’s testimony was sufficient to establish penetration. There was no evidence to show that rape was attempted but not accomplished. The defense was that the defendant was not in any area of the house but the kitchen, and that he did not have any contact, let alone intercourse, with Ms. D.
The trial court has an affirmative duty to instruct the jury on all lesser included offenses established by the evidence. See K.S.A. 1986 Supp. 21-3107(3). This duty arises, however, only when there is evidence under which the defendant may reasonably be convicted of the lesser offense. State v. Everson, 229 Kan. 540, 542, 626 P.2d 1189 (1981). There was no evidence here upon which the defendant could reasonably have been convicted of attempted rape, and the trial court did not err in refusing defendant’s request for that instruction.
Bishop contends that the evidence does not support the conviction of aggravated kidnapping because the movement was merely incidental to the crime of rape, to the bodily harm, and to the defendant’s flight from the trailer. Defendant relies upon the test set forth in State v. Buggs, 219 Kan. 203, 216, 547 P.2d 720 (1976), where we said:
“[I]f a taking or confinement is alleged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement or confinement:
“(a) Must not be slight, inconsequential and merely incidental to the other crime;
“(b) Must not be of the kind inherent in the nature of the other crime; and “(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.
"For example: . . . The removal of a rape victim from room to room within a dwelling solely for the convenience and comfort of the rapist is not a kidnapping; the removal from a public place to a place of seclusion is.”
In State v. Bourne, 233 Kan. 166, 660 P.2d 565 (1983), two small daughters of the victimized family were first brought to the master bedroom where their parents were tied up. The girls were then taken, separately, to an adjoining bedroom where one was raped and the other was later manually assaulted. Defendant contended this movement did not constitute kidnapping under Buggs. We disagreed, saying:
“Moving each little girl into another room and away from her parents, her brother, and defendant’s accomplice, so that none of them could see or interfere with defendant’s acts, was sufficient movement to constitute kidnapping.” 233 Kan. at 168.
Similarly, in State v. Chears, 231 Kan. 161, 643 P.2d 154 (1982), we rejected the defendant’s Buggs argument. The three victims were first made to lie on the living room floor. Later, one of the armed men removed the adult female victim from the living room to a bedroom where he attempted intercourse and then forced the victim to commit sodomy. We found that the removal of the victim from the view of all the other occupants, insuring that there would be only one witness to the sodomy, and preventing others from interfering with and witnessing the crime, was sufficient to constitute kidnapping.
In the case at bar, the victim was initially bound with tape in the presence of her boyfriend. She was clad only in underpants. Present in the home, in addition to the victim and her boyfriend, were two small children and the three intruders. The victim was moved to a bathroom where the door was closed. Both Bishop and Brice entered that room, separately, to fondle the victim, and Bishop took precautions to conceal his act from the others. The removal of the victim to the bathroom was certainly not for the comfort and convenience of the rapist, nor was that movement merely incidental to the crime of rape. The removal and confinement of the victim hid her from the eyes of all others present, except the defendant, during the time of the rape. The separation of the victims also facilitated the escape of the intruders. We hold that the evidence was sufficient to support the conviction of aggravated kidnapping.
Bishop next contends that a shotgun, received in evidence, was illegally seized and held by California police officers in violation of his Fourth Amendment right under the United States Constitution, and Section 15 of the Bill of Rights of the Kansas Constitution, and should have been suppressed. Both constitutional provisions prohibit unreasonable searches and seizures. The wording and the scope are identical for all practical purposes. If conduct is prohibited by the one, it is prohibited by the other. See State v. Fortune, 236 Kan. 248, Syl. ¶ 1, 689 P.2d 1196 (1984); State v. Deskins, 234 Kan. 529, 531, 673 P.2d 1174 (1983); State v. Wood, 190 Kan. 778, 788, 378 P.2d 536 (1963).
The factual background of the seizure is as follows. A warrant was issued for the arrest of Juanita Puckett, and a detective of the Fontana, California, police department was present at the time of her arrest at the apartment of Janis Monett in Fontana. The detective was informed that a Kansas warrant had been issued for Puckett’s arrest and that two unknown males, believed to be armed and dangerous, were also involved in the underlying crime. Puckett and Bishop were among the occupants of the residence when the police arrived. Both Bishop and Puckett were arrested. Bishop was released later that day, since there was then no outstanding warrant for him. Janis Monett, the person in whose apartment Bishop and Puckett were arrested, returned home while the officers were still there. She informed the police that there was a gun in a duffel bag in the kitchen. The detective went to the bag, stood over it, and looked in. The bag was open at the top. The detective saw a pistol grip of a shotgun when he looked down into the bag. Monett asked the officer to remove the property belonging to Bishop and Puckett from her apartment. He did so. The property was taken to police headquarters and inventoried. Later that same day, the detective learned that guns were used in the crime under investigation, and the weapon was therefore retained by the Fontana police. It was later delivered to Kansas officers, and was received in evidence at trial.
Bishop testified at the suppression hearing that the duffel bag was closed and locked with a master lock, and that the bag contained only his property and that of his son. He was not asked specifically if the shotgun was his. At trial, however, he testified that the gun did not belong to him and that he was not present when it was purchased, but Juanita Puckett had brought it home from the sporting goods store and had shown it to him. It was still in a box with the barrel unattached. He testified the gun belonged to Juanita Puckett.
At the close of the suppression hearing, the trial court denied the motion to suppress, ruling that the officers were lawfully present pursuant to an arrest warrant for Puckett; they appropriately secured the premises by moving to the location of the weapon; the bag was open and the gun was in plain view; Bishop was removed from the apartment for police business pursuant to an ongoing investigation; the department had a policy to remove the property of a person who is removed from an apartment of which they are not a legal tenant if the legal tenant requests such removal; and the gun was seized pursuant to that policy and retained after receipt of additional information regarding the possible involvement of shotguns in the crime under investigation.
The trial court, on disputed evidence, found that the duffel bag was open and the gun was in plain view. That finding of fact is supported by the evidence. The gun was not secreted in a particular room or area occupied by Bishop; it was in plain view in the kitchen of the apartment. The seizure of the weapon was undertaken at the request of Monett, the tenant in the apartment. The item was not seized as a result of a search, but was seized at the request of the rightful tenant of the apartment.
The Constitution prohibits only unreasonable searches and seizures. Harris v. United States, 331 U.S. 145, 150, 91 L. Ed. 1399, 67 S. Ct. 1098 (1947). One moving to suppress evidence has the burden of proving not only that the search was illegal, but also that he or she had a legitimate expectation of privacy in the place from which the property was seized. Rawlings v. Kentucky, 448 U.S. 98, 104, 65 L. Ed. 2d 633, 100 S. Ct. 2556 (1980). Ownership of the property is one of the factors to be considered in determining whether an individual’s Fourth Amendment rights have been violated, but an illegal search violates only the rights of those who have a legitimate expectation of privacy in the invaded place. Rakas v. Illinois, 439 U.S. 128, 143, 58 L. Ed. 2d 387, 99 S. Ct. 421 (1978), quoted in United States v. Salvucci, 448 U.S. 83, 91-92, 65 L. Ed. 2d 619, 100 S. Ct. 2547 (1980). Also, one whose right of privacy of person or premises has not been invaded by the seizure of property has no right to object to that property being used as evidence. Wong Sun v. United States, 371 U.S. 471, 492, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963).
Monett told the detective where the shotgun was located, and she asked him to take it out of her apartment. Did Bishop have a reasonable expectation of privacy in the duffel bag? Under the circumstances, we think not. The bag was located in the kitchen of the apartment, obviously a common area open to all who were in the apartment. The duffel bag was open, and thus the shotgun was in full view of persons in the apartment. The weapon did not belong to Bishop; Juanita Puckett had purchased it, had brought it home, and had full ownership of it. Bishop had no ownership interest in it. Puckett was lawfully arrested and taken into custody on an outstanding felony warrant. Her property, including the shotgun, was taken from the apartment by the officers at the request of the tenant. Under these facts, we hold that Bishop had no standing to challenge the seizure of the shotgun and no valid objection to its receipt in evidence. The inventory of the weapon and the ammunition it contained, and the retention of the gun by the Fontana police, did not violate any of Bishop’s constitutional rights. The trial court did not err in admitting the shotgun into evidence.
Next, defendant contends that prejudicial error was committed when the examining physician testified that in his opinion the victim had been sexually assaulted. There was no objection to this testimony at trial. It is a familiar rule, codified in K.S.A. 60-404, that a judgment may not be reversed by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of the objection. Appellant relies on State v. Puckett, 230 Kan. 596, 640 P.2d 1198 (1982), in urging us to consider the issue even though no objection was made at trial. Puckett, however, was concerned with error in jury instructions, not the erroneous admission of evidence. Further, the error in Puckett was considered to be so extreme as to present a high likelihood that defendant’s constitutional right to a fair trial was denied. 230 Kan. at 597-98.
In State v. Bressman, 236 Kan. 296, 303, 689 P.2d 901 (1984), we held that the trial court committed prejudicial error in permitting an examining physician to testify that in her opinion the victim had been raped. In Bressman, however, there was a specific trial objection to the testimony of the witness. Additionally, there was abundant evidence here, aside from the testimony of the examining physician, to support the jury’s verdict that Ms. D was raped and that she was raped by the defendant. The expert did not testify, as in State v. Lash, 237 Kan. 384, 699 P.2d 49 (1985), that the victim had been sexually molested by the defendant, or, as in State v. Jackson, 239 Kan. 463, 721 P.2d 232 (1986), that the victim was telling the truth and had been sexually abused by the defendant. The inquiries in Lash and Jackson go one step beyond the present issue, in that they specifically sought to prove that the defendant performed the alleged acts upon the victim. Here, in light of the specific testimony by the victim and by Gary Johnson, as well as the testimony disclosing the factual findings of the examining physician, we hold that the admission of this evidence, while error, would not, if excluded, have resulted in a different verdict. We see no reason to depart from the rule laid down in K.S.A. 60-404.
Finally, the defendant contends that the trial court committed prejudicial error by permitting the victim to testify that she received counseling as a result of what happened to her on March 2, 1985. It has long been recognized that rape is a crime which often results in psychological as well as physical injury. Our approval of evidence of the rape trauma syndrome is illustrative. State v. McQuillen, 236 Kan. 161, 689 P.2d 822 (1984); State v. Marks, 231 Kan. 645, 647 P.2d 1292 (1982). With this in mind, allowing the rape victim to testify that she sought and received counseling is not unlike allowing the assault and battery victim to testify that he or she sought and received medical attention for physical injuries sustained. The victim was asked specifically whether she had sought counseling as a result of what happened to her on March 2. She responded that she had. As with other criminal offenses, rape may be proved by circumstantial evidence. The victim’s testimony that she received counseling as a result of what happened to her is merely circumstantial evidence that she was raped. We have reviewed the authorities cited by the defendant, but find they are distinguishable. Under the circumstances here disclosed, we conclude that the trial court did not err in admitting this evidence.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Rosen, J.:
Deon Andrew Ross pled no contest to felony murder and kidnapping. He was sentenced to a hard 20 life sentence for the felony-murder conviction and a consecutive 61-month prison sentence for the kidnapping conviction. He raises several sentencing issues: (1) The district court erred when it imposed lifetime postrelease supervision; (2) the district court erred in ordering him to register under the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq., pursuant to K.S.A. 22-4902(a)(4)(A) (anyone convicted of kidnapping and the victim was less than 18 years of age will be deemed an offender under KORA); (3) the district court erred in ordering him to serve the aggravated sentence in the applicable grid block for his kidnapping conviction; and (4) the district court erred in ordering his sentences to run consecutive to one another.
Based on the analysis below, we conclude that the district court did err in imposing lifetime postrelease supervision. Furthermore, because nothing in the record suggests that Ross’ victim was under 18 years of age, the district court erred in ordering registration pursuant to K.S.A. 22-4902(a)(4)(A). We conclude, however, that because Ross’ 61-month prison sentence for his kidnapping conviction fell within the applicable grid block, the sentence is considered a presumptive sentence; thus, we lack jurisdiction to review the propriety of the 61-month sentence. Finally, we conclude that an appellate court has jurisdiction to review whether a district court abused its discretion in ordering an on-grid sentence to run consecutive to an off-grid sentence. Based on the facts of this case, we ultimately conclude that the district court did not abuse its discretion in ordering Ross’ sentences to run consecutively rather than concurrently.
Factual Background
Pursuant to a plea agreement, Ross pled no contest to felony murder and kidnapping. The State moved to dismiss one count of rape and informed the district court that Shawnee County authorities were satisfied with the plea and would not prosecute any sex- offense charges related to this case. The district court accepted the plea and found Ross guilty of felony murder and kidnapping.
The district court imposed a life sentence for the felony-murder conviction and a 61-month prison sentence for the kidnapping conviction. The 61-month prison sentence was the aggravated sentence in the applicable grid block for the crime. Relying on the factual basis presented by the State before Ross entered his plea of no contest, tire court ordered that the sentence for kidnapping run consecutive to Ross’ life sentence. Based on Ross’ kidnapping conviction, the district court imposed 36 months’ postrelease supervision and informed Ross that he would be required to register under KORA.
The district court’s journal entry of judgment reflects the sentence imposed at sentencing. The journal entry shows felony murder as the primary offense, with a “Life—Minimum 20 yrs.” sentence imposed for the off-grid conviction and a 61-month sentence for the additional crime of kidnapping. Just as the district court stated at sentencing, the journal entry includes a 36-month term of postrelease supervision for the kidnapping charge.
Several months after sentencing, the Kansas Department of Corrections sent a letter to the court, the prosecutor, and defense counsel stating that the Sentence Computation Unit believed lifetime postrelease supervision was appropriate because Ross was convicted of an off-grid crime. The State prepared a nunc pro tunc order, which the court signed, changing the period of postrelease supervision from 36 months to lifetime.
Postrelease Supervision
Ross argues that the district court lacked jurisdiction to impose lifetime postrelease supervision. Accordingly, he contends that we should vacate his sentence and remand with directions that the district court reinstate the 36-month postrelease supervision term that it originally imposed at sentencing.
“Courts are permitted to correct illegal sentences at any time. [Citations omitted.] Whether a sentence is illegal is an issue of statutory interpretation and subject to unlimited review as a ques tion of law. [Citation omitted.]” State v. Cash, 293 Kan. 326, 330, 263 P.3d 786 (2011).
Analysis
Ross was convicted of felony murder, an off-grid felony; therefore, under K.S.A. 2008 Supp. 22-3717(b)(2), he “shall be eligible for parole after serving 20 years of confinement without deduction of any good time credits.” Ross’ conviction for kidnapping, standing alone, would include a mandatory 36-month period of postrelease supervision. See K.S.A. 2008 Supp. 22-3717(d)(l)(A). We must determine whether the district court could impose a 36-month term of postrelease supervision under these circumstances. This issue turns on whether the phrase “postrelease supervision” in K.S.A. 21-4720(b) refers only to mandatory postrelease supervision imposed for convictions of on-grid crimes or whether the term refers more broadly to the supervision that follows any term of imprisonment, be it parole or postrelease supervision.
In State v. Torres, No. 99,308, 2009 WL 862166 (Kan. 2009) (unpublished opinion), we reviewed the sentences imposed for felony murder, criminal discharge of a firearm at an occupied building, and aggravated assault. Like Ross, defendant Oscar Torres had both off-grid and on-grid convictions. .Considering whether the postrelease supervision term of 36 months imposed by the district court was valid, this court stated:
“[I]mposing a 36-month postrelease supervision period was also contrary to K.S .A. 21-4720(b)(2), which provides: ‘If sentences for off-grid and on-grid convictions are ordered to run consecutively, the offender shall not begin to serve the on-grid sentence until paroled from the off-grid sentence, and the postrelease supervision term will be based on the off-grid crime.’ (Emphasis added.) The statute further states that the postrelease periods ‘will reflect only the longest... term assigned to any’ of the consecutive sentences and ‘will not be aggregated.’ K.S.A. 21-4720(b)(4). In Kansas, off-grid crimes are not associated with periods of post-release supervision but instead are followed by life parole. See K.S.A. 22-3717(b)(2). K.S.A. 21-4720 makes it clear that in cases (as here) where a defendant is being sentenced for both off-grid and on-grid crimes, the court only has authority to impose the supervision period associated with the off-grid crime. In other words, a court must impose life parole.
“Because the district court did not have authority to impose a postrelease period of less than life parole, the total .duration of Torres’ sentences does not conform to the requirements of K.S.A. 21-4720. See State v. McCarley, 287 Kan. 167, 175, 195 P.3d 230 (2008) (this court has jurisdiction to remand for correction of an illegal sentence even when the resultant sentence would be more severe than drat originally imposed). As such, Torres’ sentences are illegal and must be vacated.” Torres, 2009 WL 862166, at “3.
We believe that Torres was correctly decided; however, we take this opportunity to expand and clarify the reasoning behind the decision.
“Interpretation of a statute raises a question of law over which an appellate court has unlimited review. The most fundamental rule is that die intent of the legislature governs if that intent can be ascertained. An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. When a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it. Where there is no ambiguity, the court need not resort to statutory construction. Only if die statute’s language or text is unclear or ambiguous does the court use canons of construction or legislative history or other background considerations to construe die legislature’s intent.” State v. Comprehensive Health of Planned Parenthood, 291 Kan. 322, Syl. ¶ 3, 241 P.3d 45 (2010).
1. What is postrelease supervision?
Parole and postrelease supervision are governed by K.S.A. 2008 Supp. 22-3717. On-grid sentences consist of a prison term followed by a mandatory period of postrelease supervision. K.S.A. 2008 Supp. 22-3717(d)(l) (“Persons sentenced for crimes, other than off-grid crimes, committed on or after July 1, 1993, or persons subject to subparagraph [G], will not be eligible for parole, but will be released to a mandatoiy period of postrelease supervision upon completion of the prison portion of their sentence ....”) The term of mandatory postrelease supervision under K.S.A. 2008 Supp. 22-3717(d) does not apply to off-grid crimes. Off-grid crimes consist of a mandatoiy term of imprisonment followed by parole eligibility. K.S.A. 2008 Supp. 22-3717(b). The district court has no jurisdiction to enter a term of postrelease supervision for an off-grid conviction. Cash, 293 Kan. at 330-31.
“If sentences for off-grid and on-grid convictions are ordered to run consecutively, the offender shall not begin to serve the on-grid sentence until paroled from the off-grid sentence, and the post- release supervision term will be based on the off-grid crime.” (Emphasis added.) K.S.A. 21-4720(b)(2). This section is nonsensical if the phrase “postrelease supervision term” in K.S.A. 21-4720(b)(2) refers to a period of postrelease supervision under K.S.A. 2008 Supp. 22-3717(d) because, as noted above, off-grid crimes are followed by parole under K.S.A. 2008 Supp. 22-3717(b). Accordingly, the phrase, “postrelease supervision term” in K.S.A. 21-4720(b)(2) must refer more generally to the supervision period that follows the defendant’s release from prison, regardless if that is termed “parole" or “postrelease.” Thus, after serving a minimum 20 years’ imprisonment Ross is subject to the possibility of lifetime parole based on the felony-murder conviction, rather than lifetime post-release supervision.
2. Use of‘postrelease supervision” in K.S.A. 21-4720(b)
When a statute’s meaning is not clear from its plain language, we often consider the provisions of the entire act with a view toward reconciling and bringing them into harmony if possible. State v. Raschke, 289 Kan. 911, 914, 219 P.3d 481 (2009). Sentencing in multiple conviction cases is governed by K.S.A. 21-4720. The phrase “postrelease supervision” is used several times in K.S.A. 21-4720(b). We consider each of these references to determine the intent of the legislature in sentencing multiple conviction cases.
K.S.A. 21-4720(b)(l) provides: “The postrelease supervision term will be based on the longest supervision term imposed for any of the crimes.”
K.S.A. 21-4720(b)(2) provides: “If sentences for off-grid and on-grid convictions are ordered to run consecutively, the offender shall not begin to serve the on-grid sentence until paroled from the off-grid sentence, and the postrelease supervision term will be based on the off-grid crime.”
K.S.A. 21-4720(b)(4) provides: “The postrelease supervision term will reflect only the longest such term assigned to any of the crimes for which consecutive sentences are imposed.”
K.S.A. 21-4720(b)(7) provides: “If the sentence for the consecutive sentences is a prison term, the postrelease supervision term is a term of postrelease supervision as established for the primary crime.” Referring back to K.S.A. 21-4720(b)(2), “[t]he primary crime is the crime with the highest crime severity ranking.”
Reading the entire statute as a coherent whole, it is clear that tire legislature intended to impose the longest term of supervision provided for any of tire convictions in a multiple conviction case. Consistent with this intent, the term “postrelease supervision” must mean any supervision that follows the defendant’s release from a prison sentence. It need not strictly refer to the mandatory term of postrelease supervision created in K.S.A. 22-3717(d), which applies to sentences for on-grid crimes.
3. Application
As a practical matter, it is unlikely the legislature intended to subject a defendant who was convicted of one off-grid crime to lifetime parole while subjecting a defendant convicted of one off-grid crime and one on-grid crime to the shorter term of postrelease supervision required by K.S.A. 2008 Supp. 22-3717(d). This is an unreasonable result and, accordingly, we construe K.S.A. 21-4720(b)(2) to mean that the period of supervision following the defendant’s release from prison—after serving sentences for off-grid and on-grid crimes—is based on the supervision imposed for the off-grid crime. See State v. Trautloff, 289 Kan. 793, 797, 217 P.3d 15 (2009) (“[C]ourts should read statutes to avoid unreasonable results and should presume that the legislature does not intend to enact useless or meaningless legislation.”).
Because Ross received an off-grid life sentence for felony murder, his prison term should be followed by lifetime parole. The postrelease supervision imposed by the trial court is vacated.
Registration
At sentencing, the district court informed Ross that he would be required to register under KORA, but the court did not indicate which section of KORA required Ross to register. Subsequently, the journal entry of sentencing indicated that Ross was required to register under KORA pursuant to K.S.A 2008 Supp. 22-4902(a)(2) (anyone convicted of felony murder will be deemed a violent offender under KORA) and K.S.A. 2008 Supp. 22-4902(a)(4)(A) (an yone convicted of kidnapping and the victim was less than 18 years of age will be deemed an offender under KORA).
The parties agree that Ross is required to register under K.S.A. 2008 Supp. 22-4902(a)(2) because he was convicted of felony murder. Similarly, the parties agree that Ross is not required to register under K.S.A. 2008 Supp. 22-4902(a)(4) because the victim was 18 years old.
K.S.A. 22-3504(2) provides: “Clerical mistakes in judgments, orders or other parts of the record and errors in the record arising from oversight or omission may be corrected by the court at any time and after such notice, if any, as the court orders.”
K.S.A. 2011 Supp. 60-260(a) provides:
“The court may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order or other part of the record. The court may do so on motion, or on its own, with or without notice. But after an appeal has been docketed in the appellate court and while it is pending, such a mistake may be corrected only with the appellate court’s leave.”
Because notiiing in the record suggests that the victim was under the age of 18, we remand to the district court with instructions that it issue a nunc pro tunc order deleting the provision that Ross must register under KORA pursuant to K.S.A. 22-4902(a)(4)(A). Because Ross is still required to register under KORA pursuant to K.S.A 22-4902(a)(2), this change will merely correct a mistake arising from an oversight and not change Ross’ sentence. Accordingly, he does not need to be present in court for the change to go into effect.
Aggravated Sentence in the Grid Block
Ross argues that it was error for the district court to sentence him to the aggravated sentence in the applicable grid block for the kidnapping conviction without a jury finding the aggravating factors. Ross acknowledges that this court has previously decided this issue but raises it to preserve it for federal review. As we noted in State v. Johnson, 286 Kan. 824, Syl. ¶ 6, 190 P.3d 207 (2008), “[u]nder K.S.A. 21-4721(c)(l), an appellate court is without jurisdiction to consider a challenge to a presumptive sentence, even if that sentence is to the highest term in a presumptive grid block.” Thus, we conclude that we lack jurisdiction to address the merits of Ross’ argument.
Consecutive Sentences
Ross argues that the district court abused its discretion when it denied his request to run his sentences for felony murder (an off-grid crime) and kidnapping (an on-grid crime) concurrently and instead ordered the sentences be served consecutively. We must first address whether we have jurisdiction to address this issue. Whether jurisdiction exists is a question of law over which this court’s scope of review is unlimited. State v. Ellmaker, 289 Kan. 1132, 1147, 221 P.3d 1105 (2009).
In State v. Ware, 262 Kan. 180, 938 P.2d 197 (1997), defendant Gregory Ware pled guilty to murder (an off-grid crime) and aggravated robbery, a severity level 3 person felony. Ware was sentenced to life for the murder conviction and a consecutive 49-month term of imprisonment, the mid-range presumptive sentence, for the aggravated robbeiy conviction. On appeal, Ware claimed the district court abused its discretion in running his sentences consecutively. This court did not reach the merits of Ware’s argument because we assumed that Ware had received a “presumptive sentence” as contemplated in K.S.A. 21-4721(c)(l) and, thus, we were statutorily prevented from reviewing his sentence. Specifically, we stated that “[t]he imposition of consecutive sentences is not inconsistent with presumptive sentences and does not constitute the imposition of a departure sentence. The issue raised by the defendant is not an appealable issue. Accordingly, the appeal must be dismissed for lack of jurisdiction.” Ware, 262 Kan. at 184.
Similarly, in State v. Flores, 268 Kan. 657, 999 P.2d 919 (2000), defendant Rafael Flores appealed the district court’s decision to impose consecutive sentences of life and 34 months’ imprisonment for Flores’ convictions of first-degree felony murder (an off-grid crime) and attempted voluntary manslaughter, a severity level 5 person felony. Based on Ware, we dismissed Flores’ appeal for lack of jurisdiction because we again assumed that Flores had received a presumptive sentence within the meaning of K.S.A. 21-4721(c)(1) and drat the imposition of consecutive sentences did not constitute a departure sentence, which is reviewable under K.S.A. 21-4721(e)(l). Flores, 268 Kan. at 658-60.
Based on more recent decisions from this court, it is clear that both Ware and Flores failed to recognize that the term “presumptive sentence,” as used in the Kansas Sentencing Guidelines Act (KSGA), does not encompass life sentences for off-grid crimes. In State v. Ortega-Cadelan, 287 Kan. 157, 164, 194 P.3d 1195 (2008), we held that we had jurisdiction to consider whether the district court abused its discretion in denying a criminal defendant’s motion to depart from the hard 25 life sentence imposed pursuant to K.S.A. 2006 Supp. 21-4643(a). We reached this conclusion by noting that a life sentence was not a “presumptive sentence” within the meaning of K.S.A. 21-4721(c)(l) and was, therefore, reviewable on appeal. We stated:
“The Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 etseq., defines a defendant’s right to appeal from his or her sentence and, as applicable to this issue, provides that ‘the appellate court shall not review: (1) Any sentence that is within the presumptive sentence for the crime.’ K.S.A. 21-472l(c)(l). The KSGA defines ‘presumptive sentence’ as ‘the sentence provided in a grid block for an offender classified in that grid block by the combined effect of the crime severity ranking of the current crime of conviction and the offender’s criminal history.’ K.S.A. 21-4703(q). Ortega-Cadelan’s sentence does not meet the K.S.A. 21-4703 definition of ‘presumptive sentence,’ as his sentence was not issued pursuant to a number in a grid block. Under the circumstances of this case, the KSGA grid was inapplicable. Moreover, K.S.A. 2006 Supp. 21-4706(d) characterizes Ortega-Cadelan’s offense as an ‘off-grid [crime] for the purposes of sentencing.’ Thus, the State’s jurisdictional argument is misguided; we hold that this court has jurisdiction to review a sentence imposed pursuant to K.S.A. 2006 Supp. 21-4643(a).” Ortega-Cadelan, 287 Kan. at 163-64.
Based on our holding in Ortega-Cadelan, we later held in State v. Frecks, 294 Kan. 738, 741, 280 P.3d 217 (2012), that because a life sentence for an off-grid crime is not considered a “presumptive sentence” under the KSGA, K.S.A. 21-4721(c)(l) does not bar appellate review of whether a district court abused its discretion by ordering life sentences for off-grid crimes to run consecutively rather than concurrently.
Ortega-Cadelan and Frecks clearly establish that a life sentence for an off-grid crime is not a “presumptive sentence” as contem plated in K.S.A. 21-4703(q) because imposition of the life sentence was not arrived at by applying the applicable grid block of the sentencing guidelines. Accordingly, when a defendant is convicted of both an off-grid crime and an on-grid crime and the district court orders tire presumptive sentence for the on-grid crime to run consecutive to the life sentence for the off-grid crime, the resulting controlling sentence is not entirely a “presumptive sentence” as defined in K.S.A. 21-4703(q). Thus, K.S.A. 21-4721(c) does not prevent a defendant from challenging a district court’s decision ordering that a sentence for an on-grid crime run consecutive to a life sentence for an off-grid crime in a multiple conviction case involving both off-grid and on-grid crimes. As such, we disapprove of the contrary holdings found in Ware and Flores and conclude that we may review whether the district court here abused its discretion by ordering Ross’ life sentence for felony murder and his 61-month prison sentence for kidnapping to run consecutively instead of concurrently.
“Generally, it is within the trial court’s sound discretion to determine whether a sentence should run concurrent with or consecutive to another sentence.” State v. Jamison, 269 Kan. 564, 576, 7 P.3d 1204 (2000). In State v. Ward, 292 Kan. 541,550, 256 P.3d 801 (2011), cert, denied 132 S. Ct. 1594 (2012), we stated the standard for determining whether a district court abused its discretion:
“Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or tire exercise of discretion is based.”
Ross argues that the district court abused its discretion by ordering the sentences to run consecutive to one another because (1) he had no prior criminal histoiy, and (2) his sentence for felony murder already required him to serve 20 years before he would be eligible for parole. Before imposing consecutive sentences, the district court considered the suffering of the young woman during the kidnapping, Ross’ lack of compassion for die victim, and the extent of harm to the family of the victim. Based on the facts of this case, a reasonable person could conclude that consecutive sentences were appropriate. Accordingly, we cannot say that the district court abused its discretion by imposing consecutive sentences.
Sentence vacated in part and remanded with directions. | [
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The opinion of the court was delivered by
Holmes, J.:
Halliburton Company, Inc., (Halliburton) and its employee William Arend, defendants below, appeal from a jury verdict rendered in favor of Hiram Turner in a defamation and tortious interference with the right to contract case involving Turner’s termination from employment for allegedly stealing company property. The jury returned a verdict in favor of Turner for $86,700.
Appellee first went to work for Halliburton in early 1981 as a bulk material operator in Winfield. He was considered a good employee until March 1983, when the events leading to his discharge and this lawsuit occurred. On March 11, 1983, Turner, who had the day off, and his neighbor John Coffey set out to find some automobile parts with which to repair Turner’s car. Coffey drove his pickup truck and, upon leaving Gueda Springs where both lived, they proceeded to Arkansas City, Winfield, and Newkirk and Ponca City, Oklahoma. During their travels the two consumed a case of beer but were unsuccessful in locating the needed automobile parts. Finally, about 2:00 p.m. they contacted a man in Winfield who indicated he might have the necessary parts but that he would not be available until after 5:00 p.m. Turner and Coffey then decided to go fishing and on the way stopped in Gueda Springs and picked up Mike Burr. The next stop was Arkansas City where they replenished their beer supply and purchased some whiskey. They then spent the rest of the afternoon fishing and around 5:00 p.m. returned to Winfield where Turner was successful in obtaining the necessary parts. Turner claims the last thing he remembers is passing the Des perado Saloon on old highway 77, headed toward Gueda Springs. The next he remembers is waking up at home in Gueda Springs on the morning of March 12, 1983.
The evidence at trial disclosed that on the way home the three decided to stop at Daisy Mae’s Cafe. Ron Ryser, another Halliburton employee, who was in the cafe, had his Halliburton truck parked in the parking lot. While in the parking lot, the three men took some Halliburton tools from Ryser’s truck and placed them in Coffey’s truck. They were observed taking the tools by other patrons of the cafe, who advised Ryser and also told him the other truck had a personalized license plate reading “Wizard.” Ryser proceeded to the lot but before he could get there the truck with Wizard plates had departed. Ryser then reported to the Arkansas City police and to his superiors that the tools had been stolen by three men at Daisy Mae’s parking lot. He also reported the description of Coffey’s truck, including the distinctive Wizard license plate.
On Saturday morning, after Turner awoke, he went to Coffey’s truck to retrieve his newly purchased auto parts and his fishing equipment. When he did so he observed the Halliburton tools and thought they looked familiar due to some distinguishing features. Later that day, Daniel Krueger, another Halliburton employee and a friend of Turner’s, stopped by Turner’s house and told him about the missing tools and the theft at Daisy Mae’s Cafe. Turner took no action at that time. On Monday, March 14, 1983, Turner reported for work at Halliburton where the employees were talking about the theft of Ryser’s tools. Investigation by the Arkansas City police inevitably led to John Coffey, who was picked up by the Sumner County sheriff s office on March 15. Turner was aware of Coffey’s arrest (on other charges) and then called Ryser and told him he knew where the missing tools were located. Ryser advised Turner to return them to him and then called his superiors at Halliburton to report these latest developments. Turner waited until the evening of March 16 to return the tools to Ryser and, during that same evening, Turner was notified by telephone to report to the company offices at 8:00 a.m. the next morning. Also that evening, Turner was contacted by an officer of the Arkansas City police department relative to the missing tools. Turner advised the officer he did not know anything about them. The next morning, Turner reported to the appellant William Arend and Gary Rodveldt, both managerial and supervisory employees, at the Halliburton offices. During this confrontation Turner’s employment with Halliburton was terminated on the grounds he had stolen company property. During the interview he made no explanation of his connection with the missing tools except to state that he had been drinking the day of the theft and that he hadn’t had anything to do with the missing tools. At trial Coffey and Burr testified that the tools were taken from the Halliburton truck because Turner wanted to play a joke upon his co-worker Ryser and that at the time all three of them were intoxicated. This testimony was consistent with the statements originally given to police by Coffey and Burr. At the meeting with Arend and Rodveldt, it was made clear to Turner that he was being terminated and that the reason was his theft of company property. While the appellant Arend was obviously upset and the conversation became heated and loud, there was no evidence that any other employees of Halliburton heard any part of the confrontation except Rodveldt, who was present in a supervisory capacity. There was no evidence that Arend or Rodveldt told any other Halliburton employees of the firing and reason therefor, except such supervisory and managerial personnel as were required to be notified under standard company procedure. It is also clear that Turner told his friend Krueger, and perhaps others, that he had been fired and the reason therefor. In any event it became common knowledge among the Halliburton employees, which would not be unexpected.
Being out of a job, Turner sought employment the same day with Ark City Packing Company and filled out an application form. In that application form Turner stated that his reason for leaving his Halliburton employment was “lay off.” Turner well knew, at the time, he had been terminated at Halliburton for allegedly stealing company property. The same application form provided:
“I authorize any school or previous employer named in this application to provide Ark City Packing Company with any relevant information that may be required to arrive at any employment decision.”
On April 28,1983, Turner was interviewed by a personnel officer of Ark City Packing Company and considered satisfactory for employment “pending receipt of reference check.” On April 30, 1983, an employee of the Ark City Packing Company personnel office contacted Halliburton to verify Turner’s former employment. She was advised that Turner had been terminated for “stealing company property.” This inquiry was followed up by mailing a form to Halliburton seeking verification of the telephone report. Halliburton returned the form to Ark City Packing Company answering their various inquiries. The answers indicated that while Turner’s work record had been satisfactory, he was not subject to rehire because of stealing company property. Upon receipt of this information, Turner’s application for employment was given no further consideration by the packing company.
Turner filed this action against Halliburton and Arend asserting three causes of action: (1) defamation, (2) breach of the employment contract, and (3) tortious interference with the right to contract. He sought both actual and punitive damages. Upon completion of the evidence, the court dismissed count two of the petition, overruled defendants’ motions for a directed verdict, and submitted the matter to the jury. The juiy found for Turner on the defamation claim, awarding actual damages of $23,500 and punitive damages of $41,000 and on the claim of tortious interference with the right to contract, awarding $6,900 actual damages and $15,300 punitive damages for a total verdict of $86,700. Halliburton and Arend have appealed. Additional facts will be set forth as necessary for the various issues on appeal.
Appellants contend the trial court committed error when it overruled their motions for a directed verdict made at the end of plaintiff s evidence and again after all the evidence was presented, and in overruling motions for judgment notwithstanding the verdict. The basis of the motions as to the defamation verdict was twofold: first, the allegedly defamatory statements were subject to a qualified privilege requiring actual malice to be proven and there was insufficient evidence to support the verdict and, second, Turner is precluded from recovering damages as he failed to show any damage to his reputation. As to the interference with the right to contract, appellants claimed insufficient evidence and a duplication of recovery.
K.S.A. 60-250 allows a litigant to move for a directed verdict, and for judgment notwithstanding the verdict. In ruling on a motion for directed verdict pursuant to K.S.A. 60-250, the court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought and where reasonable minds could reach different conclusions based on the evidence the motion must be denied and the matter submitted to the jury. This rule must also be applied when appellate review is sought on a motion for directed verdict. Sampson v. Hunt, 233 Kan. 572, Syl. ¶ 1, 665 P.2d 743 (1983). The same test is applicable to a motion for judgment notwithstanding the verdict. 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-250 (1979).
The law of defamation, including both libel and slander, is a fascinating subject which always seems to be in a state of flux. As stated by Justice Wedell, “In actions involving libel or slander the temptation quite naturally exists to write a treatise on the subject.” Bennett v. Seimiller, 175 Kan. 764, 766, 267 P.2d 926 (1954). The constraints of time, fortunately, prevent our doing so in this case. For those interested, certain areas of the subject have recently been given exhaustive consideration in a trilogy of cases before this court: Gobin v. Globe Publishing Co., 216 Kan. 223, 531 P.2d 76 (1975); Gobin v. Globe Publishing Co., 229 Kan. 1, 620 P.2d 1163 (1980); and Gobin v. Globe Publishing Co., 232 Kan. 1, 649 P.2d 1239 (1982).
The first issue raised by appellants is that they were entitled to prevail, as a matter of law, in the defamation action because they were privileged in their communications and no evidence was presented to support a finding of actual malice.
In any proceeding where the plaintiff complains that he or she has been defamed, a number of affirmative defenses are available, among them privilege and truth. Whether a privilege is available in an action for defamation must be determined based on the status of the particular defendant and the content of the alleged defamatory communication. To facilitate the effective performance of government, absolute privilege is granted by constitution, legislative enactment or case law to those who serve in a legislative, executive or judicial capacity. Redmond v. Sun Publishing Co., 239 Kan. 30, 36, 716 P.2d 168 (1986). A qualified or limited privilege is granted to those with a special interest or duty in the subject matter of the communication. Redmond v. Sun Publishing Co., 239 Kan. at 36. The availability of a limited privilege is generally restricted to those situations where public policy is deemed to favor the free exchange of information over the individual’s interest in his or her good reputation. One such qualified privilege exists with respect to business or employment communications made in good faith and between individuals with a corresponding interest or duty in the subject matter of the communication. Luttrell v. United Telephone System, Inc., 9 Kan. App. 2d 620, 683 P.2d 1292 (1984); Munsell v. Ideal Food Stores, 208 Kan. 909, 494 P.2d 1063 (1972). The question whether or not a publication is privileged is a question of law to be determined by the court. Munsell v. Ideal Food Stores, 208 Kan. at 921.
“Where a defamatory statement is made in a situation where there is a qualified privilege the injured party has the burden of proving not only that the statements were false, but also that the statements were made with actual malice — with actual evil-mindedness or specific intent to injure.” Munsell v. Ideal Food Stores, 208 Kan. at 920-21.
See also Stice v. Beacon Newspaper Corporation, 185 Kan. 61, 340 P.2d 396 (1959); PIK Civ. 2d 14.54.
In general, the question of actual malice in a defamation action is a question for the jury. However, under certain circumstances, a motion for directed verdict and the granting of that motion is appropriate.
“ ‘If the plaintiff fails to offer evidence of an extrinsic character to prove actual malice on the part of the defendant, in the publication of a libel on a qualifiedly privileged occasion, and if the language of the communication and the circumstances attending its publication by the defendant are as consistent with the nonexistence of malice as with its existence, there is no issue for the jury, and it is the duty of the trial court to direct a verdict for the defendant.’ ” Marsh v. Commercial and Savings Bank of Winchester, Va., 265 F. Supp. 614, 621 (W.D. Va. 1967).
In Hall v. Hercules, Incorporated, 494 F.2d 420 (10th Cir. 1974), a Tenth Circuit Court opinion applying Kansas law, the court upheld the trial judge, who had directed a verdict for defendant where there was no evidence of actual malice. See also Steere v. Cupp, 226 Kan. 566, 602 P.2d 1267 (1979), wherein a majority of this court found that summary judgment was proper in a libel case.
In the present case, the allegedly defamatory statements pertaining to Turner’s termination, that he stole company property, were communicated to supervisory and managerial employees of Halliburton in its ordinary course of business, to police officers who were conducting an investigation into the reported theft of tools, and to Ark City Packing Co. in connection with Turner’s application for employment. It appears clear from the record that Turner took the tools out of the Halliburton pickup while it was parked in Daisy Mae’s parking lot. Both Coffey and Burr testified that Turner took the equipment to play a joke or prank on a fellow employee. Turner has never denied taking the tools from the back of the pickup, but instead claims to have been so intoxicated at the time that he has no recollection of the event. While Turner alluded to the fact that his termination because of theft was widely known, he failed to produce any evidence to prove that this information came from communications from the defendants. Two Halliburton employees, Ron Ryser and Daniel Krueger, possessed independent knowledge of the incident. Additionally, Turner told Krueger of his termination and the basis therefor.
The evidence relied upon by appellee to establish actual malice is detailed in his brief and will be reviewed here in the best possible light from appellee’s standpoint. Arend, at the termination meeting, accused Turner of theft of the tools, other thefts, and of fencing property in Gueda Springs; Arend did not undertake his own outside investigation after being advised Turner was involved in the missing tools incident; there were discrepancies between the' police officers’ testimony and that of Arend as to when the officers first talked to Arend and gave him the information that Turner was involved; Arend made statements to police that Turner may have been involved in other thefts of company property and was being watched; Arend also stated he wanted Turner prosecuted; Ryser valued the tools at $80.00, while Arend valued them at cost less 20% for a figure of $125.88; Halliburton had a list of 69 different grounds for termination but Arend chose stealing company property, knowing this would go into Turner’s records and possibly be relayed to other prospective employers; and Arend had a bad attitude at the conference wherein Turner was terminated.
At best the evidence relied upon by Turner to prove evil-mindedness or specific intent to injure shows an employer who was understandably upset over the theft of the Ryser and other company tools, and who had been given information that Turner was involved in the disappearance of the Ryser tools. For an employer to classify such a disappearance as a theft or the stealing of company property would be the natural and logical conclusion under the facts of this case. Turner makes much of a failure by Arend to make an investigation. He appears to contend that Arend should have contacted Coffey and Burr, neither of whom were Halliburton employees, and makes much of Arend’s failure to seek out other witnesses. Such activities are more appropriately left to the police. If Arend had undertaken an investigation prior to his meeting with Turner, there might be serious questions about the propriety of such action. Following the meeting with Turner, where Turner continued to maintain that he was drunk and didn’t know anything about the alleged theft of the tools, Arend had no alternative but to terminate Turner and chose to report the appropriate grounds for his action. There is no showing in the record before us that any of the other sixty-eight possible reasons for termination would have been applicable. The only showing of evil-mindedness or specific intent to injure comes from the assumptions of the appellee in his brief and not from the evidence produced at trial. It is unfortunate that Turner’s “prank” or “joke” backfired and that he suffered unanticipated and unwanted results, but that, in and of itself, does not show malice by or place liability upon the defendants. Turner created the situation which led to the unfortunate results.
Employee conduct, particularly involving theft, is a matter within the bounds of the qualified privilege pertaining to communications within the company. All of the Halliburton personnel who testified to having knowledge of the communications were shown to be managerial level employees with an interest in the situation. While evidence was offered to indicate the defendant Arend was upset about the taking of Halliburton property, no evidence tended to establish an evil motive on the part of the defendants. Therefore, with respect to the intra-company communications, it does not appear Turner overcame the defendants’ privilege by proving actual malice.
A privilege also existed with respect to communications between Halliburton and Ark City Packing. High v. Hardware Co., 115 Kan. 400, 223 Pac. 264 (1924); 50 Am. Jur. 2d, Libel and Slander §§ 202, 271. See generally Annot., Defamation — Employer’s Qualified Privilege, 24 A.L.R. 4th 144. Therefore, it is also necessary for Turner to demonstrate actual malice on the part of the defendants to be entitled to recover on this claim.
At trial the plaintiff presented Carolyn Borror, who was in charge of screening applicants at Ark City Packing Co. Borror testified that she had accepted an application for employment from the appellee. Turner’s application indicated that he had formerly worked for Halliburton and the reason for his unemployed status was “lay off.” When Borror checked with Turner’s former employer, Halliburton, she was. informed that Turner was terminated for “stealing company property.” This information was provided over the telephone by Wilbur Bright, and subsequently confirmed by written communication. Again there is absolutely no evidence that the appellants acted with evil-mindedness or specific intent to injure Turner. The rule stated in Munsell v. Ideal Food Stores, 208 Kan. 909, Syl. ¶ 1, and in 50 Am. Jur. 2d, Libel and Slander § 149, would also appear to preclude recovery on the basis of Turner’s consent to or request for the communication to Ark City Packing Co. See also Richters v. Rollins Protective Service Co., Inc., 442 F. Supp. 941 (D. Kan. 1977).
The communications with the police department were initiated by the police during a routine investigation of the reported theft of the Halliburton tools. There was a duty on the part of Halliburton’s employees to cooperate in that investigation and the communications were subject to a qualified privilege. Marsh v. Commercial and Savings Bank of Winchester, Va., 265 F. Supp. 614.
The trial court correctly ruled, and appellee does not contend otherwise, that the communications complained of were subject to a qualified privilege. The evidence, considered only in the light most favorable to the plaintiff, is insufficient to show actual malice upon the part of the defendants.
We hold that, based upon this record, when all of the facts and the inferences to be drawn therefrom are resolved in favor of Turner, there is no credible evidence to support a finding of actual malice upon the part of the defendants. The judgment on the defamation issue must be reversed. In view of the decision reached upon this issue, it is not necessary for us to consider the question of whether Gobin v. Globe Publishing Co., 232 Kan. 1, requires actual proof of damage to reputation when the defendant is not a member of the news media. That question must be left for another day.
The remaining issue is whether the trial court erred in failing to sustain defendants’ motions for a directed verdict or for judg ment notwithstanding the verdict as to plaintiff s claim of tortious interference with contractual relations. Much of what has already been said applies equally to this issue.
Kansas has long recognized that a party who, without justification, induces or causes a breach of contract will be answerable for damages caused thereby. Vaught v. Pettyjohn & Co., 104 Kan. 174, 178 Pac. 623 (1919); Nulty v. Lumber and Grain Co., 116 Kan. 446, 227 Pac. 254 (1924); see also Restatement (Second) of Torts § 766 (1977); Prosser & Keeton on Torts § 129, p. 978-1004 (5th ed. 1984). It is also recognized that a cause of action exists for tortious interference with a prospective business advantage or relationship. The requirements for this tort were recently set forth in Maxwell v. Southwest Nat. Bank, Wichita, Kan., 593 F. Supp. 250, 253 (D. Kan. 1984), as: (1) the existence of a business relationship or expectancy with the probability of future economic benefit to the plaintiff; (2) knowledge of the relationship or expectancy by the defendant; (3) that, except for the conduct of the defendant, plaintiff was reasonably certain to have continued the relationship or realized the expectancy; (4) intentional misconduct by defendant; and (5) damages suffered by plaintiff as a direct or proximate result of defendant’s misconduct.
Both tortious interference with a contract and tortious interference with contractual expectations or a prospective business advantage are predicated on malicious conduct by the defendant. While these torts tend to merge somewhat in the ordinary course, the former is aimed at preserving existing contracts and the latter at protecting future or potential contractual relations. Here, it is contended that appellants, by communicating to Ark City Packing Co. that Turner had been terminated for “stealing company property,” interfered with his prospects for employment and caused Turner to fail to obtain that employment.
It is recognized that not all interference in present or future contractual relations is tortious. A person may be privileged or justified to interfere with contractual relations in certain situations. May v. Santa Fe Trail Transportation Co., 189 Kan. 419, 424-25, 370 P.2d 390 (1962). See also Restatement (Second) of Torts § 767. In 45 Am. Jur. 2d, Interference § 27 it is stated:
“Justification is the most common affirmative defense to an action for interference. The term ‘justification’ has been said not to be susceptible of any precise definition. It is employed to denote the presence of exceptional circumstances which show that no tort has been in fact committed and to connote lawful excuse which excludes actual or legal malice. It has been suggested that, rather than to express this defense to interference in terms of justification, it might be more accurately stated to be a matter of privilege; that is, the defendant may show that interference, although it occurred, is privileged by reason of the interests furthered by his conduct. Whichever word is used, the defense comes into play only after interference has occurred, as shown by judicial statements that interference is actionable only if without justification or, alternately, that interference which is justifiable is not actionable, and that one is not liable in damages even though his acts and conduct constitute interference with contractual rights of another if he employs fair means and acts in good faith and with justification.
“The law has crystallized relatively few concrete rules to determine the existence or want of justification or privilege in connection with the tort of interference. The issue raised on a plea of justification has been said to depend on the circumstances of the particular case, bearing in mind such factors as the nature of the interferer’s conduct, the character of the expectancy with which the conduct interfered, the relationship between the various parties, the interest sought to be advanced by the interferer, and the social desirability of protecting the expectancy or the interferer’s freedom of action. Generally, a circumstance is effective as a justification if the defendant acts in the exercise of a right equal or superior to that of the plaintiff, or in the pursuit of some lawful interest or purpose, but only if the right is as broad as the act and covers not only the motive and purpose but also the means used.” pp. 304-05.
Occasions privileged under the law of defamation are also occasions in which interference with contractual relations may be considered justified or privileged. Prosser & Keeton on Torts § 129, p. 989. It appears that in the area of interference with prospective contractual relations the terminology of privilege, proper vs. improper, and justification are used interchangeably with no overwhelming preference for any term. Kansas has not previously dealt with the existence of a privilege or justification for a former employer to communicate information from personnel files regarding a former employee. Other jurisdictions have recognized such a privilege where an employee’s record of performance was an issue. In Leibowitz v. Szoverffy, 80 App. Div. 2d 692, 436 N.Y.S.2d 451 (1981), a former teacher brought an action against her department chairman for tortious interference with contractual relations and libel after she had been denied tenure. On appeal the court held that summary judgment was properly granted, stating:
“A predicate for both alleged causes of action is malice. As to the tortious interference with contractual relations cause of action, the defendant’s conduct must be shown to be solely malicious [citation omitted].” p.693.
The Restatement (Second) of Torts considers the subject more in the light of what conduct is improper when tortious interference with a prospective contractual relation is alleged rather than in the terms of privilege or justification. Section 767 provides:
“In determining whether an actor’s conduct in intentionally interfering with a contract or a prospective contractual relation of another is improper or not, consideration is given to the following factors:
(a) the nature of the actor’s conduct,
(b) the actor’s motive,
(c) the interests of the other with which the actor’s conduct interferes,
(d) the interests sought to be advanced by the actor,
(e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other,
(f) the proximity or remoteness of the actor’s conduct to the interference, and
(g) the relations between the parties.”
Thus, it appears clear that there may be justification or a qualified privilege in an action for tortious interference with a business prospect. In the terms of the Restatement, if the actions complained of were not improper there is no ground for recovery. Here, Ark City Packing Co. was considering hiring appellee and inquired of Halliburton as to his work record and reason for termination. Halliburton’s employee then transmitted to the packing company the information that Turner was terminated for stealing company property. This statement was technically true. In the present world of trade and commerce, it is imperative that a prospective employer have access to information about an employee’s prior work record from sources other than the prospective employee. As shown by the facts in this case, not every prospective employee will give truthful information on an employment application. Where the allegation of tortious interference with contract, or the prospect of a contract, is based upon alleged defamatory statements from the former employer to the prospective employer, we hold that such communication is subject to a qualified privilege which requires the plaintiff to prove actual malice by the defendant in making such communication. Such would appear to be clearly required in the present case where Turner authorized the communication, knew the grounds for his termination, and knew that they would be relayed to Ark City Packing Co. Assuming the allegation that Turner stole company property was false, which was certainly open to ques tion at the time all the communications herein were made, the evidence relied upon to show malice is the same as previously detailed in our discussion of the defamation issue. Again, we hold there was no credible evidence to sustain the verdict for tortious interference with a contractual right or business prospect. In view of the decision reached, we are not called upon to determine whether recovery for interference with Turner’s application for employment constituted a double recovery when based upon the same facts and allegedly defamatory statements as relied upon in the defamation action.
The judgment is reversed.
Herd, J., dissenting: I strongly disagree with the majority. The opinion has broad, undesirable implications. It improperly removes fact issues from the jury. It authorizes an employer to falsely and with impunity brand an employee as a criminal. This is accomplished by the majority’s holding that Halliburton’s firing of Hiram Turner for theft of property was a “technically true” statement absent supporting evidence. The jury held otherwise. Thus, we must presume there was no substantial competent evidence to support the verdict. Let us examine the law and the evidence.
K.S.A. 1985 Supp. 21-3701 provides:
“Theft is any of the following acts done with intent to deprive the owner permanently of the possession, use or benefit of the owner’s property . . . .”
K.S.A. 21-3110(6) defines “deprive permanently”:
“(a) Take from the owner the possession, use or benefit of his or her property, without an intent to restore the same; or
“(b) Retain property without intent to restore the same or with intent to restore it to the owner only if the owner purchases or leases it back, or pays a reward or other compensation for its return; or
“(c) Sell, give, pledge or otherwise dispose of any interest in property or subject it to the claim of a person other than the owner.”
Kansas statutes consolidate the crimes of larceny, embezzlement, etc., into one crime designated as theft. Therefore when Halliburton used the terms “stealing” or “theft,” both terms came under the definition of theft. Theft is a specific intent crime. Thus, a taking must be accompanied by a specific intent to permanently deprive the owner of the property.
The evidence is uncontroverted that Hiram Turner was a good Halliburton employee and on his day off, March 11, 1983, he journeyed to Arkansas City, Winfield and Ponca City, Oklahoma with John Coffey searching for a used carburetor for his car. It is also uncontroverted that the two of them consumed two cases of beer and a pint of whiskey in the course of their journey. They picked up Mike Burr late in the afternoon. On the way home they went to Daisy Mae’s cafe in Arkansas City and shot pool. Ron Ryser, another Halliburton employee, was in the cafe. Burr and Turner got too boisterous, causing Coffey to ask them to leave with him. When they got outside, Turner suggested they play a joke on his Halliburton co-worker by taking a propane tank and pipe wrench from his pickup. This they did, placing the purloined items in the back of Coffey’s pickup. Burr remained in Arkansas City and Coffey and Turner proceeded back to Gueda Springs. Turner arrived home at 7:00 p.m., staggered into the house, and passed out on the couch. The evidence of Turner’s state of intoxication from mid-afternoon until he got home is not challenged. Also the evidence is uncontroverted that the property was taken from Turner’s co-worker’s pickup in a drunken attempt to play a joke on the co-worker. The jury was not only entitled to believe the evidence, it had no other choice; no evidence to the contrary was introduced.
There are two reasons Turner’s action was not theft; (1) There is no evidence of intent to permanently deprive the owner of his property; (2) intoxication is a defense to a specific intent crime. Thus, Arend’s statement that Turner stole the property was a false statement.
The next issue is whether the false statement was published. There is controversy on how many persons were in the trailer office when Arend fired Turner on March 17, 1983. Turner testified there were three people present in addition to him and Arend. Arend says there was only one other person present— Gary Rodveldt. This issue is unimportant since it is admitted Halliburton circulated the information that Hiram Turner was fired for theft of property throughout the company’s chain of command in El Dorado, Wichita, and Duncan, Oklahoma, and to Ark City Packing Company, in response to an inquiry. Halliburton’s defense is that Turner published the cause of his termination to his friends and consented to Ark City Packing requesting information about his employment record. However, it must be remembered Turner’s consent for Ark City Packing to make inquiry about his employment record did not carry with it consent for Halliburton to make a false statement about him. It is apparent there was substantial competent evidence to support the jury verdict of publication.
Finally, we come to the issue of malice. I agree with the majority that where a qualified privilege exists, the defendant cannot be liable for defamation unless the plaintiff proves the communication was made with actual malice. Halliburton had a qualified privilege as an employer of Turner. I disagree, however, with the conclusion drawn by the majority that the definition of malice in Munsell v. Ideal Food Stores, 208 Kan. 909, 920-21, 494 P.2d 1063 (1972), requires more and different evidence than that of publication with knowledge of falsity or publication of a false statement with reckless disregard for truth or falsity. The majority holds there was no evidence introduced of “actual evil-mindedness or specific intent to injure” and reversed the jury’s verdict for Turner on his defamation claim. I think publication of a false defamation statement knowing it to be false or publication of such statement with reckless disregard for the truth is actual evil-mindedness and evidence of a specific intent to injure the victim.
The majority has deliberately chosen to ignore the definition of malice given to the jury in this case. The jury was instructed on malice as defined in New York Times Co. v. Sullivan, 376 U.S. 254, 280, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964), and adopted by this court in Hein v. Lacy, 228 Kan. 249, 258, 616 P.2d 277 (1980), and Schulze v. Coykendall, 218 Kan. 653, 661, 545 P.2d 392 (1976). The instruction provided as follows:
“Proof of actual malice in defamation actions when a conditional privilege is found to exist requires a plaintiff to prove that the publication was made with knowledge that the defamatory statement was false or with reckless disregard of whether it was false or not.”
It is argued by some that the New York Times Co. v. Sullivan definition of malice applies only to media defendants. That is not true. As illustrated by Hein v. Lacy and Schulze v. Coykendall, both of which were decided after Munsell, we have used the New York Times definition in qualified privilege cases not pertaining to media defendants. In Schulze v. Coykendall, 218 Kan. 653, we set forth a definition of malice which is identical to that received by the jury in this case. We stated at syllabus ¶ 9:
“Proof of actual malice in defamation actions when a conditional privilege is found to exist requires a plaintiff to prove that the publication was made with knowledge that the defamatory statement was false or with reckless disregard of whether it was false or not.”
See also Restatement (Second) of Torts § 580B (1976); Thompson, Kansas Defamation Law: An Update, 54 J.K.B.A. 258 (1985); Dobbyn v. Nelson, 2 Kan. App. 2d 358, 579 P.2d 721, aff'd 225 Kan. 56, 587 P.2d 315 (1978).
It is interesting to note that in an early Kansas case on this subject, Coleman v. MacLennan, 78 Kan. 711, 741, 98 Pac. 281 (1908), the court set out how to prove actual malice as follows:
“When it comes to this proof there is no presumption, absolute or otherwise, attaching to a charge of crime. The proof is made from an interpretation of the writing, its malignity or intemperance, by showing recklessness in making the charge, pernicious activity in circulating or repeating it, its falsity, the situation and relations of the parties, the facts and circumstances surrounding the publication, and by other evidence appropriate to a charge of bad motives, as in other cases.”
I submit MacLennan shows that malice may be proven in a variety of ways, among which is the New York Times Co. v. Sullivan method, none of which are exclusive but all of which are available in any qualified privilege case. In this case the New York Times definition was applicable.
The instruction was correct, but if the majority believes the jury was improperly instructed on malice, then the plaintiff deserves a new trial. I would hold, however, that under whatever standard used, the plaintiff has proven defendants acted with malice. Bearing in mind that we must accept as true the evidence and all inferences therefrom which support or tend to support the verdict, let us review the evidence in support of a finding of malice on the part of the defendants.
William Arend, Halliburton’s district manager, heard of Ryser’s missing property at a supervisors’ meeting Monday, March 14. He first testified he talked to Lt. Santiago on March 15 and learned from him that John Coffey had implicated Turner as the person who took the missing property. From this information, Arend concluded Turner was a thief. Arend later retracted this testimony and admitted his conversation was with Officer Jeff Moore rather than Lt. Santiago. Officer Moore testified his conversation with Arend occurred on March 17, or later, which is after Turner was fired. This is significant because it shows Arend did not get the information about Turner from the police. He testified he did not talk to Coffey or Burr. Thus, Arend’s information came from the unconfirmed statements at the supervisors meeting — a mere rumor. Arend told Officer Moore he had suspected Turner of other thefts and that he had been watching Turner since he moved to Gueda Springs. Arend made similar statements to Hiram Turner at the meeting where he fired him. Arend refused to listen to Turner’s version of what happened and refused to talk to Coffey and Burr. He independently reached the conclusion he had caught the thief and fired Turner for theft of property. He then raised the value of the missing property from $80, the value given by Ryser, to $125, making the offense a felony, which indicated his intention to “get” Turner.
Arend fired Turner with no investigation and no evidence to support his personal belief that Turner was responsible for the theft of company property. As a result, Turner was branded as a thief to all potential future employers. Arend’s action is as clear a case of reckless disregard of the truth or falsity of a defamatory publication as can be found. Although the jury was instructed it need only find reckless disregard for the truth or falsity of the statement, the evidence presented to the jury was also sufficient to show a “specific intent to injure” on the part of Arend. There is substantial competent evidence to support the jury’s finding of malice.
The malice shown by Arend’s actions also supports the jury verdict for interference with contractual relations and punitive damages.
The scope of appellate review of a motion for a directed verdict is to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought and where the evidence is such that reasonable minds could differ, the motion must be denied and the case submitted to the jury. See Scarpelli v. Jones, 229 Kan. 210, 215, 626 P.2d 785 (1981).
Under the scope of appellate review for testing the sufficiency of the evidence to support a jury verdict, we must accept as true the evidence and all inferences to be drawn therefrom which support or tend to support the verdict and disregard any conflicting evidence or other inferences which might be drawn therefrom, and if there is any substantial competent evidence to support the jury’s verdict, it must not be disturbed on appeal. See In re Estate of Robinson, 236 Kan. 431, 439, 690 P.2d 1383 (1984).
In applying the foregoing rules of appellate review, as we must, we are without authority to overturn the jury’s verdict.
I would affirm the trial court.
Prager and Lockett, JJ., join the foregoing dissenting opinion. | [
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The opinion of the court was delivered by
Prager, J.:
This is an appeal from a postjudgment ruling in a divorce case denying the petitioner/wife’s motion for relief pursuant to K.S.A. 60-260(b) and refusing to order a blood test to assist in the determination of the paternity of a minor child born during the marriage of the parties. The Court of Appeals reversed in an unpublished opinion. The Supreme Court granted the petition for review filed by the respondent/husband.
Most of the facts in the case are undisputed and essentially are as follows: Thomas John Zodrow (Tom), the respondent/appellee and Carolyn Marie Zodrow (Carolyn), the petitioner/appellant, were married on September 29, 1979. Two children were born to the parties during the marital relationship. Amanda Kay Zodrow was born September 26, 1980, and Leigh Christopher Zodrow was born April 22, 1982. Marital troubles developed, and, on March 22, 1984, Carolyn Zodrow filed a verified petition for divorce on the grounds of incompatibility alleging that two children, Amanda and Leigh Christopher, were born to the marriage. The divorce case was tried to the court on July 20, 1984. The only contested issues at the trial were property divi sion and child support. In the journal entry of divorce, the district court found the best interests of the minor children would be served by granting joint custody of the children to the parties, with the primary residence to be with the mother with summer and liberal rights of visitation to the father. Child support was to be paid by Tom, who was also to maintain medical and health insurance for both children. Thereafter, difficulties developed over Tom’s rights of visitation.
On January 9, 1985, Tom filed a motion for modification of the divorce decree relative to visitation rights requesting more specific times for visitation. A full evidentary hearing was held on February 6, 1985, after which the court enlarged Tom’s rights of visitation. At that hearing, Carolyn raised no issue as to Tom not being the father of Leigh Christopher. Apparently, further bitterness developed thereafter.
On March 13, 1985, Carolyn filed a motion for modification of the divorce decree. The motion alleged that, after the granting of the divorce, it had come to her attention as the result of certain paternity testing that the respondent, Thomas Zodrow, is not the father of the minor child, Leigh Christopher Zodrow. The motion requested that Tom Zodrow be ordered to submit to blood testing to assist in determining the parentage of Leigh Christopher. The petition further stated, that should the blood test and other tests show that Thomas Zodrow is not the father of Leigh Christoper, the court decree of July 20, 1984, should be modified to reflect the identity of the actual father of the child and that child support and visitation should be adjusted accordingly. On March 21, 1985, Carolyn Zodrow filed an amended motion pursuant to K.S.A. 60-260(b) moving the court for relief from the final judgment and decree of divorce. This motion alleged that since the decree of divorce, the actual father of the child had expressed his desire of actually exercising his support and paternity to the child. The name of the claimed actual father was not included in the motion.
Carolyn, at the hearing on the motion which was accomplished in a telephone conference call, claimed that Leigh Christopher Zodrow was conceived in an extramarital affair with her husband’s first cousin, who was also his business partner. Carolyn wanted the court to make a finding that the natural father of Leigh is in fact that first cousin, whom she had married on April 8, 1985. The record contains a letter report from the Midwest Organ Bank stating that, based upon blood tests of the mother, the child, and the cousin, it is “678 times more likely” that the cousin is the biological father “than a random, unrelated Caucasian man.”
Tom Zodrow adamantly denied that he had any knowledge of any extramarital lark between Carolyn and his cousin. He strongly maintained that he was the father of Leigh Christopher and that he cared for the child and wanted to support him.
As noted above, Carolyn Zodrow based her motion for modification of the divorce decree on K.S.A. 60-260(b), which provides as follows:
“(b) Mistakes; inadvertence; excusable neglect; newly discovered evidence; fraud, etc. On motion and upon such terms as are just, the court may relieve a party or said party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under K.S.A. 60-259(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subsection (b) does not affect the finality of a judgment or suspend its operation. This section does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as provided in K.S.A. 60-309 or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in this article or by an independent action.”
Carolyn relied upon paragraphs (2), (5), and (6) of K.S.A. 60-260(b) as a basis for her motion. She took the position that, in view of the discovery of the true paternity of Leigh Christopher, it would no longer be equitable for the divorce decree to have prospective application under (b) (5) and that the circumstances presented a case justifying relief from the operation of the judgment under (b)(6). At the close of the conference call, the trial court denied her relief on her motion. The trial judge stated for the record he could not find excusable neglect. He found that there was no newly discovered evidence since, by Carolyn Zodrow’s own admission, the evidence had been there for some period of time. Although the trial court did not find fraud on the part of either party, he stated -that, if there was any fraud, it certainly would be on the part of Mrs. Zodrow. The court then looked at the overall circumstances presented in the case and concluded that it would not serve the interests of justice to grant the motion. The court noted that it was faced not only with the three-year-old child, Leigh Christopher, but also the older child, Amanda. The court felt that it was not in the best interests of either of the children to grant the motion. The court stated that it had a feeling that Carolyn Zodrow had been playing games with the court, keeping the ace up her sleeve until it was most advantageous to play that card, and that the judgment of divorce should not be set aside pursuant to K.S.A. 60-260(b). The court denied the motion that Tom Zodrow submit himself to the blood test, stating that, whatever the outcome of the test, it would not be persuasive to set aside the prior judgment. Carolyn Zodrow appealed to the Court of Appeals where the case was argued and submitted.
On April 10, 1986, the Court of Appeals reversed the decision of the district court and remanded the case for further proceedings. In the opinion, the Court of Appeals stated that a ruling on a motion to vacate and set aside a judgment rests within the trial court’s discretion and is not a matter of right. In order to reverse such a ruling, an appellate court is required to find an abuse of discretion by the trial court, and the burden of proving sufficient grounds for such relief by clear and convincing evidence rests upon the movant. Lee v. Brown, 210 Kan. 168, 170, 499 P.2d 1076 (1972). Discretion is abused only where no reasonable person would take the view adopted by the trial court. Powell v. Powell, 231 Kan. 456, 459, 648 P.2d 218 (1982). The Court of Appeals cited the case of Overland Park Savings & Loan Ass’n v. Braden, 6 Kan. App. 2d 876, Syl. ¶ 2, 636 P.2d 797 (1981), for the following legal principles:
“The power to set aside judgments under the foregoing (K.S.A. 60-260[b][6]) is not provided in order to relieve a party from free, calculated and deliberate choices he has made. The party remains under a duty to take legal steps to protect his interests.”
The Court of Appeals recognized the only Kansas case which presents similar issues, Besse v. Besse, 1 Kan. App. 2d 217, 563 P.2d 518, rev. denied 221 Kan. 757 (1977). In Besse, the parties married before the child was born and they each knew that the husband was not the biological father. Approximately four years later the parties divorced. The wife’s petition alleged that the child was born to the parties and the husband’s answer admitted the birth as alleged. By property settlement agreement, the husband agreed to pay child support. A year later the husband quit paying child support and filed a motion for relief under K.S.A. 60-260(b)(3), (4), (5), and (6). The wife filed a motion for summary judgment. The trial court granted the wife’s motion, concluding that the deliberate choices that the parties had made were binding and that the husband should have taken legal steps to protect himself. The trial court indicated that the husband was playing games with the court, and that finality in litigation was desirable. The Court of Appeals held that the trial court had not abused its discretion, but noted that six months after the trial court’s decision and while the case was pending on appeal, another man filed an action asking to relieve the husband of the duty to support and for a finding that he was the biological father of the child. In Besse, the court found K.S.A. 60-260(b)(5) and (6) justified remanding the case for a full evidentiary hearing.
The Court of Appeals then stated that during oral argument in the case now before us, the cousin had filed a paternity action in the district court of Clay County. That paternity action was dismissed on venue grounds, and will not be refiled until the present appeal is resolved.
The Court of Appeals noted the Kansas Parentage Act (K.S.A. 1985 Supp. 38-1110 et seq.), which gives a district court jurisdiction to join an action to determine parentage with an action for divorce, annulment, separate maintenance, support, or adoption, provides a vehicle by which the presumption of paternity which arises pursuant to K.S.A. 1985 Supp. 38-1114(a)(l) may be rebutted “only by clear and convincing evidence.” The Court of Appeals concluded that is precisely what the mother is attempting to do in this case, although she has not joined the proper parties and has not alleged that she is proceeding under the Parentage Act.
The Court of Appeals then applied Besse and found that this case should be remanded to the district court with instructions to proceed with proper joining of parties, appointment of a guardian ad litem who shall be an attorney, an order for blood tests as required by K.S.A. 1985 Supp. 38-1117 and 38-1118, and final adjudication under the Parentage Act.
The court noted that, while support is not an issue in the present case, it might well be in the future. The Court of Appeals, following this rationale, reversed and remanded the case for further proceedings. Thomas Zodrow then filed a petition for review which was granted by the Supreme Court.
The two basic issues raised on the appeal are as follows:
(1) Did the trial court err in failing to sustain Carolyn Zodrow’s motion for relief from the divorce decree pursuant to K.S.A. 60-260(b); and
(2) Did the trial court err in refusing to order Thomas Zodrow to submit to testing pursuant to K.S.A. 23-131 (repealed L. 1985, ch. 114, § 30, effective July 1, 1985)?
We have concluded that the trial court correctly determined the motions and that the Court of Appeals was in error in reversing and remanding the case.
The Court of Appeals did not find that the trial court had abused its discretion in overruling the petitioner’s motions. We have carefully examined the factual circumstances in Besse v. Besse and find they differ in certain respects from the factual circumstances in the present case.
In this case, there was no paternity action pending at the time the district court overruled the motion and no admission by the cousin that he was the father of the child. In Besse, nearly six months after the trial court’s dismissal of the husband’s motion to modify the judgment, there was filed in the same court a petition by Robert Stanley Klein, the other claimed father, and the ex-husband naming as defendants the wife, the child, and the Kansas State Registrar of Vital Statistics. In the petition, the other man, Klein, stated that he was the natural father of the child. The relief sought by both Klein and the ex-husband was an order determining the plaintiff, Robert Stanley Klein, to be the father of Vance Reid Besse and that the plaintiff Besse be relieved of support. At oral argument, in Besse, the ex-husband stated that the case was then pending in the same district court. Because of those peculiar circumstances, the Court of Appeals concluded that the ends of justice and the interests of all the parties required the case to be reversed and a full evidentiary hearing had with all interested parties present to determine the paternity of the child. In the present case, there is no case now pending under the Kansas Parentage Act which could be consolidated with the present divorce case to determine parentage.
In the present case Thomas Zodrow takes the position that he wants to support the child both financially and with his love and care. In Besse, the ex-husband wanted to escape any obligation he had to support the child. In Besse, both the husband and wife admitted that they knew Mr. Besse was not the biological father of the child at the time of the marriage and divorce. In the present case, Tom Zodrow has maintained throughout the litigation that he is the father of the child.
In Besse, there were no other children involved whose interests were to be considered. In the present case, the trial court correctly perceived that the dynamics of the situation involved three adults and two children and that their lives are now inextricably intertwined. The trial court’s finding continued a relationship that otherwise might be severed. The trial court was properly concerned as to what effect an amendment of the divorce decree would have on both Amanda and Leigh Christopher.
The record is undisputed that, at the time of the hearing on Thomas Zodrow’s motion to enforce his visitation rights, Carolyn Zodrow had already received the results of the blood tests and did not present them to the trial court. She only took the position that Tom Zodrow should be denied visitation rights. In the present case, the child Leigh Christopher and the cousin are not parties to this litigation. The only parties are Carolyn Zodrow and Thomas Zodrow. As noted above, there is no action now pending brought by the cousin to determine whether he is the father of the child.
Under all of the circumstances, we cannot say that the trial court abused its discretion in denying the motion of Carolyn Zodrow to modify the decree of divorce or in refusing to require Tom Zodrow to submit to a blood test.
The judgment of the district court is affirmed. The judgment of the Court of Appeals is reversed. | [
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The opinion of the court was delivered by
Herd, J.:
This is an action by the appellant, Charles Lester Newland, Jr., (Charles Newland), to set aside the journal entry of final settlement in the estate of his father, Lester Charles New-land (Lester Newland), deceased.
Lester Newland died intestate on November 8, 1982, a resident of Wallace County, Kansas. Some forty years before, on September 19, 1942, he married Mildred Florence Herbert in Pepperell, Massachusetts. As a result of this marriage a son, Lester Charles Newland, Jr., was born on January 17, 1944. The son, who is the appellant in this action, later used the name “Charles Lester Newland, Jr.” Not long after his son’s birth, Lester Newland displayed signs of violence and his wife feared for the life of herself and her son; consequently, Mildred left her husband when the son was approximately nine months old. Lester and Mildred were divorced in July of 1945. From that time on, Lester Newland did not see his son again.
Approximately twenty years before his death, Lester Newland was adjudicated an incapacitated person and his father was appointed as his conservator. After the father’s death, Lester’s mother became his conservator. Following her death, Jesse Linder, a local attorney, was appointed as conservator. Linder served in this capacity until Newland’s death.
At the time of his death, Lester Newland was survived by his son and one brother and four sisters. The brother and sisters had never met the son and had little knowledge of his whereabouts. Upon the death of Lester Newland, Clifford A. Newland, decedent’s brother, filed a petition to probate the estate, stating that the decedent’s only known heir was his son whose whereabouts were unknown and praying that he (Clifford Newland) be appointed administrator of his brother’s estate. The decedent’s four sisters then filed an answer, requesting the appointment of an independent administrator. On January 10, 1983, District Magistrate Judge Logan Dobbs ruled in favor of the objecting heirs and appointed the First National Bank in Goodland as administrator. In its order, the court also found:
“To this date due diligence has been exercised in the search for names, ages, relationships, and residence and addresses of heirs. Additional information will have to be obtained with respect to a child-named Lester Charles Newland, Jr.”
On March 2,1983, the Bank filed an inventory and valuation of the estate, showing its total appraised value to be $106,707.95. The estate was made up almost entirely of stocks, bonds, and savings.
The Bank, as administrator, took a number of steps to locate the decedent’s son, none of which proved successful. Ultimately, the Bank petitioned the court for final settlement alleging Lester Charles Newland, Jr., was the only child of the decedent and stating a diligent search for him had been made, but he could not be found. The petition further alleged the brother and sisters of the decedent were his only heirs.
The magistrate judge entered a Journal Entry of Final Settlement on March 19, 1984, assigning and distributing the estate to the brother and sisters of the decedent.
Approximately two months after the journal entry was filed, the decedent’s son appeared. Jesse Linder, as attorney for the son, filed a petition seeking to reopen the estate. Mr. Linder was later replaced by Thomas Oglevie as counsel for the appellant. Ultimately, the matter was submitted to the district court, by agreement of counsel, on briefs, with the exception of an evidentiary hearing on the identity of Charles Lester Newland, Jr. At that hearing, which took place on August 6, 1984, the district judge found the petitioner, Charles Lester Newland, Jr., to be the son of Lester Charles Newland, Sr.
After examining the briefs and record, the district court ruled in favor of the administrator and against the petitioner. The Court of Appeals affirmed in an unpublished per curiam decision. We granted review.
Additional facts will be considered and discussed where relevant.
Prior to considering the numerous allegations of error raised by the appellant, we first note the basis upon which the district court judgment .is attacked.
K.S.A. 59-2213 provides that the court shall have control of its orders, judgments, and decrees for thirty days after the rendition thereof. Thereafter, such orders, judgments, and decrees may be modified as provided by K.S.A. 60-260(b) of the Code of Civil Procedure.
Since the appellant did not challenge the district court’s judgment until after more than thirty days had gone by, he now relies on K.S.A. 60-260(b). That statute provides:
“On motion and upon such terms as are just, the court may relieve a party or said party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under K.S.A. 60-259 (b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subsection (b) does not affect the finality of a judgment or suspend its operation. This section does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as provided in K.S.A. 60-309 or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in this article or by an independent action.”
In seeking to overturn the judgment, appellant relies primarily upon sections (1), (4), and (6) of K.S.A. 60-260(b). Before considering the application of these sections to the present case, we first consider the appellee’s contention that a final judgment in a probate case, if not appealed from, is not subject to collateral attack, except for fraud. Cessna v. Carroll, 178 Kan. 650, 657, 290 P.2d 803 (1955). Middendorf v. Kansas Power & Light Co., 166 Kan. 610, Syl. ¶ 2, 203 P.2d 156 (1949). Appellee suggests that the motion of appellant is a collateral attack and since there were no allegations .of fraud, the motion must fail.
We do not disagree with the general rule regarding collateral attacks set forth by the appellee. Rather, we hold that the attack made upon the judgment by the appellant in this case is a direct attack, rather than a collateral attack. The distinction between direct and collateral attacks is simply stated at 46 Am. Jur. 2d, Judgments § 631, p. 790:
“The distinction between a direct and collateral attack upon a judgment is sometimes based upon the purpose of the proceeding or action in which the attack is made. Under this distinction, an attack is regarded as direct where the proceeding in which it is made is brought for the purpose of impeaching or overturning the judgment, and as collateral if made in any manner other than by a proceeding the very purpose of which is to impeach or overturn the judgment. Stated affirmatively, this rule is that a collateral attack upon a judgment is an attack made by or in an action or proceeding that has an independent purpose other than the impeaching or overturning of the judgment, although impeaching or overturning the j udgment may be necessary to the success of the action. Under this rule, an attack is regarded as collateral where the regularity of the judgment is presented as an incidental issue.”
The attack upon the judgment made by the appellant in this case is part of the original action and was brought for the purpose of overturning the judgment, and as such it constitutes a direct attack. Accordingly, the appellant has properly relied upon K.S.A. 60-260(b), which authorizes a direct attack upon a judgment when certain specified circumstances provide a basis for relief.
Appellant first suggests the judgment should be overturned under K.S.A. 60-260(b)(4) as void for lack of jurisdiction. Specifically, appellant argues the magistrate judge lacked jurisdiction to order a final settlement because an accounting was not on file with the court, as required by K.S.A. 59-2247.
The Petition for Final Settlement was filed with the magistrate judge on February 17, 1984. Although the petition stated that “a full and true account of Administrator’s receipts and disbursements is filed herein,” no final accounting was filed with the court. However, a final accounting was mailed to the decedent’s brother and sisters, to which they offered no objection. The record does not show the date of such mailing.
Appellant argues that without an accounting on file, the court lacked jurisdiction to hold a hearing on final settlement. As authority for this argument, appellant relies primarily upon K.S.A. 59-2247, which provides:
“The petition of an executor or an administrator for a final settlement and accounting, and a determination of the persons entitled to the estate of a decedent, shall, in addition to other requirements, contain:
“(1) A statement of the account;
“(2) the names, residences, and addresses of the heirs, devisees, and legatees;
“(3) a description of the real estate and the interest of the decedent therein at the time of his or her death; and
“(4) the nature and character of the respective claims of the heirs, devisees, and legatees of the decedent.
“Notice of the hearing thereof shall be given pursuant to K.S.A. 59-2209.” (Emphasis added.)
Appellant also cites K.S.A. 59-2249, which provides that the administrator may be examined relative to the account at the final hearing and K.S.A. 59-2213, which provides that no judgment shall be rendered in a probate proceeding without proof. Appellant argues these statutes, when read together, mandate a finding that the court was without jurisdiction to order a final settlement.
Appellee administrator contends the filing of an accounting is a matter of procedure only and a failure to do so does not disturb the jurisdiction of the court. The bank cites K.S.A. 59-2201, which provides:
“Every application in a probate proceeding, unless made during a hearing or trial, shall be by petition signed and verified by or on behalf of the petitioner. No defect in form shall impair substantial rights; and no defect in the statement of jurisdictional facts actually existing shall invalidate any proceedings.”
Thus, the administrator argues jurisdiction was invoked pursuant to K.S.A. 59-2201 when a proper petition to open the estate was filed, and the matter was set for hearing and notice given. Further, the administrator contends K.S.A. 59-2247, which is relied upon by the appellant, contemplates an alternative procedure in lieu of a final accounting. Specifically, the administrator suggests it is permissible to “waive” a formal detailed accounting if the heirs are informed of the accounts of the estate in a timely and thorough fashion. It should be pointed out that no waivers were filed in this case.
The Court of Appeals ruled that the district court of Wallace County had subject matter jurisdiction of this estate in the first instance and the court could not thereafter lose such jurisdiction. We agree with the Court of Appeals and hold that the failure to file an accounting, while irregular and improper, did not rise to the level of depriving the court of jurisdiction to order a final settlement of the estate.
Appellant next contends that when he could not be found by the administrator, the court should have either paid the net estate to the county treasurer as unclaimed money pursuant to K.S.A. 59-1508, appointed a trustee for the absent heir as provided in K.S.A. 59-2702, or made a finding of death based on the presumption of death of the missing heir. K.S.A. 59-1508 provides:
“If any part of the money on hand has not been paid over because the person entitled thereto cannot be found or refuses to accept the same, or for any other good and sufficient reason, the district court may order the executor or administrator to pay the same to the county treasurer for the same disposition as is provided by K.S.A. 20-2801 for moneys received from forfeitures, except that if the person to whom said sum is ordered to be paid refuses to accept the same when it is tendered such person by the executor or administrator, the court may, either before or after the sum has been deposited, order the same to be paid and distributed to those who would be entitled thereto had the refusing legatee or distributee not been entitled to it.
“Upon application to the district court within ten (10) years after such deposit, and upon notice to the county attorney and the county treasurer, the court may order the county treasurer to pay the same to the person entitled thereto. No interest shall be allowed or paid thereon, and if the deposit is not claimed within such time no recovery thereof can be had.” (Emphasis added.)
K.S.A. 59-2702 is part of an act concerning estates of absentees (K.S.A. 59-2701 et seq.) and provides as follows:
“A trustee may be appointed for the estate of any such absentee to administer the same until such time as he or she returns or is found to be dead in accordance with the subsequent provisions hereof. A petition for the appointment of such trustee may be filed by any person.”
With respect to K.S.A. 59-1508, the magistrate judge ruled:
“It seems to me that the statute does not contemplate paying the money to the County Treasurer to be held for ten years if there are any heirs that can be found. I don’t think there’s any — I haven’t found any law that tells me any differently than that. It would be a shame, of course, if we had to hold a hundred thousand dollars in the County Treasurer’s Office and then the heirs who are the next one entitled to share are elderly and they all die in the meantime and here we’ve got a hundred thousand dollars setting there in the County Treasurer’s Office that finally goes to the state or to the county. I think that would be an uncalled for happening. And that certainly could have happened in this particular case. So I can’t believe that the intention of that statute is, regardless of whether you can find an heir or whether you can’t, that it has to be paid into some public fund to be held for ten years to determine whether somebody’s going to show up.”
The Court of Appeals did not comment upon the trial court’s reasoning but instead held the use of the word “may” in K.S.A. 59-1508 indicates that resort to this procedure imaprobate case is discretionary with the district court. The court further held that both K.S.A. 59-1508 and K.S.A. 59-2701 contemplate a situation where the missing heir is the only possible claimant to the estate.
Let us examine this issue. A good discussion of the legislature’s intention in enacting K.S.A. 59-1508 can be found in Ruppenthal v. Maag, 153 Kan. 588, 113 P.2d 101 (1941). In Ruppenthal, the administrator of decedent’s estate could not locate a daughter of decedent and pursuant to R.S. 1923, 22-932 (now K.S.A. 59-1508) paid her distributive share to the county treasurer. The county treasurer immediately paid this money to the various school districts of the county. Nine years later, a conservator was appointed for the daughter’s estate even though no finding was ever made that the daughter or her descendants were dead. The conservator was appointed pursuant to statutory provisions concerning estates of absentees, G.S. 1935, 60-4001 to 60-4026 (1939 Supp.) (now K.S.A. 59-2701 et seq.). The conservator made a demand on the county treasurer for the payment of the daughter’s distributive share to him, but the county officials refused to pay. The conservator then filed suit pursuant to what is now K.S.A. 59-1508, requesting that county officials be ordered to pay him the missing heir’s share. His request was granted but the county did not comply and the conservator appealed, raising a number of issues. Only one of these issues is relevant to the present case: Whether G.S. 1935, 60-4001 to 60-4026 (1939 Supp.) (now K.S.A. 59-2701 et seq.) applied to the case or whether this case was controlled by K.S.A. 59-1508.
After thoroughly examining the legislative history of K.S.A. 59-1508, the court reasoned as follows:
“G.S. 1939 Supp., 60-4001 to 60-4026, inclusive, cover a distinct field which was not dealt with by any previous legislature, while section 59-1508 covers a field to which the very first legislature in this state gave attention and which has been the subject of legislation as a distinct subject from time to time. The end sought which was to enable the person entitled to an unclaimed distributee’s share to appear and prove that he was entitled to that share is provided for in section 59-1508 and has been ever since 1917. There was no remedy for that particular situation which would have caused the legislature to enact 60-4001 to 60-4026. The purpose of that statute [the Estates of Absentees Act] was undoubtedly to provide a procedure in cases where money, or other personal property, or real estate, were being wasted or lost through lack of someone to take care of it. Such is not the case here. This money is in good hands and is as safely kept awaiting the appearance of the person entitled to it as though it were in the hands of a conservator. The two statutes deal with separate things altogether. We have therefore concluded that 60-4001 to 60-4026, inclusive, does not apply to cases such as the one we have here where a distributee’s share of an estate was paid to the county treasurer because the person who was entitled to it could not be found.” (Emphasis added.) 153 Kan. at 595-96.
See also In re Estate of Dinsmoor, 159 Kan. 76, 152 P.2d 58 (1944) and 2 Bartlett, Kansas Probate Law and Practice § 888 (rev. ed. 1953).
We draw two conclusions from the Ruppenthal case and cited commentary. First, in the present case, appellant’s contention that either K.S.A. 59-1508 or K.S.A. 59-2702 should have been utilized by the court, is incorrect. While K.S.A. 59-2702 applies to probating the estate of a missing person which is being wasted, the purpose of K.S.A. 59-1508 is to enable a person entitled to an unclaimed distributee’s share to appear and prove he or she is entitled to that share. Such is the situation in the present case. As in Ruppenthal, this is not a case where money or other personal property, or real estate, were being wasted or lost for lack of someone to take care of it; here we have an ongoing probate proceeding, thus, K.S.A. 59-2702 does not apply.
A second conclusion to be drawn from Ruppenthal is that K.S.A. 59-1508 was available as an optional remedy in the present case. However, the use of the procedure set out in K.S.A. 59-1508 would have been premature here since, in order for the statute to be utilized, there must first have been a determination that the person is entitled to the property on hand and that he or she cannot be found. Here, there was no finding that Charles Lester Newland was entitled to the money.
Despite the fact that K.S.A. 59-1508 was an available remedy in this case, the court’s failure to utilize that statute was not error. We hold that the use of the word “may” in K.S.A. 59-1508 reflects the options the court has where an heir of a decedent is missing at the time of final settlement to (1) hold the estate open for an additional time to find the person entitled to the money; or (2) utilize the provisions of K.S.A. 59-1508.
This brings us to the final issue: Was the district court correct in making a determination that the heirs at law of Lester New-land were the decedent’s brother and four sisters with no proof or finding of Charles Newland’s death? Such a finding of death is essential because under K.S.A. 59-506, Charles Newland, if living, is acknowledged to be the sole heir of Lester Newland. K.S.A. 59-506 provides:
“If the decedent leaves a child, or children, or issue of a previously deceased child or children, and no spouse, all his or her property shall pass to the surviving child, or in equal shares to the surviving children and the living issue, if any, of a previously deceased child, but such issue shall collectively take only the share their parent would have taken had such parent been living.”
Under this statute, Charles Newland’s right to the distribution of his father’s personal estate can be extinguished only by renunciation or upon a finding that Charles Newland preceded his father in death and that he died without issue. Obviously, appellant did not renounce his interest in the estate, nor was a finding of death made in the present case.
Instead, the district court reviewed the facts relating to the search made for the decedent’s son, and determined that due diligence was exercised by the administrator in the search. The court noted that the administrator had inquired of the decedent’s brothers and sisters; checked the records of Wallace County; contacted the social security administration in Colby; and hired a private investigator from Phoenix, Arizona, to try and locate the son. These efforts all proved unsuccessful. The district court then treated the finding of due diligence as a determination that Charles Newland preceded his father in death and died without issue.
The question of whether the administrator exercised due diligence pertains to notice to heirs, not to a determination of death and heirship. See, e.g., In re Estate of Barnes, 218 Kan. 275, 543 P.2d 1004 (1975). Since no proof was offered that Charles New-land preceded his father in death and died without issue, the court’s determination of heirship was not supported by any evidence. This is apparent from the face of the journal entry of final settlement.
The administrator cites Green v. Royal Neighbors of America, 146 Kan. 571, 73 P.2d 1 (1937), and argues that after a period of seven years’ absence, a person’s death may be presumed. In Green, this court held that “seven years’ unexplained absence or disappearance, where the person concerned has been unheard of by those who would be likely to do so, together with a proper showing of diligent but fruitless inquiry concerning him, will suffice as prima facie proof of death to take the issue of fact to the jury or to the court as trier of disputed fact.” 146 Kan. at 577.
Green does not stand for the proposition that the presumption of death is a self-executing presumption. Rather, the presumption of death is a rebuttable presumption which must be asserted after proof of the foundation facts in a hearing for that purpose. No hearing was ever held for the purpose of determination of the appellant’s death, either as a part of the probate proceeding or as an independent action provided for in K.S.A. 59-2704. Instead, the Journal Entry of Final Settlement simply states, “The names and residences of the heirs, who are entitled to [the] Estate, under the laws of distribution of the State of Kansas, who can be ascertained with due diligence are as follows . . . .” The court then listed the names and addresses of the decedent’s brother and four sisters. This determination of heirship violated Kansas law of intestate succession which provides that where the decedent leaves a child and no spouse, the child shall receive the entire estate. K.S.A. 59-506. The court’s action amounted to an unlawful taking of Charles Newland’s property. Even though the technical legal title to Lester Newland’s personal estate vested in the administrator in trust for the payment of debts and costs of administration, Charles Newland, as his sole heir, had a vested right to the distribution of the entire estate, subject to the payment of debts and costs of administration upon the death of Lester Newland, unless he renounced or predeceased his father without issue. Neither occurred. See 31 Am. Jur. 2d, Executors and Administrators § 244. We hold the court’s action in determining heirship was error.
Let us now determine whether the trial court erred in refusing to grant relief under K.S.A. 60-260, when it was apparent the determination of heirship was erroneous.
Appellant suggests the judgment should be overturned under K.S.A. 60-260(b)(l) because he had no knowledge of the death of his father until he was notified of such by Jesse Linder. K.S.A. 60-260(b)(l) allows relief from a judgment on the basis of “mistake, inadvertence, surprise, or excusable neglect.” None of these reasons are applicable here. Charles Newland was merely unaware of his father’s death and the estate proceedings. That, of itself, is not such a mistake as to justify relief from a judgment where proper notice was given. Moreover, the court was not unaware of the existence of Charles Newland. It did not inadvertently or mistakenly fail to name him as the sole heir of Lester Newland. Rather, the court failed to require proof in determining heirship. K.S.A. 60-260(b)(l) does not afford relief for such errors of law.
We hold, however, that under K.S.A. 60-260(b)(6), relief is afforded from a judgment erroneous on its face entered in violation of law. The statute provides:
“On motion and upon such terms as are just, the court may relieve a party or said party’s legal representative from a final judgment, order, or proceeding for the following reasons: . . . (6) any other reason justifying relief from the operation of the judgment.”
We recently considered K.S.A. 60-260(b)(6) in Wirt v. Esrey, 233 Kan. 300, 311, 662 P.2d 1238 (1983). There, we determined that this rule is to be liberally construed “to preserve the delicate balance between the conflicting principles that litigation be brought to an end and that justice be done in light of all the facts.” Here the scales of justice tilt toward the heir who was unlawfully divested of his property.
We hold the district court abused its discretion in denying appellant’s motion to set aside the judgment of final settlement.
The judgment is reversed and remanded to the district court with directions to set aside the journal entry of final settlement and to find Charles Newland to be the sole heir of Lester Newland, deceased. | [
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The opinion of the court was delivered by
Herd, J.:
This is a workers’ compensation case where respondent, Iowa Beef Processors, Inc., (IBP) appeals from the district court’s order awarding claimant, Georgia Murphy, compensation pursuant to K.S.A. 44-510e.
The facts are as follows:
Georgia Murphy began working for IBP as a brisket trimmer on March 30, 1981. Her job required her to pull a twenty to twenty-five pound piece of semi-frozen meat off the line with a hook in her left hand, and then trim the meat down to fifteen to twenty pounds with a knife in her right hand. After the meat was trimmed, Murphy flipped it over and pushed it back onto the line with her right hand. She testified she handled a new piece of meat approximately every eighteen seconds for eight hours a day and that the trimming procedure required her to constantly twist and rotate her hands.
In June or July of 1982, Murphy began experiencing difficulty with her hands becoming numb while she was on the job. She took some personal medical leave and the problem subsided. However, in November or December of 1982 she again began experiencing problems with her hands. She would occasionally drop her knife while working.
At first, the problems were primarily with Murphy’s right hand, wrist, and shoulder. As the problems worsened, she also began experiencing difficulty with her left hand, including muscle spasms and an inability to move her fingers. She sought treatment from the first-aid nurse at IBP, but continued working for a week after seeing the nurse. The nurse suggested she see Dr. Mills in Topeka, who in turn referred her to a Dr. Campbell. Dr. Campbell sent her to a Wichita physician, Dr. John Toohey, who recommended she undergo surgery for carpal tunnel syndrome.
Dr. Toohey performed carpal tunnel surgery on Murphy’s right arm in January of 1983, and on her left arm in March of 1983. In July of 1983, Murphy received a doctor’s release to return to work on a limited basis. However, when she returned, she was informed by IBP’s safety manager that there were no jobs at IBP that did not require work with wrist flexion or a tight grip. Consequently, Murphy quit her job with IBP.
Murphy testified that up to the time of the hearing, she was still having difficulty with pain, numbness, and swelling in her wrists and shoulders. Moreover, after leaving IBP, she moved to South Carolina with her husband, where she has been unable to find employment.
After a hearing, the administrative law judge determined Murphy’s injuries were compensable as scheduled injuries under K.S.A. 44-510d and found she suffered from a 10% permanent partial disability to each forearm. Upon review, the director of workers’ compensation rejected this award and instead found claimant suffered from a 75% permanent partial general disability arising from work-related injuries to both forearms. The director further held that claimant should be compensated based upon a percentage of disability to the body as a whole, relying on Downes v. IBP, Inc., 10 Kan. App. 2d 39, 691 P.2d 42, rev. denied 236 Kan. 875 (1984). The district court adopted the director’s findings and conclusions and affirmed the director’s award. IBP appeals.
IBP first challenges the district court’s application of Downes v. IBP, Inc., 10 Kan. App. 2d 39, to the facts of the instant case. IBP argues the facts of Downes can be distinguished from those in the case at bar, but, if found to be applicable, should be overruled.
The facts in Downes are nearly identical to those in the present case. There, the claimant, Linda Downes, began to experience pain through her lower arms and wrists and into her palms after working for nearly two years as a trimmer on the respondent IBP’s arm and brisket lines. She was diagnosed as suffering from carpal tunnel syndrome. The administrative law judge found Downes to have suffered a 75% permanent partial disability. The director affirmed, as did the district court.
On appeal, IBP contended Downes suffered a scheduled injury, which is compensable under K.S.A. 44-510d, as opposed to a permanent partial general disability to the body as a whole, compensable under K.S.A. 44-510e. The Court of Appeals affirmed the district court and held that partial disability arising from work-related injuries to both hands is compensable as a percentage of disability to the body as a whole. 10 Kan. App. 2d at 40-41. In so holding, the court relied primarily upon Honn v. Elliott, 132 Kan. 454, 295 Pac. 719 (1931). In Honn, a workman sustained a compensable injury to both his feet. This court held that when a worker suffers partial disability in both feet the compensation should not be computed for each foot separately, but, rather, under the statute providing for compensation for the loss of injury for both feet. The court reached this conclusion by examining the language of a statute, which, though not directly applicable, was highly relevant. Specifically, the court considered R.S. 1923, 44-510(3)(c) (1930 Supp.) [now K.S.A. 44-510c(a)(2)], which provided for compensation for permanent total disability when a worker lost the total use of both arms, feet, or legs. Thus, under Honn, when both hands, arms, feet, or legs are partially disabled, the disability is no longer a scheduled injury under K.S.A. 44-510d, but instead is classified as a permanent partial general disability to the body as a whole under K.S.A. 44-510e.
IBP contends the Honn rule is inapplicable in the present case because the injuries to claimant’s hands did not occur simultaneously as did the injuries to the claimants in Honn and Downes.
In determining that the Honn rule was applicable to the present case, the director reasoned as follows:
“Although the symptoms of injury in each arm manifested at different times, claimant suffered simultaneous insult to her hands, wrists and arms during her period of employment with respondent. She definitely suffered simultaneous aggravation of her symptomatic bilateral carpal tunnel syndrome in November and December, 1982, which forced her to quit work and seek surgical repair for both arms. Following Downes, claimant suffers permanent partial disability arising from work-related injuries to both forearms and should be compensated based on a percentage of disability to the body as a whole.” (Emphasis added.)
IBP argues that in order for the Honn rule to be applicable, claimant must have suffered a work-related accident which resulted in simultaneous injury to parallel extremities, as opposed to a simultaneous period of aggravation which resulted in the same injury to both extremities.
There is no support for IBP’s contention. In Downes, the claimant had been employed as a trimmer for two years when she began to experience pain in her arms and wrists. Thus, it is clear that the injuries in each arm occurred over an extended period of time, rather than simultaneously.
The Court of Appeals determined in Downes that repetitive use injuries to the hands rather than a single traumatic accident to both hands do not make the Honn rule inapplicable. The court reasoned as follows:
“1. As early as 1919 a compensable ‘accident,’ as understood in workers’ compensation law, was defined to include a situation where the physical structure of the worker gives way under the stress of usual labor. Gilliland v. Cement Co., 104 Kan. 771, 777, 180 Pac. 793 (1919).
“2. In 1949 the court stated, ‘[i]f injury occurring as the result of a single accident is compensable, surely we will not declare that injury resulting from a dozen or more of the same or similar accidents, all occurring in the course of the employment, is noncompensable.’ Winkelman v. Boeing Airplane Co., 166 Kan. 503, 508, 203 P.2d 171 (1949). See also Demars v. Rickel Manufacturing Corporation, 223 Kan. 374, 573 P.2d 1036 (1978).” Downes v. IBP, Inc., 10 Kan. App. 2d at 41.
We think the Court of Appeals’ reasoning is sound and it is hereby adopted by this court. Moreover, as pointed out by the director, the aggravation to claimant’s arms and hands was simultaneous, even though the injuries did not manifest them selves simultaneously. As additional support for its argument that K.S.A. 44-510e does not apply, IBP places significance on the fact that both of Murphy’s arms were not operated on in the same operation. IBP’s reasoning is not sound. It is logical to operate on hands and arms separately to leave the patient the capability of one hand for caring for himself or herself.
We hold that where a claimant’s hands and arms are simultaneously aggravated, resulting in work-related injuries to both hands and arms, the injury is compensable as a percentage of disability to the body as a whole under K.S.A. 44-510e.
IBP next challenges the district court’s award of unauthorized medical expenses for the payment of a physician’s bill on behalf of the claimant pursuant to K.S.A. 44-510(c). The facts relevant to this issue are as follows:
Murphy was directed by IBP to receive authorized medical care pursuant to K.S.A. 44-510(a) from Drs. Campbell, Mills, Toohey, and Walters. On February 23, 1984, Dr. Ernest Schlachter examined Murphy at the request of her attorney. At that time, Dr. Schlachter received from Murphy her relevant medical history, and her present complaints and symptoms, conducted a physical examination, and rendered a diagnosis. In addition, Dr. Schlachter gave a recommendation with respect to Murphy’s future employment activities and stated his opinion as to permanent impairment of function. The cost of his examination was $100.
The district court found that the examination by Dr. Schlachter was unauthorized medical treatment as defined by K.S.A. 44-510(c) and ordered IBP to pay Dr. Schlacter’s bill of $100 on claimant’s behalf.
IBP now contends Murphy has not established her right to unauthorized medical reimbursement pursuant to K.S.A. 44-510. That statute provides in pertinent part:
“Except as otherwise provided in this act, medical compensation under the workmen’s compensation act shall be as follows: (a) It shall be the duty of the employer to provide the services of a physician, and such medical, surgical and hospital treatment, including nursing, medicines, medical and surgical supplies, ambulance, crutches, and apparatus, and transportation to and from the home of the injured employee to a place outside the community in which such employee resides, and within such community if the director in the director’s discretion so orders, as may be reasonably necessary to cure and relieve the employee from the effects of the injury. . . .
“(b) Any physician, nurse, medical supply establishment, surgical supply establishment, ambulance service or hospital who accept the terms of the workmen’s compensation act by providing services or material thereunder shall be bound by the fees approved by the director and no injured employee or dependent of a deceased employee shall be liable for any charges above the amounts approved by the director. If the employer has knowledge of the injury and refuses or neglects to reasonably provide the benefits herein required, the employee may provide the same for such employee, and the employer shall be liable for such expenses subject to the regulations adopted by the director.
“(c) If the services of the physician furnished as above provided are not satisfactory to the injured employee, the director may authorize the appointment of some other physician subject to the limitations set forth in this section and the regulations adopted by the director. If the services of a physician furnished as above provided are not satisfactory to the injured employee, such employee may consult, without the approval of the director, another physician of the employee’s own choice, and the employer shall pay the fees and charges therefor. If such fees and charges are for examination, diagnosis, or treatment, such fees and charges shall not exceed a total amount of $350.” (Emphasis added.)
In support of its contention that claimant was not entitled to unauthorized medical expenses under K.S.A. 44-510, IBP cites our recent decision in Houston v. Kansas Highway Patrol, 238 Kan. 192, 708 P.2d 533 (1985).
The claimant in Houston was a highway patrolman who was struck by an automobile while writing a speeding ticket. He was taken to the emergency room and later released. When he continued to experience pain, he visited his chiropractor, Dr. Wilson. Dr. Wilson treated him and referred him to Dr. Shaw, who performed surgery. The district court determined Wilson was an unauthorized physician under K.S.A. 1978 Supp. 44-510(c). (Except for the increase in the fee provided for in (c) to $350.00 K.S.A. 44-510[a], [b], and [c] is comparable to the 1978 form of the statute.) The respondent disagreed. The majority of this court interpreted K.S.A. 44-510(a), (b), and (c) as follows:
“In reviewing the statute, we see that section (a) places a duty on the employer to provide a physician for the injured worker. Section (b) lets the injured worker select his own physician if the employer neglects or refuses to do so after notice of the injury. Section (c) permits the injured worker to have a different physician appointed by the director if the worker is dissatisfied with the physician provided by the employer in (a). Further, if the worker is dissatisfied with the new physician appointed by the director, he may select his own, but the employer is not liable for more than $150.00 [now $350.00] for the services of such unauthorized physician.” 238 Kan. at 198.
Applying this interpretation, we held in Houston that the charges of Dr. Wilson were compensable under K.S.A. 44-510(b) rather than K.S.A. 44-510(c). We reasoned that the employer had not provided a physician (as provided for under K.S.A. 44-510[a]), so the worker obtained his own physician, as contemplated by 44-510(b). We further noted that this was not a situation where the worker was dissatisfied with the physician provided by his employer, requested a change through the director, became dissatisfied with the new physician, and selected his own physician (as contemplated by K.S.A. 44-510[c]).
If we follow our holding in Houston in the present case, we would overrule the district court and hold that the examination of Murphy by Dr. Schlachter was not an unauthorized medical treatment as defined by K.S.A. 44-510(c) and claimant is not entitled to an award for unauthorized medical expenses. This result is required since, according to Houston, if a claimant is dissatisfied with a provided physician, he must first apply for a change of physician, become dissatisfied with the new physician appointed by the director, and then seek another opinion from a physician selected on his own. Obviously, the Houston procedure was not followed by the claimant in the present case, and in spite of that the district court awarded claimant unauthorized medical expenses.
It is argued the language in Houston is dicta and therefore can be disregarded. We do not agree with that argument. An interpretation of K.S.A. 44-510(c) was necessary for a resolution of the issues in Houston; it is therefore a precedent for this case and must be dealt with accordingly. Let us reconsider the rationale of Houston set out above. It is argued that K.S.A. 44-510(c) provides a choice if the worker is dissatisfied with the services of the physician provided by the employer under K.S.A. 44-510(a), rather than as we reasoned in Houston. The worker may either petition the director for the appointment of some other physician, the total cost to be paid by the employer, or the employee may consult a physician of the employee’s choice without approval of the director. If the employee chooses his own physician without approval of the director, the charges are limited to a total of $350. It is further argued that if the statute is interpreted as required in Houston, it will result in an overworked administrative system, delay decisions, and add to the expenses incurred by all parties.
A recent article in the Journal of the Kansas Trial Lawyers Association states:
“It is respectfully submitted by this writer that the Supreme Court [in Houston] has inadvertently misstated the meaning of K.S.A. 44-510(c). The dicta states that the worker can only select his own physician if he is dissatisfied with a new physician which has been appointed by the Director. A careful reading of the statute leads to the conclusion that the worker is allowed to select his own physician if he is dissatisfied with the physician provided by the employer.”
The article continues:
“The key to interpretation of this statute is found in the phrase, ‘physician furnished as above provided’. Both of the options in section (c) begin with this phrase. Both phrases and therefore both options, appear to refer to section (a) which requires the employer to furnish the worker with a physician. The effect of the dicta quoted earlier is to require the use of the first option before the second becomes available.” Jordan, Unauthorized Medical: A Changing Concept, Vol. IX, No. 3, J.K.T.L.A. 8 (1986).
A careful reading of K.S.A. 44-510(c) indicates that both references to “services of a physician furnished as above provided” refer to K.S.A. 44-510(a). Accordingly, we hold that K.S.A. 44-510(c) allows an employee who is dissatisfied with an approved physician either to ask the director to appoint a new physician, or to employ another physician of his or her choice. Any statements in Houston inconsistent with this opinion are overruled. The district court’s' award of unauthorized medical expenses to the claimant pursuant to K.S.A. 44-510(c) is affirmed.
IBP next argues that the trial court has systematically denied it due process and equal protection of the law by adopting orders of the workers’ compensation director instead of granting a trial de novo on the record. This issue has been raised for the first time on appeal and is not properly before this court. It need not be addressed. We have often held that where constitutional grounds for reversal are asserted for the first time on appeal, they are not properly before the appellate court for review. Malone v. University of Kansas Medical Center, 220 Kan. 371, 374, 552 P.2d 885 (1976) (quoting State v. Estes, 216 Kan. 382, Syl. ¶ 3, 532 P.2d 1283 [1975]); Kansas State Board of Healing Arts v. Seasholtz, 210 Kan. 694, 698, 504 P.2d 576 (1972).
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The opinion of the court was delivered by
Moritz, J.;
Carol Ann Ryser, M.D., appeals from the district court’s order denying her petition to revoke an administrative subpoena issued by the Kansas Board of Healing Arts (Board). We affirm the district court’s determination that Ryser was not required to exhaust administrative remedies before seeking relief from the district court under K.S.A. 65-2839a(b)(3)(B). And on the merits of this appeal, we affirm the district court’s denial of Ryser s petition based on our conclusion that the Board had authority under the Kansas Healing Arts Act, K.S.A. 65-2801 et seq. (Act), to investigate and subpoena Ryser, a Kansas licensee who was practicing under tire Act, even though the investigation was based upon her practice of medicine in Missouri.
Factual and Procedural Background
Ryser is licensed to practice medicine in Kansas and Missouri. In August 2009, the Board opened a disciplinary investigation based on information that a patient Ryser treated in Missouri had filed a lawsuit against Ryser alleging medical negligence, fraud, and misrepresentation. As part of its investigation, the Board issued a subpoena requesting the production of documents related to Ry-ser s treatment of the Missouri patient.
In October 2009, Ryser filed a petition in district court under K.S.A. 65-2839a(b)(3)(B) seeking revocation of the subpoena. Ry-ser argued the subpoena did not seek evidence relevant to a lawful investigation because the Board lacked authority to investigate or discipline her based on her practice of medicine in Missouri.
In response, the Board challenged the district court’s jurisdiction to review the subpoena, arguing Ryser failed to exhaust administrative remedies or to demonstrate she was entitled to interlocutory review of a nonfinal agency action as required by the Kansas Judicial Review Act, K.S.A. 77-601 et seq. (KJRA). Substantively, the Board argued it had authority to investigate Ryser’s practice of medicine and to issue the subpoena because Ryser is a Kansas licensee and the allegations in the Missouri lawsuit, if true, constituted grounds for discipline under the Act.
The district court rejected the Board’s jurisdictional challenges and determined K.S.A. 65-2839a(b)(3)(B) permitted Ryser to directly petition the court for an order revoking the subpoena without first exhausting administrative remedies. The court then determined the Board had authority to investigate Ryser’s actions in Missouri and to issue the subpoena because Ryser is a Kansas licensee who was practicing medicine within the meaning of the Act. The court reasoned that the Act “implies that some sort of action must be taken by the professional [but] does not indicate that the licensee must take that action in the State of Kansas.”
Ryser filed a timely notice of appeal in the Court of Appeals, and the case was transferred to this court on this court’s own motion under K.S.A. 20-3018(c).
Ryser Was Not Required to Exhaust Administrative Remedies Before Petitioning the District Court to Revoke the Subpoena under K.S.A. 65-2839a(b)(3)(B).
In the district court, the Board argued Ryser failed to exhaust administrative remedies as required by the KJRA and that this failure deprived the district court of jurisdiction to consider Ryser’s application for review in the district court. But the Board did not cross-appeal the district court’s determination diat Ryser was not required to exhaust administrative remedies before seeking relief from the district court under K.S.A. 65-2839a(b)(3)(B). Instead, in its initial appeal brief, the Board asserted that this court need not address the administrative exhaustion issue because neither party raised the issue on appeal.
But we have a duty to question jurisdiction on our own initiative. See State v. Comprehensive Health of Planned Parenthood, 291 Kan. 322, 352, 241 P.3d 45 (2010); see also Friedman v. Kansas State Bd. of Healing Arts, 287 Kan. 749, 752, 199 P.3d 781 (2009) (Parties cannot confer subject matter jurisdiction by consent, waiver, or estoppel, including a failure to object.). Significantly, if the district court lacked jurisdiction to enter the order Ryser appeals from, this court cannot acquire jurisdiction over the subject matter on appeal. See Friedman, 287 Kan. at 752. And when the record shows a lack of jurisdiction, we have a duty to dismiss the appeal. State v. Gill, 287 Kan. 289, 294, 196 P.3d 369 (2008).
This court issued a show cause order requesting the parties to file supplemental briefs as to why the appeal should not be dismissed for lack of subject matter jurisdiction and specifically for a failure to exhaust administrative remedies. In its supplemental brief, the Board reversed course and asserted the appeal should be dismissed for lack of appellate jurisdiction based on Ryser’s failure to exhaust administrative remedies under the KJRA and the Act. Ryser also filed a supplemental brief, continuing to maintain that K.S.A. 65-2839a(b)(3)(B) does not require administrative exhaustion before seeking review of a subpoena in district court.
Standard of review
Whether jurisdiction exists is a question of law over which we exercise unlimited review. Shipe v. Public Wholesale Water Supply Dist. No. 25, 289 Kan. 160, 165, 210 P.3d 105 (2009). Similarly, we exercise unlimited review over the question of whether a party is required to exhaust administrative remedies. Sandlin v. Roche Laboratories, Inc., 268 Kan. 79, 82, 991 P.2d 883 (1999); Litzinger v. Bruce, 41 Kan. App. 2d 9, 11, 201 P.3d 707 (2008). Finally, to the extent this issue requires interpretation of the KJRA or the Act, our review is also unlimited. See Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009).
The KJRA’s exhaustion requirement
The Board contends the KJRA precludes review of the administrative subpoena issued to Ryser because: (1) Ryser failed to seek Board review of the subpoena as provided in K.S.A. 65-2839a(b)(l) before filing her application for judicial review, thus failing to exhaust her administrative remedies as required by K.S.A. 2011 Supp. 77-612; and (2) tire Board’s issuance of the subpoena was a nonfinal agency action and Ryser failed to seek to file an interlocutory appeal under K.S.A. 77-607 before filing her application for judicial review.
Ryser contends that despite the KJRA’s broad application to agency actions, the specific statute at issue here, K.S.A. 65-2839a, is inconsistent with, and cannot be reconciled with, the KJRA. Accordingly, she contends the KJRA’s exhaustion requirements do not apply to K.S.A. 65-2839a(b)(3)(B).
Thus, to determine whether Ryser was required to exhaust administrative remedies before seeking relief from the district court under K.S.A. 65-2839a(b)(3)(B), we must interpret and reconcile provisions of the Act and provisions of the KJRA. In doing so, we are mindful of the most fundamental rule of statutory construction—i.e., that the intent of the legislature governs if that intent can be ascertained. Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 607, 214 P.3d 676 (2009).
We first attempt to ascertain legislative intent by reading the plain language of the statutes and giving common words their ordinary meanings. Padron v. Lopez, 289 Kan. 1089, 1097, 220 P.3d 345 (2009). When a statute is plain and unambiguous, we do not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it. But when the statute’s language or text is unclear or ambiguous, we “employ canons of construction, legislative history, or other background considerations to divine the legislature’s intent and construe the statute accordingly. [Citation omitted.]” Stewart Title of the Midwest v. Reece & Nichols Realtors, 294 Kan. 553, 564-65, 276 P.3d 188 (2012).
Under the KJRA, the Board is an administrative agency, see K.S.A. 77-602(a) and (k), and its act of issuing an investigative subpoena is an agency action. See K.S.A. 65-2839a(b)(l) (giving Board authority to issue investigative subpoenas); K.S.A. 77-602(b)(3) (defining “agency action” to include “an agency’s performance of ... any other duty, function or activity, discretionaiy or otherwise”). More specifically, the Board’s act of issuing an investigative subpoena is a nonfinal agency action. See K.S.A. 77-607(b)(2) (defining nonfinal agency action to include tire whole or a part of an agency investigation); Williams Gas Pipelines Central, Inc. v. Kansas Corporation Comm'n, 27 Kan. App. 2d 573, 579, 7 P.3d 311 (holding that the “institution of an investigation docket does not as a matter of law represent ‘final agency action’ that would afford judicial review under K.S.A. 77-607”), rev. denied 270 Kan. 904 (2000).
The Act specifically provides that “[j]udicial review and civil enforcement of any agency action under [the Healing Arts Act] shall be in accordance with the [KJRA].” K.S.A. 2011 Supp. 65-2851a(b); see also K.S.A. 2011 Supp. 77-603(a) (establishing that the KJRA applies to “all agencies and all proceedings for judicial review ... of agency actions not specifically exempted by statute from the provisions of [the KJRA]”); K.S.A. 2011 Supp. 77-603(c) (containing no exemptions for agency actions under the Healing Arts Act); K.S.A. 77-606 (establishing the KJRA as “the exclusive means of judicial review of agency action,” subject to K.S.A. 2011 Supp. 77-603).
Under the KJRA, a prerequisite to filing a petition for judicial review is the exhaustion of “all administrative remedies available within the agency.” K.S.A. 2011 Supp. 77-612; Friedman, 287 Kan. at 752. And, under the KJRA, a person is entitled to interlocutory review of a nonfinal agency action “only if: (a) It appears likely that the person will qualify under K.S.A. 77-607 for judicial review of the related final agency action; and (b) postponement of judicial review would result in an inadequate remedy or irreparable harm disproportionate to the public benefit derived from postponement.” K.S.A. 77-608.
But despite the broad language of the KJRA regarding its application to judicial review of final and nonfinal agency actions, K.S.A. 65-2839a(b)(3)(B) provides a specific procedure for judicial review of Board-issued subpoenas which differs significantly from, and cannot be reconciled with, the judicial review contemplated under the KJRA. K.S.A. 65-2839a(b) provides, in relevant part:
“(b) For the purpose of all investigations and proceedings conducted by the board:
(1) The board may issue subpoenas compelling the attendance and testimony of witnesses or the production for examination or copying of documents or any other physical evidence if such evidence relates to medical competence, unprofessional conduct or the mental or physical ability of a licensee safely to practice the healing arts. Within five days after the service of the subpoena on any person requiring the production of any evidence in the person’s possession or under the person’s control, such person may petition the board to revoke, limit or modify the subpoena. The board shall revoke, limit or modify such subpoena if in its opinion the evidence required does not relate to practices which may be grounds for disciplinary action, is not relevant to the charge which is the subject matter of the proceeding or investigation, or does not describe with sufficient particularity the physical evidence which is required to be produced. Any member of the board, or any agent designated by the board, may administer oaths or affirmations, examine witnesses and receive such evidence.
(2) Any person appearing before the board shall have the right to be represented by counsel.
(3) The district court, upon application by the board or by the person subpoenaed, shall have jurisdiction to issue an order:
(A) Requiring such person to appear before the board or the board[’s] duly authorized agent to produce evidence relating to the matter under investigation; or
(B) revoking, limiting or modifying the subpoena if in the court's opinion the evidence demanded does not relate to practices which may be grounds for disciplinary action, is not relevant to the charge which is the subject matter of the hearing or investigation or does not describe with sufficient particularity the evidence which is required to be produced.” (Emphasis added.)
For the following reasons, we conclude neither the KJRA’s exhaustion requirement nor its specific procedures for judicial review apply to the judicial review procedures established in K.S.A. 65-2839a(b)(3)(B).
First, the plain language of K.S.A. 65-2839a(b)(3) provides for an “application” to the district court for limited review of a specific, nonfinal agency action rather than a “petition for judicial review” of a final agency action.
Second, in contrast to the requirements for review of a nonfinal agency action under the KJRA, K.S.A. 65-2839a(b)(3)(B) gives the district court authority to revoke, limit, or modify a Board-issued subpoena without consideration of whether the applying party would be entitled to judicial review of any final action taken by the Board or whether postponing review would result in “irreparable harm.” See K.S.A. 77-608 (establishing criteria for interlocutory review of nonfinal agency actions under the KJRA).
Third, the plain language of K.S.A. 65-2839a(b)(3)(B) sets forth a straightforward review procedure and limits the district court’s options for disposition. Specifically, upon application of the subpoenaed party, the district court has jurisdiction to issue an order revoking, limiting, or modifying a Board-issued subpoena if the court finds that “the evidence demanded does not relate to practices which may be grounds for disciplinary action, is not relevant to the charge which is the subject matter of the hearing or investigation or does not describe with sufficient particularity the evidence which is required to be produced.” K.S.A. 65-2839a(b)(3)(B).
The specific procedural and dispositional limits imposed under K.S.A. 65-2839a(b)(3)(B) contrast sharply with the more expansive procedures and dispositions contemplated under the KJRA. See, e.g., K.S.A. 77-610 (setting forth requirements for initiating a petition for judicial review, costs, and types of relief that may be sought); K.S.A. 2011 Supp. 77-614 (setting forth requirements for filing a petition, contents of a petition, and service of process); K.S.A. 2011 Supp. 77-621(c) (setting forth scope of review, listing eight different types of agency actions that may entitle a petitioner to relief); K.S.A. 77-622 (authorizing courts to award damages or compensation under some circumstances and to grant several different types of relief); K.S.A. 77-624 (authorizing civil enforcement of agency actions including enforcement of a subpoena, discovery order, or protective order by filing a petition for civil enforcement in the district court).
Under these circumstances, we simply cannot reconcile the KJRA or its administrative exhaustion and “final agency action” requirements with the limited application procedure permitted under K.S.A. 65-2839a(b)(3)(B) for district court review of a nonfinal agency action (i.e., a Board-issued subpoena). Therefore, we conclude the KJRA does not apply to the distinct and limited procedure for judicial review of Board-issued subpoenas established in K.S.A. 65-2839a(b)(3)(B).
Common-law doctrine of exhaustion
But this conclusion does not end our analysis because even if K.S.A. 65-2839a(b)(3)(B) falls outside the reach of the KJRA, the common-law doctrine of administrative exhaustion may still apply. See Friedman, 287 Kan. at 753-54 (“The KJRA codified the [common-law] exhaustion of remedies requirement and, arguably, reduced the court’s discretion to circumvent its employment by setting forth very limited, statutorily defined exceptions.”). Consequently, we next consider whether the language of K.S.A. 65-2839a(b)(l), which provides that “[w]ithin five days after the service of the subpoena . . . such person may petition the board to revoke, limit or modify the subpoena,” creates an administrative remedy that must be exhausted before filing an application or “petition” in district court for review of a subpoena under K.S.A. 65-2839a(b)(3)(B).
We conclude that K.S.A. 65-2839a(b)(l) permits but does not require a person to seek relief from the Board before applying to the district court for review of a subpoena.
The most obvious basis for this conclusion is the permissive language of K.S.A. 65-2839a(b)(l) (i.e., “such person may petition the board to revoke, limit or modify the subpoena”)- Further, the language of subsection (b)(3)(B) supports this analysis in that it provides the district court with “jurisdiction” to review the subpoena based solely upon “application” by the Board or person subpoenaed. If the legislature had intended compliance with subsection (b)(1) to be a condition precedent for applying for relief from the district court under subsection (b)(3)(B), it could have easily provided that requirement in subsection (b)(3)(B).
Further, we find no agency regulation interpreting or applying K.S.A. 65-2839a(b)(l)’s provision for petitioning the Board as a prerequisite to seeking judicial review. Compare 29 U.S.C. § 161(1) (2006) (authorizing National Labor Relations Board (NLRB) to issue subpoenas and providing 5-day time frame within which subpoenaed party may petition NLRB to revoke subpoena) with its interpreting regulation, 29 C.F.R. § 102.31(b) (2011) (“Any person served with a subpoena, ... if he or she does not intend to comply with the subpoena, shall, within 5 days after the date of service of the subpoena, petition in writing to revoke the subpoena.” [Emphasis added.]); see also N.L.R.B. v. Interbake Foods, LLC, 637 F.3d 492, 497-500 (4th Cir. 2011) (discussing the division of authority between the NLRB and the courts regarding subpoenas; recognizing that the NLRB has authority “to revoke subpoenas” and “to make substantive rulings on the grounds for objection to subpoenas,” including objections based on privilege, “with judicial review available only after objections are considered and denied by the Board.”); Hortex Manufacturing Co. v. National Labor Relations Board, 364 F.2d 302, 303 (5th Cir. 1966) (citing 29 C.F.R. § 102.31[b] in support of its conclusion that 29 U.S.C. § 161[1] “contemplates Board action on a motion to revoke a [subpoena] before the jurisdiction of a district court, with its underlying contempt sanction, [may] be invoked in an enforcement proceeding.”).
Applying the common-law doctrine of exhaustion, we conclude K.S.A. 65-2839a(b)(l) permits but does not require a subpoenaed party to petition the Board to revoke, limit, or modify a subpoena before applying for the same relief from the district court under K.S.A. 65-2839a(b)(3)(B).
Before moving to the merits of Ryser s appeal, we note that even if we had concluded that K.S.A. 65-2839a(b)(l) creates an administrative remedy that must be exhausted before applying to the district court for relief under subsection (b)(3)(B), the failure to exhaust that administrative remedy would not necessarily deprive the district court of jurisdiction to consider the subpoenaed party’s application for judicial relief. See, e.g., Chelf v. State, 46 Kan. App. 2d 522, 530-33, 263 P.3d 852 (2011) (discussing efforts by the United States Supreme Court to clarify the distinction between claim-processing rules and jurisdictional limitations and applying the “ ‘administrable bright line’ ” rule from Arbaugh v. Y & H Corp., 546 U.S. 500, 515-16, 126 S. Ct. 1235, 163 L. Ed. 2d 1097 [2006], that a “statutory requirement will not be deemed jurisdictional unless the statute itself reflects a clear indication that the legislature wanted the requirements to be jurisdictional”); see also Forest Guardians v. U.S. Forest Service, 641 F.3d 423, 431-33 (10th Cir. 2011) (discussing jurisdictional and nonjurisdictional exhaustion); Avocados Plus Inc. v. Veneman, 370 F.3d 1243, 1247 (D.C. Cir. 2004) (explaining that “ ‘exhaustion’ ” as it relates to administrative law describes two distinct legal concepts—a judicially created “ ‘non-jurisdictional exhaustion’ ” that can be waived or excused requiring parties who seek to challenge an agency action to exhaust available remedies before seeking judicial review, and a legislatively mandated “ ‘jurisdictional exhaustion’ ” which requires a clear, unequivocal legislative statement barring judicial review until the administrative agency has come to a decision).
The District Court Correctly Denied Ryser’s Motion to Revoke the Subpoena.
Turning to the merits of this appeal, Ryser claims her practice of medicine in Missouri was not a practice which could be “grounds for disciplinary action” under K.S.A. 65-2839a(b)(l), (3)(B) or an investigation for any possible violations under K.S.A. 2011 Supp. 65-2836. Thus, she reasons the Board exceeded its statutory authority by opening the disciplinary investigation and issuing a subpoena for records based on her practice of medicine in Missouri and the district court erred in failing to revoke the subpoena.
The Board contends it has broad authority to investigate possible violations of the Act by any person licensed to practice medicine in Kansas and that the allegations arising from Ryser’s treatment of a patient in Missouri, if true, constituted grounds for discipline under several pi'ovisions of the Act. Therefore, the Board urges us to affirm the district court’s order enforcing tire subpoena.
“Whether an agency has exceeded its statutory authority requires interpretation of the statutes establishing the agency. This presents a question of law subject to unlimited review by an appellate court. [Citation omitted.]” Kansas Industrial Consumers Group, Inc. v. Kansas Corporation Comm’n, 36 Kan. App. 2d 83, 92, 138 P.3d 338, rev. denied 282 Kan. 790 (2006). Similarly, whether the district court erred in interpreting tire Act requires statutory interpretation and is subject to unlimited review. See Unruh, 289 Kan. at 1193.
A district court is authorized to revoke a Board subpoena “if in tire court’s opinion the evidence demanded does not relate to practices which may be grounds for disciplinary action.” K.S.A. 65-2839a(b)(3)(B). Ryser claims the evidence sought by the Board— medical records related to Ryser’s treatment of a patient in Missouri—does not relate to practices which may be grounds for disciplinary action because the Board has no authority to investigate or discipline her for acts related to her practice of medicine in Missouri. We disagree.
The State has broad authority to regulate the practice of medicine. Corder v. Kansas Board of Healing Arts, 256 Kan. 638, 654, 889 P.2d 1127 (1994) (citing Vakas v. Kansas Bd. of Healing Arts, 248 Kan. 589, 601-02, 808 P.2d 1355 [1991]). To that end, the legislature enacted the Act and established the Board as the administrative agency charged with administering the Act under K.S.A. 65-2812.
The Board has authority to enforce the Act “and for that purpose shall make all necessary investigations relative thereto.” K.S.A. 65-2864. As part of any Board investigation or proceeding, the Board has the power to issue subpoenas. K.S.A. 65-2839a(b)(l). The Board is also authorized to appoint a disciplinary counsel who “shall have the power and the duty to investigate or cause to be investigated all matters involving professional incompetency, unprofessional conduct or any other matter which may result in disciplinary action against a licensee pursuant to K.S.A. 65-2836 through 65-2844, and amendments thereto.” K.S.A. 65-2840a; see also K.S.A. 2011 Supp. 65-2836 (setting forth 29 grounds for disciplinary action); K.S.A. 2011 Supp. 65-2837(a), (b) (defining professional incompetency and unprofessional conduct). Finally, the Board “shall have jurisdiction of proceedings to take disciplinary action authorized by K.S.A. 65-2836 and amendments thereto against any licensee practicing under [the Act].” (Emphasis added.) K.S.A. 2011 Supp. 65-2838(a).
Thus, as the district court found, the central question is whether Ryser was a “licensee practicing under [the Act]” when she treated a patient in Missouri. If so, the Board had jurisdiction to investigate and take disciplinary action of that practice, including tire issuance of a subpoena under K.S.A. 65-2839a(b)(l).
Ryser is a “licensee” under the Act
The term “licensee,” as used in K.S.A. 2011 Supp. 65-2836 and K.S.A. 2011 Supp. 65-2837, means “all persons issued a license, permit or special permit pursuant to article 28 of chapter 65 of the Kansas Statutes Annotated.” K.S.A. 2011 Supp. 65-2837(e). Ryser does not dispute that she is a licensee within the meaning of the Act, having been licensed in this state since 1965 and having renewed her license yearly since then. However, throughout her appellate brief, Ryser suggests she is only “incidentally” licensed in Kansas because her primary practice is in Missouri. She fails to explain, however, the meaning or significance of the term “incidental,” although she implies that it somehow exempts her from regulation by the Board.
Curiously, the only relevant reference we find in the Act to the term “incidental” is in K.S.A. 2011 Supp. 65-2872, a statute not specifically addressed by either of the parties. That statute provides that the “practice of the healing arts shall not be construed to include” numerous categories of individuals, including: “Practitioners of tire healing arts licensed in another state when and while incidentally called into this state in consultation with practitioners licensed in this state.” (Emphasis added.) K.S.A. 2011 Supp. 65-2872(j). Clearly, this section exempts practitioners who are not licensed in Kansas but nevertheless are called into tire state to “incidentally” consult with practitioners who are licensed in this state. Ryser does not meet this exception.
We find no exemption under the Act for “incidental” licensees, and for obvious reasons, we would not expect to do so. As this court explained in Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 453, 436 P.2d 828 (1968):
“The whole purpose and tenor of the healing arts act is the protection of the public against unprofessional, improper, unauthorized and unqualified practice of the healing arts. The goal is to secure to the people the services of competent, trustworthy practitioners. The act seeks to do this through licensure. The licensing by the state, granted only after minimal standards of proficiency are met, amounts to the state’s recognition of the licentiate as a qualified practitioner. The continued holding of the license may be taken by the public as official indication those standards are being maintained. The object of both granting and revoking a license is the same—to exclude the incompetent or unscrupulous from the practice of the healing aits.”
Simply stated, the State’s interest is in regulating the professional conduct of persons licensed to practice under the Act. See K.S.A. 65-2801. That interest does not diminish simply because the professional conduct occurred across a state line.
Ryser was “practicing under [the Act]”
Ryser further suggests that her treatment of patients in Missouri does not constitute “practicing under the Act” and therefore she is not subject to discipline under the Act and the subpoena was unauthorized.
The Act does not define the phrase “any licensee practicing under [the Act]” in K.S.A. 2011 Supp. 65-2838(a). But the definitional section of the Act, K.S.A. 2011 Supp. 65-2802, does provide that for “the purpose of this act the following definition shall apply”:
“(a) The healing arts include any system, treatment, operation, diagnosis, prescription, or practice for the ascertainment, cure, relief, palliation, adjustment, or correction of any human disease, ailment, deformity, or injury, and includes specifically but not by way of limitation the practice of medicine and surgery.” (Emphasis added.)
Further, under the Act, the following persons are “deemed to be engaged in the practice of medicine and surgery”:
“(a) Persons who publicly profess to be physicians or surgeons, or publicly profess to assume the duties incident to the practice of medicine or surgery or any of their branches.
“(b) Persons who prescribe, recommend or furnish medicine or drugs, or perform any surgical operation of whatever nature by the use of any surgical instrument, procedure, equipment or mechanical device for the diagnosis, cure or relief of any wounds, fractures, bodily injury, infirmity, disease, physical or mental illness or psychological disorder, of human beings.
“(c) Persons who attach to their name the title M.D., surgeon, physician, physician and surgeon, or any other word or abbreviation indicating that they are engaged in the treatment or diagnosis of ailments, diseases or injuries of human beings.” K.S.A. 65-2869.
Ryser does not dispute that she meets the definition of “engaged in the practice of medicine and surgery” under all three sections of K.S.A. 65-2869. Instead, she contends those sections define individuals who are “deemed to practice medicine in Kansas under the auspices” of the Act. But no such geographic limitation is contained in K.S.A. 65-2869 or, for that matter, anywhere else within the Act.
Ryser also suggests we assume that because K.S.A. 65-2869 does not affirmatively include a physician “practicing in a foreign jurisdiction and being licensed in a foreign jurisdiction as being an individual who engages in the practice of medicine in Kansas,” such physicians are exempt from the Act.
However, Ryser s argument that she is exempt from the Board’s jurisdiction because K.S.A. 65-2869 does not affirmatively include physicians practicing outside Kansas contradicts the language of K.S.A. 2011 Supp. 65-2872. As discussed, that statute lists 18 separate categories of individuals who are deemed not to be engaged in the practice of healing arts. Ryser does not suggest that she comes within any of those numerous exceptions. And, as the district court found, because Ryser is not specifically exempted under that statute, section (o) requires a finding that she is engaged in the “practice” of healing arts. That section provides that “[e]very act or practice falling in the field of the healing art, not specifically excepted [in 65-2872], shall constitute the practice thereof.” (Emphasis added.) K.S.A. 2011 Supp. 65-2872(o).
Finally, Ryser contends the Board’s jurisdiction to investigate and discipline a physician who is “dually or mutually licensed” is limited by K.S.A. 2011 Supp. 65-2836(j). K.S.A. 2011 Supp. 65-2836 provides “[a] licensee’s license may be revoked, suspended, or limited, or the licensee may be publicly or privately censured or placed under probationary conditions” based upon the any of the grounds specified in the statute. One of those numerous grounds, section (j), applies when “[t]he licensee has had a license to practice tire healing arts revoked, suspended or limited, has been censured or has had other disciplinary action taken, or an application for a license denied, by the proper licensing authority of another state.” K.S.A. 2011 Supp. 65-2836(j).
While K.S.A. 2011 Supp. 65-2836 lists the grounds upon which a licensee’s license can be revoked, suspended, or limited, it does not, as Ryser suggests, establish or limit the jurisdiction of tire Board to investigate matters that ultimately may result in disciplinary actions. Moreover, as the Board points out, nothing about section (j) indicates it is the only ground for investigating or disciplining a dually or mutually licensed physician. Nor does section (j) imply that the Board can act only when the licensing authority of another state has first acted.
In conclusion, we hold the Board has jurisdiction to investigate Ryser’s practice of medicine in Missouri under its general authority to take disciplinary action against “any licensee practicing under [the Act]” under K.S.A. 2011 Supp. 65-2838(a). Therefore, the district court correctly held that Ryser’s practice of medicine in Missouri could provide “grounds for disciplinary action” under K.S.A. 65-2839a(b)(l), (3)(B) and an investigation for any possible violations under K.S.A. 2011 Supp. 65-2836.
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The opinion of the court was delivered by
Moritz, J.:
Matthew Astorga appeals his conviction of premeditated first-degree murder, claiming the district court violated his right to present his theory of defense and his right to a trial by an impartial jury. Astorga also challenges the constitutionality of K.S.A. 21-3214(a), which limits a defendant’s ability to assert the justification of self-defense in some cases.
Additionally, Astorga asserts several challenges to his hard 50 sentence, including that the sentencing court erred in (1) finding the existence of several aggravating factors; (2) failing to properly weigh and consider mitigating circumstances; and (3) imposing aggravated presumptive sentences without requiring proof of aggravating factors to a jury beyond a reasonable doubt. Finally, Astorga challenges the constitutionality of the hard 50 sentencing scheme and claims he is entitled to resentencing under the identical offense doctrine. We affirm Astorga’s convictions and sentence but dismiss his challenge to his aggravated presumptive sentence.
Factual and Procedural Background
On December 26, 2008, Matthew Astorga drove to tire home of Ruben Rodriguez, shot and tolled Rodriguez, and drove away. As-torga was arrested after a brief police pursuit. Astorga ultimately pleaded guilty to criminal possession of a firearm and fleeing or attempting to elude a police officer, and he was convicted by a jury of first-degree premeditated murder. We have briefly summarized the trial testimony below. Additional facts are discussed as relevant to our discussion of the issues.
Rodriguez’ girlfriend, Keira Moritz, testified that just before Rodriguez was shot, he was standing in the kitchen of his home and talking on the phone. Moritz’ 2-year-old child and Ryan Fowler were also present in the home. Moritz testified she heard Rodriguez’ truck alarm going off so she handed Rodriguez his keys, and he went to tire door to go out and turn off the alarm. Moritz stood near Rodriguez as he stood in the doorway. She heard a few words and then heard Rodriguez say, “ ‘I don’t play like this.’ ” Moritz looked outside and saw Astorga, whom she recognized from prior meetings, standing outside the house.
At some point, Moritz saw that Astorga had a gun in his hand. She testified she did not see Astorga fire the gun, but she believed she heard two gunshots. After the first shot, she begged Astorga not to shoot because her baby was inside. Moritz tried to protect her child, who stood behind her, by pushing the child under a futon couch. Moritz testified she believed Rodriguez fell after the second shot was fired. After Rodriguez was shot, Moritz and Fowler applied pressure to Rodriguez’ wound until the police arrived.
Kenneth Nichols, who lived across the street from Rodriguez, testified he was at home watching television in his living room and looking out his front door when he saw a black truck he did not recognize park across the street. Nichols testified that “a short stocky guy” got out of the truck and walked into Rodriguez’ yard. Nichols left his front door but returned after hearing what he described as “a gun going off.” Nichols saw the man return to the black truck with a pistol in his left hand, get back into the truck, and drive off. Nichols identified Astorga at trial as the man he saw on the night of the shooting.
Stephanie Wharton, a neighbor one house away from Rodriguez’ home, and her sister, Tracey Wharton, had just arrived at Stephanie’s home when Tracey heard a car alarm. Tracey testified she looked out the window and saw a man leaning up against the hood of a white truck parked in the street and looking toward Rodriguez’ home. The man then pulled out a gun and walked toward Rodriguez’ home. At that point, Tracey went to the phone to call 911. Before she could press “send,” she heard a single gunshot. Tracey yelled at Stephanie to come to the front door. As Tracey spoke to the dispatch operator, she saw a black truck speed away.
Stephanie Wharton testified she was in the restroom and did not hear the car alarm or the gunshot. But she did hear Tracey say, “ ‘Oh my God, there’s a gun. Where’s your phone? Where’s your phone?’ ” Before her sister had hung up the phone after calling 911, Stephanie ran towards Rodriguez’ house, where she could hear Moritz and a child crying. As Stephanie walked inside the home, she saw Rodriguez lying on the floor and Moritz and Fowler hovering over him trying to render aid. Neither Moritz nor Fowler had a firearm, and Stephanie saw no firearm in the living room. Stephanie and Fowler went outside to flag down police.
Astorga testified in his own defense at trial. He admitted shooting Rodriguez, but his version of the shooting and the events preceding it differed materially from that of other witnesses.
Astorga claimed that for some time before he shot Rodriguez, Rodriguez had been pressuring Astorga to repay a drug debt. On December 22, 2008, Astorga went to visit Charlie Fowler, Ryan Fowler’s father. Rodriguez and a man Astorga identified as “Luis” were present at Charlie’s apartment. According to Astorga, Rodriguez confronted Astorga about tire debt, and Rodriguez and Luis kicked and stabbed Astorga. Astorga admitted that he refused to cooperate with law enforcement’s investigation of the stabbing.
Further, Astorga testified that he believed Rodriguez participated in a drive-by shooting of Astorga’s home in the early morning hours of December 26, 2008—the day he shot Rodriguez. Astorga claimed that the officer who responded to the shooting refused to investigate. Astorga admitted, however, that he refused to cooperate with the officer’s investigation.
Astorga testified that about 4:30 p.m. on December 26, 2008, he traded his dune buggy for a .40 caliber pistol and three magazines containing 45 rounds of ammunition. According to Astorga, in order to ensure that the gun worked, he practiced firing it in his backyard, emptying one magazine of 15 rounds. About 8:30 p.m., Astorga drove to Rodriguez’ residence to repay his drug debt, taking the pistol with him for protection. According to Astorga, when he arrived at Rodriguez’ home, he parked his truck in front of Rodriguez’ truck, got out of his truck, and put his pistol in his waistband. Astorga admitted he set off Rodriguez’ truck alarm, although he implied he did so accidentally, saying, “I must have set the alarm off.”
Astorga claimed that when he got out of his truck, Rodriguez was already at the door “acting frantic” and holding a pistol. As-torga testified he shot Rodriguez in self-defense only after Rodriguez shot at him first. Astorga then got back in his truck and drove off at a high rate of speed.
Officer Wade Robinson testified he was on patrol when he heard a call about the shooting. As he headed toward Rodriguez’ house, Robinson saw a black truck traveling at a high rate of speed, and he began to chase it. Astorga eventually turned off on a side street and became stuck in mud. Robinson arrested Astorga and recovered a .40 caliber Glock, a plastic gun case, and three magazines of bullets from the floorboard of his truck. Robinson testified that one magazine was empty, the second contained 15 bullets, and the third held 14 bullets. According to Robinson, a magazine normally holds 15 bullets.
Further, Officer Robinson testified that 4 days before Rodriguez’ shooting, on December 22, 2008, he was called to a local hospital’s emergency room to investigate the admission of a stabbing victim. There, Astorga’s mother told Robinson that a man named Luis Ayala stabbed her son. She did not mention Rodriguez, and Astorga refused to speak to Robinson about the stabbing.
Officer Lisa Gaspard, who responded to Rodriguez’ residence after his shooting, testified that Moritz told her that she had heard only one gunshot and that a bullet went through Rodriguez and into the wall.
Detective Bruce Bradford testified that he located a bullet hole on the north wall of Rodriguez’ living room. It appeared the bullet traveled through the living room wall, into a bedroom, and out the bedroom window into the back yard. Bradford testified the bullet hole was consistent with one created by a .40 caliber handgun. Bradford also testified that a search of Rodriguez’ home revealed no weapons or evidence associated with weapons, although officers did discover methamphetamine and drug paraphernalia inside the home.
The coroner, Dr. Michael Handler, testified Rodriguez died from a distant range gunshot that entered his abdomen and exited through his back. According to Handler, Rodriguez had puncture wounds on his arm consistent with being an IV drug user and had at least one fairly recent puncture wound.
The State charged Astorga with first-degree murder, felony criminal possession of a firearm, and fleeing or attempting to elude a police officer. He was tried by a juiy on all three charges, but before the defense rested Astorga pleaded guilty to criminal possession of a firearm and fleeing or attempting to elude a police officer. The jury found Astorga guilty of first-degree premeditated murder.
The sentencing court denied Astorga’s motion for a new trial and imposed a sentence of life imprisonment with no possibility of parole for 50 years and lifetime postrelease supervision for the murder conviction. Further, the court imposed consecutive aggravated presumptive prison sentences for the remaining convictions and ordered that those sentences be served consecutive to the hard 50 sentence. Astorga appeals his murder conviction and sentence.
Discussion
The district court’s instructions did not violate Astorga’s right to present his theory of defense.
Although the district court gave a self-defense instruction, As-torga claims the district court violated his constitutional right to present his theory of defense when it also instructed the jury, over Astorga’s objection, that “[a] person is not permitted to use force in defense of himself if he is attempting to commit murder, a forcible felony.”
Astorga reasons that this forcible felony instruction was “incon-gruent” with the self-defense instruction and misled the jury, requiring reversal of his murder conviction. The State contends the district court appropriately gave both instructions because there was evidence both that Astorga was committing a forcible felony— murder—and that he shot Rodriguez in self-defense.
We recently set out the progression of analysis and corresponding standards of review to be applied by the appellate court in reviewing a challenge to the giving or failure to give a jury instruction: (1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether tire instruction was legally appropriate; (3) then, the court should determine 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 (4) finally, if the district court erred, die appellate court must determine 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 132 S. Ct. 1594 (2012). State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012).
Since Astorga clearly preserved this issue with an objection to die giving of the “use of force” instruction, we must consider whether that instruction was legally appropriate. Astorga contends that under the circumstances of this case, the instruction was legally inappropriate.
“Under the state and federal Constitutions, a defendant is entitled to present his or her theory of defense.” State v. Lawrence, 281 Kan. 1081, 1085, 135 P.3d 1211 (2006). But the right to present a defense is not absolute. Instead, “ ‘the right... is subject to statutory rules and case law interpretations of the rules of evidence and procedure.’ ” 281 Kan. at 1085 (quoting State v. Lackey, 280 Kan. 190, 216, 120 P.3d 332 [2005]).
Here, Astorga s sole theory at trial was that his use of force was justified as self-defense. Under Kansas law,
“(a) A person is justified in the use of force against another when and to the extent it appears to such person and such person reasonably believes that such force is necessary to defend such person or a third person against such other’s imminent use of unlawful force.
“(b) A person is justified in the use of deadly force under circumstances described in subsection (a) if such person reasonably believes deadly force is necessary to prevent imminent death or great bodily harm to such person or a third person.
“(c) Nothing in this section shall require a person to retreat if such person is using force to protect such person or a third person.” K.S.A. 21-3211.
But in some cases the justification of self-defense is unavailable. K.S.A. 21-3214 provides that the justification of self-defense, as set forth in K.S.A. 21-3211,
“is not available to a person who:
“(1) Is attempting to commit, committing, or escaping from the commission of a forcible felony; or
“(2) Initially provokes the use of any force against himself or another, with intent to use such force as an excuse to inflict bodily harm upon the assailant; or
“(3) Otherwise initially provokes the use of any force against himself or another, unless:
(a) He has reasonable ground to believe that he is in imminent danger of death or great bodily harm, and he has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or
(b) In good faith, he withdraws from physical contact with the assailant and indicates clearly to the assailant that he desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.” K.S.A. 21-3214.
The term “forcible felony” as used in K.S.A. 21-3214(1) is defined as “any treason, murder, voluntary manslaughter, rape, robbery, burglary, arson, kidnapping, aggravated battery, aggravated sodomy and any other felony which involves the use or direat of physical force or violence against any person.” K.S.A. 2008 Supp. 21-3110(9).
During the preliminaiy jury instructions conference, Astorga requested a self-defense instruction. The State did not object, but requested the court give the forcible felony and initial aggressor instructions, PIK Crim. 3d 54.20,54.21, and 54.22, based on K.S.A. 21-3214(1), (2), and (3), respectively. The State argued PIK Crim. 3d 54.21 should be given because the evidence showed Astorga went to Rodriguez’ home either to commit or attempt to commit murder, a forcible felony, as set out in K.S.A. 21-3214(1) and defined in K.S.A. 2008 Supp. 21-3110(9). Further, the State requested that PIK Crim. 3d 54.21 and 54.22 be given because the evidence showed that Astorga provoked the attack and failed to retreat or withdraw from the attack, as described in K.S.A. 21-3214(2) and (3).
The district court gave both the self-defense instruction requested by Astorga and the forcible felony instruction requested by the State, PIK Crim. 3d 54.20, based on K.S.A. 21-3214(1). But Astorga argued it was “incongruent” to give both instructions because the court had already determined he was entitled to a self-defense instruction and tire forcible felony instruction applies when self-defense is not available. The court declined the State’s request to give the initial aggressor instructions, PIK Crim. 3d 54.21 and 54.22, based on K.S.A. 21-3214(2) and (3), respectively.
Ultimately, the district court advised the jury in Instruction No. 10, which mirrored PIK Crim. 3d 54.17, as follows:
“The Defendant claims his use of force was permitted as self-defense.
“The Defendant is permitted to use deadly force against another person only when and to the extent that it appears to him and he reasonably believes deadly force is necessary to prevent death or great bodily harm to himself from the other person’s imminent use of unlawful force. Reasonable belief requires both a belief by defendant and the existence of facts that would persuade a reasonable person to that belief.
“When use of force is permitted as self-defense, there is no requirement to retreat.”
In Instruction No. 11, the court advised the jury: “A person is not permitted to use force in defense of himself if he is attempting to commit murder, a forcible felony.”
We cannot agree with Astorga’s claim on appeal that the forcible felony instruction “effectively nullified” his self-defense instruction. Rather, it appears the district court appropriately gave both instructions under the evidence presented in this case.
For instance, Astorga testified he (1) went to Rodriguez’ home to resolve an unpaid debt, (2) took a gun with him for protection, and (3) shot Rodriguez after Rodriguez shot at him first. These facts support giving the self-defense instruction. See K.S.A. 21-3211(a), (b); see also State v. Anderson, 287 Kan. 325, 333-34, 197 P.3d 409 (2008) (“affirmative-defense-based instructions can only be given when the evidence is sufficient to justify a rational fact-finder finding in accordance with that defense theory” but, “the evidence of the defendant’s theory of defense certainly can be supported only by his or her own testimony”).
On the other hand, the State presented evidence that on the day of the murder, Astorga purchased a gun and practiced shooting it, went to Rodriguez’ home armed with the gun, intentionally set off Rodriguez’ truck alarm, and then shot an unarmed Rodriguez when he came to the door in response to the alarm. These facts support the State’s theory that Astorga shot Rodriguez in an attempt to commit murder, a forcible felony. Thus, if die juiy found that As-torga was attempting to commit murder when he shot Rodriguez, he was not permitted to use force in defense, and the district court appropriately gave the forcible felony instruction. See K.S.A. 21-3214(1); K.S.A. 2008 Supp. 21-3110(9).
The cases cited by the State support giving both instructions. See State v. Hunt, 257 Kan. 388, 391-94, 894 P.2d 178 (1995) (affirming trial court’s decision to give self-defense and initial aggressor instructions; reasoning diat instructions correctly stated the law, question of whether defendant was initial aggressor was for jury and, if jury found defendant was not initial aggressor, jury could “disregard the limit on the defendant’s right to use self-defense”); State v. Beard, 220 Kan. 580, 581-82, 552 P.2d 900 (1976) (affirming trial court’s decision to give self-defense and initial aggressor instructions; reasoning instructions were correct statements of the law, instructions did not declare defendant to be initial aggressor but instead informed jury of the law related to limits on asserting self-defense, and evidence supported a potential finding that defendant was initial aggressor).
We recognize that neither Hunt nor Beard involved the forcible felony instruction given in this case. Instead, the jury in both of those cases received the initial aggressor instructions the court declined to give here. See Hunt, 257 Kan. at 392; Beard, 220 Kan. at 581. However, like the instructions in Hunt and Beard, the instructions given in this case correctly stated the law. And just as the initial aggressor instructions given in Hunt and Beard did not declare the defendant to be the initial aggressor, the forcible felony instruction given in this case did not declare that Astorga was attempting to commit murder when he shot Rodriguez. Instead, it informed the jury that Astorga was not permitted to use force in defense of himself if the jury determined he was attempting to commit murder, a forcible felony. Conversely, if the jury found Astorga was not attempting to commit murder when he shot Rodriguez, the jury was free to disregard the limit on his right to use self-defense. And the State had presented evidence tending to establish that Astorga was attempting to commit murder when he shot Rodriguez.
Under these circumstances, we conclude the district court correctly instructed the jury on the law of self-defense and its unavailability when the defendant is attempting to commit a forcible felony.
Astorga failed to preserve his challenge to the constitutionality of K.S.A. 21-3214(1).
Next, Astorga claims the language of K.S.A. 21-3214(1) is vague and, therefore, unconstitutional. Specifically, Astorga argues the language is insufficient to warn individuals of common intelligence that the justification of self-defense is not available to a person who uses deadly force when committing, attempting to commit, or escaping from the commission of a forcible felony. Astorga further argues this court’s “historically inconsistent” interpretation of K.S.A. 21-3214(1) demonstrates that “the statute does not adequately guard against arbitraiy and discriminatory enforcement.”
Preliminarily, the State asserts Astorga failed to raise this issue below. Astorga acknowledges he failed to raise the issue below but notes that “an appellate court may decide to consider such an issue when arising on admitted facts and where resolution of the issue will serve the ends of justice.”
The rule that issues not raised before the trial court cannot be raised on appeal applies equally to constitutional grounds for reversal asserted for the first time on appeal. State v. Leshay, 289 Kan. 546, 553, 213 P.3d 1071 (2009). Astorga correctly asserts that appellate courts may consider new issues when: (1) die newly asserted theoiy involves only a question of law arising on proved or admitted facts and is determinative of the case; (2) consideration of the claim is necessary to serve the ends of justice or to prevent the denial of fundamental rights; or (3) the district court was right for the wrong reason. State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010).
Here, Astorga suggests without explanation that “resolution of the issue will serve the ends of justice.” But we conclude the ends of justice have been adequately served by addressing the alleged instructional error raised below, and we decline to review Astorga’s challenge to the constitutionality of K.S.A. 21-3214(1) for the first time on appeal.
The district court did not abuse its discretion by denying Astorga’s motion for new trial.
Next, Astorga argues that in denying his motion for new trial based on juror misconduct, the district court violated his constitutional right to be tried by an impartial jury. See U.S. Const. Amend. VI; Kan. Const. Bill of Rights § 10; State v. Jenkins, 269 Kan. 334, 337, 2 P.3d 769 (2000) (criminal defendant has a constitutional right to a public trial by an impartial jury).
When a party or a party’s counsel is aware of alleged juror misconduct before the juiy renders its verdict and fails to object, the party cannot later assert the alleged misconduct as grounds for a new trial. State v. Saleem, 267 Kan. 100, 113, 977 P.2d 921 (1999); State v. Buggs, 219 Kan. 203, 207, 547 P.2d 720 (1976). We explained the rationale for this rule in Buggs:
“If the alleged misconduct is brought to the court’s attention a hearing may be held and the situation remedied, if that is possible. If not, a mistrial may be declared immediately without wasting the time and expense required to complete the trial. The rule is a corollary of the contemporaneous objection rule as to evidence (K.S.A. 60-404; State v. Estes, 216 Kan. 382, 532 P.2d 1283 [1975]) and the requirement of an objection to erroneous instructions (K.S.A. 60-251[b]; Ap- person v. Security State Bank, 215 Kan. 724, 528 P.2d 1211 [1974]). A party is not permitted to remain silent in the face of known error, gamble on the verdict, and show his hole card only if he loses.” Buggs, 219 Kan. at 208.
Here, Astorga alleges that juror E.F. failed to advise the court that he knew Astorga and previously had been involved in an altercation with Astorga at the pharmacy where E.F. worked. But Astorga had multiple opportunities to recognize and alert the court to his alleged acquaintance with E.F, including when E.F. was individually questioned during voir dire, and E.F. identified himself as a pharmacist. Astorga also was present in the courtroom throughout the trial, and, on the third day of trial, E.F. individually responded on behalf of the juxy to the court’s question regarding taking a lunch break.
Under these circumstances, Astorga’s failure to timely bring the alleged juror misconduct to the trial court’s attention precludes our consideration of this claim.
The district court did not err in imposing a hard 50 sentence.
Astorga raises multiple challenges to his hard 50 sentence. First, he claims the district court misapplied K.S.A. 21-4636(b) in finding the existence of an aggravating circumstance alleged by the State. Alternatively, Astorga argues the evidence is insufficient to support the existence of that aggravating circumstance. Further, Astorga contends the sentencing court failed to properly consider mitigating circumstances before imposing his sentence.
If a defendant is convicted of first-degree premeditated murder for a crime committed on and after July 1, 1999, the sentencing court “shall determine whether the defendant shall be required to serve a mandatory term of imprisonment of ... 50 years or sentenced as otherwise provided by law.” K.S.A. 21-4635(b). To make such a determination, the court may be presented evidence concerning any matter relevant to the question of sentence, including matters relating to any of the aggravating circumstances enumerated in K.S.A. 21-4636 and any mitigating circumstances. K.S.A. 21-4635(c). If the court finds that one or more of the aggravating circumstances exist and, further, that mitigating circumstances do not outweigh such aggravating circumstances, the court shall sentence the defendant to the hard 50 sentence. K.S.A. 21-4635(d).
Here, the district court found two aggravating circumstances. First, the court found Astorga had a prior second-degree murder conviction. See K.S.A. 21-4636(a) (aggravating circumstances include previous conviction of a felony in which defendant inflicted great bodily harm, disfigurement, dismemberment, or death on another). Second, the district court found that Astorga’s behavior created a “risk” to others. Ostensibly, the district court found this circumstance to be authorized by K.S.A. 21-4636(b), which permits the court to find an aggravating circumstance when the defendant “knowingly or purposely killed or created a great risk of death to more than one person.”
The district court made no findings as to the existence of mitigating circumstances or whether mitigating circumstances outweighed the aggravating circumstances found by the court.
Astorga argues that in finding his conduct placed others at risk, the district court misapplied K.S.A. 21-4636(b) because that statute requires the court to find the defendant created “a great risk” of death to more than one person. Alternatively, Astorga argues even if the court properly applied K.S.A. 21-4636(b), the evidence was insufficient to support the court’s finding that by shooting Rodriguez, he knowingly or purposely created a great risk of death to others.
But Astorga fails to challenge the first aggravating circumstance found by the district court, i.e., Astorga’s prior second-degree murder conviction. A district court may impose a hard 50 sentence upon finding that “one or more” aggravating circumstances exist and that such circumstances are not outweighed by mitigating circumstances. K.S.A. 21-4635(d).
Because at least one aggravating circumstance enumerated in K.S.A. 21-4636 and found by tire district court is undisputed on appeal, we need not determine either whether the district court misapplied K.S.A. 21-4636(b) or whether the evidence was insufficient to support the second aggravating circumstance.
Astorga also argues the district court abused its discretion by failing to weigh mitigating circumstances proffered by Astorga.
While K.S.A. 21-4637 specifies eight potential mitigating circumstances, it does not limit the district court’s consideration to those statutory circumstances. State v. Lopez, 271 Kan. 119, 140, 22 P.3d 1040 (2001). Absent an abuse of discretion, we will not disturb a district court’s decision regarding the existence of mitigating circumstances. State v. Livingston, 272 Kan. 853, 858, 35 P.3d 918 (2001). Similarly, we review the district court’s weighing of aggravating and mitigating circumstances for an abuse of discretion. Lopez, 271 Kan. at 141-42; see Ward, 292 Kan. at 550 (stating abuse of discretion standard of review).
Here, Astorga urged the district court to consider two nonsta-tutory mitigating factors: (1) evidence of Rodriguez’ prior acts of violence toward Astorga, and (2) evidence that Astorga acted in self-defense. The sentencing court made no findings on the record regarding the proffered mitigating circumstances, nor did it indicate whether it weighed those mitigating circumstances. However, the sentencing court clearly was aware of both circumstances as Astorga presented evidence of both circumstances at trial before the same judge and argued the circumstances as mitigating circumstances at sentencing.
Under these circumstances, we infer from the absence of findings that the district court found no mitigating circumstances existed and that the aggravating circumstances outweighed the nonexistent mitigating circumstances. See State v. Coleman, 271 Kan. 733, 742, 26 P.3d 613 (2001) (inferring that the district court found aggravating circumstances outweighed mitigating circumstances when tire district court made no comments regarding mitigating circumstances or whether the court weighed aggravating and mitigating circumstances); State v. Higgenbotham, 264 Kan. 593, 612, 957 P.2d 416 (1998) (inferring tire absence of any mitigating circumstances when the district court failed to make any findings on the record regarding mitigating circumstances). We do, however, encourage district courts when imposing a hard 50 sentence to make findings on the record regarding the existence or nonexistence of mitigating circumstances and the court’s weighing of such circumstances.
The hard SO sentencing scheme is constitutional.
Astorga also contends the hard 50 sentencing scheme is unconstitutional under Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002), and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Astorga acknowledges that his position is contrary to our prior case law, but urges us to reconsider our position and raises the issue to preserve it for federal review.
We have consistently upheld the constitutionality of the hard 40/ hard 50 sentencing scheme in light of both Ring and Apprendi, and we decline Astorga’s invitation to reconsider our prior decisions See, e.g., State v. McCaslin, 291 Kan. 697, 729-30, 245 P.3d 1030 (2011) (citing numerous cases); State v. Conley, 270 Kan. 18, 35-36, 11 P.3d 1147 (2000), cert. denied 532 U.S. 932 (2001).
We lack jurisdiction to review Astorga’s aggravated presumptive sentences.
Astorga next asserts the sentencing court violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution as interpreted in Apprendi, 530 U.S. 466, by imposing aggravated presumptive sentences on two of his convictions without requiring the State to prove aggravating factors to a jury beyond a reasonable doubt. Astorga acknowledges his position is contrary to State v. Johnson, 286 Kan. 824, 848-52, 190 P.3d 207 (2008), but he nevertheless raises the issue to preserve it for federal review.
In Johnson, we held that a sentencing court’s discretion to impose an aggravated presumptive sentence as provided in K.S.A. 21-4704(e)(1) is constitutional under Apprendi. 286 Kan. at 851. When a sentencing court exercises its discretion to impose an aggravated presumptive sentence, we lack jurisdiction to review that sentence under K.S.A. 21-4721(c)(l). 286 Kan. at 851-52. Accordingly, we lack jurisdiction to review Astorga’s presumptive sentences, and we dismiss that portion of his appeal.
Astorga is not entitled to resentencing under the identical offense doctrine.
Finally, Astorga asserts that first-degree premeditated murder and second-degree murder are identical offenses; therefore, the identical offense doctrine requires that we vacate his sentence and remand to the district court with directions to resentence him in accordance with the lesser penalty applicable to a severity level one person felony.
As the State points out, we rejected this same argument in State v. Warledo, 286 Kan. 927, 951, 190 P.3d 937 (2008) (explaining that crimes of first-degree premeditated murder and second-degree intentional murder are not identical because first-degree premeditated murder requires the additional element of premeditation). See also K.S.A. 21-3401(a) and K.S.A. 21-3402(a) (setting forth elements of first-degree and second-degree murder, respectively). Accordingly, Astorga is not entitled to resentencing under the identical offense doctrine.
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The opinion of the court was delivered by
Rosen, J.:
After this court reversed for lack of jurisdiction Terral Breedlove’s convictions for murder, robbery, and assault, he was convicted of first-degree murder in a new trial, and he now appeals. We find no reversible error in the prosecution of the new trial, and we affirm the conviction.
In order to address the issues presented in the present appeal, it is necessary to review why the first group of convictions were vacated and what evidence was presented at the second trial.
On August 12,1995, when Breedlove was 17 years old, the murder for which he has been twice convicted took place. Then, on September 3, 1995, he committed additional crimes, all stemming from a carjacking and subsequent police chase. The juvenile court authorized prosecuting him as an adult for the September 3 crimes, and Breedlove eventually entered a guilty plea to those charges. Later, when he was 19 years old, the State charged him with crimes alleged to have occurred on August 12: felony murder, aggravated robbery, and four counts of aggravated assault. He was arraigned and tried in district court without the State receiving judicial authorization to prosecute him as an adult. A jury convicted him of those crimes in 1997, and the district court sentenced him to life imprisonment plus 52 months, to be served consecutive to the sentences for the crimes disposed of in the plea. In 1999, this court affirmed the convictions and sentences for the August 12 crimes in State v. Breedlove, No. 80,952, 1999 WL 509667 (Kan. 1999) (unpublished opinion).
In 2006, Breedlove filed a motion to correct an illegal sentence, alleging that the district court lacked jurisdiction over his prosecution as an adult because he was not initially charged in juvenile court and the State never obtained authorization to prosecute him as an adult.
This court agreed, holding that the convictions were void, and reversed those convictions and vacated the sentences in State v. Breedlove, 285 Kan. 1006, 179 P.3d 1115 (2008). The mandate issued on April 21, 2008.
On April 30, 2008, the State filed new case number 08JV0623 in juvenile court, charging Breedlove with the six counts for which he had earlier been convicted. On May 5, 2008, the State filed a motion requesting authorization for adult prosecution. On November 10, 2008, Breedlove filed a motion to dismiss the nonmurder counts based on the expiration of the statute of limitations. The motion was heard on November 18, 2008. On February 19, 2009, the Sedgwick County Juvenile Department filed a journal entry authorizing prosecution of Breedlove as an adult. On the same date, the district court filed a journal entry arraigning Breedlove on one count of first-degree murder. On February 23, 2009, the juvenile court granted the motion to dismiss the five nonmurder counts.
Prior to his trial in district court, Breedlove filed a motion to dismiss based on speedy trial grounds. This motion was denied, and a jury trial took place on June 23-25, 2009. At the second trial, the jury heard the testimony of witnesses relating to events of August 12 and September 3, 1995.
Callie Bishop testified that she was a young teenager in 1995, and that on the night of August 12, 1995, Breedlove approached her and some friends in the driveway of a friend’s house in Wichita while a Hispanic man waited at the end of the driveway. Breedlove pointed a gun at Bishop, asked the teenagers if any of them owned a car, and then walked away when they explained that they were too young to drive. Danielle Hardman and Kevin Hammond corroborated Bishop’s account.
Shelly Hernandez testified that she was sitting outside her apartment in Wichita on that same night when Breedlove and a Hispanic man approached them through the parking lot. Breedlove was holding a gun, and he asked them if they had seen his car. The men left when she told them she had not.
Dawn Landsdowne worked at a Checkers grocery store in Wichita. She testified that Rigoberto Garcia returned to tire store on the night of August 12 to get a refund for merchandise. She observed Breedlove and another young man hanging out around the front of the store asking people if they could get a ride. The two men asked Garcia if they could get a ride with him, and they left the store shortly after Garcia left with his refund. The testimony of Craig Wilson from the first trial was read to the jury. He was a night manager at Checkers, and he corroborated Landsdowne’s testimony.
Sergeant William Stevens of the Wichita Police Department testified that he responded to a call at 11:43 in the evening and found Garcia lying on his back by some trash dumpsters in a corner of the Checkers parking lot. Garcia was still breathing at the time, but he was not conscious. Garcia never regained consciousness, and he died around 12:45 on the afternoon of August 14. At the hospital it was determined that a bullet was lodged in Garcia’s head. The testimony of Dr. Marcus Nashelsky from the first trial was read to the jury. He testified that the wound was consistent with a close-range gunshot from the back left side of the head toward the front right side. He concluded that the bullet was the cause of Garcia’s death.
The testimony of Andrea Carlyle from the first trial was read to the jury. She was dating Breedlove in August 1995. When she got home from work at 5:30 on the evening of August 12, Breedlove and Israel Sosa were waiting for her. They told her they were going to get something to eat and left around 6 p.m. They did not have a car and left on foot. Breedlove returned alone to her house around 2 in the morning of August 13. He told her that Sosa and he had eaten and then gone to Checkers, where they found an old man who had been shot and whose keys were lying on the ground beside him. They picked up the keys and took his car because they needed a ride home. Breedlove then told her he had shot the man, but soon afterwards told her that “he was just kidding.”
Sosa testified that he and Breedlove went walking after they ate dinner on August 12. He told the jury that Breedlove was carrying a gun and that the two of them approached some children in a driveway and some people outside an apartment. They then went to Checkers, where Sosa bought a drink. They were walking away from Checkers behind the store when Sosa watched Breedlove shoot someone. Breedlove and the victim were “wrestling” over the gun when the gun went off. Breedlove then got into the victim’s car, drove over and picked up Sosa, and took him home. Sosa and his family took a vacation out of town soon afterwards; when they returned, Sosa met up with Breedlove, and the two once again set out to find a car. Sosa initially testified that they traded some crack cocaine for a car, and the police chased them down. Responding to a transcript of his previous testimony, Sosa acknowledged that he and Breedlove had carjacked the car and that Sosa was driving when the police pursued them while Breedlove fired a shotgun out the rear window.
Alvin Mitchell testified that on September 3, 1995, he was driving in Wichita when he thought he heard two young men standing near the street ask him to stop. He initially thought it was one of his nephews. When he stopped, Breedlove approached Mitchell’s car and held a gun to his head; he demanded that Mitchell give him his car, his billfold, and his shoes. With Breedlove at the wheel, he and Sosa drove off in the car, leaving Mitchell by the side of the street.
Deputy Brenda Dietzman testified that she identified and pursued Mitchell’s stolen car that night, and during the pursuit two shots from a shotgun were fired at her from the car. She and other officers eventually trapped Breedlove and Sosa as they attempted to flee on foot.
Anthony Davis testified that he was involved in a conversation in jail with Breedlove and Sosa in which Breedlove stated he had killed Garcia and Breedlove urged Sosa to remain quiet about Garcia’s death.
Breedlove called no witnesses and introduced no evidence in his defense. The jury found Breedlove guilty as charged. The district court sentenced him to life imprisonment. Breedlove filed a timely notice of appeal.
Speedy Trial
Breedlove first argues on appeal that his trial violated the requirements of the Kansas speedy trial statute, K.S.A. 22-3402 (Furse).
On April 21, 2008, this court issued the mandate in Breedlove, 285 Kan. 1006. The new jury trial did not commence until June 22,2009. Prior to trial, Breedlove filed a motion to dismiss, arguing that, under K.S.A. 22-3402(4) (Furse), the State had only 90 days from April 22, 2008, to bring him to trial. The district court denied the motion to dismiss on the grounds that K.S.A. 22-3402(4) (Furse) does not apply when a conviction is reversed and vacated for want of jurisdiction.
Whether a defendant’s statutory right to a speedy trial was violated is a question of law that is subject to de novo review. State v. Montes-Mata, 292 Kan. 367, 369, 253 P.3d 354 (2011).
K.S.A. 22-3402(1) (Furse) sets out a 90-day limit for holding a person in jail without bringing that person to trial:
“If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within ninety (90) clays after such person’s arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (3).” (Emphasis added.)
K.S.A. 22-3402(4) (Furse) addresses the special situation when this court reverses a conviction:
“In the event a mistrial is declared or a conviction is reversed on appeal to the supreme court or court of appeals, the time limitations provided for herein shall commence to run from the date the mistrial is declared or the date the mandate of the supreme court or court of appeals is filed in the district court.” (Emphasis added.)
Breedlove’s argument on appeal is straightforward: The statute applies to him because in his 2008 appeal this court explicitly considered the remedy and held that the appropriate relief was to reverse and vacate the convictions. See Breedlove, 285 Kan. at 1017. The State has the burden of bringing an accused to trial within the statutory time limitation; tire defendant has no obligation to take any affirmative action to ensure that the trial takes place within the allowed time. State v. Vaughn, 288 Kan. 140, 144, 200 P.3d 446 (2009). The State failed to commence the trial in the present case within 90 days of the mandate, and the new conviction violated the speedy trial statute.
We are persuaded, however, that K.S.A. 22-3402(4) (Furse) does not govern Breedlove’s second trial. Because the original conviction was vacated for lack of jurisdiction, this is not a retrial of the same case. The proceeding leading to the present conviction was initiated in juvenile court and led to a de novo arraignment.
The 90-day speedy trial provision sensibly begins with the new arraignment because there is no “old case” from which to begin counting the 90 days. “[T]he time limitations provided for herein” to which K.S.A. 22-3402(4) (Furse) refers could not apply in this case until after arraignment in district court. A juvenile has neither a constitutional nor a statutory right to a right to a speedy trial in matters conducted under the Juvenile Justice Code, so the time limitations of K.S.A. 22-3402 (Furse) would have no application before arraignment in district court. See In re S.A.J., 29 Kan. App. 2d 789, 790, 31 P.3d 320 (2001); In re T.K., 11 Kan. App. 2d 632, Syl. ¶ 2, 731 P.2d 887 (1987).
Because the case began again, the speedy trial requirements did not come into play until Breedlove’s arraignment. See State v. Thomas, 291 Kan. 676, 692, 246 P.3d 678 (2011) (calculation of time under speedy trial statute begins on date of arraignment). K.S.A. 22-3402(4) (Furse) calls for “the time limitations provided for herein” to apply, and those time limitations commence to run from the time of arraignment, which did not happen in this case until February 19, 2009. Trial began on June 23, 2009, which was 124 days after the arraignment.
Breedlove does not demonstrate that the time in excess of 90 days beyond the arraignment was the responsibility of the State. Delays resulting from requests of a defendant toll the statutoiy speedy trial period. Vaughn, 288 Kan. at 144.The appellant has the burden of preserving and designating a record that supports an appellant’s claim that the speedy trial statute was or was not violated. Vaughn, 288 Kan. at 148; State v. Humphrey, 252 Kan. 6, 27-28, 845 P.2d 592 (1992) (appellant has burden of designating a record showing speedy trial violation).
K.S.A. 22-3402(4) (Furse), in the context of the entire speedy trial statute, requires only that the State commence the trial within 90 days of a valid arraignment, and Breedlove does not demonstrate that he was denied his right to a speedy trial.
The Evidence of Other Crimes
Breedlove contends on appeal that the district court improperly allowed the State to introduce evidence showing that he engaged in criminal activity outside of the time immediate to Garcia’s murder. This activity included the testimony of witnesses whom he approached on the night of the murder, displaying a gun and asking about access to a car, testimony suggesting that Breedlove lad-napped Sosa by intimidating him into riding with him in Garcia’s car, and testimony relating to the carjacking incident of September 3, 1995. Breedlove did not make specific objections to the introduction of this evidence at the time it was first put before the jury.
K.S.A. 60-404 requires a timely and specific objection to the introduction of evidence before an appellate court may reverse a verdict based on that evidence. Challenges on appeal to questions posed by a prosecutor and the responses to those questions must be preserved by a contemporaneous objection. State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009). Although the district court limited some bad-acts testimony in a pretrial ruling, Breedlove did not renew his objections to the testimony at issue here, or only objected well into the testimony. Failing to raise a timely objection forecloses appellate review. State v. McCullough, 293 Kan. 970, 1000, 270 P.3d 1142 (2012). The issue is therefore not properly before this court, and we decline to consider it.
Reading Transcribed Testimony to the Jury
The district court allowed the testimony of Wilson, the store manager, and Carlyle, Breedlove’s girlfriend in August 1995, to be read into the record before the jury. Statements that Sosa made at the first trial were also read into the record in an attempt to impeach his version of events regarding the September 3, 1995, carjacking. Breedlove contends that because these statements were made at a void trial, they became in effect a legal nullity, and he was consequently deprived of his constitutional right to confront witnesses against him. The State responds that Breedlove failed to make a sufficiently specific objection at trial, that the earlier trial was not void in its entirety, and that any error was harmless because the evidence at issue was cumulative and corroborative.
The method employed in presenting admissible evidence, including a reading of testimony from a prior hearing that was subject to cross-examination, is reviewed for abuse of judicial discretion. State v. Davis, 284 Kan. 728, 736, 163 P.3d 1224 (2007). The standard for reviewing a district court decision that a witness is unavailable to testify is also abuse of discretion. State v. Young, 277 Kan. 588, 597, 87 P.3d 308 (2004). When reviewing issues related to the Confrontation Clause of the Sixth Amendment to the United States Constitution, this court analyzes questions of law and applies a de novo standard of review. State v. White, 284 Kan. 333, 345, 161 P.3d 208 (2007).
We hold that the issue was preserved for appeal but that vacating the earlier trial did not render the sworn testimony from that trial void, did not remove the constitutional protections in place at that trial, and did not change the credibility of the .testimony.
A. Preservation
The State filed a pretrial motion to allow it to introduce Wilson s prior trial testimony. The motion asserted drat Wilson was being deployed to North Carolina in his capacity of service in the United States Air Force National Guard. Breedlove did not contest Wilson’s lack of availability, but instead challenged a hearsay statement contained in the transcript. The district court found Wilson to be unavailable, allowed the transcribed testimony to be read, and noted that no contemporaneous hearsay objection was raised at the initial trial and therefore the objection was waived.
The State also filed a pretrial motion to declare Carlyle unavailable because she had suffered head injuries in a car accident several years after the first trial and those injuries had disrupted both her short-term and long-term memory. The district court conducted a hearing to determine her availability and examined her medical records. She testified at this hearing that, although she remembered that Breedlove had been her boyfriend, she was unable to remember talking with him or him being at her apartment. She also testified that she could not remember anything about Sosa. She remembered that she had testified at the earlier trial, but she could not remember what she had said. She explained that even after reading a transcript of her prior testimony she could not recall the events about which she had testified, including the fact that a man had been murdered. She informed the court that she was in a car accident in 2001, and her head went through the windshield. The court found her unavailable to testify and allowed the State to read her transcribed testimony to the juiy.
Breedlove raised the objection at that time that this court had found the previous trial to be void for lack of jurisdiction and that any testimony transcribed from that trial should therefore be struck as a legal nullity. The district court overruled the objection, holding that, notwithstanding the nullity of the trial, the oaths and the cross-examinations remained valid.
Before Wilson’s testimony was read to the jury, Breedlove’s counsel stated to the court:
“Your Honor, again just as far as this testimony goes, I did make an earlier objection about one of the objections contained in, or I guess maybe not contained in the record, and I just again note that objection for the record at this time. And I’m sure that is clear as mud.”
The court responded: “The objection you raised earlier, I recall it, and the ruling will be the same as I made prior to that. And you will be overruled, but it’s noted for the record.”
Before Carlyle’s testimony was read to the jury, Breedlove’s counsel stated to the court: “Judge, as far as this witness, or I guess with regard to this witness’ testimony, I would just again note my prior objection for the record at this time.” The court responded: “Duly noted and my ruling will be consistent with the one I made prior to the commencement of the trial.”
Finally, during the reading of Sosa’s prior testimony, Breedlove’s counsel made several objections going to the scope of the impeachment and the allegedly repetitive nature of the questions.
A defendant must make a timely and specific objection in order to preserve an issue for appeal. K.S.A. 60-404; State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010). Furthermore, the defendant may not object on one ground at trial and then argue another ground on appeal.
To be sure, the objections voiced at trial were not specific, referring only to an “earlier objection” or a “prior objection.” It is clear, however, that the district court understood the basis of the objection, referring back to its earlier ruling. The pretrial objection as to the nullity of the first trial applied to any evidence read to the jury from that trial: “I would just simply make the argument that if that trial was a nullity, any of the testimony that arose during that trial would be a nullity as well. . . .”
We therefore elect to address on their merits the issues of the reading of transcribed testimony from the prior trial.
B. Confrontation Clause
K.S.A. 2008 Supp. 60-460 provides for consideration by the fact-finder of testimony given in a previous trial:
“Evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay evidence and inadmissible except:
“(c) Depositions and prior testimony. Subject to the same limitations and objections as though the declarant were testifying in person, ... if the judge finds that the declarant is unavailable as a witness at the hearing, testimony given as a witness in another action ... or former trial in the same action,. . . when (A) the testimony is offered against a party who offered it in the party’s own behalf on the former occasion or against the successor in interest of such party or (B) the issue is such that the adverse party on the former occasion had the right and opportunity for cross-examination with an interest and motive similar to that which the adverse party has in the action in which the testimony is offered, but the provisions of this subsection (c) shall not apply in criminal actions if it denies to the accused the right to meet the witness face to face.”
Out-of-court testimonial statements by witnesses used against the accused are barred under the Confrontation Clause of the Sixth Amendment to the United States Constitution unless the witness is unavailable and the accused had prior opportunity to cross-examine the witness, regardless of whether such statements are deemed reliable by the court. Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). The Crawford Court emphasized the importance of cross-examination: “When testimonial evidence is at issue,... the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” 541 U.S. at 68.
The Sixth Amendment right of confrontation is satisfied if the accused confronted the witnesses against him or her at any stage of the proceedings and has had an opportunity of cross-examination. State v. McCray, 267 Kan. 339, 353, 979 P.2d 134 (1999). Breedlove was represented at his previous trial and his counsel cross-examined Wilson, Carlyle, and Sosa.
C. Void, First Trial
Vacating a judgment does not undo history and make it so that the proceeding never occurred or was defective in every respect. If a witness had perjured himself or herself at the first trial, that perjury would not have been undone by the subsequent finding that the trial was void. See K.S.A. 21-3805(a)(l) (crime of perjury includes testifying to any material fact upon oath before any entity authorized to administer oaths). Similarly, counsel and witnesses from the first trial are not required to return fees paid for their appearances at a proceeding where the judgment was subsequently vacated.
In Roche v. Lang, No. B 114622, 2010 WL 779782, at *4 (2010), an unpublished opinion of the California Court of Appeal filed March 9, 2010, tire court noted that testimony from a void judgment may be used in a later proceeding:
“The default judgment was erased after the trial court found that Lang was not properly served with the summons and complaint. The judgment is void ab initio, and we cannot consider it for any purpose. The only use Roch can make of the default prooe-up hearing is the transcript of his sworn testimony.” (Emphasis added.)
In People v. Graham, 43 A.D.2d 182, 350 N.Y.S.2d 458 (1973), the court considered a case in which the defendant succeeded in having a murder conviction reversed through federal habeas corpus relief. The state court deemed the reversal a “voiding” of his conviction, but nevertheless allowed transcripts of witnesses from his earlier trial to be read into evidence because those witnesses were no longer available.
We agree with those decisions. The testimony given in the first trial was presented with all statutory and constitutional protections in place. Breedlove’s Sixth Amendment right to confront the witnesses against him was satisfied at the first trial. There was no connection between the testimony of those witnesses and the grounds for vacating the conviction. It is undisputed that those witnesses were unavailable at the second trial or that Sosa had changed his testimony and was no longer a friendly witness to the State. It was not error for the district court to allow the State to read into evidence testimony from the first trial.
Prosecutorial Misconduct During Closing Argument
During closing argument, the prosecutor stated:
“Remember that Alvin Mitchell has been approached by two males, one with a shotgun. He puts this defendant as the man with the shotgun, the black male. He is held up at gunpoint, the gun to his head, similar to Rigoberto Garcia, and his car, his wallet, his money, is demanded from him.”
During his rebuttal argument, the prosecutor stated:
“He is tire one that was shooting that gun. He is the one that used the gun. He is the one that put it in the same place on Alvin Mitchell’s head that he put his pistol to the head of Mr. Garcia. The same one. That is what Sosa said.”
Breedlove contends on appeal that these statements misrepresented the evidence, i.e., there was no evidence in the record that Breedlove put a gun to Garcia’s head.
Appellate review of an allegation of prosecutorial misconduct involving improper comments to the jury during closing arguments requires a two-step analysis. First, the appellate court decides whether the comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. Second, if misconduct is found, the appellate court must determine whether the improper comments prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Bennington, 293 Kan. 503, 530, 264 P.3d 440 (2011).
The record contains evidence showing that Breedlove indeed placed a gun to Garcia’s head. Garcia was shot in the head at close range according to the forensic testimony. Sosa testified that he watched Breedlove shoot Garcia in the head while the two were wrestling for the gun. Whether Breedlove deliberately held the gun to Garcia’s head or whether the gun ended up there in the course of the struggle is of minor significance; the prosecutor made the reasonable inference that Breedlove had held a gun to Garcia’s head at close range, and the prosecutor’s statements were within tire scope of the latitude afforded him in commenting on the evidence.
Violation of the Order in Limine
Prior to trial, the district court made a ruling in limine limiting certain evidence relating to Sosa’s interaction with Breedlove. Breedlove argues that the State violated tire order by presenting to the juiy information regarding die putative kidnappings of Sosa committed by Breedlove on the night of the murder and several weeks after the murder.
Courts employ a two-part test to evaluate alleged violations of orders in limine: first, was there a violation of the order in limine, and second, if tire order was violated, did the testimony substantially prejudice the defendant? Because the trial court is in the best position to decide whether its order in limine was violated, the denial of a motion for mistrial is reviewed under an abuse of discretion standard. State v. Crum, 286 Kan. 145, 160, 184 P.3d 222 (2008).
An order resulting from a motion in limine is a temporary protective order that is subject to change during the trial. State v. Bloom, 273 Kan. 291, 300, 44 P.3d 305 (2002); State v. Quick, 226 Kan. 308, 313, 597 P.2d 1108 (1979).
A. The State’s Examination of Sosa
When Sosa began to testify about the events of September 3, he explained that he and Breedlove traded crack cocaine for the car and that the police were investigating reports of a shooting in the neighborhood and suspected the car had been a target of the shooting. Upon hearing that testimony, the prosecutor approached the bench, suggested that Sosa had become a hostile witness, and asked for permission to read from the transcript of Sosa’s testimony at the first trial. Breedlove’s counsel did not object. The court declared Sosa to be a hostile witness and allowed the testimony regarding how Sosa ended up in the car on both days to be read to the jury as impeachment evidence. The State then went over the prior testimony with Sosa in detail, again without objection. When counsel finally did object, it was based on repetition rather than violation of the order in limine. The district court allowed the testimony to come in, noting that Sosa had been vague in his testimony about events during tire second trial.
The question of the violation of the order in limine as it pertains to the questions to Sosa is not properly before the court. There was no contemporaneous, specific objection, and the district court clearly modified its order to allow the testimony.
B. The Opening Statement
Breedlove also contends the prosecutor violated the order in limine in his opening statements.
Appellate review of an allegation of prosecutorial misconduct involving improper comments to the jury during opening or closing argument to the juiy requires a two-step analysis. First, the appellate court decides whether the remarks were outside the wide latitude that the prosecutor is allowed in discussing the evidence. Second, if misconduct is found, the appellate court must determine whether the improper remarks prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Miller, 293 Kan. 535, 550, 264 P.3d 461 (2011).
During his opening statement, the prosecutor told the jury:
“Mr. Sosa started to ran after Mr. Garcia went down. Mr. Breedlove got in Mr. Garcia’s 1989 Sable and came back out of the driveway where Sosa was running back toward Pawnee and told Sosa to get in. Sosa hesitated, he pointed a gun at him. ‘Get in.’ So he got in. Took him home.”
Reversing a conviction because of violations of motions in limine and prosecutorial misconduct requires a finding of prejudice to the defendant. Because the district court subsequently modified its order restricting the scope of direct examination and the evidence about Breedlove threatening Sosa came in, the opening statement was prejudicial: it made a one-phrase reference to facts that were later properly disclosed to the jury.
The State argues on appeal that this statement did not violate the court’s order because the prosecutor did not actually tell the jury that Breedlove kidnapped Sosa. This argument is somewhat specious: clearly, the State suggested that the reason that Sosa got in the car with Breedlove was because Breedlove was pointing a gun at him, which appears to be kidnapping.
The State also argues that Breedlove did not preserve the issue on appeal because he failed to object to the opening statement. This court, however, reviews a prosecutor s comments to a jury during the opening statement that are not in evidence even when no objection is lodged at the trial, although the absence of an objection may figure into the court’s analysis of the alleged misconduct. State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009).
We nevertheless find no prejudice to Breedlove because tire reference to the kidnapping was passing and because the district ' court later revised its order in limine.
The Allen-type Instruction
Jury Instruction Number 12 read as follows:
“Like all cases, this is an important case. If you fail to reach a decision, that charge is left undecided for die time being. It is then up to the state to decide whether to resubmit the undecided charge to a different jury at a later time.
“This does not mean that those favoring any particular position should surrender their honest convictions as to the weight or effect of any evidence solely because of the opinions of other jurors or because of the importance of arriving at a decision.
“This does mean that you should give respectful consideration to each other’s views and talk over any differences of opinion in a spirit of fairness and candor. If at all possible, you should resolve any differences and come to a common conclusion.
“You may be as leisurely in your deliberations as die occasion may require and take all the time you feel necessary.”
Jury Instruction Number 1 read in part:
“Your only concern in this case is determining if die defendant is guilty or not guilty. The disposition of the case thereafter is a matter for determination by the Court.”
Breedlove contends on appeal that these instructions are confusing, suggesting to the juiy that it both should and should not concern itself with what happens after it concludes deliberations.
When a party objects to an instruction before the district court, this court considers whether the instructions as a whole properly and fairly stated the law as applied to the facts and whether they could have misled the jury. State v. Duong, 292 Kan. 824, 839, 257 P.3d 309 (2011). However, when a party does not make a timely and specific objection to an instruction, the standard of review is whether the instruction is clearly erroneous, which means that this court must be convinced that there is a real possibility that the juiy would have rendered a different verdict if the error had not occurred. 292 Kan. at 838-39.
Breedlove’s counsel lodged a vague objection to the instruction:
“Well, I consistently ask the Court to not include the Allen instruction which is in instruction 12.”
The State actually lodged a more specific objection:
“I do have an objection to number 12, Judge, that it’s a modified-modified Allen. There was a recent case that came out—and I apologize I haven’t been downstairs yet, but I know the Court is aware of what I’m talking about—that disapproves of any, that’s the way I read it, disapproves of any Allen instruction.”
The district court overruled the State’s objection, contending that this court’s opinions disapproving of Allen-type instructions have focused on language missing from the present instruction: “Another trial would be a burden on both sides.” See, e.g., Duong, 292 Kan. at 838 (focusing on those words in determining whether instruction was clearly erroneous). The State then agreed, albeit reluctantly, with the district court’s decision to leave the Allen wording in the instructions.
In Duong, this court considered an objection that was similar in specificity to the one Breedlove’s counsel lodged in the present case. The Duong court elected to apply a clearly erroneous standard and concluded that the instruction, including the “burden on both sides” language, was not clearly erroneous. 292 Kan. at 839. Because Breedlove’s objection was not specific and because the offending instruction in his case places even less pressure on the jury than the Duong instruction, we find no error requiring reversal.
Cumulative Error
Under the cumulative error doctrine, this court determines whether the totality of the circumstances caused substantial prejudice to the defendant and denied him or her a fair trial. State v. Edwards, 291 Kan. 532, 553, 243 P.3d 683 (2010). Having found no error of substance, we conclude that Breedlove did not suffer substantial prejudice that denied him his right to a fair trial.
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Per Curiam,-.
We granted a petition for review of a Court of Appeals decision in this worker’s compensation case. The case was argued and submitted to the court on the briefs previously filed. After a thorough study, we have concluded that the decision of the Court of Appeals properly and correctly resolved the issues.
The opinion of the Court of Appeals in Asay v. American Drywall, 11 Kan. App. 2d 122, 715 P.2d 421 (1986), is approved and adopted as the opinion of this court.
The judgment of the Court of Appeals is affirmed. The judgment of the district court is reversed and the case is remanded to afford the district court the opportunity to reexamine assessment of costs in light of the further proceedings. | [
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The opinion of the court was delivered by
McFarland, J.:
This is an action by Donald Smith against his former employer, United Technologies, Essex Group, Inc., seeking damages arising from his discharge from employment. The jury found Smith had been discharged in retaliation for his filing of charges with the Kansas Commission on Civil Rights (KCCR) and awarded him $30,000 in actual damages and $25,000 in punitive damages. In its cross-appeal, United Technologies challenges the jury’s verdict in a number of respects. Prior to trial, the district court entered summary judgment against Smith on his claim predicated upon his termination being the result of retaliation for having filed a workers’ compensation claim. After trial, the district court denied Smith’s motion for attorney fees under 42 U.S.C. § 1988 (1982). Smith appeals from these two adverse determinations.
The undisputed factual background may be summarized as follows. Plaintiff Donald Smith is a black man who was employed by United Technologies, Essex Group, Inc., in 1979, as a rod mill operator. Shortly after being hired, plaintiff injured his back, filed a workers’ compensation claim, received a disability rating, and returned to work with a medical release. In July 1979, plaintiff filed a charge with the KCCR, alleging racial discrimination. The KCCR found the charge lacked probable cause. In June 1981, plaintiff filed a second charge with the KCCR, alleging employer retaliation. In May of 1981, plaintiff reinjured his back, necessitating a 15 Vz week recuperative period during which he did not work. Upon his return to work, plaintiff was assigned to perform janitorial duties. Disgruntled, plaintiff filed a union grievance because he was qualified as a rewinder and wanted to work in that capacity. As a result, he was given a rewinder’s job and was paid the difference between janitor’s and rewinder’s pay for that period. In November 1981, plaintiff, having aggravated his back injury and, thus, being unable to do the rewinder’s job, filed a workers’ compensation claim. After being under a doctor’s care until December 14, 1981, plaintiff returned to work under a 50-pound weight restriction. The personnel director said he would put plaintiff on light duty. Plaintiff was returned to work as a rod mill operator. Later, when the rod mill shut down, plaintiff was moved to a rewinder’s job. His back injury and concomitant weight restriction prevented plaintiff from performing the rewinder’s duties adequately. He filed a grievance through his union. He was subsequently laid off on January 11, 1982. When the mill reopened, plaintiff did not return to work. The workers’ compensation claim he had earlier filed was settled on April 9,1982. Thirteen days later, Smith was discharged on the stated ground that he had failed to report for work following the conclusion of his workers’ compensation claim. Plaintiff filed a grievance with his union because of his termination.
Another employee, Terry Cox, was similarly situated, having been discharged following settlement of a workers’ compensation claim. Like Smith, Cox grieved his termination. Both employees were members of Local Union No. 851, United Rubber, Cork, Linoleum and Plastic Workers of America, and their employment was covered by a collective bargaining agreement. Said agreement contained the provision that an employee would not be terminated except for proper cause and provided grievance procedures, including binding arbitration, for the resolution of complaints and disputes.
Plaintiff Smith’s grievance was concluded first. The arbitrator found that Smith’s discharge was unjust and restored him to duty, but denied back pay because Smith had failed to mitigate his position after termination. Cox subsequently settled his grievance on the same basis as the arbitrator’s decision relative to Smith and was restored to duty.
On April 20,1983, plaintiff and Cox brought this action against defendant employer, alleging, inter alia, that they had been discharged in retaliation for filing a workers’ compensation claim, and had been victims of racial discrimination and retaliation for having filed complaints with the KCCR, all in violation of 42 U.S.C. § 1981 (1982).
Defendant subsequently filed a motion for summary judgment with respect to all claims advanced by both plaintiffs. On June 4, 1984, the trial court sustained defendant’s motion on all counts except the civil rights claims under § 1981. Plaintiffs proceeded to trial on these § 1981 claims. At a jury trial, Cox lost on his claims. Plaintiff Smith lost on his claim of racial discrimination, but received judgment on his claim for unlawful retaliation for having filed the KCCR complaints. He was awarded $30,000 actual damages and $25,000 in punitive damages.
Plaintiff filed a motion for attorney fees pursuant to § 1988. After a hearing, the district court denied the motion. Plaintiff appealed from the trial court’s summary judgment ruling with respect to the issue of discharge in retaliation for filing a workers’ compensation claim and from the court’s denial of attorney fees. Defendant cross-appealed.
EVIDENTIARY RULINGS
We shall begin with the issues raised in defendant’s cross-appeal. The first three of these issues are challenges to evidentiary rulings of the trial court. For its first such issue, defendant contends the trial court erred in admitting certain opinion testimony of lay witnesses.
Specifically, defendant argues that this testimony lacked adequate foundation under K.S.A. 60-456(a), which provides:
“If the witness is not testifying as an expert his or her testimony in the form of opinions or inferences is limited to such opinions or inferences as the judge finds (a) may be rationally based on the perception of the witness and (b) are helpful to a clearer understanding of his or her testimony.”
In Schmeck v. City of Shawnee, 232 Kan. 11, 651 P.2d 585 (1982), this court discussed lay opinion testimony as follows:
“Whether a witness is qualified to testify as to his opinion is to be determined by the trial court in the exercise of its discretion. The exercise of that discretion is not subject to review except in cases of abuse. Hampton v. State Highway Commission, 209 Kan. 565, Syl. ¶ 10, 498 P.2d 236 (1972). This court has held that lay witness opinions are admissible even though they embrace ultimate issues. Noland v. Sears, Roebuck & Co., 207 Kan. 72, 483 P.2d 1029 (1971). The weight to be given to lay opinion testimony, as well as the weight to be accorded expert testimony, is for the jury to determine. State v. Shultz, 225 Kan. 135, 137, 587 P.2d 901 (1978).” 232 Kan. at 31.
Opinion testimony by a lay witness is admissible where it is rationally based on the perception of the witness. Schmeck v. City of Shawnee, 232 Kan. 11, Syl. ¶ 9. When it is not shown that the witness had sufficient knowledge on which to base an opinion, the opinion testimony is so conjectural it lacks probative value and may be properly excluded by the trial court. State v. Richard, 235 Kan. 355, 681 P.2d 612 (1984); State v. Amodei, 222 Kan. 140, 563 P.2d 440 (1977).
The objected-to opinion testimony primarily concerns statements made to the witnesses by members of defendant’s management and acts done by such managerial personnel in view of the witnesses from which the witnesses concluded that the involved managerial personnel discriminated against black people and, particularly, black people who filed civil rights complaints. It is to be recalled that racial discrimination was an issue throughout trial although the jury did not find in favor of plaintiff on that claim. After reviewing the record, we conclude this issue is without merit.
For its next issue, defendant contends the trial court erred in permitting plaintiff to introduce evidence of wages lost between the date of his discharge and the date of his restoration to duty.
Defendant contends that an award of back pay or lost wages is an equitable remedy and, as such, is triable to the court and not to the jury, and cites a number of federal cases in support thereof.
Section 1981 provides both legal and equitable remedies. Johnson v. Railway Express Agency, 421 U.S. 454, 44 L. Ed. 2d 295, 95 S. Ct. 1716 (1975). The legal remedies include compensatory and punitive damages. The fact that back pay is a monetary award is not sufficient reason to label it legal rather than equitable. Curtis v. Loether, 415 U.S. 189, 196, 39 L. Ed. 2d 260, 94 S. Ct. 1005 (1974). Where back pay was awarded in conjunction with reinstatement, traditionally both forms of relief were considered equitable. Shaw v. Gwatney, 604 F. Supp. 880, 888 (E. D. Ark. 1985). However, where a party seeks back pay but not reinstatement under § 1981, the party is considered to be asserting a legal claim. Setser v. Novack Inv. Co., 638 F. 2d 1137 (8th Cir.), cert. denied 454 U.S. 1064, modified on other grounds 657 F.2d 962 (8th Cir. 1981); Shaw v. Gwatney, 604 F. Supp. at 888-89; Davis v. Supermarkets Gen. Corp., 584 F. Supp. 870, 871 (E.D. Pa. 1984). See also Thomas v. Resort Health Related Facility, 539 F. Supp. 630, 634 (E.D. N.Y. 1982) (jury trial warranted in § 1981 action even where reinstatement and back pay sought).
In Setser v. Novack Inv. Co., 638 F. 2d 1137, a white male filed a § 1981 action seeking money damages for, inter alia, back pay. Plaintiff did not seek reinstatement. The district court denied plaintiff s request for a jury trial. The Eighth Circuit reversed. In reversing, the Eighth Circuit determined the back pay claim was a legal, not equitable, claim, stating, “In our view, the remedy of back pay in § 1981 cases is more appropriately characterized as a compensatory, legal damage.” The Setser court also said, “We conclude that back pay or lost wage determinations are inherently in the nature of legal damages.” 638 F.2d at 1142.
The opinions which accompanied the denial of certiorari in Setser, see 454 U.S. 1064, read Setser as limited to those situations where, as here, back pay, but not reinstatement, is sought.
Reading Setser similarly, we conclude that a claim for back pay in a § 1981 action, when unaccompanied by a claim for reinstatement, is a legal rather than an equitable claim.
Therefore, since compensatory damages are the damages awarded to a person as compensation, indemnity, or restitution for harm sustained by him, Restatement (Second) of Torts § 903 (1977), the lost wages evidence was properly submitted to the jury as a compensable damage. We conclude that this point is without merit.
For its third issue relative to evidentiary rulings, defendant contends the district court erred in excluding evidence of monies received by plaintiff in a lump sum settlement of his workers’ compensation claim.
We have carefully reviewed the record and find no abuse of discretion relative to the exclusion of this evidence.
SUFFICIENCY OF THE EVIDENCE
The remaining four issues of the cross-appeal fall within the general category of challenges to the sufficiency of the evidence.
First, defendant contends the evidence that defendant retaliated against Smith for filing charges with the KCCR was insufficient, as a matter of law, to support the verdict. Essential to this point is the elimination of all evidence of occurrences prior to two years before this action was commenced. Defendant correctly notes that this action is an action for injury to rights of another, not arising on contract, and so must be brought within two years. K.S.A. 60-513(a)(4). It would appear to be significant to note, at this time, that plaintiff did not seek, in this action, to be recompensed for any diminution in wages prior to his April 1982 termination. This action was commenced in April of 1983. Thus, we are not confronted with a situation where a specific claim of damage is made for failure to obtain a promotion occurring more than two years after the event. The main thrust of the claim is that the 1982 termination was in retaliation for having previously filed civil rights claims and that, prior thereto, certain things had been done to harass plaintiff and to make his employment record appear to be poor. As a result thereof, plaintiff suffered lost wages (between termination and reemployment by the company) as well as embarrassment and humiliation both prior to and as a result of his termination. As a result of the nature of the claim itself, then, plaintiff s entire employment record with the defendant became germane. Oversimplified, plaintiff attempted to portray himself as a splendid employee who had been harassed and ultimately terminated by management in retaliation for having filed the KCCR claims. Defendant attempted to show plaintiff had been a poor employee and his employment problems and ultimate termination were the result of his own shortcomings. Thus, the whole employment relationship between plaintiff and defendant became relevant in determining the motivation for his termination.
The following testimony by a supervisor of plaintiff relative to a conversation occurring more than two years before the filing of the action is illustrative of the type of evidence defendant seeks to exclude:
“Q. [By Mr. Patton, plaintiff s attorney] Why did you harass Donald Smith?
“A. [Leonard Mann, Smith’s foreman] My job was on the line, and I was told to get rid of the man.
“Q. Who told you that?
“A. Maurice Hill.
“Q. Explain to us who Maurice Hill was at that time.
“A. Maurice Hill was the plant manager at the time, sir.
“Q. And why did Maurice Hill tell you to get rid of Donald Smith?
“A. He didn’t like blacks.
“Q. How do you know he didn’t like blacks?
“A. Because he kept calling them niggers.
“Q. What sort of job was Mr. Smith doing at the time you supervised him in terms of quality?
“A. He was rod mill operator, and he didn’t have the experience that the other rod mill operators had, you know, that had been there for five and six years, and he only had been there — he came about the time I did, I imagine, and so I mean, you know, he lacked the physical hands-on experience that the rest of them did have, but he was an average rod mill operator.
“Q. Do you recall when this conversation with Mr. Maurice Hill, the acting plant manager, took place, approximately?
“A. I don’t remember the date. I do remember the time of day. It was right at shift change, at 3 o’clock in the afternoon.
“Q. Tell us what was said.
“A. Mr. Smith was going to his machine to run his machine that night, and the personnel manager, Michael Sullivan, and myself, and Maurice Hill was standing there, and they were looking over my area and asked me what we were running that night, and I told them, and Mr. Smith had walked by me to go to his machine, and he asked me why that nigger was still here and I—
“Q. (Interrupting) This is the acting plant manager asking you that?
“A. Yes, sir. I was just kind of stunned for a minute, you know, and I just sat — stood there, and he says, ‘You’ve got two weeks to fire this man,’ he says, ‘or I’m going to fire you and get somebody in here that will,’ and I told him then that the man hadn’t done anything wrong and that I had already had one complaint filed against me right now pending, and I asked him if that was what he wanted, was another one, and he stated, ‘Well, just offer him a $300 out-of-court settlement. That ought to get rid of him.’ ”
It is true plaintiff was not terminated until much later. However, we cannot conclude that it was improper to admit testimony such as this although it refers to matters occurring outside the two-year statute of limitations. The above-cited action occurred after plaintiff had filed his first KCCR claim.
There was testimony of a retaliatory policy of defendant against employees who had filed KCCR claims. It is not our role on appellate review to weigh such evidence.
The applicable burden of proof rule consistent with federal case law was stated in Woods v. Midwest Conveyor Co., 231 Kan. 763, Syl. ¶ 2, 648 P.2d 234 (1982), as follows:
“The burden of proof ... is on the complainant to prove by a preponderance of the evidence that the respondent is guilty of a discriminatory practice. Initially, the complainant must present a prima facie case of discrimination. Then the burden of going forward with the evidence shifts to respondent and this burden may be discharged by evidence of a legitimate, nondiscriminatory reason for respondent’s conduct. Once the respondent discharges this obligation, the complainant must continue with the burden of proving by a preponderance of the evidence that the reasons offered by respondent were merely a pretext for discrimination.”
We conclude the evidence herein was sufficient to present a submissible § 1981 claim for retaliation for having filed KCCR claims and that the evidence was sufficient to support the jury’s finding of liability.
Next, defendant challenges the sufficiency of the evidence supporting the award of $30,000 for actual damages.
The rules under which we review the evidence, when challenged as to sufficiency to support a verdict, have been long familiar to this court, In Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, Syl. ¶ 1, 681 P.2d 1038, cert. denied 469 U.S. 965 (1984), this court said:
“When a verdict is attacked for insufficiency of the evidence, the duty of the appellate court extends only to a search of the record for the purpose of determining whether there is any competent substantial evidence to support the findings. The appellate court will not weigh the evidence or pass upon the credibility of the witnesses. Under these circumstances, the reviewing court must review the evidence in the light most favorable to the party prevailing below.”
See Cory v. Binkley Co., 235 Kan. 906, 913, 684 P.2d 1019 (1984); Hand Realty Co. v. Meyers, 234 Kan. 304, 306, 672 P.2d 583 (1983); Cantrell v. R. D. Werner Co., 226 Kan. 681, 684, 602 P.2d 1326 (1979); Craig v. Hamilton, 221 Kan. 311, 313, 559 P.2d 796 (1977).
“ ‘Substantial evidence’ is defined as evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. In re Certif. of Need App. by Community Psychiatric Centers, Inc., 234 Kan. 802, 806, 676 P.2d 107 (1984); Haddock v. U.S.D. No. 462, 233 Kan. 66, 661 P.2d 368 (1983); Kelly v. Kansas City, Kansas Community College, 231 Kan. 751, 648 P.2d 225 (1982). Stated in another way, ‘substantial evidence’ is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. Kansas Dept. of Health & Environment v. Banks, 230 Kan. 169, 630 P.2d 1131 (1981).” Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. at 393.
Similarly, in Tice v. Ebeling, 238 Kan. 704, 715 P.2d 397 (1986), this court said:
“When a verdict is attacked on the ground it is contrary to the evidence, it is not the function of this court on appeal to weigh the evidence or pass on the credibility of the witnesses. If the evidence with all reasonable inferences to be drawn therefrom, when considered in a light most favorable to the successful party below, will support the verdict this court should not intervene. Toumberlin v. Haas, 236 Kan. 138, Syl. ¶ 5, 689 P.2d 808 (1984).” 238 Kan. at 708.
Plaintiff sought recovery for lost wages, humiliation, embarrassment, and mental anguish arising from defendant’s retaliatory action.
Defendant contends on appeal essentially that, in order to recover damages, actual injury must be proved, never presumed, and that plaintiff s uncorroborated testimony of $14,000 in lost wages was insufficient to support the verdict.
Compensatory damages are available under § 1981. Muldrew v. Anheuser-Busch, Inc., 728 F.2d 989, 992 (8th Cir. 1984). Damages may include embarrassment, humiliation, and mental anguish suffered. McCrary v. Runyon, 515 F.2d 1082 (4th Cir. 1975). Indeed, the McCrary court found embarrassment, humiliation, and mental anguish as “natural consequences” of the denial of § 1981 rights. 515 F.2d at 1089. Further, one’s own testimony is sufficient to establish humiliation or mental distress. Williams v. Trans World Airlines, Inc., 660 F.2d 1267, 1272-73 (8th Cir. 1981). We have determined earlier in this opinion that the evidence of lost wages was properly admitted.
We conclude the $30,000 award for actual damages is supported by the evidence.
Next, defendant argues that the issue of punitive damages should not have been submitted to the jury.
Defendant contends that under federal case law more outrageous conduct than occurred herein is necessary before a jury can award punitive damages.
In Smith v. Wade, 461 U.S. 30, 75 L. Ed. 2d 632, 103 S. Ct. 1625 (1983), the U.S. Supreme Court held, in a § 1983 action brought by a Missouri State Prison inmate against five prison guards for an alleged violation of his Eighth Amendment rights, that:
“[A] jury may be permitted to assess punitive damages in an action under § 1983 when the defendant’s conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others. We further hold that this threshold applies even when the underlying standard of liability for compensatory damages is one of recklessness.” 461 U.S. at 56.
In the case before us there was evidence of a concerted effort by defendant’s managerial personnel to harass and terminate plaintiff in retaliation for his having filed civil rights claims. We find no error in the submission of punitive damages instructions to the jury.
Finally, defendant argues that the award of punitive damages in the amount of $25,000 was excessive and not supported by the evidence.
Federal decisions concerning Title VII actions are not controlling on this court. Woods v. Midwest Conveyor Co., 231 Kan. at 767. Kansas case law holds that an appellate court will not find a punitive damage award excessive unless it is of a size to shock the conscience of the appellate court. Binyon v. Nesseth, 231 Kan. 381, Syl. ¶ 4, 646 P.2d 1043 (1982); Cantrell v. R. D. Werner Co., 226 Kan. at 686;. Henderson v. Hassur, 225 Kan. 678, 697, 594 P.2d 650 (1979). Further, punitive damages are allowed not because of any special merit in the injured party’s case, but are imposed by way of punishing the wrongdoer for malicious, vindictive, or a willful or wanton invasion of the injured party’s rights, the purpose being to restrain and deter others from the commission of like wrongs. Plain Resources, Inc. v. Gable, 235 Kan. 580, Syl. ¶ 6, 682 P.2d 653 (1984). A corporation is not liable for punitive damages awarded for an employee’s tortious acts within the scope of employment unless (a) a corporation or its managerial agent authorized the doing and manner of the act; (b) the employee was unfit and the corporation or its managerial agent was reckless in employing or retaining him; (c) the employee was employed in a managerial capacity and was acting within the scope of employment; or (d) the corporation or its managerial agent ratified or approved the act of the employee. Gould v. Taco Bell, 239 Kan. 564, Syl. ¶ 5, 722 P.2d 511 (1986); Kline v. Multi-Media Cablevision, Inc., 233 Kan. 988, Syl. ¶ 4, 666 P.2d 711 (1983). Against this standard, there appears to be sufficient competent evidence to support the award of punitive damages. The evidence, including evidence against management, is sufficient for a jury to conclude there was a pattern over time amounting to a policy of discriminating against Smith in retaliation for filing claims with the KCCR.
We conclude that defendant’s challenge to the size of the punitive damage award is without merit.
SUMMARY TUDGMENT
We turn now to the issues raised in plaintiff s appeal. First, plaintiff contends the district court erred in entering summary judgment in favor of defendant on plaintiff s claim alleging his termination was in retaliation for having filed workers’ compensation claims.
This court’s recent decision in Cox v. United Technologies, 240 Kan. 95, 727 P.2d 456 (1986), is determinative of this issue. In Cox, we declined to extend the tort of retaliatory discharge judicially recognized in Murphy v. City of Topeka, 6 Kan. App. 2d 488, 630 P.2d 186 (1981), to include an employee adequately protected contractually from such discharge by a collective bargaining agreement. Cox was a co-plaintiff in the case before us and summary judgment was entered in favor of defendant on this claim asserted by both Cox and plaintiff herein. Both were covered by the same collective bargaining agreement and the rationale in Cox applies with equal force to plaintiff s claim herein.
ATTORNEY FEES
For his final issue, plaintiff contends the trial court erred in denying his claim for attorney fees under § 1988.
42 U.S.C. § 1988, also known as the Civil Rights Attorney’s Fees Award Act, provides that “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.”
The question, then, is whether or not the district court abused its discretion in denying attorney fees herein.
The following should be noted. Plaintiff s counsel represented both plaintiff Smith herein and co-plaintiff Cox (not involved in this appeal). Smith is a black man and Cox is a white man. Each brought this action against their employer stating numerous counts. These claims are not identical for each plaintiff. Generally speaking, Cox alleged he had been discriminated against and terminated due to his friendship with Smith and his filing of KCCR claims. Smith contended he had been discriminated against as a black man and that he had been harrassed and terminated because he had filed civil rights claims. Both men sought damages for retaliation for having filed workers’ compensation claims, breach of the employer-employee fiduciary relationship, and for prima facie torts. Obviously, different facts were involved in the claims of each plaintiff.
The case herein was commenced on April 20, 1983. All counts other than the § 1981 claims were disposed of by the summary judgment in favor of defendant on June 4, 1984. However, this followed more than two years of discovery activities. The plaintiffs’ two remaining claims went to jury trial. Cox lost on both of the viable counts — Smith prevailed on one.
Counsel for the two plaintiffs sought attorney fees under § 1988 for his representation of Smith. He presented the court with a time sheet reflecting the entire amount of time spent representing both plaintiffs on all claims and sought compensation for all hours expended in the case (280.95 hours at $75.00 per hour plus expenses of $559.20 for a total of $21,630.45). He could neither segregate hours spent on Cox’s claims from those spent on Smith’s claims nor separate time spent on Smith’s unsuccessful claims from time spent on his one successful claim. A number of claims involved state law actions for which no attorney fees would be allowed even if they had been successful.
As noted in Ramos v. Lamm, 713 F.2d 546 (10th Cir. 1983):
“In the future, district judges in this Circuit will inform lawyers that if they intend to seek attorney’s fees under § 1988 they must keep meticulous, contemporaneous time records to present to the court upon request.” 713 F.2d at 553.
In denying the motion for attorney fees herein, the trial court stated:
“After reviewing the briefs of counsel, it appears that the plaintiff Smith had a contingency fee contract with his counsel of record providing that counsel would receive one-third of any amount recovered. It also appears from the authorities cited that under 42 U.S.C. 1988, the trial court has discretion as to whether or not attorney’s fees should be awarded in any given case. In this case, the claims of the plaintiff Cox were not successful and it is difficult to discern the amount of counsel’s time expended on the case that should be allocated to his representation of Mr. Cox. It is further noted that a substantial portion of counsel’s time may be attributable to the prosecution of unsuccessful claims in this case which were brought under state law and for which attorney’s fees would not be allowable.
“After considering the size of the jury’s verdict in this case, together with all of the other factors mentioned in the briefs of counsel, the Court finds that Mr. Smith’s contingency fee contract with counsel will appropriately compensate his attorney and an additional award of attorney’s fees does not appear to be appropriate. For the foregoing reasons, the plaintiff s Motion for Attorney’s Fees should be overruled.”
In the case herein, the jury awarded actual damages of $30,000 and punitive damages of $25,000 for a total of $55,000. The aggregate of the one-third contingent fee and expenses is substantially under the punitive damage award of $25,000. Payment of the contingent fee contract figure would adequately compensate plaintiff s counsel without diminishing plaintiff s award for actual damages.
Under the totality of the circumstances herein, we cannot find the trial court abused its discretion in denying an award of attorney fees.
The judgment is affirmed.
Herd, J., concurring in result.
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The opinion of the court was delivered by
Prager, J.:
This is a direct appeal by the defendant, Thomas Bird, from a jury conviction of first-degree premeditated murder (K.S.A. 21-3401). The charge arose out of the death of the defendant’s wife, Sandra Bird, whose body was found on July 17, 1983, lying face down in a river in front of her overturned car. The death occurred below the Rocky Ford Bridge which is located south of the city of Emporia on a gravel road. Directly south of the Rocky Ford Bridge there is an S-curve consisting of two 90-degree angle turns.
Sandra Bird’s body was examined by Dr. Juan Gabriel, who performed an autopsy and determined that Sandra had died as the result of an automobile accident when her car missed the bridge and proceeded down an embankment into the river. The doctor noted that Sandra’s most serious injury was a transected kidney which he stated was the kind of injury people receive in motor vehicle accidents. At that time, no one seemed to question Dr. Gabriel’s decision. Shortly after the body was discovered, police officers arrived at the scene and took photographs and measurements. From an examination of the gravel roadway, ditches, and the fence rows south of the bridge, it was concluded that there was no evidence that the car was out of control or made any kind of braking or sliding action before going down the embankment.
Subsequent developments caused the police authorities to believe that the death of Sandra Bird had resulted from criminal action. In October of 1984, the body of Sandra Bird was exhumed and a second autopsy was performed by Dr. William G. Eckert, a certified forensic pathologist. In addition to the injuries noted by Dr. Gabriel, the second autopsy revealed fractures of the left shoulder blade and a laceration on the top of her head indicating a considerable amount of impact or blunt trauma which, according to Dr. Eckert, was capable of rendering a person unconscious instantaneously. Dr. Eckert also found three linear type injuries above the left wrist which was fractured, a similar injury on the right arm above the wrist, and one in the elbow joint of the right arm. Dr. Eckert was of the opinion that the injuries on the back of her arms were defensive injuries. Dr. Eckert explained defensive injuries as injuries caused when a person has his arms outstretched in an effort to ward off blows in an attack. In the doctor’s opinion, the linear marks above her wrist could have been caused by an instrument such as a branch of a tree, a baseball bat, a pool cue, or a tire iron. In Dr. Eckert’s opinion, the injuries to Sandra Bird’s kidney could have been caused by her falling from a height in excess of 20 feet. An important part of the opinion of Dr. Eckert was that he found no injuries on Sandra Bird’s body which could have been caused by her ejection from an automobile. The autopsy by Dr. Eckert resulted in further investigation by the county attorney. This prosecution followed.
There were a number of factual issues presented at trial in the case, the most important of which was whether Sandra Bird’s death was caused when her body was ejected from the moving automobile as the result of a tragic accident or whether she was killed as a result of a brutal attack on the bridge and the throwing of her body into the river.
The matter was presented to a grand jury which brought in an indictment charging defendant with first-degree premeditated murder. Thomas Bird was tried on the indictment to a jury in Lyon County and was found guilty as charged. A review of the transcript of the trial and the many exhibits in the case shows clearly that the case was tried by two able Kansas trial attorneys who represented their clients in a highly professional manner. The case was difficult to try, because there were no eyewitnesses to the killing and the case had to be determined by the jury on the basis of circumstantial evidence. The prosecution presented testimony of 72 witnesses and over 100 exhibits for consideration by the jury. The State’s evidence produced factual circumstances which wove a web of guiltaround the defendant. As to the cause of Sandra Bird’s death, the State’s evidence established that there were no skid marks or other evidence at the scene indicating that the deceased’s vehicle had gone out of control after going around the S-curve south of the Rocky Ford Bridge. Police officers at the scene observed blood on the bridge and on a tree located directly below the east edge of the bridge which was located 20 feet from the resting place of the car. The blood on the tree was type A, which was the same type of blood as Sandra Bird’s. There was no credible explanation as to how Sandra Bird’s blood could be located on the west side of the tree, if Sandra Bird’s injury had resulted from being ejected from the vehicle as it traveled east of the tree from the road into the creek.
Sandra Bird’s body was found lying face down in the water in front of her car. Dr. Gabriel concluded that her death was caused by loss of blood or hemorrhage due to internal injuries caused by blunt trauma. In his judgment, her death resulted approximately 30 minutes to one hour after her injuries occurred when she was ejected from her vehicle and thrown into the water. There is no satisfactory explanation as to why there was no water found in Sandra Bird’s lungs as she lay under water. The relative positions of Sandra Bird’s body and her automobile in their final resting places do not support the defense theory that Sandra Bird had been ejected from the moving vehicle when its left-hand door was torn off. A State’s expert witness testified that, given the mechanics of the automobile’s roll, it was his opinion that Sandra Bird’s body would have been deposited on the land between the door and the final resting place of the vehicle and that her body would not have ended up in front of the vehicle in the river. The interior of Sandra’s car contained no blood or hair which would have indicated a person had been banged around inside the car. Simply stated, the physical evidence at the scene and the more complete examination of Sandra Bird’s body performed at the second autopsy furnished substantial evidence that Sandra Bird had not been killed as the result of an automobile accident, but rather that her fatal injuries were suffered as a result of blows struck on the.bridge, following which her body was thrown over the rail into the river.
There was other evidence which indicated that Sandra Bird had been standing on the bridge in the area where blood was found. There was evidence that at 9:30 p.m. on the evening of July 17, Sandra had stopped by their home, talked with the babysitter, and picked up a bottle of wine and a bottle of bourbon. A wristwatch identified as belonging to Sandra Bird was found under the bridge in the vicinity of the tree where blood of her type was discovered. The planks on the bridge above the body had a one-to-three-inch gap between the planks. Two red plastic cups found in the entrance to a field just to the south of the bridge were similar to ones found underneath the bridge.
The State’s evidence established a motive for defendant to kill his wife. Thomas and Sandra Bird were having marital difficulties as the result of an affair which defendant was having with Lorna Anderson. Sandra Bird had visited with some of the State’s witnesses about her marital problems and had indicated that they were caused by defendant’s relationship with Lorna Anderson.
Darrell Carter, an acquaintance of Lorna Anderson, testified that in May of 1983, two months before Sandra’s death, he had a conversation with Thomas Bird and Lorna Anderson at the First Lutheran Church. According to Darrell Carter, he and Lorna and the defendant discussed plans to kill Lorna Anderson’s husband, Martin Anderson. Two plans to kill Martin Anderson were outlined to Darrell Carter at the church. He testified that one death plan was proposed by Thomas Bird. The defendant stated he had been out in the country south on a gravel road. There was a bridge on the river and it was about 50 feet down to the river. Tom Bird suggested that, if a person was drugged or drunk, that person could easily miss the curve in the road. His plan was to drug Martin Anderson at home, take him down to the river, shove his car into the river, and make it look like an accident. Lorna Anderson and Tom Bird wanted Darrell Carter to come down to the river and pick up Tom Bird and bring him back to town. They wanted Lorna to be at home so it would not arouse suspicion, and she wanted to be at home so that people could see that she was at home. At one point during the conversation, Tom Bird told Carter that he was a man of God and that he was going to kill Martin Anderson. The second plan outlined to Darrell Carter involved staging a false robbery and shooting Martin Anderson to death in Topeka.
Another State’s witness, Charles Henderson, a former inmate of Lansing State Penitentiary, testified that he had been in a cell right next to that of the defendant. According to Henderson, defendant visited with him about the death of his wife and indicated that he and Lorna Anderson conspired to have his wife killed. Also, defendant discussed with Henderson the amount of money that he and Lorna Anderson were going to receive from the insurance companies. On redirect examination, Henderson testified that Tom Bird had told him that he had his wife killed. This admission was never countered by any evidence presented by the defendant.
On the next day following the discovery of Sandra Bird’s body, the defendant discussed Sandra’s death with a number of witnesses. His different versions of his activities the evening of Sandra’s death were inconsistent. The defendant gave a statement to one witness which, in substance, was as follows: Early in the evening Sandra brought hamburgers to the church, and there they ate dinner. Sandra changed clothes at the church and then they went to a movie. After the movie they went by the house and Sandra picked up a bottle of wine and a bottle of bourbon at approximately 9:30 p.m. They went to the church and fixed a drink and, thereafter, they went to a private club where they each had two more drinks. They left the club at 10:45 and went back to the church where Sandra dropped off defendant. Sandra went to her office at Emporia State University to work. Between 11:15 and 11:45 defendant went jogging for approximately 2.6 miles. Sandra had said she would be gone 45 minutes to one hour but failed to return. When Sandra did not return by midnight, defendant drove by the university, but Sandra was not there. Thereafter, the defendant made telephone calls to the babysitter, personnel at the university, the Emporia police department, the sheriffs office, and the Newman hospital.
If we accept as true the defendant’s statements as to his actions on the evening of Sandra’s death, the defendant and Sandra had last eaten food about 7:00 p.m. at the church. Dr. Gabriel in the first autopsy found food in Sandra Bird’s stomach which caused him to form an opinion that Sandra Bird had died within three hours of her last meal. That would put the time of death in the neighborhood of 10:00 p.m., when defendant and Sandra were together.
The testimony presented by the defense tended to refute some of the theories presented by the State’s witnesses. The defendant’s medical expert, Dr. Bridgens, concluded that Sandra Bird had been injured when she was thrown out of the driver’s side of the car as it went down the embankment at a speed of 15-20 miles per hour and rolled over. He concluded that the State’s theory of how Sandra Bird died was unlikely based upon her injuries. Various other witnesses called by the defendant tended to support defendant’s theory that the death was the result of an accident rather than an intentional killing. The case was submitted to the jury which believed the testimony of the State’s witnesses and found the defendant guilty of first-degree murder as charged. The defendant appealed.
The defendant has raised nine points on the appeal. Defendant’s first point is that the indictment was fatally defective, because it is devoid of factual allegations sufficient to inform the defendant of the nature of the accusations against him in violation of the Sixth Amendment to the United States Constitution and Section 10 of the Kansas Constitution Bill of Rights. Prior to the trial, the defense had moved to dismiss the indictment for the same reason, which motion was denied. The State contends the indictment was sufficient because it was couched in the terms of the statute and contained all of the essential elements of first-degree murder. In this case the indictment provided as follows:
“INDICTMENT
“The Grand Jury charges that:
COUNT I
“that on or about the 16th day of July, 1983 in Lyon County, Kansas, one THOMAS P. BIRD, then and there being, did then and there unlawfully, willfully, maliciously, deliberately, and with premeditation, kill a certain human being, to-wit: Sandra S. Bird, contrary to the form ofK.S.A. 21-3401, and against the peace and dignity of the State of Kansas. (Class A Felony)
“This is a true bill.
Is/ Louella Linn “PRESIDING JUROR”
In State v. Bird, 238 Kan. 160, 708 P.2d 946 (1985), a case in which the defendant, Thomas Bird, was convicted of criminal solicitation involving a plan to murder Martin Anderson under K.S.A. 1984 Supp. 21-3303, this court discussed the principles to be applied in determining the sufficiency of the charges contained in an indictment or information. The court stated:
“In a felony action, the indictment or information is the jurisdictional instrument upon which the accused stands trial. State v. Howell & Taylor, 226 Kan. 511, 601 P.2d 1141 (1979). A conviction based upon an information which does not sufficiently charge the offense for which the accused is convicted is void. Failure of an information to sufficiently state an offense is a fundamental defect which can be raised at any time, even on appeal. See K.S.A. 22-3208(3); State v. Robinson, Lloyd & Clark, 229 Kan. 301, 624 P.2d 964 (1981); State v. Minor, 197 Kan. 296, 416 P.2d 724 (1966). Sufficiency of the indictment or information is to be measured by whether it contains the elements of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet, and by whether it is specific enough to make a plea of double jeopardy possible. Russell v. United States, 369 U.S. 749, 763-64, 8 L. Ed. 2d 240, 82 S. Ct. 1038 (1962). Although the accused has the right to know the nature of the charges against him, the information need not set forth all the specific evidentiary facts relied on to sustain the charge. However, if the allegations in an information fail to constitute an offense in the language or meaning of an applicable statute, the information is fatally defective. State v. Robinson, Lloyd & Clark, 229 Kan. 301; State v. Doyen, 224 Kan. 482, 580 P.2d 1351 (1978).
“In this state, the sufficiency of the information is governed by the guidelines of K.S.A. 1984 Supp. 22-3201(2), which provides:
“ ‘The complaint, information or indictment shall be a plain and concise written statement of the essential facts constituting the crime charged, which complaint, information, or indictment, drawn in the language of the statute, shall be deemed sufficient.’
“This court has repeatedly held that an information which charges an offense in the language of the statute is sufficient. State v. Garner, 237 Kan. 227, 237, 699 P.2d 468 (1985); State v. Lucas, 221 Kan. 88, 89, 551 P.2d 1296 (1976); State v. Barry, 216 Kan. 609, 619, 533 P.2d 1308 (1974).” pp. 166-67.
When we examine the indictment in this case, we have no hesitancy in holding that the indictment was sufficient to satisfy the requirements of the statutes and the United States and Kansas Constitutions. K.S.A. 21-3401 defines murder in the first degree and provides:
“21-3401 Murder in the first degree. Murder in the first degree is the killing of a human being committed maliciously, willfully, deliberately and with premeditation or committed in the perpetration or attempt to perpetrate any felony.”
Here the indictment contained all the necessary elements required in K.S.A. 21-3401 and identified the victim of the crime. The issue of probable cause had previously been determined by the grand jury, and there is no contention that the evidence presented to the grand jury was not sufficient to support the charges in the indictment. The defendant at the time of the arraignment on the grand jury indictment requested a verbatim transcript of the grand jury proceedings and a copy of all exhibits considered by the grand jury. The district court sustained defendant’s motion and a transcript and copies of the exhibits were provided. In addition, the trial court sustained the defendant’s motion for a bill of particulars and ordered the State to specify the alleged criminal acts. When the attorney for the defendant received a copy of the bill of particulars, he did not ask for additional statements of fact. The defendant has failed to establish that he was surprised during the proceedings or that he was prevented from preparing his defense. The conflicting theories as to how Sandra Bird’s death occurred were evident to the defendant from the beginning. We hold that the indictment was not defective for the reasons claimed by the defendant and further that defendant’s right to a fair trial has not been violated because of any defects in the indictment.
The defendant raises two points claiming error in the evidentiary rulings of the trial court. The defendant maintains that the trial court erred in failing to strike the testimony of Bill Per-singer, the State’s expert in accident reconstruction, and in overruling the objections made to his testimony on the basis that his testimony was without factual foundation. The defendant further maintains that the trial court erred in admitting into evidence misleading diagrams of the death scene. Specifically defendant refers to the admission of State’s exhibits Nos. 2 and 118. We have considered the arguments of counsel and the record and have concluded that the trial court did not commit error. The court required that Persinger’s opinion be based upon the photographs and other exhibits which had already been admitted into evidence. The jury was instructed that Persinger’s testimony should be considered only on the basis of exhibits which had already been admitted into evidence. Although the two diagrams complained of had not been drawn to scale, the trial court permitted the diagrams to be used to clarify the.* testimony of certain witnesses, but did so only after instructing the jury that exhibits Nos. 2 and 118 were not drawn to scale and that the jury should not consider them to be exhibits drawn to scale. We find no error in the rulings of the trial court in regard to the admission of this evidence.
The defendant claims misconduct of the prosecutor because of certain language contained in the prosecutor’s closing arguments. The prosecutor’s comments concerned the testimony of Jan Mead, who testified that Lorna Anderson had stated that she wished something would happen to her husband and Tom’s wife so that she and Tom could spend the rest of their lives together. In his closing arguments, the prosecutor referred to the testimony of Jan Mead about the statements made by Lorna Anderson that she and Tom Bird were in love, that they wanted to spend their lives together, and that they (rather than she) wished something tragic would happen to Sandra Bird and Martin Anderson. We note that no objection was made to the prosecutor’s argument at the time of trial. We cannot say that the remarks of the prosecutor were so prejudicial to the case of the defendant as to constitute reversible error.
The defendant also challenges other statements made by the prosecutor which defendant claims were not supported by the evidence. We likewise find no prejudicial error. Generally it can be stated that the statements made by the prosecutor during his closing arguments were fair arguments based upon the evidence presented trial.
A fifth point raised by the defendant on appeal is that the trial court erred in denying defendant’s motion for a new trial based upon newly discovered evidence. Charles Henderson testified for the State at the trial that he was next to the defendant in a cell at the state penitentiary. He testified that, while at the penitentiary in 1985, the defendant told him that he had conspired with Lorna Anderson to have his wife killed, and that he had been having an affair with Lorna Anderson for two or three years, and further that defendant would collect $300,000 on Sandra Bird’s life.
On the motion for a new trial, Ms. Spires testified that she was a desk clerk at the Copa Villa Motel and spoke with Henderson the morning he was to testify. She testified Henderson told her he didn’t know who Thomas Bird was and had no idea why he was there. After Henderson testified, he spoke with Ms. Spires again and told her he learned why he was there. He told her some friends in Oklahoma had left him holding the bag. He was there to tell what had been overheard; that his friends told him some things. The trial judge denied the motion for a new trial stating that in his opinion it was unlikely there would be a different result if a new trial were granted based upon this newly discovered evidence.
The rules regarding motions for new trial based upon newly discovered evidence were recently stated in State v. Hobson, 237 Kan. 64, 697 P.2d 1274 (1985), which quoted State v. Johnson, 222 Kan. 465, 565 P.2d 993 (1977), as follows:
“ ‘The granting of a new trial for newly discovered evidence is in the trial court’s discretion. (State v. Larkin, 212 Kan. 158, 510 P.2d 123, cert. den. 414 U.S. 848, 38 L. Ed. 2d 95, 94 S. Ct. 134.) A new trial should not be granted on the ground of newly discovered evidence unless the evidence is of such materiality that it would be likely to produce a different result upon re-trial. (State v. Hale, 206 Kan. 521, 479 P.2d 902.) The credibility of the evidence offered in support of the motion is for the trial court’s consideration. (State v. Anderson, 211 Kan. 148, 505 P.2d 691; State v. Larkin, [212 Kan, 158].) The burden of proof is on defendant to show the alleged newly discovered evidence could not with reasonable diligence have been produced at trial. (State v. Lora, 213 Kan. 184, 515 P.2d 1086; State v. Arney, 218 Kan. 369, 544 P.2d 334.) The appellate review of an order denying a new trial is limited to whether the trial court abused its discretion. (State v. Campbell, 207 Kan. 152, 483 P.2d 495; State v. Anderson, [211 Kan. 148].)’ ” 237 Kan. at 66.
The Hobson court went on to state:
“These rules have been repeated by the court many times, most recently in State v. Richard, 235 Kan. 355, 363, 681 P.2d 612 (1984). In Richard we also stated ‘[a] new trial is not granted on the basis of newly discovered evidence which merely tends to impeach or discredit the testimony of a witness.’ 235 Kan. at 363.” 237 Kan. at 66.
We have considered the record in the case and have concluded that the district court did not abuse its discretion in denying defendant’s motion for a new trial based on the testimony of Ms. Spires. The testimony of Spires tended to imply that Henderson was told of the conspiracy through friends rather than defendant, but she admitted that she did not understand whether he was told by defendant or his friends about the conspiracy. Assuming that Ms. Spires actually recalled what Charles Henderson said, the testimony would have been, at best, only in the nature of impeachment testimony. Ordinarily a new trial is not granted on newly discovered evidence which merely tends to impeach or discredit the testimony of a witness. State v. Richard, 235 Kan. 355, 363, 681 P.2d 612 (1984). We find this point to be without merit.
The defendant next maintains that reversal is required because the evidence presented by the State varied radically from the offense charged in the indictment and contained in the bill of particulars. He complains that the indictment and bill of particulars alleges that the defendant killed Sandra Bird by applying force causing her to sustain and suffer blunt injuries. The court admitted the testimony of Charles Henderson that defendant stated he conspired to have his wife killed. Vernon Humphrey’s police report also alluded to this conversation. We note that the defendant did not object at the time of Henderson’s testimony. However, after both sides had rested, the defendant moved to strike the testimony or in the alternative for a mistrial. It is clear in this case that defense counsel had a copy of Officer Humphrey’s report prior to the trial which alluded to the information. No motion in limine was filed to exclude Henderson’s testimony. The evidence of Henderson was offered to show the defendant’s intent and the fact that he had been involved in the death of his wife.
The defendant contends that the State speculated that Thomas Bird threw Sandra Bird off the Rocky Ford Bridge. That was a matter for the consideration of the jury and the State’s evidence in the case indicated that it had occurred. It was up to the jury to determine that point. We find no merit on this issue.
The seventh point raised by the defendant is that the State’s evidence was insufficient to permit a rational factfinder to conclude beyond a reasonable doubt that Sandra Bird’s death resulted from a homicide rather than an accident, and, furthermore, that there was no substantial competent evidence to place Thomas Bird at the scene of the wreck, regardless of whether Sandra Bird’s death is characterized as accidental or homicidal. The test for determining the sufficiency of the State’s evidence to support a conviction has been stated many times by this court. In a criminal action, when the defendant challenges the sufficiency of the evidence to support a conviction, the standard of review on appeal is whether the evidence, viewed in the light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. The appellate court looks only to the evidence in favor of the verdict to determine if the essential elements of the charge are sustained. State v. Pink, 236 Kan. 715, 729, 696 P.2d 358 (1985).
Likewise, a verdict of guilty in a criminal case will not be disturbed on appeal if there is substantial evidence from which a jury could find guilt beyond a reasonable doubt, even though the evidence is entirely circmstantial.
In State v. Yarrington, 238 Kan. 141, Syl. ¶¶ 5, 6, 7, 708 P.2d 524 (1985), the victim’s death originally appeared to be a suicide. However, in upholding the murder conviction, the court stated:
“In a first-degree murder prosecution, premeditation may be established by circumstantial evidence, and may be inferred from the established circumstances of the case provided the inference is reasonable.”
“The term corpus delicti means the body of the offense — the substance of the crime. As applied in homicide cases it has at least two component elements: (1) the fact of death, and (2) the criminal agency of another person as the cause thereof.”
“The corpus delicti of a crime may be proved in whole or in part by direct testimony or by indirect testimony and circumstantial evidence.”
The evidence presented in this case by the prosecution has been set forth in some detail earlier in the opinion. On the basis of the evidence contained in the record, we hold that the evidence was sufficient to sustain the jury verdict of guilty of first-degree premeditated murder.
The defendant next maintains that the trial court erred in denying defendant’s pretrial motion for a change of venue. In support of defendant’s motion for change of venue, Dr. John Shoemaker, President of Capital Research Services, Inc., testified he conducted a survey to find out to what extent people were aware of this case and what they thought about the case.
The survey consisted of having a staff of interviewers randomly call 306 people in Emporia who had a telephone. The survey indicated 97.4 percent of the people had heard of the case and roughly half of those surveyed believed the defendant killed his wife. The people surveyed were given three options: “Yes, he was involved in it; no, he was not; or not sure.” Dr. Shoemaker’s survey indicated about half of the people thought he was involved in it.
Dr. Shoemaker assumed there would be a fairly high percentage of urban people called because they only called people who had an Emporia telephone exchange. More than half of the people called thought the defendant was not guilty or were unsure of the defendant’s guilt, based on Dr. Shoemaker’s survey. After consideration of the margin of error, the percentage of people who thought the defendant was not guilty or were unsure of his guilt could be as high as 55 percent. Dr. Shoemaker didn’t know if a survey in other counties of the State would indicate numbers just as high or low.
In the present case, the trial court made the following findings and denied defendant’s motion for a change of venue:
1. That the evidence established there has been extensive media coverage in the local area.
2. That media coverage does not per se establish prejudice.
3. That the general tone of the stories are factual representations of newsworthy occurrences reported mostly from court records.
4. The defendant has failed to demonstrate anything other than objective and factual reporting by the press.
5. That the results of the survey were inconclusive and did not establish prejudice which would deny defendant a fair and impartial trial in the county.
6. That the news stories covering defendant’s previous trial contained balanced reporting of both prosecution and defense.
7. That the defendant encouraged and participated in some pretrial publicity.
8.That a change of venue at this time would be based on speculation and conjecture.
Generally this court has stated:
“A change in venue in a criminal case lies within the sound discretion of the trial court. The burden of proof is cast upon defendant to show prejudice in the community which will prevent him from obtaining a fair and impartial trial. Media publicity alone has never established prejudice per se. Defendant must show prejudice has reached the community to the degree it is impossible to get an impartial jury.” State v. Crump, 232 Kan. 265, Syl. ¶ 6, 654 P.2d 922 (1982).
Defendant has shown no abuse of discretion by the trial court in denying the defendant’s request for a change of venue.
The final issue raised on the appeal is whether the trial court erred in instructing the jury on the presumption of intent. The trial court instructed the jury in the language of PIK Crim. 2d 54.01 as revised in 1979. Defendant objected to the giving of the instruction, arguing that it relieved the State of the burden of persuasion beyond a reasonable doubt. We have considered all of the instructions together and concluded that the court’s in struction on presumption of intent was properly given. This PIK instruction was approved in State v. Robinson, Lloyd & Clark, 229 Kan. 301, 306, 624 P.2d 964 (1981). The issue has recently been throughly discussed in State v. Mason, 238 Kan. 129, 708 P.2d 963 (1985), and in State v. Ransom, 239 Kan. 594, 605, 722 P.2d 540 (1986). We hold that the trial court did not err in giving this instruction.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Allegrucci, J.:
This is a personal injury action wherein plaintiff Everett Glenn appeals the district court’s ruling reducing the amount of the jury verdict. The defendant cross-appeals from the court’s order denying his motion for new trial.
The plaintiff originally sued four defendants, alleging fault against each of the defendants. The amended petition added a fifth defendant. Prior to the pretrial conference, the plaintiff settled with four of the defendants. Defendant Fleming did not settle with the plaintiff, nor did he allege fault as to the other defendants and, in his answer, denied that any of the defendants were at fault.
At the pretrial conference, the plaintiff moved to amend his petition in order to remove his cause of action against the settling defendants. Defendant Fleming was given twenty days to respond to the amended petition. In defendant Fleming’s amended answer, he stated, “[T]he proximate cause of plaintiff s injuries and damages, if any, were the negligent acts of the plaintiff.” Defendant Fleming made no mention of the fault of the settling defendants. The pretrial order stated that the defendant alleged the plaintiff was contributorily negligent. The only reference to the settlement is found in Paragraph VIII of the pretrial order, which states:
“Request has been made by Plaintiff for In Limine orders prohibiting the Defendant from mentioning Workers’ Compensation or any other collateral source for damage and prohibiting the mentioning of a settlement with any other former party to this lawsuit. Such motions are sustained.”
The case proceeded to jury trial against defendant Fleming. The jury awarded a verdict of $1,500,000.00, assessing fault of 30% on the plaintiff and fault of 70% on the defendant. Judgment against defendant Fleming was entered for $1,050,000.00. Upon motion of the defendant, the court reduced the amount of the judgment by $695,000.00, the total amount paid to the plaintiff as a result of the settlement with the four defendants prior to trial. Thereafter, defendant Fleming filed a motion for new trial based upon the court’s failure to submit the fault of the settling defendants to the jury for comparison purposes pursuant to K.S.A. 60-258a. The trial court denied the defendant’s motion for new trial.
The two questions before this court on appeal are: (1) Did the trial court err in denying the defendant’s motion for new trial; and (2) was it proper for the trial court to reduce the jury verdict by the amount the plaintiff received as a result of the settlement with the four defendants prior to trial?
We will first determine if the trial court erred in denying the defendant’s motion for new trial. The defendant argues his motion should have been granted because the trial court did not allow him to compare the fault of the settling defendants.
At the hearing on defendant Fleming’s motion for a new trial, counsel for defendant Fleming testified that he argued to the court at the pretrial conference that he should be able to tell the jury the amount of the settlement and, if not, that he was entitled to compare fault. He testified the court responded, “I’m not going to allow you to compare.” He stated he did not allege comparative fault against the settling defendants because he thought to do so would violate the pretrial order. He stated he made no proffer at trial to show the fault of the settling defendants because he thought there was an order forbidding him from doing so.
Plaintiff s counsel argued nothing in the pretrial order prohibited defendant from alleging the fault of any other party because the pretrial order speaks only to the settlement with the other defendants.
The court stated it did not recall defendant’s counsel asking leave of court to compare the fault of the settling defendants. The court stated, “I feel very confident that if [defendant’s counsel] had raised the question of comparative fault at that pretrial conference it would have been in that pretrial order.” The court reporter was not present at the pretrial conference and a record was not made of the conference.
The Kansas comparative negligence statute, K.S.A. 60-258a, in pertinent part, provides as follows:
“(c) On motion of any party against whom a claim is asserted for negligence resulting in death, personal injury or property damage, any other person whose causal negligence is claimed to have contributed to such death, personal injury or property damage shall be joined as an additional party to the action.
“(d) Where the comparative negligence of the parties in any action is an issue and recovery is allowed against more than one party, each such party shall be liable for that portion of the total dollar amount awarded as damages to any claimant in the proportion that the amount of his or her causal negligence bears to the amount of the causal negligence attributed to all parties against whom such recovery is allowed.”
In Brown v. Keill, 224 Kan. 195, 580 P.2d 867 (1978), this court interpreted K.S.A. 60-258a as allowing the jury to compare the fault of parties not formally joined in the lawsuit. The issue in that case was whether the fault of the plaintiff s son could be considered when comparing fault even though the son was not served with process or joined as a formal party to the action. This court ruled:
“[W]e conclude the intent and purpose of the legislature in adopting K.S.A. 60-258a was to impose individual liability for damages based on the proportionate fault of all parties to the occurrence which gave rise to the injuries and damages even though one or more parties cannot be joined formally as a litigant or be held legally responsible for his or her proportionate fault.” 224 Kan. at 207.
In McCart v. Muir, 230 Kan. 618, 641 P.2d 384 (1982), this court stated the fact the plaintiffs had settled with one of the defendants did not prevent another defendant from obtaining a determination of the settling defendant’s proportionate fault in the occurrence giving rise to the injuries and damages. 230 Kan. at 622, 624.
In McGraw v. Sanders Co. Plumbing & Heating, Inc., 233 Kan. 766, 667 P.2d 289 (1983), we said:
“That provision [60-258a(c)] evidences a legislative intent to allow a defendant to force comparison of his fault with that of a third party. Kennedy v. City of Sawyer, 228 Kan. 439, 460, 618 P.2d 788 (1980). Formal joinder, however, is not a necessary prerequisite to effecting comparison of fault. Brown v. Keill, 224 Kan. at 205-07. Subsection (c) operates merely to prevent the plaintiff from defeating proportionate liability by suing only one defendant when more than one party was arguably at fault. As such it benefits only the defendant through potential reduction of the percentage of fault attributable to him rather than benefiting the plaintiff through increased recovery. Ellis v. Union Pacific R.R. Co., 231 Kan. 182, 189, 643 P.2d 158, aff'd on rehearing 232 Kan. 194, 653 P.2d 816 (1982).” 233 Kan. at 772.
If formal joinder is not necessary, then how does a defendant proceed to compare the fault of a nonparty? In Brown v. Keill, this court looked at the defendant’s answer to the plaintiff s petition and the evidence produced at trial in order to determine whether the nonparty’s fault could be compared.
“One final question must be answered in this case. Was the answer filed by the defendant and the evidence introduced thereon sufficient to obtain the determination of the percentage of fault attributable to the nonparty?
“The defendant Keill in her answer alleged that the son who drove the Jaguar was a party whose negligence or fault contributed to cause the collision and damage to plaintiff s vehicle. She alleged specific acts of negligence on the part of the son. There was sufficient testimony introduced at the trial to support these allegations and from which a percentage of fault could be determined. The son appeared at the trial and testified on behalf of the plaintiff. The plaintiff and defendant both understood the nature of the issue and introduced evidence on that issue. The trial court made findings as to the percentage of fault of each party involved in the collision, including that of the son. These findings adequately support the judgment entered thereon. We hold that the issue of the percentage of fault of the son was adequately raised in the pleadings, supported by substantial competent evidence and properly decided by the trier of fact.” 224 Kan. at 207.
In Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, 412-14, 681 P.2d 1038, cert. denied 469 U.S. 965 (1984), this court looked at the evidence introduced at trial. There, the plaintiff sued the manufacturer of oral contraceptives, Ortho Pharmaceutical Corporation, for injuries she claimed resulted from her ingestion of the contraceptives. As part of her medical care, the plaintiff had consulted two physicians, Dr. Hermes and Dr. Wilcox. The plaintiff originally included those two doctors as defendants in her suit. After the pretrial conference and prior to trial, plaintiff settled with the two doctors. On appeal, Ortho argued the trial court erred in refusing to submit the issue of comparative fault of the plaintiff and the plaintiff s two doctors to the jury.
This court first looked to defendant Ortho’s answer where it was noted Ortho alleged first, plaintiff was contributorily negligent and second, plaintiff s injuries were caused by the negligence of other parties for whom Ortho was not responsible. At the time of the pretrial conference, the two doctors remained defendants in the case. Defendant Ortho’s position at the time of the pretrial conference remained the same. A transcript of the pretrial conference indicated Ortho’s position regarding the actions of the two doctors. Plaintiff s counsel questioned defendant Ortho’s counsel whether he contended the two doctors had departed from standard approved medical practice or had done anything wrong, and Ortho’s counsel responded, “No,” and that he did not intend to offer any evidence that the doctors had done anything wrong. After the pretrial conference and shortly before trial, the plaintiff settled with the two doctors and summary judgment in favor of the doctors was entered. The trial court did not allow defendant Ortho to compare the fault of the doctors at trial, stating that defendant Ortho had declined the invitation to do so at the pretrial conference.
On review, this court noted that defendant Ortho’s position of not alleging the fault of the two doctors was clear. It was stated:
“Plaintiff s counsel, at pretrial, was concerned with Ortho’s position, as reflected in the discussion quoted above. If no settlement was effected, plaintiff needed to be prepared to meet any evidence produced by Ortho of the negligence of the treating physicians. Ortho’s position was clearly stated: It made no claim that the physicians departed from approved medical practice, and it intended to offer no evidence that the physicians did anything wrong. If the plaintiff s evidence were to disclose fault on the part of the physicians, Ortho reserved the right to argue that. When the matter went to trial, plaintiff offered no evidence of causal negligence on the part of the physicians, and thus it was not necessary for the trial court to submit that issue to the jury. There was no evidence, expert or otherwise, of actionable, causal negligence on the part of Drs. Hermes and Wilcox. Under the circumstances disclosed by the record and the evidence in this case, we conclude that the tidal court did not err in refusing to submit the issue of the comparative negligence of the physicians to the jury.” (Emphasis in original.) 235 Kan. at 414.
The facts in the instant case are very similar to those in Wooderson. Defendant Fleming failed at the pretrial conference, in his amended answer, and at trial to show the comparative fault of the settling defendants. The language of the pretrial order clearly precludes only the mentioning of the settlement. It did not preclude the defendant from offering evidence at trial as to the fault of the settling defendants.
Defendant Fleming argues the settling defendants are necessary parties pursuant to K.S.A. 60-219(c) and, as such, the plaintiff “should have been compelled to comply with [those] provisions . . . when he filed his Amended Petition rather than trying to shift the burden to the defendant under . . . K.S.A. 60-258a(c).” The issue of whether multi-party tortfeasors are necessary parties was addressed by a federal court in Greenwood v. McDonough Power Equipment, Inc., 437 F. Supp. 707 (D. Kan. 1977). There a defendant argued that other defendants were indispensable parties who must be joined in the action pursuant to K.S.A. 60-258a(c) and, once joined, complete diversity was destroyed and the federal court lost jurisdiction. The federal court, however, ruled that the joinder tests of Rule 19 of the Federal Rules of Civil Procedure were not satisfied because complete relief could be afforded to those already a party to the lawsuit even in the absence of the other defendants due to the concept of phantom parties. 437 F. Supp. at 710. That same rationale applies here and there is no reason to require plaintiff to have complied with 60-219(c) when he filed his amended petition.
And finally, defendant Fleming argues he did not know of the settlement agreements and the trial court wrongly dismissed the other defendants from the suit. Defendant Fleming relies on the following language from Ratterree v. Bartlett, 238 Kan. 11, 29, 707 P.2d 1063 (1985):
“[T]he potential for injustice is so great from the use of secret settlement agreements in any tort action where there are multiple defendants, whether under joint and several liability or comparative fault principles, that we believe a disclosure rule should be adopted. Therefore, we hereby adopt this rule: When a settlement agreement is entered into between the plaintiff and one or more, but not all, alleged defendant tortfeasors, the parties entering into such agreement shall promptly inform the court in which the action is pending and the other parties to the action of the existence of the agreement and its terms.”
The record clearly reflects that defendant Fleming knew at the time of the pretrial conference the plaintiff had settled with the other defendants and yet defendant Fleming did not seek to allege the fault of those settling defendants. There is no merit in defendant Fleming’s claim of lack of knowledge of the settlements. The trial court did not err in denying the defendant’s motion for a new trial.
We turn now to the second issue. Did the trial court err in reducing the amount of the verdict by the amount the plaintiff received from the settling defendants?
Defendant Fleming claims Restatement (Second) of Torts § 885(3) (1977) supports the action taken by the trial court. That subsection states:
“A payment by any person made in compensation of a claim for a harm for which others are liable as tortfeasors diminishes the claim against the tortfeasors, at least to the extent of the payment made, whether or not the person making the payment is liable to the injured person and whether or not it is so agreed at the time of payment or the payment is made before or after judgment.”
However, Comment a to that section states: “The rules stated in this Section apply only when all the parties are liable for the entire harm. When a number of tortfeasors are liable only for proportionate shares of harm . . . the rule does not apply.” In Kansas, the individual liability of each defendant for payment of damage is to be based upon proportionate fault. K.S.A. 60-258a(d); Tice v. Ebeling, 238 Kan. 704, 707, 715 P.2d 397 (1986). The concept of joint and several liability between joint tortfeasors no longer exists in Kansas. Ellis v. Union Pacific R.R. Co., 231 Kan. 182, 191, 643 P.2d 158, aff d on rehearing 232 Kan. 194, 653 P.2d 816 (1982); Brown v. Keill, 224 Kan. 195, Syl. ¶ 5. What this court said in Brown bears repeating here:
“There will continue to be occasions under the present comparative negligence statute where unfairness will result. Having considered the arguments in light of the statute, we hold under the provisions of K.S.A. 60-258a the concept of joint and several liability between joint tort-feasors previously existing in this state no longer applies in comparative negligence actions. The individual liability of each defendant for payment of damages will be based on proportionate fault, and contribution among joint judgment debtors is no longer required in such cases.” 224 Kan. at 204.
The cases cited by defendant supporting the proposition that a plaintiffs judgment may be reduced where the plaintiff has settled with some but not all joint tortfeasors are not persuasive because those cases are from jurisdictions which have not abrogated the concept of joint and several liability.
This court finds no authority to support the reduction of plaintiff s judgment against defendant Fleming by the trial court. The effect of the trial court in reducing the plaintiff s verdict was to grant defendant Fleming the right of contribution against the other defendants. However, Brown v. Keill, 224 Kan. 195, stands for the proposition that the right of contribution among joint judgment debtors disappeared with the advent of K.S.A. 60-258a. The problem in the present case is that the fault of the settling defendants was not compared by the jury at trial. The issue of settlements under K.S.A. 60-258a where the fault of all defendants was compared by the jury at trial was addressed in Geier v. Wikel, 4 Kan. App. 2d 188, 190, 603 P.2d 1028 (1979). There the court stated:
“An injured party whose claim for damages is exclusively subject to the Kansas comparative negligence statute may now settle with any person or entity whose fault may have contributed to the injuries without that settlement in any way affecting his or her right to recover from any other party liable under the act. The injured party is entitled to keep the advantage of his or her bargaining, just as he or she must live with an inadequate settlement should the jury determine larger damages or a larger proportion of fault than the injured party anticipated when the settlement was reached.”
In Teepak, Inc. v. Learned, 237 Kan. 320, 699 P.2d 35 (1985), one defendant, Teepak, settled with the plaintiff and then, in a separate suit, sought to recover against a second tortfeasor, Learned, whom the plaintiff never sued. This court ruled the district court improperly denied Learned’s motion to dismiss as Teepak was not entitled to contribution because Teepak could have brought Learned into the suit for negligence comparison purposes. It was stated:
“The concept of contribution among tortfeasors arises from equitable origins — a person partially causing injury to another but paying for all of the injury should be entitled to contribution thereon from another person causing part of the injury. The equitable need for contribution vanishes when one tortfeasor has the statutory right to bring other tortfeasors into the action as defendants and have fault (and liability) proportionally determined.” 237 Kan. at 325.
K.S.A. 60-258a(c), which allows a defendant to join as parties, or as phantom parties, other defendants, prevents a plaintiff from circumventing proportionate liability by suing only one of several tortfeasors. It is permissive and a defendant is not required to join other parties. Albertson v. Volkswagenwerk Aktiengesellschaft, 230 Kan. 368, 370-71, 634 P.2d 1127 (1981). Here, the fault of the settling defendants was not compared at trial because defendant Fleming did not allege or prove the fault of the settling parties. The defendant had the opportunity to have the fault of the settling defendants compared by the jury, and his failure to do so grants no authority to the trial court to reduce the verdict.
We conclude that where the fault of a party is not submitted to the jury pursuant to K.S.A. 60-258a, the court has no authority to reduce the verdict by the amount the plaintiff received from a settlement with that party.
The judgment is affirmed in part and reversed in part and the case is remanded with directions to reinstate the jury verdict as originally entered. | [
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The opinion of the court was delivered by
Johnson, J.:
Christopher A. Belone seeks review of the Court of Appeals’ decision affirming his convictions for second-degree murder, kidnapping, and other crimes related to the beating death of Linda Begay, his long time companion. Belone raises a number of issues, but our agreement with his claim that the trial court violated his right of confrontation by admitting testimonial statements into evidence and our determination that the error was not harmless dispose of this appeal. Accordingly, we reverse and remand for a new trial.
Factual Statement
Begays unfortunate death on August 1, 2006, from peritonitis resulted from a tear in her small bowel which was, in turn, caused by blunt force trauma to her stomach, which the State alleges was inflicted by Belone with a board or table leg some 3 days earlier, on July 29. The Court of Appeals related the facts as follows:
“In the late afternoon on July 29, 2006, Officers Anthony Brixius and Micah Stegall of the Lawrence Police Department responded to a call at the Gaslight Trailer Park based on reports of criminal damage to property and a possible domestic abuse. Keith Bowers told Officer Brixius that he had taken Linda Begay to the hospital after she came to his window and said that her boyfriend, Belone, had beat her up at Frank Mallonee’s trailer.
“At tire hospital, tire officers found Begay to be extremely intoxicated. She had a large cut on the bridge of her nose, blood on her face, and bruises on her arms. Officer Brixius testified that in questioning Begay, she was loud and animated and stated drat ‘he fucking beat me up.’ She said that it was her boyfriend, Belone, who had beaten her. Officer Brixius testified Begay stated she woke up in Mal-lonee’s trailer to being dragged out of bed by Belone. Belone was hitting her witír his fists and yelling at her about cheating. Belone hit Begay in the stomach and face with a board (a table leg) and tíren he dragged her by her hair out of the trailer and into his truck. Begay told Officer Brixius that she was able to grab the board and jump out of the truck.
“Begay ran around the trailer park asking for help and eventually went back to tire trailer where she lived with Belone, their young son, and Belone’s mother. She banged on tire window telling her mother-in-law, ‘Get your fucking stupid ass out here. Get—your stupid ass son is doing something.’ When no one responded at the trailer, she threw the table leg through the window and then went to Bowers’ trailer for help.
“In a bedroom of Mallonee’s trailer, Officer Brixius discovered blood on the floor, a mattress, and two wrapped up t-shirts. He also found a large clump of hair on the pillow. In the bathroom, he found blood on the floor and streaks of blood around the sink. There was an over-turned table with one leg missing. Virginia Belone indicated that Begay threw a table leg through her trailer window. Officer Stegall confirmed that table leg was the missing leg from the table in Mallonee’s trailer.
“Officer Brixius returned to the hospital later in the evening when Begay was calmer and resting. He made an audio recording of his interview with her in which she confirmed that Belone was the person who beat her and forced her into his truck. The recording of the interview was played for the jury. Officer Brixius testified the recorded interview was consistent with the main details of his initial interview without all the yelling and animation.
“At the hospital, medical personal documented Begay’s broken nose, sore neck, swollen throat, abdominal pain, right hip pain, and bruises on her arms, chest, buttocks and legs. Dr. Ryan Davis documented the stomach pain and indicated that CT scans showed fluid leakage in her bowel. Dr. Davis testified that Begay was doing better the second day, but her condition declined the third day and another CT scan revealed a worsening of her internal abdominal injuries. The coroner, Dr. Erik Mitchell, testified that Begay died on August 1, 2006, from peritonitis caused by blunt trauma to the abdomen causing a tear in the small bowel.
“Multiple witnesses confirmed that Belone and Begay were in the truck together. The witnesses heard screams, saw Begay jumping out of the truck with the table leg, and saw Begay’s broken nose. Mallonee, who had been drinking most of the night before, testified that on the morning in question, Begay woke him up and she then drank a large bourbon and Coke. Mallonee said that Begay laid down on the bed in his bedroom and pulled her shorts down. He said he tried to have sex with her but he was unable to do so.
“Belone took the stand in his own defense. He testified that he was at Mallo-nee’s trailer looking for Mallonee to help him build a porch. He said that he found Begay in the back bedroom naked from the waist down. He claimed he tried to get her dressed, but she attacked him. He said that he must have accidentally hit her in the nose as they struggled. Belone said he tried to clean her up in the bedroom and then they left in his truck to go home, but she jumped out of the truck.
“The State ultimately charged Belone with second-degree murder, kidnapping, obstructing legal process or official duty, and violating a protective order. After a lengthy trial, the jury convicted Belone as charged. The trial court sentenced Belone to a presumptive imprisonment term of 586 months for second-degree murder and concurrent incarceration terms of 59 months for kidnapping, 6 months for obstruction, and 12 months in the county jail for violating a protective order.
“Belone filed multiple motions for a new trial, alleging improper admission of prior bad acts, juror misconduct, violation of the sequestration order, perjury by a State’s witness, nondisclosure of exculpatory evidence against a State’s witness, and new case law regarding the Confrontation Clause of tire Sixth Amendment to the United States Constitution. The trial court denied the motions.” State v. Belone, No. 99,176, 2010 WL 173950, at “1-2 (Kan. App. 2010) (unpublished opinion).
Procedural History
Prior to trial, the State filed a motion requesting that the court find that the statements Begay made to Bowers, to the emergency room staff, and to the investigating officers were all admissible at trial. The State based its argument on the exception to the right of confrontation known as the rule of forfeiture by wrongdoing. The district court initially ruled that the statements Begay made to her friend Bowers and to the medical professionals were nontestimon-ial and, therefore, not precluded by the Confrontation Clause. But the district court also concluded that the State had not met its burden to prove by a preponderance of the evidence that Belone was responsible for Begay’s unavailability by causing her death, and thus her testimonial statements to the officers, including the audio recording of the hospital interview, were not admissible because of Belone’s right of confrontation. At some point not disclosed by the record, the district court reversed itself and determined the statements to the officers fit within the forfeiture by wrongdoing exception.
After the district court denied a motion for new trial in which Belone renewed his argument that the admission of Begay’s statements to the investigating officers violated his confrontation rights, he asserted that argument again to the Court of Appeals. The Court of Appeals agreed with Belone, finding “that the trial court erred in this case by holding that the killing of Begay forfeited Belone’s rights under the Confrontation Clause and then admitting Begay’s testimonial statements at trial.” Belone, 2010 WL 173950, at *5. Specifically, the panel found that the trial court had not complied with the holding in State v. Jones, 287 Kan. 559, 567-68, 197 P.3d 815 (2008), where we explained that the rule of forfeiture by wrongdoing only applies where the State has shown by a preponderance of the evidence that the defendant’s act in causing the witnesses unavailability was “intended to prevent the witness from testifying.” Nevertheless, the panel found the error was harmless because of “overwhelming” evidence. Belone, 2010 WL 173950, at *5. We granted review.
Harmlessness of a Confrontation Clause Violation
Standard of Review
“ We employ an unlimited standard of review when addressing issues pertaining to the Confrontation Clause of the Sixth Amendment to the United States Constitution.’ State v. Leshay, 289 Kan. 546, 547, 213 P.3d 1071 (2009); State v. Ransom, 288 Kan. 697, 708-09, 207 P.3d 208 (2009) (whether confrontation rights have been violated is a question of law subject to unlimited review).” State v. Marquis, 292 Kan. 925, 928, 257 P.3d 775 (2011); accord State v. Bennington, 293 Kan. 503, 507, 264 P.3d 440 (2011).
In determining whether a fundamental failure in a trial is harmless, we employ a de novo review of the entire record. State v. Ward, 292 Kan. 541, Syl. ¶ 8, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).
Analysis
When Belone’s trial was conducted in March 2007, the participants had the benefit of the benchmark decision in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). Craioford held that the admission of a witness’ testimonial statements against a defendant violates the defendant’s rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution unless the witness is available to testify or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination. 541 U.S. at 68; see Bennington, 293 Kan. at 508.
One recognized exception to the right of confrontation, however, is the doctrine of forfeiture by wrongdoing. 541 U.S. at 62. That doctrine provides that a defendant who obtains the absence of a witness by his or her own wrongdoing forfeits his or her constitutional right to confrontation. At the time of Belone’s trial, the law in Kansas only required the State to show by a preponderance of the evidence that the defendant was responsible for the witness’ unavailability in order to trigger the forfeiture by wrongdoing exception. See State v. Meeks, 277 Kan. 609, 615-16, 88 P.3d 789 (2004).
Later, after Belone’s trial, the United States Supreme Court clarified that the forfeiture by wrongdoing exception only applies where the State has proved by a preponderance of the evidence that the defendant’s act of wrongdoing was specifically intended to prevent the witness’ testimony. See Giles v. California, 554 U.S. 353, 368, 128 S. Ct. 2678, 171 L. Ed. 2d 488 (2008). This court followed suit in Jones, 287 Kan. at 568, where we refused to apply the forfeiture by wrongdoing exception because the State had failed in its burden to show that Jones killed tire victim with the intent to prevent the victim’s subsequent testimony at trial.
Obviously, the trial court here did not have the benefit of those decisions and understandably, but surely, applied an incorrect standard. The State did not show that Belone killed Begay for the purpose of preventing her from testifying at trial. At most, the evidence suggested that the killing was motivated by jealousy. Moreover, the State’s attempt to carve out a different rule for domestic violence cases is unavailing. Accordingly, we affirm the Court of Appeals’ holding that the district court erred in admitting Begay’s testimonial statements to the police “because the Giles requirements as set forth in Jones, 287 Kan. at 567-68, were not met.” Belone, 2010 WL 173950, at *5.
Where we part company with the panel is in the harmless error analysis. Again, in the interest of fairness to the panel, we have the advantage of caselaw that was not available to the Court of Appeals when it decided this case in January 2010. It relied upon State v. Nguyen, 281 Kan. 702, Syl. ¶ 6, 133 P.3d 1259 (2006).
In July 2011, we clarified that the test for determining harmless error “is whether the error affected substantial rights, meaning whether the error affected the outcome of the trial.” Ward, 292 Kan. 541, Syl. ¶ 6. We tiren held that the degree of certainty by which the reviewing court must be persuaded that the error did not affect the trial outcome will vary depending upon whether the error infringed upon a federal constitutional right. We then explained:
“If the fundamental failure infringes upon a right guaranteed by the United States Constitution, the trial court should apply the constitutional harmless error standard defined in Chapman [v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386 U.S. 987 (1967),] in which case the error maybe declared harmless where the party benefitting from the error proves beyond a reasonable doubt that the error complained of will not or did not affect the outcome of tire trial in light of the entire record, i. e., where there is no reasonable possibility that the error contributed to the verdict. An appellate court will use the same analysis _” Ward, 292 Kan. 541, Syl. ¶ 6.
The Court of Appeals was influenced by “the sheer volume of witnesses testifying about the attack and kidnapping.” Belone, 2010 WL 173950, at *5. But none of the witnesses, other than Belone and Begay, had first-hand knowledge of the entire incident. Playing an audio recording of Begay relating her version of the entire event is certainly more compelling evidence than presenting pieces of the puzzle from a number of different witnesses.
Here, the State has simply failed to carry its burden of showing that there is no reasonable possibility that the violation of Belone’s confrontation rights contributed to the verdict. Without that degree of certainty, we cannot declare the error to be harmless. We must reverse and remand for a new trial. Given that disposition, we need not address Belone’s other claims of error.
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The opinion of the court was delivered by
Beier, J.:
In this interlocutory appeal, tire State challenges the district judge’s suppression of evidence derived from a wiretap. We transferred the case from the Court of Appeals on our own motion and now affirm.
Factual and Procedural Background
This case began December 10, 2009, when then Attorney General Steve Six signed the following written delegation of authority to then Assistant Attorney General Barry Disney:
“I, Steve Six, the duly elected Attorney General of the State of Kansas, do hereby delegate the authority to exercise the power of the Attorney General to make application for ex parte orders authorizing the interception of wire, oral or electronic communication pursuant to K.S.A. 22-2515, et seq. to Barry Disney, Assistant Attorney General.
“This delegation of authority to exercise the power of the Attorney General to malee application for ex parte orders authorizing the interception of wire, oral or electronic communication is made under the authority of K.S.A. 75-710 and shall reznain in effect until revoked by me in writing.”
Less than 3 weeks later, Disney appeared before District Court Judge Cheiyl Rios Kingfisher in Shawnee County “for Attorney General Steve Six . . . pursuant to K.S.A. 75-710” and applied “for an order authorizing interception of wire communications and electronic communications pursuant to K.S.A. 22-2516.” The wiretap was to assist in a drug investigation, and the application was based on information provided by a Kansas Bureau of Investigation special agent. Judge Kingfisher issued an order authorizing the requested interception.
The investigation led to this prosecution of defendant Charles Elmer Bruce, Jr., in Neosho County on one count of conspiracy to manufacture methamphetamine and one count of possession of pseudoephedrine. Bruce sought suppression of all evidence derived from the wiretap, arguing that the order was unlawful.
According to Bruce’s motion to suppress, Disney was not “within the class of persons designated by the legislature to apply for an eavesdropping or intercepting order,” because “K.S.A. 22-2515 does not allow an assistant attorney general to make such an application.” Bruce cited State v. Farha, 218 Kan. 394, 544 P.2d 341 (1975), cert. denied 426 U.S. 949 (1976), and In re Olander, 213 Kan. 282, 515 P.2d 1211 (1973); and he argued that application of K.S.A. 2011 Supp. 75-710 to broaden an assistant attorney general’s authority under K.S.A. 2011 Supp. 22-2515 was impermissible because of a conflict between the two statutes and legislative history pointing to a contrary intention. Bruce also asserted that the Kansas statutory scheme for authorizing wiretaps could not be more permissive than the federal scheme, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2515 (2006) et seq. Finally, he argued that admissibility of the wiretap evidence could not be saved by the good-faith exception to the exclusionary rule under United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984), because suppression was required by wiretap-specific statutes.
At the time, the State argued in response that K.S.A. 2011 Supp. 75-710 permitted the attorney general to specially designate an assistant attorney general to apply for a wiretap order. The State also argued that the cases relied upon by Bruce dealt specifically with the validity of a prior version of the Kansas statute, see K.S.A. 1972 Supp. 22-2513 (repealed 1974), and did not control the interpretation of the current interaction between K.S.A. 2011 Supp. 75-710 and K.S.A. 2011 Supp. 22-2515. The State also relied on decisions from the federal courts and other state courts that interpreted 18 U.S.C. § 2516(2) (2006) to permit delegation under certain circumstances. In its view, the Kansas statutory scheme was not too permissive to pass muster when compared with its federal counterpart. Finally, the State sought to rely on the Leon good-faith exception.
District Court Judge Timothy E. Brazil held two hearings on Bruce’s suppression motion. At one of the hearings, Six and Disney testified about the procedure they followed on the delegation and the wiretap application. After briefing and argument, Judge Brazil suppressed the wiretap evidence, holing that “K.S.A. 75-710 does not amend or expand the powers granted to the attorney general pursuant to K.S.A. 22-2515(a)” and that “K.S.A. 75-710[,] as applied with K.S.A. 22-2515[,] is more permissive than 18 U.S.C. 2516(2)[;] therefore, the application and order authorizing interception are fatally defective and the evidence thereby was unlawfully intercepted.”
This interlocutory appeal and transfer from the Court of Appeals followed.
Analysis
The standard of review for the interpretation of Kansas statutes is well known. See State v. Roberts, 293 Kan. 29, 33, 259 P.3d 691 (2011) (unlimited review); State v. Arnett, 290 Kan. 41, Syl. ¶ 1, 223 P.3d 780 (2010) (intent of legislature governs; no statutory construction necessary if language of statute plain and unambiguous; if language ambiguous, court may construe statute by consulting legislative history, canons of construction, other background considerations that shed light on statute’s purpose). Our approach to the interpretation of federal statutes is the same, in the absence of an “otherwise binding court ruling.” Purvis v. Williams, 276 Kan. 182, 187, 73 P.3d 740 (2003); see In re M.F., 290 Kan. 142, 150-51, 225 P.3d 1177 (2010). Because of the risk wiretaps pose to personal privacy, authorizing statutes must be strictly construed. Olander, 213 Kan. at 287.
In addition, when reviewing a ruling on a motion to suppress evidence,
“this court generally reviews the factual findings underlying the district court’s suppression decision by a substantial competent evidence standard and the ultimate legal conclusion drawn from those factual findings by a de novo standard. The court does not reweigh the evidence. [Citation omitted.] When the parties do not dispute the material facts, however, the suppression question is solely one of law. [Citation omitted.]” State v. Coleman, 292 Kan. 813, 817, 257 P.3d 320 (2011).
See State v. Johnson, 293 Kan. 1, 4, 259 P.3d 719 (2011).
At oral argument before this court, counsel for the State suggested that analysis of this case should ask and answer three questions: First, has defendant Bruce established a violation of federal wiretap law? Second, did any violation run afoul of a provision intended to play a central role in the statutory scheme? And, third, if the provision was intended to play a central role, was its purpose achieved in spite of the violation and thus tire violation harmless?
We agree that asking and answering these questions is exactly what is called for here.
The State conceded at oral argument that the answer to each of the first two questions was “yes." In other words, there has been a violation of federal wiretap law, and the violation implicated a provision intended to play a central role in the statutory scheme. Given these concessions, we do not engage in an extensive discussion on these two points.
On the third question, the State asserts that the delegation from Six to Disney, despite its violation of a central provision, achieved the protective purposes of the federal and state statutes, eliminating tíre need for suppression of the wiretap evidence. We therefore discuss at somewhat greater length the parties’ contrary positions and our resolution.
We begin with a brief review of the statutes at the heart of this case, as well as our decisions in Olander and Farha.
The Statutes and Our Cases
Applications for wiretaps in the Kansas court system are subject to both 18 U.S.C § 2515 et seq. and Kansas wiretap statutes that largely mirror the federal provisions.
Under the federal statute,
“[wjhenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial... in or before any court ... or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.” 18 U.S.C. § 2515 (2006).
Kansas statutes contain the same suppression requirement when wiretap evidence has been obtained in violation of explicit safeguards. See K.S.A. 22-2517.
Both the federal and state statutes also provide for motions to suppress wiretap evidence in certain circumstances. The federal statute states:
“Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the contents of any wire or oral communication intercepted pursuant to this chapter, or evidence derived therefrom, on the grounds that—
(i) The communication was unlawfully intercepted;
(ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or
(iii) the interception was not made in conformity with the order of authorization or approval.” 18 U.S.C. § 2518(10)(a) (2006).
Kansas’ version of the federal statute’s subsections is identical in all significant respects. See K.S.A. 2011 Supp. 22-2516(9)(a).
Most significant here, both the federal and Kansas statutes safeguard the privacy of potential subjects of wiretaps by listing the specific state prosecutors who may seek a court order for interception. Under 18 U.S.C. § 2516(2),
“[t]he principal prosecuting attorney of any State, or the principal prosecuting attorney of any political subdivision thereof, if such attorney is authorized by a statute of that State to make application to a State court judge of competent jurisdiction for an order authorizing or approving the interception of wire, oral, or electronic communications, may apply to such judge for, and such judge may grant in conformity with section 2518 of this chapter and with the applicable State statute an order authorizing, or approving the interception of wire, oral, or electronic communications by investigative or law enforcement officers having responsibility for the investigation of the offense as to which the application is made, when such interception may provide or has provided evidence of the commission of [certain listed offenses], designated in any applicable State statute authorizing such interception, or any conspiracy to commit any of the foregoing offenses.”
This provision singling out “the principal prosecuting attorney” of any state or political subdivision is considerably narrower than an alternate federal statute governing applications for wiretaps by United States prosecutors. See 18 U.S.C. § 2516(1) (power to seek wiretap order extended to the United States “Attorney General, Deputy Attorney General, Associate Attorney General, any Assistant Attorney General, any acting Assistant Attorney General, any Deputy Assistant Attorney General or acting Deputy Assistant Attorney General in Criminal Division, National Security Division). The federal wiretap statute expressly references the delegation of power by the United States Attorney General. 18 U.S.C. § 2516(1).
The Kansas counterpart to 18 U.S.C. § 2516(2) on “the principal prosecuting attorney” of the State is K.S.A. 2011 Supp. 22-2515(a)(l)-(20). It reads in pertinent part:
“The attorney general, district attorney or county attorney may make an application to any judge of competent jurisdiction for an order authorizing the interception of a wire, oral or electronic communication by an investigative or law enforcement officer and agency having responsibility for the investigation of the offense regarding which the application is made when such interception may provide evidence of the commission of [certain listed offenses (1)-(19)]; or (20) any conspiracy to commit any of the foregoing offenses.”
Olander and Farha, the two previous cases from this court upon which the parties focus, did examine an earlier version of K.S.A. 22-2515(a)(l)-(20), as the State has pointed out. See Olander, 213 Kan. at 283; Farha, 218 Kan. at 395. The statute then permitted “the attorney general, an assistant attorney general, or a county attorney” to make an application for a wiretap order. See L. 1970, ch. 129, sec. 22-2513(1) (repealed 1974). Although the language of K.S.A. 2011 Supp. 22-2515(a)(l)-(20) now lists “[t]he attorney general, district attorney or county attorney,” the principles enunciated in Olander and Farha remain evergreen and applicable here.
In Olander, an assistant county attorney had applied for the order in issue. The parties did not dispute that the assistant had filed foe application in foe county attorney’s name and with his express authority, but this court nevertheless ruled that the statute’s omission of “assistant county attorney” from the list of prosecutors who could apply for such an order conclusively required suppression. Olander, 213 Kan. at 283-85. We rejected foe State’s argument that foe county attorney could delegate his statutory authority to an assistant county attorney, saying that the statute was
“intended to limit strictly the class of persons who may apply for an order permitting electronic surveillance, and... an assistant county attorney does not come within the class designated by the Kansas Legislature.
“No area of the law is more sensitive than that of electronic surveillance, since such activity intrudes into the very heart of personal privacy. There it is that legislative assemblies, including the Congress, have carefully restricted the right to apply for the use of electronic bugging devices to a very select coterie of public officers.” Olander, 213 Kan. at 285.
Although Olander focused primarily on die exclusive wording of foe Kansas statute, it also quoted foe language in the tandem federal statute, and it observed tíiat the Supreme Court of Minnesota had noted the absence of assistant county attorneys in foe federal statute on state wiretaps. See Olander, 213 Kan. at 287 (quoting State v. Frink, 296 Minn. 57, 75, 206 N.W.2d 664 [1973]). Our Olander opinion did not address today’s further question of whether the statutory suppression remedy could be avoided on any basis.
In Farha, we examined wiretaps authorized by a district court upon application of an assistant attorney general. We held that K.S.A. 22-2513(l)’s listing of an assistant attorney general among foe prosecutors able to apply for a wiretap order was more permissive than 18 U.S.C. § 2516(2)’s listing and thus the wiretaps were obtained illegally. Farha, 218 Kan. at 401-04. Again, we rejected foe State’s argument that it should be sufficient for the attorney general to have authorized and approved the application before it was submitted to the court.
“The difficulty with this contention is that under 18 U.S.C. § 2516(2) only the attorney general (the principal prosecuting attorney of the state) is authorized to make the application. The statute makes no distinction between ‘authorizing’ and ‘applying.’ ” Keeping in mind the expressed objectives of Title III—to centralize in a publicly responsible official subject to the political process the formation of policy on electronic surveillance—we think no such distinction should be made. In Kansas the attorney general can appoint as many assistant attorneys general as he may deem necessary (K.S.A. 75-3111). We cannot perceive Congress intended that at any given time the number of persons in Kansas who may obtain a wiretap order is limited only by the number of assistant attorneys general and county attorneys in existence at the particular time. . . . Strictly circumscribing this authority to that stated in the federal act—in Kansas the attorney general—will clearly eliminate any possible after-the-fact question as to identifiable individual responsibility for the application. Inasmuch as K.S.A. 1971 Supp. 22-2513(1) was more permissive than 18 U.S.C. § 2516(2) in that it purported to authorize an assistant attorney general to make application for a wiretap order, our state statute must be held invalid as in conflict with the federal act.” Farha, 218 Kan. at 403-04.
In Farha, we addressed the goals of the federal wiretap statutory scheme:
“ ‘Title III has as its dual purpose (1) protecting the privacy of wire and oral communications, and (2) delineating on a uniform basis tire circumstances and conditions under which the interception of wire and oral communications maybe authorized. To assure the privacy of oral and wire communications, Title III prohibits all wiretapping and electronic surveillance by persons other than duly authorized law enforcement officers engaged in tire investigation or prevention of specified types of serious crimes, and only after authorization of a court order obtained after a showing and finding of probable cause.’ ” 218 Kan. at 399 (quoting 1968 U.S. Code Cong, and Admin. News, S. Rep. 1097,90th Congress, 2d Session, pp. 2112, 2153).
See also United States v. Giordano, 416 U.S. 505, 514, 515, 94 S. Ct. 1820, 40 L. Ed. 2d 341 (1974) (The puipose of Title III “effectively to prohibit” all interceptions except those authorized by Act; “Congress . . . evinced the clear intent to make doubly sure that the statutory authority be used with restraint and only where tire circumstances warrant the surreptitious interception of wire and oral communications.”). By enacting Title III, Congress “preempted the field of electronic surveillance regulation under its power to regulate interstate communications,” allowing concurrent state regulation only if “subject, at the minimum, to the requirements of the federal regulation.” Farha, 218 Kan. at 400; see 18 U.S.C. § 2516(2). State statutes that are more permissive than fed eral law are preempted. 218 Kan. at 400 (quoting Commonwealth v. Vitello, 367 Mass. 224, 250, 327 N.E.2d 819 [1975]); see 18 U.S.C. § 2515.
One other Kansas statute has the potential to complicate the answers to the three questions that guide the analysis and outcome in this case. K.S.A. 2011 Supp. 75-710 on the powers and duties of assistants and employees of the Kansas Attorney General grants him or her broad authority to delegate performance of responsibilities and, since 2005, includes the following language:
“Assistants appointed by the attorney general shall perform the duties and exercise the powers as prescribed by law and shall perform other duties as prescribed by the attorney general. Assistants shall act for and exercise dre power of the attorney general to the extent the attorney general delegates them the authority to do so.”
Question One: Existence of Violation
The central question in this appeal at the time it was transferred to this court was the first: Has defendant Bruce established a violation of federal wiretap law? Answering this question requires a predicate evaluation of whether Judge Brazil correctly determined that K.S.A. 2011 Supp. 75-710, when read in conjunction with K.S.A. 2011 Supp. 22-2515(a)(l)-(20), is more permissive than the applicable federal wiretap statute, 18 U.S.C. § 2516(2).
According to the plain language of K.S.A. 2011 Supp. 75-710, the only limitations on delegation by a Kansas Attorney General to an assistant attorney general are the extent of the attorney general’s own authority and the outer parameters of the delegation itself. Because K.S.A. 2011 Supp. 22-2515(a)(l)-(20) allows the attorney general to “make an application to any judge of competent jurisdiction for an order authorizing the interception of a wire, oral or electronic communication,” the State’s argument was that the attorney general may lawfully authorize an assistant to do the same under K.S.A. 2011 Supp. 75-710.
But this reading of K.S.A. 2011 Supp. 22-25l5(a)(l)-(20) and K.S.A. 2011 Supp. 75-710 is preempted by the plain language of 18 U.S.C. § 2516(2), which allows no such delegation of wiretap order applications by “the principal prosecuting attorney of any State.” As the State has now implicitly recognized through its oral argument concessions, the fact that Olander and Farha were focused on an earlier version of Kansas’ wiretap statutes does nothing to undercut these cases’ recognition of the preemptive effect of federal wiretap restrictions on the identities or positions of the state prosecutors authorized to seek an order. See Farha, 218 Kan. at 400-01; Olander, 213 Kan. at 283-86. Although we appreciate that not every court confronting this issue would agree with our resolution of it, see Annot., 169 A.L.R. Fed. 169, § 8[b], [c], pp. 193-96 (citing conflicting decisions on whether principal prosecuting attorney’s power to apply for a wiretap order may be delegated), we see no reason to depart from our precedent on this point at this time. For wiretaps originating in a state court, it is only the principal prosecuting attorney who is listed by federal statute as the officer who “may apply” for the wiretap order. Congress’ will has been expressed in “reasonably plain terms,” and we therefore regard the language of 18 U.S.C. § 2516(2) as conclusive. See In re M.F., 290 Kan. at 150-51; see also Farha, 218 Kan. at 404 (delegation of state authority to apply for wiretaps does not comport with Congress’ intent).
Judge Brazil was correct in ruling that Disney was not authorized to submit the wiretap application. Defendant Bruce has established a violation of federal wiretap law.
Question Two: Violation Implication of Central Provision
Both the United States Supreme Court and this court have identified the limited authorization provisions of the wiretap statutory scheme as “central.” See Giordano, 416 U.S. at 528 (Supreme Court “confident” provision for preapplication approval intended to play central role); Farha, 218 Kan. at 402-03 (preapplication authorization “[c]rucial . . . safeguard[]”; “centralization ensures that wiretap applications not be approved routinely by lower echelon officials”; “centraliz[ation] in a publicly responsible official subject to the political process die formation of policy on electronic surveillance” express objective of federal law); Olander, 213 Kan. at 285; cf. United States v. Donovan, 429 U.S. 413, 435-36, 97 S. Ct. 658, 50 L. Ed. 2d 652 (1977) (information on additional targets not central); United States v. Chavez, 416 U.S. 562, 564-65, 94 S. Ct. 1849, 40 L. Ed. 2d 380 (1974) (when actual authorization of application performed by correct person, facial flaw on identification of person excused); United States v. Foy, 641 F.3d 455, 462-64 (10th Cir. 2011) (mere technical defect in wiretap application does not require suppression); State v. Willis, 7 Kan. App. 2d 413, 414, 643 P.2d 1112 (1982) (late mailing of postinterception inventory does not require suppression under K.S.A. 22-2516[9][a]).
In Farha, we further emphasized that the “authorization requirements are not mere technicalities; they are at tire heart of the congressional scheme. . . . The procedures outlined in 18 U.S.C. § 2516 must be strictly complied with . . . .” 218 Kan. at 403. We rejected a distinction between “authorization” and “application” that would allow for delegation by the attorney general to an assistant attorney general. 218 Kan. at 403-04.
Again, by its oral argument concessions, the State has implicitly recognized the continuing force of our precedent on this point. We do not choose to depart from it. The violation in this case ran afoul of a provision intended to play a central role in the statutory scheme.
Question Three: Preservation of Purpose and Harmless Error
Our third question asks whether the Kansas delegation procedure used in this case sufficiently safeguarded the purposes behind the federal wiretap statutory scheme. See Farha, 218 Kan. at 400-03. If so, the parties continue to differ on whether exclusion of the evidence derived from the wiretap is absolutely necessary under the federal and state statutes or whether the violation is subject to some sort of harmlessness analysis.
The State no longer argues that the good-faith exception to the exclusionary rule under United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984), applies to save admission of the wiretap evidence here. It recognizes that Leon sets forth a court-created exception to what was already a court-created remedy designed to deter law enforcement violation of constitutional rights. See Giordano, 416 U.S. at 524, 527 (citing 18 U.S.C. § 2518[10][a][i]) (suppression of evidence from wiretaps “does not turn on the judicially fashioned exclusionary rule aimed at deter ring violations of Fourth Amendment rights, but upon the provisions of Title III”; “Congress intended to require suppression where there is failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device”); see also United States v. Rice, 478 F.3d 704, 712-14 (6th Cir. 2007) (rejecting three other federal circuit Courts of Appeals’ application of Leon; Title III contains no exceptions to exclusion; legislative history expresses desire to incorporate search and seizure law as it existed 16 years before Leon decided; Title III balanced social costs, benefits differently in wiretap context); see also 4 Fishman and McKenna, Wiretapping and Eavesdropping: Surveillance in the Internet Age, Grounds for Suppression § 34.10 (3d ed. 2010) (discussing federal circuit split, advocating Sixth Circuit Court of Appeals approach). The violation here, on the other hand, was statutory; and both tire federal and state statutory schemes include their own, explicit remedies of evidence exclusion. See 18 U.S.C. §§ 2515, 2518(10)(a); K.S.A. 2011 Supp. 22-2515; K.S.A. 2011 Supp. 22-2516(9)(a); see also State v. Dowdy, 222 Kan. 118, 125, 563 P.2d 425 (1977) (citing Giordano, 416 U.S. 505) (pre-Leon; no merit in State’s exclusionary rule argument; availability of suppression remedy for wiretap violation turns on provisions of statute). If the statutorily provided remedy of suppression is to be foregone here, it must be because this court deems the goals of the federal wiretap statute vindicated in spite of the violation and chooses to knit the State a safety net that the legislature omitted.
The State argues this is precisely what should happen. In its view, despite the violation of a central provision, adequate safeguards for Bruce’s privacy existed because: (1) “the Six Administration established a procedure for handling wiretap applications”; (2) “Six specifically delegated his authority to Disney in writing for the purpose of making application for wiretap orders with the understanding that any such applications would first be approved by Six”; (3) “an assistant attorney general is not given permanent power equal to that of the attorney general to apply for a wiretap order”; (4) “K.S.A. 75-710 only allows special designation by the attorney general to assistant attorneys general”; (5) “an assistant attorney general only has authority if specifically granted by the attorney general”; and (6) “the procedure . . . maintained Six, a publicly responsible official subject to the political process!,]’ as the gatekeeper for this wiretap application.”
Bruce counters that the Six-Disney delegation process failed “to meet the objectives of 18 U.S.C. § 2516(2), which are . . . policy uniformity and political centralization and accountability,” because, at a minimum, any delegation statute must “contain some type of special designation language or some language that the assistant attorney general must bring tire wiretap application to the attorney general for review prior to filing the wiretap application.” See United States v. Smith, 726 F.2d 852, 856-59 (1st Cir. 1984); Vitello, 367 Mass, at 230-33, appx. at 253-58.
Our usual practice is to apply the letter of clear statutes without grafting new, court-created rules onto them to rescue violators. “ ‘A statute should not be read to add something that is not found in the plain words used by the legislature ....”’ State v. Snellings, 294 Kan. 149, 157, 273 P.3d 739 (2012) (quoting Farmers Ins. Co. v. Southwestern Bell Tel. Co., 279 Kan. 976, 978, 113 P.3d 258 [2005]). “ ‘When a statute is plain and unambiguous, we must give effect to the legislature’s intention as expressed, rather than determine what the law should or should not be.’ ” Hill v. Kansas Dept. of Labor, 292 Kan. 17, 22, 248 P.3d 1287 (2011) (quoting Casco v. Armour Swift-Eckrich, 283 Kan. 508, 521, 154 P.3d 494 [2007]). We acknowledge that other courts have not shared our reticence about legislating. See Vitello, 367 Mass, at 230-33, appx. at 253-58 (approving statute permitting special designation with addition of court-specified measures establishing parameters); see also Smith, 726 F.2d at 857-58 (procedure mandated by Supreme Judicial Court in Vitello “calls for far more protection than a mere form letter of designation, which would amount to nothing more than a standing order frustrating the twin congressional objectives of policy uniformity and political accountability, and would constitute an abdication of responsibility”). But the sensitive area of wiretaps seems an especially poor environment for judicial policy malting. We thus maintain the position of our earlier cases: When there is a violation of a central provision of the wiretap statutes, exclusion is required by both the federal and state statutes. 18 U.S.C. § 2518(10)(a)(i); K.S.A. 2011 Supp. 22-2516(9)(a); see Dowdy, 222 Kan. at 125; Farha, 218 Kan. at 399, 403-04.
This ultimate holding eschewing harmlessness analysis implicitly rejects the State’s subsidiary argument that the specific procedures and delegation document used here would have met the standard for application of a court-created exception to suppression.
Alternative Issues
Bruce also raises several alternative grounds for upholding the district judge’s decision to suppress the evidence stemming from the wiretap in this case. Because we affirm the district court decision that the assistant attorney general could not legally apply for a wiretap authorization, we need not reach these alternative arguments.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
McFarland, J.:
This is an appeal by the State pursuant to K.S.A. 22-3602 upon a question reserved. Defendant Mitchell A. Moffett pled guilty to a speeding charge and pled not guilty to a charge of driving while his license was suspended (K.S.A. 1985 Supp. 8-262). At the close of the trial on the suspended license charge, the trial court dismissed the charge on the ground defendant had not been properly notified of the suspension of his driver’s license. It is unclear from the record whether the ruling was based upon defendant’s failure to receive the notice or the sending of the notice to an improper address. The question reserved seeks to resolve an ongoing problem concerning to what address a notice of suspension needs to be sent where the records of the Division of Vehicles contain multiple addresses for a license holder.
Defendant was stopped for speeding on February 16, 1986. A computer check revealed that his driver’s license had been suspended on January 2, 1986. Following the license suspen sion, notice thereof was sent by the Division of Vehicles (Division) to defendant at the address of 514 West Locust, El Dorado, Kansas 67042. This address had been received by the Division from an El Dorado Municipal Court action placing defendant on diversion on a DUI charge. The Division’s computer showed defendant’s address as being Route 1, Rox 45, Peabody, Kansas 66866. A certificate of insurance in the Division’s files showed defendant’s address at 423 South Washington, Apartment 7, El Dorado, Kansas 67042. The letter containing the notice of suspension was returned marked “no such number.” In fact defendant was, at the time the notice was mailed, living at 824 West Locust, El Dorado, Kansas — an address unknown to the Division.
The Division’s chief administrator for Driver’s Licensing and Control testified that where to send a suspension notice presents a continuing problem for the Division in light of our decision in State v. Jones, 231 Kan. 366, 644 P.2d 464 (1982). In Jones this court stated:
“When a driver’s license is revoked or suspended, a copy of the order of revocation or suspension, or a suitable written notice of that action, must be mailed to the last known official address of the licensee. The State is entitled to rely upon its record of all licensees’ addresses, and it is also entitled to rely upon the presumption that letters, sent by ordinary mail postage prepaid, are received by the addressee in the ordinary course of the mails. The use of certified mail, return receipt requested, would be preferable but is not required. Once the State has complied with the mandatory notice requirement of K.S.A. 8-255(b) by mailing, the presumption of receipt arises and is not rebuttable. Evidence of nonreceipt may, however, be introduced by the accused in mitigation at time of sentencing.
“We hold (1) that the State must send a copy of the order of revocation or suspension or a written notice thereof to the licensee at the last known address according to the divisions records; (2) that when written notice has been mailed, then, after reasonable time for mail delivery has expired, receipt is conclusively presumed; and (3) that in a prosecution under K.S.A. 1981 Supp. 8-262, the State need not prove actual receipt of the notice, actual knowledge of the revocation, or specific intent to violate the statute, by the licensee.” (Emphasis supplied.) 231 Kan. at 368.
The opinion uses both “last known official address” and “last known address according to the division’s records” as the proper address to which to send the suspension notification. The Division is uncertain as to how to determine where the notice is to be sent.
K.S.A. 1985 Supp. 8-255(b) provides, in part:
“Upon suspending or revoking the license of any person as authorized by this act, the division shall immediately notify the licensee in writing.”
K.S.A. 8-248 provides:
“Notice of change of address or name. Whenever any person, after applying for or receiving a driver’s license shall move from the address named in such application or in the license issued to such person, or when the name of the licensee is changed by marriage or otherwise, such person, within ten (10) days thereafter, shall notify the division in writing of his or her old and new addresses or of such former and new names and of the number of any drivers license then held by such, person.” (Emphasis supplied.)
We believe that the legislature clearly intended, through enactment of K.S.A. 8-248, to place the burden on the driver’s license holder to notify the Division when the holder moves from the address named on his or her driver’s license, or license application. The Division should be able to rely on its driver’s license computer records in determining the address to which to send a notice of suspension. Therefore, the notice should be mailed to the address on the license or application unless superseded by a notice from the license holder pursuant to K.S.A. 8-248 advising the Division of an address change. If multiple notices under K.S.A. 8-248 have been received, obviously, the most recent address thereon is the proper address for the mailing of such suspension notice. The mailing of such notice to such address satisfies the requirements of K.S.A. 1985 Supp. 8-255(b). To hold otherwise could result in a driver with a transient life style being virtually immune from driver’s license suspension. The Division’s difficulty in applying the Jones opinion is illustrated herein. In attempting to follow Jones' requirements by checking through all of the records on defendant, the notice was sent to a nonexistent address presumably provided by defendant at the time of his arrest on a charge of DUI. This was apparently the latest address from any records available to the Division. The Division’s determination of the proper address to which to mail a suspension notice should be limited to the records relative to the driver’s license application, the license itself, or address change notices from the holder of the license pursuant to K.S.A. 8-248.
This opinion should be considered as clarifying the quoted language in State v. Jones, 231 Kan. 366.
The appeal is sustained. | [
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The opinion of the court was delivered by
Biles, J.:
This appeal arises under the Kansas Sexually Violent Predator Act (KSVPA), K.S.A. 59-29a01 et seq. A civil jury declared Robert Ontiberos a sexually violent predator and determined he should be committed for treatment until he is safe for release. The Court of Appeals vacated the commitment and remanded for a new trial because it held that Ontiberos received ineffective assistance of counsel and that the State’s attorney committed misconduct during the trial. In re Care b Treatment of Ontiberos, 45 Kan. App. 2d 235, 255-56, 247 P.3d 686 (2011). The panel rejected Ontiberos’ claim that the KSVPA was unconstitutional. Both sides petitioned for review with this court.
We hold that due process guarantees a person facing civil commitment under the KSVPA a right to counsel at trial, and that person may challenge the effectiveness of his or her trial counsel on direct appeal or under K.S.A. 60-1501. Based on those holdings, Ontiberos’ constitutional claim lacks merit. We also hold that his trial counsel was ineffective and that the State committed misconduct. These holdings require remand for a new trial.
Factual and Procedural Background
Ontiberos has two convictions for sexually violent offenses as defined by the KSVPA. He was convicted of attempted rape in 1983 and aggravated sexual battery in 2001. Ontiberos was charged with lewd and lascivious behavior in 1991, but that was dropped in exchange for a guilty plea for possession of cocaine. There were also two uncharged incidents of alleged sexual misconduct in 1991 and 1999.
Before Ontiberos was released from prison for the aggravated sexual battery conviction, the State filed a petition alleging he could be a sexually violent predator as defined by the KSVPA and should be civilly committed for treatment. Greg Barker was appointed to represent Ontiberos. The State was represented by a special assistant attorney general appointed from tíre Sedgwick County District Attorneys Office. The parties stipulated to probable cause, so the matter proceeded to trial.
The Parties’ Stipulation
Over 3,500 pages of discovery documents were compiled, but most are irrelevant to the KSVPA proceedings. The pertinent documents include: (1) police reports and witness statements from the three alleged offenses that did not result in convictions; (2) a 2006 discharge summary from a sexual offender treatment program On-tiberos participated in while imprisoned that contained a Static-99 test result concluding Ontiberos was a “lower risk” to reoffend; (3) the results from a penile plethysmograph test administered to On-tiberos in 2005 as part of a sexual offender treatment program; and (4) documents completed by either clinicians or Ontiberos as part of his sexual offender treatment programs. All 3,500 pages of discovery were given a single identifying designation as Exhibit 1.
The parties agree that they orally stipulated as to how Exhibit 1 would be used at trial, but now dispute the scope of what was agreed to, including whether the State was permitted to cross-examine Ontiberos with documents from Exhibit 1. There is no written stipulation. The parties agree they stipulated that all documents within Exhibit 1, including clinicians’ reports: (1) could be reviewed by the expert witnesses when forming opinions; (2) could be used to examine those expert witnesses at trial; and (3) would be included in the appellate record. The district court did not take possession of the records comprising Exhibit 1, none of the documents referenced at trial were separated and made into another exhibit for more convenient reference in the record, and none of the documents were provided to the juiy for its review.
The Experts’ Reports/Testimony
. Prior to trial, the district court ordered a state psychologist to evaluate Ontiberos as authorized by K.S.A. 59-29a05(d). Consistent with the parties’ stipulation, the state’s psychologist, Dr. Deborah McCoy, reviewed all the discovery documents contained within what became Exhibit 1. She also interviewed Ontiberos. She diagnosed him with paraphilia not otherwise specified, with themes of exhibitionism and nonconsent, as well as a personality disorder not otherwise specified, with antisocial features, polysubstance dependence, and sexual abuse of an adult. The “not otherwise specified” diagnosis means the conditions do not fit into specific diagnostic categories found in the Diagnostic and Statistical Manual of Mental Disorders, DSM—IV. Dr. McCoy concluded that Onti-beros met the criteria of a sexually violent predator under the KSVPA based upon two actuarial risk assessment tests she administered—the Minnesota Sex Offender Screening Tool Revised (MnSOST-R) and the Static-99.
The MnSOST test results placed Ontiberos in a moderate risk category. Under that test, 29 percent of individuals with similar risk factors were rearrested for a new sex offense within 6 years. But Dr. McCoy concluded that Ontiberos fell within the high risk category for sexual recidivism under the Static-99. Dr. McCoy testified Ontiberos’ chances of reconviction under that test were 39 percent after 5 years, 45 percent after 10 years, and 52 percent after 15 years. In her report, Dr. McCoy noted her results were different than some previously administered Static-99 assessments, and she indicated she did not know what caused the difference. At trial, Ontiberos’ counsel did not ask Dr. McCoy about any test results that conflicted with her findings, including the test results from the 2006 discharge summary included in Exhibit 1.
Dr. Robert Barnett, also a clinical psychologist, examined On-tiberos as a defense expert. Dr. Barnett reviewed Ontiberos’ records “that were provided to [him]” and met with Ontiberos’ counsel about the case. Dr. Barnett did not administer the Static-99 or the MnSOST-R because he considered them to be controversial instruments. Pie explained this by noting that both tests purport to predict the percentage likelihood to reoffend, but if only half of the people Hice Ontiberos reoffended “[t]here’s no way—simply no logical way to say which group [Ontiberos] would fall in[to].” Dr. Barnett also testified the Static-99 and MnSOST-R tend to produce different scores, even though they are supposed to measure the same thing.
Dr. Barnett testified that research had shown two tests to be reliable for deviant responses—the penile plethysmograph and the Hare Psychopathy Checklist Revised. And he said that he wished Lamed personnel would use the plethysmograph because they have the equipment to conduct that test. Dr. Barnett was apparently unaware that Ontiberos had taken a plethysmograph in 2005, and that the results were contained in Exhibit 1. Ontiberos’ attorney did not ask Dr. Barnett about the 2006 discharge summary’s Static-99 results that conflicted with Dr. McCoy’s test results.
Dr. Barnett also disputed Dr. McCoy’s paraphilia diagnosis because he concluded the most “prominent feature of [Ontiberos’] psychological presentation is his chronic and severe polysubstance abuse and dependence.” Ontiberos, he further observed, suffered from a mild “mind cognitive disorder, [and] has a little trouble with confusion, attention and concentration.” Dr. Barnett concluded that Ontiberos did not have any sexual dysfunction diagnosis, i.e., he was not a sexually violent offender.
The jury found Ontiberos was a sexually violent predator. He was committed to State custody for treatment until determined to be safe for release. Additional descriptions about the evidence presented and conduct of the trial will be discussed as necessary for the issues presented.
The Ineffective Assistance of Counsel Hearing
Ontiberos timely appealed to the Kansas Court of Appeals and was appointed new counsel, who filed a motion alleging Ontiberos received ineffective assistance of trial counsel and requested remand to the district court for an evidentiaiy hearing under State v. Van Cleave, 239 Kan. 117, 716 P.2d 580 (1986) (recognizing appellate court discretion to order remand as an alternative and more expeditious remedy to K.S.A. 60-1507 to pursue ineffective assistance of counsel allegations). Ontiberos alleged a Van Cleave-type hearing was necessary because there were no other procedural mechanisms for a person confined under the KSVPA to challenge his or her counsel’s performance. The State did not respond to the motion and the Court of Appeals remanded the case “to initiate proceedings related to Appellant’s claim of ineffective assistance of trial counsel, pursuant to [Van Cleave].” There was no further discussion of the legal basis for the Court of Appeals’ remand order.
Once back in the district court, Ontiberos argued that his right to effective assistance of counsel arising from the Sixth Amendment to the United States Constitution was violated due to his attorney’s performance errors. He cited the test used to examine ineffective assistance of counsel claims in criminal cases, which was developed under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). He argued trial counsel was ineffective because Barker: (1) stipulated to the admission of otherwise inadmissible documents through Exhibit 1; (2) did not object to the State’s use of inadmissible documents, which precluded appellate review of their admissibility; (3) allowed Dr. McCoy to consider inadmissible documents while forming her opinion in violation of State v. Gonzalez, 282 Kan. 73, 87, 145 P.3d 18 (2006); (4) allowed the State to cross-examine Ontiberos with documents that were not admitted into evidence—a use Ontiberos alleges was outside tire scope of the parties’ stipulation; (5) allowed the State to impeach Ontiberos about a non-existent incident involving a knife; (6) failed to understand the conflicting results between the Static-99 tests; and (7) failed to question Dr: McCoy or Dr. Barnett about the 2006 discharge summary’s Static-99 test results conclud ing Ontiberos was a low risk to reoffend. The State’s original trial attorney (Marc Bennett), Ontiberos, and Ontiberos’ trial attorney (Barker) each testified.
Regarding the stipulation, Bennett admitted that statements in the police reports in Exhibit 1 would have been hearsay under the rules of evidence, but he claimed he could have gotten them admitted by calling the necessary witnesses: court clerks, a Department of Corrections records custodian, and a Lamed records custodian. Bennett explained that Ontiberos’ counsel agreed to the stipulation because “there was no sense in jumping through all those [procedural] hoops when I could get it in irrespective.” Bennett also testified that he believed the police reports were admis1 sible business recoi'ds under the hearsay exception in K.S.A. 60-460m. In the alternative, Bennett added that he could have called the individual police officers who were at the scene, specifically mentioning an officer from Ontiberos’ 2001 conviction. Bennett further testified that he could have avoided double hearsay problems in the police reports by calling the victims and witnesses to each crime to testify. He said he specifically talked to Ontiberos’ mother-in-law, who was the victim of the 2001 aggravated sexual battery conviction, but did not issue a subpoena for her because he believed Ontiberos would not want her testifying.
As to a corrections department discipline report regarding the alleged knife incident the State raised at trial while questioning Ontiberos’ expert, Ontiberos testified on remand that he was never disciplined for possessing a weapon. Bennett testified that he perused the 3,500 page record for 20 minutes before the Van Cleave hearing and could not find any reference to an incident involving a knife. But he added that he “wouldn’t have asked [a question about it] if it didn’t come from somewhere.”
Ontiberos’ trial attorney, Barker; testified that he considered “very thoroughly” whether to stipulate to the documents comprising Exhibit 1 and agreed because he did not want the entire exhibit given to the juiy to peruse or have multiple prosecution witnesses piling on cumulative evidence about things contained within the documents. Barker also testified he was unaware of this court’s Gonzalez decision regarding restrictions on an expert witness’ abil ity to rely on hearsay evidence when forming an opinion. He further testified he could not recall whether he was aware during the original trial that Ontiberos had taken the Static-99 on different occasions with different results, but said he had reviewed the entire discovery record before trial and did not see anything that would help Ontiberos. He described his trial strategy as:
"to attack the very validity and accuracy of these tests. Therefore, I could not hardly attack one score based upon an invalid system then come in front of the jury with this one you just showed me and say, Oh look, here’s a good one. It’s either a reliable system or it isn’t, and we all have to chose tactics in our trials. I chose the tactic of attacking the very validity of the Static-99 itself. I would agree that the variation between this test and the one Dr. McCoy did might arguably support that, but I simply chose to attack the primary through Dr. Barnett’s expertise.” (Emphasis added.)
While ruling from the bench on Ontiberos’ ineffective assistance of counsel claim, the district court held that even though this was a civil case, the court believed criminal caselaw was applicable and recited the two-part Strickland test. The district court further held that Ontiberos received effective assistance of counsel and that neither of the Strickland prongs was satisfied. A journal entry from the Van Cleave hearing was added to the appellate record at the Court of Appeals’ request.
The Court of Appeals Decision
On appeal, Ontiberos argued the KSVPA was unconstitutional because it did not provide an explicit mechanism to challenge trial counsel’s effectiveness. He also argued that he received ineffective assistance of trial counsel and that the State’s attorney committed misconduct so egregious that reversal was required.
As to the first point, the Court of Appeals held that Ontiberos had a statutory right to counsel and that an ineffective assistance of counsel claim could be raised through the Van Cleave procedure. For those reasons, it denied Ontiberos’ claim that the KSVPA was unconstitutional. Ontiberos, 45 Kan. App. 2d at 240. But in so ruling, the Court of Appeals went further and held that Ontiberos had no constitutional right to counsel during the KSVPA proceeding because it is civil in nature. 45 Kan. App. 2d at 237 (“respon dents resisting commitment do not have a constitutional right to counsel, but do have a statutory right”).
As to the second and third claims, the panel held that the appropriate standard of review required determination as to whether Ontiberos’ right to- a fair trial was violated; and then using that standard, it held Ontiberos was denied a fair trial. The court also held that the State’s attorney committed misconduct by improperly using portions of Exhibit 1 to cross-examine Ontiberos and by mis-characterizing evidence regarding the “knife incident.” 45 Kan. App. 2d at 253-54. The court further held that Ontiberos’ trial attorney failed to: (1) object when the State cross-examined Onti-beros with documents from Exhibit 1 that were not admitted into evidence; (2) object when the State impeached Ontiberos with a non-existent discipline report involving a knife; (3) introduce evidence that the 2006 discharge summary’s Static-99 test results contradicted Dr. McCoy’s findings by concluding Ontiberos was a “low risk” to reoffend; and (4) correct his own witness (Dr. Barnett) when he incorrectly stated Ontiberos had not taken a plethysmo-graph—the test Dr. Barnett claimed was the most accurate. The Court of Appeals reversed and remanded for a new trial on this basis. 45 Kan. App. 2d at 236.
The State filed a petition for review with this court and Onti-beros cross-petitioned. This court has jurisdiction under K.S.A. 20-3018(b) (review of Court of Appeals decision).
Analysis
In his cross-petition, Ontiberos continues to assert the KSVPA is unconstitutional because it lacks a mechanism for persons committed under the act to challenge their trial counsel’s performance. In the alternative, he argues his civil commitment must be reversed because he received ineffective assistance of counsel and the State’s attorney committed misconduct at trial. We address Onti-beros’ constitutional arguments first.
The threshold question is whether Ontiberos has a right to counsel arising from the KSVPA, the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution, or Section 18 of the Kansas Constitution Bill of Rights. We hold he has a right to counsel under the federal and state constitutional due process provisions, but we begin by examining the KSVPA.
Background
The KSVPA is a comprehensive statutory scheme for the civil commitment of sexually violent predators originally enacted in 1994. L. 1994, ch. 316, sec. 1. The United States Supreme Court twice approved challenged procedures set out in the act. See Kansas v. Crane, 534 U.S. 407, 122 S. Ct. 867, 151 L. Ed. 2d 856 (2002) (holding the KSVPA definition of “mental abnormality” must require proof that a person lacks some control over their behavior but not a total lack of control); Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997) (addressing whether the Act’s definition of mental abnormality satisfied due process and holding the Act “comports with due process requirements”).
Like the procedure used in this case, the State usually initiates KSVPA civil commitment proceedings when an inmate is nearing release for a criminal offense qualifying for commitment under the act. The KSVPA requires that the agency with authority over release of individuals who may meet statutory criteria notify the attorney general 90 days prior to release. K.S.A. 59-29a03(a). The attorney general then has the person’s records studied by a prosecutor’s review committee to make an initial determination whether the person meets the sexually violent predator definition. K.S.A. 59-29a03(e). Based on that assessment, the attorney general may file a petition in the county where the person was convicted, alleging that the person is a sexually violent predator and stating sufficient facts to support the allegation. K.S.A. 59-29a04(a). Once the petition is filed, a judge must determine whether probable cause exists to believe the person is a sexually violent predator and should be taken into custody. K.S.A. 59-29a05(a). Once in custody, a probable cause hearing is required within 72 hours. K.S.A. 59-29a05(b). The detained person has a statutory right to be represented by counsel at the probable cause hearing. K.S.A. 59-29a05(c)(l).
If probable cause is determined to exist and the matter proceeds to trial, the KSVPA provides that a determination that a person is a sexually violent predator must be made beyond a reasonable doubt. K.S.A. 59-29a07(a). And when a court or jury is satisfied beyond a reasonable doubt that person must be committed to the custody of the secretary of social and rehabilitation services “for control, care and treatment until such time as the person’s mental abnormality or personality disorder has so changed that the person is safe to be at large,” the person is committed indefinitely. K.S.A. 59-29a07(a).
Of interest in this case, K.S.A. 59-29a06(b) provides that “[a]t all stages of the [KSVPA] proceedings . . . any person subject to K.S.A. 59-29a01 et seq., and amendments thereto, shall be entitled to the assistance of counsel, and if the person is indigent, the court shall appoint counsel to assist such person.” (Emphasis added.) We must consider the strength of that statutory provision next.
Right to Effective Counsel at the KSVPA Trial
This court has held that when there is a right to counsel there is necessarily a correlative right to effective counsel—regardless of whether the right derives from a statute or the constitution. See Albright v. State, 292 Kan. 193, 207, 251 P.3d 52 (2011) (“regardless of the source of the right, a right to counsel, to be meaningful, necessarily includes the right to effective assistance of counsel”); Brown v. State, 278 Kan. 481, 484, 101 P.3d 1201 (2004) (recognizing the statutory right to the effective assistance of counsel in a K.S.A. 60-1507 proceeding); see also Strickland, 466 U.S. at 686 (“ ‘the right to counsel is the right to the effective assistance of counsel’ ”). This caselaw, coupled with tire statutory provision for counsel at all KSVPA proceedings in K.S.A. 59-29a06(b), would appear to establish a statutory right to effective counsel.
But the conclusion that K.S.A. 60-29a06(b) establishes a statutory right to counsel is diminished by K.S.A. 59-29a06(e), which follows up the recitation of that requirement by stating “[t]he provisions of this section are not jurisdictional, and failure to comply with such provisions in no way prevents the attorney general from proceeding against a person otherwise subject to the [KSVPA].” (Emphasis added.) Arguably, this language could be read to mean that the failure to comply with the statute regarding assistance of counsel is not a barrier to proceeding against a person under the KSVPA. If so, the provision for counsel in subsection (b) is made less certain by the subsequent subsection (e) in the same statute. And since the Court of Appeals expressly held there is no constitutional right to counsel for KSVPA proceedings, this equivocation in K.S.A. 59-29a06 increases in importance for the issue presented. This compels us to address whether a person is entitled to counsel in a KSVPA proceeding under the constitution.
In holding that Ontiberos does not have a constitutional right to counsel, the Court of Appeals relied on an analogy to this court’s K.S.A. 60-1507 caselaw, particularly Brown, 278 Kan. at 483. On-tiberos, 45 Kan. App. 2d at 237. In Brown, this court held prisoners do not have a Fourteenth Amendment Due Process right to counsel in proceedings brought under K.S.A. 60-1507, stating: “We acknowledge that there is no constitutional right to effective assistance of legal counsel on collateral attacks because they are civil, not criminal, actions.” 278 Kan. at 483. See Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S. Ct. 1990, 95 L. Ed. 2d 539 (1987) (declining to extend the Fourteenth Amendment right to counsel on direct appeal to a prisoner s collateral attack); State v. Andrews, 228 Kan. 368,375,614 P.2d 447 (1980) (defendant was not entitled to counsel under the Sixth or Fourteenth Amendment for his third motion for new trial); and Robinson v. State, 13 Kan. App. 2d 244, Syl. ¶ 4, 767 P.2d 851, rev. denied 244 Kan. 738 (1989) (defendant does not have a due process right to counsel to appeal the dismissal of a K.S.A. 60-1507 motion). But while there are some similarities between K.S.A. 60-1507 motions and KSVPA proceedings because they are both civil in nature, they are not identical and the Court of Appeals did not take into account the important dissimilarities.
K.S.A. 60-1507 motions are procedurally distinguishable because prisoners in 1507 proceedings have already been afforded exercise of their Sixth Amendment right to counsel at trial and their direct appeal. And the cases Brown cited, particularly the United States Supreme Court’s Finley decision, did not rely on the civil nature of a defendant’s collateral attack upon a conviction when they held that a defendant does not have a constitutional right to counsel in those proceedings. 481 U.S. at 555. The Court emphasized that a criminal defendant’s right to counsel only extends to a defendant’s first appeal of right, and no further. 481 U.S. at 556. In other words, the collateral attack is not the criminal defendant’s first opportunity to appeal. KSVPA proceedings are original actions, so the lack of previous litigation makes K.S.A 60-1507 proceedings inappropriate analogs.
When determining what due process protections are required in a particular proceeding, this court follows the same three factor test used by the United States Supreme Court. We examine: (1) the private interest affected by the official action; (2) the risk of erroneous deprivation of that interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government’s interest, including the function involved and the fiscal and administrative burdens the additional or substitute procedural requirements would entail. In re J.D.C., 284 Kan. 155, 166-67,159 P.3d 974 (2007); see Mathews v. Eldndge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). And the United States Supreme Court has provided some guidance on when the federal due process clause creates a right to counsel.
Due process is not a technical concept with fixed content unrelated to time, place, and circumstances. Instead, its requirements are “ ‘flexible and [call] for such procedural protections as the particular situation demands.’ ” 424 U.S. at 334. And “[t]he pre-emi-nent generalization that emerges from [the United States Supreme Court’s] precedents on an indigent’s right to appointed counsel is that such a right has been recognized to exist only where the litigant may lose his physical liberty if he loses the litigation.” Lassiter v. Department of Social Services, 452 U.S. 18, 25, 101 S. Ct. 2153, 68 L. Ed. 2d 640 (1981). The right to counsel is triggered by the defendant’s interest in personal freedom, not just the Sixth and Fourteenth Amendment right to counsel in criminal cases. 452 U.S. at 25. A litigant’s right to appointed counsel diminishes as the litigant’s interest in personal liberty diminishes, 452 U.S. at 26. But the Due Process Clause does not always require the provision of counsel in civil proceedings when incarceration is threatened. See Turner v. Rogers, 564 U.S. 431, 131 S. Ct. 2507, 2518, 180 L. Ed. 2d 452 (2011). In Turner, the Court recently held there is no automatic right to counsel in a child support proceeding, which could result in a parent’s 1-year imprisonment, as long as sufficient alternative procedures are provided. 131 S. Ct. at 2519.
The Court has not addressed the right to counsel in a sexually violent predator proceeding, but it has addressed this right in a civil commitment proceeding based on a mental disease. Vitek v. Jones, 445 U.S. 480, 100 S. Ct. 1254, 63 L. Ed. 2d 552 (1980). In that case, a prisoner challenged a statute allowing his transfer to a mental hospital for the duration of his sentence if a physician or psychologist determined he suffered from a mental disease and the prison lacked the resources to provide treatment. Under that stat-utoiy scheme, the prisoner could be held in a mental hospital until his sentence expired unless treatment was no longer necessary. If the State wanted to retain the prisoner in a mental hospital after his or her sentence expired, it would have to initiate civil commitment proceedings at that time. 445 U.S. at 483-84.
A majority of the Vitek Court recognized that the transfer to a mental hospital “implicates a liberty interest protected by the Due Process Clause.” 445 U.S. at 487. But the majority split as to whether due process required a right to legal counsel or simply required “independent assistance” of some kind. Four of the five justices ruling on the issue held that Vitek had a right to counsel. 445 U.S. at 497. The fifth justice determined that due process only required an independent advisor who did not have to be a lawyer. 445 U.S. at 499 (Powell, concurring in part). The remaining justices dissented, arguing the issue was moot. 445 U.S. at 500.
While Vitek is not dispositive of the issue in this case, it is strong authority for finding that Ontiberos has a due process right to counsel. And it has been used by other courts considering the same issue raised by Ontiberos to hold that such a right exists. For example, the Virginia Supreme Court determined that sex offenders have a due process right to counsel at all stages of the proceeding, including the appeal, based upon Vitek and application of the three Mathews factors. Jenkins v. Director, Va. Ctr. For Behav. Rehab., 271 Va. 4, 624 S.E.2d 453 (2006).The Jenkins court held that right exists under both the federal and Virginia Constitutions, and it based its holding on tire “substantial liberty interest at stake in an involuntary civil commitment.” Jenkins, 271 Va. at 16; see also Ibur v. State, 765 So. 2d 275, 276 (Fla. Dist. App. 2000) (“Because involuntary commitment is a substantial deprivation of liberty at which fundamental due process protections must attach, dre patient cannot be denied the right to be present, to be represented by counsel, and to be heard.”). We agree that an examination of the three Mathews factors supports finding drat the federal and Kansas due process clauses establish a right to counsel in KSVPA proceedings. We consider those factors next.
The first factor—the private interest affected by the KSVPA proceedings—supports holding that a due process right exists. Onti-beros’ liberty is the private interest affected, and stronger due process rights attach to liberty interests. Indeed, it is difficult to conceive of a stronger liberty interest because Ontiberos’ confinement has the potential of being indefinite and it includes participation in a sex offender treatment program while committed to state custody. Ontiberos’ interest is certainly greater than the prisoner’s interest in Vitek because Ontiberos would be free from state custody were it not for the KSVPA proceeding, whereas Vitek would have been transferred back to prison. Therefore, Ontiberos’ private interest is substantially constricted by the KSVPA proceedings.
The second factor—the risk of the erroneous deprivation of that interest—does not weigh as strongly in Ontiberos’ favor as the first. The KSVPA provides several protections to ensure that persons are not wrongly determined to be sexual predators and committed under the Act. See K.S.A. 59-29a05 (right to probable cause hearing with counsel and the opportunity to present evidence); K.S.A. 59-29a06(b) (right to counsel “[a]t all stages of the proceedings” and access to a qualified expert at the State’s expense); K.S.A. 59-29a07 (must prove beyond a reasonable doubt). One important consideration- is whether the State is represented by counsel at the KSVPA commitment proceeding. See Turner, 131 S. Ct. at 2518- 20 (holding indigent individual subject to a child support order and facing incarceration does not have a right to counsel in part because the State is not represented by an attorney either). Since the State is represented by counsel at the KSVPA proceeding, the person the State seeks to commit should also have access to an attorney.
The third factor is the government’s interest in the proceedings and the fiscal and administrative burdens appointment of counsel would entail. The burden of providing counsel is small when compared to the substantial liberty issue at risk here. In addition, the various protections and provisions benefiting a person subject to these proceedings that are provided by the KSVPA certainly imply that the legislature perceived a person’s substantial stake in the process and its outcomes.
We hold that the caselaw and the Mathews factors support a holding that Ontiberos has a due process right to the appointment of counsel at the KSVPA trial. The Court of Appeals erred by holding otherwise. And since we have held that there is a constitutional right to assistance of counsel in KSVPA proceedings, our caselaw instructs that this right carries with it a correlative right to competent, effective counsel. Mbright, 292 Kan. at 207; Brown, 278 Kan. at 484. Based on these holdings, we need not delve further into the statutory provisions.
Ability to Challenge Effectiveness of KSVPA Trial Counsel
Ontiberos argues there is no way to challenge ineffective assistance of counsel on direct appeal and argues further that ineffective assistance cannot be the subject of a collateral attack through the habeas corpus statute, K.S.A. 60-1501. The State points out that Ontiberos, in fact, did bring such a claim on direct appeal. Onti-beros counters that the Court of Appeals had no authority to grant his motion for a Van Cleave-type hearing. We begin by examining the procedure used in this case and the authority for it.
In Van Cleave, the defendant received new counsel to directly appeal his criminal conviction, and his appellate counsel argued for the first time on appeal that Van Cleave’s trial counsel was ineffective. This court held that allegations of ineffective assistance of counsel would not be considered for the first time on appeal be cause the trial court, which observed counsel’s performance and knew the trial strategy, was in a better position than the appellate courts to consider counsel’s competence. 239 Kan. at 119. But this court also held that appellate courts have discretion to remand to the trial court for an evidentiary hearing on the ineffective assistance of counsel claim to avoid the expense and delay of a separate K.S.A. 60-1507 action later. 239 Kan. at 119. Against this background, we must consider whether Van Cleave has application to a KSVPA proceeding, so that an appellate court considering a person’s direct appeal of a commitment can know whether it is permitted to order a remand to the district court to consider ineffective assistance of counsel claims.
The obvious distinction from Van Cleave is that K.S.A. 60-1507 would not apply to a KSVPA proceeding. See K.S.A. 60-1507(a) (defining statute’s scope as extending to a prisoner in custody under a sentence). But the State argues that K.S.A. 60-1501 applies to persons committed under the KSVPA. It cites Johnson v. State, 289 Kan. 642, 215 P.3d 575 (2009), in which two persons committed under the KSVPA filed a petition under K.S.A. 60-1501 alleging the Sexual Predator Treatment Program was constitutionally inadequate to cure their conditions, resulting in their eventual release. 289 Kan. at 644. In that case, this court held that a person confined under the KSVPA “is included within the purview of K.S.A. 60-1501 and, as a result, may bring a habeas corpus petition alleging due process violations.” 289 Kan. at 648. Ontiberos argues K.S.A. 60-1501 only applies if the committed person is challenging the conditions of confinement, such as the allegations made by the petitioners in Johnson about their treatment program.
Ontiberos’ claim lacks merit because it contradicts the plain language of the 60-1501 statute and is premised mostly on the fact that Ontiberos is the first litigant to attempt to raise 60-1501’s application to issues not premised on conditions of confinement. But novelty is not infirmity. The relevant portion of K.S.A. 60-1501(a) states:
“Subject to the provisions of K.S.A. 60-1507. . , any person in this state who is detained, confined, or restrained of liberty on any pretense whatsoever,... physically present in this state may prosecute a writ of habeas corpus in the supreme court, court of appeals or the district court of the county in which such restraint is taking place.” (Emphasis added.)
The statute’s plain language provides a remedy to any detained person who is excluded from K.S.A. 60-1507’s provisions. And while Ontiberos is correct that Johnson can be distinguished because it involved prisoners challenging conditions of confinement, it is nevertheless strong support that persons detained under the KSVPA may utilize 60-1501 to challenge the effectiveness of trial counsel. The Court of Appeals interpreted Johnson to hold that a sexually violent predator may seek relief under K.S.A. 60-1501 for any challenges to the legal process due, including the effective assistance of counsel. Ontiberos, 45 Kan. App. 2d at 239. We agree.
We hold that a person detained under the KSVPA may raise an ineffective assistance of trial counsel claim on direct appeal using the Van Cleave remand procedure or through a collateral attack using K.S.A. 60-1501. Ontiberos’ claim that the KSVPA is unconstitutional is without merit. We next consider whether Ontiberos received the effective assistance of counsel to which he was entitled at his KSVPA trial.
Application of Strickland
Ontiberos cites numerous trial errors amounting to the ineffective assistance of counsel, but the threshold question is what test applies to his claim. The State urges us to adopt the two-prong ineffective assistance of counsel test for deficient performance claims established in criminal cases under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). On-tiberos cited Strickland to the district court and the Court of Appeals, but he argues to this court that a more stringent test established by the Montana Supreme Court in In re K.G.F., 306 Mont. 1, 7,29 P.3d 485 (2001), applies. The lower courts disagreed on the applicable test. The district court held Ontiberos’ counsel was not ineffective using the two-prong Strickland standards. The Court of Appeals examined Ontiberos’ ineffective assistance of counsel claims under a right-to-fair-trial framework because the KSVPA is a civil proceeding.
We hold that the two-prong Strickland test applies because On-tiberos’ right to counsel arises from a constitutional right similar to the rights attendant to a criminal trial. We begin by explaining why we decline to adopt the fair trial framework for Ontiberos’ ineffective assistance of counsel claims, and then we address the misconduct allegations.
In Smith v. Blakey, Administrator, 213 Kan. 91, 515 P.2d 1062 (1973), the driver of an automobile sued the automobile’s owner for personal injuries stemming from an accident. On appeal, the owner claimed the trial court erred by permitting opposing counsel to verbally abuse and attack defense counsel in front of the jury. The Smith court held counsel’s remarks resulted in reversible error when the parties have been denied a fair trial. 213 Kan. at 96. The Smith court reversed after it found “the remarks and conduct of [opposing] counsel materially distracted and hindered the jury from returning an impartial verdict.” 213 Kan. at 96.
This same fair trial standard has been applied in subsequent cases when a civil litigant alleged opposing counsel committed misconduct. See McKissick v. Frye, 255 Kan. 566, 876 P.2d 1371 (1994) (opposing counsel’s remarks are reversible error if the parties have not had a fair trial); Sledd v. Reed, 246 Kan. 112, 117, 785 P.2d 694 (1990) (same); Henderson v. Hassur, 225 Kan. 678, 693, 594 P.2d 650 (1979) (same); Kleibrink v. Missouri-Kansas-Texas Railroad Co., 224 Kan. 437, Syl. ¶ 6, 581 P.2d 372 (1978) (same). And this court adopted the same fair trial analysis in another KSVPA appeal involving the state attorney’s misconduct. In re Care hr Treatment of Foster, 280 Kan. 845, Syl. ¶ 2, 127 P.3d 277 (2006). We must now decide whether that fair trial analysis should be extended to claims by persons committed under the KSVPA alleging ineffective assistance of counsel.
The State urges us to adopt tire Strickland standard applicable in criminal cases because it is well-known and easy to apply. Numerous other jurisdictions use Strickland for claims of ineffective assistance of counsel raised by persons committed under that state’s sexually violent predator law. See, e.g., Jenkins, 271 Va. at 16 (recognizing a constitutional right to effective counsel and evaluating the claim under Strickland); State of Texas for the Best In terest and Protection of H.W., 85 S.W.3d 348, 356 (Tex. App. 2002) (same); People v. Rainey, 325 Ill. App. 3d 573, 585-86, 759 N.E.2d 492 (2001) (recognizing statutory right to effective counsel and evaluating that claim under Strickland); In re Crane, 704 N.W.2d 437, 439 (Iowa 2005) (same); In re Alleged Mental Illness of Cordie, 372 N.W.2d 24,29 (Minn. App. 1985) (same). These courts applied Strickland regardless of whether that court held that the person’s right to effective counsel arose from statute or the constitution.
Most of these cases lack any significant analysis as to why Strickland was adopted, but the Washington Court of Appeals explained that it found the Strickland analysis appropriate in civil commitment proceedings, even though it is “rooted in Sixth Amendment protections,” in part because tire Strickland standard is well known, supported by a well-developed body of caselaw, and the majority of jurisdictions follow it. In re Detention of T.A.H.-L, 123 Wash. App. 172, 180, 97 P.3d 767 (2004). The one exception appears to be the Montana Supreme Court’s analysis in In re KG.F., which Ontiberos now urges us to apply.
In the Montana case, the civil litigant was involuntarily committed after a court determined she had a mental disorder and was a danger to herself. She was not a sexually violent predator. The KG.F. court rejected the Strickland standard because “ ‘reasonable professional assistance’ cannot be presumed in a proceeding that routinely accepts—and even requires—an unreasonably low standard of legal assistance and generally disdains zealous, adversarial confrontations.” 306 Mont, at 8. The court continued by saying the Strickland requirement of proving that counsel’s performance prejudiced the defense “is contrary to [Montana’s caselaw] that mandates that unless civil commitment laws are strictly followed, a commitment order must be reversed.” 306 Mont, at 8. Finally, it held Strickland was inappropriate because it was designed to protect a defendant’s Sixth Amendment rights and the “involuntary commitment process does not invoke those constitutional provisions.” 306 Mont, at 8-9.
The KG.F. court considered five factors, which it adopted from portions of the National Center for State Courts’ Guidelines for Involuntaiy Civil Commitment, as to whether: (1) competent coun sel was appointed; (2) counsel conducted a thorough review of all records; (3) counsel knew what the client wanted to occur; (4) the client knowingly and voluntarily talked to the clinicians and/or was the client advised of the right to remain silent or attend the examination; and (5) counsel vigorously advocated for his or her client. 306 Mont, at 16-19.
The Montana court’s criticism of Strickland appears partially based on the abbreviated, 2-day time frame in which persons found to be a danger to themselves are civilly committed under Montana’s commitment statutes. 306 Mont, at 8 (“[T]he conduct of counsel during those few available hours prior to an involuntary commitment hearing or trial should be a key focal point of the inquiry as to whether the counsel’s representation was effective.”). But that process is distinguishable from KSVPA proceedings because counsel has substantially more time to prepare under the KSVPA since the statute requires a trial within 60 days of the probable cause hearing. K.S.A. 59-29a06(a).
Notably, no other jurisdiction follows the Montana court’s approach. See In re Daryll C., 401 Ill. App. 3d 748, 930 N.E.2d 1048 (2010) (declining to adopt the Montana court’s approach because it was grounded in Montana constitutional and statutory law); In re L.G., No. 06AP-453, 2006 WL 2780157, at “8 (Ohio App. 2006) (unpublished opinion) (rejecting the Montana Supreme Court’s approach and applying the Strickland standard); In re Detention of T.A.H.-L, 123 Wash. App. at 180 (declining to adopt the Montana Supreme Court’s dim view of the quality of civil commitment proceedings, or their adversarial nature, in the state of Washington). Likewise, we decline to adopt in Kansas such a critical and limited view of the Strickland standards.
Although there is some merit to applying the fair trial rubric this court adopted in Smith, 213 Kan. 91, to address claims of misconduct by opposing counsel, we hold that the well-known Strickland test better addresses the concerns embodied in ineffective assistance of counsel claims in KSVPA proceedings. The United States Supreme Court crafted Strickland to determine when counsel’s performance violates a criminal defendant’s Sixth Amendment right to counsel, and it makes sense to apply the same, standard based on a Fourteenth Amendment right to counsel. Strickland was adopted in this context by the majority of other jurisdictions, and it is a well-known standard likely to invite a more consistent application by Kansas courts. Drawing from Strickland, we hold that a finding of ineffective assistance of counsel based on deficient performance in a KSVPA proceeding requires a determination that (1) counsel’s performance was deficient; and (2) counsel’s deficient performance was sufficiently serious to prejudice the respondent and deprive him or her of a fair trial. We address next whether Ontiberos’ trial counsel was ineffective using the Strickland standard.
Ineffectiveness of Trial Counsel
Ontiberos argues his trial counsel was ineffective because he: (1) failed to use evidence corroborating Ontiberos’ expert’s testimony and impeaching the State’s expert; (2) stipulated &at Dr. McCoy could review all documents contained in Exhibit 1, including hearsay reports by other clinicians, when testifying and forming her opinion on whether Ontiberos met the criteria of a sexually violent predator; (3) failed to object when the State cross-examined On-tiberos based on information derived from Exhibit 1 because the exhibit was never introduced into evidence; and (4) allowed Dr. Barnett to be impeached with a corrections department discipline record involving a duct-taped knife, which Ontiberos alleges does not exist. The State disputes all of these claims.
Standard of Review
The same standard of review adopted to review a criminal defendant’s ineffective assistance of counsel claim applies here. Ineffective assistance of counsel claims involve mixed questions of law and fact requiring de novo review. Thompson v. State, 293 Kan. 704, 715, 270 P.3d 1089 (2011). It is incumbent upon the movant to prove that (1) counsel’s performance was deficient, and (2) counsel’s deficient performance was sufficiently serious to prejudice the defense and deprive the movant of a fair trial. 293 Kan. at 715.
“The first prong of the test for ineffective assistance of counsel requires a defendant to show that counsel’s representation fell below an objective standard of reasonableness, considering all the circumstances. Judicial scrutiny of counsel’s performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate die distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. We must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. [Citation omitted.]
“Once a defendant has established counsel’s deficient performance, tire defendant also must establish prejudice by showing that there is a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in tire outcome. A court hearing an ineffectiveness claim must consider tire totality of the evidence before the judge or jury. [Citation omitted.]” Bledsoe v. State, 283 Kan. 81, 90-91, 150 P.3d 868 (2007).
Since the district court conducted an evidentiary hearing on On-tiberos’ motion, we review any factual findings for substantial competent evidence and evaluate whether those findings support the trial judge’s conclusions of law. See Thompson, 293 Kan. at 715-lb (reviewing K.S.A. 60-1507 evidentiary hearing). The district judge’s legal conclusions are reviewed de novo. See Gonzales, 289 Kan. at 358-59.
Failure to Introduce Corroborating Evidence
Exhibit 1 contains results from a Static-99 administered to On-tiberos in 2006 as part of Ontiberos’ sexual offender treatment program. Those 2006 results showed Ontiberos had only a 9 percent chance of reconviction in 16 years and concluded he was a lower risk to re-offend. The 2006 results contradicted the results from the Static-99 administered by the State’s witness, Dr. McCoy. She testified that Ontiberos fell into the high risk category for sexual recidivism in part because Ontiberos had a 52 percent chance of reconviction in 15 years. Ontiberos argues his trial counsel was ineffective because he failed to admit into evidence the 2006 Static-99 test results, so the jury was never made aware of it. And even if the lower score was not independently relevant, Ontiberos argues the contradictory results would have supported his trial strategy of discrediting the test’s general reliability. The State argues the omission of the more favorable 2006 Static-99 test results would have contradicted Ontiberos’ trial strategy.
At the Van Cleave hearing, Ontiberos’ trial counsel testified it would have hurt his trial strategy to admit the contradictory test scores because he could not claim one score was rehable while Dr. McCoy’s results were not. But counsel seemed to recognize the problem with that argument when he admitted the contradictory Static-99 results could “arguably” have supported his claim that the test was unreliable. The district court did not make any findings related to this issue, and we regard Barker’s explanation to be nonsensical.
Dr. McCoy’s testimony that Ontiberos fell in the high risk category on the Static-99 was among the more damaging evidence presented at trial because she testified Ontiberos was only in the “moderate risk” category on the MnSOST. Not only would the contradictory 2006 Static-99 test scores support Dr. Barnett’s testimony that those tests are unreliable, but it would diminish the credibility of Dr. McCoy’s conclusion that Ontiberos was a high risk for recidivism. The failure to admit the 2006 test results falls below an objective standard of reasonableness regardless of whether it resulted from what trial counsel characterized as “strategy” or from trial counsel’s after-the-fact rationalization for failing to familiarize himself with the evidence.
We are similarly troubled that Ontiberos’ attorney did not alert his expert that Ontiberos was given a penile plethysmograph test as part of a sexual offender treatment program in 2005. Dr. Barnett testified that was a more reliable test, and we cannot be certain how it would have affected his diagnosis or testimony. But as the Court of Appeals held, this omission again calls Barker’s pre-trial preparation into serious question. 45 Kan. App. 2d at 255. The first prong of the Strickland test is satisfied. We will address the second prong after determining whether trial counsel’s performance fell below an objective standard of reasonableness based on Ontiberos’ other claimed performance errors.
Stipulation to Expert’s Review of Evidence
Ontiberos next argues his trial counsel was ineffective for stipulating that Dr. McCoy could review all the discovery contained in Exhibit 1, including hearsay and documents created by other cli nicians, when forming her expert opinion on whether Ontiberos was a sexually violent predator.
At the time of Ontiberos’ trial, the KSVPA was silent regarding what evidence experts could rely upon when forming their opinions. That would later change. See K.S.A. 2011 Supp. 59-29a06(c) (effective July 1, 2011, allowing expert witnesses in KSVPA proceedings to consider inadmissible evidence if certain conditions are satisfied). The general statute governing expert opinion testimony, K.S.A. 60-456(b), applied instead. It states:
“If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (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.” K.S.A. 60-456(b).
At that time, this court’s K.S.A. 60-456(b) caselaw clearly precluded experts testifying in KSVPA proceedings from giving an opinion based on facts or data not “ perceived by or personally known or made known’ ” to the expert at trial. State v. Gonzalez, 282 Kan. 73, 87, 145 P.3d 18 (2006). In Gonzales, an expert witness relied upon California medical records to form an opinion whether Gonzalez was competent to stand trial. This court held that the psychologist’s opinion was not based on facts or knowledge personally made known to her, nor was it based on facts put into evidence because tire State never offered the California records for admission under one of the hearsay exceptions. Therefore, the records were inadmissible hearsay. 282 Kan. at 96.
Emphasizing the clarity of Gonzales, this court criticized the same type of stipulation as entered into at Ontiberos’ trial in another KSVPA case, In re Care ér Treatment of Colt, 289 Kan. 234, 243, 211 P.3d 797 (2009) (“ ‘[Experts’ opinions based upon hearsay are not admissible in any court proceedings.’ ”). In that case, the parties entered a similar stipulation allowing the State’s expert to rely on inadmissible hearsay evidence. The court declined to reverse Colt’s civil commitment holding that the error was invited. But this court stated:
“Admission of unreliable statements by out-of-court declarants to prove the truth of tire matter asserted is exactly what the hearsay rule is designed to prevent; this agreement appears to have eliminated any useful purpose our enforcement of the rule might serve; waived any initial objection to the Rosenberg’s reliance on and reference to the records; and, to the extent admission of his opinion was error, invited it.” Colt, 289 Kan. at 243.
During the Van Cleave hearing for Ontiberos, his trial attorney admitted that he was not familiar with Gonzalez, and this failure to familiarize himself with the requirements for expert testimony undoubtedly led him to enter into such an all-encompassing stipulation.
Parties are obviously encouraged to enter into stipulations to avoid undue costs or time consuming litigation when there is no real dispute. Fuller v. Wright, 106 Kan. 676, 680, 189 P. 142 (1920) (stipulations are commendable to shorten or eliminate certain matters of fact not seriously in dispute although tedious or expensive to prove). But counsel’s willingness to simply agree to foundation and wholesale use by Dr. McCoy is more than puzzling. As discussed below, some of the documents involved witness statements from uncharged events dating back to the 1990s and clinical reports from individuals at the prison that lack all of the author’s identifying information.
In light of the caselaw existing at the time, we are skeptical that the State could have admitted all of the information it claims it could have admitted. But we do not need to reach that issue because Barker’s admission that he was unfamiliar with Gonzalez and his decision to grant the State free rein over all evidence—however remote or incomplete—falls below the objective standard of reasonableness for an attorney under these circumstances.
In State v. Rice, 261 Kan. 567, 932 P.2d 981 (1997), this court held that defense counsel’s performance fell below an objective standard of reasonableness when he advised his client not to testify because counsel mistakenly believed the defendant’s prior convictions would become admissible if he testified. This court held that this advice was not “based on any justifiable strategic considerations” but was instead based on an incorrect understanding of tire law. 261 Kan. at 607. Likewise, Barker’s failure to familiarize himself with this court’s Gonzalez decision caused him to enter a stipulation allowing Dr. McCoy to review all of Exhibit 1 without first understanding the evidentiary rules governing what evidence she could use when forming her opinions and testifying.
Failure to Object to Cross-examination
Ontiberos argues next that his attorney was ineffective for not objecting when the State improperly cross-examined him by using documents in Exhibit 1 without admitting the documents into evidence for the jury’s review. We begin by determining whether tire State should have admitted tire documents into evidence. Onti-beros raises numerous instances of what he characterizes as improper cross-examination, but we will focus on those in which our review of the record demonstrates a problem. These generally occur when Ontiberos testified that he could not remember whether the State’s assertions were true or he disagreed with the factual premises underlying a State question. That testimony must be described in greater detail.
First, the State purported to use a police report from 1999 containing a victim’s statement that Ontiberos approached a woman named Paula and said, “I want some pussy.” Ontiberos was never charged, and he testified at trial that he did not remember making the statement. Then, the State asked, “But you do remember the police contacting you, asking you if you were involved in that, if you’d done that, correct?” And Ontiberos replied, “No, sir.” Finally, the State inquired whether Ontiberos remembered telling the police that he was staying with a friend and he did not know “Paula.” Ontiberos again testified he did not remember anything about the alleged incident. The State did not admit into evidence the police report or any other evidence establishing that these events actually transpired.
Second, the State inquired about another uncharged incident occurring in 1991 when Ontiberos allegedly took his clothes off and stood naked, staring at a neighbor through a sliding glass door. Ontiberos testified he remembered the incident, but he thought he was wearing shorts. And the State tried to impeach that claim with the officer’s statement in the police report, stating:
“If the police reports indicate ... he made no effort to conceal his genital area and walked up the stairs in a sort of—they call it a strutting manner, do you have any disagreement with that? Is that the way you remember it?”
Ontiberos again testified he remembered leaving, but he thought he had shorts on. The State then asked whether Ontiberos had said, “Charlie’s going to get you,” when the police asked him to get dressed. Ontiberos denied making that statement. The police report was not admitted into evidence or shown to Ontiberos so that he could review it and respond to its version of the alleged events.
Third, the State asked Ontiberos about a time he left a residential drug treatment facility without authorization. Ontiberos admitted he left the facility, but he denied that he was picked up 8 days later at his in-laws’ house. Ontiberos claimed he was only gone 1 day. The State attempted to impeach him by asking, “If the records indicate it was a matter of several days, your memory’s [sic] different than that at least?” And Ontiberos again indicated it had happened the same day. No document was admitted into evidence establishing whether the State was correct.
Fourth, Ontiberos complains the State impeached him with statements he made in 1983 to a corrections department counselor about the attempted rape conviction. Ontiberos testified he remembered being at the victim’s house, taking his clothes off, and walking down the hall, but then he blacked out because of drug use. The State asked whether he remembered telling a psychiatrist the victim picked up a knife. Ontiberos testified he did not remember. The State continued this line of questioning by asking Onti-beros six questions about statements the counselor reported that he allegedly made in 1983, and Ontiberos testified that he could not remember each time. The counselor’s report was never admitted into evidence, and the State now concedes the follow-up questions may have “overreached” because Ontiberos indicated he did not remember.
Fifth, Ontiberos argues the State improperly impeached his expert, Dr. Barnett, in the same fashion. For example, when the State was attempting to show Ontiberos had numerous disciplinary actions in prison and was not truthful about the number of the violations during his interview with Dr. Barnett, the State asked whether Dr. Barnett knew Ontiberos had been in a fight in 2003. Dr. Barnett testified that it would be unusual for someone impris oned as long as Ontiberos to not have been in a fight, seemingly conceding that the fight occurred. But the State did not admit any evidence that Ontiberos had been in a fight in 2003, effectively impeaching Ontiberos and Dr. Barnett without establishing a basis for it.
Finally, the State asked Dr. Barnett whether Ontiberos reported “that he was Usted in a disciplinary report as having taken duct tape and wrapped it around a pen in order to fashion a crude knife of some kind . . . did he tell you about that?” Dr. Barnett testified Ontiberos had not disclosed that incident, again seemingly conceding that the incident had occurred and that Ontiberos had been dishonest. But as the Court of Appeals opinion thoroughly discusses, Ontiberos was never disciplined for having a knife. And, at trial, the State claimed this incident occurred in 2003, but the discipline report tire State later claimed established the basis for its question was a 1991 report, which actually concluded that Onti-beros had “less dangerous” contraband. There is no mention of a knife. The Court of Appeals rightly found this error to be one of the most egregious concluding “this leading question was not based on fact.” Ontiberos, 45 Kan. App. 2d at 254.
In State v. Gauger, 200 Kan. 515, 438 P.2d 455 (1968), this court held that it is improper for counsel to read or refer to the contents of written matter that has not been introduced into evidence for impeachment, stating:
“Where the impeaching statement is written, and the witness, although admitting that he gave a statement, cannot remember the contents thereof, or will neither admit nor deny the same, there is ample foundation for admitting the statement itself or at least the impeaching portion thereof into evidence. . . .
“. . . Counsel may comment on the credibility of a witness where his remarks are based on facts appearing in the evidence; but it is highly improper for the court to permit counsel to read or even refer to the contents of written matter not in evidence for the purpose of impeachment.” (Emphasis added.) 200 Kan. at 520.
In State v. Ward, 31 Kan. App. 2d 284, 64 P.3d 972, rev. denied 276 Kan. 974 (2003), the defendant argued the trial court abused its discretion by allowing the State’s cross-examination of his wife regarding whether she was afraid of him. 31 Kan. App. 2d at 290-91. The court held the examination was proper because it would demonstrate whether she had any bias. But it took issue with the State’s failure to admit extrinsic evidence that she was afraid of Ward once she denied it, stating:
“[W]e are troubled by tire State’s failure to complete the impeachment. Once Sheila denied the specific instances of physical abuse, tire State should have offered extrinsic evidence to illustrate that Sheila’s denial of the specific instances of abuse was suspect.” 31 Kan. App. 2d at 292 (citing Barbara, Kansas Rules of Evidence with Evidence Objections and Evidentiary Foundations § 3.1 [4th ed. 1997]).
The most recent edition of Barbara, Kansas Law and Practice continues to support the rule that counsel admit extrinsic evidence, either by producing the document or live witness testimony, if the witness denies the impeaching fact. It explains that the purpose of this rule “is to insure against unfair cross-examination where the examiner may misquote or take the statement out of context.” Barbara, Kansas Law and Practice, § 3:1 (5th ed. 2001). These procedures were not followed, preventing the jury from determining whether Ontiberos and Dr. Barnett’s testimony was suspect. And our review of the record establishes at least one instance when the State was misstating the alleged facts—not Ontiberos. We hold that counsel’s performance fell below an objective standard of reasonableness.
We find it disturbing that the State’s method of cross-examination pervaded the trial without intervention by Ontiberos’ advocate. No evidence was admitted for the jury’s review to determine the accuracy of the facts alleged to underlie the State’s questions, and this was particularly egregious since some of the State’s questions were not supported by the record. This again suggests Ontiberos’ trial counsel lacked sufficient familiarity with the evidence in his case and the rules governing admissibility of evidence. And while the substance of the parties’ stipulation is not entirely clear, we can tell without further detail that it was ineffective assistance of counsel for Ontiberos’ attorney to enter into a stipulation that avoided tlie need to admit evidence that would allow the jury to make these essential determinations.
Failure to Object to State’s Question about a Knife
As discussed above, the State asked Dr. Barnett whether Onti-beros had disclosed that he was disciplined in 2003 for having a knife. Dr. Barnett admitted that Ontiberos had not disclosed it, simultaneously impeaching Dr. Barnett’s evaluation of Ontiberos and suggesting Ontiberos was dishonest. Ontiberos’ attorney did not object to the question, and the State did not admit the alleged discipline record into evidence.
This is the most poignant example of why attorneys must produce extrinsic evidence to avoid misquoting or mischaracterizing a document. Ontiberos’ attorney remained silent while the State questioned Dr. Barnett without producing the discipline report for his verification that the described incident occurred. Presumably Ontiberos’ attorney was unaware that the evidence had been mis-characterized; and based on the stipulation Ontiberos’ attorney entered, the State did not submit the document to the jury either. Ontiberos’ attorney’s failure to familiarize himself with the evidence and to object when this question was posed to Dr. Barnett falls below an objective standard of reasonableness.
Were These Errors PrejudicialP
Having found that error occurred, we must determine whether there is a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different. Bledsoe, 283 Kan. at 90-91. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Harris v. State, 288 Kan. 414, Syl. ¶ 3, 204 P.3d 557 (2009).
To summarize, we have concluded above that counsel’s performance fell below an objective standard of reasonableness because he: (1) failed to introduce evidence that a 2006 Static-99 concluded that Ontiberos was a lower risk to reoffend; (2) entered a stipulation allowing Dr. McCoy to review evidence that was arguably inadmissible without first familiarizing himself with K.S.A. 60-456’s evidentiary requirements and this court’s Gonzalez decision; (3) failed to object when the State impeached Ontiberos and his expert witness without introducing extrinsic evidence to complete the im peachment; and (4) failed to object to the State’s mischaracteri-zation of a corrections department discipline report.
Two themes pervade these errors. The first is counsel’s failure to familiarize himself with the evidence. This is evident by not introducing the more favorable Static-99 test results, failing to inform his expert witness that Ontiberos had taken a penile plethys-mograph, and not objecting when the State mischaracterized the discipline report as involving a knife. The second theme is a failure to recognize the evidentiary rules governing expert testimony and cross-examination.
While each individual error may not have required reversal, the accumulation of these errors undermines our confidence in the trial’s outcome. These circumstances precluded the jury from hearing the only evidence corroborating Ontiberos’ expert’s testimony. Here the jury was only informed about one Static-99 test result— the one placing him at high risk to re-offend. And Dr. Barnett’s testimony criticizing the reliability of the tests Dr. McCoy used would have been more credible if the jury was provided an example of the inconsistency. Moreover, counsel’s failure to object allowed the State to impeach both Ontiberos and his expert without establishing a basis for the impeachment. Given the pervasive nature of counsel’s errors, we conclude there is a reasonable probability that the outcome would have been different.
Opposing Counsel’s Misconduct
Finally, Ontiberos argues he is entitled to a new trial because the State’s attorney committed misconduct. And although we would ordinarily not address Ontiberos’ other claimed errors because we are reversing his civil commitment on other grounds, we briefly consider his claim that the state’s attorney committed misconduct by attempting to impeach Ontiberos and Dr. Barnett without admitting evidence to complete the impeachment. We do so because it may arise again on remand. See State v. Hernandez, 294 Kan. 200, 209, 273 P.3d 774 (2012).
Just as it was ineffective assistance of counsel for Ontiberos’ attorney to allow the State to cross-examine Ontiberos and Dr. Barnett without admitting into evidence the documents the State re lied on for impeachment, the State committed error by-cross-examining the witnesses in this fashion. By failing to identify and admit into evidence the documents the State relied upon, the State prevented the jury from deciding the facts and properly assessing credibility. It also allowed the State to mischaracterize the KDOC discipline report and insinuate Ontiberos was disciplined while imprisoned for having an unauthorized weapon without support in the record. This is misconduct under any standard. If the State initiates another civil commitment proceeding against Onti-beros, the State must admit extrinsic evidence to complete the impeachment if a trial witness denies making a prior inconsistent statement or the witness claims that he or she cannot remember the events that form the factual premise for the question.
The judgment of the Court of Appeals reversing and remanding this case to the district court is affirmed. The judgment of the district court is reversed and remanded.
Moritz, J., not participating.
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The opinion of the court was delivered by
Moritz, J.:
A jury convicted Kenneth E. Wilson of premeditated first-degree murder, aggravated burglaiy, burglary, and criminal possession of a firearm. In this direct appeal, Wilson contends the district court abused its discretion in admitting an audio recording of a 911 call made by the murder victim’s wife and in admitting evidence of seven uncharged burglaries allegedly committed by Wilson for the purposes of proving identity and plan under K.S.A. 60-455. Wilson further asserts the prosecutor committed misconduct by commenting on facts not in evidence and by improperly shifting the burden of proof to Wilson and that the cumulative effect of these errors deprived him of his right to a fair trial.
Wilson also asserts multiple sentencing errors: (1) the district court erred in finding two aggravating circumstances and imposing a hard 50 sentence, (2) the hard 50 sentencing scheme is unconstitutional, (3) the district court’s order requiring lifetime offender registration fails to conform to the governing statutory provisions, and (4) his Sixth and Fourteenth Amendment rights were violated by the court’s use of his prior criminal history and imposition of an aggravated grid-box sentence without proof beyond a reasonable doubt to a jury.
Factual and Procedural Background
Wilson was charged and convicted of premeditated first-degree murder, aggravated burglary, burglary, and criminal possession of a firearm. We have briefly summarized below the evidence developed at trial as to each conviction.
First-degree murder, aggravated burglary, and criminal possession of a firearm convictions
Wilson’s first-degree murder, aggravated burglary, and criminal possession of a firearm convictions stem from the burglary of the home of Scott and Carol Noel (“the Noels”) on March 25, 2008, and the murder of Scott Noel in his home that same date.
Carol Noel testified at trial that she and Scott both left their rural home, which was 1 mile south of Portis and approximately ½ mile from Highway 281, about 7:30 a.m. on March 25, 2008. On a typical day, Scott, a farmer, would return home for lunch at noon.
When Carol returned home at 4 p.m., things were “topsy turvy.” As she entered the dining room, she saw that dining room chairs had been knocked over, the table cloth was on the floor, and money she had left that morning on the dining room table for Scott was gone. As Carol entered the kitchen, she saw one of her husband’s guns lying on the kitchen table, although Scott always kept his unloaded guns in the closed gun cabinet. She then saw Scott lying dead on the kitchen floor in a pool of blood, his hands tied behind his back. Carol frantically called 911 and, at the direction of the dispatcher, waited outside until law enforcement arrived.
The coroner later determined Scott died of a contact gunshot wound to the back of his head and that he had been severely beaten shortly before he died, as evidenced by several bruises and abrasions on his body. The coroner testified there was no evidence that Scott had fought back or taken any defensive measures.
Cory Latham, an investigating officer with the Kansas Bureau of Investigation, testified that when the murderer pulled the trigger, he likely was standing over Scott, who lay on his stomach on the floor with his hands tied behind his back with a computer cord.
During the subsequent investigation, officers found a cigarette butt in the Noels’ sun room, although neither Carol nor Scott smoked cigarettes. Laboratoiy testing of the cigarette butt revealed a DNA profile that matched Wilson’s DNA profile.
Wilson’s former wife, Sharon Wilson, testified that in March 2008, she and Wilson were still married and lived together in a home in Salina. Sharon testified that from March 24,2008, through March 29, 2008, Wilson was away from home on a trip with his friend Delbert McBroom, who was staying in an RV owned by the Wilsons in the Wilsons’ backyard. Sharon believed that Wilson and McBroom were going to western Kansas to look for oil rigging jobs. Sharon also testified that Wilson and McBroom were gone on a trip on March 14, 2008, although she could not recall how long they were gone on that trip. Sharon testified Wilson was known to smoke cigarettes.
Two witnesses testified they saw an unfamiliar car matching the description of Wilson’s car leaving the Noel house about the time of the murder.
Burglary conviction
Wilson’s burglary conviction stems from a burglary of Elinor Fink’s home that occurred on the same day Scott Noel was murdered. Fink lived west of Downs on U.S. Highway 24 approximately 3 miles from the Noels’ farm. On March 25, 2008, she went to lunch at the Downs senior center around 11 a.m. When she returned home about 12:45 p.m., she discovered her home had been broken into, ransacked, and all of her jewelry taken. She called 911 and reported the burglary. Several pieces of Fink’s jewelry were later found in a search of Wilson’s home.
Wilsons defense
Wilson testified in his own defense and denied committing the crimes charged. He admitted he was on a trip from March 24 to March 25, 2008, and that he drove from Salina to Fairbury, Nebraska, and back to Salina on that trip, but he claimed he was hauling suitcases in return for payment from a man he had “done time with.” Wilson also admitted he drove all over Kansas the week of March 12, 2008. Regarding the items from numerous burglaries found in his possession, Wilson claimed he bought several boxes of items from the man for whom he was hauling suitcases and then later learned the boxes contained the stolen items. Wilson was unable to offer any explanation as to why his DNA was found on cigarette butts in the Noel home and in the home of Joel Livgren, the victim of an uncharged burglary introduced into evidence under K.S.A. 60-455.
Wilson testified regarding his two prior felony convictions. The first he explained by saying Aat he was convicted of “purse snatching” after he “beat a woman unmercifully” because she looked like his ex-fiancée. In cross-examination, he conceded he was convicted of robbery in Ae first degree. The second offense, which Wilson said occurred after he served 18 monAs in prison for the first offense, resulted after he again saw a woman who looked like his ex-fiancée and he “put a knife Arough her throat and mock-raped her.” Wilson explained Aat he was convicted of rape and aggravated kidnapping for that incident and incarcerated for 18 years before his release in 2002.
Wilson said he was eventually arrested in June 2008 when he violated his parole by driving wiA a suspended license.
In cross-examination, Wilson was presented with a letter he wrote to McBroom after Wilson was jailed for the parole violation. He admitted to writing tire letter, which asked McBroom to find out where Wilson’s parole officer lived and to “try and get some leaAer gloves and stocking caps rounded up on Ae sly.”
Wilson admitted that he was angry with his parole officer, that threatening and intimidating was “part of [his] character,” and drat his purpose in asking where his parole officer lived had to do with this character. However, he claimed that although he threatened and intimidated people all the time, he didn’t necessarily “go as far as to carry those things through,” and he claimed he had no intention of threatening his parole officer. He further suggested that he asked McBroom to round up gloves and stocking caps on the sly for innocent reasons, namely because he liked to fish “neck deep in water in the river, [and] it gets mighty cold.”
Sentencing
The sentencing court imposed a hard 50 sentence for the first-degree murder conviction after finding four aggravating circumstances. Specifically, the court found Wilson committed the instant crimes for the purpose of receiving money or any other thing of monetary value; in order to avoid or prevent a lawful arrest or prosecution; and in an especially heinous, atrocious, or cruel manner. See K.S.A. 21-4636(c), (e), and (f). Further, the court found Wilson had previously been convicted of a felony in which great bodily harm was inflicted. See K.S.A. 21-4636(a). Wilson presented no evidence of any mitigating circumstances. Additionally, the sentencing court imposed consecutive sentences of 136 months’ imprisonment for the aggravated burglary conviction, 13 months’ imprisonment for the burglary conviction, and 9 months’ imprisonment for the criminal possession of a firearm conviction.
Analysis
The district court did not abuse its discretion in admitting the 911 recording.
In this direct appeal, Wilson first challenges the district court’s admission of the recording of Carol’s 911 call after she discovered her husband’s body. For the reasons discussed below, we conclude the district court did not abuse its discretion in permitting the jury to hear a portion of that recording at trial.
Facts and procedural history
During trial but prior to seeking admission of the audio recording of Carol’s 911 call, the State filed a trial brief arguing the recording was admissible. Outside the presence of the jury, Wilson objected to the introduction of the recording as prejudicial. He argued it would create “more sympathy and emotion for the Noel family.”
The district court treated the arguments in the nature of a motion in limine and concluded the recording was not unnecessarily cumulative and “at present the probative value of that evidence might outweigh its prejudicial effect.”
Wilson renewed his pretrial objection when the State offered tire recording of the 911 call during Carol’s direct testimony. The district court admitted the exhibit, and the State played the recording for the jury. Two minutes and 30 seconds into the recording, the district court sua sponte requested the State stop the CD. The court stated it felt that “we’d reached that point where the necessary information had been provided.”
Later, when discussing admitted exhibits, the State noted that the CD of State’s Exhibit 1 contained both the recording of the 911 call, a portion of which had been played for the jury, and Exhibit 1-A, a recording of a call from the dispatcher back to Carol. The district judge noted for the record:
“The Court, in listening to the CD, together with those others who were in the courtrooms, came of the opinion that it had reached a point where tire prejudicial effect of what was being played outweighed the probative value of that. There was a pretty long period of time where essentially the only thing the Court heard was wailing, was wailing from the, Ms. Noel, and I felt that it had reached that point where listening to more of that had no particular probative value. The tape was shut off.
“I don’t want to foreclose the State, though, from coming back in and presenting additional evidence, additional information from that CD, should they believe such other information might have some probative value that outweighs the prejudicial effect.”
The judge further stated, “I don’t feel it was prejudicial up to that point in time.”
On appeal, Wilson concedes the relevance of the 911 recording but argues the district court abused its discretion by admitting the recording because its prejudicial effect outweighed the probative value. Wilson contends the probative value of the recording was minimal because “it served only to corroborate minor elements of the case that were not the primary issues in dispute at trial, and it was highly prejudicial as it had the tendency to inappropriately inflame the passions and prejudices of the juiy.”
The State contends the district court did not abuse its discretion in admitting the recording of the 911 call because it was highly probative (1) to corroborate Carol’s trial testimony; (2) to establish that Carol did not contaminate the scene; and (3) to show premeditation—a key element of the State’s case. The State further suggests that even if the district court did abuse its discretion, the error was harmless in light of the direct and overwhelming nature of the evidence.
Standard of review
Even if evidence is both probative and material, the trial court must still determine whether the probative value of the evidence outweighs its potential for producing undue prejudice. We review this determination for abuse of discretion. State v. Wells, 289 Kan. 1219, 1227, 221 P.3d 561 (2009); see State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011) (stating abuse of discretion standard of review), cert. denied 132 S. Ct. 1594 (2012).
Discussion
In the trial court and in his brief on appeal, Wilson argued the 911 recording should not be admitted because its undue prejudice outweighed its probative value. At oral argument, however, Wilson switched tactics and argued the district court abused its discretion by failing to listen to the recording before ruling on its admission. Based on the record before us, we cannot say with any certainty whether the trial judge listened to the recording prior to ruling on die call’s admissibility. We note that the better practice would be for the party challenging the admission of a recording to request the court listen to the recording at tire time of ruling in order to preserve an argument for appeal. But ultimately, we will not ad dress this new argument on appeal because Wilson did not raise it below. See State v. Warledo, 286 Kan. 927, 938, 190 P.3d 937 (2008) (issues not raised before the trial court cannot be raised on appeal). We will, however, address his challenge to the admission of the recording as more prejudicial than probative.
As the State submits, we have traditionally upheld the admission of recordings of 911 calls at trial. In most of those cases, however, the recording captured the event—i.e., the rape or shooting—at issue in the case. See State v. Reed, 282 Kan. 272, 274, 281-82, 144 P.3d 677 (2006) (recording of a 911 call capturing the events of a shooting that left one person dead and another wounded corroborated the testimony of the 911 dispatcher and victim as to the events and “also captured Reed’s demeanor at the time of the events, documented events and the duration of the incident, and was highly probative with respect to the essential element of premeditation”); State v. Meeks, 277 Kan. 609, 618-20, 88 P.3d 789 (2004) (recording of 911 call made during a shooting was relevant to “ 'convey[] what was going on at the scene at that moment’ ” and to corroborate witness testimony), overruled on other grounds by State v. Davis, 283 Kan. 569, 158 P.3d 317 (2006); State v. Abu-Fakher, 274 Kan. 584, 597-98, 56 P.3d 166 (2002) (audio recording that captured shooting was properly admitted because “[t]he recording is the most probative and comprehensive evidence of the actual commission of the crime, the sequence in which events occurred, and their duration; it provides considerable context for the manner of death and time span in which the events took place”); State v. Williams, 235 Kan. 485, 493, 681 P.2d 660 (1984) (911 recording of a rape was not so gruesome as to be more prejudicial than probative because “[t]he recording went to the very heart of the case showing the victim’s lack of consent, that her resistance was overcome by force or fear, and that the sexual assault occurred” and the recording corroborated testimony of several witnesses, including the victim).
Unlike the cases cited above, the recording of the 911 call at issue here did not capture Scott’s murder and was not as strongly corroborative as the recordings admitted in those prior cases. Nevertheless, the recording was relevant to corroborate Carol’s testi mony regarding the scene as she found it and whether the scene had been contaminated, a defense raised by Wilson at trial. The recording additionally was relevant to the issue of premeditation, an essential element of the State’s case, because on the tape, Carol “described that her husband was lying on the floor, with his hands tied behind his back, and had been shot in the back of the head.”
As noted earlier, Wilson concedes the recording’s relevance but argues that despite its probative value, the recording was highly prejudicial because of Carol’s hysterical crying. Wilson notes the judge ordered the State to stop the recording because he was concerned about its prejudicial value. But Wilson ignores tire trial court’s statement when it stopped the recording that “it had reached that point where listening to more of that had no particular probative value” and the court’s later verification that the court did not believe the statement was prejudicial “up to that point in time.”
Having listened to the recording, we conclude the district court did not abuse its discretion in finding that at least up to the time the court stopped the recording, the probative value of the evidence outweighed its potential for producing undue prejudice.
The district court did not abuse its discretion in admitting K S.A. 60-455 evidence.
Prior to trial, the State moved to admit evidence of seven uncharged burglaries committed in other counties or jurisdictions. The State argued the burglaries were admissible under K.S.A. 60-455 for the purposes of proving plan and identity. The district court agreed, and conditionally granted the State’s motion.
At trial, Wilson renewed his objection to admission of evidence of the uncharged burglaries. The district court denied the objection but granted Wilson a continuing objection. We have summarized below the evidence presented by the State as to each of the uncharged burglaries.
Evidence of uncharged burglaries
On March 12, 2008, the home of Tracy Noel (“Tracy”) was broken into between 7:15 a.m. and 12:30 p.m. Tracy lived in Gove County, Kansas, off County Road 58 approximately 9 miles from Highway 23 and ¼ mile from her nearest neighbor. The window in the back door had been broken, and numerous items were missing, including a pillowcase, jewelry, digital cameras, a video camera, a PlayStation 2 console and corresponding controllers, and video games.
The home of Bernice and Terry Blakely was broken into on March 12, 2008, between 7:30 a.m. and 5:30 p.m. The Blakelys lived in Beeler, Kansas, on County Road 532, approximately ½ mile from Highway 96. Numerous items were missing, including pillowcases and jewelry. Terry found his .270 caliber, high-powered rifle loaded and lying on top of a deep freeze chest in the utility room. Terry usually kept his guns unloaded and standing in a comer of a closet off the utility room. Although neither Bernice nor Terry smoke, Bernice found cigarette butts in the backyard after the burglary.
Loa Hagelgantz lived north of Bazine, Kansas, off County Road 160 about ½ mile from County Road Double D and 3 miles north of Highway 96. Her nearest neighbor lived approximately 1 ½ miles away. The morning of March 13, 2008, Hagelgantz returned home about mid-moming after spraying nearby fields on the family farm. As she drove into her yard, she saw a gray car come around the driveway from the shed near the house. Hagelgantz got out of her car and spoke to the driver, who asked where the nearest town was to get gas. Hagelgantz later identified Wilson from a photo lineup as the man she spoke with that morning. As Hagelgantz entered the house, she smelled cigarette smoke, although no one in the home smoked. Hagelgantz found the stereo cabinet open and CDs and mud on the floor. Her purse was missing.
On March 14, 2008, Matthew Andrews’ home was broken into sometime between 8:30 a.m. and 3:30 p.m. Andrews lived 2 miles north of Elwood, Nebraska, approximately 100 yards off Highway 283. Items missing from the Andrews’ home included a pillowcase, jewelry, a rifle, cash, silverware, binoculars, video games, and bonds.
Betty Switzer lived in Harvard, Nebraska, approximately ¼ mile off Highway 14 and ½ mile away from her nearest neighbor. In March 2008, while Switzer was in Nevada, her home was broken into. Numerous items were missing, including a microwave and jewelry.
Taylor and Tara Pope lived outside Saronville, Nebraska, off Highway 6. Their rural home was broken into on March 24, 2008, between 7:30 a.m. and 6 p.m. The dining room window was broken, and items missing included a laptop computer, digital camera, video camera, binoculars, hunting knives, jewelry, and a case of CDs.
Also on March 24, 2008, Joel Livgren’s home was broken into between 7 a.m. and 5:30 p.m. Livgren lived 2 miles south of Clay Center, Nebraska, off Highway 14. Items missing included a digital camera, a pillowcase, a pocket watch, a ring, and a handheld portable TV. The DNA profile obtained from a cigarette butt found in Livgren’s backyard on March 27, 2008, matched Wilson’s DNA profile.
Elinor Fink, Tracy Noel, Bernice Blakely, Betty Switzer, Matthew Andrews, Tara and Taylor Pope, and Joel Livgren later identified items found in a search of Wilson’s home and RV as items taken from their homes during the burglaries.
At the time of Wilson’s offense, K.S.A. 60-455 provided:
“Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as die basis for an inference tíiat the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 60-445 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.”
On appeal, Wilson concedes that both identity and plan were material and in dispute, but he argues die uncharged burglaries were irrelevant to prove those disputed material facts. Wilson contends the seven burglaries were not substantially similar to the charged offenses and thus did not have any tendency in reason to prove the disputed material facts of plan and identity. He reasons that “when viewed as a whole, the entire group of nine crimes may appear as though they are similar, however, when broken down and compared to the two sets of crimes actually charged in this case, the similarities are lacking.” The State argues the district court did not abuse its discretion in admitting the evidence to show identity and plan because the uncharged burglaries were sufficiently similar to the charged crimes to make them relevant and admissible.
Wilson also argues the uncharged burglaries should not have been admitted because their probative value did not outweigh the potential for undue prejudice. He maintains the admission of the evidence against him was particularly prejudicial because his participation in the uncharged and unproven burglaries was based on speculation and inference stacking.
The State counters that the issue of identity was “the most hotly contested issue of the trial” based on Wilson’s theoiy of defense and his testimony at trial, and the evidence of other burglaries was highly probative to this issue.
Standard of review
A district court applies a several-step analysis to determine whether and how evidence is admissible under K.S.A. 60-455. First, the court must determine that the fact to be proven is material, e.g., concerning intent, motive, knowledge, or identity. The court must also determine whether the material fact is disputed and whether the evidence is probative, i.e., has any tendency in reason to prove the fact. Materiality and probative value are the two components of relevance. If the evidence is probative of a disputed material fact, then the court determines whether the probative value of the evidence outweighs the potential for creating undue prejudice. Finally, if the court decides to admit the evidence, it must give a limiting instruction informing the jury of the specific purpose for the admission of the K.S.A. 60-455 evidence. State v. Hollingsworth, 289 Kan. 1250, 1258, 221 P.3d 1122 (2009); State v. Riojas, 288 Kan. 379, 383, 204 P.3d 578 (2009).
Our standard of review differs depending upon which step of the above analysis we are considering. We review the materiality determination de novo, while we apply an abuse of discretion standard to the probativity determination. We also apply an abuse of discretion standard to the district court’s balancing of probative value and the potential for producing undue prejudice. Hollingsworth, 289 Kan. at 1258.
Relevance of uncharged burglaries to identity
In arguing the district court abused its discretion in admitting the seven uncharged burglaries, Wilson concedes the evidence concerned the material facts of identity and plan and that these issues were disputed. Therefore, he concedes the evidence satisfied the first two steps of the above analysis. But Wilson argues that the evidence was not probative of the disputed material facts and thus was irrelevant. Specifically, he suggests that the individual uncharged burglaries were too dissimilar from the charged offenses to be probative.
“Where a prior conviction is offered for the purpose of proving identity, the evidence should disclose sufficient facts and circumstances of the offense to raise a reasonable inference that the defendant committed both offenses. Similarity must be shown in order to establish relevancy. It is not sufficient simply to show that the offenses were violations of the same or similar statutes; there should be some evidence of the underlying facts showing the manner in which the other offense was committed so as to raise a reasonable inference that the same person committed both offenses. However, the prior offenses need only be similar, not identical, in nature.” State v. Higgenbotham, 271 Kan. 582, Syl. ¶ 3, 23 P.3d 874 (2001).
In State v. Howard, 220 Kan. 117, 120, 551 P.2d 835 (1976), we upheld the admission of a prior burglary in a burglary case as relevant to proof of identity, finding the facts demonstrated a similarity of pattern in the two crimes in five respects: “First, both convictions were for burglary. Second, in both cases a television set was involved. Third, both burglaries were within five blocks of defendant’s house. Fourth, entry into the residences was gained by forcing open a door. Finally, in both cases no one was home during tire burglaries.”
Here, Wilson asserts the “only common threads that run through all nine burglaries is that they were rural residences, burgled during the day when it was most likely that no one would be home, where items of value were taken, all committed sometime between mid to late March of 2008.”
But Wilson ignores numerous similar factual circumstances that raise a reasonable inference that Wilson committed all nine offenses. For instance, the rural residences were all relatively isolated with no near or adjacent neighbors; the residences were all near a highway; the residences were within a limited area in north-central Kansas and south-central Nebraska; and the residences were all unoccupied at the time of the burglary.
Moreover, the burglaries all were committed within the same general time frame as the charged burglaries. Four of the burglaries occurred between March 12,2008, and March 14,2008 (Tracy Noel, Blakely, Hagelgantz, and Andrews homes). Another four burglaries occurred between March 24, 2008, and March 25, 2008 (Scott and Carol Noel, Fink, Pope, and Livgren homes). The remaining burglary occurred sometime in March 2008 while the owners were out of state (Switzer home). Significantly, the evidence established that Wilson was away from his home in Salina on trips around the time of the burglaries.
Other similarities exist between some of the uncharged burglaries and the charged burglaries. For instance, at the Scott Noel and Blakely homes, previously unloaded guns were removed from their customary locations, loaded, and left out in an obvious location. Also, officers found cigarette butts at the Noel, Blakely, and Liv-gren homes; and Loa Hagelgantz reported smelling cigarette smoke immediately after Wilson left her home. The evidence showed that the Noels, the Blakelys, and the Hagelgantzes do not smoke while Wilson does smoke. DNA profiles from the cigarette butts found at the Noel and Livgren homes matched Wilson’s DNA profile. Further, Hagelgantz identified Wilson in a photo lineup as the man she saw and spoke to outside her home the morning of the burglary. And finally, while Wilson recognizes that items of value were taken during all robberies, he fails to point out that items taken during the burglaries of the Fink, Tracy Noel, Blakely, Switzer, Andrews, Pope, and Livgren homes later were found in Wilson’s home and RV.
In sum, evidence of the underlying facts showing the manner in which the Tracy Noel, Blakely, Switzer, Andrews, Pope, and Liv-gren burglaries were committed—particularly evidence of the lo cations of the crimes and general time frame of the crimes, and evidence that stolen items from these homes were recovered in Wilson s home or RV—raises a reasonable inference that tire same person—Wilson—committed those burglaries and the Fink burglary. Evidence of the underlying facts showing the manner in which the Hagelgantz burglary was committed—particularly evidence surrounding the smell of cigarette smoke, Hagelgantz’ identification of Wilson as outside her home, and Wilson’s DNA profile on the cigarette butt found at the Noels’ home—raises a reasonable inference that the same person—Wilson—committed the Hagel-gantz burglary and the aggravated burglary of the Noels’ home. The district court did not abuse its discretion in finding that evidence of the seven uncharged burglaries met the probativity element of relevance to prove the disputed material fact of identity.
Evidence of plan
Because we have determined that the evidence was admissible to show identity, we need not consider Wilson’s argument that the evidence was inadmissible to prove plan. Even if admission on that ground was erroneous, the evidence was properly before the jury to show identity. The only potential prejudice would be that tire additional ground was included in the limiting instruction. See State v. Inkelaar, 293 Kan. 414, 426, 264 P.3d 81 (2011).
“An overbroad limiting instruction on K.S.A. 60-455 evidence will be deemed harmless error if the defendant was not prejudiced by the inclusion of more material facts than were warranted by the evidence in the case.” State v. Edwards, 291 Kan. 532, Syl. ¶ 11, 243 P.3d 683 (2010). We discern no basis for the additional factor of plan to have caused jury confusion or other prejudice, and the limiting instruction, even if overly broad, instructed the jury that the evidence of other crimes could be considered solely for the purpose of proving defendant’s identity and/or plan. See Inkelaar, 293 Kan. at 426. Under these circumstances, we conclude that even if it was error to admit the evidence to prove plan and include the factor of plan in the limiting instruction, Wilson was not prejudiced by that error.
Probative value of the evidence versus potential for creating undue prejudice
The district court found the probative value of the seven uncharged burglaries outweighed the potential for undue prejudice to Wilson and that any potential prejudice could be remedied by a limiting instruction. On appeal, Wilson contends the district court abused its discretion in making that finding because any probative value of the evidence of the uncharged burglaries was “minimal at best.” Wilson points out that his DNA was found on the cigarette at the Noels’ home and items stolen from Fink’s home were found in his possession, and, therefore, he seems to suggest that identity was not a significant issue. But Wilson also inconsistently asserts that the evidence was not overwhelming in this case because “the only evidence linking Mr. Wilson to the Scott Noel murder and burglary was DNA evidence, which the defense pointed out was potentially contaminated at the scene and suspicious, given the initial indication that there was no DNA to be tested from that cigarette butt.”
We agree with the State that identity “was the most hotly contested issue of the trial” and the evidence of tire uncharged burglaries had significant probative value to that issue. Further, in considering prejudice, we cannot ignore the district court’s limiting instruction to the jury to consider the evidence only for the purposes of identity and plan, and we presume the jury followed that instruction. See State v. Becker, 290 Kan. 842, 856, 235 P.3d 424 (2010) (appellate courts presume a jury followed jury instructions). Given the highly probative nature of the evidence and the issuance of a limiting instruction, we conclude the district court did not abuse its discretion in determining that the probative value of the evidence of the seven uncharged burglaries was not outweighed by the potential for undue prejudice.
The prosecutor did not commit reversible misconduct.
Commenting on facts not in evidence regarding the Hagelgantz burglary
Relying upon the following comment by the prosecutor during closing argument, Wilson contends the prosecutor committed misconduct by commenting on facts not in evidence:
“We also have on this same trip a burglary that was interrupted. Loa Hagelgantz, that’s letter C—and the legend here has all of these to help you remember. In letter C, Loa Hagelgantz told you she was the woman who came home, and we have a picture of the Hagelgantz farm and house. She told you she pulled in that driveway and as she came in, a car pulled out from behind the shed in die bottom of die picture and came up and stopped. The individual talked to her, and he had a story about he needed to know where the next town was because he needed some gas. Well, you can consider what was the car doing behind the shed at the farm? Ms. Hagelgantz said she was uncomfortable, that as he drove away, if he started to come back, she was going to go in and lock the door and not let that person in.
“And what was diat person doing? We know that Wilson and McBroom left Salina togedier, that diey were gone in that tíme period, March 12 to March 14, and they came back together. But there was one person in the car, and Ms. Hagelgantz looked at a photo lineup and she looked through all those photographs, and that’s an exhibit, she found four that seemed familiar, and one that most resembled the person she met in the driveway.
‘What was he doing? He was asking her about gas. The other person that was with Wilson? Did that give him time to leave the back of the house and go up that draw you see there and meet him on the road? Was McBroom the lookout who called Wilson add [sic] said, somebody is coming home. Get in the car, let’s go. That’s for you to consider and decide and determine. The one person Ms. Hagelgantz identified, at least we know, it was the defendant, Kenneth Wilson.”
Pointing to the last paragraph, Wilson asserts the prosecutor argued facts not in evidence when he alleged McBroom accompanied Wilson and acted as a lookout at the Hagelgantz burglary. The State insists the prosecutor appropriately drew a reasonable inference from tire facts and maintains the prosecutor s statements were well within the wide latitude afforded a prosecutor during closing argument.
In reviewing Wilson’s allegations of prosecutorial misconduct, we must first determine whether the comments were outside the wide latitude allowed the prosecutor in discussing the evidence. If so, we then consider whether the improper comments constituted plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Naputi, 293 Kan. 55, 58, 260 P.3d 86 (2011).
“Although prosecutors may argue reasonable inferences from the evidence, prosecutors may not comment upon facts outside the evidence. When a prosecutor argues facts that are not in evidence, appellate courts have consistently found that the first prong of the prosecutorial misconduct test is met.” State v. King, 288 Kan. 333, Syl. ¶ 10, 204 P.3d 585 (2009).
Wilson points out that Hagelgantz testified she saw only one person in the car leaving her house after it had been burglarized. Thus, he contends the prosecutor s statements in closing argument suggesting that McBroom accompanied Wilson on that burglary and acted as a lookout for Wilson were unsupported by the evidence.
But we need not decide whether the prosecutor s comment regarding McBroom’s whereabouts during the Hagelgantz burglary were outside the evidence because even if we assume the prosecutor’s comments were erroneous, they were not prejudicial. That is because it made no difference whether McBroom was present at the Hagelgantz burglary, because Hagelgantz identified Wilson as the man she saw in the car that morning who asked her where to find the nearest town in order to get gas.
Improperly shifting the burden of proof
Wilson also argues the prosecutor improperly shifted the burden of proof to Wilson during closing argument when he implied that Wilson should provide an innocent reason as to why his DNA was found on cigarette butts at two crime scenes.
The prosecutor stated:
“But how do we know it’s the defendant in Scott Noel’s home on March 25th when that murder happens? There is the DNA that Mickie McGinnis told you about. The defendant’s DNA is found and recovered in the sun room, and the law enforcement agents testified about Scotty Becker went in and he saw die cigarette butt on die floor and photographed it, and he told Agent Latham who was going to work the crime scene that there is a cigarette butt in the sun room. They’re paying close careful attention to it.
“This cigarette butt was recovered a short distance in the house from Scott Noel’s body. It was sent to the KBI lab. It was tested for DNA. They got a complete DNA profile on that cigarette butt, and they compared it to a known sample from the defendant, Kenneth Wilson, and it was a match.
“You, as I’ve told you, give whatever weight and credit you can to the testimony that Ken Wilson brought you in this case. But at the end of the day, even under Wilson’s version, which he sat up here and told you about, he has no explanation about how his DNA is on a cigarette butt found outside the Livgren home, and he has absolutely no explanation, he couldn’t give you a single innocent reason on why his cigarette, why DNA is found on a cigarette butt recovered from the sun room of the Noel home when they’re processing the murder scene.”
Pointing to the last paragraph, Wilson asserts the prosecutor implied that Wilson was burdened with providing an innocent reason as to why his DNA was found on a cigarette butt at the crime scene. The State contends this argument was made in the context of assessing Wilson’s credibility and pointing out weaknesses in Wilson’s defense.
Wilson cites State v. Tosh, 278 Kan. 83, 91 P.3d 1204 (2004), in suppoi't of his argument. In Tosh, the prosecutor rhetorically asked in closing argument, “ ‘ “[I]s there any evidence that it didn’t happen? Is there any evidence that the things she told you didn’t happen?” ’ ” 278 Kan. at 92. We held that these comments were improper attempts to shift the burden of proof. 278 Kan. at 92; see also State v. Stone, 291 Kan. 13, Syl. ¶ 4, 237 P.3d 1229 (2010) (“It is improper for the prosecutor to attempt to shift the burden of proof to the defendant.”).
The comments made by the prosecutor in this case were not like those made in Tosh. Rather, in context, it appears the prosecutor here was commenting on the efficacy of Wilson’s defense by pointing out to the jury where Wilson’s version of events logically broke down. See, e.g., State v. Duong, 292 Kan. 824, 832-33, 257 P.3d 309 (2011) (holding prosecutor’s arguments questioning Duong’s failure to present evidence of misidentification did not improperly shift the burden of proof to the defense because prosecutor did not call upon defense to disprove the occurrence of a crime but rather pointed out that evidence supporting defense theory was thin); Stone, 291 Kan. at 18 (finding prosecutor’s statements that defendant had “ ‘obstacles to overcome’ ” were within considerable latitude granted to prosecutors to comment on the weaknesses of defenses); State v. Burden, 30 Kan. App. 2d 690, 696, 703, 46 P.3d 570 (2002) (finding prosecutor was within her considerable latitude to comment on tire weakness of defense when prosecutor stated “ ‘the most overwhelming thing that the defense cannot overcome in this case is the physical evidence that corroborates [the victim’s] initial statements’ ”), revd on other grounds 275 Kan. 934, 69 P.3d 1120 (2003).
Significantly, the prosecutor here stressed that the jury should give whatever weight and credit it could to Wilson’s testimony. Further, the prosecutor pointed out that “even under Wilson’s version of events,” there was no explanation for why cigarette butts with Wilson’s DNA on them were found at two of the crime scenes. With that qualification, we conclude the prosecutor’s comments were within the wide latitude allowed the prosecutor in discussing the evidence and did not improperly attempt to shift the burden of proof to Wilson.
Reversal is not required due to the cumulative effect of trial errors.
Wilson argues that even if the issues above do not individually rise to the level of requiring reversal, his convictions should be reversed because the cumulative effect of the errors substantially prejudiced him and deprived him of his right to receive a fair trial. But one error is insufficient to support reversal under the cumulative error doctrine. State v. Cofield, 288 Kan. 367, 378, 203 P.3d 1261 (2009). Because we have found only one potential error here, we reject Wilson’s cumulative error claim.
The sentencing court appropriately imposed a hard SO sentence.
Wilson challenges two of the four aggravating circumstances the sentencing court found when it sentenced him to life imprisonment without the possibility of parole for 50 years. Under K.S.A. 21-4635(d), if the sentencing court finds that one or more aggravating circumstances exist and, further, that the existence of those aggravating circumstances is not outweighed by any mitigating circumstances, the court shall sentence the defendant to the hard 50 sentence.
We need not devote further consideration to Wilson’s sentencing challenge because Wilson challenges only the district court’s findings regarding two of the four aggravating circumstances. Further, Wilson did not proffer, and the sentencing court did not find, any mitigating circumstances. Even if we were to conclude the district court’s findings on the two challenged aggravating circumstances were erroneous, the two remaining aggravating circumstances necessarily are not outweighed by mitigating circumstances.
The hard 50 sentencing scheme is constitutional.
Wilson argues the hard 50 sentencing scheme is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), because it does not require a jury to determine the facts that increase the defendant’s sentence beyond a reasonable doubt. Citing Cunningham v. California, 549 U.S. 270, 127 S. Ct. 856, 166 L. Ed. 2d 856 (2007), Wilson asks this court to revisit the constitutionality of the hard 50 sentencing scheme “in light of tire United States Supreme Court’s recent continued invalidations of sentencing schemes that provide for judicial preponderance of the evidence fact finding to increase a defendant’s sentences.”
We reject Wilson’s claim in light of our previous decisions. See State v. Johnson, 284 Kan. 18, 22-23, 159 P.3d 161 (2007), cert. denied 552 U.S. 1104 (2008). Kansas’ hard 50 sentencing scheme, K.S.A. 21-4635 etseq., is constitutional. See, e.g., State v. Ellmaker, 289 Kan. 1132, 1156, 221 P.3d 1105 (2009), cert. denied 130 S. Ct. 3410 (2010).
The sentencing court properly determined that Wilson, as a violent offender, is subject to lifetime registration under the Kansas Offender Registration Act.
On the offender-registration supplement to the journal entry of judgment in this case, the sentencing court marked box (a)(2) in the registration requirement section—“[o]ffender required to register due to violent offender status” based on Wilson’s conviction of first-degree murder. The sentencing court marked two boxes on the next page regarding registration terms, including the one stating Wilson is subject to lifetime registration because of a second or subsequent conviction as a “sex offender, violent offender, or other selected crimes (as described in subsections . . . [a] [2] . . . on the previous page).”
Wilson contends the journal entry incorrectly reflects he is subject to lifetime registration as a sex offender. He notes that none of his convictions in this case involved a sex offense, thus, “any designation on this journal entiy that he is subject to sex offender registration as a result of these crimes is erroneous.” Wilson asks the court to remand his case to the sentencing court for correction of the journal entry.
While the State concedes the sentencing court had no basis upon which to sentence Wilson to lifetime registration for a second sex offense, we believe both parties have misconstrued the journal entry.
To resolve Wilson’s claim, we must interpret the provisions of the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq. Interpretation of a statute is a question of law over which we have unlimited review. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
Because of his conviction for first-degree murder, Wilson is classified as a violent offender under KORA. See K.S.A. 22-4902(a) (defining “Offender” to include a “violent offender as defined in subsection [d]”), K.S.A. 22-4902(d) (defining '“Violent offender” to include any person convicted of first-degree murder). Contrary to both Wilson’s and the State’s positions, the sentencing court correctly found Wilson was subject to lifetime registration as an offender under KORA. See K.S.A. 22-4906(a)(2) (requiring lifetime registration for second or subsequent convictions of a crime subject to registration requirements). Wilson fails to note that the box checked by the sentencing court on his journal entry was not just for sex offenders, but was also for violent offenders. And the caption heading indicated the registration terms of the particular section were designated by specific subsections on the previous page, including subsection (a)(2) regarding violent-offender status, which had been checked by the sentencing court. Wilson’s claim of error misreads the journal entry. The sentencing court did not order Wilson to register as a sex offender, but rather ordered him to register as a violent offender.
We dismiss one and reject the other of Wilsons remaining challenges to his sentences.
Finally, Wilson argues the sentencing court’s imposition of a sentence in the aggravated grid box violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution as interpreted by Apprendi and Cunningham. Because we are without jurisdiction to review Wilson’s presumptive sentence, we dismiss this portion of Wilson’s appeal. See State v. Johnson, 286 Kan. 824, Syl. ¶ 6, 190 P.3d 207 (2008).
Wilson also contends the sentencing court’s use of his prior convictions to enhance his sentence without proof to a jury beyond a reasonable doubt violated his rights under the Sixth and Fourteenth Amendments as interpreted by Apprendi. We reject Wilson’s claim in light of our previous decisions. See State v. Fewell, 286 Kan. 370, 396, 184 P.3d 903 (2008) (reaffirming State v. Ivory, 273 Kan. 44, 46, 41 P.3d 781 [2002]).
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Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Matthew M. Diaz, of Forest Hills, New York, an attorney admitted to the practice of law in Kansas in 1995.
On October 20, 2010, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of tire Kansas Rules of Professional Conduct (KRPC). The respondent filed an answer on November 8, 2010. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on October 19, 2011, where the respondent was personally present and represented by counsel. The hearing panel determined that respondent violated KRPC 1.6(a) (2011 Kan. Ct. R. Annot. 480) (confidentiality) and 8.4(b) (2011 Kan. Ct. R. Annot. 618) (commission of a criminal act reflecting adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer).
The panel made the following findings of fact and conclusions of law, together with its recommendation to this court:
“FINDINGS OF FACT
“22. In December, 1994, the Respondent received a commission from the United States Navy to serve as a judge advocate. The Respondent was admitted to the practice of law in the State of Kansas on April 28, 1995. [Footnote: The Respondent’s license to practice law in the State of Kansas has been temporarily suspended, due to his convictions, for more than three years.]
“23. In July, 2004, the Respondent, a deputy staff judge advocate, was assigned to the Joint Task Force in Guantanamo Bay, Cuba. The Respondent remained at Guantanamo Bay, Cuba, until January 15, 2005.
“24. On June 28, 2004, the United States Supreme Court issued its opinion in Rasul v. Bush, 541 U.S. 466 (2004). In that case, the United State Supreme Court held that the habeas corpus statute, 28 U.S.C. § 2241, entitled the Guantanamo Bay detainees to challenge the validity of their detention. [541 U.S.] at 483. The Respondent read Rasul on his way to Cuba.
“25. On December 17, 2004, Barbara Olshansky, the Deputy Legal Director for the Center of Constitutional Rights sent a letter to the Honorable Gordon R. England, the Secretary of the Navy. The Respondent and his immediate supervisor, Lt. Colonel Randall Keys were sent copies of the letter.
“26. In her letter, Ms. Olshansky stated:
‘As you know, the United States presently acknowledges detaining approximately 550 individuals at the Guantanamo Bay Naval Base, Cuba. Approximately 63 of drose individuals have filed habeas corpus petitions with the D.C. district court. We intend to take any legal action necessary, including filing habeas petitions on behalf of the remaining detainees, in order to ensure that every detainee at Guantanamo has die opportunity to avail themselves of the decision in Rasul.
‘Accordingly, we are writing to request that you provide us with the names and other identifying information about each person held at Guantanamo whofse] identity has not yet been made known and who has not yet filed a petition for a writ of habeas coipus (“unidentified detainee” or “detainee”).’
“27. After Ms. Olshansky’s letter was received, the Respondent understood that the government’s response was to not release the requested information.
“28. The Respondent had strong feelings about a prisoner’s right to habeas coipus proceedings. When the Respondent was sixteen years old, his father, a nurse, was arrested and charged with 12 counts of murder for injecting patients with a letlial dose of Lidocaine. Later, the Respondent’s father was convicted and sentenced to death. The Respondent’s father’s death sentence was not carried out because of a pending habeas corpus action. In fact, the Respondent’s father’s habeas corpus proceeding remained pending until he died in prison of natural causes in August, 2010.
“29. For a period of three weeks, the Respondent contemplated what he could do to comply with the law and follow his orders.
“30. During that time, file Respondent failed to seek or obtain guidance regarding his conflict between his ethical duties and military duties. Pursuant to § 13, Rule 1.13 of JAG Instruction 5803.1C, the Respondent could have sought and obtained guidance, but did not. Additionally, the Respondent failed to seek or obtain a formal ethics opinion pursuant to § 10(b) of JAG Instruction 5803.1C. The Respondent also failed to seek or obtain an informal ethics opinion pursuant to § 12(a) of JAG Instruction 5803.1C. Further, at his court-martial, the Respondent testified that he could have gone to Lt. Col. Keys, General Hood, the Chief of Staff, the Inspector General, or a Congressperson regarding this issue. More over, at the hearing on this matter, the Respondent testified that he could have gone to Admiral Gouder or Admiral Hudson for guidance. Finally, the Respondent testified that he could have contacted the Disciplinary Administrator for guidance.
“31. From December 23, 2004, through January 4, 2005, Lt. Col. Keys was on Christmas leave and away from the office.
“32. During the evening hours on January 2, 2005, the Respondent returned to the staff judge advocate office and printed a list of detainees from the Joint Defense Information Management System from the secret computer. The list that the Respondent printed contained each detainee’s full name, their internment serial number, their countiy of origin, their countiy of citizenship, and odier identifying information including ethnicity, source identification number, and information regarding the detention or interrogation team assigned to each detainee. The list contained classified information.
“33. While contemplating what to do with the list, the Respondent maintained the list in a safe in the staff judge advocate’s office.
“34. The Respondent purchased a large Valentine’s Day card. The Respondent cut the list into strips and placed the strips into tire card. The Respondent did not sign the card. The only return address fisted was ‘GTMO.’ On January 14, 2005, the Respondent sent the card to Ms. Olshansky. Ms. Olshansky did not have a security clearance and was not authorized by the government to access detainee information.
“35. The Respondent knew that if he had the fist in his belongings it would be found when he was leaving the island because his belongings were subject to search.
“36. When Ms. Olshansky received the fist, she believed that it might be a hoax or a practical joke. She immediately contacted the federal judge handling the detainee litigation. The judge requested that the fist be secured from Ms. Olshansky. An agent came to Ms. Olshansky’s office, secured the fist, and provided it to the judge. The judge realized that it was an actual fist of detainees and should not have been released to Ms. Olshansky in that fashion. Thereafter, an investigation ensued.
“37. On March 3, 2006, the Respondent was interrogated and fingerprinted. Additionally, at that time, the Respondent provided writing samples.
“38. In August, 2006, the Respondent was charged in a three count complaint. The first charge alleged that the Respondent violated a lawful general regulation by wrongfully mailing classified secret information. The second charge alleged that the Respondent wrongfully and dishonorably transmitted classified documents to an unauthorized individual. The third charge alleged three different specifications, (1) that the Respondent made a print out of classified secret information with the intent to use the information to the injury of the United States or to the advantage of a foreign nation, (2) that the Respondent knowingly and willfully communicated classified secret information relative to national defense to a person not entitled to receive the information that could be used to injure die United States or to the advantage of a foreign nation, and (3) that the Respondent knowingly removed materials containing classified information without audiority and with the intention to retain such materials at an unauthorized location.
“39. On May 17, 2007, a court-martial consisting of senior officers convicted file Respondent of the crime of [1] violating a lawful general regulation by wrongfully mailing classified secret information, [2] wrongfully and dishonorably transmitting classified documents to an unauthorized individual, [3] knowingly and willfully communicating classified secret information relative to national defense to a person not entitled to receive the information that could be used to injure the United States or to the advantage of a foreign nation, and [4] knowingly removing materials containing classified information without authority and with the intention to retain such materials at an unauthorized location.
“40. The court-martial acquitted the Respondent of the most serious charge which was printing out the information with the specific intent to harm national security or to provide an advantage to a foreign government.
“41. On May 18, 2007, the Respondent was dismissed from the Navy and sentenced to serve six months confinement. The Respondent seived six months’ confinement in 2007.
“42. On August 8, 2007, counsel for the Respondent reported the Respondent’s convictions to the Disciplinary Administrator.
“43. On August 31, 2007, the Respondent submitted a clemency request. After reviewing the matters submitted in clemency, the Convening Authority approved the sentence.
“44. On September 17, 2007, Captain H.H. Dronberger wrote to the Disciplinary Administrator regarding the Respondent. In the letter, Captain Dronber-ger stated:
‘The Judge Advocate General permanently revoked Lieutenant Commander Diaz’ certification under Article 27(b) of the Uniform Code of Military Justice, 10 U.S.C. § 827(b), thereby disqualifying him from representing members of the Naval Service before any forum in the Department of tile Navy. The Judge Advocate General also revoked Lieutenant Commander Diaz’ authority to provide legal assistance and prohibited him from providing any other legal services or advice in any matter under the cognizance and supervision of file Judge Advocate General.
‘The Judge Advocate General found that Lieutenant Commander Diaz violated the “Rules of Professional Conduct of Attorneys Practicing Under the Cognizance and Supervision of the Judge Advocate General” by:
a. committing a criminal act that reflects adversely on Lieutenant Commander Diaz’ honesty, trustworthiness, and fitness as an attorney in other respects, and
b. revealing confidential information relating to representation of his client without his client’s consent.’
“45. On February 19, 2009, the United States Navy-Marine Corps Court of Criminal Appeals upheld the Respondent’s convictions and sentence. In so doing, the Court stated:
‘The appellant’s argument that taldng action for arguably pure and good motives excused his knowing violation of the law is nonsensical and dangerous. The Government, quoting an opinion by Justice Stevens and when he was serving in the 7th Circuit, succinctly summarized the flaw in the appellant’s logic. Justice Stevens observed that “[o]ne who elects to serve mankind by taking the law into his own hands thereby demonstrates his comiction that his own ability to determine policy is superior to democratic decision making.... [a]n unselfish motive affords no assurance that a crime will produce the result its perpetrator intends.’
“46. Thereafter, on July 15, 2010, the United States Court of Appeals for the Armed Forces considered the Respondent’s appeal. The United States Court of Appeals for the Armed Forces affirmed the lower court, concluding that ‘any error on the part of the military judge to assess and ultimately admit [the Respondent's proffer of motive evidence . . . was harmless.’
“CONCLUSIONS OF LAW
“47. Based upon the findings of fact, the decision of the Judge Advocate General, and Kan. Sup. Ct. R. 202, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 1.6(a) and KRPC 8.4(b), as detailed below.
“48. KRPC 1.6(a) provides:
‘A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b).’
The Respondent revealed confidential client information without authorization. If the Respondent disagreed with the actions taken by his client, the Navy, then the Respondent was duty bound to so inform those with decision making power within the Navy. The Hearing Panel believes that the Respondent could not publicly announce his disagreement, or his reasons therefor, as such a public disa-vowment would harm the interests of his client. The actions taken by the Respondent to disclose the confidential information being protected by his client violated his fiduciary responsibility to that client. Accordingly, the Hearing Panel concludes that the Respondent breached the trust of his client and violated KRPC 1.6(a).
“49. ‘It is professional misconduct for a lawyer to . . . commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.’ KRPC 8.4(b). In this case, tire Respondent committed four crimes. The Respondent violated a lawful general regulation by wrongfully mailing classified secret information. The Respondent wrongfully and dishonorably transmitted classified documents to an unauthorized individual. The Respondent knowingly and willfully communicated classified secret information relative to national defense to a person not entitled to receive the information that could be used to injure the United States or to the advantage of a foreign nation. And, the Respondent knowingly removed materials containing classified information without authority and with the intention to retain such materials at an unauthorized location. The crimes which tire Respondent was convicted of adversely reflect on tire Respondent’s trustworthiness. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 8.4(b).
“AMERICAN BAR ASSOCIATION
“STANDARDS FOR IMPOSING LAWYER SANCTIONS
“50. In making this recommendation for discipline, the Hearing Panel considered tire factors outlined by tire American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to he considered are the duty violated, the lawyer’s mental state, tire potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“51. Duty Violated. The Respondent violated his duty to the public to maintain his personal integrity.
“52. Mental State. The Respondent knowingly violated his duty.
“53. Injury. As a result of the Respondent’s misconduct, dre Respondent caused potential serious injuiy to the public.
“54. Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found tire following aggravating factor present:
“55. Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted tire Respondent to practice law in the state of Kansas in 1995. At the time of the misconduct, the Respondent has been practicing law for approximately 10 years.
“56. Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, tire Hearing Panel, in this case, found the following mitigating circumstances present:
“57. Absence of a Prior Disciplinary Record. The Respondent has not previously been disciplined.
“58. The Present and Past Attitude of the Attorney as Shown by His or Her Cooperation During the Hearing and His or Her Full and Free Acknowledgment of the Transgressions. The Respondent fully cooperated with tire disciplinary process. Additionally, the Respondent admitted the facts that gave rise to the violations.
“59. Previous Good Character and Reputation in the Community Including Any Letters from Clients, Friends and Lawyers in Support of the Character and General Reputation of the Attorney. The Respondent enjoys the respect of his peers and generally possesses a good character and reputation as evidenced by several affidavits received by the Hearing Panel.
“60. In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘4.22 Suspension is generally appropriate when a lawyer knowingly reveals information relating to the representation of a client not otherwise lawfully permitted to be disclosed, and this disclosure causes injury or potential injury to a client.
‘5.11 Disbarment is generally appropriate when:
(a) a lawyer engages in serious criminal conduct a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; . . .
(b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that serious adversely reflects on the lawyer’s fitness to practice.
‘5.22 Suspension is generally appropriate when a lawyer in an official or governmental position knowingly fails to follow proper procedures or rules, and causes injury or potential injury to a party or to the integrity of the legal process.’
“RECOMMENDATION
“61. The Disciplinary Administrator recommended that, based upon the Respondent’s convictions, the conclusions of the Judge Advocate General, and the conclusions of the military courts, the Respondent be disbarred. Counsel for the Respondent argued that the Respondent has been disciplined enough and that no further discipline should be imposed.
“62. The act of printing and sending classified and confidential information to an unauthorized person warrants significant discipline. The furtive nature of tire Respondent’s actions aggravate the malfeasance. Not only did the Respondent print the list which contained classified information from the secret computer, he also cut the list into pieces and placed the pieces into a Valentine’s Day card so that the package appeared innocuous. Further, the Respondent’s timing aggravates his conduct. The Respondent mailed the card tire day before he left the island so as to reduce his chance of facing consequences for his actions.
“63. The United States Court of Appeals for the Armed Forces also noted the Respondent’s method of disclosure:
‘. . . [The Respondent] copied classified material and sent it to a person not authorized to receive it. The clandestine method of disclosure—by sending it through the postal system cut up in a Valentine’s Day card—suggests drat [the Respondent] knew at the time his actions warranted concealment. His failure to adhere to presidential directives and departmental regulations, including those regarding classified information and for addressing differences of legal views within the Department, demonstrates that [the Respondent] was not legally permitted to disregard the classified nature of tire protected information.’
“64. Accordingly, based upon the findings of fact, conclusions of law, the conclusions of the Judge Advocate General, the conclusions of the military courts, and the Standards listed above, the Hearing Panel unanimously recommends that the Respondent be suspended for a period of three years. The Hearing Panel further recommends that the suspension be made retroactive to the date of his temporary suspension. Accordingly, the Hearing Panel recommends that the Respondent be immediately reinstated to the practice of law.
“6[5], Costs are assessed against the Respondent in an amount to be certified by the Office of the Disciplinary Administrator.”
Discussion
In a disciplinary proceeding, this court considers the evidence, the findings of the hearing panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, the discipline to be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Foster, 292 Kan. 940, 945, 258 P.3d 375 (2011); see Supreme Court Rule 211(f) (2011 Kan. Ct. R. Annot. 334). Clear and convincing evidence is “ ‘evidence that causes the factfinder to believe that “the truth of the facts asserted is highly probable.” ’ ” In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009) (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]). When the court assesses the existence of clear and convincing evidence, it refrains from weighing conflicting evidence, assessing witness credibility, or redetermining questions of fact. See In re B.D.Y., 286 Kan. 686, 699, 187 P.3d 594 (2008).
Respondent was given adequate notice of the formal complaint, to which he filed an answer, and adequate notice of both the hearing before the panel and the hearing before this court. He filed no exceptions to the panel’s final hearing report. The panel’s findings of fact are thus deemed admitted, and we adopt them. See Supreme Court Rule 212(c), (d) (2011 Kan. Ct. R. Annot. 352).
The evidence before the hearing panel establishes the charged misconduct of the respondent by clear and convincing evidence and supports the panel’s conclusions of law. We therefore also adopt the panel’s conclusions.
The only remaining issue is the appropriate discipline to be imposed. We have held that “[t]he panel’s recommendation is advisory only and shall not prevent the court from imposing a different discipline.” In re Harding, 290 Kan. 81, 90, 223 P.3d 303 (2010); Supreme Court Rule 212(f). At the hearing before this court, at which the respondent appeared, the office of the Disciplinary Administrator recommended that the respondent be disbarred. The respondent requested that no discipline be imposed beyond that assessed by the military courts. As referenced above, the hearing panel recommended that respondent be suspended from the practice of law for 3 years and that the suspension be made retroactive to the date of his temporary suspension.
We begin our analysis by recognizing that in apparent support of respondent’s position that the military courts have sufficiently disciplined him, he repeats an argument he made before those tribunals. Respondent essentially argues that while his actions were wrong his motive was virtuous. In short, he disclosed the information to protect the Guantanamo Bay detainees’ habeas corpus rights declared in the United States Supreme Court opinion of Rasul v. Bush, 542 U.S. 466, 124 S. Ct. 2886, 159 L. Ed. 2d 548 (2004). During the general court-martial proceedings, that tribunal excluded respondent’s motive evidence showing his purported honorable intent in disclosing the classified information. As noted by the hearing panel, the United States Navy-Marine Corps Court of Criminal Appeals affirmed, finding his motive argument “nonsensical and dangerous.” United States v. Diaz, No. 200700970, 2009 WL 690614, at °5 (N.M. Ct. Crim. App. 2009) (unpublished opinion).
The United States Court of Appeals for the Armed Forces found that while the motive evidence might be relevant to respondent’s charge of conduct unbecoming an officer, its exclusion was harmless error. It observed that supporting a harmlessness determination was respondent’s knowledge that his “actions warranted concealment.” United States v. Diaz, 69 M.J. 127, 137, 59 A.L.R. Fed.2d 701 (2010). An additional consideration supporting a harm lessness determination was the “absence in Rasul of any indication the Supreme Court intended its ruling to supersede in some manner counsel’s other legal and ethical obligations,” including his obligation to adhere to presidential and naval directives regarding the handling of classified information. 69 M.J. at 137.
According to the record before us, respondent was asked during his general court-martial proceedings why he chose to disclose the classified information surreptitiously. He replied, “Selfish reasons, I was more concerned with self-preservation, I didn’t want to get-make any waves and jeopardize my career.” When asked why he did not share with his superior officers his concerns about the Navy’s then-refusal to release the information to Ms. Olshansky, Diaz replied, “I was worried about the effect it would have on me. ... I wasn’t really to put—willing to put my neck on the line and jeopardize my career at the time. . . . [So], I did it anonymously.” On this latter point, the hearing panel held that “[I]f the Respondent disagreed with the actions taken by his client, the Navy, then the Respondent was duty bound to so inform those with decision malting power within the Navy.” The panel did not cite a KRPC provision in support of its holding. But subsection (b) of KRPC 1.13 (2011 Kan. Ct. R. Annot. 513), which sets out the rules for an attorney whose client is an organization, contains supportive language. It states:
“If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law which reasonably might be imputed to the organization, and is likely to result in substantial injury to the organization, the lawyer shall proceed as is reasonably necessary in the best interest of the organization. In determining how to proceed, the lawyer shall give due consideration to the seriousness of the violation and its consequences, the scope and nature of the lawyer’s representation, the responsibility in the organization and the apparent motivation of the person involved, the policies of the organization concerning such matters and any other relevant considerations. Any measures taken shall be designed to minimize dismption of the organization and the risk of revealing information relating to the representation to persons outside the organization. Such measures may include among others:
(1) asking for reconsideration of the matter;
(2) advising tliat a separate legal opinion on the matter be sought for presentation to appropriate authority in the organization; and
(3) referring the matter to higher authority in the organization, including, if warranted by the seriousness of the matter, referral to the highest authority that can act in behalf of the organization as determined by applicable law.” (Emphasis added.) 2011 Kan. Ct. R. Annot. 513-14.
We continue our discipline analysis by referring to the ABA Standards for Imposing Lawyer Sanctions. As the hearing panel pointed out, suspension is generally appropriate when, as here, “a lawyer knowingly reveals information relating to the representation of a client not otherwise lawfully permitted to be disclosed, and this disclosure causes injury or potential injury to a client.” ABA Standards, Section 4.22. And as the panel further pointed out, suspension is also generally appropriate when, as here, “a lawyer in an official or governmental position knowingly fails to follow proper procedures or rules, and causes injury or potential injury to a party or to the integrity of the legal process.” ABA Standards, Section 5.22. But here, we have much more.
Under ABA Standards, Section 5.11, disbarment is generally appropriate when:
“(a) a lawyer engages in serious criminal conduct, a necessaiy element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft. . . .; or
“(b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation tliat seriously adversely reflects on the lawyer’s fitness to practice.”
Respondent’s intentional actions—resulting in four felony convictions, 6 months’ actual confinement, and dismissal from the naval service—-undeniably qualify as serious criminal conduct under Section 5.11. And some of his criminal acts easily meet several of the specific “necessary elements]” for disbarment, e.g., theft—of his country’s classified information.
As the hearing panel additionally noted in its quotation from the United States Navy-Marine Corps Court of Criminal Appeals tliat reviewed respondent’s general court-martial, “ ‘One who elects to serve mankind by taking the law into his own hands thereby demonstrates his conviction that his own ability to determine policy is superior to democratic decision making.’ ” Diaz, 2009 WL 690614, at *5 (quoting United States v. Cullen, 454 F.2d 386, 392 [7th Cir. 1971]). Accordingly, respondent’s reviewing court later concluded that he “negatively impacted public trust in the fidelity of our military personnel but, more fundamentally, the appellant’s conduct strikes directly at core democratic processes.” (Emphasis added.) Diaz, 2009 WL 690614, at a6. We agree.
On this general issue of harm, the hearing panel acknowledged that in determining the appropriate level of respondent’s discipline, the ABA Standards call for considering as a factor “the potential or actual injury caused by the lawyer’s misconduct.” It correctly concluded that the respondent’s misconduct “caused potential serious injury to the public.” We independently observe that the particular information respondent disclosed about which detention or interrogation team was assigned to each detainee was labeled as classified. Diaz, 69 M.J at 133. That court concluded that if publicly disclosed, this and other information such as the detainee internment serial numbers and the source identification numbers also could “be used to the injuiy of the United States.” 69 M.J. at 133. In addition to potential injury to the public and the United States, we also recognize the possibility of serious injury to particular persons. Simply put, the disclosure of the classified information about which team was assigned to each detainee could increase the chances of their individual members being publicly identified. Given the nature of their work, such identification could put them at personal risk by any Guantanamo Bay detainee’s supporters around the world.
Based upon the number and nature of respondent’s violations and criminal convictions, the conclusions of the military courts, the decision of the Judge Advocate General permanently revoking respondent’s certification as a lawyer in the naval service, respondent’s admitted selfish reasons for the clandestine disclosure of classified information, and the standards listed above, we conclude disbarment is the appropriate sanction. A minority of this court would impose the lesser sanction of indefinite suspension.
Conclusion and Discipline
It Is Therefore Ordered that Matthew M. Diaz be disbarred from the practice of law in the state of Kansas, effective on the filing of this opinion, in accordance with Supreme Court Rule 203(a)(1) (2011 Kan. Ct. R. Annot. 280).
It Is Further Ordered that the respondent shall comply with Supreme Court Rule 218 (2011 Kan. Ct. R. Annot. 379).
It Is Further Ordered that the costs of these proceedings be assessed to the respondent and that this opinion be published in the official Kansas reports.
Beier, J., not participating.
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The opinion of the court was delivered by
Biles, J.:
All persons and entities owning real property in and around the City of Neodesha, Kansas, brought a class action against the owners of a former oil refinery, alleging groundwater and subsurface soil contamination caused by the now dismantled facility. A jury found in the defendants’ favor after a 17-week trial. But in posttrial proceedings, the district court decided it had made a mistake in submitting the strict liability claim to the jury, and it granted the plaintiff class judgment as a matter of law on its strict liability claim, setting the stage for a new trial over damages. BP filed this interlocutory appeal for relief from the order granting judgment on the strict liability claim and tire conditional order for new trial.
The parties dispute whether the abnormally dangerous activities test generally used in tort law to impose strict liability is applicable when the claim relates to water contamination. The district court concluded it does not because “Kansas law provides that strict liability applies to conduct involving contamination of water resources, because of the importance of clean, safe water.” And even if the abnormally dangerous activities test applied, the court held BP’s “remediation” activities were abnormally dangerous as a matter of law.
We hold that the district court should not have granted the class judgment as a matter of law. The abnormally dangerous activities tests under the Restatement of Laws were the appropriate standards to apply to the plaintiff class’ claims, and tíre jury decided tire question. We reverse the district court’s entry of judgment for the class on its strict liability claim, and we remand this matter to the district court with directions that the jury’s verdict be reinstated and final judgment entered for the defendants.
Factual and Procedural Background
Between 1897 and 1970, Standard Oil Company and its corporate successors, BP Corporation North America, Inc.; BP America, Inc.; BP Products North America, Inc.; Atlantic Richfield Co.; and BP America Production Co. (collectively BP), owned and operated an oil refinery near Neodesha. During that time, the refinery generated wastes and by-products, including chemicals and metals such as benzene, toluene, ethyl benzene, xylenes, polyaromatic hydrocarbons, arsenic, chromium, lead, and mercury. BP “has acknowledged its responsibility to address residual petroleum products attributable to the refinery’s operations” but it has denied habihty in this-litigation.
While the refinery was operational, the locations of its activities included: (1) the north site sludge pond, which was used for waste disposal; (2) die south site settling basins; (3) the “Tank Site” containing storage tanks and a pumping station; (4) an “Oil Separator Pond Site” that received storm water and captured oil from refinery drains; and (5) an industrial site that housed the refinery’s buildings. BP also admits petroleum products leaked or spilled onto the ground while the refinery operated, but it claims most refinery-related petroleum products that seeped into the ground and later spread beyond the former refinery property are attributable to an accident in the 1960’s when kghtning struck a storage tank and caused an explosion and fire. The class disputes this. Both the north and south sites are now considered “closed,” meaning no more remediation activities are planned and site monitoring will cease or has already ceased.
After the refinery finished operations in 1970, BP donated most of the property to the City through a quitclaim deed, which stated the conveyance was “as is” and acknowledged the refinery and surrounding property were used for gasoline production and storage. Most of the grounds are still owned-by the City, with portions reused for industrial development, while other areas are maintained as waste disposal sites or are vacant and unused. The City turned part of the site into an industrial park where class members Neodesha Plastics and Fiberglass Engineering leased facilities.
In 1980, BP met with the Neodesha mayor regarding city concerns after a welding spark ignited petroleum waste products that had seeped into a subsurface structure-that was part of the City’s water treatment facility, causing a fire. The City also expressed apprehension about an oily waste disposal pond and numerous sites of buried waste. BP subsequently began study and remediation activities. In 1981, BP-installed 17 monitoring wells. In 1983, BP installed another 13 monitoring wells and “capped” the north site sludge pond with 2 feet of clay. In 1984, BP began a semi-annual well sampling program. And in 1985, BP consolidated, capped, and installed a gas venting system in the south site settling basins.
In 1990, BP entered into a consent agreement with the Kansas Department of Health and Environment (KDHE), the state agency with jurisdiction over hazardous substance cleanups, in which BP agreed to undertake specific investigative, monitoring, and corrective actions. The consent agreement identifies four classes of priority pollutants and notes that one of those pollutants, benzene, was detected in groundwater samples. In 1991, BP began a remedial investigation to determine the presence and extent of groundwater contamination, which included installation of 31 additional monitoring wells. In 2000, BP installed a phase I air sparg-ing trench along the eastern and southern boundaries of the former tank site. It also removed 325 cubic yards of asphalt-like material from areas near the city ballpark. In 2002, BP implemented a phase II air sparging system that involved extraction wells to remove oil or light nonaqueous phase liquids (LNAPL) (refers to petroleum hydro carbon in its oil phase) from the groundwater. In 2003, 215 cubic yards of asphalt-like material were removed from the industrial site. According to a BP study, these activities removed 30,177 gallons of hydrocarbons, and benzene concentrations at some monitoring wells declined. BP cites this as evidence that its remediation activities successfully reduced contamination. The class disputed the effectiveness of those remediation efforts.
As a part of its case against BP, the class hired a hydrogeologist, Daniel B. Stephens, to review BP monitoring site data, conduct field investigations, and make recommendations regarding further clean-up and remediation activities for the contamination. In his report, Stephens concluded: (1) BP misrepresented and omitted information regarding historical operations and contamination sources; (2) BP presented biased environmental data that minimized tire contamination and area that overlies the groundwater contamination; (3) groundwater arsenic concentrations exceeded drinking water standards and arsenic was more likely than not reaching the Fall and perhaps Verdigris Rivers; (4) groundwater contamination was migrating away from the refinery in multiple directions, continually expanding the polluted areas; (5) distal dissolved contaminants that migrated in groundwater into the residential neighborhoods had not been contained; and (6) BP failed to consider commonly accepted and effective remedial alternatives in developing its corrective action study.
Stephens testified at trial how spilled oil reaches groundwater by moving through air-filled pore spaces in the soil, pushing the air out, and moving downward until it reaches groundwater. Once there, he explained, it tends to spread and float on the water table surface, eventually dissolving the pollutant chemicals in the oil into the water. The groundwater then spreads, carrying the contaminants. He further testified that these characteristics allow benzene to move easily through groundwater.
Regarding remedial activities, Stephens testified that although BP employed industry-recognized technologies, they were either implemented on too small a scale or used instead of a more expensive approach that would have been more effective. For example, Stephens described the “capping” of the north and south sites simply as waste entombment, meaning BP covered it up with the intent of leaving it in place. Stephens’ opinion was that the better approach would have been to dig out the contaminants and haul them to a hazardous waste site in a more remote area because those sites use ground liners to prevent migration and monitors to ensure the waste remains stable. Stephens also testified that the pump-and-treat system used by BP in the trench was implemented on too small a scale to remediate the entire site. And Stephens testified BP had been injecting sulfate into the groundwater to reduce benzene concentrations, but other chemicals and processes are more effective and would have reduced the contamination more quickly. Regarding the air sparging system, Stephens testified this technology was implemented prematurely because BP had not removed the oil or LNAPL first. Finally, Stephens testified BP was not monitoring all areas where the waste was likely to spread and had misrepresented that the contamination plume was stable.
The Court Proceedings
In March 2004, the City, individually and as class representative, filed this class action. In September 2006, the district court granted the plaintiffs’ motion for class certification. The class is defined as “[a]ll persons and entities who owned real property on or after March 19, 2004, which has been exposed to or otherwise suffered economic harm from the hazardous wastes released from the [BP] operations in and around Neodesha, Kansas.” The class brought numerous claims against BP, including: negligence; strict liability; nuisance; trespass; violation of K.S.A. 65-6203 (liability for accidental release or discharge of materials detrimental to water or soil); unjust enrichment; fraudulent concealment/fraud by silence; breach of fiduciary duty; and breach of contract, and it sought declaratory judgment relief.
Only the strict liability claim is before this court. Initially, the class asserted strict liability because it alleged that BP: (1) “created, transported and stored the BP Contamination at the BP Facilities for its own business purposes”; (2) “allowed the escape and release of, and failed to confine, the BP Contamination from the BP Facilities;” and (3) committed “misconduct in the transportation, storage and treatment of the BP Contamination and its operation of the BP Facilities.” The strict liability claim is founded in tort and does not assert any basis for liability under any statute.
Before trial, BP moved for summary judgment on the strict liability claim on two grounds. First, BP argued the 10-year statute of repose under K.S.A. 60-513(b) barred any strict liability claim arising from tire refinery’s operations or resulting contamination because it had expired on those activities long ago. Second, BP contended the 2-year statute of limitations from K.S.A. 60-513 barred any claim for damages accruing before May 19, 2002. The class disputed both claims. The class argued that it was challenging BP’s current conduct, not activities barred by the statutes of repose or limitations, because BP had assumed “ Tull responsibility’ for the current management of the refinery wastes and [is] currently engaged in that activity.” The class also argued that BP was es-topped from asserting the statutes of limitations and repose defenses because it had assured the class it was protecting the community.
The district court granted BP partial summary judgment. The court held that the 10-year statute of repose under K.S.A. 60- 513(b) barred claims “relating to the discontinued refinery operations.” But the court refused to grant summary judgment as to whether BP was strictly liable for its “management of the remediation project.” The court did not articulate what activities constituted the “management” exposure for BP, nor did the court define what was encompassed by the “remediation project” at issue. The court also declined to grant summary judgment based on BP’s statute of limitations defense, because questions of fact remained as to whether BP was estopped from asserting that defense “regarding any current conduct and injuries, but not for refineiy operations.”
With the surviving strict liability claims going forward, the parties disputed what analytical test applied to those claims. BP argued that this court had adopted the abnormally dangerous activities test from the Restatement (Second) of Torts § 520 (1976) for all strict liability claims in Williams v. Amoco Production Co., 241 Kan. 102, 114-15, 734 P.2d 113 (1987), and that it controlled. As explained in the Williams case, an activity may be determined to be abnormally dangerous by considering the following factors: (1) existence of a high degree of risk of some harm to the person, land, or chattels of others; (2) likelihood that the harm that results from it will be great; (3) inability to eliminate the risk by the exercise of reasonable care; (4) extent to which the activity is not a matter of common usage; (5) inappropriateness of the activity to the place where it is carried on; and (6) extent to which its value to the community is outweighed by its dangerous attributes. 241 Kan. at 114 (reciting the Restatement [Second] of Torts § 520).
But the class argued that Kansas caselaw applied a special, much simpler, rule for water pollution that imposes strict liability for any activity causing contamination, regardless of whether the defendant engaged in an abnormally dangerous activity. For that proposition, the class relied on a Court of Appeals decision, Koger v. Ferrin, 23 Kan. App. 2d 47, 52-55, 926 P.2d 680 (1996). The Roger court, while considering liability for a prairie fire, commented in dicta that Kansas caselaw “exempted” water contamination claims from the traditional strict liability analysis adopted in Williams “because of tire importance of clean, safe water.” 23 Kan. App. 2d at 55. In denying BP summary judgment, the district court noted that it found Roger “instructive.”
In August 2007, the 17-week trial began. At the close of BP’s evidence in its defense, the class moved for a directed verdict on the strict liability claim, arguing again that groundwater pollution was a per se strict liability offense as a matter of law; that BP had admitted the groundwater was polluted, the pollution had spread, and the contamination area had grown; and that BP’s experts conceded the groundwater became contaminated after the refinery closed. BP disputed this, arguing it admitted only that refinery operations contaminated the groundwater—not that its remediation activities had contributed to or failed to contain the contamination. The district court overruled the class’ motion, so the strict liability claim was submitted to the jury.
Instruction 4 explained to the jury that the plaintiff class claimed that “it sustained damages stemming from Defendants’ failure to clean up tire refinery contamination in Neodesha” and then later-advised the jury that the plaintiff class claimed “Defendants are strictly fiable to the Plaintiff Class/or their clean up of the refinery contamination.” (Emphasis added.) The instruction does not acknowledge or explain its internal inconsistency, i.e., defendants’ alleged “failure to clean up” the contamination and “their clean up” of contamination. Instruction 9 was entitled “Strict Liability Claim” and stated:
“A person who engages in an abnormally dangerous activity is strictly liable for harm to tire property of another resulting from the activity, although that person exercised the utmost care to prevent the harm. To establish liability based upon strict liability, the Plaintiff Class must prove Defendants’ remediation constituted an ‘abnormally dangerous activity’ as it relates to the Class.
“Kansas law provides that strict liability applies to conduct involving contamination of water resources, because of the importance of clean, safe water.
“In determining whether Defendants’ remediation is an abnormally dangerous activity, the following factors are considered:
“(1) Existence of a high degree of risk of some harm to the person, land or chattels of others from the activity;
“(2) Likelihood that the harm that results from it will be great;
“(3) Inability to eliminate the risk by the exercise of reasonable care;
“(4) Extent to which the activity is not a matter of common usage;
“(5) Inappropriateness of the activity to the place where it is carried on; and
“(6) Extent to which the value of the activity to the community is outweighed by any dangerous attributes.
“No single factor determines whether an activity is abnormally dangerous and you may assign whatever weight you decide is appropriate to each factor. In other words, the Plaintiff Class must prove that the remediation created a risk that was so unusual, either because of its magnitude or because of the circumstances surrounding it, as to justify the imposition of strict liability for the harm that results from it even though it was carried on with all reasonable care.
“The Plaintiff Class must prove that class-wide, real property suffered physical injury as a result of Defendants’ abnormally dangerous activity.
“The Plaintiff Class has the burden to prove strict liability by a preponderance of the evidence. You may not find that the Defendants are strictly hable for the operation of the former refinery.” (Emphasis added.)
Nowhere within the jury instructions was the jury advised what conduct was claimed to constitute either the “clean up” or the “remediation” comprising the class’ strict liability claim. But during closing arguments, class counsel characterized the strict liability claim as “the concept of it’s there and it’s yours, you are hable.”
The juiy returned a defense verdict in BP’s favor on all counts, including strict liability. The verdict form for the strict liability claim simply asked: “Do you find that the Defendants are hable to the Plaintiffs for strict liability?” After answering “[n]o,” the juiy was not required to address related questions pertaining to plaintiff subclasses, the tolhng of the statute of limitations, or damages.
In posttrial proceedings, the class moved for a new trial pursuant to K.S.A. 60-259(a) and judgment as a matter of law pursuant to K.S.A. 60-250, raising numerous issues, including that the district court improperly instructed the jury on strict liability. As to that point, the class continued to argue that water contamination is a strict liability offense as a matter of law without application of the abnormally dangerous activity test and that the jury should not have been instructed to determine whether BP met that test’s criteria. In an 85-page decision, the district court denied the class’ motions on all grounds—except the strict liability claim. As to that, it granted judgment as a matter of law in favor of the plaintiff class, certified its ruling for interlocutory appeal, and “conditionally” granted a new trial for the calculation of damages.
The district court based its ruling on its posttrial determination, “after a vast amount of thought and research,” that the jury instruction on the strict liability claim “was clearly erroneous under Kansas law.” The district court held that our caselaw had “very carefully left strict liability for water pollution in place” as it existed before this court’s 1987 decision in Williams adopting the abnormally dangerous activity test from the Restatement (Second) of Torts §§ 519 and 520 (1976). The district court relied on Roger for its decision, as well as a case from this court dealing with nuisance law, United Proteins, Inc. v. Farmland Industries, Inc., 259 Kan. 725, 915 P.2d 80 (1996). The district court then held: “Quite simply strict liability was not a question of fact but a question of law, and Plaintiffs were and are entitled to judgment as a matter of law. The jury never should have been instructed on strict liability, only the damages resulting therefrom.”
As to its decision to “conditionally” grant the class a new trial on the damages claim if the entry of judgment in the class’ favor was affirmed on interlocutory appeal, the district court simply explained:
“Plaintiffs have moved for judgment as a matter of law on the discrete issue of Defendants’ strict liability for the spread of the poEution. Defendants have admitted to the existence of the pollution and their responsibility for the pollution. The only material issues of fact on Count II to be submitted to tire jury concern whether Defendants were wiEful, wanton, fraudulent or malicious, and the damages as a result of the contamination. After possible Interlocutory AppeEate Review pursuant to K.S.A. 60-2102(c) Count II should be set for re-trial in which the jury should be instructed that liability is no longer an issue in the case.”
Interlocutory Appeal
BP filed a timely motion with the Court of Appeals seeking permission to pursue this interlocutory appeal, raising two issues: (1) whether the district court erred by granting judgment as a matter of law on the strict liability claim; and (2) whether the district court erred by conditionally granting a new trial. The class opposed the interlocutory appeal on both questions. As to the first, the class argued review did not satisfy the criteria for interlocutory appeal. On the second issue, the class argued it impermissibly extended the scope of the question certified by the district court. The Court of Appeals granted the appeal on both.
This court transferred the case from the Court of Appeals on its own motion pursuant to K.S.A. 20-3018(c). In the meantime, the class filed a notice of cross-appeal that sought review of 19 other issues predominately unrelated to the strict liability determination. This court dismissed that cross-appeal. We also determined the class’ challenge to BP’s interlocutory appeal was jurisdictional in nature and allowed the parties to brief the jurisdictional question for oral argument and later determination as a part of our decision on the merits. We conduct that analysis next.
Analysis
Is the Interlocutory Appeal Proper?
The class argues the Court of Appeals erred by granting review of BP’s interlocutory appeal.
Standard of Review
This court reviews the decision to grant an interlocutory appeal for an abuse of discretion. Williams v. Lawton, 288 Kan. 768, 782, 207 P.3d 1027 (2009). Judicial discretion is abused if judicial action is: (1) arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based. State v. McCullough, 293 Kan. 970, 980-81, 270 P.3d 1142 (2012).
Discussion
The statute in force when BP sought its interlocutoiy appeal provided:
“When a district judge, in making in a civil action an order not otherwise ap-pealable under this section, is of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, the judge shall so state in wilting in such order. The court of appeals may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within 10 days after the entry of the order under such terms and conditions as the supreme court fixes by rule.” K.S.A. 60-2102(c).
This statute requires that an interlocutory appeal must: (1) involve a controlling question of law; (2) relate to an issue on which there is a substantial ground for difference of opinion; (3) materially advance the litigation’s ultimate termination; and (4) be timely filed. Lawton, 288 Kan. at 782.
In recognizing the legally debatable nature of its posttrial decision, the district court certified the following question for interlocutory appeal: “Did the trial court err in granting the Plaintiffs judgment, as a matter of law on their strict liability claim, after the jury’s verdict for the Defendants?” But in granting the appeal, the Court of Appeals expanded its review at BP’s request to consider whether the district court erred by: (1) granting judgment as a matter of law on the strict liability claim; and (2) conditionally granting a new trial. The class argues the first issue does not satisfy the criteria for an interlocutory appeal and tire second issue im-permissibly extends the issue certified by the district court. We consider both arguments next.
As to the first question, we find little basis for claiming that the specific issue certified by the district court is inappropriate for interlocutory appeal. It meets each of the criteria spelled out by statute and caselaw. It is purely a question of law, for instance, whether Kansas recognizes the strict liability test articulated in Williams in water contamination cases. And there appears to be at least some caselaw conflict, which would reflect a difference of opinion as to what is the controlling law. Compare Williams with Roger. Even the district court changed its mind on this same legal question during the proceedings.
And once that decision is put to rest, we would next determine whether the district court’s grant of judgment as a matter of law was proper. As to this, the district court ruled there were no factual disputes, but BP argues the contrary and contends those factual disputes were resolved in its favor by the jury’s verdict. Whether facts are in dispute and, if so, whether those facts were resolved by the jury are appropriate issues for interlocutory appeal under the circumstances of this case. See Brown v. United Methodist Homes for the Aged, 249 Kan. 124, 126, 815 P.2d 72 (1991) (question of law exists when no evidence is presented on an issue or when the evidence is undisputed and the minds of reasonable persons may not draw differing inferences or arrive at opposing conclusions).
If BP is correct and we hold that the district court was mistaken, it will materially advance the litigation’s conclusion because the only remaining question will be the propriety of the conditional grant of a new trial. And if we decide that ruling was error or the issue is moot, the litigation will be reduced to final judgment in favor of defendants. The class seemingly concedes the first issue meets our criteria when it notes in its briefing that the district court’s certified question is a pure legal issue that is “colorably proper” for interlocutory appeal.
We hold drat fire Court of Appeals did not abuse its discretion in granting review of BP’s first issue because: (1) it involves a controlling question of law; (2) it relates to an issue on which there is ground for a substantial dispute; (3) deciding the question materially advances the litigation’s termination because it will determine whether the case can reach final judgment; and (4) the class does not dispute that this appeal was timely filed.
We must next determine whether it is proper to review the trial court’s conditional new trial order, which the Court of Appeals included in its order granting the appeal. This court recently decided a similar issue in another interlocutory appeal, which we find persuasive.
In Lawton, the district court granted a new trial after finding the defendant in a medical malpractice trial prejudiced when it was discovered the jury averaged each juror’s negligence assessment and agreed to the resulting quotient as the verdict. The district court certified three issues for interlocutory appeal: (1) Was it error to admit the plaintiff s expert’s testimony? (2) Was it error to sua sponte recall the jury? and (3) Did the judge commit error by questioning tire jurors without allowing attorney participation? The Court of Appeals broadened the scope of those issues to include whether defense counsel committed error while interviewing ju rors and whether the trial court erred by granting a new trial. On appeal to this court, plaintiff argued the Court of Appeals exceeded its authority by expanding the interlocutory issues. We disagreed and held that a Kansas appellate court has pendent or supplemental interlocutory jurisdiction—if a certified issue is “inextricably intertwined” with other issues that do not meet K.S.A. 60-2102’s criteria for an interlocutory appeal. 288 Kan. at 785-87. The obvious purpose of the exception, we held, is to allow meaningful review of the certified issue and promote judicial economy. With that as our test, we affirmed the inclusion of the other issues. 288 Kan. at 785-87.
In this case, BP argues the trial court lacked authority to enter a conditional new trial order when approving an interlocutory appeal. This is an issue requiring statutory interpretation, which is a question of law subject to unlimited review. Double M Constr. v. Kansas Corporation Comm'n, 288 Kan. 268, 271, 202 P.3d 7 (2009). Moreover, the second issue presented is inextricably intertwined with the issue certified by the district court because if the conditional order is left intact, it could potentially negate any ruling by this court that the district court’s entry of judgment as a matter of law was improper. After all, if the trial court erred in ordering a new trial for any reason other than sufficiency of the evidence, a new trial is inappropriate. See K.S.A. 60-250(a).
We hold that the Court of Appeals properly exercised pendent jurisdiction to include the district court’s conditional order for a new trial as part of this appeal. Turning now to the merits, we consider whether the trial court erred by granting judgment as a matter of law against BP on the strict liability claims.
Was Judgment as a Matter of Law AppropriateP
The threshold question in this case is whether the abnormally dangerous activity test applies to the strict liability claims in tort alleging water contamination. This is a question of law subject to unlimited review. See Scott v. Hughes, 294 Kan. 403, Syl. ¶ 4, 275 P.3d 890 (2012).
Does the Abnormally Dangerous Activity Test Apply?
The class argues that a defendant is per se liable for any water contamination. The district court ultimately accepted that argument in granting a judgment against BP after the jury returned a verdict in BP’s favor. We disagree with the district court and hold that strict liability claims in tort alleging water contamination are governed by the abnormally dangerous activity test from the Restatement (Second) of Torts §§ 519 and 520. The development of our strict liability caselaw leads us quite naturally to this conclusion, despite some language to the contrary in Roger.
Kansas courts have recognized strict liability theory since the late 1800s. See, e.g., K C. St. J. & C. B. Bld. Co. v. Simpson, 30 Kan. 645, Syl. ¶ 1, 2 P. 821 (1883) (common carrier may contract away strict liability imposed by common law). And from that time forward, our court’s analysis has kept pace with developments in this area of the law. Modem courts define strict liability as liability “imposed on an actor apart from either (1) an intent to interfere with a legally protected interest without a legal justification for doing so, or (2) a breach of a duty to exercise reasonable care (i.e., actionable negligence).” Williams v. Amoco Production Co., 241 Kan. 102, Syl. ¶ 7, 734 P.2d 1113 (1987).
In 1911, this court first considered strict liability in the context of polluted groundwater. In Gilmore v. Salt Co., 84 Kan. 729,115 P. 541 (1911), a landowner claimed damage to his land after piles of refuse salt deposited over several years on the defendant’s land where mined rock salt had dissolved in the rain and was carried by percolation onto Gilmore’s land, injuring vegetation and imparting a “saltish” taste to his spring water. The district court declared the case was not actionable, but this court disagreed. We held that “one has no right to deposit upon his land refuse matter of any sort, whether in itself offensive or not, by which the water underlying his neighbor’s land may be so affected through percolation as to be unfitted for its ordinary use, or injurious to vegetation.” 84 Kan. at 733. By this holding, our court signaled that the case turned on whether a landowner had a “right to cause the water under his neighbor’s land to be impregnated with a harmful substance.” 84 Kan. at 731. In other words, was there a right to pollute? We held that it was a “familiar doctrine that one must so use his property as not to injure his neighbor.” 84 Kan. at 733. The case was remanded for a new trial, which ultimately ordered the defendant to cover the salt pile to prevent it from dissolving in the rain, and that remedy was deemed adequate on later appeal. Gilmore v. Salt Co., 92 Kan. 18, 139 P. 1169 (1914).
Six years after the first Gilmore decision, in Helms v. Oil Co., 102 Kan. 164, 169, 169 P. 208 (1917), a refinery pollution case, this court adopted the general principle of liability without fault articulated by Lord Blackburn of the House of Lords from the English case of Fletcher v. Rylands L.R. 1. Exch. 265 (1866), aff'd Rylands v. Fletcher, L.R. 3 H.L. 330 (1868). In Rylands, water from the defendants’ man-made reservoir broke through the disused and filled-up shaft of an abandoned coal mine. The water flooded the connecting mine belonging to the plaintiff. The defendants were held hable on the theory that they had made a “non-natural use” of their land, which created an increased danger to others. See Pullen v. West, 278 Kan. 183, 190, 92 P.3d 584 (2004) (describing Rylands). Rylands is widely considered to be among the first English common-law cases to hold that abnormally dangerous activities confer strict liability upon the actor. See Prosser and Keeton, Law of Torts § 78, at pp. 545-49 (5th ed. 1984) (discussing Rylands as the leading case from which the abnormally dangerous activity test developed).
In Helms, we addressed a nuisance action against a neighboring oil refinery in which the plaintiff alleged damages caused by oil and poisonous substances that flowed onto tire neighboring land, damaging the land and injuring some cows. The defendant argued that it operated a lawful business and the plaintiff could not recover without first establishing negligence. Relying on the Rylands doctrine, the Helms court held the refinery was a nonnatural land use and that the refinery could not continue harming the plaintiff, even if the refinery business was lawful. The Helms court stated:
“The oil that was treated by the defendant at the refinery was obtained elsewhere, and its operations had no connection with the products of the land or the development of its natural resources. Taking the averments of the plaintiff, it is clear that the quantity of oil, refuse, fumes, and gases that were thrown upon plaintiff s land constituted an unreasonable use and a nuisance. However useful and lawful the business in itself is, die defendant cannot be permitted to carry it on in such a way as to cause material injury to the plaintiff. When the injurious substances were thrown upon plaintiffs land in the excessive quantities and in the manner set forth in plaintiffs petition, the defendant’s use of its property became both unreasonable and unlawful.” (Emphasis added.) 102 Kan. at 168-69.
The Helms court then cited as additional authority the first Gilmore decision and other earlier cases from Kansas and elsewhere that addressed various continuing land uses constituting nuisances to neighboring landowners through pollution of air and water. 102 Kan. at 169. And for nearly 70 years, Kansas courts applied the Rylands doctrine until Williams was decided in 1987.
In making its per se strict liability claim against BP, the class cites Helms, as well as a variety of -pre-Williams decisions by this court: Berry v. Shell Petroleum Co., 140 Kan. 94, 100, 33 P.2d 953 (1934) (oil company stricdy Hable for salt water escaping from refinery operation, citing Rylands and Gilmore); Klassen v. Creamery Co., 160 Kan. 697, 706, 165 P.2d 601 (1946) (daily farm strictly liable for pollution escaping into neighboring farm’s stream and underground water supply, citing Rylands); and Atkinson v. Herington Cattle Co., Inc., 200 Kan. 298, 307-08, 436 P.2d 816 (1986) (cattle feeder strictly liable for pollution of dairy farm’s water supply, citing Berry). These post-Helms cases all involved water contamination and recognized that the strict liability theory being applied arose from Rylands. We would add to that list Lee v. Mobil Oil Corporation, 203 Kan. 72, 74, 452 P.2d 857 (1969) (when harm results from intervention of an unforeseeable force of nature, such as might happen with a flood, strict liability does not fall on the defendant.).
Each of these cases, of course, predates Williams, 241 Kan. 102, Syl. ¶¶ 8,9, in which we adopted the abnormally dangerous activity doctrine from the Restatement (Second) of Torts §§ 519 and 520. But § 519, which articulates the test imposing strict liability for abnormally dangerous activities, is widely recognized as descending from Rylands. See Prosser and Keeton, Law of Torts § 78, at pp. 545-55; Shapo, Responsibility for Injuries: Some Sketches, 100 Nw. U. L. Rev. 481, 486 (2006). So it is not entirely certain that the strict liability caselaw predating Williams treated water contamination differently as the class now argues and the district court held. The real question seems to be whether Williams meant to “exempt” the type of water contamination case we have here from the abnormally dangerous activity strict liability test it adopted, as argued by plaintiffs and suggested by the Court of Appeals in Roger.
In Williams, the plaintiff landowners claimed natural gas from defendants’ gas wells entered their irrigation water derived primarily from the aquifers, slowing the pumping system and damaging their crops. The court specifically defined the issue regarding strict liability to be “whether strict liability applies to the escape of natural gas from Amoco’s natural gas well into underground water formations and subsequently into [plaintiff landowners’] irrigation water.” 241 Kan. at 112. And the Williams court acknowledged that the strict liability doctrine for abnormally dangerous activities derived from Rylands, which was initially adopted by this court in Helms and applied in Atkinson, KLassen, and Berry—all water contamination cases, as mentioned above. 241 Kan. at 113-14.
The Williams court chose to expressly adopt the abnormally dangerous activity doctrine articulated in §§ 519 and 520 of Restatement (Second) of Torts and “utilize its provisions to aid in determining whether natural gas is an abnormally dangerous substance under the circumstances of the case.” (Emphasis added.) 241 Kan. at 115. And after applying those provisions, the court determined that drilling and natural gas well operation were not abnormally dangerous activities. In addition, tire court held that the drilling and operation of natural gas wells was not a nonnatural use of the land, as discussed in the Ryland line of cases. 241 Kan. at 115.
Of importance to this case, Williams noted in its application of the abnormally dangerous activity doctrine from the Restatement §§ 519 and 520 the contrast the court saw between the escape of natural gas and Berry’s salt water contamination. 241 Kan. at 115-16. The Williams court stated:
“Unlike the salt water which escaped from the defendant’s well in Berry, natural gas is not a ‘harmful agent’ once it is raised to the surface of the earth. Nor does natural gas ruin drinking water, destroy vegetation, or injure livestock. Moreover, natural gas is not a substance which is known to be ‘mischievous’ if it gets on the property of others.” 241 Kan. at 116.
This language may have been what led the Roger panel to perceive some intent to exclude water pollution from the scope of the Restatement’s abnormally dangerous activity test. But when taken in context, the reference to Berry is plainly part of the Williams court’s discussion of the Restatement’s test as a means of describing circumstances that might be more likely to be considered an abnormally dangerous activity, in contrast to the natural gas well drilling and operation at issue in Williams. And because Williams did not explicitly define all instances in which the Restatement’s test now governs strict liability in Kansas, it has been argued that Kansas continues to preserve other forms of strict liability. See Koger v. Ferrin, 23 Kan. App. 2d 47, 53-54, 926 P.2d 680 (1996); but see Greene v. Product Mfg. Corp., 842 F. Supp. 1321, 1326 (D. Kan. 1993) (rejecting argument that Kansas recognizes strict liability with abnormally dangerous activities and in a second form when a defendant brings a harmful substance onto its property and allows it to escape). We consider those cases next.
In Roger, property owners sued neighboring ranchers for damages caused by a fire originating on the ranchers’ property when a burning ban was in place because of dry and windy conditions. The defendants did not set the fire. An employee simply noticed smoke rising on ranch property, took measures to put it out, and then left, believing the fire had been extinguished. But the fire reignited or continued to spread to the neighbor’s property. The plaintiffs argued that putting out the fire was an inherently dangerous activity and that the defendants were strictly hable for “failing to take all means possible to extinguish” it. 23 Kan. App. 2d at 52. They argued liability’ arose from Rylands.
The Court of Appeals disagreed with plaintiffs and applied the abnormally dangerous activities test used in Williams to deny plaintiffs relief; but in the process the court attempted to distinguish Atkinson, Berry, and Rlassen, because they were water law cases. Thus, it stated in dicta that precedent was limited to the absolute nuisance theory. 23 Kan. App. 2d at 53-54. In doing so, the Koger court seemingly acknowledged an exception for cases involving water contamination. This, at least, is how the district court in this case interpreted Roger when it read it to mean that Williams “very carefully left strict liability for water pollution in place.”
In Greene, the United States District Court for the District of Kansas interpreted our strict liability caselaw differently. And unlike the Roger claim, the claim in Greene specifically involved recovering costs for cleaning up groundwater pollution caused by the defendant’s metal fabrication business. The defendant argued two forms of strict liability arising from Ryland existed, but the federal court held that there was but one strict liability rule in Kansas, stating:
“Our reading of Williams indicates that the Kansas Supreme Court intended to use Sections 519 and 520 to analyze claims involving abnormally dangerous substances and activities. While it did not repudiate Rylands, it recognized that the Restatement embodies the modern concept of strict liability and provides a series of factors to help guide the determination of when a substance or an activity is abnormally dangerous.” 842 F. Supp. at 1326.
The Greene court then examined whether the defendant’s metal fabrication business was an abnormally dangerous activity. 842 F. Supp. at 1327. We agree with Greene’s interpretation of die scope of our Williams decision.
Therefore, as adopted and discussed in Williams, 241 Kan. 102, Syl. ¶¶ 7, 8, the general rule imposing strict liability in tort law for abnormally dangerous activities stated in the Restatement (Second) of Torts § 519 provides: (a) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land, or chattels of another resulting from the activity, although he or she has exercised the utmost care to prevent tire harm; and (b) this strict liability is limited to die kind of harm the possibility of which malees the activity abnormally dangerous.
In determining whether an activity may be determined abnormally dangerous, the Restatement (Second) of Torts § 520 sets forth the following factors: (a) existence of a high degree of risk of some harm to the person, land, or chattels of others; (b) likelihood that the harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of common usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which its value to the community is outweighed by its dangerous attributes.
The progression of our caselaw cannot be ignored by attempting—as the class does—to rely on Gilmore and other early water contamination cases that predate Williams to create a second form of strict liability apart from the test adopted in Williams. By 1917, Kansas clearly embraced the Rylands doctrine, which was the precursor to the modem concept of the abnormally dangerous activity doctrine in the Restatement §§ 519 and 520. By 1987, this court in Williams adopted that concept in the form of the Restatement’s abnormally dangerous activity test. That adoption was reaffirmed in Falls v. Scott, 249 Kan. 54, 60-61, 815 P.2d 1104 (1991). The district court’s order failed to recognize this progression, in part, because of the distraction created by the dicta in Roger. We hold that the class’ strict liability claims in tort alleging water contamination are governed by the Restatement’s abnormally dangerous activity test. Language to the contrary in Roger is disapproved.
We must now address the district court’s holding granting the class judgment as a matter of law on the strict liability claim.
Standard of Review
Appellate courts apply the same standard as trial courts when considering whether judgment as a matter of law is proper under K.S.A. 60-250. National Bank of Andover v. Kansas Bankers Surety Co., 290 Kan. 247, 267, 225 P.3d 707 (2010).
“ ‘ “When ruling on a motion for directed verdict, the trial court is required to resolve all facts and inferences reasonably to be drawn from die evidence in favor of the party against whom the ruling is sought. Where reasonable minds could reach different conclusions based on the evidence, the motion must be denied. A similar analysis must be applied by an appellate court when reviewing the grant or denial of a motion for directed verdict.” ’ [Citations omitted.]” Smith v. Kansas Gas Service Co., 285 Kan. 33, 40, 169 P.3d 1052 (2007).
The inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); see, e.g., Smith, 285 Kan. at 40 (“In other words, a motion for judgment as a matter of law must be denied when evidence exists upon which a jury could properly find a verdict for the nonmoving party.”)'
Discussion
Presenting alternative arguments, BP first argues it was entitled to judgment as a matter of law on the strict liability claims—instead of the class—because all the evidence supports its position that it did not engage in an abnormally dangerous activity. But if this court disagrees and finds there is a factual dispute, BP argues the jury’s verdict resolved that dispute and the trial court erred by overturning it. We begin by clarifying the substance of the plaintiffs’ strict liability claims.
The jury was instructed to determine whether BP’s “remediation” constituted an abnormally dangerous activity. This focus on remediation—as opposed to BP’s actions while operating the refinery—reflects adherence to the trial court’s pretrial summary judgment ruling that K.S.A. 60-513(b)’s 10-year statute of repose barred all strict liability claims relating to the discontinued refinery operations. But the jury instructions were less than clear. Instruction 4 first told the jury the class was seeking damages stemming from BP’s “failure to clean up the refinery contamination”; but it then also instructed that the class claimed BP was strictly fiable “for their clean up of the refinery contamination.” In Instruction 9, the jury was told that “Kansas law provides that strict liability applies to conduct involving contamination of water resources, because of the importance of clean, safe water”; but then the jury was also told that the class “must prove Defendants’ remediation constituted an ‘abnormally dangerous activity’ as it relates to the Class.”
BP correctly argues that tire posture of this case, at least as it relates to BP’s pre-1970’s conduct, is similar to United Proteins, Inc. v. Farmland Industries, Inc., 259 Kan. 725, 915 P.2d 80 (1996), in which the trial court held that strict liability and negligence claims for contamination of the plaintiffs aquifer with a chemical were barred by the statute of repose. It then limited the plaintiff s recovery to harm caused by the defendant’s actions during the limitations period and later entered judgment for the plaintiff under its trespass and nuisance theories. On appeal, this court reversed and entered judgment for the defendant. In recognizing the seemingly harsh result, this court stated:
“It is essential to first realize and understand that while this might have been a relatively simple case of negligence or strict liability, neither of those theories were available because of UPI’s delay in filing. With those two potentially winning theories lost by UPI’s untimeliness, UPI was left in the unenviable position of pursuing theories which alleged Farmland had engaged in some tortious conduct within the limitations period.” 259 Kan. at 728.
Like the plaintiff in United Proteins, the plaintiff class here is in the unenviable position of pursuing a strict liability theory related to BP’s conduct after the refinery closed. This explains why the class argues now it was BP’s “control over and maintenance of the remediation program” that caused the spread of the groundwater pollution. And a central feature of this claim is the belief that BP did not do enough to clean up the contamination, even though BP knew that the contaminants would inevitably reach the groundwater if not fully removed. This is also reflected in the class’ opposition to BP’s summary judgment motion, in which the class argued:
“Defendants’ management of the pollution has been to leave massive amounts of pollution in the soil and groundwater—thereby saving money—and let nature take its course. The substantially certain result, known since at least the 1980’s, of leaving the pollution in the ground was that it would, and has, spread into neighborhoods and beneath schools.”
This theme carried forward in the appellees’ brief, in which the class stated that “[t]o save itself money, BP chose not to remove that pollution, but to leave it where it was, knoioing it would spread with the movement of the groundwater unless BP chose to do something to stop it.” (Emphasis added.)
It is also worth emphasizing that the class is not arguing on appeal that BP is strictly liable for the actions BP took while reme-diating. The class takes issue with BP’s failure to do more. The jury instructions seemed to contradict this position when they advised the jury that the class claimed BP should be “strictly hable to the Plaintiff Class for their clean up of the refinery contamination.” But if that is what the juiy was to determine, BP correctly cites evidence indicating its activities reduced the benzene levels to some degree, although the class considers those results grossly inadequate.
It is not entirely clear which activity or activities or failure or failures to act the trial court found were abnormally dangerous when it granted judgment as a matter of law. It held that the “ ‘[defendants’ remediation or cleanup is, as a matter of law, an ‘abnormally dangerous activity.’ ” But it also cited the class’ claim that the “storage and treatment” of the contamination amounted to an abnormally dangerous activity. And the trial court also cited its previous summary judgment order, in which it held that there was a question of fact for the juiy as to whether BP is strictly Hable for its “management of the remediation project.”
In its findings-of-fact section in the posttrial order, the trial court held it was undisputed that the pollution had spread from the former refineiy grounds and contaminated the groundwater in the adjacent neighborhoods. And BP does not dispute that some of the wastes generated by the former refineiy were volatile chemicals. The trial court also found that BP had acknowledged its responsibility to address residual petroleum products attributable to the refineiy, and it defined BP’s theoiy of the case as acknowledging partial responsibility for the contamination and claiming that it was in fact actively cleaning it up through work as supervised by KDHE.
But the trial court also noted BP’s engineers and experts admitted they failed to identify a large body of pollution spreading into Neodesha and concluded:
“Given the Defendant’s admissions and the evidence here, no rational juror could return a verdict stating that Defendants were not guilty of contaminating the groundwater underneath Neodesha. The contaminants involved in this case are some of the most dangerous known to mankind. They do not naturally occur, thus are non-natural to the land,’ were obtained elsewhere, and Defendants’ prior refineiy operations had no connection with the products of this land or the development of its natural resources.”
This holding appears to relate to a per se strict liability as a matter of law theory, not the abnormally dangerous activity holding stated by the district court. Admittedly, this distinction is not entirely clear because the district court continued in the same paragraph to conclude:
“ ‘In Williams, [Defendants’ predecessor] Amoco successfully argued that ‘natural gas, unlike salt water, oil pollution or chemical discharge, does not ‘present a high degree of risk of harm,’ [citation omitted]. In contrast here, the contaminants and oil pollution are abnormally dangerous. Even though a complete analysis under Williams is probably unnecessary, the Court will do the analysis. The Defendants’ remediation or cleanup, or lack thereof],] is as a matter of law an ‘abnormally dangerous activity.’ ”
Then the trial court examined the six Restatement § 520 factors. For the first (existence of a high risk of harm), the district court’s only finding was a conclusory statement that there was a high risk of harm. It is impossible to discern whether the district court was referring to the toxic nature of the pollutants or some activity BP was engaged in, such as tire storage or remediation of the contamination. Regarding the second factor (the likelihood that the resulting harm will be great), the district court held that BP admitted that it was. But this statement is inaccurate to the extent that BP argues its remediation activities were successful at reducing benzene levels. Regarding the third factor (the inability to eliminate the risk through the exercise of reasonable care), the district court made the conclusory finding that reasonable care would not eliminate the risk. Regarding the fourth factor (extent to which the activity is a matter of common usage), the district court held remediation was not a common usage, distinguishing it from natural gas production. But this finding is debatable, depending on how the question is defined. For example, remediation could be considered common to areas containing contamination. Regarding the fifth factor (whether the activity is appropriate for the place it is carried on), the district court held that “Defendants’ remediation is inappropriate to the area, especially the area outside the former refinery grounds and outside the plume which Defendants represented to the public.” This statement seems to relate to the creation of contamination and not the remediation of it. Regarding the sixth factor (the value to the community), the district court held the value of BP’s remediation was outweighed by its dangerous attributes.
Tellingly, the district court’s posttrial ruling contains no finding that BP’s remediation and clean-up activities caused any purported harm, cites no evidence to support any such finding, and ignores a critical element for imposing strict liability in tort, i.e,, limiting it to the land of harm that makes tire activity abnormally dangerous. See Restatement (Second) of Torts § 519. So not only did the district court blend theories of per se strict liability with the abnormally dangerous activity test adopted in Williams v. Amoco Production Co., 241 Kan. 102, Syl. ¶ 8, 734 P.2d 1113 (1987), as discussed above, its ruling is incomplete and demonstrates why the district court had originally ruled that it was appropriate to allocate the decision making to the jury. As the district court held in its earlier summary judgment order:
“The Court finds there is a question of fact for a juiy to determine whether the Defendants are or are not strictly liable for their management of the remediation project in Neodesha. Further, and as more fully set forth herein[,] if Defendants are found strictly liable, th[en] that liability ‘is limited to the kind of harm the possibility of which makes the activity abnormally dangerous.’ [citing Williams].’’
The commentary to the Restatement (Second) of Torts § 520 suggests that the inquiiy into whether an activity is abnormally dangerous is a question of law courts should determine, based upon all the factors listed in that section. See Falls, 249 Kan. at 60-61. But this court has adopted a different approach, because this inquiry may require factual as well as legal determinations. When the facts are undisputed, whether an activity is abnormally dangerous is a question of law decided by the court. If die facts are disputed, this court has held that the question is to be determined by the jury. Pullen v. West, 278 Kan. 183, 190-91, 92 P.3d 584 (2004) (quoting Falls, 249 Kan. 54, Syl. ¶ 3).
Under this caselaw, the jury was instructed to determine whether BP engaged in an abnormally dangerous activity and the trial court erred by overturning the jury’s finding. BP correctly argues there were disputed facts pertaining to the following factors: (1) whether the remediation activities involved a high degree of risk of harm that could not be eliminated through the exercise of reasonable care; (2) whether remediation was appropriate to the area; and (3) whether BP’s remediation activities benefitted the community. BP cites testimony from its groundwater hydrologist and KDHE employees, indicating that benzene levels were decreasing due to the trench “extraction systems” and the addition of sulfate solution in the wells. BP also cites testimony from the plaintiffs’ hydrogeologist indicating that the pumps in the trench were working, but they might not have been working at optimum levels. He also indicated that a long-term commitment to maintaining the wells was required. Given the allegations as framed and the existence of disputed facts, we hold that the jury’s verdict should not have been disturbed. See Pullen, 278 Kan. at 190-91. The trial court erred by overturning the jury’s verdict.
Based upon this determination, we do not need to address BP’s claims that its activities or lack thereof did not constitute an abnormally dangerous activity as a matter of law or that the class failed to establish causation. The jury’s verdict makes that unnecessary. We reverse the trial court’s order granting judgment as a matter of law on the plaintiffs’ strict liability claim.
The Conditional Grant of a New Trial
The district court held a new trial was proper on the same grounds that it entered judgment as a matter of law, concluding it erred by instructing the jury to determine liability. BP argues the district court erred by conditionally granting a new trial as a matter of law because it lacked the authority to enter a conditional new trial order. But given our decision that the jury verdict should not be disturbed in this case, further consideration of this issue is moot.
Reversed and remanded with directions to the district court that the jury verdict be reinstated and final judgment entered for the defendants.
James R. Fleetwood, District Judge, assigned. | [
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The opinion of the court was delivered by
Miller, J.:
The defendants, Donald E. Hicks and Walter Collins, Jr., each appeal from a conviction of aggravated burglary, K.S.A. 21-3716, and the sentence imposed following jury trial in Sedgwick County District Court. The habitual criminal act, K.S.A. 1985 Supp. 21-4504, was invoked, and each defendant was sentenced to serve a term of imprisonment of not less than fifteen nor more than sixty years.
Defendants raise a number of issues on this appeal, including the contention of Collins that the evidence was insufficient to support his conviction. When a defendant in a criminal case contends on appeal that the trial evidence is insufficient to sustain the conviction, the standard of review is:
“Does the evidence, when viewed in the light most favorable to the prosecution, convince the appellate court that any rational factfinder could have found the defendant guilty beyond a reasonable doubt?” State v. Wise, 237 Kan. 117, 119, 697 P.2d 1295 (1985).
We turn first to the evidence, which we view in the light most favorable to the prosecution.
Elmer Wilbarger, a man in his seventies, was asleep or almost asleep in his bedroom at 1025 East Murdock, Wichita, Kansas, on October 23, 1984. He heard a noise and went to the kitchen to investigate. He encountered two men who had broken and entered through the kitchen window. The men forced Wilbarger back into the bedroom, where the men beat him with a jack handle and left him semi-conscious. After the intruders left, Wilbarger crawled into the living room. When the other residents of the house returned later that evening, they had to climb in through the broken kitchen window because the door was locked and they could not arouse Wilbarger. They found him lying on the floor and bleeding profusely. They reported the matter to the police, and Wilbarger was taken to the hospital. Two of Wilbarger’s wallets containing money were missing, as was a considerable amount of personal property belonging to other residents.
Wilbarger told the men who found him that one of the burglars was Donald Hicks, and that he knew the other only by the name “Gabby.” The officer associated that nickname with Walter Collins, Jr. Wilbarger was shown photographic lineups, and he immediately identified Hicks and Collins as the burglars. Similarly, he identified both of them in court during trial. Wilbarger did not give anyone permission to come into his home and take money from him or to hit him on the head.
The elements of aggravated burglary are knowingly and without authority entering into any building in which there is some human being, with intent to commit a felony or theft therein. K.S.A. 21-3716; and see PIK Crim. 2d 59.18. Viewing the evidence in the light most favorable to the State, as we must, we hold that there was sufficient competent and substantial evi dence to support the aggravated burglary conviction of both defendants, Donald E. Hicks and Walter Collins, Jr.
The defendants raise three issues relating to the “incompetency” of the victim, Elmer Wilbarger. The factual background of these claims is as follows:
In 1963, Wilbarger was charged in Sedgwick County District Court with one or more felonies. Apparently the charges arose out of “hot checks.” Wilbarger was examined by a psychiatrist, who reported to the court that, in his opinion, Wilbarger was “unable to assist in his defense due to the severe impairment in his mental functioning at the present time.” The trial judge, Honorable Tom Raum, in a 1963 journal entry, found that Wilbarger was insane and unable to comprehend his position and make his defense. Wilbarger was then sent to the state security hospital at Larned, where he remained until 1976. In 1974, a physician on the hospital staff reported to the trial judge that Wilbarger was still incompetent to stand trial, and, in all likelihood, would not become competent to stand trial in the foreseeable future. In 1976, having served more than the maximum time for the offenses of which he was accused, he was released from custody.
Immediately after the 1984 burglary, Wilbarger told the other occupants of the house, who found him that evening, what had happened. He related a similar story to the investigating officers, and he testified similarly at the preliminary examination. When this case came on for trial, and after the jury had been empaneled and trial commenced, the trial judge held a hearing outside of the presence of the jury, the transcript of which extends for over fifteen pages in the record. No motion was made prior to trial, but at trial, counsel for the defendants asked the court to receive in evidence the file relating to Wilbarger’s 1963 criminal charges, which included the determination that Wilbarger was “insane.” At the conclusion of the lengthy hearing, the trial court found that Wilbarger was capable of expressing himself so that his testimony could be understood, that his memory appeared to be clear, and that he was capable of understanding the duty of a witness to tell the truth. As that hearing neared its conclusion, and in the absence of the jury, counsel for Collins orally moved the court for a continuance and for leave to have the witness examined by a psychiatrist. The trial court noted the lateness of that application and the apparent fitness of the witness and his responsiveness to questions, and denied the motion.
After the initial oral argument on the motions for new trial, the trial court, “in order to be totally fair to both defendants,” ordered an evaluation of Wilbarger by Dr. Howard Brodsky at the Sedgwick County Mental Health Clinic. At the final hearing on the motions for new trial, Dr. Brodsky was called as a witness, presented his report which was received into evidence, testified at length, and was thoroughly cross-examined. Dr. Brodsky had examined the witness and a transcript of the witness’s preliminary hearing testimony, and had read a report of Wilbarger’s confinement in the Larned State Hospital. Dr. Brodsky concluded that Wilbarger was mentally competent to testify regarding the occurrences of October 23, 1984, and that he was of sufficient mind and memory during the time trial was held in this case to relate what had happened to him to a court and jury. Brodsky noted that Wilbarger had some limitations — likely the result of aging and chronic alcoholism — and that his thought processes were somewhat slowed down. The doctor concluded, however, that the limitations did not preclude Wilbarger from being an adequate witness. Dr. Brodsky found the witness’ memories of the October 23 incident to be reasonably clear and undistorted by any type of mental aberration. The trial judge denied the motion for new trial.
Defendants contend that the trial court erred by not admitting into evidence the old district court file which included the 1963 report of the single psychiatrist and the finding of Judge Raum that Wilbarger was insane and incompetent to stand trial. Counsel repeatedly emphasized to the trial court that Judge Raum made a finding that the defendant was “insane,” and that he had never been restored to capacity. The proceeding before Judge Raum was a proceeding to determine the competency of Wilbarger to stand trial, not a proceeding under the probate code (K.S.A. 59-2271 et seq. [Corrick]) for commitment of an insane person.
Since 1970, proceedings to determine the competency of an accused to stand trial on criminal charges have been governed by the provisions of K.S.A. 22-3301 et seq. A person is said to be incompetent to stand trial when, because of mental illness or defect, he is unable to understand the nature and purpose of the proceedings against him or is unable to make or assist in making his defense. K.S.A. 22-3301.
In 1963, however, when Wilbarger’s competency to stand trial was in issue before Judge Raum, the proceedings were governed by K.S.A. 62-1531 (Corrick). That statute provided in part:
“Whenever any person under indictment or information, and before or during the trial thereon, and before verdict is rendered, shall be found by the court in which such indictment or information is filed, or by a commission or another jury empaneled for the purpose of trying such question, to be insane, an idiot or an imbecile and unable to comprehend his position, and to make his defense, the court shall forthwith commit him to the state hospital for the dangerous insane for safekeeping and treatment . . .
That provision of the statute is identical to the original enactment, L. 1911, ch. 299, § 4, except that the 1911 enactment designated the hospital as the “State Asylum for the Dangerous Insane.”
Judge Raum conducted the proceedings under the statute as it existed in 1963. The examining psychiatrist reported that Wilbarger was incompetent to stand trial, and thus Judge Raum, in his order, found that Wilbarger was “insane and unable to comprehend his position and to make his defense,” in the wording of the statute. It should be emphasized that this was a determination of incompetency to stand trial, not a determination of insanity under K.S.A. 59-2271 (Corrick).
Should the 1963 court file have been admitted into evidence to impeach the witness credibility in this case? We find no Kansas case squarely deciding this issue. In State v. Coe, 223 Kan. 153, 162-63, 574 P.2d 929 (1977), and State v. Belote, 213 Kan. 291, 295-96, 516 P.2d 1159 (1973), we held that evidence that a witness is a user of drugs was not admissible for credibility purposes “unless it is proven that the witness was under their influence at the time of the occurrences as to which he testifies, or at the time of the trial, or that his mind or memory or powers of observation were affected by the habit.” (Emphasis supplied.) Thus, the issue in that case was decided on the basis that to be admissible it must be shown that the drug habit affects (1) the witness’ power of observation at the time of the occurrence, (2) his ability to relate those occurrences at time of trial, or (3) his ability to retain information and to recall it. This holding appears to be entirely consistent with the views of Wigmore and McCormick.
In 3A Wigmore on Evidence § 932 (Chadbourn rev. 1970), this guidance is offered:
“The existence of a derangement of the sort termed insanity is admissible to discredit, provided that it affected the witness at the time of the affair testified to (i.e., his power of observation), or while on the stand (i.e., his power of recollection or narration), or in the meantime (so as to cripple his powers of recollection).”
In McCormick on Evidence, § 45 (3d ed. 1984), the author notes:
“Manifestly, however, the fact of mental ‘abnormality’ either at the time of observing the facts or at the time of testifying will be provable, on cross or by extrinsic evidence, as bearing on credibility, often, as under the federal rules, in the discretion of the court.”
This is the same test applied by the trial judge here. He found no evidence to indicate that the witness lacked the power of observation at the time of the burglary, or lacked the power to recall and testify about those events. All of the evidence was to the contrary. The judge refused to take judicial notice of the 1963 court file and receive it in evidence because he found that circumstances had changed and the 1963 determination of incompetency to stand trial was not applicable to the witness 22 years later.
While relevant evidence concerning the issue of the credibility of witnesses is generally admissible, K.S.A. 60-420, the question of relevancy is left to the sound discretion of the trial judge. Here, there was no evidence that the witness was experiencing mental problems at the time of the burglary, between that time and the trial, or at the time of his testimony at trial. Under the circumstances, we hold that the trial judge did not abuse his discretion, under the evidence before him, in refusing to admit the 1963 record into evidence.
Defendants next contend that the trial court erred in concluding — out of the presence of the jury, while ruling on the admissibility of the 1963 court records — that Judge Raum erroneously concluded that Wilbarger was “insane,” based upon the report of the examining psychiatrist which merely stated that Wilbarger was incompetent to stand trial. We have pointed out that Judge Raum merely followed the wording of the applicable statute in the journal entry memorializing his order. He made no finding of “insanity” as that term was then defined in the probate code, K.S.A. 59-2001 (Corrick):
“[A]ny person who is so far disordered in his mind as to endanger health, person or property; or any person who is so far disordered in his mind as to render him a proper person for care and treatment in a hospital for insanity or mental disease . . .
Judge Hodge’s remark was made out of the hearing of the jury and was not prejudicial to these defendants. There was no reversible error.
Defendants also contend that the trial court erred in refusing to order a psychiatric examination of Wilbarger prior to his testimony at trial. The only motion for such an examination was made orally following the noon recess on the first day of trial and immediately before Wilbarger was scheduled to testify. No motion for examination of the witness was made prior to trial, although he had testified at the preliminary examination and had been observed by both defendants and their counsel at that time. No evidence was presented which would suggest that Wilbarger’s mental health was impaired at the time he was victimized or at the time of his testimony. In State v. Gregg, 226 Kan. 481, 602 P.2d 85 (1979), we said in Syllabus ¶ 3;
“A trial judge has discretion to order a psychiatric examination of the complaining witness in a sex crime case if the defendant presents a compelling reason for such examination.”
In Gregg, we affirmed the trial court’s decision not to order an examination of the witness. There, the motion was made the day before trial, and no facts were stated or evidence introduced establishing a reason for the requested examination. That rationale is applicable here.
In the case before us, the trial court refused to interrupt the trial and secure an examination of the witness, finding no reason in the evidence to do so. After the trial, and before ruling on the motion for new trial, it did order an examination and the results thereof were not helpful to the defendants. We find no abuse of discretion in refusing to grant the motion for examination made during trial. In light of the results of the post-trial examination, the issue is moot.
Finally, defendants argue that the trial court erred in finding Wilbarger “present” for purposes of K.S.A. 1985 Supp. 60-460(a), even though he was not in the courtroom. Section 460(a) excepts from the hearsay rule statements previously made by persons who are “present at the hearing and available for cross-examination” with respect to the statement. After the direct examination of Mr. Wilbarger was commenced, the trial judge determined that an amplification system was needed to permit effective examination of the witness. Wilbarger’s hearing was impaired, and he had difficulty in understanding counsel. The judge then found that the amplification system could not be installed until the next day, so he excused Wilbarger for the rest of that day and instructed him to return on the following morning. When another witness was testifying, defense counsel anticipated that the witness would testify regarding Wilbarger’s out-of-court statements, and asked the court to recess the hearing until Wilbarger returned the next day. The court ruled that Wilbarger was “present” at the hearing and available for cross-examination, and denied the motion.
A similar situation arose in State v. Taylor, 217 Kan. 706, 712-13, 538 P.2d 1375 (1975). There, the victim was in the library but not in the courtroom when two officers repeated the victim’s story of the crime. We held that the officers’ testimony came squarely within the exception of Section 460(a), and that the victim “was both physically and mentally present at the trial.” In Taylor, the victim was in the courthouse at the time the 460(a) testimony was offered and the trial court offered to call her into the courtroom if defense counsel wished her present. We do not think the differences in the factual situation, however, are important. Here, Wilbarger was present physically both before and after the testimony. He was present at the hearing. He was available for full cross-examination. The key factor in the statute is the availability of the witness at the trial for examination and cross-examination as to the out-of-court statements. The witness does not have to be physically present in the courtroom at the time the hearsay testimony is given. We find no error.
The judgment is affirmed. | [
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The opinion of the court was delivered by
McFarland, J.:
The district court dismissed charges against defendant Michael R. Roman for the offenses of possession of cocaine after a previous conviction (K.S.A. 65-4127a) and possession of marijuana after a previous conviction (K.S.A. 65-4127b[a][3]) on the ground defendant’s statutory right to a speedy trial (K.S.A. 22-3402[2]) had been violated. The State appeals this dismissal as a matter of right pursuant to K.S.A. 22-3602(b)(l).
K.S.A. 22-3402(2) provides:
“If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within one hundred eighty (180) days after arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (3).”
The following chart summarizes the pertinent events chronologically and focuses on the area of dispute:
DATE(S) EVENT NO. OF CHARGEABLE TO: DIS-DAYS STATE DEFENDANT PUTED
1. 2/7/84 to 4/2/84 Arraignment; case set for jury trial 55 55 0 No calendar of 4/2/84.
2. 4/2/84 to 6/15/84 On day of scheduled jury trial, 74 defendant waives a jury. Trial continued to 6/22/84 for bench trial. Defendant’s motion to suppress evidence filed 6/7/84 and set for hearing 6/15/84. 0 74 No
3. 6/15/84 to 6/22/84 Motion heard by Judge Keith 7 Sanborn and taken under advisement until trial date (6/22/84). 0 7 No
4. 6/22/84 to 12/18/84 Judge Sanborn hears further oral 179 argument (6/22/84) on motion to suppress; directs parties to file briefs (no briefing schedule set and trial not rescheduled). Decision granting suppression motion sustained 12/18/84. ? ? 179
5. 12/18/84 to 12/21/84 Delay in State filing interlocutory 3 appeal. 3 0 No
6. 12/21/84 to 1/30/86 Interlocutory appeal through receipt N/A N/A of mandate which reversed district court’s sustaining of motion to dismiss.
7. 1/30/86 to 3/14/86 Upon receipt of mandate, trial set for 43 43 0 No 3/14/86. Motion to dismiss for violation of statutory right of speedy trial sustained 3/14/86.
TOTALS 361 101 81 179
It is agreed 361 days of “chargeable” time elapsed between date of arraignment (February 7, 1984) and date of dismissal (March 14, 1986). This figure excluded the period of time the Court of Appeals had jurisdiction of the case during the interlocutory appeal. The 101 days chargeable to the State and 81 days chargeable to defendant are not in any serious dispute herein. The bone of contention is the 179 days Judge Keith Sanborn had the motion to suppress under advisement following the June 22, 1984, scheduled trial date. The district court (Judge Watson) held the entire 179 days was chargeable to the State, making the total time charged to the State 279 days — well over the 180-day limit contained in K.S.A. 22-3402(2). The State argues this was improper as: (1) it was defendant’s motion that triggered this delay; and (2) judicial delay in deciding a motion is not the fault of the State within the purview of K.S.A. 22-3402(2). We do not agree.
At the close of the June 15, 1984, hearing on the suppression motion, Judge Sanborn indicated he was aware of the June 22, 1984, trial date and would decide the motion prior to trial. On June 22, 1984, there was no trial. Instead, Judge Sanborn heard further oral arguments on the motion. He directed counsel to submit briefs with no fixed briefing schedule and an indication counsel should take all the time they needed for this. No new trial date was set. For almost six months the case floated in the system. From time to time the court would contact counsel and request the submission of additional briefs on questions raised by the court with no hint of a briefing schedule or of a future trial date. K.S.A. 22-3402(2) grants the right to a defendant on bond to be brought to trial within 180 days unless a delay is chargeable to the application or fault of the defendant. Procrastination, whether it be prosecutorial or judicial, is not the fault of a defendant and should not be charged to him or her. It is true that the State, in exasperation, finally complained to the administrative judge of the Eighteenth Judicial District on December 6, 1984, and this action resulted in the December 18, 1984, decision. But this can hardly be said to absolve the State, collectively speaking, and transfer all fault for the 179-day delay to the defendant. The fact that it was the defendant’s motion that the judge was incubating rather than the State’s has no bearing on the issue before us. Any party filing a motion has a right to assume it will be acted upon expeditiously after submission. The judge herein had the matter under advisement seven days before the 179-day period began. If the motion to suppress had been filed at the end of the 180-day statutory speedy trial period, a reasonable time (at most two or three weeks) for decision might well be charged to a defendant under appropriate circumstances. In this case, we need not determine what a reasonable time for decision would have been. In order to bring the case within the 180-day provision, 100 days of the delay in making the decision would have to be charged to the defendant. This we cannot do.
We conclude the district court (Judge Watson) did not err in dismissing the charges herein for failure to bring the defendant to trial within the 180-day limit of K.S.A. 22-3402(2).
The judgment is affirmed.
Allegrucci, J., not participating. | [
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The opinion of the court was delivered by
Nuss, C.J.:
We must determine whether probationer Heather Hopkins is entitled to jail time credit toward a sentence for the time she spent in a residential drug abuse treatment facility when her sojourn had not been ordered as a condition of probation in the case where that prison sentence had been imposed. Hopkins was serving probation in two different cases. She was statutorily required—and ordered as a condition of probation—to complete drug abuse treatment in the case involving a conviction for cocaine possession. But drug treatment was not statutorily required, or ordered as a condition of probation, in the case where her convictions concerned nondrug offenses.
Hopkins failed to complete her mandatoiy drug treatment, and the district court revoked her probation in both cases. Hopkins admits she is statutorily barred from receiving jail time credit toward her sentence in her cocaine case. But she argues she is not so barred in her nondrug offense case.
Both the district court and the Court of Appeals disagreed with Hopkins. We granted her petition for review under K.S.A. 20-3018(b) on this issue of first impression. Under the circumstances of this case, we now reverse.
Facts
The essential facts are straightforward. For Heather Hopkins’ conviction of possession of cocaine, she was sentenced to 18 months’ probation with an underlying sentence of 11 months. In accordance with the legislative scheme known as Senate Bill 123 (S.B. 123), L. 2003, ch 135, sec. 1, she was also ordered to complete mandatoiy drug abuse treatment as a nonprison sanction per K.S.A. 21-4729. See State v. Preston, 287 Kan. 181, 184-85, 195 P.3d 240 (2008).
Two months later Hopkins was sentenced in a different case for convictions of attempted aggravated robbeiy and obstruction of legal process. She received 36 months’ probation with an underlying sentence of 41 months. This robbery case’s sentence was ordered to run consecutive to her previously imposed sentence in her cocaine possession case. Completion of mandatoiy drug treatment under S.B. 123 obviously was not ordered, but the following provision appeared in her “Order of Intensive Supervision Probation”:
“15. Agree to enter into evaluation, counseling, or treatment as directed by the Intensive Supervision Officer. Comply with all recommendations as clinically indicated. Costs and arrangements for payments are the defendant’s responsibility.”
Hopkins absconded from her supervised probation after some period of drug abuse inpatient treatment. The State then moved to revoke probation in both cases. At the revocation hearing Hopkins stipulated to absconding, which violated her probation. She also admitted that per K.S.A. 21-4603d(n) she was barred from receiving jail time credit—toward her cocaine case’s sentence—for her treatment period. But she claimed there was no bar to the treatment period being credited toward her robbeiy case’s sentence.
The district court denied her request, revoked probation in both cases, and ordered her to serve the two underlying sentences (41 months and 11 months) consecutively. The Court of Appeals affirmed the district court, holding there was no evidence that inpatient treatment was actually recommended by Hopkins’ probation officer or imposed as a condition of probation in tire robbeiy case. State v. Hopkins, No. 100, 851, 2009 WL 2902586, at el (Kan. App. 2009) (unpublished opinion).
Analysis
Issue: A probationer is entitled to jail time credit toward a sentence for time spent in a residential drug abuse treatment facility when the sojourn had not been ordered as a condition of probation in the case where that prison sentence had been imposed.
Standard of Review
This issue requires us to interpret probation statutes. Statutoiy interpretation is a question of law, and our review is unlimited. Accordingly we are not bound by the lower courts’ interpretations. State v. Malmstrom, 291 Kan. 876, Syl. ¶ 1, 249 P.3d 1 (2011). When interpreting statutes we are mindful that
“[t]he fundamental rule to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained. When language is plain and unambiguous, there is no need to resort to statutory construction. An appellate court merely interprets the language as it appears; it is not free to speculate and cannot read into the statute language not readily found there.” Zimmerman v. Board of Wabaunsee County Comm’rs, 289 Kan. 926, Syl. ¶ 3, 218 P.3d 400 (2009).
Discussion
The right to jail time credit is statutory. State v. Theis, 262 Kan. 4, 7, 936 P.2d 710 (1997). Typically a probationer may receive credit for time served in a residential facility while on probation. This general rule is set out at K.S.A. 21-4614a(a), which states:
“In any criminal action in which probation, assignment to a conservation camp or assignment to community corrections is revoked and the defendant is sentenced to confinement, for the purpose of computing the defendant’s sentence andparole eligibility and conditional release dates, the defendant’s sentence is to be computed from a date, hereafter to be specifically designated in the sentencing order of the journal entry of judgment or the judgment form delivered with the defendant to the correctional institution. Such date shall be established to reflect and shall be computed as an allowance for the time which the defendant has spent in a residential facility while on probation, assignment to a conservation camp or assignment to community correctional residential services program. The commencing date of such sentence shall be used as the date of sentence and all good time allowances as are authorized by law are to be allowed on such sentence from such date as though the defendant were actually incarcerated in a correctional institution. Such credit is not to be considered to reduce the minimum or maximum terms of confinement authorized by law for the offense of which the defendant has been convicted.” (Emphasis added.) K.S.A. 2010 Supp. 21-4614a(a).
By contrast, as Hopkins admitted to the district court and again on appeal, a probationer in S.B. 123 cases is not eligible for jail time credit when ordered to participate in a certified drug abuse treatment program. More specifically, under K.S.A, 21-4603d(n), “[t]he amount of time spent participating in such program shall not be credited as service on the underlying prison sentence.” We have held that a S.B. 123 probationer was ineligible for jail time credit because the specific prohibition against credit in K.S.A. 21-4603d(n) trumped the general rule authorizing credit contained in K.S.A. 21-4614a(a). Preston, 287 Kan. at 184-85.
These two statutes overlap for Hopkins because the court revoked probation in both her robbery and her cocaine cases. In the latter case, she was ordered to complete drug abuse treatment in a residential facility as a condition of probation. While no such order was specifically made in her robbery case, Hopkins again asks for jail time credit toward that particular sentence for her cocaine case-ordered stay in the residential facility.
Hopkins first argues that the language in her robbeiy case’s probation order is sufficient to meet this alleged “condition of probation” requirement. Failing that, she argues that the plain lan guage of K.S.A. 21-4614a(a) does not require that residential drug abuse treatment be a condition of probation for a defendant to receive jail credit for time spent in a treatment facility. Rather, “[t]he statute [only] requires jail credit be assessed for time spent in the facility ‘while on probation.’ ” (Emphasis added.) She contends the Court of Appeals was therefore wrong to require residential drug abuse treatment as a condition of probation in the robbeiy case before she could receive credit toward that case’s sentence.
The State responds that Hopkins is barred from jail time credit in her robbery case because inpatient drug treatment is required as a condition of probation, and it simply was not ordered there. According to the State, the opening words of K.S.A. 21-4614a(a)— “[i]n any criminal action”—indicate that the treatment must be ordered as a condition of probation in the same case for which jail time credit is sought. More specifically, it argues this statutory language only addresses a single criminal action and, for Hopkins to receive credit, the statute would need to read “in any criminal action or combinations of criminal actions for which a defendant might be on probation at one time.” (Emphasis added.)
We disagree with the State. K.S.A. 21-4614a(a) broadly grants a probationer jail time credit in “any criminal action in which probation ... is revoked,” for the time “spent in a residential facility while on probation.” The statute simply contains no express requirement that the time spent in the residential facility be ordered in tire same case in which jail time credit is sought. We decline the State’s invitation to read this limiting, i.e., excepting, language into 21-4614a(a). See State v. Nambo, 295 Kan. 1, 5, 281 P.3d 525, 528 (2012) (“An appellate court ‘cannot read into the statute language not readily found there.’ ”).
Our conclusion is further supported by the language limiting the exception to jail time credit that is contained in K.S.A. 21-4603d(n). Subsection (n) provides that after the court orders defendant’s participation in the certified drug abuse treatment program, but
“the defendant. . . demonstrates the offenders’ refusal to comply with or participate in the treatment program, . . . the defendant shall be subject to revocation of probation and the defendant shall serve the underlying sentence as established in K.S.A. 21-4705 [sentencing guidelines grid for drug crimes] and amendments thereto.” (Emphasis added.)
This theme is repeated later in the subsection: “[t]he amount of time spent participating in such program shall not be credited as service on the underlying prison sentence,” i.e., as established by the sentencing guidelines grid for drug crimes contained in K.S.A. 21-4705. (Emphasis added.) K.S.A. 21-4603d(n). In short, by denying credit for time served only on the “underlying sentence,” the Kansas Legislature limited the jail time credit exception contained in 21-4603d(n) to the same criminal (and drug offense-based) action in which the drug treatment program was imposed.
Finally, in this subsection of K.S.A. 21-4603d the Kansas Legislature showed that it knew how to create an exception to the broad grant of jail time credit for probationers found in 21-4614a(a)—to deny credit for a probationer’s stay in the court-ordered drug treatment program under S.B. 123. So we assume that the legislature did not intend to include a similar exception or limitation in K.S.A. 21-4614a(a), i.e., to deny jail time credit for a probationer’s stay in a treatment program unless that time was ordered—as a condition of probation—in the same case in which the credit is sought. See State v. Nambo, 295 Kan. at 5 (citing cases: “Zimmerman, 289 Kan. at 974 [when legislature has demonstrated through statutory language that it knows how to preempt with the Kansas Corporation Commission (KCC), its failure to preempt the KCC in another statute’s language strongly suggests that there it did not so intend]; In re W.H., 274 Kan. 813, 823, 57 P.3d 1 [2002] [Because consecutive sentences are expressly permitted in the Kansas Sentencing Guidelines Act of the adult criminal code but not for the Kansas Juvenile Justice Code (KJJC), ‘[w]e conclude that the Kansas Legislature by its exclusion regarding consecutive sentences did not authorize the imposition of consecutive sentences under the KJJC.’]; Halley v. Barnabe, 271 Kan. 652, 661, 24 P.3d 140 [2001] [Where no savings clause exists in the Kansas Revised Limited Liability Company Act (KRLLCA) but does in the Kansas Revised Uniform Partnership Act, had the legislature intended the same result in the KRLLCA, ¾ is clear that it knew how to do so.’].”)
The State finally suggests that a decision of this court cited by the Court of Appeals panel supports the State’s argument that inpatient treatment must be ordered as a condition of probation. State v. Theis, 262 Kan. 4. According to the State, it logically follows that treatment must be ordered in the same case in which a probationer requests jail time credit toward his or her sentence.
Hopkins admits that the Theis defendant had been ordered to submit to inpatient drug treatment as a condition of probation. But she again argues K.S.A. 21-4614a does not require this to obtain jail time credit for a stay in such a facility while on probation. So she contends Theis is distinguishable and of little guidance.
We agree with Hopkins. In Theis, the defendant clearly had been ordered to participate in inpatient drug treatment at alleged residential facilities as a condition of probation. 262 Kan. at 9-10. But the appellate issue was whether the treatment facilities qualified as “residential facility[ies]” under K.S.A. 21-4614a(a)—not whether the treatment needed to be ordered as a condition of probation. Indeed, the beginning of the opinion impliedly makes this distinction:
“This case requires interpretation of K.S.A. 21-4614a(a) in determining defendant’s credit for time spent in an inpatient drug treatment program while on probation. Was defendant in a “residential facility” while onprobation? (Emphasis added.) 262 Kan. at 4.
The Theis court’s holding reflected the same distinction. After reviewing the two treatment facilities at issue, it concluded that Theis was “entitled to jail time credit under K.S.A. 21-4614a(a) for inpatient treatment in [the two facilities] as time spent ‘in a residential facility while on probation.’ ” (Emphasis added.) 262 Kan. at 5. The holding is similarly described throughout the opinion. “Theis argues that ‘residential facility while on probation should include court-ordered completion of inpatient drug treatment. We agree.” (Emphasis added.) 262 Kan. at 8. And “[w]e hold that Theis’ inpatient drug treatment [at the two facilities] qualifies as time spent in a ‘residential facility while on probation,’ as provided in K.S.A. 21-4614a(a).” (Emphasis added.) 262 Kan. at 10. While the court also acknowledged that Theis’ participation in the drug treatment programs “were conditions of his probation,” this state ment merely helped explain that “[h]e attended those facilities while on probation. These inpatient facilities are "residential/ ” (Emphasis added.) 262 Kan. at 10.
In short, Theis held that jail time credit is available when a treatment program is ordered as a condition of probation. Theis did not hold that jail time credit is available only if a. treatment program is ordered as a condition of probation. Accordingly, Kansas appellate court decisions holding otherwise have overread Theis, although perhaps understandably. As the Court of Appeals stated in State v. Taylor, 27 Kan. App. 2d 539, 541-42, 6 P.3d 441 (2000):
“The Supreme Court’s language in Theis also appears to require an evaluation of whether Taylor’s participation in the reintegration program was a condition of his probation. Although the statute does not include this as a criterion for application of the ‘residential facility’ language, it is evident to us that the Supreme Court engaged in statutory interpretation or made a policy judgment by which we are bound. Presumably, as long as time in a ‘residential facility’ is a condition of probation ordered by the sentencing judge, there is at least some minimal assurance that the program of tire facility will be consistent with the goals of the probation itself.” (Emphasis added.)
See also State v. Black, 36 Kan. App. 2d 593, 595, 142 P.3d 319 (2006) (citing Taylor and determining first whether the defendant’s stay in tire residential treatment facility was a condition of probation); State v. Brown, 38 Kan. App. 2d 490, 492, 167 P.3d 367 (2007); State v. Srader, No. 96,397, 2007 WL 2580500, at *2, 4 (Kan. App. 2007) (unpublished opinion); State v. Johnson, No. 92,179, 2005 WL 824047, at *3 (Kan. App.) (unpublished opinion) rev. denied 280 Kan. 987 (2005); State v. Jurgens, No. 89,988,2003 WL 22764465, at *2 (Kan. App. 2003) (unpublished opinion).
In conclusion, the district court should have awarded Hopkins jail time credit toward her attempted aggravated robbery case’s sentence for her time spent in residential drug abuse treatment. Although the treatment was ordered only as a condition of probation in her cocaine possession case, there is no statutory requirement that the time spent in such treatment be ordered in the same case in which the jail time credit is sought.
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The opinion of the court was delivered by
Johnson, J.:
Morgan D. Wade’s convictions for first-degree felony murder and aggravated burglary were reversed by this court, and the case was remanded for a new trial. State v. Wade, 284 Kan. 527, 161 P.3d 704 (2007). Upon retrial, the jury convicted Wade of premeditated first-degree murder and aggravated burglary. In this direct appeal, Wade argues that the district court erred in the following ways: (1) By failing to adequately answer the jury’s question about the definition of premeditation; (2) by denying Wade’s request for a lesser included offense jury instruction on voluntary manslaughter; (3) by imposing an enhanced sentence based upon prior convictions that were not included in the complaint or proved to the jury beyond a reasonable doubt; and (4) by assessing attorney fees against Wade without adequately assessing his ability to pay or tire burden such a payment would impose. We affirm Wade’s convictions and sentences but vacate the Board of Indigents’ Defense Services (BIDS) attorney fees reimbursement order and remand with directions.
Factual and Procedural Overview
There is no dispute that, on June 19, 2004, Wade shot and killed Kellye Juul, his former girlfriend and the mother of his son. The only dispute involves Wade’s state of mind and intent at the time of the shooting.
The couple had a tumultuous on-again/off-again relationship spanning the course of several years. On June 17,- Juul rejected Wade’s advances and he did not take the rejection well. Later that night and into the next morning, June 18, the former couple spoke by telephone. Juul explained that she was seeing a therapist and wanted to “get her act together” before getting back into a rela tionship with Wade. Juul subsequently reported that during the conversation, Wade informed her that he wanted to come get their son and take the child back to Wade's home so that Wade could kill himself in front of their son. Juul responded by telling Wade that he would have to “get some help before he could see [their son] again.” Juul reported that Wade responded by saying “she’d be sorry . . . [or] something like that.”
The following morning—the day of the shooting—Juul had another telephone conversation with Wade in which she reiterated that Wade would not be allowed to see his son. Thereafter, Wade, armed with his .357 caliber handgun, drove to the house of Dale Coffman, where Juul and Wade’s son were living. The length of time between the telephone call and Wade’s departure was not definitively established, but a law enforcement officer testified that, using the fastest route, the trip from Wade’s house to the Coffman house could have taken as little as 11 minutes and 43 seconds.
Wade reported that as he drove toward the residence he could see Juul outside the house but that she retreated back inside upon seeing his arrival. Undeterred, Wade continued up the driveway, exited his truck, and approached the house. He entered the house through a bedroom window and proceeded through the bedroom to a hallway in the front room, where he approached Juul, who was standing by the front door. Without saying anything, Wade shot Juul in the chest from a distance of 1 to 3 feet. The shooting was witnessed by several children in the house, as well as by the homeowner, Coffman.
After shooting Juul, Wade gave the handgun to one of Juul’s nephews and asked for a towel, which he used to apply pressure to the wound. Wade told Juul not to worry, that she had just been shot in the lung and that it was “ ‘no big deal.’ ” Meanwhile, tire homeowner called 911, and when the police took Wade into custody, he admitted to shooting Juul. Emergency medical technicians transported Juul to the local hospital, which then transported Juul to a nearby airfield to be airlifted to a Wichita hospital. But Juul’s liver had been punctured, and she died at the airfield.
At the first trial, the jury convicted Wade of felony murder and aggravated burglary. Those convictions were reversed, and the case was remanded for a new trial. Wade, 284 Kan. at 546.
At retrial, Wade argued for an instruction on the lesser included offense of voluntary manslaughter because “there was a sudden quarrel . . . with . . . Juul . . . that enraged him and . . . [he] was in a rage when he got there.” The district court denied that request based on the facts of the case.
While deliberating, the jury submitted the following question to the judge regarding the definition of premeditated first-degree murder: “If the act of violence that resulted in the death of the victim was pre-meditated but the defendant wasn’t clear on whether the act of violence would result in death, does this constitute pre-meditated murder?” The district court solicited counsels’ suggestions for a response. Defense counsel argued for a simple “no” answer, but when the court rejected that idea, the defense proposed that the court answer with the first sentence of Instruction 19, which defined premeditation. The court agreed to refer the jury to Instruction 19 but declined to single out anything less than the full text of that instruction.
The jury convicted Wade of premeditated first-degree murder and aggravated burglary. He filed a motion for a new trial claiming, in part, that the district court gave an improper response to the jury’s question regarding the definition of premeditation which created further confusion. At the hearing on the motion, the defense called the jury foreman to testily about his personal understanding of tire definition of premeditation after receiving the court’s response. The juror’s testimony implied that after the judge’s answer was given, he understood that, in finding premeditation, “it didn’t matter” whether the defendant knew that the act of violence would result in death. The State objected to the testimony as invading the province of the jury, but the district court overruled that objection. Ultimately, the motion for a new trial was denied.
The court sentenced Wade to a hard 25 life sentence for the murder conviction and a consecutive sentence of 55 months for the aggravated burglary conviction. The court also ordered that Wade reimburse BIDS attorney fees of approximately $6,400 based on the BIDS fee table. Wade timely appealed.
Response to Jury Question
Wade argues that the district court erred by failing to adequately answer the jury’s question about the definition of premeditation. The court has an obligation to respond to a jury’s request to be informed on a point of law, pursuant to K.S.A. 22-3420(3), which provides:
“After the jury has retired for deliberation, if they desire to be informed as to any part of the íaw or evidence arising in the case, they may request the officer to conduct them to the court, where the information on the point of die law shall be given, or the evidence shall be read or exhibited to them in the presence of the defendant, unless he voluntarily absents himself, and his counsel and after notice to the prosecuting attorney.”
Standard of Review
We review a district court’s answer to a juiy question for an abuse of discretion. State v. Moore, 274 Kan. 639, 643, 55 P.3d 903 (2002).
The State acknowledges that an abuse of discretion review is generally appropriate. But then the State points to State v. Hoge, 276 Kan. 801, 816-17, 80 P.3d 52 (2003), to support its argument that Wade’s objection to the court’s answer at trial is different from his complaint on appeal, so that the clearly erroneous standard applicable to unpreserved jury instruction claims should be applied. Even if we were to agree with the State’s premise that Wade presents a jury instruction issue here, we recently clarified that “clearly erroneous” is not a standard of review at all. See State v. Williams, 295 Kan. 506, 515-16, 286 P.3d 195 (2012). Accordingly, we will apply an abuse of discretion standard.
However, we recently expanded, or perhaps clarified, the scope of an abuse of discretion review. In State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012), we recited:
“Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.”
Obviously, to the extent that it is necessary to determine whether the district court’s response was a correct statement of the law, we are presented with a legal question, subject to unlimited review. But when looking at which legally appropriate response the court should have made, we accord the trial court the deference of looking to whether no reasonable person would have given the response adopted by the trial court.
Analysis
The trial transcript contains the following discussion between the judge and counsel regarding the response to the jury question:
“The Court: .... The question: With regards to Instruction 12, the act of violence that resulted in the death of the victim was premeditated but the Defendant wasn’t clear on whether the act of violence would result in death, does this constitute premeditated murder?
“[Defense]: ... I think the answer to that is no.
“The Court: Yeah, on this particular question I hesitate to give them a ‘yes’ or a ‘no’ answer. Instruction No. 19—
“[Defense]: Yeah, the first paragraph covers that because it—you know, the intent to kill must be formed before the shot is fired.
“The Court: The first paragraph of Instruction 19?
“[Defense]: Well, yeah.
“[Defense]: . . . the least you could do is tell them to look over the Instruction No. 19, but I think ‘no’ is the proper answer because, you know, that’s the law. I think intent must be there before the shot is fired or you don’t have premeditated murder.
“The Court: . . . What I propose to tell the jury is that. . . the answer to your question is contained in the instructions given. Definitions are contained in Instruction 19.
“[Defense]: I would request the first sentence of—
“The Court: No, I’m not going to single out any one—I’m not going to single out a specific instruction—you know, specific language within an instruction. I don’t think that’s appropriate for either side.
“[Defense]: I would just ask you to show my objection on the record.
“The Court: The only thing you object to on what I propose to tell the jury is you want me to single out the first full paragraph in 19?
“[Defense]: Right.
“[Defense]: Well, first sentence in 19.
“The Court: Well, I’m not going to.
“[Defense]: Okay.
“The Court: I mean, obviously the question is about premeditation and ... the other paragraph is the definition instruction of reckless and intentional. Obviously it is the first paragraph. I’m not going to tell them the obvious. They ought to be able to read it and see.
“[Defense]: Okay.”
The Instruction 19 to which defense counsel and the court refer set forth definitions, as follows:
“As used in these instructions:
“Premeditation means to have thought over the matter beforehand, in other words, to have formed the design or intent to kill before the act. Although there is no specific time period required for premeditation, the concept of premeditation requires more than the instantaneous, intentional act of taking another’s life.
“Intentionally means conduct that is purposeful and willful and not accidental. Intentional includes the terms ‘knowing,’ ‘willful,’ ‘purposeful’ and ‘on purpose.’
“Reckless conduct means conduct done under circumstances that show a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of that danger. The terms ‘gross negligence’ and ‘wantonness’ are included within ‘reckless.’ ”
The trial court apparently determined that only the first paragraph of Instruction 19 was germane to the jury’s question but that the jurors would obviously understand that the remaining portions of the instruction simply did not apply. One might ponder how obvious it would be to a lay juror that the judge would answer the jury’s legal question with definitions that had absolutely nothing to do with the question. The possibility certainly exists that the superfluous and inapplicable parts of the answer could provide sufficient misdirection to leave some jurors scratching their heads. That would be especially so, if the jurors were unaware of the common prophylaxis of using entire PIK instructions as answers to jury questions to avoid reversal on appeal.
Nevertheless, in reviewing the district court’s response to a jury question, we have focused on the question of whether the answer was a correct statement of the law. State v. Murdock, 286 Kan. 661, 683, 187 P.3d 1267 (2008). Wade does not argue that the district court misstated the law. Rather, he argues that the better answer was a simple, “no.” That answer might have been the most helpful to the juiy. But we have approved the tack of simply directing the jury’s attention back to the instructions. See, e.g., Moore, 274 Kan. at 645. In that vein, we cannot declare that the district court’s answer to the jury question in this case was arbitrary, fanciful, or unreasonable.
Lesser Included Offense Instruction
Wade requested a lesser included offense instruction on voluntary manslaughter, arguing the existence of a sudden quarrel and heat of passion, provoked by the telephone call in which the victim said that Wade could not see his son. The State responded that heat of passion involves “a spontaneously provoked intense emotional state,” and there was no spontaneity here because Wade had been angry since being forcibly removed from Juul’s residence 2 days prior to the shooting. The district court ruled that the facts did not support a voluntary manslaughter instruction “either on sudden quarrel or heat of passion.” Wade continues to argue on appeal that he was provoked into a sudden quarrel, resulting in a heat of passion killing, which would have supported the lesser included offense instruction.
Standard of Revieio
Recently, we attempted to set forth a more consistent procedure for reviewing jury instruction issues, with applicable standards of review:
“For jury instruction issues, the progression of analysis and corresponding standards of review on appeal are: (1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine 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 (4) finally, if the district court erred, the appellate court must determine 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 132 S. Ct. 1594 (2012).” State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012).
Analysis
To fully preserve a claim that the district court erred in failing to give a lesser included offense instruction, the defendant must distinctly state an objection to the omission before the juiy retires to consider its verdict. K.S.A. 22-3414(3). Here, Wade proposed a lesser included offense instruction on voluntary manslaughter and unequivocally objected to its omission during the instructions conference, arguing to the court the grounds upon which he believed the instruction was proper. The issue is fully preserved for our review.
Next, the requested instruction was legally appropriate. “We have held on numerous occasions that voluntary manslaughter is a lesser included offense of both first- and second-degree murder as a lesser degree’ of those crimes under K.S.A. 21-3107(2)(a).” State v. Gallegos, 286 Kan. 869, 874, 190 P.3d 226 (2008).
Even when an instruction is legally appropriate, however, the lesser included offense instruction is only required when “ There is some evidence which would reasonably justify a conviction of [the lesser included offense.]’ ” Plummer, 295 Kan. at 161. The evidence is viewed in the light most favorable to the defendant. 295 Kan. at 162. But we give deference to the factual findings made by the district court, in that we do not reweigh the evidence or pass on the credibility of witnesses. 295 Kan. at 162.
Under the theoiy propounded by Wade, voluntary manslaughter required “the intentional killing of a human being committed: (a) Upon a sudden quarrel or in the heat of passion . . . .” K.S.A. 21-3403. The language of that statute suggests that “a sudden quarrel” and “in the heat of passion” are two separate concepts, and the district court appeared to treat them as different ways in which to commit the crime. But this court has previously held that a sudden quarrel is not separate and apart from heat of passion, but rather it is simply “ 'one form of provocation for “heat of passion.” ’ ” State v. Johnson, 290 Kan. 1038, 1047, 236 P.3d 517 (2010) (quoting State v. Coop, 223 Kan. 302, 307, 573 P.2d 1017 [1978]). Nevertheless, the evidence in this trial, even when viewed in a light most favorable to Wade, would not have reasonably justified a juiy to find either that Wade and Juul engaged in a sudden quarrel or that Wade intentionally killed Juul in the heat of passion.
Johnson suggested that a sudden quarrel involves an “unforeseen angry altercation, dispute, taunt, or accusation.” (Emphasis added.) 290 Kan. at 1048. In addition to the foreseeability component of the adjective, “sudden” also carries a temporal connotation, indicating that the quarrel occurred abruptly or was brought about in a short time. See Webster’s II New College Dictionary 1101 (1999).
Here, the confrontation between Wade and Juul at the time of the shooting would not qualify as a quarrel, much less a sudden one. Immediately before Wade shot Juul, there was no anger displayed; there were no taunting or accusatory words exchanged; and there was no altercation or dispute. Moreover, Wade orchestrated the encounter which is the antithesis of an unforeseen event. He drove to Juul’s residence armed widi a handgun and climbed through a window to get face-to-face with the victim he had seen retreat into her house upon his arrival. Wade foresaw what he wanted to do and methodically went about effecting his plan. There was simply no evidence from which a rational jury could find that the incident in Juul’s residence was a “sudden quarrel.”
Likewise, even if a provocation could be found somewhere other than from a sudden quarrel, a jury could not have reasonably found that Wade intentionally Idlled Juul in a heat of passion. We have defined “heat of passion” as meaning “ ‘any intense or vehement emotional excitement of the fend prompting violent and aggressive action.’ ” State v. Vasquez, 287 Kan. 40, 54, 194 P.3d 563 (2008) (quoting State v. Guebara, 236 Kan. 791, 796-97, 696 P.2d 381 [1985]). The hallmark of heat of passion is taking action upon impulse without reflection.
Wade urges us to consider that the telephone conversation on the morning of the shooting, in which Juul reiterated that Wade would not be permitted to see his son, could have caused such an intense anger that it prompted him to intentionally shoot Juul, notwithstanding the time lag between the provocation and the action. We decline tire invitation to speculate about hypothetical scenarios. We do not permit juries to ruminate upon what might have hap pened; we require tire State to prove the elements of a crime beyond a reasonable doubt. Accordingly, for a lesser included offense to be factually appropriate, there must be actual evidence in the record, together with reasonable inferences to be drawn from that actual evidence, that would reasonably support a conviction for the lesser crime. Here, such evidence does not exist.
First, and foremost, Wade’s appearance and demeanor during the shooting incident belie the notion that he was suffering under any intense or vehement emotional excitement. Eyewitnesses described Wade as being “like a zombie.” Wade did not refute that impression, and it comports with the fact diat Wade’s anger had apparently begun to build 2 days before the shooting. Although Juul’s denial of access to their son may well have provided a motive for Wade to shoot her, it did not provide sufficient provocation for that shooting to be in the heat of passion in this case. A slow burn is not heat of passion.
Next, his behavior leading up to the shooting could not reasonably support a finding that the shooting was an act performed without reflection. To the contrary, the evidence, even when viewed in the light most favorable to Wade, could only prove a calculated act. See Vasquez, 287 Kan. at 56 (“Premeditation and heat of passion are mutually exclusive concepts.”). He armed himself with the handgun before leaving home, implying that he planned to use it in some manner during the encounter with Juul. He had time to contemplate his actions while he drove to Juul’s residence. Then, upon arriving at Juul’s residence and seeing her go into the house, he had to devise a plan to gain entry into the house in order to confront his retreating prey.
Finally, Wade’s own theory of defense refutes the elements of voluntary manslaughter requiring an intentional killing in the heat of passion. Wade contended that he never intended to kill Juul, but rather he only wanted to scare her so she would come back to him. Granted, “inconsistent theories of defense are permissible.” State v. Trussell, 289 Kan. 499, 505, 213 P.3d 1052 (2009). But Wade’s theoiy of defense actually corroborates the evidence in the case which supports that the shooting was part of a plan of action, rather than an action without reflection.
In denying Wade’s motion for new trial based upon a denial of the voluntary manslaughter lesser included offense instruction, the trial court found: “[T]he facts were absolutely and overwhelmingly clear that what happened that day was not a sudden quarrel, was not in the heat of passion, was not an act on impulse without reflection.” We agree. The district court did not err in refusing to give the instruction.
Use of Criminal History at Sentencing
Wade argues that the district court violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution by imposing an enhanced sentence, based on prior convictions, without proving those convictions to the jury beyond a reasonable doubt. This issue has already been decided adversely to Wade’s position. See State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002) (concluding that trial court’s use of prior convictions to enhance guidelines sentencing was constitutionally acceptable even though convictions were not proven beyond a reasonable doubt). Wade provides no new arguments that would warrant our revisiting that well-settled rule of law.
BIDS Attorney Fees
K.S.A. 22-4513 requires that before a district court may require a defendant to reimburse BIDS for attorney fees, the court must consider on the record at the time of assessment the extent of the defendant’s financial resources and the burden upon the defendant that will result from such a payment order. See State v. Richardson, 290 Kan. 176, 186, 224 P.3d 553 (2010); State v. Robinson, 281 Kan. 538, 543, 546, 132 P.3d 934 (2006). This requirement includes an explicit record of how those considerations are weighed in the court’s decision. Robinson, 281 Kan. at 546.
Both Wade and the State agree that the district court failed to satisfy the Robinson requirements in this case. Although the court ascertained that Wade is employable and does work when he is not in prison, it did not ascertain his financial resources or the burden such reimbursement would cause him. Consistent with our prior cases, we vacate the order to reimburse BIDS for attorney fees and remand to the district court for reconsideration. The district court is directed to support any subsequent reimbursement order with explicit findings on the record, pursuant to our decision in Robinson, 281 Kan. at 543-46.
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The opinion of the court was delivered by
Schroeder, C.J.:
This is the third time this class action case has come before the Supreme Court for review. In Shutts, Executor v. Phillips Petroleum Company, 222 Kan. 527, 567 P.2d 1292 (1977) (Shutts I), a class action against Phillips Petroleum Company (Phillips), plaintiffs sought to recover interest on “suspense royalties” attributable to gas produced from leases in the three-state Hugoton-Anadarko area, the largest physical portion of which was located in Kansas, during a nine-year-period from June 1961 to October 1970. The named plaintiff, a Kansas resident, was a representative of a class of 6,400 gas royalty owners, 218 of whom were Kansas residents. This court ruled it could exercise in personam jurisdiction over unnamed nonresident class plaintiffs where procedural due process was satisfied by notice, an opportunity to be heard, and adequate representation. Having found the class action was proper and binding on nonresident plaintiffs, this court also ruled that, under the equitable principle of unjust enrichment, Phillips was liable to the plaintiffs for interest on the suspended royalties in the amount set forth under Phillips’ corporate undertaking with the Federal Power Commission (FPC), seven percent per annum, with an additional statutory post-judgment interest of eight percent per annum.
Shutts v. Phillips Petroleum Co., 235 Kan. 195, 679 P.2d 1159 (1984) (Shutts II), was factually similar to Shutts I. A class action suit was brought by Irl Shutts and Robert and Betty Anderson, individually and on behalf of 28,100 royalty owners, including residents of all 50 states, the District of Columbia, the Virgin Islands, and several foreign countries, against Phillips for recovery of interest on suspended gas royalties. These royalty payments were withheld by Phillips at various times while Phillips awaited approval by the FPC for gas price rate increases. When approval was granted, Phillips paid the total amount of the suspended royalties to the royalty owners without interest. It was held first that Kansas had in personam jurisdiction over the nonresident class members as the procedural due process requirements were satisfied when each class member was provided notice by first-class mail describing the action and informing each member he could appear in person or by counsel, and otherwise he would be represented by Shutts and the Andersons, and that class members would be included in the class and bound by the judgment unless they “opted out” of the suit by returning a “request for exclusion.” Second, as to the choice of law issue, it was held that, under Kansas law and the principles of equity, Phillips was liable for interest to the royalty owners on the suspended royalties at the rates set forth in Phillips’ corporate undertaking with the FPC; seven percent per annum prior to October 10, 1974; nine percent per annum thereafter until September 30, 1979; and thereafter, at the average prime rate compounded quarterly. Statutory post-judgment interest of fifteen percent per annum (K.S.A. 16-204) was also imposed. In determining that Kansas law applied, it was stated:
“In Shutts I it was held the rate of interest set forth in the corporate undertaking established an appropriate measure of damages to compensate the plaintiffs for the unjust enrichment derived by Phillips from the use of the plaintiffs’ money. In the instant case Phillips has not satisfactorily established why this court should not apply the rule enunciated in Shutts I and instead look to the law of each state where leases are located to determine whether damages should be based upon a rate different from that set forth in the FPC undertaking. The general rule is that the law of the forum applies unless it is expressly shown that a different law governs, and in case of doubt, the law of the forum is preferred. 16 Am. Jur. 2d, Conflict of Laws § 5. Where a state court determines it has jurisdiction over a nationwide class action and procedural due process guarantees of notice and adequate representation are present, we believe the law of the forum should be applied unless compelling reasons exist for applying a different law. All of the plaintiff class members in this lawsuit were given actual notice that this action was being brought on their behalf in Kansas. The plaintiffs had the opportunity to opt out of the lawsuit, but chose to have their claims litigated in the Kansas courts. We have hereinbefore held the unnamed plaintiff class members were adequately represented in the lawsuit and that the forum has a significant legitimate interest in adjudicating the claims of the class members. The common fund nature of the lawsuit provides an excellent reason to apply a uniform measure of damages to the class as a whole, as each member of the class has been similarly deprived of the rightful use of his or her money. The plaintiff class members have indicated their desire to have this action determined under the laws of Kansas. Compelling reasons do not exist to require this court to look to other state laws to determine the rights of the parties involved in this lawsuit.” 235 Kan. at 221-22.
Phillips appealed to the United States Supreme Court, Phillips Petroleum Company v. Shutts, 472 U.S. 797, 86 L. Ed. 2d 628, 105 S. Ct. 2965 (1985). The United States Supreme Court first ruled Kansas properly accepted jurisdiction over the nonresident plaintiffs as the procedural due process requirements were satisfied, as stated above. 472 U.S. at 814. As to the choice of law question, however, it was ruled the application of Kansas law to all of the investors’ claims for interest violated the due process and full faith and credit clauses. In its analysis, the Court first noted that if the law of Kansas was not in conflict with any of the other jurisdictions connected to the suit, then there would be no injury in applying the law of Kansas. 472 U.S. at 816. The Court then cited differences in the laws of Kansas, Texas, and Oklahoma which Phillips contended existed. It appears, however, no analysis was made by the Court to determine whether these differences existed in fact. The Court stated:
“Petitioner claims that Kansas law conflicts with that of a number of States connected to this litigation, especially Texas and Oklahoma. These putative conflicts range from the direct to the tangential, and may be addressed by the Supreme Court of Kansas on remand under the correct constitutional standard.
“The conflicts on the applicable interest rates, alone — which we do not think can be labeled false conflicts’ without a more thorough-going treatment than was accorded them by the Supreme Court of Kansas — certainly amounted to millions of dollars in liability. We think that the Supreme Court of Kansas erred in deciding on the basis that it did that the application of its laws to all claims would be constitutional.” (Emphasis added.) 472 U.S. at 816-18.
The basis of Kansas contacts reviewed and rejected by the Court included the common fund analogy. Because Phillips had commingled the suspended royalties with its general corporate account, the Court found there was no specific identifiable res in Kansas, nor any limited amount to deplete before every plaintiff was compensated. The idea that all the plaintiffs consented to be bound by Kansas law when they failed to “opt out” of the suit was rejected because a plaintiff s desire is rarely, if ever, controlling on the choice of applicable law. Finally, the fact that a nationwide class action was being adjudicated and the requirements of procedural due process satisfied was found not to be a sufficient reason to apply the law of the forum.
“Kansas must have a ‘significant contact or aggregation of contacts’ to the claims asserted by each member of the plaintiff class, contacts ‘creating state interests’ in order to ensure that the choice of Kansas law is not arbitrary or unfair. Allstate [Ins. Co. v. Hague, 449 U.S. 302, 312-13, 66 L. Ed. 2d 521, 101 S. Ct. 633, reh. denied 450 U.S. 971 (1981)]. Given Kansas’ lack of ‘interest’ in claims unrelated to that State, and the substantive conflict with jurisdictions such as Texas, we conclude that application of Kansas law to every claim in this case is sufficiently arbitrary and unfair as to exceed constitutional limits.” (Emphasis added.) 472 U.S. at 821-22.
Again, those constitutional limitations are “that for a State’s substantive law to be selected in a constitutionally permissible manner, that State must have a significant contact or significant aggregation of contacts creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair.” Allstate Ins. Co. v. Hague, 449 U.S. 302, 312-13, 66 L. Ed. 2d 521, 101 S. Ct. 633, reh. denied 450 U.S. 971 (1981). It is important to note the Court stated the following:
“We make no effort to determine for ourselves which law must apply to the various transactions involved in this lawsuit, and we reaffirm our observation in Allstate that in many situations a state court may be free to apply one of several choices of law. But the constitutional limitations laid down in cases such as Allstate and Home [Ins.] Co. v. Dick, [281 U.S. 397, 74 L. Ed. 926, 50 S. Ct. 338 (1930)], must be respected even in a nationwide class action.” (Emphasis added.) Phillips, 472 U.S. at 823.
On remand, the district court of Seward County, Kansas, reviewed the laws of the other states involved and found no conflicts existed with the laws of Kansas on the two issues of liability and applicable interest rate. The decision made by this court in Shutts II was adopted by the district court.
Phillips brings this appeal arguing (1) the district court on remand failed to follow the decision of the United States Supreme Court, (2) the laws of the other states connected to this suit conflict with the laws of Kansas, and (3) the district court erred in imposing post-judgment interest of fifteen percent.
Here, the gas produced by Phillips is produced in eleven different states: Kansas, Texas, Oklahoma, Louisiana, New Mexico, Wyoming, Arkansas, Illinois, Mississippi, Utah, and West Virginia. The leases located in Texas and Oklahoma make up 82% of Phillips’ total leases nationwide. The leases in Kansas, Louisiana, New Mexico, and Wyoming total 17% of Phillips’ nationwide leases. Following is a chart of the interests of the states where 97% of the leases are located:
No. Leases Royalties No. Royalty Royalties Paid in to Owners _ to State State State Leases in State Royalty Owners
TEXAS 11,595 $5,626,114.55 26,022 $4,677,541.43
OKLAHOMA 4,644 $ 797,997.37 8,928 $1,340,714.42
NEW MEXICO 1,882 $ 651,045.07 1,429 $ 449,544.13
WYOMING 1,234 $1,161,918.03 722 $ 683,428.51
LOUISIANA 272 $3,056,335.64 2,345 $2,369,714.92
KANSAS 22 $ 2,887.22 1,553 $ 122,638.40
We will review the laws of each of these states as applicable to the two issues involved: (1) whether Phillips is liable to the royalty owners for interest on the suspended royalties; and (2) if Phillips is liable, what is the applicable interest rate?
TEXAS
LIABILITY
The leading Texas case on liability for interest on suspended royalties is Phillips Petroleum Co. v. Stahl Petroleum Co., 569 S.W.2d 480 (Tex. 1978). There, Phillips was a buyer and Stahl the seller under a casinghead gas contract. Under the contract, the price Phillips paid to the seller was based on what Phillips was receiving on its sales to third parties. Phillips had requested price increases with the FPC as to the sales it made to third parties. Pending FPC approval, Phillips was collecting the increased prices from those third parties, and placing the increase in a general fund. Phillips, however, did not increase its pay ments to Stahl. Upon final approval of the price increases by the FPC on October 30, 1972, Phillips recomputed the payments to Stahl and on December 7, 1972, paid it $24,000 without interest. Three years later, Phillips sought a declaratory judgment that: (1) under the contract, it was not liable to Stahl for the $24,000; (2) if Phillips was liable, it was not liable for interest; and (3) if Phillips was liable for interest, it was not liable for interest prior to October 30, 1972, the date of the FPC’s final approval. On June 28, 1976, the trial court ruled that, under the contract, Phillips was not expressly, but was impliedly, obligated to pay Stahl $24,000, and that Phillips was not liable for interest.
The case first came up for review before the Texas Court of Civil Appeals in Stahl Petroleum Co. v. Phillips Petroleum Co., 550 S.W.2d 360 (Tex. Civ. App. 1977). There, Stahl argued it was entitled to $14,000 interest accruing to the date of payment and it was entitled to $3,000 interest on the $14,000 to the date of judgment. The appellate court did not rely on Phillips Petroleum Company v. Adams, 513 F.2d 355 (5th Cir.), cert. denied 423 U.S. 930 (1975), which will be discussed later, but instead relied on a common-law principle to find Phillips liable for interest on the $24,000. That common-law principle is that “interest cannot be allowed eo nomine — i.e., under that name — unless especially provided for by statute, except where interest is assessed, sans statutory sanction, as damages to indemnify a party for a wrong done to him.” 550 S.W.2d at 365. The court stated that, under the facts presented, the claim for interest was not an element of damages for tortious injury, but rather a claim under a contract and, therefore, had to be authorized by statute. The applicable statute at the time the contract was executed defined “interest” as “the compensation allowed by law or fixed by the parties to a contract for the use or forbearance or detention of money.” 550 S.W.2d at 365. It was stated that Stahl claimed interest because Phillips used Stahl’s money, and the sum due was ascertainable and came within the meaning of the statute. Stahl recovered $14,000 interest and $3,000 interest on that sum.
On review by the Texas Supreme Court, that court stated the common-law rule that prejudgment interest cannot be allowed eo nomine unless provided for by contract or statute has not been rigidly or consistently applied in a manner which would deny a party legal compensation for the use or detention of his money. Phillips Petroleum Co. v. Stahl Petroleum Co., 569 S.W.2d 480. The Supreme Court found the court of civil appeals had reached the correct result, but did not agree with that court that Stahl’s right to recover existed only under an enabling statute. The Supreme Court relied on Phillips Petroleum Company v. Adams, 513 F.2d 355, a federal case interpreting Texas law. In Adams, Phillips was held liable for interest on delayed payments under the equitable principle that Phillips should not be able to use someone else’s money, thereby receiving a benefit, yet paying nothing. Thus, the Texas Supreme Court ruled that interest for the use of money is an equitable exception to the common-law rule of interest eo nomine. Stahl, 569 S.W.2d at 487. The court affirmed Stahl’s award of $14,000 interest (six percent interest on the $24,000 suspended payments) and the additional $3,000 interest (six percent on the $14,000 interest liability).
Cases subsequent to Stahl have also awarded interest based upon equitable principles. Fuller v. Phillips Petroleum Co., 408 F. Supp. 643, 646 (N.D. Tex. 1976) (Phillips liable as a distributor to the gas producer for interest on money it held and used for its own corporate purposes); MCZ, Inc. v. Smith, 707 S.W.2d 672 (Tex. App. 1986) (court can award prejudgment interest based upon equity for compensation of another’s use of his funds); Gulf Const. Co., Inc. v. Self, 676 S.W.2d 624 (Tex. App. 1984) (prejudgment interest can be awarded as damages under equitable principles); Behring Intern. v. Greater Houston Bank, 662 S.W.2d 642 (Tex. App. 1983) (court may elect to fix prejudgment interest rate by using equitable principles or statutory method); Standard Fire Ins. Co. v. Fraiman, 588 S.W.2d 681 (Tex. Civ. App. 1979) (insurance company retained money that should have been paid to insured and court held insurance company should not be unjustly enriched).
Phillips argues several points to show why, under Texas law, it is not liable for the interest on the suspended royalties. (These arguments were rejected by this Kansas court in Shutts II.)
First, Phillips argues that under its casinghead gas contract, it is a purchaser rather than a producer of gas, and, therefore, it pays royalties only when so ordered by the producer of the gas. Phillips relies on the following contract provision:
“For the account and on behalf of Seller, Buyer agrees to disburse such royalties, overriding royalties, bonus payments and production payments, as Seller shall from time to time direct, accruing from the production and sale of gas hereunder. Buyer shall deduct such payments from the amounts due Seller hereunder. Seller agrees to indemnify and hold Buyer harmless from loss and damages resulting from payments made pursuant to Seller’s direction. Notwithstanding, Seller may elect initially to make all payments accruing from the production and sale of gas hereunder to the owners of all royalties, overriding royalties, bonus payments and production payments and to hold Buyer harmless therefrom in which event Buyer shall have no obligation with respect to disbursement of such payments as first above provided.”
Therefore, Phillips argues, the royalty owners should be seeking recovery of interest from the producer, rather than Phillips, upon a showing that Phillips did not distribute the monies as instructed by the producer. To bolster this argument, Phillips cites Exxon Corp. v. Middleton, 613 S.W.2d 240 (Tex. 1981), where the Texas Supreme Court wrestled with a clause in a lease agreement whereby royalties paid would be based on the market value of the gas “sold off’ certain leases. Exxon argued the effective date on which the gas was “sold” was when Exxon’s long-term gas contracts became effective. The court found the gas was sold when it was delivered. The court recognized that the transaction involved two agreements, the lease agreement and the gas contract, and stated Exxon’s royalty obligations were determined by the lease agreements which required royalties of one-eighth of the market value of gas when delivered. The lease agreements were made independent of, and were unaffected by, the gas contracts. 613 S.W.2d at 245.
Phillips’ argument on this point, that it was a purchaser and not a producer, lacks merit for two reasons. First, it is noted that in a news release dated March 20, 1975, Phillips had apparently agreed to make royalty payments for its producers:
“ — Phillips Petroleum Company has announced the following policy regarding payments to producers from whom it purchases gas under percentage of proceeds type contracts executed on or after January 1, 1973, and to royalty owners to whom it makes payments for gas produced from wells commenced on or after January 1, 1973, or from wells drilled prior to January 1, 1973, and said gas sold pursuant to contracts executed on or after January 1, 1973, based upon Phillips resale rates authorized by the Federal Power Commission’s Opinion No. 699, as amended.”
Additionally, in Phillips’ answers to interrogatories, it indi cated it had accepted the responsibility of the producers’ royalty owners; Phillips was asked how many class members had contractually released Phillips from liability for interest, and Phillips answered: “The total number is unknown at this time. Phillips has not yet determined all of the producers, and through them, the royalty owners involved.”
In any event, by agreeing to pay the royalty owners of the producers, Phillips would again be retaining the suspended royalties and using those funds until the ultimate distribution was made on behalf of the producers. Therefore, under these circumstances, it makes no difference that Phillips was the purchaser and not the producer under the gas contracts.
Next, Phillips argues that a special set of gas purchase contracts existed which included a “without interest” clause, as follows:
“The price per Mcf. that buyer receives under the ‘sales contract’ is, or may be, subject to regulation by the Federal Power Commission. The phrase ‘price per Mcf. that buyer receives,’ as used in this contract, shall mean only that portion of the price exclusive of any tax reimbursement then being collected by buyer under the sales contract which is not subject to possible future refund by buyer. If buyer is later determined to be entitled to retain all or part of any amount collected subject to refund and is relieved from all further obligation to refund with respect thereto, buyer shall retroactively recalculate the price payable hereunder and shall pay seller the difference, without interest, between the amount previously paid seller hereunder and the amount which would have been payable based on the price which buyer is so permitted to retain.” (Emphasis added.)
Phillips argues that because the contract allowed it to recalculate retroactively the money due to the seller, the money Phillips was holding belonged to Phillips and no unjust enrichment can be found. Phillips cites Stahl as approving this method to avoid liability for interest. However, the court in Stahl recognized that the gas purchase contract was subject to valid federal laws and regulations. The alternative suggested by the Texas Supreme Court did not include a “without interest” clause which is contrary to federal laws which require the payment of interest. Under its corporate undertaking, Phillips agreed to comply with the refunding provisions of 18 C.F.R. § 154.102 (1986), which sets forth the interest rates applicable to refunds. The alternatives did not suggest anything contrary to federal law, but sug gested ways to pay producers while waiting for FPC approval. These alternatives do not vitiate any interest on the refunds:
“On the contrary, the Court recognized that the contract was subject to valid federal laws and regulations. Since any portion of the increased prices received by Phillips was subject to refund, with interest, to its purchasers if finally disapproved by the FPC, it follows as a matter of law that any portion of the ‘refundable money’ which had been paid to Stahl under its contract was likewise subject to reimbursement with interest to Phillips. Thus, if Phillips had made its monthly payments to Stahl based on its percentage of the weighted average ‘price received’ by Phillips during all of the years pending FPC action, the only amount necessary to be ascertained as between Stahl and Phillips after the FPC opinion became final on October 30,1972, would have been the portion of Stahl’s payments which were refundable with interest, to Phillips. Only the ‘sustainable’ remainder would have been retainable by Stahl, and having been paid when due, there would have been no issue concerning interest.
“Phillips’ concern over this literal interpretation of the unambiguous terms of the contract is understandable, but Phillips prepared the contract. It knew that its receipts from interstate sales were subject to regulation by the FPC. It would have been a simple matter for the contract to have provided that increased prices from interstate sales would not be figured in the ‘weighted average price received’ until after approval by the FPC, if that had been the intention of the parties. Or, it could have been provided that the percentage of monthly payments based on unapproved interstate price increases would be withheld unless Stahl indemnified Phillips by a surety bond or other guarantee that Stahl would refund to Phillips, with interest, any portion of its payments attributable to price increases which were subsequently disapproved by a valid order of the FPC.” Stahl, 569 S.W.2d at 484.
It does not appear from this language that the Texas court would approve the “without interest” contracts which are contrary to federal regulations.
Next, Phillips argues that as a user of the gas, it cannot be held liable for interest. This argument makes very little sense. Phillips argues that as much as 70% of the gas it purchases is used by Phillips itself, and not sold to interstate pipeline companies. Therefore, Phillips argues, because it used the gas rather than sold it, Phillips “did not necessarily make use of another’s money, rather Phillips merely suspended payment of a small portion of the purchase price until its final obligation became certain.” First, it is noted that under the lease agreement Phillips agreed to pay a royalty on gas “produced . . . and sold or used off the premises.” Second, the argument that the transaction amounted to nothing more than an unliquidated claim on which no interest accrues lacks merit and was rejected in Stahl, where the court stated the terms of the contract “provided the means for ascertaining the sums due and payable to Stahl each month.” 569 S.W.2d at 483. The lease agreements involved here also include such a provision.
Finally, Phillips argues that under Texas law its obligation for interest stopped as of the dates it offered indemnity agreements to the royalty owners. Under the indemnity agreements, Phillips agreed to pay the royalty owners the increased royalties pending FPC approval and, in exchange, the royalty owners agreed to refund to Phillips, with interest, any amount of the increased royalties not approved by the FPC.
In Phillips Petroleum Company v. Adams, 513 F.2d 355, Adams had a lease agreement with Phillips. Adams later assigned that lease to Schnell. A dispute developed over whether Schnell or Adams should get the suspended royalties held by Phillips. The court ruled Phillips was liable to Adams under equitable principles of unjust enrichment for interest on the suspended royalties. That interest, however, stopped running as of the date that Phillips, as stakeholder of the funds, offered to pay the suspense money into court even though the funds were not actually paid until some months later. The court cited authority that:
“once a stakeholder makes an unconditional offer to give up possession of a disputed fund, it ceases to exert that dominion over the money sufficient to justify an obligation to pay interest thereon, and the rule is that once such an unconditional tender is made, any liability for interest ceases as of the date of tender.” (Emphasis added.) 513 F.2d at 370.
A similar situation arose in Phillips Petroleum Co. v. Hazlewood, 409 F. Supp. 1193 (N.D. Tex. 1975), aff'd 534 F.2d 61 (5th Cir. 1976), where Hazlewood assigned his leasehold estate to Alstar Production Corporation. Phillips was holding suspense monies totaling $57,000. Phillips paid that money to Alstar on June 30, 1971, under an agreement that Alstar would repay Phillips the money and indemnify it for any loss, together with interest. Alstar repaid Phillips the money and Phillips deposited the money with the court. The court held, under Adams, Phillips’ interest obligation to Hazlewood ended as of June 30, 1971, because after that date Phillips no longer had the free use of the money.
In Fuller v. Phillips Petroleum Co, 408 F. Supp. 643, Fuller, the producer of the gas, sued Phillips, its distributor, for monies held in suspense by Phillips pending FPC approval. Eventually, Fuller and Phillips entered into an indemnity agreement whereby the Fullers would receive the higher prices and, if the FPC later denied the price increases, the Fullers would refund the same to Phillips with interest. The indemnity agreements were silent on the question of interest Phillips would pay to the Fullers if the price increase was approved. The Fullers sought to recover interest on the funds held by Phillips up to the time that they were paid to the Fullers under the indemnity agreements. Citing Adams, the court ruled the Fullers were entitled to payment of interest until the time Phillips lost the reasonably free use of the money — the dates of the indemnity agreements. 408 F. Supp. at 646.
Finally, Phillips Petroleum v. Riverview Gas Compression Co., 409 F. Supp. 486 (N.D. Tex. 1976), involved indemnity agreements between the producers of gas and Phillips, the distributor. Under the agreements, the monies would be paid to the producers, and if the FPC ruling required a refund, then the producers agreed to refund the monies to Phillips together with interest. Consistent with Adams, the court ruled that the interest liability ceased when Phillips lost the reasonably free use of the money — the date Phillips offered pay-out. The case was remanded to determine the dates the offers of indemnity agreements were made.
There are two flaws in the analysis of the federal district court in Riverview. First, although an offer to pay out has been made, when indemnity agreements are never executed Phillips retains the money and its reasonably free use. Second, the indemnity agreements in both Riverview and Fuller do not appear to be the unconditional type of offer upon which Adams is based. Under the indemnity agreements involved in the instant case, the royalty owners would receive an early pay-out only if they agreed to refund the money to Phillips with seven percent interest, or the same rate which Phillips is required to pay by any applicable FPC order, whichever is the higher rate. Additionally, the royalty owners or producers had to obtain an acceptable and irrevocable letter of credit issued by a bank to secure the amount of the refund together with interest. No Texas state court has ruled on this particular situation. However, it does not appear that the offers of the indemnity agreements in this case are unconditional offers of pay-out.
To summarize, Texas law would clearly impose liability on Phillips for interest on the suspended royalties based upon equitable principles hereafter more fully discussed. We do not think the Texas Supreme Court would hold the liability for interest ceased as of the date Phillips offered conditional indemnity agreements to its royalty owners when no agreement was executed.
INTEREST RATE
In the above cases where liability for interest was accessed, the applicable interest rate was the Texas statutory legal rate of interest, six percent. Tex. Rev. Civ. Stat. Ann. art. 5069-1.03 (Vernon 1971) states:
“When no specified rate of interest is agreed upon by the parties, interest at the rate of six percent per annum shall be allowed on all written contracts ascertaining the sum payable, from and after the time when the sum is due and payable; and on all open accounts, from the first day of January after the same are made.”
This statute was amended in 1979 to read as follows:
“When no specified rate of interest is agreed upon by the parties, interest at the rate of six percent per annum shall be allowed on all accounts and contracts ascertaining the sum payable, commencing on the thirtieth (30th) day from and after the time when the sum is due and payable.”
When there is proof of an oral agreement as to a specific, determinable rate of interest, the transaction is governed by Tex. Rev. Civ. Stat. Ann. art. 5069-1.02 (Vernon 1971), which provides for a maximum interest rate of ten percent. Moody v. Main Bank of Houston, 667 S.W.2d 613 (Tex. App. 1984).
No Texas court ever mentioned the higher rates set by federal regulations to which Phillips had agreed to comply in its corporate undertaking. See Phillips Petroleum Company v. Adams, 513 F.2d 355 (5th Cir. 1975), cert. denied 423 U.S. 930 (1979); Phillips Petroleum Co. v. Hazlewood, 409 F. Supp. 1193; Phillips Petroleum Co. v. Stahl Petroleum Co., 569 S.W.2d 480, 488 (Tex. 1978). This issue has not been determined by the Texas Supreme Court.
Post-judgment interest, or interest on the interest, was awarded at the rate of six percent in Fuller v. Phillips Petroleum Co., 408 F. Supp. 643, 648 (N.D. Tex. 1976).
OKLAHOMA
LIABILITY
There are no Oklahoma cases involving liability for interest on suspended royalties. However, in West Edmond Hunton Lime Unit v. Young, 325 P.2d 1047 (Okla. 1958), royalty owners sued a unit organization for failing to get the highest prices for oil produced. Under the plan, the unit was the agent and trustee of all royalty owners and had a duty to sell all royalty oil for the highest market value or posted price. The Oklahoma Supreme Court ruled that, based upon principles of equity and the Oklahoma statute requiring prejudgment interest on liquidated claims, the royalty owners were entitled to the difference between what the oil was sold for and the highest available price. Prejudgment interest on that amount was assessed from the last day of the sale of the oil for less than the highest available price. 325 P.2d at 1052.
Additionally, in First Nat. Bank v. Iowa Beef Processors, 626 F.2d 764 (10th Cir. 1980), prejudgment interest was awarded in a situation where one party had the use of another’s money. There, Wheatheart owed IBP money from a dishonored check, and IBP owed Wheatheart money for cattle purchased. Wheatheart declared bankruptcy before IBP paid for the cattle, and IBP never paid anyone for the cattle. The bank had a security interest in the cattle and IBP’s claim of setoff for the dishonored check was in conflict with the bank’s security interest. The court first ruled the bank had priority over IBP. Second, the court ruled the bank had a right to proceed against IBP for the amount due on the cattle purchased together with interest. The court stated “[t]his result is not unfair to IBP; it had the use of the money during all of this time.” 626 F.2d at 771. See Rendezvous Trails of America, Inc. v. Ayers, 612 P.2d 1384, 1385 (Okla. App. 1980), where it is stated the traditional marketplace function of interest is to compensate another for the use of his money.
Phillips cites the Oklahoma statute concerning the statutory rate of interest as authority that Phillips cannot be held liable for interest under Oklahoma law. Okla. Stat. tit. 23, § 6 (1981), provides as follows:
“Any person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in him upon a particular day, is entitled also to recover interest thereon from that day, except during such time as the debtor is prevented by law, or by the act of the creditor from paying the debt.”
Phillips argues “prejudgment interest would not accrue on Phillips’ obligation to pay suspended royalties since, until final approval of an increased FPC price that would justify payment of those suspended royalties, the amount of the ultimate obligation is not capable of being determined.”
There is no Oklahoma case addressing the issue of whether claims for suspended royalties are unliquidated claims. However, a survey of Oklahoma law shows where Oklahoma courts have drawn the line as to certainty for damages in order to recover prejudgment interest. In cases where the court must make a determination of an object’s market value, or the amount of damages involved, the damages have been ruled unliquidated and prejudgment interest is denied. Jesko v. American-First Title & Tr. Co., 603 F.2d 815 (10th Cir. 1979) (in a suit against a title insurer for failure to defend title, the insured was not entitled to prejudgment interest based on loss of one-third of insured’s land since the extent of such loss was not mathematically ascertainable until the court placed a value on the land); Liberty Nat. Bank & Tr. Co. of Okl. City v. Acme Tool, 540 F.2d 1375 (10th Cir. 1976) (involving the negligent conduct of a sale by a bank, damages were not certain because determination of market value of property to be sold had to be made); Wilshire Oil Co. of Texas v. Riffe, 406 F.2d 1061 (10th Cir.), cert. denied 396 U.S. 843 (1969) (corporation sued former corporate officer for profits made while officer participated in competitive enterprises, damages held to be unliquidated); Sandpiper North Apartments v. Am. Nat. Bank, 680 P.2d 983 (Okla. 1984) (contractor sued subcontractor’s bank for misapplication of funds of progress payments contractor made to subcontractor; no prejudgment interest awarded because the amount of the fund involved was unknown until judgment was entered).
However, as to claims arising under contracts, express or implied, the rule that prejudgment interest is denied on unliquidated damages has been modified. See Note, Prejudgment Interest in Oklahoma, 34 Okla. L. Rev. 643 (1981). In Frankfurt v. Bunn, 408 P.2d 785 (Okla. 1965), the court ruled that where the amount sued for was capable of ascertainment by computation, even though the amount is unliquidated, prejudgment interest will not be denied. Frankfurt involved an action for recovery of money under an oral contract for electrical work and materials furnished by the plaintiff in repairing the defendant’s hotel. The oral contract provided the defendant would “pay along on his bill” as the work progressed, and the court ruled the damages were ascertainable by computation. See also First Nat. Bank v. Iowa Beef Processors, 626 F.2d at 770 (“Almost any lawsuit involves some dispute over defendant’s liability. As to the sum certain aspect, the correct inquiry is whether ‘the amount sued for’ can be ascertained prior to judgment.”)
The rule regarding prejudgment interest is also given flexible treatment. In Bobberson Steel Co. v. Harrell, 177 F.2d 12 (10th Cir. 1949), it was stated:
“It is the general rule of law in Oklahoma that interest on an unliquidated account or claim is not recoverable until the amount due is fixed by judgment. (Citations omitted.) But compensation is a fundamental principle of damages, whether the action be in contract or tort; and one who fails to perform his contract is justly bound to make good all damages which naturally and reasonably accrue from the breach. And while generally interest is not allowed upon unliquidated damages prior to the entry of judgment, the court may in the exercise of a sound discretion include interest or its equivalent as an element of damages when it is necessary in order to arrive at fair compensation.” 177 F.2d at 17.
Here, although the specific amount of royalties due is not known until the FPC grants final approval of the rate increases, Phillips is aware that the amount due will be in the range between the price increases it requested and the prices actually being collected. If the Oklahoma courts were faced with this issue, having no Oklahoma precedent on point, they would probably look to see how other jurisdictions have ruled. It should be noted that the Texas Supreme Court rejected an argument made by Phillips in Phillips Petroleum Co. v. Stahl Petroleum Co., 569 S.W.2d 480, that the sum payable under the contact was not ascertainable until the FPC granted final approval. The Oklahoma Supreme Court cited with approval the rationale of the Texas Court of Appeals, holding the sum due was ascertainable:
“ ‘At the time the contract was executed, Phillips, as permitted during the pendency of its applications for increases in the interstate commerce rates for its gas sales, was receiving from its purchasers and accepting as payment for its gas an amount of money in excess of the then established rates. Albeit the excess was subject to possible refund, none of the excess was contractually excluded from the “price received” by Phillips and on which payment to Stahl was contractually based. Phillips candidly concedes that neither statutory or decisional law nor the rules and regulations of the Federal Power Commission prohibit Phillips from including the excess in the amount on which calculation of payment to Stahl was made. It naturally follows that the portion of the prices exceeding the then approved interstate commerce rate received by Phillips from its gas sales in the Panhandle Field was, under the plain meaning of the language of the contract, a part of the “price received” on which the month-by-month payments to Stahl were to be based. Hence, within the meaning of the statute, the written contract is one ascertaining the sum payable, and interest is allowable on each unpaid sum which was due and payable monthly under the contract. And there is nothing in the contract to alter this legal consequence even though it later developed that Phillips was required to refund to its purchasers a portion of the purchase prices it has received.’ 550 S.W.2d at 366-67.” 569 S.W.2d at 484.
Next, Phillips makes the same argument that because Phillips was a purchaser, it cannot be held liable for interest. This time Phillips relies on Tara Petroleum, Corp. v. Hughey, 630 P.2d 1269 (Okla. 1981). There, Tara, the lessee, assigned the lease to Brown, who assigned it to Wilcoy. Wilcoy, as producer and seller, entered into a gas purchase contract with Jarrett Oil Company, buyer. Although the contract required Wilcoy to pay royalties, Jarrett made the actual royalty payments. Jarrett then turned around and sold the gas to El Paso Natural Gas under a contract which allowed Jarrett to get the FPC ceiling price. Jarrett was selling the gas at a higher price to El Paso than the price it was paying Wilcoy. The royalty owners sued for additional royalties, arguing their royalties should be measured by the price El Paso paid Jarrett, rather than the contract price Jarrett paid Wilcoy. The court ruled that as long as the contract between Jarrett and Wilcoy was reasonable when entered into, Wilcoy was not responsible for die additional royalties. The court also stated that neither Jarrett nor Tara was responsible for the additional royalties because, when the producer is not re sponsible for the additional royalties, the lessors are not entitled to additional royalties from any other party. The royalty owners argued under equity that Tara and Jarrett should not profit to the detriment of the royalty owners, asserting the two organizations were owned by the same men. The court stated that “[w]henever a lessee or assignee is paying royalty on one price, but on resale a related entity is obtaining a higher price, the lessors are entitled to their royalty share of the higher price. The key is common control of the two entities.” (Emphasis added.) 630 P.2d at 1275. However, the royalty owners failed to show the common control and were denied the additional royalties.
In the above case, the producers were not liable for the additional royalties because the gas purchase contract they had entered into with Jarrett was reasonable. And, because the producers were not liable, the purchaser, Jarrett, was not liable. Here, in the instant case, are the producers liable to the royalty owners? If yes, then the purchaser would also be liable. Under the casinghead gas contract, the producer/seller had an agreement with Phillips, as purchaser, that the price paid by Phillips to the producer was set out in the “sales contract.” The casing-head gas contract included the “without interest” clause previously referred to in this opinion. In that clause, it is noted that the price Phillips receives is subject to FPC regulation. On this point the Oklahoma Supreme Court would undoubtedly follow Texas and hold the gas purchase contract was subject to valid federal laws and regulations. Phillips Petroleum Co. v. Stahl Petroleum Co., 569 S.W. 2d 480.
Next, Phillips argues that under Okla. Stat. tit. 15, § 264A (1981), which defines interest as “the compensation allowed for the use or forbearance or detention of money, or its equivalent,” Phillips cannot be liable for interest. This argument has been previously discussed. Phillips contends that a significant amount of gas produced or purchased by Phillips was used by Phillips and, as a user, Phillips was not holding money belonging to someone else. For the reasons previously discussed, this argument is without merit.
Finally, Phillips argues that under Okla. Stat. tit. 23, § 8 (1981), Phillips is not liable for interest. That statute provides “[accepting payment of the whole principal, as such, waives all claim to interest.” Phillips contends that, because the royalty owners accepted the principal amounts due as a result of the FPC order, they are prevented from seeking interest. Phillips relies on Webster Drilling Co. v. Sterling Oil of Oklahoma, Inc., 376 P.2d 236 (Okla. 1962). There, Webster drilled an oil well for Sterling and billed Sterling. Sterling made partial payments, leaving $12,000 unpaid. Over a year after the sum was due, Webster sent Sterling a bill for the $12,000 plus interest. A year later, Sterling paid the $12,000 and Webster sued to recover the interest. Webster asserted it was an accepted custom in the industry that amounts due under contracts would bear interest at the rate of six percent until paid. Webster was suing to recover money which Sterling had agreed to pay. Webster was not seeking interest as damages for the breach of an obligation to pay money. The court ruled Webster’s cause of action was not an action for interest, but was for an “account stated” (defined as arising “where there have been transactions between debtor and creditor resulting in the creation of matured debts and the parties by agreement compute a balance which the debtor promises to pay and the creditor promises to accept in full payment for the items of the account,” Black’s Law Dictionary 17 [5th ed. 1979]). Therefore, Webster’s suit was based upon a new and independent obligation which rested upon the new agreement of the parties, express or implied, that Sterling would pay Webster the $12,000 plus interest. Thus, Okla. Stat. tit. 23, § 8 (1981) did not bar Webster’s suit.
Here, Phillips agreed in its corporate undertaking with the FPC that it would comply with the requirements of 18 C.F.R. § 154.102 (1986), which sets forth the applicable rates of interest to refundable monies held in suspense. Additionally, it is noted that in the indemnity agreements Phillips offered to its royalty owners and producers this requirement under the corporate undertaking is mentioned:
“From time to time and by various orders issued since June 7, 1954, the Federal Power Commission (FPC) has suspended increases in price for sales of gas filed by Phillips and has permitted such increases to be collected, beginning at some date subsequent to the original date proposed by Phillips, only upon Phillips filing a corporate undertaking with the FPC to refund all or any portion of such increase which the FPC may find not to have been justified, together with interest at the rate prescribed by the FPC. It is expected that future increase in price for the sale of gas may also be suspended and collection of such increases permitted only upon Phillips filing a similar undertaking.” (Emphasis added.)
The Oklahoma courts would probably view the above as similar to an industry practice whereby a new obligation is created at the time of payment, similar to the circumstances in Webster, and Okla. Stat. tit. 23, § 8 (1981) would not bar recovery by the royalty owners.
Furthermore, Oklahoma has adopted the United States rule, discussed more fully later in this opinion, on partial payment of an interest-bearing debt. Landess v. State, 335 P.2d 1077, 1079 (Okla. 1958).
To summarize, the Oklahoma courts have not ruled on the issues presented in this case. However, the Oklahoma Court of Appeals has recognized that the function of interest is to compensate another for the use of his money, and the Fifth Circuit has awarded prejudgment interest where one party has had the use of another’s money. Prejudgment interest, by statute, is awarded where the damages are certain or are ascertainable by mere calculation, as here.
INTEREST RATE
Okla. Stat. tit. 15, § 266 (1981) provides as follows:
“The legal rate of interest shall be six percent (6%) in the absence of any contract as to the rate of interest, and by contract the parties may agree to any rate as may be authorized by law, now in effect or hereinafter enacted.”
In the above cases where interest was awarded, the applicable rate was six percent. However, in First Nat. Bank v. Cit. & So. Bank, 651 F.2d 696 (10th Cir.1981), applying Oklahoma law, a federal circuit court awarded interest at the rate of ten percent as provided in the promissory note and rejected the argument that the interest must be limited to Oklahoma’s legal rate of six percent. Therefore, in equity, the corporate undertaking entered into by Phillips and the FPC would probably be viewed by implication as contractual by the Oklahoma courts and the rates required in 18 C.F.R. § 154.102 (1986) would be imposed, rather than the statutory six percent.
LOUISIANA
LIABILITY
Phillips relies on Whitehall Oil Company v. Boagni, 217 So. 2d 707 (La. App. 1968), modified 217 So. 2d 716 (1969) (party substituted), to support its argument that under Louisiana law Phillips is not liable for interest. There, the lessees of oil and gas leases were granted authority by the FPC to sell gas to pipeline purchasers at a price of 23.25 cents per 1,000 cubic feet (Mcf). This was conditioned on the lessees’ agreement to refund to the pipeline purchasers any difference between the 23.25 cents price and the price finally approved by the FPC, plus seven percent interest. The lessee (plaintiff Whitehall) paid royalties to the lessors (defendants royalty owners) based upon this higher rate of 23.25 cents per Mcf. The lessors were never informed, however, that if the FPC denied the rate increase, the royalty owners would be required to refund to the lessee the difference between the 23.25 cents and the price approved.
The FPC approved a price at 20 cents per Mcf. The lessee then refunded the difference to the pipeline purchasers and demanded reimbursement from the royalty owners. The royalty owners refused to pay and the lessee filed suit relying on the equitable principles of unjust enrichment and a code provision dealing with “Payment of a Thing Not Due.” La. Civ. Code Ann. art. 2301 (West 1979). Under the statute, if the payments to the royalty owners were not due under the lease agreement, Whitehall could recover the overpayment. It was found that the payments were not due. As to the equity argument, Whitehall argued it had to make the overpayment of royalties based on the price fixed by the FPC in order to protect its leases. Therefore, it argued, as the payments were made under business duress, the royalty owners should not be allowed to retain them under principles of equity. The Court of Appeals ruled that equity favored Whitehall. The court noted the overpayments were not large sums, and defendants had failed to show how they would be injured by their refund. Whitehall also argued it was entitled to a refund of both principal and interest which it had to pay to the pipeline purchasers. The court denied such interest without much comment. The court also rejected the lessors’ argument that forcing them to refund the overpayment to Whitehall resulted in the price being uncertain and violated the lease. The court ruled the action was based on a quasi-contractual obliga tion, i.e., that a payment made which was not due can be recovered based upon the rationale that every payment presupposes a debt. Post-judgment interest was awarded to Whitehall, although the opinion does not indicate the interest rate.
The Louisiana Supreme Court granted certiorari in Whitehall Oil Company v. Boagni, 255 La. 67, 229 So. 2d 702 (1969). Responding to the lessors’ arguments that the statutory provisions of “Payment of a Thing Not Due” were inapplicable, the court stated that, because the lease contract was silent on the issue of overpayments, equity would decide the case. 255 La. at 73-74. It was stated the royalty owners would be unjustly enriched at the expense of Whitehall if they were allowed to retain the overpayments. The court ruled Whitehall had no obligation to withhold part of the payments, or place the amounts in escrow, or file a concursus proceeding because “the proper amounts to be paid by [Whitehall] to the [royalty owners] was not known and could not be determined until such time as the Commission fixed the fair market value in its permanent rate authorization.” 255 La. at 76. Phillips argues that here, as above, the amount in question is not certain until final approval by the FPC and, therefore, Phillips is not liable for interest.
Louisiana law is confusing on this issue. Hicks v. Rucker Pharmacal Co., Inc., 367 So. 2d 399 (La. App. 1978), writ denied 369 So. 2d 1360 (La. 1979), relied on by Phillips, stated that all debts bear interest from the time they become due; an unliquidated claim, however, becomes due at the time it is ascertainable.
In Wurzlow v. Placid Oil Company, 279 So. 2d 749 (La. App. 1973), interest was allowed on an unliquidated claim from the date the defendant received the funds, rather than from the date of judgment (the ascertainable date). There, a declaratory action was brought by an oil and gas broker and his assignees to be recognized as owners of an overriding royalty interest. The court reviewed Louisiana law regarding interest on unliquidated debts and noted a Louisiana Supreme Court case which had reviewed the statutory changes and had stated:
“ ‘It is obvious that both changes indicate an intention that interest shall be allowed on unliquidated, as well as on liquidated, claims, and that interest shall commence to run at the time the debt becomes due, regardless of putting in default.’ ” (Emphasis in original.) 279 So. 2d at 773 (quoting Friede v. Myles Salt Co., 177 So. 105 [La. App. 1937]).
Therefore, in Louisiana, interest does run on an unliquidated debt once the debt is ascertainable.
Phillips also relies on Alexander v. Burroughs Corp., 359 So. 2d 607 (La. 1978), for the proposition that interest on a debt becomes due and payable only on the date it becomes liquid and ascertainable. Alexander involved a redhibitory action. Peerless, a company, had purchased a computer from Burroughs. The purchase was financed by General Electric Credit Corporation (GECC). The computer never operated properly and cost Peerless a substantial amount of money and time because employees had to double-check the computer’s work. One of the items the receiver of Peerless sought to recover (Peerless had declared bankruptcy) was the finance charge of $5,100 Peerless had paid on the $17,000 loan from GECC. The Louisiana Court of Appeals ruled that the $5,100 was not recoverable because, under the transaction, Burroughs got the use of the purchase price at the same time that Peerless got the use of the computer. The Louisiana Supreme Court, however, disagreed and found that Burroughs was liable for the $5,100 “interest” because the use of the computer did not bring any value to Peerless.
Certain language in Alexander has been questioned. There, it was stated:
“The decisions involving interest on sums recovered by suit are naturally myriad and because of their great number, if for no other reason, inconsistent. There is, however, a thread of consistency among the cases. Article 554, of the Louisiana Code of Practice of 1825 provided that interest should not run on accounts or unliquidated claims, but was repealed by La. Acts 1839, No. 53 § 1. This Court once commented,
“ ‘We have uniformly held that, since the passage of that act, all sums due on contracts bear interest from judicial demand, even where none has been stipulated, and the demand is unliquidated.’ Sullivan v. Williams, 2 La. Ann. 876, 878 (1847).
See also Petrie v. Wofford, 3 La. Ann. 562 (1848); Calhoun v. Louisiana Materials Co., 206 So. 2d 147, 151-52 (4th Cir. 1968), writ denied, 251 La. 1050, 208 So. 2d 324 (1968); Friede v. Myles Salt Co., 177 So. 105, 108 (Orl. La. App. 1937).” (Emphasis added.) 359 So. 2d at 613.
The later case of Meeks v. Huntington School, Inc., 489 So. 2d 435 (La. App. 1986), questioning the above language, involved La. Civ. Code Ann. art. 2000 (West 1987 Supp.), which replaced La. Civ. Code Ann. art. 1938 (West 1977). The new statute provided:
“When the object of the performance is a sum of money, damages for delay in performance are measured by the interest on that sum from the time it is due, at the rate agreed by the parties or, in the absence of agreement, at the rate of twelve percent per annum.” (Emphasis added.)
The question was whether the interest ran from the due date or the date of judgment. The court did not agree with the above-cited passage from Alexander that interest ran from the date of judicial demand, and it distinguished Alexander on the basis that it was a redhibitory action, while the case before it was a contract case. In Meeks, a former principal sued the school to recover salary due under his contract. No argument was made that the amount was unliquidated. Meeks recovered legal interest on each salary payment as it became due, rather than from the date of judicial demand.
Next, Phillips argues Boutte v. Chevron Oil Company, 316 F. Supp. 524 (E.D. La. 1970), aff'd 442 F.2d 1337 (5th Cir. 1971), is contrary to Whitehall. In Boutte, lessors filed a class action suit to set aside a mineral lease held by Chevron. One of the reasons to set aside the lease, asserted by the lessors, was that Chevron had failed to pay royalties as required by the lease. In its findings of fact the court stated:
“Chevron applied to the FPC for approval of an increased rate of23.675 cents and, on June 4, 1959, the FPC entered an order permitting the increased rate to become effective April 1,1959, without, however, approving the rate, and subject to the limitation that
“ 'Chevron shall, in accordance with its agreement and undertaking, refund at such time and in such amounts to the parties entitled thereto, and in such manner as may be required by final order of the Commission, the portion of the increased rates found by the Commission in this proceeding not justified, together with interest thereon.’” (Emphasis in original.) 316 F. Supp. at 527.
Chevron withheld royalties on the increased prices it was receiving pending final FPC approval. This suit was filed prior to, and the case was heard prior to, FPC final approval of rate increases requested by Chevron.
In its conclusions of law, the court ruled Chevron’s royalties calculations were correct, i.e., the royalties were calculated by not including the increased prices received by Chevron pending FPC approval. The court stated:
“A judgment which would impose on Chevron an obligation to pay royalties on that part of the funds received from the sale of gas which is subject to possible refund to pipeline purchasers, before Chevron’s refund obligation has been determined by final order of the FPC, would deprive Chevron of its property without due process of law and subject it to a multiplicity of legal actions. Therefore, Chevron’s calculation of the payment of royalties to plaintiffs is correct.
“Whitehall Oil Co. v. Boagni is distinguishable on its facts, particularly in view of the fact that the lease in that case provided that:
“ ‘In any case where Lessee sells gas or plant products of his and Lessor’s, Lessor shall receive the same price and terms as Lessee ....’” 316 F. Supp. at 531.
It is important to note that the court stated that if the FPC granted approval, the royalty owners were entitled to recover interest as set forth by the FPC:
“In the event that the FPC approves the provisionally increased rates or any part thereof, interest shall be due and payable, at the rate finally adopted by the FPC, to the royalty owners on the difference between any increase in rate, as finally determined by the FPC, and the amounts previously paid to the royalty owners.” (Emphasis added.) 316 F. Supp. at 531.
Whitehall and Boutte are not contrary in law, but are distinguishable upon their facts. In Whitehall, the lessee paid royalties based upon the increased rate pending FPC approval as was required in the lease while in Boutte, the lessee did not pay royalties upon the increased rate but was withholding royalties until final FPC approval. In Boutte, the federal court found that once final approval of the FPC order was granted, interest would be due. In Whitehall, the state court found that no interest was due because the amount due was not ascertainable until the FPC gave final approval.
Thus, it appears first that if the royalty owners were required under equity to refund overpayments in Whitehall, that same rationale applied here would require Phillips to refund the suspense royalties to the royalty owners and producers involved. The court also found it significant to note in Whitehall that the amounts of the refunds were relatively small. Here, the refunds held by Phillips are substantial. Second, the statement in Whitehall that no interest would be awarded on unliquidated claims is no longer the law. Interest is due at the time the unliquidated amount becomes ascertainable. Hicks v. Rucker Pharmacal Co., Inc., 367 So. 2d 399. Third, in Alexander, interest was awarded to compensate one for another’s use of his money. And fourth, although dicta, the court in Boutte v. Chevron Oil Company, 316 F. Supp. 524, recognized the royalty owners’ right to interest on suspended royalties under federal regulations.
Next, Phillips again argues that as a purchaser of gas, it is not liable for interest. The case relied on by Phillips is New Orleans Public Service v. United Gas Pipe Line, 732 F.2d 452 (5th Cir.), cert denied 469 U.S. 1019 (1984), where it is stated that, under Louisiana law, to have a stipulation pour autrui (a third party beneficiary contract), there must be a benefit to a third party and that benefit cannot be merely incidental to the contract. The benefit must form the condition or consideration of the contract. 732 F.2d at 467.
As to the contract between Phillips, as purchaser, and the producers, whereby Phillips agrees to pay royalties as the producers direct, Phillips relies on the following language from that case:
“Where the promisor’s performance is to be made to, and is subject to the control of, the promisee, the Louisiana courts have refused to find a stipulation pour autrui despite the fact that the promisor and promisee may have contemplated that the promisor’s performance would as a practical matter enable or facilitate the promisee’s performance of its obligations to a third party. See Fontenot v. Marquette Casualty Co, 258 La. 671, 247 So. 2d 572, 579 (1971) (reinsurance contract); Oswalt v. Irby Const. Co., 424 So. 2d 348, 354 (La. App. 1982) (agreement of grantee in right-of-way deed, where grantor reserved right to grow crops in right-of-way, to pay grantor for any future damage to crops on submittal of bill by grantor, was not stipulation pour autrui in favor of grantor’s lessee; distinguishing cases in which promisor’s agreement to pay is not stated in terms of payment to promise of claims submitted by promisee); Crowley v. Hermitage Health and Life Ins. Co., 391 So. 2d 53 (La. App. 1980) (health and accident insurance policy in which employer is insured, providing for benefits in the event of employee work-related injury to be paid to employer or persons furnishing services to employee, is not stipulation pour autrui in favor of employee injured on job). Even when the payments may be directly to the third party, but require the claim of the promisee, a stipulation pour autrui has not been found. Logan v. Hollier 424 So. 2d 1279, 1282 (La. App. 1982); Logan v. Hollier, 699 F.2d 758, 759 (5th Cir. 1983) (per curiam).” 732 F.2d at 468-69.
We find that, under Louisiana law, the corporate undertaking between Phillips and the FPC would be viewed as a stipulation pour autrui. In order for Phillips to receive the increased prices, pending FPC approval, Phillips, as consideration, agreed to comply with 18 C.F.R. § 154.102, which sets the applicable interest rates applying equitable principles. The royalty owners and producers would benefit from the agreement.
Next, Phillips cites Star Elec. Supply v. Fidelity & Deposit Co., 354 So. 2d 647 (La. App. 1977), writ. denied 356 So. 2d 1011 (La. 1978), and Waguespack Pratt, Inc. v. de Salvo, 225 So. 2d 269 (La. App. 1969), writ refused 254 La. 846 (1969), for the proposition that Louisiana law would not impose liability upon a person for holding the funds belonging to another. These two cases were concursus proceedings, a form of interpleader action in Louisiana. In both cases, the money had been deposited into court and the owner of the money was in dispute. The court ruled the interpleader could not safely pay the money to either party and denied interest on the amount in dispute.
Those cases must be distinguished because here, Phillips did not deposit the money into court and could have paid the suspense royalties to the royalty owners pending FPC approval. The cause of action here is based in contract and, under Whitehall Oil Company v. Boagni, 255 La. 67, when the contract is silent concerning the issue in dispute, equity decides the case.
Next, Phillips cites Smith v. Burden Const. Co., 379 So. 2d 1135 (La. App. 1980), for the proposition that under Louisiana law there is no legal basis for the recovery of interest as an item of damage. There, an employee’s fraud scheme was discovered and the company fired him. The employee sued the company for unpaid wages and vacation pay. The company brought a reconventional demand for losses and expenses incurred by the employee’s fraud. One of the company’s claims for damages was eleven percent interest. The court stated “[t]here is no legal basis for the recovery of interest as an item of damage.” 379 So. 2d at 1138.
Smith, however, did not involve an action based on contract. It is important to note that former La. Civ. Code Ann. art. 1938 (West 1977), stated that “[a]ll debts shall bear interest at the rate of seven percent per annum from the time they become due, unless otherwise stipulated.” Thus, the statement from Smith is misleading.
INTEREST RATE
As previously stated, La. Civ. Code Ann. art. 1938 (West 1977) provided for a legal rate of interest of seven percent on all debts from the time they become due, unless the parties have stipulated otherwise. That statute was replaced with La. Civ. Code Ann. art. 2000 (West 1987 Supp.) which provides for twelve percent interest, effective January 1, 1985. In Silver v. Nelson, 610 F. Supp. 505 (E.D. La. 1985), twelve percent interest was assessed as that was the date in effect at the time the obligation matured, even though the seven percent rate of interest was in effect at the time of the judicial demand. Phillips argues that if it is liable for interest under Louisiana law, the rate of seven percent controls rather than the rates required by 18 C.F.R. § 154.102(c) (1986), which provides:
“Refunds. (1) Any independent producer that collects rates and charges pursuant to this section shall refund at such times, in such amounts to the persons entitled thereto and in such manner as may be required by final order of the Commission the portion of any increased rates or charges found by the Commission in that proceeding not be justified, together with interest thereon as required in paragraph (c)(2) of this section.
“(2) Interest shall be computed from the date of collection until refunds are made as follows:
“(i) At a rate of seven percent simple interest per annum on all excessive rates or charges held prior to October 10, 1974;
“(ii) At a rate of nine percent simple interest per annum on all excessive rates or charges held between October 10, 1974, and September 30, 1979; and
“(iii)(A) At an average prime rate for each calendar quarter on all excessive rates or charges held (including all interest applicable to such rates or charges) on or after October 1, 1979. . . .
“(B) The interest required to be paid under paragraph (c)(2)(iii)(A) of this section shall be compounded quarterly.”
As stated above, these rates run from the date of collection until the refunds are made.
Again, in Boutte v. Chevron Oil Company, 316 F. Supp. at 531, a Louisiana federal district court stated in dictum that if the FPC granted approval of all or a portion of the price increases requested by Chevron, interest would be due and payable on the suspended royalties held by Chevron at the rates established by the FPC. These rates were questioned by an oil company in United Gas Pipe Line v. Federal Energy Reg. Com’n, 657 F.2d 790 (5th Cir. 1981). In particular, the average prime rate of interest was challenged, as was the compounding of interest provision. The pipeline company argued it should not have to pay interest on the entire amount of the refund because it did not have use of all the monies subject to refund due to the company’s tax obligations. The court stated:
“The problem arises because the Treasury has the use of part of the collection while the Commission decides whether the rates are reasonable. A question arises as to who should pay the time-cost of that money while the Commission makes its decision — the filing company or its customers?
“It follows from what was said before that the burden should be on the company. When a gas company accepts money subject to reiund it becomes a stakeholder, and the Commission then determines who owns the stakes. Interest can be required only when it is determined that the money belongs to . the consumers. As between passive consumers and active sellers, there seems to be no reason to place this burden on the eventual user, so the Commission’s decision in that respect is certainly reasonable. While the result we reach does not depend on it, we agree with the Commission’s conclusion that gas companies can avoid this expense by acting prudently in submitting rate requests. We reject the petitioners’ suggestion that this is an inappropriate consideration. On the contrary, Congress proscribed even a demand for unreasonable prices, and the return a company earns on unreasonable charges, albeit collected by permission of Congress, cannot control the rate of interest to be paid to consumers.” 657 F.2d at 796.
We find Louisiana would apply the FPC rates of interest under equitable principles. Whitehall Oil Co. v. Boagni, 225 La. 67. 18 C.F.R. § 154.102 provides interest runs from the date Phillips collected the funds until it made the refunds.
NEW MEXICO
LIABILITY
New Mexico appellate courts have not been presented a case involving interest liability on suspended royalties. However, in Shaeffer v. Kelton, 95 N.M. 182, 619 P.2d 1226 (1980), prejudgment interest was awarded where one party was deprived of the use of his money. A construction contract for the development of property was involved. After the plaintiff had substantially completed the project and was ready to close, the defendant refused to close, saying he wanted out of the deal. The plaintiff sought damages, not based on the contract, but in the form of interest accruing daily on the amount owed to him. The trial court denied the plaintiff interest and the Supreme Court of New Mexico reversed, stating:
“In this case, the plaintiff has not only been unable to discharge a sizeable construction loan, but he has also been forced to make costly interest payments while attempting to locate another willing buyer. In addition, he has lost the use and earning power of $17,000 of his own funds used to finance the project. Simple interest is allowed as a means of estimating these probable gains and as compensation for their prevention.” (Emphasis added.) 95 N.M. at 187.
The New Mexico court has ruled that the statute allowing interest at six percent is construed according to the Restatement of Contract § 337 (1932):
“In New Mexico, the allowance of interest is governed by Section 56-8-3, N.M.S.A. 1978, which provides in part that:
“The rate of interest, in the absence of written contract fixing a different rate, shall be six percent per annum, in the following cases:
“A. on money due by contract;
“B. on judgments and decrees for the payment of money when no other rate is expressed.
This Court indicated in O’Meara v. Commercial Insurance Company, 71 N.M. 145, 376 P.2d 486 (1962), that the New Mexico statute should be construed according to Restatement, Contracts § 337 (1932), wherein the rule is stated as follows:
“If the parties have not by contract determined otherwise, simple interest at the statutory legal rate is recoverable as damages for breach of contract as follows:
“(a) Where the defendant commits a breach of a contract to pay a definite sum of money, or to render a performance the value of which in money is stated in the contract or is ascertainable by mathematical calculation from a standard fixed in the contract or from established market prices of the subject matter, interest is allowed on the amount of the debt or money value from the time performance was due, after making all the deductions to which the defendant may be entitled.
“(b) Where the contract that is broken is of a kind not specified in Clause (a), interest may be allowed in the discretion of the court, if justice requires it, on the amount that would have been just compensation if it had been paid when performance was due.
“In previous cases, where the amount of damages was not fixed or determinable, this Court applied the rule of subsection (b) and held that the allowance of interest was not mandatory but should be left to the discretion of the trial court.” 95 N.M. at 187.
Thus, according to New Mexico law, if the amount involved is not ascertainable under subsection (a) above, then, under subsection (b), the trial court may still award prejudgment interest in the exercise of its discretion. See Navajo Tribe v. Bank of New Mexico, 700 F.2d 1285 (10th Cir. 1983) (the award of prejudgment interest is a question of law solely within the sound discretion of the court). Interest is allowable on unliquidated claims which can be calculated, even though the claim is disputed. Fanderlik-Locke Co. v. United States, 285 F.2d 939, 948 (10th Cir. 1960).
Again, Phillips argues that as a purchaser it is not liable for interest and relies on Western Farm Bureau Mutual Ins. Co. v. Barela, 79 N.M. 149, 441 P.2d 47 (1968). This case does not support Phillips’ position. The argument that Phillips is a purchaser and therefore owes no interest has no merit for reasons heretofore stated.
WYOMING
LIABILITY
There is no Wyoming case law concerning liability for interest on suspended royalties. Phillips relies on Rissler & McMurray Co. v. Atlantic Richfield Co., 559 P.2d 25 (Wyo. 1977), for its argument that, because the amount in question here is unascertainable until the final FPC order, under Wyoming law, no prejudgment interest can be awarded. That case involved a construction contract dispute where the trial court denied prejudgment interest to the prevailing party. The Supreme Court of Wyoming reviewed the history of the statutes authorizing interest in cases where contracts make no such provision. The court noted that, first, interest is recoverable on liquidated claims; however, interest on unliquidated claims is not recoverable until the claim is “readily computable by simple mathematical computation.” Second, the court stated the statutory interest rate is “adopted only as a convenient measure of damage for loss of use of money and recognizes the legislative view that money has value beyond its intrinsic worth.” 559 P.2d at 31. (See also Western Plains Service v. Ponderosa Development, 769 F.2d 654 [10th Cir. 1985], stating interest is compensation paid for use of money.) Ruling that the plaintiff was entitled to recover prejudgment interest, the Wyoming court stated the following:
“Rissler was entitled to the use of money which it had earned on its contract with ARCO from the date it became due; its cause of action accrued at that time. Rissler was also entitled to the use of money to which it is entitled from Certified from the date it became due. The use of money has real economic value of which Rissler has been deprived. Money has the ability to reproduce in terms of earning interest. Withholding interest when inappropriate causes the loss of use of a contractor’s capital. Interest is a fact of commercial life. In that sense, prejudgment interest is necessary to compensate the plaintiff not only for the amount by which it has suffered damages in the usual sense for breach of contract but also for the loss of use of the money to which it is entitled. ARCO and Certified have gained the use of money which Rissler has lost and to that extent have been unjustly enriched.” (Emphasis added.) 559 P.2d at 32.
The court then ruled that the claim involved was a liquidated claim. The defendant was aware of the plaintiff s prices for paving — $1.75 per square yard, three inches thick — and the contract even included that unit standard. The court stated, “Where there is a standard fixed in the contract, from which the amount earned may be computed, there is a liquidated figure, which should bear interest from the date due.” 559 P.2d at 33. The court cautioned, however, that before interest starts to run, the debtor must receive notice of the amount due. 559 P.2d at 34.
Applying these principles to the case before us, we first note that Wyoming would likely recognize Phillips’ liability for interest under equitable principles on the use of the money belonging to the royalty owners. However, there are two other conditions to be met: (1) The claim must be liquidated, or if unliquidated, ascertainable by mere mathematical calculation; and (2) Phillips ordinarily should receive notice for the amount due from the royalty owners.
As previously discussed, the Texas courts have rejected the argument that the amount involved here is not ascertainable, but there is no Wyoming case on point. The requirement that the debtor receive notice of the amount due before interest starts to run seems impractical in the situation before us. Here, it is Phillips, the debtor, that notifies the royalty owners it is keeping a portion of their royalties. Those royalties are computed by Phillips and involve a detailed computation not available to the royalty owners. The average royalty owner would find it difficult to arrive mathematically at the sum he or she is owed by Phillips in order to give proper notice. Equitable considerations applied by Wyoming to the facts in this case would not require notice by the royalty owners to Phillips of the amount due.
Next, Phillips argues again that as a purchaser it cannot be held liable for interest because the royalty owners were not parties to the casinghead gas contracts, nor were they third party beneficiaries under those contracts. Phillips relies on Larsen Sheep Co. v. Sjogren, 67 Wyo. 447, 226 P.2d 177 (1951), where a partnership sued for specific performance of a contract to convey certain real estate pursuant to an option contained in a lease. The original partnership of three people dissolved and a new partnership consisting of two of the original three partners was formed. The dissolution agreement provided for the lease in question to be assigned to the partner who was leaving. The assignment was never completed; however, the dissolution agreement was orally modified and the old partnership retained the lease. The defendants complained that the written dissolution agreement controlled, but the court rejected that argument, stating:
“As stated in Williams vs. Eggleston, 170 U.S. 304, 18 S. Ct. 617, 619, 42 L. Ed. 1047: ‘The parties to a contract are the ones to complain of a breach, and if they are satisfied with the disposition which has been made of it and of all claims under it, a third party has no right to insist that it has been broken.’ ” 67 Wyo. at 472.
This case involving a partnership dissolution agreement is easily distinguishable from the instant case involving an oil and gas transaction which involves many different parties, and where one party, in fact, can wear many hats. (Phillips is a producer, distributor, and user of gas.) The royalty owners here are not insisting that the contracts made between Phillips and the producers be broken. They merely want to recover from Phillips interest for the use of their suspended royalties held by Phillips as stakeholder and used by Phillips in its business.
INTEREST RATE
Wyo. Stat. Ann. § 40-14-106(e) (1977) provides for a seven percent interest rate if no agreement or statute provides for a different rate. The rate of seven percent was imposed in Rissler & McMurray Co. v. Atlantic Richfield Co., 559 P.2d 25, discussed above.
There is no Wyoming case law to indicate whether the Wyoming courts would recognize the corporate undertaking filed by Phillips with the FPC and impose those rates rather than the rate of seven percent. Under equitable principles, however, Wyo ming would look to the law of other states and would apply the FPC rates.
In conclusion, Phillips has not briefed the conflict of laws issue for any jurisdictions other than Texas, Oklahoma, Louisiana, New Mexico, and Wyoming. We construe this to be an abandonment of any claim of error regarding jurisdictions other than the five states enumerated. Accordingly, Kansas law will be construed as applying to the disposition of all jurisdictions other than the five states enumerated.
Five of the six states involved have adopted the United States rule, Wyoming being the one state that has no law on this point. See Jones v. Nossaman, 114 Kan. 886, 894, 221 Pac. 271 (1923); Lambert v. Cronvich, 373 So. 2d 554, 562 (La. App. 1979); Savage v. Howell, 45 N.M. 527, 533, 118 P.2d 1113 (1941); Landess v. State, 335 P.2d 1077, 1079 (Okla. 1958); Community Savings and Loan Association v. Fisher, 409 S.W.2d 546, 550 (Tex. 1966). According to the United States rule, in the absence of an agreement or a statute to the contrary, partial payments to an interest-bearing debt which is due are first applied to the interest due. If the payment exceeds the interest, the surplus goes toward discharging the principal, and the subsequent interest is computed on the remaining principal due. If the payment does not discharge the interest that is due, the balance of interest is not generally added to the principal so as to produce interest. Rather, the interest continues on the former principal until the period when the payments, taken together, exceed the interest due. Then the surplus is applied toward discharging the principal, and the subsequent interest is computed on the remaining principal due. See 45 Am. Jur. 2d, Interest and Usury § 99.
The United States Supreme Court, in remanding this case to Kansas for further consideration in accordance with the law stated therein, has recognized the salient facts controlling this class action as follows:
“Because petitioner sold the gas to its customers in interstate commerce, it was required to secure approval for price increases from what was then the Federal Power Commission, and is now the Federal Energy Regulatory Commission. Under its regulations the Federal Power Commission permitted petitioner to propose and collect tentative higher gas prices, subject to final approval by the Commission. If the Commission eventually denied petitioner s proposed price increase or reduced the proposed increase, petitioner would have to refund to its customers the difference between the approved price and the higher price charged, plus interest at a rate set by statute. See 18 CFR § 154.102 (1984).
“Although petitioner received higher gas prices pending review by the Commission, petitioner suspended any increase in royalties paid to the royalty owners because the higher price could be subject to recoupment by petitioner’s customers. Petitioner agreed to pay the higher royalty only if the royalty owners would provide petitioner with a bond or indemnity for the increase, plus interest, in case the price increase was not ultimately approved and a refund was due to the customers. Petitioner set the interest rate on the indemnity agreements at the same interest rate the Commission would have required petitioner to refund to its customers. A small percentage of the royalty owners provided this indemnity and received royalties immediately from the interim price increases; these royalty owners are unimportant to this case.
“The remaining royalty owners received no royalty on the unapproved portion of the prices until the Federal Power Commission approval of those prices became final. Royalties on the unapproved portion of the gas price were suspended three times by petitioner, corresponding to its three proposed price increases in the mid-1970’s. In three written opinions the Commission approved all of petitioner’s tentative price increases, so petitioner paid to its royalty owners the suspended royalties of $3.7 million in 1976, $4.7 million in 1977, and $2.9 million in 1978. Petitioner paid no interest to the royalty owners although it had the use of the suspended royalty money for a number of years.” (Emphasis added.) Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 799-800, 86 L. Ed. 2d 628, 105 S. Ct. 2965 (1985).
These suspense royalties withheld by Phillips could in no event be retained by Phillips because under federal law it was merely a stakeholder of these funds until the FPC issued its final rulings on Phillips’ application for price increases. Then the funds would be distributed either to Phillips’ purchasers, from whom Phillips collected the increased price pending FPC approval together with interest in accordance with its corporate undertaking in compliance with federal regulations, if a refund was requested, or to the royalty owners. Had the royalty owners complied with all conditions imposed by Phillips, they could have received the increased royalty pending FPC approval but only if they agreed to pay interest in accordance with the amount specified by the federal regulations if Phillips’ price increase was not approved.
After reviewing the law of the five enumerated states in accordance with the proper due process constitutional standard, we find all of the five states enumerated would find interest payable when the F.PC approved the various rate increases because the amount due the royalty owners was then ascertainable or capable of calculation from the facts then available to Phillips.
The amount of interest payable on the royalties held in suspense which were not paid to the royalty owners, when the FPC approved Phillips’ rate increases, is the only remaining issue presented by this litigation on remand.
Based upon the law of the five enumerated jurisdictions as above reviewed, and upon all of the facts, conditions, and circumstances presented by this case, we find all jurisdictions would apply equitable principles of unjust enrichment to hold Phillips liable for interest on the royalties held in suspense by Phillips as a stakeholder. Under equitable principles, the states would imply an agreement binding Phillips to pay the funds held in suspense to the royalty owners when the FPC approved the respective rate increases sought by Phillips, together with interest at the rates and in accordance with the FPC regulations found in 18 C.F.R. § 154.102 (1986) to the time of judgment herein. These funds held by Phillips as stakeholder originated in federal law and are thoroughly permeated with interest fixed by federal law in the FPC regulations as heretofore set forth in this opinion.
POST-TUDGMENT INTEREST
When was judgment entered in this case?
Here, the original judgment against Phillips was entered by the district court on May 20,1983. That decision was affirmed as modified by this court on March 24, 1984. The district court had awarded post-judgment interest at the rate of the average prime rate pursuant to FPC regulations. That award of post-judgment interest was modified by this court to the statutory rate of fifteen percent from the date of judgment until paid. On June 26, 1985, the United States Supreme Court reversed and remanded the holding of this court in Shutts II concerning the choice of law issue. On our remand of this case to the district court for compliance with the United States Supreme Court decision, the district court ruled on April 30, 1986, that Phillips was liable for prejudgment interest on the suspended royalties at the FPC rates up to the time of judgment, and post-judgment interest at fifteen percent on the judgment until paid.
Phillips argues if post-judgment interest is awarded, it should run from April 30, 1986, the date of the new judgment, rather than May 20, 1983, the date of the original judgment.
In Lippert v. Angle, 215 Kan. 626, 527 P.2d 1016 (1974), this court addressed the issue of post-judgment interest on a judgment that had been successfully attacked on appeal. It stated:
“[W]here the action of the appellate court can be regarded as a full reversal, the action of the appellate court has the effect of wiping out the original judgment and interest on the new judgment then runs only from the time when the amount of the new judgment is fixed.” 215 Kan. at 628.
In First National Bank v. Bankers Dispatch Corporation, 221 Kan. 528, 537, 562 P.2d 32 (1977), it was stated:
“Where a money award has been modified on appeal and the only action necessary in the trial court is compliance with the mandate of the appellate court, the majority view is that interest on the award as modified should run from the date of entry of the original judgment. It has been so held regardless of whether the appellate court reduced or increased the original award.”
We hold the decision of the United States Supreme Court on the conflict of laws issue constitutes a “full reversal” of the original judgment in this case, which was May 20, 1983. The United States Supreme Court ruled that it was unconstitutional to apply the laws of Kansas to all claims involved. This we construe as vacating the original judgment on the amount of interest due. The Court ruled that on remand the “putative conflicts” in laws asserted by Phillips should be addressed by this court.
On our review of the lower court’s decision entered on April 30, 1986, we affirm the ruling as to interest payable on royalties held in suspense to the date of judgment, but reverse the ruling insofar as it applied the Kansas post-judgment interest rate to the states of Texas, Oklahoma, Louisiana, New Mexico, and Wyoming.
Our decision herein, modifying the decision of the district court, requires that post-judgment interest be paid from April 30, 1986.
The following shows the five states’ statutory post-judgment interest rates, effective on the date of the new judgment, April 30, 1986, to be applied on remand to the judgment of the royalty owners having leases in these states:
Texas:
Tex. Rev. Civ. Stat. Ann. art. 5069-1.05 (Vernon 1987).
The lesser of the rate specified in the implied contract
(FERC rate); or 18%
Oklahoma:
Okla. Stat. tit. 12 § 727 (1985 Supp.) 15%
Louisiana:
La. Civ. Code Ann. art. 2924 (West 1987 Supp.) 7%
New Mexico:
N.M. Stat. Ann. § 56-8-4 (1986) 15%
Wyoming:
Wyo. Stat. § 1-16-102 (1977) 10%
Accordingly, the interest payable to the royalty owners in this case is the rate of interest set forth in Phillips’ corporate undertaking with the FPC from the time Phillips first began holding royalties in suspense to the date of judgment entered by the district court, April 30, 1986, and post-judgment interest for royalty owners having leases in Texas, Oklahoma, Louisiana, New Mexico, and Wyoming at the statutory rates set forth above, and 15% post-judgment interest for royalty owners having leases in Kansas (K.S.A. 1986 Supp. 16-204[c]) and all other jurisdictions.
The judgment of the lower court is affirmed as modified and remanded to calculate the interest due the various plaintiffs in accordance with this opinion and to enter judgment thereon.
Allegrucci, J., not participating. | [
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The opinion of the court was delivered by
Herd, J.:
This is a direct appeal by the appellant, Benjamin L. Holcomb, from his jury convictions of aggravated burglary (K.S.A. 21-3716) and aggravated robbery (K.S.A. 21-3427).
On the evening of September 27, 1984, Gregory Benge was at his home in Wichita preparing to go out with a friend, when someone knocked at the door. Benge opened the door and a man, later identified as the appellant, asked for Benge’s roommate. Benge told the man that his roommate was not home and started to close the door. At that point, the man shoved the door open, pushed Benge to the floor while holding a gun at his back, handcuffed him, and taped his eyes shut.
Not long thereafter, Benge heard another man (Gary Steen) enter the house. Both men proceeded to go through Benge’s belongings, taking numerous items including guns, camera equipment, and jewelry. Meanwhile, David Newman, the friend whom Benge was supposed to go out with, approached the house and knocked at the door. When Newman received no response, he left, but later returned to find Benge and assist him in calling the police.
During subsequent interviews with the police, Benge described his assailant as having brown hair and a beard and weighing 175 to 180 pounds. He also told the police the name “Todd” was used by the unobserved robber in referring to the appellant.
The appellant was originally charged with aggravated robbery but the information was later amended to charge one count each of aggravated robbery and aggravated burglary. A jury found the appellant guilty of both counts and he was sentenced to consecutive terms of fifteen to twenty years for aggravated burglary and fifteen to thirty years for aggravated robbery. The appellant timely appeals his convictions.
The appellant first contends the district court abused its discretion in admitting the rebuttal testimony of Gary Steen.
Mr. Steen testified he and the appellant forcefully entered the home of Gregory Benge on September 27, 1984, and took numerous items, including camera equipment and guns. The appellant argued it was error to admit this testimony because it could have been presented in the State’s case in chief.
We recently summarized the rules relating to rebuttal evidence in State v. Richard, 235 Kan. 355, Syl. ¶ 1, 681 P.2d 612 (1984):
“Rebuttal evidence is that which contradicts evidence introduced by an opposing party. It may tend to corroborate evidence of a party who first presented evidence on the particular issue, or it may refute or deny some affirmative fact which an opposing party has attempted to prove. It may be used to explain, repel, counteract or disprove testimony or facts introduced by or on behalf of the adverse party. Such evidence includes not only testimony which contradicts the witnesses on the opposite side, but also corroborates previous testimony. The use and extent of rebuttal rests in the sound discretion of the trial court and its ruling will not be reversed unless it appears the discretion has been abused to a party’s prejudice.”
This court has further held that evidence which could have been admitted in the State’s case in chief, but which was not, may be admitted in rebuttal to contradict some new fact or circumstance brought forth in defendant’s evidence. State v. Childers, 222 Kan. 32, 43, 563 P.2d 999 (1977); State v. Nirschl, 208 Kan. 111, 117, 490 P.2d 917 (1971).
The appellant argues Mr. Steen’s testimony did not serve to contradict evidence introduced by the appellant, but rather, to corroborate evidence introduced in the State’s case in chief.
We do not agree. The State, in its case in chief, introduced the testimony of Gregory Benge, who identified the appellant as one of the men who robbed and burglarized him. The appellant then introduced evidence to show that Benge’s identification was unreliable since the appellant did not fit Benge’s description of his assailant, and since the appellant’s name was not “Todd.”
While Steen’s rebuttal testimony did serve to corroborate Benge’s testimony, it also refuted assertions made by the appellant in his case in chief. The trial court did not abuse its discretion in admitting the rebuttal testimony of Gary Steen.
The appellant next alleges that the charges of aggravated robbery and aggravated burglary are multiplicitous since they arose out of a single wrongful act and because the same continuous act of force was used to establish both convictions.
K.S.A. 1986 Supp. 21-3107 provides the prosecution with the authority to charge the defendant with multiple crimes when the conduct of the defendant, although consisting of a single transaction, may establish the commission of more than one crime.
The test for determining whether a single transaction constitutes two separate and distinct offenses is whether the same evidence is required to sustain each charge. If not, the fact that both charges arise out of the same transaction does not create a single offense. State v. Freeman, 236 Kan. 274, 281, 689 P.2d 885 (1984).
The elements necessary to prove aggravated burglary are: (1) The defendant knowingly entered [a building]; (2) the defendant did so without authority; (3) the defendant had the intent to commit a felony therein; and (4) at the time of the unlawful entrance, there was a human being in [the building]. PIK Crim. 2d 59.18 and K.S.A. 21-3716. The elements of aggravated robbery-are: (1) The defendant intentionally took property from [Gregory Benge]; (2) the taking was by force; and (3) the defendant was armed with a dangerous weapon. PIK Crim. 2d 56.31 and K.S.A. 21-3427.
An examination of these elements reveals that each offense requires proof of facts not required to prove the other. Accordingly, the charges are not multiplicitous and the trial court did not err in refusing to dismiss either of the charges.
The appellant’s final challenge is to the sufficiency of the evidence to support his convictions of aggravated burglary and aggravated robbery. The appellant bases this contention primarily upon the fact that Benge initially described his assailant as having brown hair, yet the appellant has grey hair. Further, appellant points to the fact that Benge reported to the police that the second man (Steen) referred to the first man (appellant) as “Todd,” yet the appellant’s name is Benjamin.
The standard of review upon this particular challenge was recently stated in State v. Bell, 239 Kan. 229, Syl. ¶ 9, 718 P.2d 628 (1986):
“In a criminal action, when the defendant challenges the sufficiency of the evidence to support a conviction, the standard of review on appeal is whether the evidence, viewed in the light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. The appellate court looks only to the evidence in favor of the verdict to determine if the essential elements of the charge are sustained.”
It is the function of the jury, and not this court, to evaluate the reliability of Benge’s identification of the appellant. Further, if Benge’s testimony was insufficient, the jury also heard Gary Steen’s testimony. Steen clearly identified the appellant as the man who, along with Steen, burglarized and robbed Gregory Benge.
The evidence was sufficient to convict the appellant of the crimes charged. The judgment is affirmed. | [
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The opinion of the court was delivered by
McFarland, J.:
Leroy L. Willcox was acquitted in a jury trial of two counts of murder in the second degree (K.S.A. 21-3402). The State brings this appeal therefrom on four questions reserved.
In State v. Holland, 236 Kan. 840, 696 P.2d 401 (1985), we iterated the general rules relative to appeals on questions reserved as follows:
“It has long been the rule of this court that questions reserved by the State in a criminal prosecution will not be entertained on appeal merely to demonstrate whether or not error has been committed by the trial court in its rulings adverse to the State. State v. Crozier, 225 Kan. 120, 123, 587 P.2d 331 (1978); State v. V.F.W. Post No. 3722, 215 Kan. 693, 695, 527 P.2d 1020 (1974); State v. Chittenden, 212 Kan. 178, Syl. ¶ 1, 510 P.2d 152 (1973); State v. Kopf, 211 Kan. 848, 508 P.2d 847 (1973); State v. Glaze, 200 Kan. 324, Syl. ¶¶ 1 and 2, 436 P.2d 377 (1968). As we noted in Glaze, appeals on questions reserved by the State have generally been accepted where they involve questions of statewide interest important to the correct and uniform administration of the criminal law. The decisions have been of such a nature as to serve as a guide in future trials where the same or similar issues are likely to arise. In these cases we have frequently interpreted statutes, sometimes recently enacted, which had not previously been before this court. We have uniformly declined to entertain questions reserved, the resolution of which would not provide helpful precedent. See Chittenden, Kopf and Glaze.” 236 Kan. at 841.
Upon careful review, we conclude that only one of the questions reserved meets these criteria. We therefore decline to entertain all but one of the questions reserved.
This question is whether or not the trial court erred in excluding the defendant’s testimony from a previous trial when offered by the State to corroborate the testimony of its key witness. The defendant has been brought to trial four times for the 1979 killings of Donald and Norma Earl. The first two trials ended in mistrials. Defendant was convicted of second-degree murder in the third trial, but a new trial was granted when the trial court determined that the State had withheld certain information from defense counsel relative to the totality of the inducements offered by the State to its key witness (Cecil Stembridge). More particularly, defense counsel had been advised that the State had granted immunity from prosecution to Stembridge relative to the Earl homicides but did not advise defense counsel that, as a part of the package, certain juvenile charges against Stembridge’s son had been dismissed. The charges against the son were wholly unrelated to the Earl homicides. In his third trial defendant had testified, but he did not testify in his fourth trial. The trial court refused to permit the State to introduce defendant’s third trial testimony into the fourth trial.
In order to understand the significance of this ruling upon the State’s case, some facts must be set forth in some detail. The Earls disappeared on June 2, 1979. In 1983, Stembridge was arrested in Texas on a kidnapping charge and was questioned about the disappearances of the Earls. Eventually, he was granted immunity relative to the . Earls and led law enforcement officers to the grave of the Earls in rural Sedgwick County. He stated that he saw defendant and Robert W. Armstrong kill the Earls on June 2, 1979, in defendant’s home by strangling them with an automobile jumper cable. Stembridge then assisted the two men in burying the bodies. The motive for the slayings was revenge against Donald Earl for having informed against Armstrong in a criminal check-writing scheme. Armstrong and defendant were partners in certain activities.
In his testimony in his third trial, defendant agreed the Earls had been present in his home at approximately June 2, 1979, but denied any knowledge of their deaths. Defendant’s testimony thus corroborated Stembridge’s testimony in one highly significant respect. Without defendant’s testimony, Stembridge’s testimony was virtually uncorroborated in tying defendant to the Earls’ disappearances. The Earls were not seen alive after the evening of June 2, 1979, and defendant had admitted the Earls, himself, Armstrong, and Stembridge had all been together at his home on or about June 2, 1979.
In State v. Simmons, 78 Kan. 852, 98 Pac. 277 (1908), this court took up the issue of whether the Constitution is violated by the prosecution’s use of a defendant’s testimony at a subsequent retrial. The defendant in that case argued that under the Constitution he could not be compelled to be a witness against himself, and a reading of his earlier testimony would be just that. This court rejected the argument, stating:
“Where a defendant on trial on a charge of felony voluntarily goes upon the witness-stand and testifies in reference to his connection with the offense charged and the circumstances connected therewith, and after judgment procures a new trial, his evidence, properly identified and reduced to writing by a stenographer at the first trial, may be introduced in evidence by the state upon the second trial.” Syl. ¶ 1.
See State v. King, 102 Kan. 155, 169 Pac. 557 (1917), and State v. Taylor, 36 Kan. 329, 13 Pac. 550 (1886).
In Powers v. United States, 223 U.S. 303, 56 L. Ed. 448, 32 S. Ct. 281 (1912), the defendant’s testimony at a preliminary hearing was held properly admitted in the subsequent trial. Rejecting the defendant’s claim against his Fifth Amendment privilege against self-incrimination, the U.S. Supreme Court stated:
“In the present case, it does not appear that the witness claimed his privilege, or was ignorant of it, or that if he had known óf it would not have answered — indeed, the record shows that his testimony was entirely voluntary and understandingly given. Such testimony cannot be excluded when subsequently offered at his trial.” (Emphasis supplied.) 223 U.S. at 314.
See Edmonds v. United States, 273 F.2d 108, 112-13 (D.C. Cir. 1959), and cases cited therein.
Kansas appellate decisions have held that neither federal nor state constitutions were violated by the introduction at a criminal trial of the defendant’s former testimony voluntarily given at an inquisition, State v. McCarbrey, 152 Kan. 18, 20-23, 102 P.2d 977 (1940), or at a coroner’s inquest, State v. Finch, 71 Kan. 793, 795, 81 Pac. 494 (1905). This court has also permitted the use of prior exculpatory testimony by a defendant in conjunction with an inconsistent statement by the same defendant where relevant to a material issue at trial to show consciousness of guilt or unlawful intent. State v. Norwood, 217 Kan. 150, Syl. ¶ 1, 155-56, 535 P.2d 996 (1975).
The general rule permitting introduction of a criminal defendant’s prior testimony has an exception to it where the prior testimony was not given voluntarily. The leading case relative to this exception is Harrison v. United States, 392 U.S. 219, 20 L. Ed. 2d 1047, 88 S. Ct. 2008 (1968). In Harrison, defendant’s confession was introduced in a prior trial. Later the confession was deemed improperly admitted and the case was remanded for retrial. The prosecution introduced defendant’s prior testimony in the new trial, and defendant was again convicted. The question then became whether the prior testimony had been compelled by the admission of the improper confession and thus was not testimony voluntarily given. The U.S. Supreme Court reversed on the ground that the government had not demonstrated “that the petitioner’s testimony was obtained ‘by means sufficiently distinguishable’ from the underlying illegality ‘to be purged of the primary taint.’ ” 392 U.S. at 226. The question, the court declared,
“is not whether the petitioner made a knowing decision to testify, but why. If he did so to overcome the impact of confessions illegally obtained and hence improperly introduced, then his testimony was tainted . . . .” 392 U.S. at 223.
The Harrison court felt it necessary to inquire into the motives of a defendant to testify at his trial. It reasoned:
“The remaining question is whether the petitioner’s trial testimony was in fact impelled by the prosecution’s wrongful use of his illegally obtained confessions. It is, of course, difficult to unravel the many considerations that might have led the petitioner to take the witness stand at his former trial. But, having illegally placed his confessions before the jury, the Government can hardly demand a demonstration by the petitioner that he would not have testified as he did if his inadmissible confessions had not been used. ‘The springs of conduct are subtle and varied,’ Mr. Justice Cardozo once observed. ‘One who meddles with them must not insist upon too nice a measure of proof that the spring which he released was effective to the exclusion of all others.’ Having ‘released the spring’ by using the petitioner’s unlawfully obtained confessions against him, the Government must show that its illegal action did not induce his testimony.” 392 U.S. at 224-25.
The trial court, in denying the State’s proffer of the defendant’s prior testimony, reasoned that, since the conviction in the third trial had been set aside and a new trial granted as a result of the State’s misconduct in not advising defense counsel as to that part of the Stembridge “package” which involved dismissal of the juvenile court proceedings against Stembridge’s son, it would constitute “basic unfairness” to permit the State to introduce the defendant’s prior testimony into the fourth trial and would unconstitutionally compel defendant to be a witness against himself. The trial court did not specifically address the question of whether Or not the prior testimony had been voluntarily given.
We conclude that the trial court erroneously excluded the defendant’s prior testimony herein. The general rule is that such testimony is admissible. The facts herein do not come within the exception to that rule set forth in Harrison v. United States, 392 U.S. 219. Evidence was not improperly admitted in the third trial which compelled defendant’s testimony so as to make such testimony involuntary. The dismissal of the juvenile proceedings against Stembridge’s son was only another arrow in a large quiver of impeachment weaponry available to defense counsel for use against Stembridge’s credibility.
The appeal is sustained. | [
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In a letter received by the Clerk of the Appellate Courts on August 10, 2012, respondent Clifford R. Roth, an attorney admitted to the practice of law in the state of Kansas, voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (2011 Kan. Ct. R. Annot. 371).
At the time the respondent surrendered his license, there was a panel hearing pending in accordance with Supreme Court Rule 211 (2011 Kan. Ct. R. Annot. 334). The complaint alleged that respondent violated Kansas Rules of Professional Conduct 4.1 (2011 Kan. Ct. R. Annot. 581) and 8.4(b) (2011 Kan. Ct. R. Annot. 618).
This court, having examined tire files of the office of the Disciplinary Administrator, finds that the surrender of the respondent’s license should be accepted and that the respondent should be disbarred.
It Is Therefore Ordered that Clifford R. Roth be and he is hereby disbarred from the practice of law in Kansas, and his license and privilege to practice law are hereby revoked.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Clifford R. Roth from the roll of attorneys licensed to practice law in Kansas.
It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs herein shall be assessed to the respondent, and that the respondent forthwith shall comply with Supreme Court Rule 218 (2011 Kan. Ct. R. Annot. 379).
Dated this 15th day of August, 2012. | [
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The opinion of the court was delivered by
Prager, J.:
This is a direct appeal by the defendant, Larry K. Munyon, from a jury conviction of aggravated indecent liberties with a child (K.S.A. 1983 Supp. 21-3504). Following his conviction, defendant was sentenced to prison for a term of five to twenty years.
The facts in the case were not greatly in dispute and essentially are as follows: The defendant, Larry K. Munyon, was the father of L.M., age 11. In January of 1984, defendant’s ex-wife, Suzanne Munyon, moved to Wichita where she lived with a friend, S.M. L.M. was taking some special education classes in the Newton schools and resided in Newton with her father. It was during this period that the State’s evidence showed defendant engaged in acts of sexual abuse toward his child. L.M. took the stand and testified that the defendant had tied her to a bed and committed certain acts of sexual abuse on her including the fondling of her genitals and her fondling his genitals. The child testified that finally in January of 1984 she went to a friend and neighbor and told her about the sexual abuse. The neighbor discussed the matter with her family, and it was reported to the Newton police department. The incident was referred to a licensed clinical social worker in her capacity as an employee of the Harvey County office of social and rehabilitation services on January 8, 1984. The child was interviewed and counseled by the social worker and later by a physician. The physician testified at the trial that she examined the child and concluded that, because of the condition of the child’s sexual organs, she had been sexually assaulted. Another licensed clinical social worker employed by the State counseled with the child about sexual abuse by her father. At the trial, that witness testified that the child had told her that her father had sexually abused her and further testified as to the psychological, emotional, and family factors involved where there is sexual abuse of a child. She observed that the child’s sexual abuse by her father fit into the typical pattern of parental sex abuse of a child. She testified that she believed the child had been sexually abused and based her opinion on the psychological and emotional difficulties that L.M. was experiencing, the method and manner in which the child talked about her father, and from her own evaluation of certain cartoons which were drawn by the child to illustrate her relations with the defendant.
The defendant’s ex-wife, Suzanne, testified that prior to January 1984, she and the defendant were divorced and that the child was living with the defendant in Newton. She testified that defendant called her in January 1984, and informed her that the child had been picked up by the police and had accused him of sexual abuse. Suzanne testified that the defendant told her that he had let the child touch his sexual organs and that he had done it for sex education purposes. The defendant denied that he had ever abused the child. Other witnesses were called and testified that the child had told them that her father had sexually abused her.
The record discloses that in January of 1984, a Child in Need of Care case was filed pursuant to K.S.A. 1983 Supp. 38-1501 et seq. in the district court of Harvey County. As the result of that case, the child was removed from the defendant’s home. That proceeding was subsequently dismissed on April 2, 1984. The present criminal case was filed on June 15, 1984. The State’s evidence thus consisted basically of the testimony of the child as to the sexual abuse by the defendant, the testimony of the mother that the defendant had admitted that he had let the child touch his genitals for sex education purposes, and the testimony of expert witnesses that the child demonstrated all of the usual symptoms of sexual abuse.
The defendant did not take the stand. Defense counsel cross-examined the various witnesses and, in addition, offered testimony of the principal and teachers at the child’s school that they had never seen any signs indicating sexual abuse or that the child had any problems with her father. The defendant also offered several witnesses who attacked the credibility of S.M., the friend of the child’s mother.
During the trial but out of the hearing of the jury, defendant called Dr. Marvin Parrish, a clinical psychologist, as a witness to testify regarding his prior psychological counseling with defendant, his ex-wife, and the child during the existence of the marriage relationship. Dr. Parrish had been engaged in family counseling with the whole family, conducting independent interviews with the three participants individually and also together. Dr. Parrish was concerned as to the psychologist-client privilege and the admissibility of his testimony as to prior psychological counseling with the child and with her mother. A hearing was held outside the presence of the jury as to the scope of Dr. Parrish’s testimony and limitations imposed upon it by reason of the psychologist-client privilege. Specifically, counsel for defendant sought a ruling from the trial court that the psychologist-client privilege between Dr. Parrish and the child and Suzanne Munyon had been waived.
In the course of her testimony, Suzanne Munyon had testified that she had received marriage and psychological counseling from Dr. Parrish during the marriage relationship but at a time prior to the alleged indecent liberties. It is also clear that all of the counseling which Dr. Parrish did with the family was carried out while the parties were together as a family and prior to the alleged indecent liberties charged in this case. The trial court ruled that the psychologist-client privilege had not been waived and Dr. Parrish restricted his testimony accordingly. The case was submitted to the jury which found the defendant guilty as charged. The defendant filed a timely appeal to the Supreme Court.
The first issue which the defendant raises on the appeal is whether the trial court erred in holding that the psychologist-client privilege had not been waived with regard to the testimony of defense witness, Dr. Marvin Parrish, about his psychological counseling with the child and her mother, Suzanne. Defense counsel at the trial maintained that the privilege had been waived on the basis that Suzanne Munyon had mentioned counseling with Dr. Parrish on cross-examination and redirect examination and, furthermore, that the privilege had been waived as to the child as the result of the State’s placing the child’s mental condition in issue. The district court found that neither the mother or the child had waived any psychologist-client privilege which might exist. The court based its findings upon the fact that neither the child nor her mother, in their testimony, had discussed any privileged communication between themselves and Dr. Parrish, and, further, that the State could not by calling its expert witnesses to testify waive any privilege belonging to the child and her mother as it related to Dr. Parrish.
Before turning to the issue at law presented, we should note that Dr. Parrish did testify on behalf of the defendant before the jury and, in essence, stated that he had counseled professionally with the members of the Munyon family. Although Dr. Parrish did not give specific facts which he learned from the child and Suzanne in the course of the counseling, he did give his professional opinion that he had serious doubts whether the defendant had sexually abused his daughter. He further testified that at the time he counseled the family he did not see any clinical indicators that the defendant had sexually abused the child.
In determining whether or not the psychologist-client privilege had been waived under these circumstances, it would be helpful to consider the Kansas statutes on the subject and the applicable Kansas cases.
Prior to 1967, there was no specific statute granting a confidential relationship between a certified psychologist and his client so as to make professional communications privileged. In 1967, the legislature enacted the certification of psychologists act (K.S.A. 74-5301 et seq.) which provided for the certification and registration of psychologists. K.S.A. 74-5323 made communications between a psychologist and his client a privileged communication. K.S.A. 74-5323 provides:
“74-5323. Privileged communication. The confidential relations and communication's between a certified psychologist and his client are placed on the same basis as provided by law for those between an attorney and his client. Nothing in this act shall be construed to require such privileged communications to be disclosed.”
The attorney-client privilege is codified at K.S.A. 60-426, which provides as follows:
“60-426. Lawyer-client privilege, (a) General rule. Subject to K.S.A. 60-437, and except as otherwise provided by subsection (b) of this section communications found by the judge to have been between lawyer and his or her client in the course of that relationship and in professional confidence, are privileged, and a client has a privilege (1) if he or she is the witness to refuse to disclose any such communication, and (2) to prevent his or her lawyer from disclosing it, and (3) to prevent any other witness from disclosing such communication if it came to the knowledge of such witness (i) in the course of its transmittal between the client and the lawyer, or (ii) in a manner not reasonably to be aniticipated by the client, or (iii) as a result of a breach of the lawyer-client relationship. The privilege may be claimed by the client in person or by his or her lawyer, or if an incapacitated person, by either his or her guardian or conservator, or if deceased, by his or her personal representative.
“(b) Exceptions. Such privileges shall not extend (1) to a communication if the judge finds that sufficient evidence, aside from the communication, has been introduced to warrant a finding that the legal service was sought or obtained in order to enable or aid the commission or planning of a crime or a tort, or (2) to a communication relevant to an issue between parties all of whom claim through the client, regardless of whether the respective claims are by testate or intestate succession or by inter vivos transaction, or (3) to a communication relevant to an issue of breach of duty by the lawyer to his or her client, or by the client to his or her lawyer, or (4) to a communication relevant to an issue concerning an attested document of which the lawyer is an attesting witness, or (5) to a communication relevant to a matter of common interest between two or more clients if made by any of them to a lawyer whom they have retained in common when offered in an action between any of such clients.
“(c) Definitions. As used in this section (1) ‘client’ means a person or corporation or other association that, directly or through an authorized representative, consults a lawyer or lawyer’s representative for the purpose of retaining the lawyer or securing legal service or advice from the lawyer in his or her professional capacity; and includes an incapacitated person who, or whose guardian on behalf of the incapacitated person so consults the lawyer or the lawyer’s representative in behalf of the incapacitated person; (2) ‘communication’ includes advice given by the lawyer in the course of representing the client and includes disclosures of the client to a representative, associate or employee of the lawyer incidental to the professional relationship; (3) ‘lawyer’ means a person authorized, or reasonably believed by the client to be authorized to practice law in any state or nation the law of which recognizes a privilege against disclosure of confidential communications between client and lawyer.”
A good discussion of the lawyer-client privilege is presented in State v. Maxwell, 10 Kan. App. 2d 62, 691 P.2d 1316 (1984), where the following language may be found:
“K.S.A. 60-426 sets forth the attorney-client privilege and the exceptions thereto. The general rule may be summarized as follows: (1) Where legal advice is sought (2) from a professional legal advisor in his capacity as such, (3) communications made in the course of that relationship (4) made in confidence (5) by the client (6) are permanently protected (7) from disclosures by the client, the legal advisor, or any other witness (8) unless the privilege is waived. See 8 Wigmore on Evidence § 2292 (McNaughton rev. 1961).
“The rule has always been that communications between attorney and client are privileged when made in professional confidence. Communications not made in such confidence are not so privileged.” 10 Kan. App. 2d at 63.
An excellent discussion of the psychotherapist-patient privilege and its application in subsequent criminal proceedings may be found at Annot., 44 A.L.R.3d 24, §§ 3 and 28. It is stated that the purpose of the privilege is to assure the patient that disclosure of all intimate details of his life to his psychotherapist will not be disclosed to the public at large, to the patient’s embarrassment, and so encourage the patient to relate to his psychotherapist all details essential for the psychotherapist’s effective diagnosis and treatment of the patient’s mental and emotional problems.
The defendant contends that the trial court erred in ruling that the confidential relationship between Dr. Parrish and the child and her mother Suzanne had not been waived. Defendant first maintains that the privilege was waived in the prior Child in Need of Care case. In his brief, counsel relies on K.S.A. 38-719 which made medical or psychological reports or facts relating to the condition of the child who is the subject of the case admissible and states that such evidence shall not be excluded on the ground that the matter is or may be the subject of a physician-patient privilege or similar privilege or on some other rule against disclosure. K.S.A. 38-719 was a part of the Kansas Child Protection Act enacted in 1965. The act provided for the reporting of physical or mental abuse or neglect of children to the district court or to the department of social and rehabilitation services. The child was then to be examined and a report prepared stating the nature and extent of the child’s injuries and any other helpful information. Upon receiving such report the district judge was required to report the matter promptly to the department of social and rehabilitative services which was to initiate an investigation. If the circumstances indicated a reasonable belief that the child’s life or health was in danger, a peace officer was to take the child into custody.
All of the provisions of the Kansas Child Protection Act, including K.S.A. 38-719, were repealed by the 1982 legislature effective January 1, 1983. Thus, the act was not in effect when a Child in Need of Care case was filed in January 1984. At that time, the Kansas Code for Care of Children had been enacted and was effective. This code may be found at K.S.A. 1985 Supp. 38-1501 et seq. The new Kansas code expanded the earlier code and provided for prompt reporting of child abuse and neglect and a proceeding to protect the child. The obligation of protecting children and to prepare and file a petition alleging a Child in Need of Care was placed on the county or district attorney under K.S.A. 1985 Supp. 38-1510.
Under K.S.A. 1985 Supp. 38-1514, the district court is given the power to order an evaluation and a written report of the physical or emotional development or needs of the child who is the subject of the proceeding. The child may be referred to a state institution for evaluation. The child may also be referred to a mental health and diagnosis center for an evaluation. K.S.A. 1985 Supp. 38-1514(a)(l) also provides that a parent of a child shall have the right to obtain an independent evaluation at the parent’s expense. During proceedings under the code, the court may order a medical examination and report of the child who is the subject of the proceeding. The court may also order a report from any physician attending the child stating the condition, the diagnosis, and the treatment afforded the child.
The confidentiality of the reports and of examinations ordered by the district court is covered by K.S.A. 1985 Supp. 38-1514(c)(1), (2), which provides:
“(c) Confidentiality of reports. (1) Reports of court ordered examination or evaluation. No confidential relationship of physician and patient, psychologist and client or social worker and client shall arise from an examination or evaluation ordered by the court.
“(2) Report from private physician, psychologist or therapist. When any interested party to proceedings under this code wishes the court to have the benefit of information or opinion from a physician, psychologist or social worker with whom there is a confidential relationship, the interested party may waive the confidential relationship but restrict the information to be furnished or testimony to be given to those matters material to the issues before the court. If requested, the court may make an in camera examination of the proposed witness or the file of the proposed witness and excise any matters that are not material to the issues before the court.
“History: L. 1982, ch. 182, § 14; Jan. 1, 1983.” (Emphasis supplied.)
It should be noted that K.S.A. 1985 Supp. 38-1514(c)(l) excludes any claim of a confidential relationship between a physician and patient, psychologist and client, or social worker and client as a result of an examination or evaluation ordered by the court. Subsection (c)(2), however, recognizes the continuing existence of a confidential relationship where there has been a prior examination or evaluation of an interested party by a private physician, psychologist, or therapist. In order to receive such testimony, the interested party must waive the confidential relationship or at least restrict the information to be furnished or the testimony to be given. The provisions of K.S.A. 1985 Supp. 38-1514 are important in this case because that statute makes it clear that the confidential relationship between a child or another interested party with a psychologist existing prior to the institution of a proceeding under the Kansas Code for Care of Children is fully protected. In the present case, the defendant’s argument that the preexisting psychologist-client privilege was waived in a Child in Need of Care proceeding cannot be sustained.
The defendant next maintains that the psychologist-client privilege was waived during the criminal trial because the State placed into issue the physical, emotional, and mental condition of the child by using testimony of the psychologist and the licensed clinical social worker. In support of his position, the defendant relies on State v. Cofer, 187 Kan. 82, 353 P.2d 795 (1960). In Cofer, it was held in a case where the defendant was charged and convicted of rape and incest that it was error to exclude the testimony of a psychiatrist who was acquainted with the sixteen-year-old victim and her father, the defendant, on the ground that such testimony was privileged and, therefore, the psychiatrist was incompetent to testify. At the time Cofer was decided, G.S. 1949, 60-2805 provided that a physician was in competent to testify concerning any communication made to him by his patient without the consent of the patient, and that where a patient testified as to the communications, the privilege is waived, thereby rendering the physician a competent witnesses. The Supreme Court held that the privilege had been waived because it had never been asserted or claimed and because the doctor had a written authorization by the defendant and his wife as to matters concerning the family. The alleged victim in the case, the defendant’s daughter, testified at the trial and never asserted or claimed any privilege. The Supreme Court held that, under those circumstances, the testimony should have been admitted.
In the present case, the defendant moved the court to waive the privilege on behalf of the child and her mother, Suzanne. The trial court ruled that it had no right to do so. We do not consider the Cofer case applicable here because the new psychologist-client privilege involved in this case is afforded the same protection as the attorney-client privilege. Cofer involved the physician-patient privilege.
We have considered the other reasons asserted by defense counsel that the privilege had been waived. We find them to be without merit. In this case, the defendant had the right to have his child examined on order of the court and in a Child in Need of Care proceeding. Furthermore, the defendant could have filed a motion for a psychological examination of the child as the complaining witness in the criminal case. In State v. Gregg, 226 Kan. 481, 602 P.2d 85 (1979), this court held, without equivocation, that a trial judge has the discretion to order a psychiatric examination of the complaining witness in a- sex crime case if the defendant presents a compelling reason for such examination. In the present case, the State called to the stand two social workers and a psychologist to testify in regard to their interviews and counseling with the defendant’s daughter. Under this court’s decision in State v. Gregg, the defendant could have moved for a psychiatric examination of the child which the court would certainly have granted in view of the expert testimony to be offered by the State.
It is undisputed that in this case the confidential relationship between Dr. Parrish and the daughter took place during a time when the parties were living together in a family relationship and before there was any charge of sexual abuse of the child by the defendant. The confidential relationship existing between Dr. Parrish and the parties at that time remained in effect and, although that confidential relationship could have been waived by the individuals involved, the trial court did not have the right to waive that confidential relationship without their consent. We hold that the trial court did not err in excluding, from the testimony of Dr. Marvin Parrish, the specific details of his psychological counseling with either Suzanne Munyon or the child.
We note that, in his testimony, Dr. Parrish was given full rein by the court to express his opinion that he had serious doubts and did not believe that the defendant had sexually abused his daughter. As noted above, all of the counseling by Dr. Parrish with the Munyon family occurred over a year prior to the incident in January 1984, which caused the child to complain about sexual abuse. It is questionable whether his communications with the Munyon family so many months prior to the child’s complaint of January of 1984, would have had much relevance in the case. We find no error on the first point presented by the defendant.
The second point raised by defendant on the appeal is that the trial court erred in denying the defendant’s motion for a new trial based on newly discovered evidence. At the hearing on this motion, the defendant offered the testimony of a number of witnesses who were of the opinion that testimony of the child and Suzanne. Munyon was manipulated, threatened, and unlawfully influenced by S.M. so as to cause them to falsely accuse the defendant of sexually abusing his daughter. There was also testimony that another man who lived in the same apartment complex as the defendant and his daughter was accused by the child of having sexual relations with her. The thirty-four witnesses called by the defendant to support his motion based on newly discovered evidence tended to show that the friend of the family was a psychological sadist, a pathological liar, and a sociopath-psychopath. Dr. Parrish testified that S.M. had used the psychological principle of projection to accuse others of sexual abuse which she herself had committed. Stated simply, it was the position of the defendant that these witnesses established that the charge of sexual abuse by the defendant of his daughter was a hoax dreamed up by S.M. to satisfy some psychological and uncontrollable forces in her mental makeup.
The trial judge who heard all this testimony overruled the motion for a new trial based on newly discovered evidence finding that the testimony presented was not of such materiality that it would likely have produced a different result upon a new trial. The court found that the newly discovered evidence could have been produced at the first trial. The court further found that the new evidence would not have produced a reasonable doubt as to the guilt of the defendant. The trial court also noted the evaluation summary from the Kansas Reception and Diagnostic Center in which the defendant stated voluntarily that he had allowed his daughter to touch his genitals because it was educational for her to know something about the male sex organs. He seemed to be convinced that this was fully legitimate behavior. We have considered the evidentiary record of the hearing on the motion for a new trial and concluded that, under the established principles of law pertaining to the subject, the trial court did not err in denying defendant’s motion for a new trial.
The general principles governing the granting of a new trial based on newly discovered evidence are discussed in State v. Hobson, 237 Kan. 64, 66, 697 P.2d 1274 (1985), as follows:
“K.S.A. 22-3501(1) permits a district court to order a new trial on the ground of newly discovered evidence. The rules governing these motions were set forth in State v. Johnson, 222 Kan. 465, 565 P.2d 993 (1977):
“ ‘The granting of a new trial for newly discovered evidence is in the trial court’s discretion. (State v. Larkin, 212 Kan. 158, 510 P.2d 123, cert. den. 414 U.S. 848, 38 L. Ed. 2d 95, 94 S. Ct. 134.) A new trial should not be granted on the ground of newly discovered evidence unless the evidence is of such materiality that it would be likely to produce a different result upon re-trial. (State v. Hale, 206 Kan. 521, 479 P.2d 902.) The credibility of the evidence offered in support of the motion is for the trial court’s consideration. (State v. Anderson, 211 Kan. 148, 505 P.2d 691; State v. Larkin, [212 Kan. 158].) The burden of proof is on defendant to show the alleged newly discovered evidence could not with reasonable diligence have been produced at trial. (State v. Lora, 213 Kan. 184, 515 P.2d 1086; State v. Arney, 218 Kan. 369, 544 P.2d 334.) The appellate review of an order denying a new trial is limited to whether the trial court abused its discretion. (State v. Campbell, 207 Kan. 152, 483 P.2d 495; State v. Anderson, [211 Kan. 148].)’ p. 471.
“These rules have been repeated by the court many times, most recently in State v. Richard, 235 Kan. 355, 363, 681 P.2d 612 (1984). In Richard we also stated ‘[a] new trial is not granted on the basis of newly discovered evidence which merely tends to impeach or discredit the testimony of a witness.’ 235 Kan. at 363.”
We cannot say that the trial court erred or abused its discretion in its rulings.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Miller, J.:
This is an action for breach of an employment contract. Dean R. Lessley, plaintiff, recovered a judgment against defendants Samuel A. Hardage and three Hardage corporations following a jury trial in Sedgwick District Court. Defendants appealed, and we ordered the case transferred to this court pursuant to K.S.A. 20-3018(c). Defendants contend that the trial court erred in overruling defense motions for summary judgment and directed verdict. Involved therein are the questions of whether there was an enforceable contractual obligation upon defendants to pay plaintiff cash bonuses and, if so, whether under the evidence plaintiff is entitled to recover on claims arising out of the Wichita Royale. and the Beacon Building projects.
It is a familiar rule that when the sufficiency of the evidence to support the judgment is challenged on appeal, we review the evidence in the light most favorable to the party who prevailed at trial. Long v. Deere & Co., 238 Kan. 766, 715 P.2d 1023 (1986); Tice v. Ebeling, 238 Kan. 704, 708, 715 P.2d 397 (1986); Ratterree v. Bartlett, 238 Kan. 11, 707 P.2d 1063 (1985); Toumberlin v. Haas, 236 Kan. 138, Syl. ¶ 5, 689 P.2d 808 (1984).
The rules governing the consideration of a motion for summary judgment are no less familiar. Summary judgment is proper if no genuine issue of fact remains, giving the benefit of all inferences which may be drawn from the admitted facts to the party against whom judgment is sought. A trial court, in ruling on motions for summary judgment, should search the record to determine whether issues of material fact do exist. When summary judgment is challenged on appeal, this court will read the record in the light most favorable to the party who defended against the motion for summary judgment. Olson v. State Highway Commission, 235 Kan. 20, Syl. ¶ 1, 679 P.2d 167 (1984).
Similarly, in ruling on a motion for a directed verdict, the trial court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought, and, where reasonable minds could reach different conclusions based on the evidence, the motion must be denied and the matter submitted to the jury. This rule must also be applied when appellate review is sought of a ruling on a motion for a directed verdict. Turner v. Halliburton Co., 240 Kan. 1, Syl. ¶ 1, 722 P.2d 1106 (1986); E F Hutton & Co. v. Heim, 236 Kan. 603, 609, 694 P.2d 445 (1985). Accordingly, we will review the facts and state them in the light most favorable to the plaintiff.
Samuel Hardage started his original real estate development company, Contemporary Mobile Home Corporation, in Los Angeles in 1969. The corporate name was changed several years later to U. S. Communities, Inc. He also had one or two wholly owned subsidiaries for management or construction. Apparently, Hardage’s and his corporations’ major experience, from 1969 to 1975, was in the construction and development of over thirty mobile home parks. In 1973, company headquarters was moved from Los Angeles to Wichita. Hardage Enterprises, Inc., was formed in 1975. Its first project was a mobile home park in Lincoln, Nebraska. This included construction of the pads that the mobile homes sit on; a clubhouse; a swimming pool; sewer, water, gas, and electric service; and paving and grading. This was the only project completed by defendants in the period 1975-1979. At the end of 1979, Hardage became interested in the development of office buildings. (The defendant corporations are all closely held and interrelated, and the parties stipulated that judgment against any defendant shall constitute judgment against all defendants. We will not attempt to distinguish between the acts of Hardage, individually or as a corporate officer, and the several Hardage corporations, defendants herein.)
Dean Lessley graduated from Colorado State University with a degree in finance and economics, and then received a master’s degree in business administration from the University of Denver in 1967. Following graduation, he was employed or connected with various real estate development and consulting firms. He had wide experience in the design, construction, and finance of commercial buildings. His last position, before joining Hardage, was as the chief operating officer of United Research Systems, a publicly traded company. During his tenure with that firm, it would typically have 150 active projects going on at the same time in perhaps 35 or 40 states. In December 1979 and January 1980, he was contacted by at least three executive recruitment firms, all of whom expressed an interest in his background. Each felt that Lessley would fill the requirements of clients who had open positions. One of these recruitment firms called plaintiff and discussed a position with Hardage Enterprises. Lessley was planning to take the position of executive vice president with a San Francisco firm which is the largest architectural landscaping firm in the United States when, due to the urging of an executive recruitment firm employee, Lessley flew to Wichita for an interview with Hardage.
During that interview, which occurred on March 4 or 5, 1980, Hardage described his firm, its prior experience in building mobile home parks, and his hopes and aspirations for the company in the field of real estate development in the future. Hardage described generally the salaries and fringe benefits offered to key employees and he also described a plan by which key employees in the company would share in company projects. He called this his “golden handcuffs” plan, by which he hoped to keep key employees with him. Later that evening, Lessley returned to Colorado where he was vacationing. No agreement was reached.
On March 7, 1980, Hardage, who by that time was also vacationing in Colorado, called Lessley and the two had a lengthy telephone conversation. Both parties agreed that Hardage would pay Lessley an annual salary of $55,000, would provide Lessley with executive fringe benefits, including life insurance and health insurance, and would provide Lessley with a company car. Lessley was promised a salary review after six months. The controversy over the terms of employment centers around additional benefits that Lessley claims Hardage promised. During the negotiations, Hardage described to Lessley a plan by which key employees of his company would share in company projects. There is no dispute that there was a discussion about this plan. Lessley testified that Hardage promised that 10% of each project on which the company worked would be set aside for key employees. This would then be distributed to the key employees based upon a determination by Mr. Hardage of the percentage that each key employee would receive. This percentage was to be based upon the quantity and quality of each employee’s work. Where Hardage retained an interest in the project, 10% of that interest would be set aside for key employees and, once each employee’s percentage of interest was determined (based on quality and quantity of work), that percentage would vest in the individual employee at the rate of 20% per year so that at the end of five years the individual employee’s percentage interest in the project would be completely vested. There is no dispute over Hardage’s promise to set aside 10% of retained equity for key employees. The dispute is over key employees’ participation in cash income, where there is no retained equity. Lessley testified that Hardage told him that he would share in cash proceeds coming to the company in the same fashion as he would share in retained equity. Lessley testified that he specifically asked Hardage about cash participation. He testified:
“Q. [Direct Examination by Mr. Turner] . . . Was there any other portion of a project that you would benefit from?
“A. Yes. As direct outgrowth of my conversations with Mr. Hardage about consulting fees, about construction management fees and about development fees, I asked very specifically beyond just real estate ownership, what about participation in project cash and he said yes. There is to be a commensurate distribution to the key employees of project cash.
“Q. Now, are you talking about commensurate, commensurate with the ten percent, is that what you’re talking about?
“A. That is exactly correct, could be either equity, could be cash or if both were available, it could be both.
“Q. Okay. And that was his explanation to you, is that correct?
“A. That is absolutely correct.”
Lessley made contemporaneous notes of this conversation. These were received in evidence.
Hardage denied that he ever promised Lessley any cash participation. He contended that his plan to share with key employees involved only a share in retained equity, i.e., when Hardage would keep an interest in a completed project, 10% of the interest retained would.be set aside for key employees. This plan, according to Hardage, did not extend to projects where Hardage received only cash and kept no interest in the project. He testified that he made no promise that employees would share in cash received by the corporation.
As a result of the agreement reached in the March 7 telephone conversation, Lessley came to work for Hardage, starting on March 31, 1980. He started at a salary of $55,000. This was increased to $60,000 on October 1, 1980, and to $70,000 on June 1, 1981. He was furnished a car and various fringe benefits, and he was granted equity participation of 3% in one project in October 1980, and 20% of another in 1981. In late November 1981, Hardage announced a change in the “golden handcuffs” plan. He increased the percentage of company projects available to key employees from 10% to the lesser of 25% of the total project or 50% of Hardage’s retained interest in the project. A dispute arose in the spring of 1982 over the right of key employees to participate in cash receipts of the Hardage companies.
In April 1982, the key employees met, without Hardage’s knowledge, at a private club in Wichita for the purpose of discussing cash participation in two specific projects — the Beacon Building and the Wichita Royale projects. Apparently Mr. Nelson, one of the key employees present, had set up the Beacon Building project so that, instead of retaining its equity in the building, the company would sell its equity for cash. Nelson and other key employees believed that they should receive a share of the proceeds from that sale. Each person at this meeting indicated what percentage he thought each key employee was entitled to on each of the two projects. These figures were totalled and then averaged. Apparently these employees agreed that the final numbers represented the deserved shares.
At a meeting of company executives held a few days later on April 17, 1982, Hardage announced a new organizational format which eliminated Lessley’s position as executive vice president; he was to be retained as development officer. Nelson expressed the desires of key employees to share in cash proceeds from development of projects, and Lessley agreed with him. Hardage disagreed. A heated discussion followed. Hardage denied that key employees were entitled to any cash participation. The issue was not decided.
On May 27, 1982, Lessley prepared a written summary of the amounts of cash he believed that he was entitled to on six projects. He drafted a letter to Hardage and left it on his desk, but had no response. He wrote again, but received no response. At the conclusion of a staff meeting held on June 21, Lessley and Hardage held a conference over the items set forth in the letter. Lessley testified that Hardage agreed that Lessley was entitled to three of the claims totalling $255,000, but wanted to wait on the three other projects until they were completed or the company’s interest therein had been sold. Lessley insisted that the matter be settled, and said that if it was not he would seek legal recourse. He was promptly fired, and moved out of the office that day. This suit followed.
At the conclusion of a three-week trial, the jury resolved the issues by responding to special questions. The jury found that the parties entered into an employment contract whereby Lessley was guaranteed participation in cash received by Hardage on real estate development contracts, and that Hardage breached that contract by failing to compensate Lessley for his work on the South Hutchinson feasibility study, the Plaza feasibility study, and the Beacon Building project. It also found that Hardage breached Lessley’s employment contract by failing to compensate him for his work on the Wichita Royale project, and that Hardage failed to act in good faith in regard to that project. The dollar amounts found by the jury to be due plaintiff are as follows:
South Hutchinson Feasibility Study $ 3,800.00
IMA Plaza Feasibility Study 1,000.00
Beacon Building Project 100,000.00
Wichita Royale Project 57,000.00
Finally, the jury found that, although the parties entered into an employment contract whereby Lessley was guaranteed equity participation in real estate development projects, he was not entitled to recover on his claim regarding the Central-Greenwich project. Judgment was entered for plaintiff for $161,800 plus interest and costs. Defendants appeal. There is no cross-appeal.
We now turn to the issues raised on appeal. Did the trial court err in overruling defendants’ motions for summary judgment and directed verdict, because there was no contractual obligation requiring the payment of cash bonuses? As noted above, there was ample evidence that Hardage promised Lessley that he would participate in cash received by Hardage on real estate development projects. That decision on the facts, however, does not completely determine the issue.
Hardage contends, first, that the alleged oral contract was not sufficiently definite and certain to create an obligation to pay cash bonuses. Second, he contends that an implied obligation of honest judgment cannot be used to supply essential terms of an agreement — in this instance, the amount of the bonus actually promised.
The general rule for evaluating the sufficiency of the definiteness of contractual terms is stated in Hays v. Underwood, Administrator, 196 Kan. 265, 267-68, 411 P.2d 717 (1966):
“[I]n order for an agreement to be binding it must be sufficiently definite as to its terms and requirements as to enable a court to determine what acts are to be performed and when performance is complete. The court must be able to fix definitely the legal liability of the party. We have adhered to this general rule. [Citations omitted.]
“Again, however, the courts generally have so far deviated from the general rule and set up so many exceptions that it is an exceptional case where the rule can be followed as a complete guide to the determination of the sufficiency and the definiteness of the terms of a contract.
“The courts will so construe an instrument as to carry the intentions of the parties into effect where possible. [Citation omitted.] The law will favor upholding a contract against a claim of uncertainty where one of the parties has performed his part of the contract. A contract may contain imperfections or be lacking in detail but it will not be held void for uncertainty if the court, under the recognized rules of construction, can ascertain the terms and conditions by which the parties intended to be bound.” 196 Kan. at 267-68.
In the past, this court has required only reasonable certainty in contracts. In Richards Aircraft Sales, Inc. v. Vaughn, 203 Kan. 967, 971, 457 P.2d 691 (1969),- we said: “[A]bsolute certainty is not required — only reasonable certainty is necessary.”
The basic issue in this case is whether the reservation of discretion by Hardage renders the contract so indefinite as to be unenforceable. Defendants cite considerable authority in support of their position that retention of discretion in determining the amount renders the promise too indefinite to be enforceable. Plaintiff, on the other hand, points out the fact that a fixed amount was to be distributed among the key employees, and that Hardage’s discretion must be exercised in good faith. When there is evidence regarding the amount to be distributed, and an announced plan as to how it is to be divided, plaintiff contends that the contract is sufficiently definite to be enforceable. There is authority on both sides of this issue, and no Kansas case is directly on point.
In Borden v. Skinner Chuck Co., 21 Conn. Supp. 184, 150 A.2d 607 (1958), the court determined that a statement in a booklet issued by the employer that bonuses were customarily paid and were entirely within the discretion of the Board of Directors did not constitute a direct and enforceable offer to pay a bonus. In contrast, Hardage promised the plaintiff that 10% (later 25% or 50%) of equity or cash would be set aside from each venture for key employees. While the exact amount of each employee’s share was to be determined later, there was a definite promise to give a particular group of employees a fixed share of the cash or equity. Significantly, the Borden court also noted that “where the employee has complied with the terms of a definite offer, the employer cannot avoid his obligation under it by asserting a discretionary power over the offer.” 21 Conn. Supp. at 190.
In Douglass v. Panama, Inc., 504 S.W.2d 776, 778 (Tex. 1974), the employer told the employees to “do a good job and you will get a good bonus.” Historically, bonuses had only been paid when the company had made profits. A similar case is Ward v. Berry & Associates, Inc., 614 S.W.2d 372 (Tenn. App. 1981), where the court found that the employer had made no commitment although the employer had told the employee that he should earn a bonus of a certain amount by a certain date, and that the amount would be determined by the amount of fees generated by the employee’s efforts. The written description of the bonus plan stated that there was no formal bonus arrangement and such would be determined solely on an individual basis. The facts in these cases distinguish them from the case now before us.
Albertson v. Ralston Purina Co., 586 S.W.2d 776 (Mo. App. 1979), involved an entirely different factual situation. It concerned a company plan for a severance gratuity which was to be granted in limited and exceptional cases, subject to approval of the corporate officer. The explicit purpose of the plan was to aid employees between jobs. None of the plaintiffs in that case had been unemployed for any period of time.
Parrish v. General Motors Corporation, 137 So.2d 255 (Fla. Dist. App. 1962), concerned retention of a bonus after termination. According to the agreement, employees would be able to retain their bonus rights only to the extent decided by a company committee. The court held that the mere possibility of a bonus did not constitute an enforceable contract right. We have not overlooked other cases cited by defendants, but find them distinguishable and unpersuasive. The case most similar to the case at hand is Hilgenberg v. Iowa Beef Packers, Inc., 175 N.W.2d 353 (Iowa 1970). Hilgenberg involved a bonus of indefinite amount — it was to be a percentage of the employee’s salary, but no employee was told of the precise percentage. However, the employer had allocated, though not segregated, $14,175 for the payment of bonuses. The jury found that the bonus in Hilgenberg was supported by consideration, and it found that the plaintiffs were entitled to the money set aside by the employer. The court apportioned the amount set aside among the employees.
In Cygan v. Megathlin, 326 Mass. 732, 96 N.E.2d 702 (1951), the employer agreed to pay the employee a fixed sum and “more later” when the defendants “got on their feet” if the amount requested was “fair and reasonable.” Defendants contended they owed nothing over the fixed amount because of indefiniteness. The court held that the promise to pay more was enforceable because the meaning of the general terms could be interpreted with reasonable certainty. The plaintiff, therefore, was entitled to fair and reasonable charges.
Lessley argues, correctly, that the mere existence of a discretionary duty does not render a contract unenforceable. Typically, a good faith obligation is implied to limit the exercise of discretion. For example, in Griswold v. Heat Corporation, 108 N.H. 119, 229 A.2d 183 (1967), an employer promised to pay $200 per month for accounting services which the employee “in his sole discretion may render.” The court found that the employee was obligated to render some services and to determine the amount in good faith. Two of the cases cited by defendants also refer to good faith. In Gronlund v. Church & Dwight Co., Inc., 514 F. Supp. 1304 (S.D.N.Y. 1981), the court held the employee had no enforceable contractual right to a bonus under defendant’s discretionary incentive program which reserved the right to alter or cancel the program. The court noted, however, that the committee in charge could not act arbitrarily. The burden was on the plaintiff to show that the committee’s decision was motivated by bad faith or fraud, and that burden was not met.
In Automatic Sprinkler Corp. v. Anderson, 243 Ga. 867, 257 S.E.2d 283 (1979), the court discussed the role of good faith in a discretionary bonus plan. The court observed that the general rule is that discretion must be exercised in good faith. It found, however, that the parties contracted to leave bonus decisions to the uncontrolled discretion of the corporation. The language of the contract indicated that any direct incentive was directly within the discretion of the corporation, and nothing in the employment contract should be interpreted to the contrary. When an employee terminated for certain reasons, the payment or nonpayment of money previously set aside was in the absolute and final discretion of the compensation committee of the Board of Directors. We have no such an agreement here.
The essential term claimed to be lacking in the employment agreement before us is the amount of the cash Lessley would receive. Hardage led employees to believe that they would be compensated in a manner commensurate with the work they did on each project — the quantity and quality of their work. This does not appear to us to be an immeasurable, indefinite compensation scheme. Hardage agreed to place a fixed percentage, readily ascertainable, aside, the same to be divided among key personnel. Once the total sum due the employees was fixed, the allocation of that amount among the key employees would seem here, as in Hilgenberg, a matter which a court or jury, upon proper evidence, may determine.
The trial court relied on Heckard v. Park, 164 Kan. 216, 188 P.2d 926 (1948), in denying Hardage’s motion for summary judgment. In Syl. ¶ 5 of that opinion, we said:
“The law implies that contractual provisions requiring the exercise of judgment or discretion will be honestly exercised and faithfully performed.”
Lessley had fully performed the work required of him by the contract. We hold that the oral contract between Lessley and Hardage, as established by the evidence and found by the jury, was sufficiently definite and certain to create an obligation on the part of the employer to pay percentages of retained equity interest and cash to the key employees. We further hold that, while the precise amount of the cash award to which plaintiff is entitled was not fixed in the contract, it is easily determinable, and in this instance was properly determined by the jury upon the basis of the evidence before it. The obligation of honest judgment implied in contracts where the exercise of judgment or discretion is involved cannot be used as a shield to prevent recovery by the plaintiff in this action. We do not regard the precise amount to which plaintiff is entitled to be an essential term of the agreement, where the amount can readily be determined by the jury.
We next turn to the Wichita Royale project. Did plaintiff state and prove a cause of action for bad faith on the Wichita Royale project? That is the issue before us.
This claim stems from the dissolution of a partnership which had employed Hardage companies to provide project development for the expansion of the Wichita Royale Hotel. The partners were Samuel Hardage, personally, and George Angle. The aim of the partnership was to acquire certain land near the Royale, and to construct a multi-story building. The financing of the project came primarily from George Angle and his banking interests. The Hardage companies, and their key executives, including plaintiff, did substantial work on this project over a period of some months. Eventually, Angle became dissatisfied and decided he wanted out of the partnership. He threatened to sue Hardage if the partnership dissolution was not resolved immediately. The parties, with some of their top executives, met and agreed upon a dissolution of the partnership. Angle had already spent a substantial sum for the development work and, as a result of the dissolution agreement, paid an additional sum in fees for the work the Hardage companies had done on the project. It is not clear from the evidence whether Angle paid $18,000 or $35,000 at this time. Lessley claimed that the companies had earned a total of $1,145,700 in fees at the time the partnership was dissolved. This calculation was based on the percentage of completion multiplied by the projected fees, which were based on projected costs. There is evidence on behalf of the plaintiff that Hardage entered into the “expensive” settlement because he wanted to resolve the dispute with Angle and avoid a lawsuit, since he was at that time involved in a race for the governorship of this state. Hardage’s explanation, however, is that by entering into the settlement with Angle he avoided the expense of litigating with Angle either in defending or bringing a suit, and, also, Hardage avoided losing a line of credit with Angle’s bank. He was also relieved of $850,000 in capital contributions and of paying another $99,000 in expenditures, and he received a loan commitment of 2.5 million dollars and received payment for all development fees billed to Angle. Thus, Hardage contends that the partnership dissolution agreement demonstrates the exercise of sound business judgment.
The real issue is whether the good faith obligation imposed in the employment contract extends to include the employer’s settlement negotiations with a third party. We have found no case, and counsel cite none, which impose such an obligation on an employer. The contract being negotiated and settled is between the employer and the third party. Both must act with good faith toward each other. However, while the impact of the negotiations may affect the compensation available to the employees of each party, that impact is somewhat indirect. In many situations an employee’s compensation may be affected by the decisions of his or her employer. An employer’s business decisions affect the prices asked for merchandise, market expansion or contraction, whether a factory is closed or another opened, and other elements which reflect the successfulness of a business. These are all factors which perhaps indirectly but ultimately affect the compensation or perhaps the very employment of the employees. Plaintiff contends that, in view of the fact that the key employees were to receive a percentage of the company’s fee income, Hardage was duty bound to the employees to pursue Angle through the courts and attempt to collect every bit of the fees which Lessley now claims were earned and due the Hardage companies. Lessley departed from the companies in June, and the settlement with Angle was not entered into until the following October.
The record indicates that Angle agreed to pay $198,350 in bills as part of the dissolution agreement and, in addition, Angle had apparently paid $1,700,000 in costs at the time of the termination. The partnership agreement provided that the partners were to share capital outlay equally, making Hardage liable for $850,000. In addition, Hardage could have been required to come up with half of the equity in the project, which would amount to $3,500,000. Given this financial background, it is not readily apparent that Hardage negotiated a “bad” settlement.
As we noted above, we have found no case in which an employee has been permitted to bring suit against his employer for bad faith in failing to sue a third party or in failing to negotiate with the third party a more favorable settlement of business claims. We see no reason to so rule at this time. To require every employer to take into consideration, in making every business decision, the possible and ultimate effect upon each of his employees would impose an intolerable burden upon business management. We decline to do so. The award for the Wichita Royale project must be reversed.
Finally, we turn to Hardage’s final contention on appeal, that the evidence did not establish that Lessley was entitled to a bonus for his work on the Beacon Building project. The thrust of Hardage’s first argument is that Lessley is not entitled to a share of the proceeds from this project because he was no longer employed at the time the company was paid. The authorities upon which Hardage relies are distinguishable because each involves an express contractual condition which had not been met. According to the agreement found by the jury, key employees were to share in a fixed percentage of the proceeds of projects at a rate based upon their respective work done on that project. There was no contractual requirement that the project be completed during the employee’s tenure with Hardage. The amount to be received was compensation for work done. Lessley is entitled to a share of the fixed percentage of the proceeds, commensurate with the work he performed.
Lessley’s work on this project — and that of other key employees — was thoroughly covered in the evidence. Lessley testified that he coordinated IRB funding for this project and was involved in development of design concepts. He also described all of the areas for which other key employees were responsible. Extensive evidence was provided to the jury by both parties to this litigation of the amount of (or lack of) work done by Lessley on the Beacon Building project. We conclude that the trial court did not err in overruling defendant’s motion for a directed verdict on the Beacon Building claim.
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The opinion of the court was delivered by
McFarland, J.:
Lawrence M. Willis appeals his jury trial conviction of aggravated criminal sodomy (K.S.A. 1985 Supp. 21-3506).
For his first issue defendant contends the trial court erred in permitting the State to introduce certain rebuttal testimony. The State’s case in chief may be summarized as follows. On March 11, 1986, a residence at 425 Clay Street in Topeka was being occupied by Scott Lundblade and Ms. G. Unless otherwise indicated, the times of the occurrence of events of that day are approximate. At 8:30 a.m. Lundblade heard a knock on the door of his residence. When he reached the door, he saw defendant walking away. Lundblade was well acquainted with defendant. At 9:30 a.m. a child for whom Ms. G. babysat arrived at the residence. At 9:55 a.m. Lundblade left for a visit to the home of his parents located two blocks away. At 10:10 a.m. defendant returned to the Clay Street residence looking for Lundblade. Defendant had frequently been a guest in the residence and Ms. G. permitted him to wait inside for Lundblade’s anticipated return. After 20 minutes defendant departed. About 30 minutes later, defendant returned and was again permitted by Ms. G. to wait inside for Lundblade. Defendant attacked Ms. G., striking and choking her and threatening to kill her if she resisted. Defendant then anally sodomized Ms. G. and left. Ms. G. dressed and walked to the home of Lundblade’s parents. Scott Lundblade was not present but Ms. G. told his parents what had happened to her. Mrs. Lundblade called the police. An officer was dispatched at precisely 11:07 a.m. to interview the victim. Photographic and scientific evidence was admitted showing bruising sustained by Ms. G. and that anal sodomy had occurred.
Defendant took the stand and denied ever being at the Clay Street residence on the morning of March 11, 1986. He then produced alibi witnesses. One witness testified defendant was at Sixth and Buchanan at 11:10 a.m. and that the two of them walked from there to a drive-in located at Sixth and Lincoln, where they left job applications.
The principal issue at trial at this point was identity. Defendant had testified he was not at the Clay residence at all on the morning of March 11 — thereby contradicting the testimony of both Ms. G. and Scott Lundblade. As rebuttal witnesses, the State called two neighbors of the victim who had seen defendant go to the Clay residence at approximately 8:00 a.m. and 10:00 a.m. on the morning in question.
Defendant contends this was improper rebuttal testimony as it failed to establish some new fact, circumstance, or opinion not already presented in the State’s case in chief. In support thereof, defendant cites State v. Childers, 222 Kan. 32, 563 P.2d 999 (1977); State v. Nirschl, 208 Kan. 111, 490 P.2d 917 (1971); State v. Bean, 181 Kan. 1044, 317 P.2d 480 (1957).
In State v. Childers, 222 Kan. 32, a rebuttal witness in a murder trial testified to the path of two bullets recovered from a house located across the street from the defendant’s house. The testimony rebutted defendant’s testimony that he was firing at the ground and not at the deceased. In upholding admission of the rebuttal testimony, this court said:
“Defendant further argues the testimony in question was improper rebuttal in that it could have been offered in the state’s case in chief. On this point in State v. Nirschl, 208 Kan. 111, 490 P.2d 917, we said:
‘With respect to the propriety of the rebuttal testimony, this court has held that evidence which could have been admitted in the case in chief but which was not, may be admitted in rebuttal to contradict some new fact or circumstance brought forth in the defendant’s evidence. That is the case here. The state could not attack the credibility of the defendant’s testimony until he had taken the stand. Once that issue was raised, it properly could be rebutted, (citing cases.)’ (p. 117.) Even though the state was aware that defendant would probably testify that he fired into the ground, the state is not required to anticipate what defense might be offered at trial and to offer evidence in its case in chief to meet all probable facets of the defense,‘. . . If so, the state would be required to elicit testimony in its case in chief to cover every possible contingency. . . .’ (State v. Phippen, 207 Kan. 224, 230, 485 P.2d 336.)” 222 Kan. at 43-44.
In State v. Bean, 181 Kan. 1044, this court rejected the contention that certain testimony was improper rebuttal. The Bean court found that the testimony did contradict new facts and circumstances brought forth on behalf of the defendant. As to the contention that the testimony was merely cumulative, this court said:
“The rule is that evidence offered in rebuttal, which might have been part of the state’s case in chief, is not improperly received when it tends to contradict some new fact or circumstance brought forth by the defendant’s testimony (State v. McGlade, 165 Kan. 425, 428, 196 P.2d 173). In State v. Beam, 175 Kan. 814, 267 P.2d 509, this court, in answer to the contention there made that certain evidence was not competent because it was a part of the state’s case in chief and therefore improper rebuttal, said:
“ . There are two short answers to these contentions. The first is that under the confronting circumstances this evidence was properly admitted on rebuttal for the purpose of refuting defendant’s claim. . . . The second is, that under our decisions (see The State v. Gibbs, 105 Kan. 52, 181 Pac. 569; The State v. Abrams, 115 Kan. 520, 223 Pac. 301; The State v. McReynolds, 118 Kan. 356, 360, 234 Pac. 975; State v. Haines, 128 Kan. 475, 477, 278 Pac. 767), the admission of such evidence, even though it be assumed it pertained to the state’s case in chief, did not prevent the defendant from having a fair trial and affords no sound ground for reversal of the judgment. . . .’ (l.c. 816,817.)” 181 Kan. at 1048.
Rebuttal evidence is that which contradicts evidence introduced by an opposing party. It may tend to corroborate evidence of a party who first presented evidence on the particular issue, or it may refute or deny some affirmative fact which an opposing party has attempted to prove. It may be used to explain, repel, counteract, or disprove testimony or facts introduced by or on behalf of the adverse party. Such evidence includes not only testimony which contradicts witnesses on the opposite side, but also corroborates previous testimony. The use and extent of rebuttal rests in the sound discretion of the trial court and its ruling will not be reversed unless it appears its discretion has been abused. State v. Hayes, 239 Kan. 443, Syl. ¶ 1, 720 P.2d 1049 (1986); State v. Richard, 235 Kan. 355, Syl. ¶ 1, 681 P.2d 612 (1984); State v. Taylor, 231 Kan. 171, 175, 642 P.2d 989 (1982); State v. Weigel, 228 Kan. 194, Syl. ¶ 9, 612 P.2d 636 (1980).
The rebuttal witnesses did not offer testimony that the crime had occurred — only that defendant was at the Clay residence twice on the morning of the crime. The defendant denied in his testimony ever being at the crime scene on the morning in question. There being no notice of the alibi defense filed, as provided for in K.S.A. 22-3218, the State was not required to anticipate defendant’s testimony in this respect and call these witnesses in its case in chief. We find no abuse of trial court discretion in the admission of rebuttal testimony.
For his second issue defendant challenges the giving of a Warren instruction on eyewitness identification. Defendant contends that the instruction given was inaccurate and misleading. Defendant made timely objection to the giving of the instruction. However, the fact defendant objected to the giving of a Warren-type instruction does not, of itself, preclude the giving of such an instruction when proper.
Instruction No. 6, the contested instruction, was taken from PIK Crim. 2d 52.20 as follows:
“The law places the burden upon the state to identify the defendant. The law does not require the defendant to prove he has been wrongly identified. In weighing the reliability of eyewitness identification testimony you first should determine whether any of the following factors existed and if so the extent to which they would affect accuracy of identification by an eyewitness. Factors you may consider are:
“1. The opportunity the witness had to observe. This includes any physical condition which could affect the ability of the witness to observe, the length of the time of observation, and any limitations on observation like an obstruction or poor lighting.
“2. The emotional state of the witness at the time including that which might be caused by the use of a weapon or a threat of violence.
“3. Whether the witness had observed the defendant on earlier occasions.
“4. Whether a significant amount of time elapsed between the crime charged and any later identification.
“5. Whether the witness ever failed to identify the defendant or made any inconsistent identification.
“6. The degree of certainty demonstrated by the witness at the time of any identification of the accused.
“7. Whether there are any other circumstances that may have affected the accuracy of the eyewitness identification.”
Defendant contends the instruction did not advise the jury how to apply the seven factors and improperly omitted other factors which should have been included.
In State v. Warren, 230 Kan. 385, 635 P.2d 1236 (1981), this court discussed in detail the problems inherent in eyewitness identification evidence. The court explained the need for a cautionary instruction:
“[U]ntil recently the appellate courts of America have not given proper recognition to the potential for injustice involved in the area of eyewitness testimony. The picture, however, is changing and the more recent decisions recognize the serious nature of the problem and, like the courts of Great Britain, have taken the position that the answer is an appropriate cautionary instruction on the subject. The pioneer case is United States v. Telfaire, 469 F.2d 552 (D.C. Cir. 1972). In Telfaire, the United States Court of Appeals for the District of Columbia Circuit adopted a model special instruction on eyewitness identification to be used in future cases in the circuit. The court in Telfaire recognized the need for guidelines to be given by the trial court to the jury to be used by the jury in weighing the credibility of eyewitness testimony. . . .
“There have been several cases before the Supreme Court of Kansas in which the issue has been raised that the trial court erred in refusing to give a special instruction to the jury on eyewitness testimony. In several cases, this court rejected the need for an instruction modeled after the Telfaire instruction. See State v. Porter, 223 Kan. 114, 574 P.2d 187 (1977); State v. Robertson, 221 Kan. 409, 559 P.2d 810 (1977); State v. Wilson, 221 Kan. 92, 558 P.2d 141 (1976); State v. Ponds and Garrett, 218 Kan. 416, 419, 543 P.2d 967 (1975). The question was before us most recently in State v. Mack, 228 Kan. 83, 612 P.2d 158 (1980). In Mack, we rejected the need for a special instruction modeled after the Telfaire instruction, stating that the general instruction given adequately covered the subject of the instruction requested and refused. We note that PIK Criminal does not comment on the need for such an instruction and no pattern instruction is provided.” 230 Kan. at 396-97.
In Warren we concluded:
“We have considered these Kansas cases along with cases from other jurisdictions and have concluded that in any criminal action in which eyewitness identification is a critical part of the prosecutions case and there is a serious question about the reliability of the identification, a cautionary instruction should be given advising the jury as to the factors to be considered in weighing the credibility of the eyewitness identification testimony. Any statements to the contrary in any of our previous cases cited above are hereby disapproved. In reaching this conclusion, we have considered the fact that trial courts are often required to determine the admissibility of eyewitness testimony where issues of unreliability are raised. As pointed out by Chief Justice Schroeder in State v. Ponds, 227 Kan. 627, in testing the reliability of identification testimony, the five factors mentioned in Neil v. Biggers [, 409 U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972),] should be considered by the trial court. If these five factors should be considered in determining the admissibility of the testimony, it would seem even more appropriate to require the jury to consider the same factors in weighing the credibility of the eyewitness identification testimony. Otherwise the jury might reasonably conclude that the admission of the evidence by the trial court vouched for its reliability. We think it clear that, in order to prevent potential injustice, some standards must be provided the jury so that the credibility of eyewitness identification testimony can be intelligently and fairly weighed. The giving of such an instruction will take only a couple of minutes in trial time and will be well worth it, if some future injustices can be avoided.” (Emphasis supplied.) 230 Kan. at 397.
The Neil v. Biggers, 409 U.S. 188, 199-200, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972), factors urged by the Warren court to be given as a cautionary instruction are:
“(1) [T]he opportunity of the witness to view the defendant at the time of the crime, (2) the witness’s degree of attention, (3) the accuracy of the witness’s prior description of the criminal, (4) the level of certainty demonstrated by the witness at the confrontation, and (5) the length of time between the crime and the confrontation.” 230 Kan. at 390.
PIK Crim. 2d 52.20, given herein, was developed as a direct result of the Warren decision. We conclude this instruction adequately expresses the holding of Warren.
The seven factors contained in PIK Crim. 2d 52.20 are self-explanatory, within the scope of ordinary laymen’s knowledge and judgment, and do not require expert testimony for application. The same cannot be said for the factors which defendant contends should have been added to the instruction. These include transracial identification (“own-race effect”), unconscious transference, after-acquired experience, and the “feedback” factor. These terms are beyond the scope of ordinary laymen’s knowl edge and experience and would require expert testimony to be applied by a jury.
In State v. Warren, the many problems involved in permitting expert testimony on the subject of eyewitness testimony were discussed at length. We then concluded:
“After considering these cases and the literature on the subject, we have concluded that requiring trial courts to admit this type of expert evidence is not the answer to the problem. We believe that the problem can be alleviated by a proper cautionary instruction to the jury which sets forth the factors to be considered in evaluating eyewitness testimony. Such an instruction, coupled with vigorous cross-examination and persuasive argument by defense counsel dealing realistically with the shortcomings and trouble spots of the identification process, should protect the rights of the defendant and at the same time enable the courts to avoid the problems involved in the admission of expert testimony on this subject.” 230 Kan. at 395.
We conclude that the trial court’s refusal to expand the seven factors contained in PIK Crim. 2d 52.20 was not error.
For his third issue defendant contends that the giving of an instruction on the credibility of the witnesses was erroneous.
The jury was instructed in Instruction No. 5 as follows:
“It is for you to determine the weight and credit to be given the testimony of each witness. You have a right to use that knowledge and experience which you possess in common with persons in general in regard to the matter about which a witness has testified. You may take into account ability and opportunity of the witness to observe and know the things about which the witness has testified; his/her memory, manner, and conduct while testifying; any interest he/she may have in the result of this trial; and the reasonableness of the testimony given, considered in the light of all the evidence in this case.
“The weight of the evidence on any issue is not determined by the number of witnesses but by how reasonable, persuasive, and satisfying the evidence is to you.
“If you find that any witness has willfully testified falsely concerning any material matter, you have a right to distrust the testimony of that witness in other matters and you may reject all or part of the testimony of that witness, or you may give it such weight as you think it deserves. You should not reject any testimony without cause.”
No objection to the instruction was made at trial. A party may not assign as error the giving or failure to give an instruction unless he or she objects to the instruction before the jury retires to consider its verdict, stating clearly the grounds for the objection. K.S.A. 22-3414(3). State v. Peck, 237 Kan. 756, 764, 703 P.2d 781 (1985); State v. Price, 233 Kan. 706, 711, 664 P.2d 869 (1983); State v. Korbel, 231 Kan. 657, 661, 647 P.2d 1301 (1982); State v. Franz, 9 Kan. App. 2d 319, 320, 676 P.2d 157 (1984). Absent such an objection, an appellate court may reverse only if the instruction is clearly erroneous. State v. Korbel, 231 Kan. at 661.
PIK Crim. 2d 52.09 (and PIK Civ. 2d 2.20) relative to credibility of witnesses provide:
“It is for you to determine the weight and credit to be given the testimony of each witness. You have a right to use common knowledge and experience in regard to the matter about which a witness has testified.”
With the exception of PIK Crim. 2d 52.20 relative to eyewitness identification, the trend has been to eliminate instructions which focus on the credibility of certain testimony. See comments following PIK Crim. 2d 52.10 (defendant as a witness); PIK Crim. 2d 52.11 (number of witnesses); PIK Crim. 2d 52.14 (expert witness); PIK Crim. 2d 52.15 (impeachment); PIK Crim. 2d 52.17 (confession); and PIK Crim. 2d 52.19 (alibi). Whereas it would certainly have been the better practice to give an instruction along the lines of PIK Crim. 2d 52.09, we cannot conclude the giving of Instruction No. 5 was clearly erroneous.
For his final issue defendant contends the evidence was insufficient to sustain the conviction of aggravated criminal sodomy.
It is well settled that, in a criminal action, when a defendant challenges the sufficiency of the evidence to support a conviction, the scope of appellate review is whether the evidence, viewed in the light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. The appellate court looks only to the evidence in favor of the verdict to determine if the essential elements of the charge are sustained. State v. Baker, 239 Kan. 403, Syl. ¶ 4, 720 P.2d 1112 (1986); State v. Bell, 239 Kan. 229, Syl. ¶ 9, 718 P.2d 628 (1986); State v. Van Cleave, 239 Kan. 117, Syl. ¶ 3, 716 P.2d 580 (1986).
There were many inconsistencies in the evidence relative to the precise times defendant came to and left the Clay Street residence on the three trips. One time is certain — the crime was reported to the police shortly before 11:07 a.m. (when the officer was dispatched). After the crime, the victim dressed herself, dressed the toddler with whom she was babysitting, walked two blocks to the home of Lundblade’s parents with the child, and related her story to the parents. The crime and the departure of Ms. G’s assailant could well have been determined by the jury to have occurred prior to 11:00 a.m. An alibi witness placed the defendant at Sixth and Buchanan, near the crime scene, at 11:10 a.m. Four witnesses (two of whom were well acquainted with the defendant) placed defendant at the crime scene the morning of the crime. The testimony of Ms. G. (the victim), if believed, satisfied all the elements of aggravated criminal sodomy. We conclude that the evidence was sufficient for a rational factfinder to have found the defendant guilty beyond a reasonable doubt.
The judgment is affirmed.
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The opinion of the court was delivered by
Rosen, J.:
This is an unfortunate story of a business and familial relationship gone bad. Rodney Schoenholz entered into an oral agreement with his sister, Janine Hinzman, for the bailment of farm animals and farm equipment on her land. Four years after their cooperative effort to breed horses broke down, Hinzman sold her farm and the horses. Schoenholz subsequently retrieved most of his equipment from tire farm and sued Hinzman for conversion and breach of the bailment contract. Hinzman counterclaimed for the expenses of maintaining the equipment and caring for the horses.
The district court awarded no damages. The Court of Appeals affirmed the rulings against Schoenholz but found the district court had erred in denying Hinzman compensation for caring for some of the horses and had abused its discretion in denying sanctions against Schoenholz. We disagree with the principal parts of the Court of Appeals’ decision and remand the case to the district court for further proceedings.
The dates and substance of the parties’ actions are significant to our analysis. In 1999, Schoenholz and Hinzman orally agreed to operate a joint horse-breeding enterprise. Schoenholz was to provide breeding horses, and Hinzman was to take care of the horses on her farm and would promote breeding with her own horses. Schoenholz would store equipment, including a tractor, and materials on her farm to aid in the enterprise, and the two would evenly split tire proceeds from the sale of the horses.
In August 2002, after an argument about payments, Schoenholz and Hinzman ended tire joint enterprise, and Schoenholz agreed to remove his animals from the farm by April 2003. As of April 2003, he had removed neither his horses nor his equipment. He did not remove any of his equipment other than his tractor until 2007. He explained that he refused to retrieve his property because he had no place to store it.
Hinzman stopped using the tractor in 2003, and it sat idle on her farm for more than 3 years until Schoenholz retrieved it at the end of 2006. Hinzman provided all the care for the horses, including not only the original horses that Schoenholz had provided but also the unsold offspring of those horses, from April 2003 until she sold them.
One of Schoenholz’ horses, World Ruler, developed health problems and had to be quarantined. Hinzman initially boarded World Ruler at her daughter’s farm, and then moved the horse to her own farm for a period of 1,260 days after April 2003.
The parties had multiple conversations during which Hinzman complained about Schoenholz storing his equipment on her farm. During die course of one of these discussions, when Hinzman asked him to remove the horses and equipment, Schoenholz struck Hinzman, and he was charged with battery.
On September 22, 2006, Schoenholz entered into a diversion agreement for the batteiy, one condition of which was that he would “remove all of his personal property, of whatever kind, from the victim’s residence . . . within sixty (60) days of the signing of the diversion.” A provision was made that he would “be accompanied by law enforcement if deemed appropriate by the victim.” On August 6, 2007, the State filed a motion to dismiss the charges with prejudice based on Schoenholz’ alleged satisfaction of the terms of the diversion agreement. The district court granted the motion, even though Schoenholz had not removed his property from his sister’s farm.
Finally, in 2006, Hinzman sold her farm and the horses. In 2007, after Hinzman had turned the farm over to a new owner, Schoen-holz removed his property from the farm.
On May 3, 2007, Schoenholz filed a petition in district court seeking damages for horses that were not returned, depreciation of the tractor, and loss of fencing materials, a bale fork and link, and other farm-related materials. Hinzman filed an answer and counterclaim for the costs associated with storing Schoenholz’ equipment and caring for his horses. Following unsuccessful motions for summary judgment and sanctions, a trial was held on Januaiy 24-25, 2008. The district court essentially ruled against both parties on all claims and counterclaims, as well as on requests for sanctions.
The Court of Appeals, in an unpublished opinion, affirmed the district court in denying Schoenholz’ claims but reversed the district court’s finding that Hinzman was not entitled to damages for the care of the horses and in finding that Hinzman was not entitled to costs for violations of a discoveiy order. Schoenholz v. Hinzman, No. 101, 063, 2010 WL 445693 (Kan. App. 2010) (unpublished opinion).
Schoenholz filed a petition for review, which this court granted. Hinzman did not file a petition for review of the issues on her cross-appeal.
Preliminary Discussion of the Law of Farm Bailments and Gratuitous Bailments
Although the parties did not base their claims on or address the statutory scheme, the Kansas Legislature has enacted several statutes that govern bailments of livestock and unpaid costs for feeding and caring for that livestock. K.S.A. 58-207 et seq. has been in effect, with only minor modifications, since 1868.
As a general principle, a statutoiy remedy will supersede a common-law remedy so long as the statute provides an adequate substitute remedy. See, e.g., Bair v. Peck, 248 Kan. 824, 838-39, 811 P.2d 1176 (1991). For this reason, we must examine the parties’ claims and counterclaims in light of the statutory requirements, notwithstanding the parties’ arguments that are grounded in the common law.
K.S.A. 58-207 establishes a lien on boarded livestock and allows a bailee of horses to sell the horses if the bailor fails to pay for their feed and care for 60 days after a demand is made:
“The keepers of livery stables, and all others engaged in feeding horses, cattle, hogs, or other livestock, shall have a lien upon such property for the feed and care bestowed by them upon the same, and if reasonable or stipulated charges for such feed and care be not paid within sixty (60) days after the same becomes due, the property, or so much thereof as may be necessary to pay such charges and the expenses of publication and sale, may be sold as provided in this act: Provided, however, That any lien created by this act may be assigned.” (Emphasis added.)
K.S.A. 58-208 allows a bailee to sell goods left in the possession of the bailee for more than 6 months, if there is a lien on the goods and if the bailee properly advertises the sale:
“Any forwarding merchant, warehouse keeper, stage, express or railway company, hotelkeeper, carrier, or other bailee not hereinbefore named, having a lien upon goods which may have remained in store or in the possession of such bailee for six months or more, may proceed to sell such goods, or so much thereof as may be necessary to pay the amount of the lien and expenses, according to the provisions of this act: Provided, That such sale may be advertised and made by any carrier in any city of the first, second or third class through which its line runs, where, in the judgment of such carrier, the best price can be obtained for the property to be sold.” (Emphasis added.)
K.S.A. 58-209 allows a bailee of livestock and perishable property to dispose of the property in order to pay for the expenses of maintaining the livestock or other perishable property 30 days after charges for the upkeep become due:
“If the property bailed or kept be horses, cattle, hogs, or other livestock, or is of a perishable nature and will be greatly injured by delay, or be insufficient to pay such charges for any further keeping, the person to whom such charges may be due may, after the expiration of thirty days from the time when such charges shall have become due, proceed to dispose of so much of such property as may be necessary to pay such charges and expenses as herein provided.” (Emphasis added.)
K.S.A. 58-211 requires the bailee to provide written notice to the bailor before disposing of property if the name and residence of the owner is known:
“Before any such property shall be sold, if the name and residence of the owner thereof is known, notice of such sale shall be given the owner in writing, either personally or by mail, or by leaving a notice in writing at such person’s residence or place of doing business. If the name and residence is not known, the person having the possession of such property shall cause a notice of the time and place of sale, and containing a description of die property, to be published at least once a week for three consecutive weeks in a newspaper, if there is one published in the county where such sale is advertised to take place, and if there is no newspaper published in such county, then the notice shall be published in some newspaper of general circulation in such county. If the value of the property does not exceed $100, such notice may be given by written or printed handbills posted in at least five public places in the township or city where the bailee resides or the sale is to take place, one of which shall be in a conspicuous part of the bailee’s place of business. Notices given under this section shall state that if the amount due with storage keeping and sale costs is not paid within IS days from the date of mailing, personally giving or posting of the notice (as the case may be), the property will be sold at public auction.“ (Emphasis added.)
Hinzman fell within the provisions of these statutes. She had the option of selling Schoenholz’ horses, or shares of horses, but only after she had made a demand for the reasonable costs of upkeep and only after providing printed notice of the sale. She did not follow the statutory mandates for disposing of the horses, and, as a consequence, she incurred certain ongoing responsibilities for taking care of them.
The Statute of Limitations
The interpretation and application of a statute of limitations is a question of law over which an appellate court exercises unlimited review. An appellate court’s review of a lower court’s conclusions of law is likewise unlimited. Smith v. Graham, 282 Kan. 651, 655, 147 P.3d 859 (2006).
Because she did not follow the statutoiy procedures for selling the horses, Hinzman remained a bailee even after Schoenholz stopped making contributions to the upkeep of the bailment property. A gratuitous bailment has been defined as one “in which either the bailor or the bailee is the sole beneficiary of tire bailment.” Waggoner v. General Motors Corp., 771 P.2d 1195, 1198 (Wyo. 1989). Schoenholz was the only party benefitting from the bailment arrangement after April 2003, and Hinzman was therefore a gratuitous bailee from that time on.
The gratuitous bailment was open-ended. It would last until Schoenholz claimed his property or until Hinzman elected to take the recourse afforded by K.S.A. 58-207 et seq. In the case of a bailment for an indefinite period, the cause of action does not accrue until the bailor makes a demand for the property. Jay-Ox, Inc. v. Square Deal Junk Co., Inc., 208 Kan. 856, 858, 494 P.2d 1103 (1972). The statute of limitations did not begin to run until Schoenholz approached Hinzman and told her he wanted his property back. Until that time, she was a gratuitous bailee of all of Schoenholz’ property.
The statute of limitations for oral contracts is 3 years. K.S.A. 60-512. The statute of limitations for torts involving taking, detaining, or injuring personal property is 2 years. K.S.A. 60-513(2).
The district court found that the statute of limitations for both Schoenholz’ contract and tort claims began to run in April 2003, the date Hinzman gave him to remove his horses and equipment from her farm. On that date, according to the district court, the bailment contract expired. This conclusion was erroneous. A bailment relationship remained in effect because Hinzman still voluntarily retained possession of Schoenholz’ property. The statute of limitations did not begin to run until Hinzman sold the property in 2006. Schoenholz filed suit on May 3, 2007, well within the limitation periods for both contract and tort claims.
The Court of Appeals affirmed the district court’s ruling with respect to the statute of limitations. The Court of Appeals stated that it was reviewing the district court’s finding of “abandonment” under a substantial competent evidence standard. It held that Schoenholz “abandoned” his property for over 3 years without just cause, exceeding the limits of the statutes of limitations.
As the Court of Appeals correctly noted, abandonment is a question of fact. See Rodgers v. Crum, 168 Kan. 668, 673, 215 P.2d 190 (1950). The Court of Appeals also correctly noted that an appellate court reviews findings of fact to determine whether those findings are supported by substantial competent evidence. See, e.g., In re Adoption of J.M.D., 293 Kan. 153, 171, 260 P.3d 1196 (2011). It erred, however, when it inexplicably relied on a factual finding that the district court rejected. The district court explicitly determined that Schoenholz did not abandon his property. He merely relinquished possession, and he remained tire owner of the horses when Hinzman sold them.
Abandonment is the voluntary relinquishment of ownership, so that something ceases to be the property of any person and becomes the subject of appropriation by the first taker. Rodgers, 168 Kan. at 672-73. Abandonment requires an intent by the owner to give up the rights of ownership in the property. See In re Estate of Sander, 283 Kan. 694, 714, 156 P.3d 1204 (2007); Herron v. Whiteside, 782 S.W.2d 414, 416 (Mo. App. 1989) (abandonment of property requires intent plus an act); Conway et al. v. Fabian et al., 108 Mont. 287, 306, 89 P.2d 1022 (1939) (in determining abandonment intention is first and paramount factual inquiry).
The record on appeal supports the district court’s finding that Schoenholz did not abandon his property, and the record does not support the inappropriate reweighing of the evidence by the Court of Appeals. Schoenholz testified that he intended to retrieve his property whenever he could find a place to store his equipment and board his horses. That he made minimal—or no—effort to carry out the retrieval does not undermine his intention to preserve his ownership rights in the property.
This is significant, because the finding that he did not abandon his property preserves Schoenholz’ conversion claims. He still owned the horses in 2006 when Hinzman sold them, and the cause of action arose at that time, meaning that Schoenholz’ action in tort was not barred by the statute of limitations.
The Conversion Claim
It is apparent from the record that Hinzman acted in good faith, shouldered a substantial responsibility for caring for Schoenholz’ property, and attempted to return his property to him before she sold the horses. It is the rule in this state, however, that when a bailee converts property under his or her care, the bailee is answerable for the conversion, “ ‘no matter how good his intentions or how careful he has been.’ ” Lipman v. Petersen, 223 Kan. 483, 485, 575 P.2d 19 (1978) (quoting 8 Am. Jur. 2d, Bailments § 109, pp. 1007-08); see also Loomis v. Imperial Motors, Inc., 88 Idaho 74, 396 P.2d 467 (1964) (where bailee tenders return of property and return of property is refused, bailee becomes gratuitous bailee, meaning bailment is for sole benefit of bailor; and bailee may be liable for gross negligence).
That Schoenholz may have acted in a manner that frustrated Hinzman’s efforts to rid herself of the horses is not relevant here. It is likewise irrelevant that Hinzman may have acted in good faith and in the belief that she was operating within her legal rights. Statutory provisions do not distinguish between debtors with clean hands and those without. Redmond v. Kester, 284 Kan. 209, 218, 159 P.3d 1004 (2007). If tire bailee acted intentionally, “ ‘it is immaterial that the bailee may have mistakenly believed that he was acting within his legal rights.’ ” Lipman, 223 Kan. at 485 (quoting 8 Am. Jur. 2d, Bailments § 109, pp. 1007-08).
When a bailee makes an unauthorized disposition of the bailor’s property, the bailor may have a cause of action for conversion:
“An absolute and unqualified refusal by the bailee to return or redeliver the property to the bailor, made in derogation of the bailor’s title or right to possession, constitutes actionable conversion. Furthermore, the bailee cannot qualify his or her duty to return the bailed property by prescribing conditions not implied by law or contemplated by the parties in the contract of bailment without being guilty of conversion. A bailee is not guilty of conversion, however, where his or her refusal to redeliver the property to the bailor is qualified by the conditions that are reasonable and not inconsistent with the bailor’s rights, provided that the reason for the refusal to return the item is immediately communicated to tire bailor. For example, a refusal to return bailed property is justified when it is accompanied by a demand for payment of charges for which the bailee has a lien.” 8A Am. Jur. 2d Bailments, § 75, pp. 598-99.
Because Hinzman did not utilize the statutoiy mechanism to sell the horses, she had no legal right to refuse delivery of the horses to Schoenholz when he demanded them. He therefore had a claim for conversion, and the district court and the Court of Appeals erred by rejecting that claim.
Damages for Unjust Enrichment
Hinzman counterclaimed for the costs associated with caring for the horses after April 2003. The district court denied the counterclaim, noting that Hinzman never requested payment from her brother, failed to mitigate damages, and was barred by the statute of limitations from seeking recovery for her expenses. Hinzman challenged these conclusions in her cross-appeal. The Court of Appeals reversed, holding that Hinzman had proven the elements of unjust enrichment and she was entitled to damages for the 3 years preceding the filing of her counterclaim. Unjust enrichment is not, however, a theory appropriate to this case, which is governed by a statutory remedial scheme.
In bailments at common law, a gratuitous bailee has no right to recover from the owner the costs of caring for the property. Hartford Ins. Co. v. Overland Body Tow, Inc., 11 Kan. App. 2d 373, 376-77, 724 P.2d 687 (1986) (quoting 8 Am. Jur. 2d, Bailments § 25, p. 757). K.S.A. 58-207, however, establishes a statutory lien on boarded livestock:
“The keepers of livery stables, and all others engaged in feeding horses, cattle, hogs, or other livestock, shall have a lien upon such property for the feed and care bestowed by them upon the same.” (Emphasis added.)
The statute does not appear to require the keeper to take any action other than feeding and caring for the livestock in order to create the lien. Cf. K.S.A. 58-201 (requiring registration of mechanic’s lien within 90 days of parting with possession of the subject property).
Hinzman may have therefore possessed a lien on the horses for the expenses associated with maintaining them. The purpose of an action in tort is to restore the plaintiff to the position that he or she would have occupied had the injury not occurred. Arche v. United States of America, 247 Kan. 276, 281-82, 798 P.2d 477 (1990). In the present case, the purpose of Schoenholz’ conversion action is to compensate him for the value of the horses he would have received back from Hinzman when he demanded them. If Hinzman had a lien on those horses for the costs of feeding and caring for them, that amount could potentially be applied to offset any damages that Schoenholz can prove based on the conversion of his horses.
Neither party in this action has cited to Kansas law relating to this subject matter. On remand, it remains for the parties to argue and the district court to determine the existence and value of any claimed lien on the horses and whether the fact that other duties proscribed under the statute were not followed impacts the efficacy of any such lien.
Damages for the Tractor
Schoenholz sought damages for the alleged deterioration of the tractor that he left sitting out in the open on Hinzmaris farm. The district court found that the parties created an implied bailment of the tractor in 1999 when Hinzman accepted the use of the tractor on her farm and allowed Schoenholz to leave the tractor on her premises. The court then noted a legal presumption that the bailee is at fault if bailment property is damaged while in the exclusive possession and control of the bailee. The court found that the tractor suffered damage between 1999 and 2006 and that the tractor was not used after the spring of 2003 by either party. The district court concluded, however, that there was no evidence of when the damage occurred to the tractor and the statute of limitations barred any recovery for the deterioration. The Court of Appeals agreed that the statute of limitations had run for any negligence claim with respect to the tractor.
As with the horses, Hinzman allowed Schoenholz to keep his tractor on her farm. Although the tractor was not the subject of a lien statute as the horses were, she did not forfeit her status as a bailee simply because Schoenholz did not retrieve or maintain his tractor. Her bailee status did not, however, oblige her to take positive steps to keep the tractor in the same condition in which Schoenholz left it.
A gratuitous bailee is not liable for any injury arising from “non-feasance,” that is, from inaction. Maddock v. Riggs, 106 Kan. 808, 190 P. 12 (1920). Hinzman was not under a special duty to service the tractor and move it to some sheltered place different from where her brother had left it. She was therefore not liable for any loss in value that the tractor may have suffered. While the district court erred in finding that the statute of limitations barred recovery, we affirm the conclusion that Schoenholz was not entided to damages to the tractor as having been right for the wrong reason. See State v. Graham, 277 Kan. 121, 133, 83 P.3d 143 (2004) (reason given by district court for its ruling is immaterial if the result is correct).
The Order to Reclaim the Bale Fork and Link
Schoenholz contends that the law does not permit the remedy ordered by the district court. This is a question of law over which this court exercises unlimited review. See Board of Sedgwick County Comm’rs v. City of Park City, 293 Kan. 107, 113, 260 P.3d 387 (2011).
The district court held that the bale fork and fink taken by Hinz-man from die farm in the apparent mistaken belief that it belonged to her was still Schoenholz’ property. The court ordered Schoen-holz to taire possession of the bale fork and fink within 30 days of the date of the order.
Schoenholz argues that the district court erred in setting a 30-day limit on his right to recover possession of the bale fork and fink. He contends there is no statutory authority for relief conditioned on a 30-day execution of the relief. He does not argue that it is impractical to obtain the bale fork and link within the 30-day period.
The Court of Appeals held that the 30-day execution order lay within the inherent equitable powers of the district court to prevent abuse of judicial process. This was a correct determination. See, e.g., Alpha Med. Clinic v. Anderson, 280 Kan. 903, 926, 128 P.3d 364 (2006) (courts have inherent powers to impose sanctions for bad-faith conduct, irrespective of statutory provisions). The limitation on the time to retrieve the bale fork and link is not unreasonable and recognizes Schoenholz’ recalcitrance in retrieving his property and in obeying court orders.
Schoenholz’ Motion for Sanctions
Schoenholz moved for sanctions in the district court based on certain mistakes made by counsel for Hinzman, including service of subpoenas in Nebraska and statements made in pleadings with which the district court later disagreed. The district court denied the relief, and the Court of Appeals affirmed, noting that Schoen-holz had failed to designate any portion of the record in support of his argument, citing Supreme Court Rule 6.02(d) (2011 Kan. Ct. R. Annot. 39).
The award of sanctions, including attorney fees, for discovery violations is reviewed using an abuse of discretion standard. Canaan v. Bartee, 276 Kan. 116, 135, 72 P.3d 911, cert. denied 540 U.S. 1090 (2003). Assuming Schoenholz’ assertions of impropriety on the part of opposing counsel to be true, we do not discern any willful behavior on the part of that counsel sufficient to require the district court to award sanctions.
Hinzman s Request for Attorney Fees
During discovery, Hinzman twice requested copies of Schoen-holz’ state and federal tax returns for tire years 2000 through 2006. Both times, Schoenholz refused to provide the returns, arguing that they contained confidential information and were irrelevant to the action. The district court then granted Hinzman’s motion to compel production, but Schoenholz nevertheless refused to produce them. It was finally revealed on the day of the trial that he did not file any tax returns for the years that Hinzman had requested them. She then asked the court to award her $2,000 as a sanction. The district court denied the request, holding that the returns were not material to the substantive issues, although Schoenholz’ lack of candor went to the credibility of his testimony. The Court of Appeals found the denial of the motion to constitute an abuse of discretion and remanded for imposition of attorney fees.
We will consider the discovery issue in detail because the record discloses acts of dishonesty on the part of Schoenholz and a lack of candor with both the district court and the appellate courts on the part of Schoenholz’ attorney.
On September 7, 2007, Hinzman served on Schoenholz a request for production of documents, including state and federal tax returns for the years 2000-2006. Schoenholz objected to the re quest because the returns “contain confidential information and for the further reason that no accounting is requested from the Plaintiff and nothing on his tax returns could be material to evidence in this lawsuit.”
On November 15, 2007, Hinzman served a second request for production, repeating the request for tax records. Responding to the second request, Schoenholz, through counsel, objected to furnishing any information from his tax returns because “they contain confidential information and would not provide any proof or lead to any admissible evidence in this case. Further, Plaintiff does not have possession of this information and has been unable to reacquire possession of any of his returns since the filing of this lawsuit.”
Hinzman then filed a motion to compel production of the documents. The motion listed a number of reasons why the tax records were relevant. These included: showing the initial costs of some of the horses, whether Schoenholz had sold any of the horses, the depreciation on the tractor, the expenses for supplies such as fencing, feed, etc., and whether Schoenholz in fact lacked the space and resources to relocate the horses and equipment when he may have purchased more horses and may have paid rent for a lot to store other personal property belonging to him.
The district court granted the motion to compel production in part. The court stated:
“Mr. Schoenholz, they have made an early request for discovery of your income tax returns and have showed that those documents are relevant. You will be required to take the steps necessary to get those documents produced to the Defendant in this case.... [T]he Court finds that those [tax] documents are relevant .... Mr. Schoenholz is ordered compelled to produce. Mr. Condray, if you can come up with another suggestion on how to find those documents, I will entertain the same, but we’re not going to delay the trial date at this point in time.”
The pretrial order reiterated that the plaintiff “shall produce tax returns for the years 1999 through 2006 inclusive.” Hinzman’s counsel then sent Schoenholz’ counsel information about how attorneys could gain electronic access to tax records with the consent of their clients.
Schoenholz’ counsel informed the court immediately before the trial began:
“Well, we, I thought, made a showing at the hearing on that that we simply don’t have them, and it was my understanding that the Court’s last comment was the IRS just doesn’t move that speedy, and were here, and we—we feel that we made a showing if they’re not in our possession, there’s not much else we can do, and die Court did not order us to give releases.”
He went on to tell the court:
“The same person Mr. Schoenholz left his taxes with is the one that’s prepared his returns for all this time. He doesn’t have anything because of the request that was made by IRS to check this. He took them all there.
“I haven’t gone up there. I understand he has. I did tiy to find this fellow in tire telephone book. The number that I started with, that is not a working number.
“We feel that at this late date there’s really nothing that we can do, it’s going to get tax returns for this trial [sic].”
The district court then examined counsel on why he did not seek the returns directly from the IRS through a waiver of confidentiality by his client:
“THE COURT: Mr. Noah, why did you or your client not attempt to obtain die returns from the IRS?
“MR. NOAH: No, I didn’t. I — (interrupted)
“THE COURT: Why?
“MR. NOAH: Why? We weren’t ordered to, Your Honor. I didn’t understand we were supposed to get them. I understood when I left this hearing that it was too late, and we were not ordered to give releases or do anydiing else. Now, if I’m in error, if I was wrong with that, then it’s my fault. I understood that it was simply too late and diat was a dead letter when I left here.
“THE COURT: I don’t know how my ruling could have been any more plain that Mr. Schoenholz is ordered to, compelled to produce.”
Schoenholz subsequently testified under oath regarding the returns. He informed the district court that a Mr. Underfeldt in Crete, Nebraska, prepared his returns, and Schoenholz did not have any of his tax information or returns in his own possession. He proceeded to testily that he filed returns for the years 1999-2006.
Schoenholz testified about various measures he had taken to obtain his tax materials: he had gone directly to Underfeldt’s office, which was closed; he had contacted “various people” who might know where Underfeldt was; and he had left his contact information with some people who told him they would let him know if they found out where Underfeldt was.
Schoenholz testified that he went to Underfeldt’s office every year to provide the information for his taxes, and sometimes he went back to pick up his records “when they would get done preparing the returns.” Schoenholz’ attorney then told the court that he himself had made a series of telephone calls trying to find Un-derfeldt, concluding, “Maybe he died.”
During a recess in the trial testimony and at the court’s direction, Schoenholz’ attorney called a number provided by Hinzman’s attorney and requested that the IRS fax the missing tax returns to the courthouse. The IRS immediately sent an account transcript showing that Schoenholz had failed to file any returns for the years 2000-2006. In response to questions about this transcript, Schoen-holz initially testified that he had filed returns and written checks to the IRS.
The following colloquy between Hinzman’s counsel and Schoen-holz then took place:
“Q. So, Mr. Schoenholz, we’ve been going at this about three or four months now trying to get your tax returns.
“A. Uh-huh.
“Q. And it’s all been kind of a waste of time, hasn’t it?
“A. Basically, yes, but still don’t do anything for the case one way or the other. I mean, hers didn’t her, hinder her.”
The district court, while conceding that Schoenholz had misled the court by claiming he had filed tax returns, declined to impose sanctions.
Hinzman raised the issue of fees as discovery sanctions on cross-appeal. The Court of Appeals cited K.S.A. 2008 Supp. 60-237(b)(2)(E), in effect at the time of the trial, which set out various sanctions for failure to comply with discovery orders. The section concluded:
“[T]he judge shall require tlie party failing to obey the order or tire attorney advising such party or both to pay the reasonable expenses, including attorney fees, caused by the failure, unless the judge finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.” (Emphasis added.)
The Court of Appeals found that Schoenholz had clearly violated the district court order and had then made misrepresentations to the court under oath. It was therefore an abuse of discretion to deny Hinzman’s request for attorney fees.
In his appellate briefs, counsel for Schoenholz avoids discussing the fact that his client had lied about filing the tax returns and that he himself had represented to the district court that he had tried to retrieve the returns but did not think he was under any obligation to obtain copies directly from the IRS. His client and he stalled on the subject for some 4 months, although it was possible to obtain the necessary information electronically within a couple of hours on the morning of the trial. On review, Schoenholz’ counsel again fails to mention that his client lied about the returns and that he did not attempt to get the returns from the IRS.
K.S.A. 2008 Supp. 60-237(b)(2) required a district court to order a party to pay expenses, including attorney fees, when that party failed to obey a discovery order. The only exceptions to this requirement were when the failure was substantially justified or when other circumstances made the sanction unjust.
Schoenholz lied repeatedly under oath about the existence of his tax returns. His attorney violated the district court’s express orders and then neglected to inform the Court of Appeals or this court that his client’s dishonesty was even at issue. Under these circumstances, we agree with the Court of Appeals that the district court abused its discretion by refusing to award attorney fees. The district court was required by statute to impose the sanction of fees. Nothing in the record suggests that the disobedience of the court order by Schoenholz or his attorney were justified, and the imposition of the sanction is just.
The Court of Appeals went on to award Hinzman attorney fees in the amount of $2,000. Hinzman does not provide a citation to the record of an affidavit of attorney fees. If tihe affidavit is in the record, this court is unable to locate it. The question of attorney fees is therefore remanded to the district court for determining the amount of fees to be awarded.
The judgment of the Court of Appeals is affirmed in part and reversed in part. The judgment of the district court is affirmed in part, reversed in part, and remanded with directions. | [
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On August 6, 2010, this court suspended the respondent, Chauncey M. Depew, from the practice of law in Kansas for a period of 1 year. See In re Depew, 290 Kan. 1057, 237 P.3d 24 (2010). Before reinstatement, the respondent was required to pay the costs of the disciplinary action, comply with Supreme Court Rule 218 (2011 Kan. Ct. R. Annot 379), and comply with Supreme Court Rule 219 (2011 Kan. Ct. R. Annot. 380).
On October 21, 2011, the respondent filed a petition with this court for reinstatement to the practice of law in Kansas. The petition was referred to the Disciplinary Administrator for consideration by the Kansas Board for Discipline of Attorneys, pursuant to Supreme Court Rule 219. On June 28, 2012, a hearing was held before a hearing panel of the Kansas Board for Discipline of Attorneys to consider the respondent’s request for reinstatement.
On August 16, 2012, the panel filed its report setting out the circumstances leading to respondent’s suspension, a summary of the evidence presented, and its findings and recommendations. The panel unanimously recommended that respondent’s petition for reinstatement to the practice of law in Kansas be granted.
The court, after carefully considering the record, accepts the findings and recommendations of the panel that the petitioner be reinstated to the practice of law in Kansas.
It Is Therefore Ordered that the respondent be reinstated to the practice of law in the state of Kansas conditioned upon his compliance with die annual continuing legal education requirements and upon his payment of all fees required by the Cleric of the Appellate Courts and the Kansas Continuing Legal Education Commission. When the respondent has complied with the annual continuing legal education requirements and has paid the fees required by the Clerk of tire Appellate Courts and the Kansas Con tinuing Legal Education Commission, the Cleric is directed to enter respondent’s name upon the roster of attorneys engaged in the practice of law in Kansas.
It Is Further Ordered this this order of reinstatement for Chauncey M. Depew shall be published in the Kansas Reports and that the costs of the reinstatement proceedings are assessed to the respondent.
Dated this 27th day of August, 2012. | [
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The opinion of the court was delivered by
Herd, J.:
This is a direct appeal by the appellant, Michael A. Anderson, from his jury convictions of aggravated robbery (K.S.A. 21-3427) and conspiracy to commit aggravated robbery (K.S.A. 21-3302).
On April 14, 1985, Robert Grout was on duty at Grose’s Grocery Store in Arkansas City. At approximately 7:30 p.m., Grout was alone in the back of the store when he was confronted by a stockily built black man wearing a nylon hose over his face and carrying a sawed-off shotgun. The man “ushered” Grout to the front of the store where a second man (described only as a “white man” with a ski mask) was attempting to open the cash register drawer. After forcing Grout to open the cash register, the two men made him lie face down on the floor. The men then bound Grout’s hands with electrical tape, put the money from the cash register in a brown paper sack, and left the store. Grout could hear the men leave the store and go east on sixth street, which runs by the store. A few seconds after the men left the store, Grout managed to free himself and peeked outside the door from a crouched position. When he didn’t see anything, Grout immediately proceeded to call the police.
At trial, Lisa Swanson testified on behalf of the State. Miss Swanson identified the appellant and stated that in April 1985 the appellant shared an apartment with her sister, Vickie Shetler. Miss Swanson testified that on the night of April 14, 1985, she was in her sister’s apartment along with her sister, the appellant, and a second man, Donald Anderson. The four of them rode in Vickie’s car with Vickie driving to Grose’s Grocery Store for the purpose of robbing the store. Miss Swanson testified that, prior to leaving for the store, she observed the appellant putting on two pairs of long johns, a pair of bibbed overalls, a heavy plaid coat, and a ski mask. She also stated she watched her sister Vickie put makeup on Donald Anderson to “make him look whiter,” and put eyeliner over his right eye to conceal a scar. Miss Swanson further stated when the four of them left for the grocery store, the appellant was carrying a double-barreled sawed-off shotgun, which he stated he would use “if he had to.” Finally, Miss Swanson testified that after leaving Vickie’s apartment, the four drove to Grose’s and circled around the block until the store wasn’t busy, and then the appellant and Donald Anderson got out of the car in the store’s parking lot. Miss Swanson and her sister then drove to the alley where they were to meet the two men, but left early when nearby dogs began to bark. They drove around awhile and finally pulled up to the corner where Grose’s is located. There, they saw Grout crouched near the door looking around, so they drove on. They soon came upon the appellant and Donald Anderson. Both men were running and the appellant was carrying a grocery sack. After the men were picked up, the four of them returned to Vickie’s apartment, where the appellant removed his extra clothing and Donald Anderson removed his makeup. The appellant and Donald Anderson then went into the bedroom where they emptied the paper sack, which contained cash, food stamps, and other papers.
Vickie Shetler also testified at trial. Her testimony corroborated her sisters testimony except Miss Shetler testified that Nanette Houston (another woman living in Miss Shetler’s apartment) and not Miss Shetler applied makeup to the appellant and not to Donald Anderson. Further, Miss Shetler testified that Donald Anderson, not the appellant, wore a nylon hose over his face to disguise himself.
The appellant testified on his own behalf at trial, stating that he was in Oklahoma City on April 14, 1985, and that Vickie Shetler drove him there. No other witnesses confirmed the defendant’s alibi.
Prior to trial, Donald Anderson pled guilty to one count of aggravated robbery. However, at the appellant’s trial and in the presence of the jury, Donald Anderson invoked his Fifth Amendment privilege. The trial court determined that Anderson had no privilege and threatened to hold him in contempt if he refused to testify. Upon questioning, Donald stated he could not remember if the appellant was involved in the grocery store robbery.
The jury found Michael Anderson guilty of aggravated robbery and conspiracy to commit aggravated robbery. He timely appeals.
Appellant first challenges the sufficiency of the evidence to sustain his convictions. He argues the only evidence linking him to the robbery was the testimony of Vickie Shetler and her sister Lisa Swanson. Appellant points to the fact that Vickie and Lisa’s testimony differed regarding which of the two men — Michael or Donald — wore makeup designed to make him look whiter. Appellant fails to mention, however, that the women testified identically on the other important facts and that on cross-examination Miss Shetler testified consistently with Miss Swanson. However, to refute the women’s testimony and to bolster his contention of insufficient evidence, the appellant points to a number of factors going to the credibility of the witnesses.
The scope of appellate review when the defendant challenges the sufficiency of evidence to support a conviction is whether the evidence, viewed in a light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Van Cleave, 239 Kan. 117, 121, 716 P.2d 580 (1986).
The testimony of Lisa Swanson and Vickie Shetler was in agreement on all of the essential facts. They testified the appellant and Donald Anderson had discussed robbing the grocery store prior to April 14, 1985; that they rode with the appellant and Donald Anderson to the grocery store the evening of the crime and watched the two men enter the store; that the appellant carried a sawed-off shotgun with him into the store; and that they drove the men back to Miss Shetler’s apartment after the robbery and saw that the brown paper bag carried by the appellant contained cash, checks, and food stamps.
It is for the jury, and not this court, to judge the credibility of witnesses. The testimony of Lisa and Vickie clearly provided sufficient basis upon which a rational factfinder could determine that the appellant was guilty of the crimes charged.
Appellant next alleges the trial court erred in ruling that Donald Anderson did not have a Fifth Amendment privilege against self-incrimination and in compelling him to testify, causing prejudice to the appellant. Let us first review the proceedings in the trial court relating to this issue.
Prior to trial, Donald Anderson pled guilty to one count of aggravated robbery. Sometime thereafter, he moved to withdraw his plea but this motion was denied. Donald had not been sentenced, nor had the appeal time run on the denial of his motion to withdraw his plea when he was called to testify in Michael Anderson’s trial. Donald Anderson was represented by court-appointed counsel during the plea proceedings.
When the State initially called Donald Anderson to testify, defense counsel immediately asked to approach the bench, where an off-the-record discussion was held. On the record, defense counsel objected to the admission of Donald’s testimony but the trial court ordered him sworn in. On the stand, he gave his name and address and identified the appellant. He then refused to testify further without consulting his attorney. An off-the-record discussion again ensued, after which the State again attempted to question him. Donald admitted to participating in the armed robbery with Michael Anderson but again refused to answer any further questions without speaking to his attorney. The court then recessed the jury for the evening, and proceeded with its own examination of Donald. The court advised him that, in view of his guilty plea, he had no privilege against self-incrimination. The witness responded that he would prefer not to say anything. Further discussion was held and it was decided that the point would be argued again the next morning. After lengthy arguments the following morning (out of the presence of the jury), the court determined that the witness could not claim a Fifth Amendment privilege. When recalled to testify, Donald Anderson stated he could not remember whether Michael Anderson participated in the robbery.
The appellant argues the trial court erred in compelling Donald Anderson to testify and relies on State v. Crumm, 232 Kan. 254, 654 P.2d 417 (1982). In Crumm, Mrs. Hobson (the mother of the defendant) refused to testify about the facts leading up to the homicide of her stepson. The trial court ruled that Mrs. Hobson could not be asked to testify “about any matters which might incriminate her and which might be within her Fifth Amendment privilege.” 232 Kan. at 256. On appeal, the defendant argued his counsel should have been permitted to question Mrs. Hobson. After examining case law from numerous other jurisdictions, this court affirmed the trial court and determined that the questions proposed by the defense counsel were such that the witness would have had to invoke the privilege, before the jury, had the questions been propounded. The court held “[i]t is improper conduct for either the prosecution or the defense knowingly to call a witness who will claim a privilege, for the purpose of impressing upon the jury the fact of the claim of privilege.” 232 Kan. 254, Syl. ¶ 1.
This reasoning is not directly applicable here, however, because it assumes a valid claim of privilege was made by the witness. In Crumm, Mrs. Hobson’s claim of privilege was clearly valid because Mrs. Hobson had not yet been charged with the murder of her stepson (a crime for which she was ultimately convicted), she had not been tried and convicted of homicide, and she had not pled guilty to any charge. In the present case, however, Donald Anderson had already pled guilty to aggravated robbery. Under the general rule, a witness cannot claim a Fifth Amendment privilege with respect to those matters to which he has pled guilty. Annot., 9 A.L.R.3d 990, § 2. If the general rule applies, Donald Anderson’s claim of privilege was invalid and the trial court did not err in compelling him to testify.
The appellant argues, however, that Donald’s claim of privilege was valid because: (1) He could still be charged with conspiracy to commit aggravated robbery; (2) he had not been sentenced for aggravated robbery; and (3) he could still appeal from the denial of his motion to withdraw his plea.
The appellant’s argument is at least partially meritorious and is supported by both federal and state authority. For example, in United States v. Johnson, 488 F.2d 1206 (1st Cir. 1973), the court held that although a guilty plea generally waives a witness’ Fifth Amendment privilege, where the witness may be subject to prosecution for other offenses, the witness’ refusal to testify in the trial of a joint defendant was justified. See United States v. Gloria, 494 F.2d 477 (5th Cir.), cert. denied 419 U.S. 995 (1974); United States v. Ward, 314 F. Supp. 261 (E.D. La. 1970).
Further, in Mills v. United States, 281 F.2d 736 (4th Cir. 1960), the court held that where a witness had pled guilty to robbery but had not yet been sentenced, nor had her appeal time run, the witness could not be compelled to testify against her accomplice. The court reasoned that statements made by the witness, if she were required to testify, could impact upon the disposition of her appeal or the fixing of sentence. See Taylor v. Best, 746 F.2d 220 (4th Cir. 1984); Ottomano v. United States, 468 F.2d 269 (1st Cir. 1972), cert. denied 409 U.S. 1128 (1973).
Numerous state courts have reached similar conclusions. See, e.g., Com. v. Garland, 475 Pa. 389, 395, 380 A.2d 777 (1977), where the Pennsylvania court held that a witness who had pled guilty but was awaiting sentence could not be said to have waived his privilege against self-incrimination “until, at the very least, sentence is imposed.” Accord People v. Villa, 671 P.2d 971 (Colo. App. 1983) (where witness was in process of appealing sentence at time he was called to testify at trial of codefendant, trial court erred in refusing to recognize witness’ Fifth Amendment right to remain silent); People v. Lindsay, 69 Mich. App. 720, 245 N.W.2d 343 (1976) (codefendant did not waive privilege against self-incrimination by plea of guilty where he was appealing his guilty plea conviction); State v. McConnohie, 121 Wis.2d 57, 358 N.W.2d 256 (1984) (court did not err in sustaining privilege claim where witness had pled no contest but had not been sentenced for being a party to the crime for which defendant was being tried).
Thus, we hold that under the facts of the present case, the trial court erred in finding that Donald Anderson had waived his privilege against self-incrimination. However, we further hold that the appellant was not prejudiced by the limited statements made by Donald Anderson at trial. Anderson first testified that he participated in the robbery with the appellant but refused to answer any further questions. Anderson later testified he could not remember whether the appellant participated in the robbery.
In light of the testimony of Miss Swanson and Miss Shetler, Donald Anderson’s testimony clearly was not critical to the State’s case. Further, any inference made by the jury regarding Anderson’s refusal to testify was inconsequential. No reversible error was committed and the judgment of the trial court is affirmed.
Miller, McFarland, Lockett, and Allegrucci, JJ., concur in the result. | [
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The opinion of the court was delivered by
Holmes, J.:
The Kansas Department of Transportation (KDOT) appeals from a jury verdict and judgment in an action under the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq., for personal injuries suffered by appellee James R. Trout, a truck driver, in an accident which occurred when his truck struck a number of horses on the highway. The jury returned a verdict for Trout of $150,000 and assessed 25% of the fault for the accident to the KDOT.
The material facts are not seriously in dispute. In 1983 the KDOT, after following standard bidding procedures, awarded a contract for resurfacing approximately ten miles of Interstate 70 to Koss Construction Company (Koss). The area of the highway to be improved was located east of Goodland in Sherman County. The plans and specifications for the project included renovation of fencing along portions of the highway being resurfaced. Koss entered into a contract with P. J. Fulsom, Inc., (Fulsom) for Fulsom to do the fence removal and renovation.
Work commenced on the project July 18, 1983, and apparently progressed without incident until October 12, 1983. On October 12,1983, a Fulsom crew was engaged in removing fencing along a segment of the highway roughly seven miles east of Goodland. As part of their activities the Fulsom crew would replace worn or damaged lengths of wire. When they ceased work on the night of the accident, they did not put up any type of temporary fencing which would prevent livestock on adjoining pasture land from escaping and wandering onto the highway while the permanent fencing was down. The fencing operations being conducted by Fulsom were inspected by Marlene K. Bebb, an engineering technician with the KDOT. Her responsibilities included assuring compliance with the contract documents, including the Standard Specifications for State Road and Bridge Construction issued by the KDOT, and inspecting for safety on the jobsite. At the time of Bebb’s last inspection between 6:00 and 6:30 p.m. on October 12, 1983, wire from the old fencing had been removed and no temporary fencing had been installed. The Fulsom crew quit work for the day about one hour later, leaving a segment of the permanent fencing down and without erecting any temporary fencing.
Shortly after eight o’clock that evening a tractor and semitrailer being operated by James R. Trout, of Olathe, Kansas, was westbound on 1-70 traveling through the construction zone when it collided with several horses, which had strayed from the adjoining pasture onto the interstate through the opening in the fence. Trout attempted to avoid the collision but was unable to do so and struck the horses, killing three and injuring two. Trout was seriously injured and brought this action to recover for his injuries, asserting the KDOT, Koss, and Fulsom were negligent. The owner of the horses and the owner of the truck-trailer rig were originally parties in this action but were not involved in the jury verdict and are not involved in this appeal. The jury found Trout had sustained $150,000 in damages and apportioned the fault 25% to the KDOT, 25% to Koss, 40% to Fulsom and 10% to Trout. Koss and Fulsom have not appealed and although Trout filed a notice of cross-appeal, it was neither briefed nor argued and is deemed abandoned. Puriton-Bennett Corp. v. Richter, 235 Kan. 251, 679 P.2d 206 (1984). The appeal of the KDOT is the only matter now before this court.
The KDOT raises essentially two basic issues on appeal: one dealing with the duty imposed on it under the provisions of the KTCA, and the other issue questioning the permissible scope of delegation of duty available to the State when contracting highway improvement projects. Both of the alleged errors are based upon jury instruction No. 22 in the district court, which read:
“The Defendant Kansas Department of Transportation had a positive duty to keep Interstate 70 in a condition reasonably safe for its intended use. The Defendant Kansas Department of Transportation may not delegate to an independent contractor its primary legal responsibility to keep its highways in a reasonably safe condition for their intended use.”
The KDOT asserts the instruction constitutes reversible error, contending it does not correctly state the duty of appellant under the KTCA and erroneously limits the authority of the KDOT to delegate responsibility to another. The KDOT is not asserting that its activities in this case constitute an exception to the KTCA under K.S.A. 75-6104.
It is the duty of the trial court to properly instruct the jury upon the theory of the case. Errors regarding jury instructions will not demand reversal unless they result in prejudice to the appealing party. Instructions in any particular action are to be considered together and read as a whole, and where they fairly instruct the jury on the law governing the case, error in an isolated instruction may be disregarded as harmless. If the instructions are substantially correct, and the jury could not reasonably be misled by them, the instructions will be approved on appeal. Douglas v. Lombardino, 236 Kan. 471, 480, 693 P.2d 1138 (1985). The standard instructions used in negligence actions are adequate under the KTCA if the only duty required of a private person would be to perform in a non-negligent manner. Rollins v. Kansas Dept. of Transportation, 238 Kan. 453, 711 P.2d 1330 (1985).
Although this appeal is based solely upon alleged error in the giving of instruction No. 22, it was not the only instruction bearing upon the duties of the KDOT. Instruction No. 13 set forth the claims of Trout as they applied to the KDOT and included five specific acts of negligence, including failure to keep the highway in a reasonably safe condition; failure to maintain the fencing sufficiently to prevent livestock from entering upon the highway; and failure to adequately inspect and supervise the fencing operation. Instruction No. 17 sets forth the position of the KDOT in denying any negligence on its part and asserting that all of the fault was attributable to plaintiff and the other codefendants. Instruction No. 19 expressed the liability of the KDOT and the two corporate codefendants for the actions of their employees. Instruction Nos. 21 and 23 explained the duty of Koss and Fulsom to exercise reasonable care for the protection of others upon the highway. Instruction No. 24 gave the definition of an independent contractor. Instruction No. 33 explained the terms “negligence” and “fault” and advised the jury of the effects of comparative negligence. Instruction No. 35 advised the jury further on the apportionment of fault and considerations which should be given thereto. Other instructions applicable to Koss and Fulsom set forth their alleged acts which Trout contended constituted negligence, and the contentions of each defendant in asserting negligence on the part of the plaintiff and the other codefendants. The thirty-five instructions were comprehensive in nature and thoroughly covered the various positions and contentions of the parties.
The KDOT contends that the first sentence of Instruction No. 22 improperly imposes a “pre-KTCA” municipal liability standard upon the State. Further, it is contended that use of the words “positive duty” compounds the error by placing undue emphasis on the State’s duty.
Prior to passage of the KTCA, the right of action against the State, for damages occurring on our highways, was not based on negligence but was statutory. Kelley v. Broce Construction Co., Inc., 205 Kan. 133, 138, 468 P.2d 160 (1970). Under our tort claims statute the State incurs liability for damages under ordinary negligence principles. K.S.A. 75-6101 et seq. Since common-law negligence principles have always applied in cases of municipal liability for highway and street defects, Schmeck v. City of Shawnee, 232 Kan. 11, 651 P.2d 585 (1982), many of the rules developed in litigation involving municipalities are now applicable in cases involving a state agency. Palmer, A Practitioner s Guide to the Kansas Tort Claims Act, 48 J.B.A.K. 299, 304 (1979).
The duty of the State under the KTCA to maintain its highways was most recently examined in Rollins v. Kansas Dept. of Transportation, 238 Kan. 453, Syl. ¶ 3, where the court stated that “[i]n doing highway maintenance work, the duty under the tort claims act, absent any statutory exceptions, which the Department of Transportation of the State of Kansas owes the public is the same that would be required of a private individual doing the same work.” Although the prior statutory liability of the State to maintain the highways in a reasonably safe condition was repealed by the KTCA, even the KDOT does not contend that it has no duty with regard to safety upon the highways. Instead, it argues the instruction in this case placed strict liability upon the State for any condition which makes the highway unsafe and therefore is overly broad.
The question of what duty the State bears since the passage of the KTCA was recently considered in Toumberlin v. Haas, 236 Kan. 138, Syl. ¶ 2, 689 P.2d 808 (1984), wherein the court held:
“Although the statutory liability of the state, counties and townships for defects in highways was repealed by the Tort Claims Act, a duty to maintain the highways remains under the general liability for negligence created by the Act.”
The court went on to state no hard and fast rule could be stated that would cover all possible future situations and that the scope of the State’s duty must be established on a case-by-case basis. Subsequent to Toumberlin, and relying on that decision, the committee on Pattern Jury Instructions adopted PIK Civ. 2d 19.01A (1986 Supp.), which closely parallels the instruction in the present case, and provides:
“The law of Kansas provides that the state has a duty to maintain its highways in a reasonably safe condition. The violation of this duty is negligence.”
The KDOT argues that any reference to a duty to keep the highway in a reasonably safe condition misstates the law. It claims that by instructing the jury as done in instruction No. 22, the court improperly focused upon the condition of the highway and not the “act or omission” of the State employees as set forth in the KTCA. Appellant does not dispute that it has a duty of reasonable care to the motoring public but contends there is a difference between maintaining a highway in a “reasonably safe condition” and refraining from, by act or omission, acting negligently. We see litde, if any, distinction. The maintenance of the highway in a reasonably safe condition is the duty that is owed the public while the acts and omissions of the State’s employees in carrying out that duty may or may not constitute negligence.
At any given time, a particular location on a highway may be either in a “reasonably safe condition” or not in a “reasonably safe condition.” What constitutes a “reasonably safe condition” will necessarily vary according to terrain, time of day, weather conditions, and other factors. If an unsafe condition arises from improper conduct by a state employee, then the State may incur liability. Similarly, if the condition arises from the failure of the State to perform a required act, liability may also result. However, if the dangerous condition arises through remote or unforeseen circumstances, of which the State had no notice, ordinarily liability will not attach.
The KDOT raises two hypothetical examples it claims illustrate the shortcoming of the questioned instruction. First, it presents a factual setting in which vandals remove a portion of pasture fencing which abuts a highway and livestock escape and wander onto the highway causing an accident. The KDOT hypothesizes that the presence of the livestock on the highway would render it unsafe and simultaneously impose liability upon the State. This hypothetical example ignores the fact that the State would not be liable for the independent torts of an independent third party when it has no notice of the conduct or resulting dangerous condition. 39 Am. Jur. 2d, Highways, Streets, and Bridges § 354. Liability under the facts presented in the hypothetical example would necessarily be based upon negligence in failing to remove the livestock within a reasonable time after the State had notice of their presence or, if it had previous knowledge of the destroyed fence, in failing to correct the defect.
The second situation described in the brief of the KDOT envisions a motorist encountering glare ice on an exit ramp on an interstate highway. The KDOT theorizes that under instruction No. 22 it would be responsible regardless of whether the patch of ice resulted from sudden adverse weather or the KDOT’s faulty highway grade design. Again, the KDOT ignores the basic concepts attendant to the law of torts. An actor is not required to expend excessive resources to guard against improbable or unforeseeable occurrences. Indeed, both the PIK instruction and the instruction given in this case below recognize that only reasonable care need be exercised. Under the present hypothetical example it does not appear, absent notice or nonfeasance, that the State would incur liability for an accident which occurred on a patch of ice. Gorges v. State Highway Comm., 135 Kan. 371, 10 P.2d 834 (1932); Gorges v. State Highway Comm., 137 Kan. 340, 20 P.2d 486 (1933). Conversely, as the KDOT points out, if the ice accumulated due to defective design or construction of the highway, then it may very well be that the state would be held responsible for resulting damages. Jennings v. United States, 207 F. Supp. 143 (D. Md. 1962), aff'd 318 F.2d 718 (4th Cir.1963); Klipp v. City of Hoyt, 99 Kan. 14, 17, 160 Pac. 1000 (1916); Gould v. City of Topeka, 32 Kan. 485, 4 Pac. 822 (1884).
The basic flaw in the argument of appellant is that it focuses solely on instruction No. 22 and ignores all of the other instructions. We might agree that the giving of the instruction in isolation without any others pertaining to negligence could constitute error but when it is read in context with all of the other instructions we do not think it imposes an unreasonable duty upon the State and it certainly does not create strict liability upon the part of the State. The PIK instructions are not designed to be read in isolation as if any one instruction is the only one to be given to and considered by a jury. Most, if not all, of the instructions require companion instructions to cover the law and facts as developed in each case. We conclude that our decision in Toumberlin and the statement of the duty of the State in PIK Civ. 2d 19.01A (1986 Supp.) when considered with other applicable principles and instructions are correct statements of the law as it exists after passage of the KTCA. Appellant also argues that the use of the adjective “positive” places undue emphasis upon the duty and is error. We do not agree that use of the word “positive” resulted in any prejudice to the KDOT.
The second issue raised by appellant concerns the permissible scope of delegation of duty available to the State. The KDOT maintains it has the authority to delegate its duty to keep the highways in a reasonably safe condition to an independent contractor. In particular, the KDOT claims the trial court erred when it instructed the jury, in instruction No. 22, that it could not delegate its legal responsibility to keep the highway in a reasonably safe condition to an independent contractor. Assuming, arguendo, that Fulsom was an independent contractor, we find no merit in the argument of the appellant.
The common law recognizes that the responsibility for some duties is so important to the community that an employer may not be permitted to transfer it to another. Railroad Co. v. Madden, 77 Kan. 80, 83, 93 Pac. 586 (1908). The rule prohibiting delegation of responsibility for certain activities may be imposed by statute or common law. Prosser and Keeton on Torts § 71, p. 511 (5th ed. 1984). One such nondelegable duty is that requiring a governmental entity to maintain its highways in a reasonably safe condition for the traveling public. Prowell v. City of Waterloo, 144 Iowa 689, 123 N.W. 346 (1909); Westby v. Itasca County, 290 N.W.2d 437 (Minn. 1980); Saari v. State of New York, 203 Misc. 859, 119 N.Y.S.2d 507, aff'd 282 App. Div. 526, 125 N.Y.S.2d 507 (1953). The fact that a contractor has been engaged to perform work on a public way does not relieve the State of responsibility for injuries arising from the negligence of the contractor, where the injury results from the failure of the State to maintain the highway in a reasonably safe condition for the traveling public. 39 Am. Jur. 2d, Highways, Streets and Bridges §§ 351, 430. Another example of nondelegable duty is where an employer delegates the performance of an inherently dangerous activity. Reilly v. Highman, 185 Kan. 537, 345 P.2d 652 (1959). In such a case the employer will incur liability for damages inflicted in the performance of the hazardous task. In the present case the actual work of resurfacing the highway and replacing the fences may be assigned to a contractor, but not the ultimate responsibility for safe performance of the work. Indeed, the contract documents provide the KDOT shall have responsibility in this area. While much of the burden for maintaining the construction site in a manner allowing the safe and satisfactory movement of traffic through the construction area is placed upon the contractor, it is clear from the Standard Specifications that the KDOT retains the ultimate authority to dictate safety measures to the contractor and to require compliance with such measures. To the extent that safety precautions were the responsibility of the contractor, the contract documents clearly place responsibility upon the KDOT to see that the contractual obligations are complied with by the contractor.
When instruction No. 22 is read and considered along with the thirty-four other instructions, we find no reversible error in the instructions. Obviously the jury was not misled or it would not have apportioned the fault as it did.
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The opinion of the court was delivered by
Holmes, J.:
James A. Corral, plaintiff below in an action to recover damages for a fire loss suffered at his residence, appeals from orders of summary judgment and partial summary judgment rendered in favor of the defendant, Rollins Protective Services Co. (Rollins). The trial court determined that its orders constituted a final judgment under K.S.A. 60-254(b) and Corral appeals.
Rollins had installed and agreed to service a fire and burglary alarm system in the Corral home. A fire occurred, the alarm system failed to function, and Corral sustained substantial damage. Suit was filed against Rollins for the amount of the fire loss asserting five separate causes of action based upon (1) negligence, (2) strict liability, (3) breach of implied warranty, (4) breach of express warranty, and (5) violation of the Kansas Consumer Protection Act (KCPA). In an amended petition, an additional cause of action was alleged for violation of the federal Magnuson-Moss Warranty Act. Upon motions filed by Rollins, the trial court granted partial summary judgment on the negligence and strict liability claims limiting any recovery thereunder to $250.00 and granted summary judgment in full as to the remaining claims.
A motion for summary judgment is to be sustained only where the record conclusively shows there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Williams v. Community Drive-in Theater, Inc., 214 Kan. 359, 520 P.2d 1296 (1974). However, only disputed “material” facts will preclude summary judgment. If a disputed fact, however resolved, could not affect the judgment, it does not present a genuine issue of a material fact. Secrist v. Turley, 196 Kan. 572, 575, 412 P.2d 976 (1966). In the case at bar, it does not appear that Corral contests the facts as contained in the trial court’s decision, but instead takes issue only with the trial judge’s application of the law.
On August 28, 1978, Corral entered into a one-page contract with Rollins entitled “Installation-Service Agreement.” Under the terms of the agreement Rollins was to install and service a burglary/fire alarm system at plaintiffs residence in Stanley, Kansas. Corral agreed to pay $1,760 for installation and then $35.20 per month for servicing. The contract was for an initial three-year period and thereafter converted to a yearly term until cancellation by one of the parties. Three provisions of the agreement are relevant to this action.
“The Rollins Protective System shall remain personal property and title thereto shall continue in Rollins. Customer covenants and agrees not to mortgage, sell, pledge or permit the damage or destruction of the System; to use the System in a proper manner; and upon termination of this Agreement to immediately return the System to Rollins in the same condition as when received, reasonable wear, tear and depreciation resulting from proper use thereof alone excepted. Rollins hereby waives all lien rights on the Customer’s property described in Exhibit ‘A’.
“It is further agreed that Rollins is not an insurer of the Customer’s property and that all charges and fees herein provided for are based solely on the cost of installation, service of the System and scope of liability hereinafter set forth and are unrelated to the value of the Customer’s property or the property of others located on the Customer’s premises.
“The parties agree that if loss or damage should result from the failure of performance or operation or from defective performance or operation or from improper installation or servicing of the System, that Rollins’ liability, if any, for the loss or damage thus sustained shall be limited to a sum equal to ten (10%) per cent of one year’s service charge or $250.00, whichever sum is the greater, and that the provisions of this paragraph shall apply if loss or damage, irrespective of cause or origin, results, directly or indirectly to persons or property from performance or nonperformance of obligations imposed by this Agreement or from negligence, active or otherwise, of Rollins, its agents or employees.”
On November 30, 1981, a fire occurred at Corral’s residence causing an estimated $185,631.30 damage. Appellant claimed that the fire alarm system failed to relay an alarm to the defendant’s central receiving station, which resulted in a delay in the summoning of firefighters. Corral claimed that the damage to his residence and personal belongings was much worse than would have occurred if the fire alarm system had functioned properly.
NEGLIGENCE AND STRICT LIARILITY
Corral alleged that Rollins’ negligence in failing to exercise reasonable care in the installation and maintenance of the alarm system resulted in the destruction of his home. He also sought to recover from Rollins based upon the theory of strict liability. The trial court held that the provisions of the agreement limited Corral’s recovery under these theories to the sum of $250. It is plaintiffs position that the trial court erred by enforcing the limitation of damages clause, and in not finding the clause violated public policy.
It is the traditional rule, followed in Kansas, that mentally competent parties may make contracts on their own terms and fashion their own remedies where they are not illegal, contrary to public policy, or obtained by fraud, mistake, overreaching, or duress. Belger Cartage Serv., Inc. v. Holland Constr. Co., 224 Kan. 320, 327, 582 P.2d 1111 (1978); Kansas City Structural Steel Co. v. L. G. Barcus & Sons, Inc., 217 Kan. 88, 535 P.2d 419 (1975); Kansas Power & Light Co. v. Mobil Oil Co., 198 Kan. 556, 426 P.2d 60 (1967). A party who has fairly and voluntarily entered into such a contract is bound thereby, notwithstanding it was unwise or disadvantageous to him. Wille v. Southwestern Bell Tel. Co., 219 Kan. 755, 757, 549 P.2d 903 (1976). However, an exception to this principle of freedom of contract has been recognized when a contract is so one-sided that it is found to be unconscionable. Wille v. Southwestern Bell Tel. Co., 219 Kan. 757.
Although this court has not previously dealt with the validity and enforceability of provisions limiting damages in contracts involving fire and/or burglar alarm systems, the vast majority of cases from our sister states dealing with the issue upholds such provisions. See generally Annot., Rurglary-Fire Alarm Malfunction Liability, 37 A.L.R.4th 47; and Annot., Validity, Construction, and Effect of Limited Liability or Stipulated Damages Clause in Fire or Burglar Alarm Service Contracts, 42 A.L.R.2d 591, and cases cited therein.
In Atkinson v. Pacific Fire Extinguisher Co., 40 Cal. 2d 192, 253 P.2d 18 (1953), the defendant had agreed to install and maintain a fire detection system in plaintiffs business. Subsequently, a fire erupted on the premises, no alarm was sounded, and plaintiff s building was destroyed. A provision in the parties’ contract limited the defendant’s liability to the sum of $25. In the litigation that followed the fire, plaintiff received judgment in the amount of $97,000. On appeal the court upheld the liability limiting provisions and plaintiffs award was reduced to the liquidated sum of $25. The court reasoned that damage was likely to take place if a fire occurred even if the alarm functioned properly and that arriving at the damage caused by the failure of the alarm to function was bound to be very speculative. In addition, the court noted that for the small fee the defendant received it should not be placed in the position of being a fire insurer of plaintiff s property. See American District Telegraph Co. v. Roberts & Son, 219 Ala. 595, 122 So. 837 (1929); Scott & Fetzer v. Montgomery Ward, 112 Ill. 2d 378, 493 N.E.2d 1022 (1986); Abel Holding Co. v. American Dist. Telegraph Co., 138 N.J. Super. 137, 350 A.2d 292 (1975), aff'd 147 N.J. Super. 263, 371 A.2d 111 (1977); Appliance Associates v. Dyce-Lymen Sprinkler, 123 App. Div. 2d 512, 507 N.Y.S. 2d 104 (1986). In Fireman s Fund Ins. Co. v. Morse Signal Devices, 151 Cal. App. 3d 681, 198 Cal. Rptr. 756 (1984), the court appeared to accept the rule from Atkinson, except it indicated that clauses limiting damages would not be upheld where gross negligence by the alarm company was found.
In at least one case, Antical Chemicals, Inc. v. Westinghouse, Etc., 86 App. Div. 2d 768, 448 N.Y.S.2d 279 (1982), a contract clause was enforced to prevent any recovery against the alarm company. The facts in Antical Chemicals are very similar to those at bar. The plaintiff claimed that the defendant’s alarm system failed to transmit a fire alarm to the defendant’s central communication center and consequently the communication center did not contact the fire department and damages were sustained to plaintiff s warehouse. The defendant’s agreement with plaintiff contained a disclaimer of responsibility for communications failures. The court granted defendant Westinghouse’s motion for partial summary judgment on the grounds any recovery was barred by the disclaimer contained in the contract.
The precise clause at issue in the present case was found to be valid in Gill v. Rollins Protective Services Co., 722 F.2d 55 (4th Cir. 1983). In Gill a residential fire occurred, no alarm was reported by defendant’s system, and the customer’s home was totally destroyed. One of the issues presented in the case was whether the installer and maintainer of a fire-burglary protection system could contractually exempt itself from liability for negligence. The court reviewed existing Virginia law and determined that parties on equal footing may contractually limit their liability for ordinary negligence. However, the case was remanded for a new trial based upon the Virginia Consumer Protection Act, as will be more fully discussed later in this opinion.
In Kansas City Structural Steel Co. v. L. G. Barcus & Sons, Inc., 217 Kan. at 95, the court stated:
“The policy of the law in general is to permit mentally competent parties to arrange their own contracts and fashion their own remedies where no fraud or overreaching is practiced. Contracts freely arrived at and fairly made are favorites of the law. (Kansas Power & Light Co. v. Mobil Oil Co., 198 Kan. 556, 426 P.2d 60.) None of the parties here involved were neophytes or babes in the brambles of the business world. Both companies, it would appear, dealt in projects involving considerable sums of money; both operated substantial business enterprises; and there is no suggestion that their businesses were not capably managed and profitably operated. The trial court did not find the limitation on damages imposed by the exculpatory clause was unconscionable, and we cannot view it as such. The limitation imposed was not total and was agreed upon by parties standing on equal footing.”
There is no contention here that Corral was at any business disadvantage or that he did not or could not understand the clear terms of the contract. Also, there does not appear to be any contention that the agreement was obtained by Rollins through fraud, mistake, or duress. Neither is there any contention that Rollins was guilty of any gross or wanton negligence or intentional misconduct which resulted in the failure of the alarm system. The limitation of liability clause is not contrary to public policy and the district court did not err in finding it valid as to the claims based upon negligence and strict liability and limiting Rollins’ liability thereunder.
EXPRESS WARRANTY
Appellant contends that the trial court erred in sustaining Rollins’ motion for summary judgment on his theory of breach of an express warranty. It is the position of Corral that certain statements and directions in the operating instructions furnished by Rollins constituted an express warranty that “in the event of a fire when the alarm is in the delayed position, a telephone communicator will notify the Rollins Central Emergency Center which, in turn, will notify the fire department.”
Rollins, on the other hand, contended that as there was no sale of goods there could be no warranty, express or implied, because the Uniform Commercial Code, K.S.A. 84-2-101 el seq., (UCC) applies only to sales. The trial court concluded that the UCC applied, that there could be no warranties outside the terms of the UCC, and, therefore, there were no warranties in this transaction. We agree that the agreement here did not involve a sale and that the UCC is limited to sales. However, the trial court was in error, as will be shown in more detail later, when it concluded there could be no warranties unless the transaction constituted a sale subject to the UCC. Warranties, express or implied, may be present in any type of contract including sales, leases, bailments, service agreements, and others. The question here is not whether there was a warranty under the UCC, but whether Rollins made any express warranties to Corral which induced him to enter into the contract. While it is true that most of the reported cases involving warranties are sales cases, warranties are by no means limited to sales.
Adrian v. Elmer, 178 Kan. 242, 284 P.2d 599 (1955), was an action based upon the sale of a bull purchased for breeding purposes. It was alleged that the bull turned out to be “almost entirely barren, impotent and unfit for the purposes for which he was purchased.” The court, in defining an express warranty, held:
“In order to constitute an express warranty, no particular language is necessary. It need not be in writing or be made in specific terms, and the word ‘warrant’ or ‘warranty’ need not be used.” Syl. ¶ 1.
“Any direct and positive affirmation of a matter of fact, as distinguished from a mere matter of opinion or judgment, made by seller during sale negotiations and as part of the contract, designed or intended by seller to induce buyer to buy, and actually relied upon by buyer in buying, is a ‘warranty.’ ” Syl. ¶ 2.
In Naaf v. Griffitts, 201 Kan. 64, 439 P.2d 83 (1968), an action for breach of an express warranty in a sales transaction, the court held:
“An express warranty is created by any direct and positive affirmation of fact made by the seller concerning the article to be sold during sale negotiations and as part of the contract upon which the seller intends the buyer to rely in making the purchase.” Syl. ¶ 1.
In 67A Am. Jur. 2d, Sales § 690, the distinction between “express” and “implied” warranties is stated as:
“Express warranties are those for which the buyer bargained; they go to the essence of the bargain, being a part of its basis, and are contractual, having been created during the bargaining process. Implied warranties arise by operation of law and not by agreement of the parties, their purpose being to protect the buyer from loss where merchandise, though not violating an express promise, fails to conform to the normal commercial standard or meet the buyer’s known particular purpose.” pp. 46-47.
It is clear that for there to be an express warranty there must be an explicit statement, written or oral, by the party to be bound prior to or contemporaneous with the execution of the contract. The operating manual here does not rise to the status of an express warranty. The manual is clearly instructional and advises the homeowner how to properly activate the protective system upon leaving the premises and how to deactivate it upon reentry. Statements in the operating instructions relied upon by appellant merely state what is expected to happen when the operating controls are set in a particular manner, that is, when the alarm system is activated. Those statements do not constitute warranties as to the system’s performance and there is no assertion that such statements were part of the inducement for the agreement. There is nothing in the agreement itself which even approaches an express warranty.
We conclude the trial judge did not commit error in granting summary judgment to Rollins on the claim of a breach of express warranty, albeit he did so for the wrong reason.
MAGNUSON-MOSS WARRANTY ACT
On September 26, 1985, Corral filed a second amended petition in which he alleged an additional cause of action asserting a violation of the federal Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq. (1982). Following a motion for summary judgment by Rollins, the trial court granted summary judgment on the basis that in the absence of a sale there were no warranties that were protected by the Act. We agree.
The Magnuson-Moss Warranty Act was passed by Congress in 1975 and applies to the sale of consumer products manufactured after July 4, 1975. The Act sets forth three purposes for its enactment: (1) improving the adequacy of information available to consumers, (2) preventing deception of consumers, and (3) stimulating competition in the marketing of consumer products. 15 U.S.C. § 2302(a). The reasoning that underlies these purposes is: (1) Better informed consumers will make better judgments about how to spend their dollars; (2) consumers who have greater advance knowledge about the warranties that accompany goods will select those products that have stronger warranties; (3) as consumers begin to select goods based upon warranties, manufacturers and sellers will be induced to compete on warranty terms; (4) this will provide better warranty protection to consumers and conceivably better product quality since strong warranties will not accompany weak goods. Reitz, Consumer Protection Under the Magnuson-Moss Warranty Act, 1978 ALI-ABA Comm, on Cont. Prof. Educ. 23.
Rollins maintains that the Act is inapplicable, and relies upon language found in the definitional section of the law which refers only to sales transactions. A “consumer” is described as a buyer of any consumer product, i.e., personal property used for personal, family, or household purposes. 15 U.S.C. § 2301(1) and (3). The critical aspects of the law, “written warranty” and “implied warranty,” are defined in 15 U.S.C. § 2301(6) and (7) respectively.
“The term ‘written warranty’ means:
(A) any written affirmation of fact or written promise made in connection with the sale of a consumer product by a supplier to a buyer which relates to the nature of the material or workmanship and affirms or promises that such material or workmanship is defect free or will meet a specified level of performance over a specified period of time, or
(B) any undertaking in writing in connection with the sale by a supplier of a consumer product to refund, repair, replace, or take other remedial action with respect to such product in the event that such product fails to meet the specifications set forth in the undertaking.”
“The term ‘implied warranty’ means an implied warranty arising under State law ... in connection with the sale by a supplier of a consumer product.” (Emphasis added.)
Warranties on services are not covered under the Act. 16 C.F.R. § 700.1(h) (1986). Also, the Act does not apply to leases of consumer products since a “written warranty” under the Act only arises in connection with the “sale” of a consumer product. 15 U.S.C. § 2301(6). Thus, the Act literally covers only warranties on a consumer product “sold” to a consumer. Clark and Smith, The Law of Product Warranties, ¶ 15.08 (1986 Supp.).
Corral seeks to rely on a few cases from other jurisdictions which have applied the Act to transactions which were not clearly sales. In Henderson v. Benson-Hartman Motors, Inc., 41 U.C.C. Rep. Serv. 782 (Callaghan, 1985), the court extended the Act to an automobile lease which “had most of the characteristics of a sale.” The court found that the lease in question closely resembled an installment sales agreement in that:
“This lease agreement extends for most of the useful life of the automobile. The payments due under the lease agreement may be almost equal to the full purchase price, with interest, of the automobile under a four year installment sales agreement. Also, unlike typical lease agreements, the responsibility for maintaining the automobile rests with the lessee, taxes are to be paid by the lessee, the lessee must obtain insurance, and in the event of default, the lessee pays the remaining installments and receives a credit for the proceeds from the sale of the automobile.” 41 U.C.C. Rep. Serv. at 783-84.
Based upon its finding that the lease should be treated as a sale, the court held it was subject to the Act.
In Freeman v. Hubco Leasing, Inc., 253 Ga. 698, 324 S.E.2d 462 (1985), the plaintiff leased a DeLorean sports car from the defendant. The lease called for forty-eight monthly payments and then a final lump sum payment at the end of the lease, after which the plaintiff would own the car. Under Georgia law, such a transaction was viewed as a sale and the court, having found an installment sale contract rather than a lease, held the Act applied.
Another case applying the Act to a lease transaction is Business Modeling v. GMC, 123 Misc. 2d 605, 474 N.Y.S. 2d 258 (1984), where the lessee of an automobile was allowed to proceed against the lessor under the terms of the Act. The court determined the lessee was a consumer and ignored all other provisions of the Act which clearly limit it to sales.
All of the cases which we have found which apply the Act to transactions which are not clearly sales are readily distinguishable from the facts now before the court. The agreement here, whether it be denominated a lease, a service agreement, or a lease/service agreement, has none of the characteristics of a sale and is clearly not subject to the terms of the act. The trial court was correct in granting summary judgment to Rollins on the claim of a violation of the Magnuson-Moss Warranty Act.
IMPLIED WARRANTY
Corral asserted a cause of action based upon a breach of the implied warranties of merchantability and fitness for a particular purpose. The trial court held that as there was no sale there could be no implied warranty under the UCC.
A “warranty” may be generally defined as an assurance by one party to a contract of the existence of a fact upon which the other contracting party may rely, but which is collateral to the main purpose of the contract. 17A C.J.S., Contracts § 342. A warranty may be either express, as set forth in the contract, or implied under the circumstances of the case. While it is true that warranty actions involving the sale of goods are dealt with pursuant to the terms of the UCC, the creation of warranties is not confined to cases arising out of sale transactions. In Kansas it is recognized that a person who contracts to perform work or to render service, without an express warranty, impliedly warrants to perform the task in a workmanlike manner and to exercise reasonable care in doing the work. Tamarac Dev. Co. v. Dela mater, Freund & Assocs., 234 Kan. 618, 622, 675 P.2d 361 (1984); Gilley v. Farmer, 207 Kan. 536, 485 P.2d 1284 (1971); Scott v. Strickland, 10 Kan.App. 2d 14, 691 P.2d 45 (1984); Crabb v. Swindler, Administratrix, 184 Kan. 501, 337 P.2d 986 (1959). In Crabb we held:
“When a party binds himself by contract to do a work or perform a service, in the absence of an express agreement, there is an implied agreement or warranty, which the law annexes to the contract, that he will do a workmanlike job and will use reasonable and appropriate care and skill.” Syl. ¶ 2.
Gilley v. Farmer, 207 Kan. 536, was an action against an insurance carrier for failure to properly handle a claim. The court stated:
“[T]his court has been consistent in holding that where a person contracts to perform work or to render a service, without express warranty, the law will imply an undertaking or contract on his part to do the job in a workmanlike manner and to exercise reasonable care in doing the work. (Crabb v. Swindler, Administratrix, 184 Kan. 501, 337 P.2d 986.)
“Where negligence on the part of the contractor results in a breach of the implied warranty, the breach may be tortious in origin, but it also gives rise to a cause of action ex contractu. An action in tort may likewise be available to the contractee and he may proceed against the contractor either in tort or in contract; or he may proceed on both theories.” p. 542.
Another illustration of an implied warranty outside a sales transaction exists in the law of bailments. Under the common law, an implied warranty of fitness exists in connection with bailments made for the mutual benefit of the parties. 63 Am. Jur. 2d, Products Liability § 199. This implied warranty of fitness for intended purpose was discussed in Global Tank Trailer Sales v. Textilana-Nease, Inc., 209 Kan. 314, 496 P.2d 1292 (1972):
“An implied warranty of fitness has been recognized in connection with bailments made for the mutual benefit of the parties. The rule is that if a bailment is for the mutual benefit of both the bailor and the bailee, such as a let-for-hire agreement, then a higher duty arises on the part of the bailor, the general rule being that, while the bailor is not an absolute insurer against injuries from a defective chattel, he is charged with the duty of inspection to determine whether or not the chattel is fit for the purpose intended. Thus, if the defect were discoverable, he became liable for injuries to the bailee, arising from this unsafe condition, under the theory of an implied warranty of fitness.” p. 320.
The court has also recognized that implied warranties may exist in lease transactions. See Stephens v. McGuire, 184 Kan. 46, 334 P.2d 363 (1959), and Hohmann v. Jones, 146 Kan. 578, 72 P.2d 971 (1937).
The trial court was in error when it concluded that there could be no implied warranties outside the ambit of the UCC. We agree that the UCC only applies to sales but that does not preclude the application of common-law or statutory implied warranties to transactions which are not sales and clearly are not controlled by the UCC. Here, the trial court found that the parties had entered into an “installation and service agreement.” Additionally, there is no contention by Rollins that the $250.00 limitation of liability clause applies. Rollins states in its brief:
“The Service Agreement itself never mentions the word warranty. The limitation of liability clause merely limits the damages available in actions based on theories such as negligence and strict liability. . . . Clearly, the Service Agreement itself does not attempt to limit remedies for a breach of implied warranty.”
Summary judgment on the claim of breach of implied warranty must be reversed.
KANSAS CONSUMER PROTECTION ACT
The next issue raised by Corral is that the trial court improperly entered judgment on his claim for violation of the Kansas Consumer Protection Act, K.S.A. 50-623 et seq. (KCPA).
In his Memorandum Decision in this case, the trial judge rejected Corral’s claimed violation of the KCPA, stating:
“5. Plaintiff s claim for relief based upon a violation of the Kansas Consumer [Protection] Act is based upon an alleged violation of K.S.A. 50-639[a](2) and (e) improperly limiting the warranties and remedies available for breaches thereof. In order for the plaintiff to prevail on this argument he must first prove that such warranties would be imposed by law. Those warranties would be imposed only by the Uniform Commercial Code. It imposes no such warranties upon the type of contract entered into by the parties. K.S.A. 50-369 provides that nothing in the section shall be construed to expand the implied warranty of merchantability as defined in K.S.A. 84-2-314 to involve obligations in excess of those which are appropriate to the property. Since there [were] no implied warranties imposed by law there can be no violation of the Kansas Consumer Protection Act. However, it should be noted that the Service Agreement does not attempt to limit the existence of an implied warranty of merchantability of fitness for a particular service. It does not attempt to limit the remedy of such warranty. The limitation of liability clause, contained in the Agreement between the parties simply limits the damages available in actions based on theories such as negligence and strict liability. Clearly, the Agreement between the parties does not attempt to limit remedies for a breach of implied warranty. Accordingly, the Court holds that plaintiffs claim for relief based upon a violation of the Kansas Consumer Protection Act'does not state facts sufficient to constitute a claim for relief.”
Having already determined that the agreement in this case is not subject to or controlled by the UCC, the trial court’s holding to the contrary is clearly erroneous.
Rollins seizes upon isolated language by Professor Barkley Clark in The New Kansas Consumer Legislation, 42 J.B.A.K. 147 (1973). Quotations are taken out of context and run together in appellee’s brief as if one continuous statement. A careful reading of the article makes it clear that Professor Clark did not contend that passage of the UCC eliminated all warranties except in the law of sales.
Corral clearly asserted a cause of action for violation of K.S.A. 50-639(a)(2) and (e). K.S.A. 50-624 defines certain words and terms used in the KCPA as follows:
“(b) ‘Consumer’ means an individual who seeks or acquires property or services for personal, family, household, business or agricultural purposes.
“(c) ‘Consumer transaction’ means a sale, lease, assignment or other disposition for value of property or services within this state (except insurance contracts regulated under state law) to a consumer or a solicitation by a supplier with respect to any of these dispositions.
“(h) ‘Services’ includes:
(1) Work, labor and other personal services;
(3) any other act performed for a consumer by a supplier.
“(i) ‘Supplier’ means a manufacturer, distributor, dealer, seller, lessor, assignor, or other person who, in the original course of business, solicits, engages in or enforces consumer transactions, whether or not dealing directly with the consumer.”
K.S.A. 50-639 provides in part:
“(a) Notwithstanding any other provisions of law, with respect to property which is the subject of or is intended to become the subject of a consumer transaction in this state, no supplier shall:
(1) Exclude, modify or otherwise attempt to limit the implied warranties of merchantability and fitness for particular purpose; or
(2) exclude, modify or attempt to limit any remedy provided by law, including the measure of damages available, for a breach of implied warranty of merchantability and fitness for a particular purpose.
“(c) A supplier may limit the supplier’s implied warranty of merchantability and fitness for a particular purpose with respect to a defect or defects in the property only if the supplier establishes that the consumer had knowl edge of the defect or defects, which became the basis of the bargain between the parties. In neither case shall such limitation apply to liability for personal injury nor property damage.
“(e) A disclaimer or limitation in violation of this section is void.”
In addition to his claims under K.S.A. 50-639, Corral also asserts he is claiming under K.S.A. 50-627 in that the agreement constituted an unconscionable act or practice under the statute. K.S.A. 50-627(b) sets forth several specific actions which the court must consider in determining whether an act is unconscionable. Rollins, on the other hand, argues that the allegation of unconscionability was never properly before, nor presented to, the trial court. The record is confusing.
The original petition in this case, filed September 28, 1983, made no claims of any unconscionable acts by Rollins and made no reference to K.S.A. 50-627. On October 5, 1983, a “First Amended Petition” was filed, however, nothing in it referred to unconscionability. As this amended petition was filed prior to any responsive pleading of Rollins, it was timely and properly filed. K.S.A. 60-215(a). On May 1, 1985, another petition entitled “Plaintiff s First Amended Petition” was filed which contained the allegation:
“28. That the installation service agreement entered into by the parties contains a limitation of liability clause which constitutes an unconscionable act and practice pursuant to K.S.A. 50-627.”
No order approving the filing of this amended petition appears in the record before this court and Rollins’ counsel did not consent to its filing. See K.S.A. 60-215(a). Thereafter, on September 26, 1985, a “Second Amended Petition” was filed in which “the plaintiff adopts and incorporates all allegations set forth in his First Amended Petition.” The petition then proceeded to state, for the first time, a claim under the Magnuson-Moss Warranty Act. The filing of this petition was approved by an order of the court filed October 14, 1985. That order referred to “plaintiff s Motion for an order allowing plaintiff to file a Second Amended Petition incorporating the original Petition and the First Amended Petition.” We have no way of determining which “First Amended Petition” the trial court intended to be included in the “Second Amended Petition” and therefore we leave it to the trial court to determine, on remand, whether plaintiff may proceed under K.S.A. 50-627 for an alleged unconscionable act or practice.
As indicated earlier in this opinion, the general rule is that contractual agreements limiting liability are valid if fairly and knowingly entered into and if not in violation of other provisions of law. However, none of the cases cited by either party involve the application of state consumer protection laws. Our research has disclosed only one similar case which does involve such a statute and, as fate would have it, that case was against Rollins Protective Services Co., our appellee, and involved what appears to have been an identical agreement. In Gill v. Rollins Protective Services Co., 722 F.2d 55 (4th Cir. 1983), the plaintiff entered into a contract for a fire and burglary alarm system, evidently similar to the one in this case. A fire occurred at Gill’s home, the alarm failed and Gill suffered extensive damage to real and personal property. An action was filed against Rollins on theories of common-law negligence and violation of the Virginia Consumer Protection Act. Va. Code § 59.1-196 et seq. (1982).
Following a trial to a jury, the case was submitted on both theories propounded by the plaintiff without any special questions or special verdict. The jury returned a general verdict for plaintiff for $238,032.78 and Rollins appealed. As pointed out earlier, the court first recognized the validity of the limited liability provision of the contract and that damages for negligence were limited thereunder to $250.00. However, as to the alleged violations of the Virginia Consumer Protection Act, the court stated:
“The limiting provision in the Rollins contract does not in terms attempt to limit Rollins’ liability for violations of the Virginia Consumer Protection Act. Because of that, and especially in view of the rule that such limitations of liability are not favored and are strictly construed, see Fairfax Gas & Supply Co. v. Hadary, 151 F.2d 939, 940 (4th Cir. 1945) (diversity case arising under Virginia law), we do not read such a limitation into the contract, even if it be valid and enforceable. Cf. Restatement (Second) of Contracts §§ 179, 195. The contractual agreement between the parties, therefore, is not a defense to, and does not limit any liability for, damages under the Virginia Consumer Protection Act.
“As before discussed, under the statutory theory of recovery, Mrs. Gill may recover her damages regardless of the limitation clause in the contract, while upon the negligence theory her damages may be limited to $230. Because we cannot say which theory was the basis of the jury’s verdict, the judgment must be vacated and the case remanded for a new trial. [Citations omitted.] Upon a new trial, we suggest that separate verdicts, as to negligence on the one hand and the statutory cause of action on the other, are appropriate.” pp. 58-59.
We conclude the trial court erred in granting summary judgment upon the claim of an alleged violation of the KCPA.
We are not unmindful of the impact this decision may have upon firms such as Rollins, which are attempting to provide a useful, and in many cases, essential service to the public at a reasonable cost. Alarm companies should not be held to be insurers of the property of their customers for the nominal fees they charge for their services. However, it is not for this court to create exceptions to our consumer protection act which are not clearly contained therein. K.S.A. 50-623 requires that the act be liberally construed to, among other things, “protect consumers from unbargained for warranty disclaimers” and “to protect consumers from suppliers who commit deceptive and unconscionable practices.” If alarm companies are to be excepted from the provisions of the Act, such must be done by the legislature and not by the courts.
The judgment of the trial court granting summary judgment upon Corral’s claims of breach of implied warranty and violation of the Kansas Consumer Protection Act is reversed; the judgment granting summary judgment and partial summary judgment on the other claims is sustained and the case is remanded for further proceedings. | [
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This original proceeding in discipline was filed November 5, 1986, by Bruce E. Miller, disciplinary administrator, against James M. Bicknell, of Des Moines, Iowa, an attorney admitted to the practice of law in Kansas, alleging respondent had violated Canons 1 and/or 9 of the Code of Professional Responsibility (235 Kan. cxxxvii, clii).
On September 9, 1986, respondent pled guilty in the United States District Court for the Southern District of Texas, Corpus Christi Division, to two counts of making false entries in the books of a financial institution insured by the Federal Deposit Insurance Corporation in violation of 18 U.S.C. § 1005 (1982). Respondent admitted the misappropriation of $443,860.00 from his employer, the NBC Bank-South, Corpus Christi, Texas, and he is now incarcerated at the Federal Penitentiary, Leavenworth, Kansas.
On the 18th day of November, 1986, this court issued an order to show cause why the respondent should not be disbarred from the practice of law in Kansas and on the 2nd day of December, 1986, respondent filed his written response to the order in which he admitted the foregoing facts and offered to voluntarily surrender his license to practice law in the State of Kansas.
The Court, being fully advised, finds that the surrender of the license to practice law by the respondent should be accepted and that respondent should be disbarred from the practice of law in Kansas.
It is Therefore Ordered that James M. Bicknell be and he is hereby disbarred from the practice of law in the State of Kansas and the Clerk of the Appellate Courts is directed to strike the name of James M. Bicknell from the roll of attorneys authorized to practice law in the State of Kansas.
It is Further Ordered that James M. Bicknell shall forthwith forward, or cause to be forwarded, to the Clerk of the Appellate Courts his certificate of admission to practice law in the State of Kansas.
It is Further Ordered that this order shall be published in the Kansas Reports and the costs herein are assessed to respondent.
Effective this 16th day of January, 1987. | [
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The opinion of the court was delivered by
Moritz, J.:
Luis Rojas-Marceleno appeals his convictions and sentences for one count of rape, three counts of aggravated criminal sodomy, and one count of aggravated indecent solicitation of a child, arguing the district court committed reversible error in (1) denying his motion to compel a psychological examination of the victim; (2) denying his motion for a bill of particulars; (3) failing to give a limiting instruction after admitting evidence of his prior traffic offenses; and (4) denying his motion for new trial based on newly discovered evidence. Finding no error, we affirm the district court’s rulings on each of these issues.
Rojas-Marceleno also challenges his conviction of aggravated indecent solicitation of a child on tire ground he was denied his right to a unanimous jury verdict. He contends the State charged him with alternative means of committing the crime and the court instructed the jury on both means, but the State failed to present evidence to support both means. Because we conclude the challenged portion of the statute at issue, K.S.A. 21-3511(a), does not present alternative means of committing the crime, we reject this argument.
Finally, Rojas-Marceleno challenges the restitution portion of his sentence, claiming the district court lacked jurisdiction to order restitution 30 days after imposing a lawful sentence. Following State v. McDaniel, 292 Kan. 443, Syl. ¶¶ 1, 2, 254 P.3d 534 (2011), we conclude the district court had jurisdiction to enter the restitution order because the order completed the defendant’s sentence rather than altering or modifying it.
Factual and Procedural Background
On September 24, 2008, 13-year-old C.V. spent the day babysitting at the home of her aunt, Maria M., while Maria and C.V.’s mother went to Kansas City. Maria left her cell phone with C.V. so that C.V. would have a phone to use in case of emergencies. Later that evening, Maria discovered sexually explicit text messages in the “sent box” of her cell phone. The messages had been sent to “Lil Bro,” Maria’s contact name for her 24-year-old brother, Rojas-Marceleno. After Maria showed the messages to her sister, Xinia S., Maria and Xinia called C.V.’s mother and told her about the messages. C.V.’s parents questioned C.V. about the messages, and C.V. admitted she had been involved in a sexual relationship with her uncle, Rojas-Marceleno, for “a long time” and that she had lost her virginity to him.
After contacting the police, C.V.’s parents took C.V. to the hospital for a sexual assault examination. During the examination, C.V. reported she had sexual intercourse with Rojas-Marceleno on approximately five or six occasions during the preceding year, most recently about 10 days before. The next day, Kansas Department of Social and Rehabilitation Services special investigator Kayla Delgado interviewed C.V. at the Child Advocacy Center. In the interview, C.V. disclosed that she and Rojas-Marceleno first had sexual intercourse on November 14,2007, that subsequently they had oral sex and sexual intercourse on several occasions, and that the last time they had intercourse was on September 13, 2008.
The State initially charged Rojas-Marceleno with 5 counts of rape and 13 counts of aggravated criminal sodomy. After a preliminary hearing, the district court dismissed three counts of aggravated criminal sodomy. The State filed an amended complaint, charging Rojas-Marceleno with 5 counts of rape, 10 counts of aggravated criminal sodomy, and 1 count of aggravated indecent solicitation of a child.
Prior to trial, the district court denied Rojas-Marceleno’s motion for a bill of particulars and his motion to compel a psychological examination of C.V. During trial, the district court dismissed one count of rape and five counts of aggravated criminal sodomy. The jury found Rojas-Marceleno guilty of one of the four remaining counts of rape, three of the five remaining counts of aggravated criminal sodomy, and the one count of aggravated indecent solicitation of a child.
The district court denied Rojas-Marceleno’s motion for new trial based on newly discovered evidence and imposed two consecutive prison sentences of life without the possibility of parole for 25 years, plus a consecutive prison sentence of 57 months. We have jurisdiction over Rojas-Marceleno’s appeal under K.S.A. 22-3601(b)(1) (off-grid crime; life sentence imposed).
Discussion
The district court did not abuse its discretion in denying Rojas-Marceleno’s motion to compel a psychological examination of C.V.
Before trial, Rojas-Marceleno filed a motion to compel a psychological examination of C.V. asserting C.V. lacked veracity and had a history of stealing and disciplinary problems. The district court denied the motion, finding Rojas-Marceleno failed to establish any compelling reasons to support the examination. On appeal, Rojas-Marceleno claims the district court abused its discretion in failing to compel the exam.
We review a district court’s denial of a defendant’s motion to compel a psychological examination of a complaining witness in a sex crime case for an abuse of discretion. State v. Berriozabal, 291 Kan. 568, 580, 243 P.3d 352 (2010); State v. Price, 275 Kan. 78, 83, 61 P.3d 676 (2003).
“Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.” State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011) (citing State v. Gonzalez, 290 Kan. 747, 755-56, 234 P.3d 1 [2010]), cert. denied 132 S. Ct. 1594 (2012).
A district court has discretion to order a psychological examination of the complaining witness in a sex crime case only if the defendant can demonstrate compelling circumstances justifying such an examination. See Berriozabal, 291 Kan. at 580-81; State v. Gregg, 226 Kan. 481, 489, 602 P.2d 85 (1979). In determining whether the district court abused its discretion, we consider the totality of the circumstances, including several nonexclusive factors: (1) whether there was corroborating evidence of the complaining witness’ version of the facts, (2) whether the complaining witness demonstrates mental instability, (3) whether the complaining witness demonstrates a lack of veracity, (4) whether similar charges by the complaining witness against others are proven to be false, (5) whether the defendant’s motion for a psychological evaluation of the complaining witness appears to be a fishing expedition, and (6) whether the complaining witness provides an unusual response when questioned about his or her understanding of what it means to tell the truth. Berriozabal, 291 Kan. at 581 (citing Price, 275 Kan. at 84; Gregg, 226 Kan. at 490).
A district court rarely abuses its discretion in refusing to order a psychological examination. See Berriozabal, 291 Kan. at 581 (citing Gregg, 226 Kan. at 489). Further, as the party asserting an abuse of discretion, Rojas-Marceleno has the burden to show the district court abused its discretion in this case. See State v. Woodward, 288 Kan. 297, 299, 202 P.3d 15 (2009).
In support of his motion to compel a psychological examination of C.V., Rojas-Marceleno claimed C.V. lacked veracity and mental and emotional stability; displayed aggressive, inappropriate, and promiscuous behavior; and used “threats against her mother to get her way.” Specifically, he alleged that C.V.’s mother found her at home with three boys in a promiscuous situation in October 2008, that C.V. stole money from her mother and lied to her mother when the theft was discovered, and that C.V. was physically abused by her mother and removed from the home.
In response, the State argued that the graphic text messages found on Maria’s phone corroborated C.V.’s allegations of sexual abuse, that C.V. was never formally removed from her home although she was informally placed at her grandmother’s home by agreement of the family, and that C.V.’s only experience with mental health counseling occurred after C.V.’s disclosures of the sexual abuse. Further, the State pointed out that Rojas-Marceleno’s al legations regarding C.V.’s lack of veracity were unrelated to the sexual abuse allegations in this case.
The district court conducted a nonevidentiary hearing on the motion and, for purposes of the hearing, accepted as true Rojas-Marceleno’s allegations regarding C.V.’s behavioral issues. Applying the Benriozabal/Pnce/Gregg factors, the court found the text messages found by C.V.’s aunt corroborated C.V.’s allegations and that C.V.’s alleged emotional issues did not demonstrate mental instability. Further, relying on Pnce, the district court found that the veracity factor “may weigh in favor of the evaluation” but that this factor alone was insufficient to warrant an evaluation. The district court reasoned that this factor required something more than “what typically happens with adolescents when confronted with wrong-doing by their parents.” Finally, the district court pointed out that there was no evidence that C.V. made similar allegations toward others that were later proven false. Finding no compelling reasons to order the examination, the district court denied Rojas-Marceleno’s motion.
On appeal, Rojas-Marceleno argues primarily that the district court erred in defining a “lack of veracity” to require something more than the allegations he made regarding C.V.’s veracity in this case.
We think the district court correctly considered Rojas-Marce-leno’s allegations regarding C.V.’s lack of veracity in the context of the totality of the circumstances standard the court must consider in determining whether to order a psychological examination. Essentially, the district court found that C.V.’s lack of veracity was the only factor that arguably favored granting the defendant’s motion but that this factor was not sufficiently compelling under the circumstances to require an examination.
The district court’s analysis is consistent with our prior caselaw interpreting the “lack of veracity” factor in the context of a motion to compel a psychological examination of a complaining witness in a sex crime case. See, e.g., Berriozabal, 291 Kan. at 582 (finding single alleged incident of victim lying about defendant’s former stepdaughter’s virginity was not a compelling reason to order psychological examination); Price, 275 Kan. at 88 (finding no compel ling reason to justify psychological examination of victim when evidence indicated victim made untruthful statements but statements were unrelated to contact with defendant and victim made no other false allegations of sexual abuse); State v. McIntosh, 274 Kan. 939, 944-46, 58 P.3d 716 (2002) (finding victim’s delayed reporting of the sexual abuse, demonstration of friendly feelings toward the defendant before and after the abuse, inconsistent accounts of the abuse, and lack of corroborating medical evidence insufficient to support lack of veracity); State v. Lavery, 19 Kan. App. 2d 673, 676-77, 877 P.2d 443 (finding victim did not demonstrate either a lack of mental instability or lack of veracity when evidence showed that victim had prior exposure to sex, may have been molested by someone other than the defendant, was unsupervised during the summer, used foul language, and told friends a false stoiy unrelated to abuse allegations), rev. denied 253 Kan. 862 (1993).
We conclude the district court did not abuse its discretion in concluding Rojas-Marceleno failed to establish compelling reasons to require C.V. to undergo a psychological examination, and we affirm the district court’s denial of the motion.
The district court did not abuse its discretion in denying Rojas-Marceleno’s motion for a bill of particulars.
Next, Rojas-Marceleno claims the district court erred in denying his motion for a bill of particulars in violation of his right to present a defense under the Sixth Amendment to the United States Constitution and his right to “ ‘demand the nature and cause of the accusation against him’ ” under §10 of the Kansas Constitution Bill of Rights.
We review a district court’s order denying a motion for a bill of particulars for an abuse of discretion. State v. Bischoff, 281 Kan. 195, 207-08, 131 P.3d 531 (2006); see Ward, 292 Kan. at 550 (explaining abuse of discretion standard). Rojas-Marceleno bears the burden of establishing an abuse of discretion. See Woodward, 288 Kan. at 299.
A charging document must contain “a plain and concise written statement of the essential facts constituting the crime charged.” K.S.A. 22-3201(b). A charging document is generally sufficient if it is “drawn in the language of the statute,” and “[t]he precise time of the commission of an offense need not be stated in the indictment or information; but it is sufficient if shown to have been within the statute of limitations, except where the time is an indispensable ingredient in the offense.” K.S.A. 22-3201(b).
But when a complaint, information, or indictment fails to specify tire particulars of die crime charged sufficiently to enable the defendant to prepare a defense, K.S.A. 22-3201(f) permits the court, on written motion of the defendant, to require the prosecuting attorney to furnish the defendant with a bill of particulars.
“A bill of particulars has two functions: (1) to inform the defendant of the nature of the charges and the evidence to enable him to prepare a defense, and (2) to prevent further prosecution for the same offense.” State v. Myatt, 237 Kan. 17, 29, 697 P.2d 836 (1985). The granting of a bill of particulars is discretionary with the district court unless the charging instrument is so deficient that the defendant is not informed of the charges against which he or she must defend. State v. Webber, 260 Kan. 263, 284, 918 P.2d 609 (1996), cert. denied 519 U.S. 1090 (1997).
“ ‘When charges in die information are clarified by facts brought out at the preliminary hearing there is no need for amplification by a bill of particulars, absent a showing of surprise or prejudice.’ ” Myatt, 237 Kan. at 29 (quoting State v. Hill, 211 Kan. 287, Syl. ¶ 9, 507 P.2d 342 [1973]); see also Webber, 260 Kan. at 284 (information revealed during the preliminary hearing and through pretrial discovery may be sufficient to apprise the defendant of the nature of the charges). Additionally, the State is generally allowed to allege approximate time frames in prosecutions for sex offenses committed against children. See State v. Armstrong, 238 Kan. 559, 561-63, 712 P.2d 1258 (1986); Myatt, 237 Kan. at 28-29.
Here, die State initially charged Rojas-Marceleno with 5 counts of rape and 13 counts of aggravated criminal sodomy. At the close of the preliminary hearing, the State conceded a lack of evidence to support the aggravated criminal sodomy counts charged in Counts 7, 17, and 18. Thus, the district court dismissed those counts and found probable cause to proceed to trial on the remaining charges.
The State then amended the complaint to allege the rapes occurred on the following days: Count 1, on or about November 14, 2007; Counts 2, 3, and 4, on, about, or between November 14, 2007, and September 24,2008; and Count 5, on, about, or between September 13, 2008, and September 14, 2008. Further, the amended complaint alleged the aggravated criminal sodomy charges occurred on the following days: Count 6, on or about November 22, 2007; and Counts 8 through 16, on, about, or between October 1, 2007, and September 24, 2008. Finally, the amended complaint added Count 19, aggravated indecent solicitation of a child, and alleged the crime occurred on, about, or between December 31, 2007, and January 1, 2008.
Rojas-Marceleno filed a motion for a bill of particulars seeking specific information regarding “the alleged crime and the alleged date or dates, approximate if necessary,” in Counts 2, 3, 4, 8, 10, 11, 12, 13, 14, 15, 16, and 19 of the complaint. Rojas-Marceleno acknowledged that the complaint alleged time periods within the statute of limitations, but he asserted the alleged crimes and the time periods were too vague and speculative to enable him to prepare a defense.
The State objected to Rojas-Marceleno’s motion, arguing the charging document sufficiently alleged time frames within the statute of limitations and that a bill of particulars was unnecessary because the State had provided Rojas-Marceleno with full discovery and the State could not establish die exact dates of the alleged crimes. Further, the State pointed out that the defendant heard C.V.’s preliminary hearing testimony regarding the specific dates and locations for some of the offenses and/or specific identifiers or details regarding the other offenses.
The district court denied Rojas-Marceleno’s motion but ordered the State to provide a list of identifying factors for Counts 2-4 and 8-16. The court explained that further identifying factors could include a description of the location where the crime occurred, the individuals present, the clothing worn by the parties, and other similar information. The court further explained that while the State would not be bound by these factors, the factors should assist the defendant to prepare a defense.
As directed, the State filed a written notice farther identifying Counts 2 and 3 as two counts of rape alleged to have occurred at Rojas-Marceleno’s Cherokee Street address between November 14, 2007, and September 24, 2008, and distinguishing these two counts from the three counts of rape that were alleged to have occurred on November 14 (Count 1), at C.V.’s house in her brother’s room while her parents were at work (Count 4), and on September 13 (Count 5).
Regarding the sodomy charges, the State further identified Count 8 as the first time C.V. had oral sex with Rojas-Marceleno at his Cherokee Street address, sometime between October 1, 2007, and September 24, 2008; Count 9 as the oral sex that occurred after a trip to Walmart as C.V. and Rojas-Marceleno drove around near C.V.’s grandmother’s house; and Counts 10-16 as occurring between October 1, 2007, and September 24, 2008, at either Rojas-Marceleno’s Cherokee Street or Melrose Street address. The State also identified Counts 10-16 by distinguishing them from the specific incidents alleged in Count 6 (Thanksgiving incident), Count 8 (first incident of oral sex), and Count 9 (Walmart incident).
Rojas-Marceleno objected to the identifying factors, arguing the State failed to provide any new information for Counts 2-4, 8, and 10-16. At a pretrial hearing, tire district court overruled Rojas-Mar-celeno’s objections. The court found the State had adequately further identified Counts 2,3, and 10-16 by distinguishing the charges from charges specifically identified in other counts. The court acknowledged that the lack of further specificity would make it difficult to defend tírese charges, but the court concluded it would be premature to prohibit the State from proceeding to trial.
We conclude tire district court did not abuse its discretion in denying the motion for a bill of particulars. First, the State was not required to prove the offenses occurred within the statute of limitations because time is not an indispensable ingredient of rape, aggravated criminal sodomy, or aggravated indecent solicitation of a child. See K.S.A. 21-3502(a)(2); K.S.A. 21-3506(a)(l); K.S.A. 21-3511(a). Further, because tire crimes alleged were sex crimes against a child, the State was permitted to allege approximate time frames. See Armstrong, 238 Kan. at 562-63 (concluding district court did not abuse its discretion in denying a motion for a bill of particulars when the State charged defendant with taking aggravated indecent liberties with an 11-year-old child over a 5-month time frame).
Second, the defendant was convicted of only five counts—Count 5 (rape), Counts 8, 9, and 11 (aggravated criminal sodomy), and Count 19 (aggravated indecent solicitation). Of those, the State alleged specific 2-day time periods for the rape charged in Count 5 and the aggravated indecent solicitation charged in Count 19. Further, the State identified Count 8 as the first incident of oral sex, and C.V. testified that some incidents of oral sex occurred before the first time she and Rojas-Marceleno had sexual intercourse on November 14, 2007. Thus, the time frame for Count 8 was narrowed to sometime between October 1, 2007, and November 14, 2007.
Although C.V. could not identify a specific date regarding Count 9, she provided specific details about that count through her testimony at the preliminary hearing (the Walmart incident). Finally, regarding Count 11, the State initially alleged that this count of aggravated criminal sodomy occurred sometime between October 1, 2007, and September 24, 2008. Later, the State identified this count as occurring at either the defendant’s Cherokee address or his Melrose address.
While the identifying factors for Count 11 remained vague, even if we were to find the district court erred in failing to require the State to provide further identifying factors for Count 11, Rojas-Marceleno cannot establish prejudice as a result of that error.
At trial, C.V. testified she performed oral sex on Rojas-Marce-leno in her bathroom sometime between October 2007 and November 14, 2007, while Rojas-Marceleno, his wife, Jamie Rojas-Marceleno, and their two children were at C.V.’s house. According to C.V., Jamie found C.V. hiding in the bathroom shower after the incident. Rojas-Marceleno elicited testimony from Jamie in an attempt to contradict C.V.’s version of that incident. And, during closing arguments, the State clarified that it was relying on C.V.’s testimony about the bathroom/shower incident to support the aggravated criminal sodomy charge in Count 11.
For these reasons, we conclude the district court did not abuse its discretion in denying Rojas-Marceleno’s motion for a bill of particulars.
Rojas-Marceleno failed to preserve his objection to the admission of his traffic offenses.
At trial, the prosecutor elicited testimony that Rojas-Marceleno had served jail time for driving without a driver’s license in November 2007, only 2 weeks before one of the alleged rapes. Rojas-Marceleno claims this evidence “undoubtedly prejudiced the jury,” and he contends the district court should have given a limiting instruction advising the jury to disregard the evidence of his prior crimes.
Preliminarily, the State argues Rojas-Marceleno failed to preserve this issue for appeal because he failed to object to the admission of the evidence. See K.S.A. 60-404 (contemporaneous objection rule); State v. King, 288 Kan. 333, 341-42, 204 P.3d 585 (2009) (compliance with K.S.A. 60-404 is required to preserve ev-identiary ruling for appellate review). We agree.
While Rojas-Marceleno framed this issue as an instructional error, he does not suggest any specific purposes for which the jury should have considered his prior offenses, nor does he suggest what would have been an appropriate limiting instruction. See, e.g., State v. Magallanez, 290 Kan. 906, 919, 235 P.3d 460 (2010) (reiterating that a “shotgun” limiting instruction that fails to focus specifically on the object of proof is rarely proper and increases the risk of instructional error; finding that it was error to instruct upon an inapplicable K.S.A. 60-455 factor).
Instead, Rojas-Marceleno argues the “jury should have been instructed to disregard” the evidence because the evidence was prejudicial and irrelevant. Of course, this argument does not support Rojas-Marceleno’s claim that the district court should have given a limiting instruction. Instead, it essentially challenges the admissibility of the evidence—an argument that should have been raised to the district court after a proper and timely objection to the admission of the evidence.
In light of Rojas-Marceleno’s failure to object, we decline to review this issue.
Rojas-Marceleno has failed to establish cumulative errors requiring reversal.
Rojas-Marceleno argues that even if we conclude the district court’s allegedly erroneous rulings are harmless when considered individually, we must nevertheless reverse his convictions because the cumulative effect of the errors substantially prejudiced his right to receive a fair trial as guaranteed by the Fourteenth Amendment to the United States Constitution and §10 of the Kansas Constitution Bill of Rights.
But “[cumulative error will not be found when the record fails to support the errors raised on appeal by the defendant. [Citations omitted.]” State v. Cofield, 288 Kan. 367, 378, 203 P.3d 1261 (2009). A single error cannot constitute cumulative error. State v. Foster, 290 Kan. 696, 726, 233 P.3d 265 (2010).
Rojas-Marceleno has failed to establish any error by the district court, and we reject his claim of cumulative error.
The district court did not abuse its discretion by denying Rojas-Marceleno’s motion for new trial.
Rojas-Marceleno next contends the district court abused its discretion by denying his motion for new trial. He asserts that he supported the motion with the testimony of C.V.’s classmate, R.B. and that this newly discovered material evidence could not have been produced at trial with reasonable diligence. The State contends the newly discovered evidence could have been produced at trial, was not so material that it would have changed the outcome of the trial, and essentially constituted impeachment evidence.
While we review a district court’s decision on a motion for new trial for an abuse of discretion, we review materiality decisions de novo, giving deference to the district court’s findings of fact. See State v. Warrior, 294 Kan. 484, 505, 508-10,277 P.3d 1111 (2012); see also State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011) (discussing abuse of discretion standard), cert. denied 132 S. Ct. 1594 (2012). Again, Rojas-Marceleno bears the burden of estab lishing the district court abused its discretion. See State v. Woodward, 288 Kan. 297, 299, 202 P.3d 15 (2009).
“The court on motion of a defendant may grant a new trial to him if required in the interest of justice.” K.S.A. 22-3501(1). The two-part test for determining whether a new trial is warranted on the ground of newly discovered evidence requires a court to consider (1) whether the defendant has met the burden of establishing that the newly proffered evidence could not, with reasonable diligence, have been produced at trial and (2) whether the evidence is of such materiality that it would be likely to produce a different result upon retrial. State v. Fulton, 292 Kan. 642, 649, 256 P.3d 838 (2011); State v. Cook, 281 Kan. 961, 992, 135 P.3d 1147 (2006).
In determining whether newly proffered evidence is material, the district court must assess the credibility of the newly proffered evidence. See Cook, 281 Kan. at 993; State v. Richard, 235 Kan. 355, 363, 681 P.2d 612 (1984). Ordinarily, a new trial is not warranted when the newly proffered evidence merely tends to impeach or discredit the testimony of a witness. Richard, 235 Kan. at 363; State v. Watson, 204 Kan. 681, 685, 466 P.2d 296 (1970); State v. Ayadi, 16 Kan. App. 2d 596, 601-02, 830 P.2d 1210, rev. denied 250 Kan. 806 (1991). But, even when the evidence tends to impeach the testimony of a witness, tire presence or absence of corroborating evidence is another factor to consider in determining whether the newly discovered evidence is of such materiality that it is likely to produce a different result upon retrial. See State v. Norton, 277 Kan. 432, 441-42, 85 P.3d 686 (2004); State v. Smith, 39 Kan. App. 2d 64, 68, 176 P.3d 997, rev. denied 286 Kan. 1185 (2008).
In his new trial motion, Rojas-Marceleno alleged he had discovered a new witness, R.B., a friend and classmate of C.V., who would testify that C.V. lied about having sex with Rojas-Marceleno to get back at him for telling C.V/s parents that C.V. had a boyfriend.
At the motion hearing, R.B. testified that she was 14 years old, that she had known C.V. since the seventh grade, and that during the eighth grade she and C.V. were in the same first-hour class. According to R.B., sometime during November or December 2008 C.V. told R.B. that C.V/s uncle, Rojas-Marceleno, had told C.V/s parents that C.V. and her boyfriend were dating. C.V. told R.B. that she was upset with her uncle for disclosing her relationship with her boyfriend and that she was going to try to get back at her uncle for it. R.B. further claimed C.V. said she was going to tell her parents that her uncle raped her so her parents would not find out that C.V. and her boyfriend were having sex. Finally, R.B. testified that C.V. denied being raped by her uncle.
R.B. further testified C.V.’s aunts contacted her approximately 2 to 3 weeks before the hearing after they had talked to some other girls at C.V.’s school. R.B. claimed she was afraid to testify because someone named “Lisa” had threatened her. On cross-examination, R.B. explained she had talked to Detective Lisa Sage before the hearing and told Sage that C.V. had disclosed that C.V.’s uncle had made C.V. do sexual things with him including oral sex. But upon further questioning, R.B. testified C.V. did not tell her about things C.V. did with her uncle and instead only told R.B. about how she planned to get back at her uncle for telling her parents about her boyfriend.
Rojas-Marceleno also presented testimony from a friend of R.B.’s, K.R., who had just completed the seventh grade. K.R. testified that sometime after Christmas, R.B. told K.R. that C.V.’s uncle was in jail for raping C.V. According to K.R., R.B. told her that C.V. was mad at her uncle for disclosing C.V.’s relationship with her boyfriend and that C.V. never had sex with her uncle. On cross-examination, K.R. testified her older brother, Sixto, recently had been in jail with Rojas-Marceleno. K.R. admitted that R.B. had been to K.R.’s house and had seen Sixto, but K.R. denied that Sixto was R.B.’s boyfriend.
The district court also heard conflicting testimony from C.V.’s father and Rojas-Marceleno regarding whether and when Rojas-Marceleno talked to C.V.’s father about C.V. having a boyfriend.
After hearing arguments on the motion for new trial, the district court carefully considered the motion before ultimately denying it for three reasons. First, the district court found that Rojas-Mar-celeno failed to satisfy the initial prong of Cook’s two-prong test. See Cook, 281 Kan. at 992. The judge reasoned:
“I have no doubt that had [Rojas-Marceleno’s] sisters been given more time prior to trial they probably would have found [R.B.]. So, the question becomes was there reasonable diligence, and I think that there was and it was just a fluke that they didn’t find [R.B.]. So, in finding or in considering the first prong of the test, it is the Court’s opinion that the evidence could have been discovered prior to trial with reasonable diligence, but let’s move on for the sake of argument.”
The district court next found that Rojas-Marceleno failed to establish the second prong of the test—i.e., that R.B.’s testimony would have produced a different result on retrial. The court noted that Rojas-Marceleno’s primary strategy at trial was to attack C.V.’s credibility. But relying on inconsistencies in R.B.’s testimony as well as the court’s assessment of R.B.’s demeanor while testifying, the court concluded R.B.’s testimony was unlikely to have produced a different result upon retrial.
Finally, the court found that even if Rojas-Marceleno had satisfied both prongs of the two-part test, the court would have denied his motion for new trial because Rojas-Marceleno’s primary purpose in presenting R.B.’s testimony was to impeach C.V.’s credibility. The judge held, “[I]t is clear that case law in Kansas prohibits me from directing a new trial based on newly discovered evidence which merely tends to impeach or discredit testimony of a witness. ”
We need not consider the district court’s third reason for denying the motion for new trial as we conclude the district court did not abuse its discretion in finding that Rojas-Marceleno failed to establish either prong of Cook’s two-prong test. First, substantial competent evidence supports the court’s factual finding that R.B.’s testimony, which was discovered when Rojas-Marceleno’s sisters spoke with R.B. following trial, could have been discovered before trial with reasonable diligence.
Further, we agree with the district court’s determination regarding the materiality of the proposed evidence. Significantly, the district court based its materiality determination on its assessment of R.B.’s credibility. In concluding R.B.’s testimony was not sufficiently material that it would have affected the outcome of the trial, the district court specifically considered R.B.’s demeanor during the hearing and the consistency and manner of her responses. We will not reassess the court’s determination of R.B.’s credibility. See State v. Barnes, 293 Kan. 240, 263-64, 262 P.3d 297 (2011) (an appellate court does not reassess the credibility of witnesses).
Finally, as die district court recognized, Rojas-Marceleno’s main trial strategy was to attack C.V.’s credibility, and he presented the testimony of several witnesses, including C.V.’s aunts and grandmother, regarding C.V.’s lack of truthfulness. We are confident that similar testimony from R.B., who had credibility issues of her own, would not have tipped the scales in Rojas-Marceleno’s favor. Accordingly, we affirm the district court’s denial of the motion for new trial.
We decline to address Rojas-Marceleno’s general challenge to the sufficiency of the evidence to support his convictions.
While Rojas-Marceleno challenges the sufficiency of the evidence to support his convictions, he fails to discuss any of the evidence presented at trial. Instead, he claims the evidence was insufficient to support his convictions because the district court dismissed some charges after the preliminary hearing and dismissed additional charges at the close of State’s evidence. Based on Rojas-Marceleno’s failure to adequately brief this issue, we deem it abandoned, and we decline to consider the sufficiency of the evidence. See State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011) (An issue not briefed by the appellant is deemed waived and abandoned.).
Rojas-Marceleno was not deprived of his statutory right to a unanimous jury verdict on his conviction of aggravated indecent solicitation of a child.
Next, Rojas-Marceleno seeks reversal of his conviction for aggravated indecent solicitation of a child, arguing the district court instructed the jury on alternative means of committing the crime but the State failed to provide sufficient evidence to support both means. Specifically, Rojas-Marceleno contends the jury was instructed that it could find that the defendant either enticed or solicited C.V. to commit an unlawful sexual act or to submit to an unlawful sexual act and that these were alternative means of committing a crime under K.S.A. 21-3511(a). Rojas-Marceleno also contends the district court clearly erred in failing to provide an unrequested unanimity instruction.
A criminal defendant has a statutory right to a unanimous juiy verdict. See K.S.A. 22-3421; State v. Wright, 290 Kan. 194, 201, 224 P.3d 1159 (2010).
“ ‘In an alternative means case, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means. [Citations omitted.] In reviewing an alternative means case, the court must determine whether a rational trier of fact could have found each means of committing tire crime proved beyond a reasonable doubt. [Citations omitted.]’ ” State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 (1994).
Because jury unanimity is not required as to the means by which an alternative means crime is committed, unanimity instructions are not required in alternative means cases. See State v. Bailey, 292 Kan. 449, 458, 255 P.3d 19 (2011); State v. Sanborn, 281 Kan. 568, 569, 132 P.3d 1277 (2006) (“A unanimity instruction is used when the State charges one crime but relies on multiple acts to support that one crime.”).
However, in Wright we clarified that in an alternative means case, we apply a super-sufficiency of the evidence—i.e., the State must present sufficient evidence to permit a jury to find each means of committing the crime beyond a reasonable doubt. See Wright, 290 Kan. at 202-03. Thus, when the jury is instructed on alternative means of committing a single crime and the State fails to present sufficient evidence to support both means, reversal is required. Wright, 290 Kan. at 203, 205.
Identifying alternative means
Ordinarily, the first step in analyzing an alternative means case is to determine whether the case truly presents an alternative means issue. If so, the next step is to determine whether the evidence is sufficient to support each means alleged by the State and included in the jury instructions. See, e.g., State v. Stevens, 285 Kan. 307, 316-19, 172 P.3d 570 (2007) (concluding the crime of driving under the influence is an alternative means crime before considering whether the evidence was sufficient to support both means).
Previously, we have described an alternative means offense as a single offense that may be committed in more than one way. But in State v. Brown, (No. 103,842, filed August 24, 2012), we recognized that this description, while straightforward on its face, has led to confusion and disagreement as applied. Brown, slip op. at 15.
In Brown, we clarified the test for identifying whether a statute contains alternative means. Namely, we held that “ ‘[t]he mere use of a disjunctive in a statute does not an alternative means crime make.’ ” Brown, slip op. at 16 (quoting State v. Peterson, 168 Wash. 2d 763, 770, 230 P.3d 588 [2010]). Instead, in determining whether statutory alternatives are alternative means, we look primarily to the legislative intent and apply traditional rules of statutory construction in determining that intent. We explained:
“In examining legislative intent, a court must determine for each statute what the legislature’s use of a disjunctive ‘or’ is intended to accomplish. Is it to list alternative distinct, material elements of a crime—that is, the necessary mens rea, actus reus, and, in some statutes, a causation element? Or is it to merely describe a material element or a factual circumstance that would prove the crime? The listing of alternative distinct, material elements, when incorporated into an elements instruction, creates an alternative means issue demanding super-sufficiency of the evidence. But merely describing a material element or a factual circumstance that would prove the crime does not, even if the description is included in a jury instruction. [Citations omitted.]” Brown, slip op. at 17.
Citing Peterson, 168 Wash. 2d at 771, this court in Brown identified “yet another consideration for determining if a statute provides alternative means.” Slip op. at 19. Specifically, we noted a line of cases drawing a critical distinction between alternative means and “means within a means,” and we adopted our own terminology for this scenario—i.e., an “option within a means.” We reasoned:
“An option within a means scenario is another important clue to legislative intent because such options signal secondary status rather than an intent to create a material, distinct element of the crime. Options within a means—that is, tire existence of options that do not state a material, distinct element—do not demand application of the super-sufficiency requirement [Citations omitted.].’’Brown, slip op. at 20.
Finally, in Brown we summarized the analysis we will apply in alternative means cases:
“[I]n determining if the legislature intended to state alternative means of committing a crime, a court must analyze whether the legislature listed two or more alternative distinct, material elements of a crime—that is, separate or distinct mens rea, actus reus, and, in some statutes, causation elements. Or, did the legislature list options within a means, that is options that merely describe a material element or describe a factual circumstance that would prove the element? The listing of alternative distinct, material elements, when incorporated into an elements instruction, creates an alternative means issue demanding super-sufficiency of tire evidence. Often this intent can be discerned from the structure of tire statute. On the other hand, the legislature generally does not intend to create alternative means when it merely describes a material element or a factual circumstance that would prove the crime. Such descriptions are secondary matters—options within a means—that do not, even if included in a jury instruction raise a sufficiency issue that requires a court to examine whether the option is supported by evidence.” Brown, slip op. at 23-24.
This case does not involve an alternative means issue
Here, Rojas-Marceleno claims the crime of aggravated indecent solicitation of a child as defined in K.S.A. 21-3511(a) can be committed by alternative means because subsection (a) prohibits enticing or soliciting a child under the age of 14 to (1) commit an unlawful sexual act or (2) submit to an unlawful sexual act.
In support of the aggravated indecent solicitation charge, C.V. testified that on New Year’s Eve she left her Aunt Maria’s house to go to Rojas-Marceleno’s house with Rojas-Marceleno, his wife, Jamie, and their kids. C.V. claimed that before Jamie got into the car to go to Rojas-Marceleno’s home, Rojas-Marceleno told her not to fall asleep because he wanted to have sex with her after they got home and Jamie fell asleep. C.V. testified they did not have sex that night.
Clearly, there was no evidence that Rojas-Marceleno enticed C.V. to “commit” the act of rape; instead, the evidence was sufficient to establish only that he enticed or solicited her to “submit to” the act of rape. But if “commit to” and “submit to” are not alternative means under K.S.A. 21-3511(a), the lack of evidence that Rojas-Marceleno enticed or solicited C.V. to commit the act of rape will not require reversal of the conviction. See Wright, 290 Kan. at 203, 205 (reversal required if State fails to present sufficient evidence to permit a jury to find each alternative means of committing the crime beyond a reasonable doubt).
To determine whether Rojas-Marceleno’s conviction of aggravated indecent solicitation of a child is an alternative means crime, we must examine the language of relevant statute, K.S.A. 21-3511. The question of whether alternatives within a statute define alternative means or “an option within a means” is a question of law subject to de novo review. See Brown, slip op. at 17, 20-22.
At the time of Rojas-Marceleno’s offense, K.S.A. 21-3511 provided:
“Aggravated indecent solicitation of a child is:
(a) Enticing or soliciting a child under the age of 14 years to commit or to submit to an unlawful sexual act; or
(b) inviting, persuading or attempting to persuade a child under the age of 14 years to enter any vehicle, building, room or secluded place with intent to commit an unlawful sexual act upon or with the child.” (Emphasis added.)
The language of the charge and the jury instruction in this case were consistent with the language of the statute. The charge alleged Rojas-Marceleno violated K.S.A. 21-3511(a) and asserted
“that on, about or between tire 31st day of December, 2007 and the 1st day of January, 2008, in Lyon County, Kansas, one Luis-Rojas Marceleno, then and there being, did unlawfully, feloniously and intentionally entice or solicit [C.V.] (DOB: [XX/XX]/1995), a child under 14 years of age, to commit or submit to an unlawful sex act, to-wit: rape/sexual intercourse.” (Emphasis added.)
The jury was instructed in relevant part that the . State was required to prove: “That the defendant enticed, solicited [C.V.] to commit, or submit to the act of rape.” Further, during closing arguments, the State also advised the jury that the State had to establish “that the defendant enticed or solicited [C.V.] to commit or submit to the act of rape.”
As defined in K.S.A. 21-3511(a), the gravamen of the crime of aggravated indecent solicitation of a child is the defendant’s act of enticing or soliciting a child under age 14 to engage in an unlawful sexual act. This is true regardless of whether the defendant entices or solicits the child to commit an unlawful sexual act or to submit to an unlawful sexual act. Thus, we conclude the terms “committing” or “submitting to” are merely “options within a means” and are not alternative means of committing the crime defined in K.S.A. 21-3511(a).
We note that while the charge and the jury instruction could have been more narrowly tailored to include only the factual circumstance at issue here—i.e., that the defendant enticed or solicited C.V. to submit to an unlawful act, the overly broad charge and instruction did not deprive Rojas-Marceleno of his right to jury unanimity because the State presented no alternative means of committing the crime.
Additionally, contrary to Rojas-Marceleno’s argument, he was not entitled to a unanimity instruction on the charge of aggravated indecent solicitation of a child because the State did not allege multiple acts. See Sanborn, 281 Kan. at 569 (“A unanimity instruction is used when the State charges one crime but relies on multiple acts to support that one crime.”).
The district court had jurisdiction to order restitution 30 days after imposing a lawful sentence.
Rojas-Marceleno next contends the district court’s restitution order must be vacated because the court did not enter the order until 30 days after sentencing. Citing K.S.A. 22-3424(d), Rojas-Marceleno maintains that once the district court imposes a lawful sentence, the court loses jurisdiction to modify the sentence except to correct arithmetic or clerical errors.
Whether tire district court had jurisdiction is a question of law over which we exercise unlimited review. State v. McDaniel, 292 Kan. 443, 444-45, 254 P.3d 534 (2011). To the extent this issue requires intexpretation of provisions of the Kansas Sentencing Guidelines Act or prior caselaw, our review is also unlimited. McDaniel, 292 Kan. at 444-45; In re Care & Treatment of Miller, 289 Kan. 218, 225, 210 P.3d. 625 (2009).
After the parties filed their briefs in this case, we resolved this issue contrary to Rojas-Marceleno’s position in McDaniel, 292 Kan. 443, Syl. ¶¶ 1, 2. There, we concluded K.S.A. 22-3424(d) applies only when the crime victim or the victim’s family seeks restitution and, even in those cases, the court is directed but not required to hold a restitution hearing before imposing sentence. 292 Kan. at 446 (agreeing with State v. Bryant, 37 Kan. App. 2d 924, 930, 163 P.3d 325, rev. denied 285 Kan. 1175 [2007], that the term “shall” in K.S.A. 22-3424[d] is directory rather than mandatory). We further concluded the district court did not alter the defendant’s sentence at the postsentencing hearing but instead “merely completed it.” 292 Kan. at 448.
Here, as in McDaniel, neither the victim nor the victim’s family requested restitution. Instead, the State sought restitution in the amount of $269.32 to be paid to the Crime Victim’s Compensation Board for services provided to C.V. As in McDaniel, both parties in this case understood and agreed that the amount of restitution would be determined within 30 days of sentencing. And, 30 days after sentencing the court signed a restitution order based on the amount sought by the State at sentencing.
Following McDaniel, we conclude the district court’s restitution order did not alter or modify Rojas-Marceleno’s sentence but merely completed it. Thus, we reject Rojas-Marceleno’s claim that the court lacked jurisdiction to impose the restitution order.
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The opinion of the court was delivered by
Prager, C.J.:
This is an appeal by the State on a question reserved, pursuant to K.S.A. 1986 Supp. 22-3602(b)(3), following a plea of guilty and sentence of the defendant, Paul D. Higgins, for driving under the influence of alcohol/drugs (K.S.A. 1983 Supp. 8-1567). The only dispute in the case involves payment of the costs of extradition of the defendant from California provided for in K.S.A. 1986 Supp. 22-2724.
The facts in the case are undisputed and are as follows: On June 27, 1983, defendant Higgins was arrested by a Kansas highway patrolman for driving under the influence as well as two minor traffic charges. Defendant failed to appear for his arraignment in July 1983. His appearance bond was forfeited and a warrant was issued.
On May 24, 1984, a motion for judgment for forfeiture of bail was granted. Thereafter, a criminal charge for failure to appear was also filed and a warrant was issued for defendant’s arrest. Two years later, the defendant was located in the State of California. The district attorney determined that the defendant should be returned to Kansas and began the appropriate proceedings under K.S.A. 1986 Supp. 22-2723. At the same time, there was another fugitive from justice who was in California and who had been charged with a felony in Shawnee County.
The defendant waived formal extradition proceedings and, in August of 1986, two officers of the Shawnee County sherifFs department traveled to California to pick up the defendant and the other charged person. Thereafter, for some unexplained reason, the warrant on the other person was dropped, and the two officers took the defendant into custody and returned him to Topeka. On August 13,1986, defendant pleaded guilty to driving under the influence and also pleaded guilty to the offense of failure to appear in the other case. At the time sentence was imposed, the State requested that the total cost of extradition in the amount of $1,193.80 be assessed against the defendant. The trial judge questioned the defendant regarding his employment in California and determined that he was indigent and lacked funds to pay those costs. Defense counsel requested that the extradition costs be waived.
The trial court then sentenced the defendant on his plea of guilty to DUI as follows:
(1) Defendant was fined the sum of $200.
(2) As to the mandatory 48 hours imprisonment under the statute, defendant was sentenced to time served awaiting trial, which was 18 days.
(3) The court imposed restrictions on the defendant’s Kansas driver’s license that defendant drive only to and from work and to medical meetings and to any alcohol rehabilitation programs that he might be required to attend.
(4) The trial court assessed all of the usual court costs not including the extradition costs, in the amount of $26.
(5) The trial court waived the local alcohol evaluation program, but included 6 months unsupervised probation. It required defendant to investigate the California alcohol drug program conducted through the California court services and ordered him to make arrangements to participate therein and so advise his Kansas probation officer.
(6) The trial court assessed the $1,193.80 extradition fees as court costs pursuant to K.S.A. 1986 Supp. 22-2724 and K.S.A. 1986 Supp. 22-3801. The trial court then paroled defendant from paying these assessed extradition costs. The prosecutor reserved as a question of law whether the trial court had the right to parole the defendant from the payment of the extradition fees.
The basic issue presented on appeal is whether a district court has the authority to release an indigent defendant on probation or parole without requiring, as a condition of the parole or probation, the payment of all costs and expenses incurred in returning the defendant, as an extradited fugitive, to Kansas from another state.
In order to determine this question, we first must consider the applicable statutes. K.S.A. 1986 Supp. 22-2723 provides a procedure for the requisition and return from another state of a person charged with a crime in this state. K.S.A. 1986 Supp. 22-2724 governs the manner in which the costs of extradition are to be paid. It provides as follows:
“22-2724. Costs and expenses. The expenses which may accrue under K.S.A. 22-2723 shall be treated as costs of the criminal proceedings and shall be taxed and paid as provided in K.S.A. 22-3801 et seq.”
K.S.A. 1986 Supp. 22-3801(a) governs the liability of a convicted defendant for the costs incurred in the following language:
“22-3801. Liability for costs, (a) If the defendant in a criminal case is convicted, the court costs shall be taxed against the defendant and shall be a judgment against the defendant which may be enforced as judgments for payment of money in civil cases.”
The Kansas sentencing statutes also deal with a trial court’s authority to assess the costs against the defendant, and invest in a trial court a broad discretion in determining the disposition in a particular case.
K.S.A. 1986 Supp. 21-4603(2) provides that whenever any person has been found guilty of a crime, the court may adjudge any of a number of prescribed actions including the power to release the defendant on probation, subject to such conditions as the court may deem appropriate, including orders requiring full or partial restitution.
K.S.A. 1986 Supp. 21-4610 addresses the conditions which may be imposed when a trial court grants probation or suspended sentence. Subsection (3) states that the court may include among the conditions of probation or sentence any of a number of prescribed conditions which it deems proper. Subsection (3)(g) gives the trial court authority to require, as a condition of probation, that the defendant pay a fine or the costs in the manner as directed by the court. Among other things, K.S.A. 1986 Supp. 21-4610 authorizes the trial court, in its discretion, to require payment of costs; to reimburse the indigents’ defense services fund for counsel provided and other defense services to the defendant; to order the defendant to perform services to satisfy fines or costs based upon his ability to pay; and to order restitution, unless the circumstances render a plan of restitution unworkable. K.S.A. 1986 Supp. 21-4610 gives a trial court broad discretion in evaluating the defendant’s ability to make payments and also to include relief from such payments as a condition of probation.
In recent years, the courts in this country have taken a rather firm position holding that it is constitutionally impermissible to incarcerate an indigent criminal defendant merely because he does not have the money to pay the fine or make restitution as a condition of his probation. In this regard see Bearden v. Georgia, 461 U.S. 660, 76 L. Ed. 2d 221, 103 S. Ct. 2064 (1983). In the recent case of State v. Duke, 10 Kan. App. 2d 392, 699 P.2d 576 (1985), it was held that, in determining whether to revoke the defendant’s probation, the trial court must consider why the probationer failed to pay a fine or court costs or make restitution as required by the conditions of the probation. The trial court held that imprisonment may be used as a means to enforce collection of fines, court costs, or restitution when the probationer willfully refuses to pay although he has the means to pay, or he does not make a bona fide effort to acquire the resources to pay.
We also note Olson v. James, 603 F.2d 150 (10th Cir. 1979), where it was held that a court should not order a convicted person to pay expenditures for attorney fees furnished by the State unless he is able to pay them or will be able to pay them in the future considering his financial resources and the nature of the burden that payment will impose, and if a person is unlikely to be able to pay, no requirement to pay is to be imposed. The court cites the case of James v. Strange, 407 U.S. 128, 32 L. Ed. 2d 600, 92 S. Ct. 2027 (1972), where K.S.A. 1971 Supp. 22-4513, which provided that the State could recoup from an indigent defendant sums expended in providing him with counsel and other legal services, was held to be unconstitutional where a convicted person was required to pay these expenses without considering his financial resources and the nature of the burden the expenses would impose.
Note should also be taken of the opinion of this court in State v. Kitzman, 240 Kan. 191, 727 P.2d 491 (1986), where it was held that K.S.A. 1984 Supp. 8-1567(d), which provides for mandatory sentencing upon a second DUI conviction, does not give the trial court discretion to waive, remit, suspend, or parole the mandatory minimum fine. That case did not involve the payment of court costs as a condition of probation or parole.
We have considered all of the statutes and cases cited above, and have concluded that K.S.A. 1986 Supp. 22-2724 and K.S.A. 1986 Supp. 22-3801 should be construed together to require that a judgment against the defendant for court costs in a criminal case constitutes a civil judgment for the payment of money and is enforceable as such, subject to the same protections and exemptions provided indigent defendants in civil cases. As a civil judgment, a judgment for court costs in a criminal case incurred in connection with an extradition proceeding may be collected whenever a defendant has sufficient property to satisfy the judgment. We have also concluded that, under the broad power of a trial court to grant probation or parole, a trial court may excuse a defendant from the immediate payment of court costs when a defendant is released on probation or parole. This action, however, does not in any way destroy the civil judgment for court costs. It simply makes it possible for an indigent defendant to be treated on an equal basis with other indigent defendants in civil cases.
In reaching this conclusion, we also have considered the logical consequence of a rule requiring that all costs of extradition be paid without regard to a defendant’s indigency or financial condition. If a criminal defendant must be summarily thrown into jail as a matter of law because he cannot pay the court costs, the already overcrowded county jails in Kansas would burst at the seams, and the expense to the counties would be exorbitant. We hold that, in view of the broad powers given to our trial courts in imposing conditions of probation, and in view of the language of K.S.A. 1986 Supp. 22-2724 and K.S.A. 1986 Supp. 22-3801, although costs of extradition assessed in a criminal case remain a civil judgment against the defendant, a trial court may release a defendant on probation or parole without requiring the defendant to pay such costs. The appeal of the State is denied. | [
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The opinion of the court was delivered by
Holmes, J.:
The appeals of Gene Hamilton from the sentence imposed upon him after a plea of guilty to one count of aggravated arson (K.S.A. 21-3719) in case No. 58,927, and from his convictions by a jury of aggravated robbery (K.S.A. 21-3427) and aggravated battery (K.S.A. 21-3414) in case No. 58,980, have been consolidated in this court.
We will first consider the appeal from sentence in case No. 58,927. Following a plea of guilty to one count of aggravated arson, Hamilton was sentenced by Judge Ray Hodge to imprisonment for a term of five years to life. His application for probation was denied and he was sent to the Kansas Reception and Diagnostic Center (KRDC) for examination and a report. A subsequent motion for modification of sentence was also denied.
The familiar rule in Kansas is that a sentence imposed which is within the statutory limits will not be disturbed on appeal, provided it is within the realm of discretion on the part of the trial court and not a result of partiality or prejudice. State v. Van Cleave, 239 Kan. 117, 716 P.2d 580 (1986). The sentence here is within the statutory limits for the class B felony of aggravated arson.
It is contended that the sentence should be set aside for failure of the court to consider the alternatives set out in K.S.A. 21-4601 and K.S.A. 1985 Supp. 21-4603. It appears to be the position of the appellant that as the KRDC was “inclined” to recommend probation in a well-structured and highly monitored setting and, as Judge Hodge did not clearly state his consideration of the various alternatives in the statutes cited above, he abused his discretion. If this case is considered as an attempt to appeal from a denial of probation, we held in State v. Haines, 238 Kan. 478, Syl. ¶ 2, 712 P.2d 1211, cert. denied _U.S._ (1986), that “[u]nder K.S.A. 22-3602(a) there is no direct appeal of a denial of probation after a plea of guilty or nolo contendere,” and the appeal is precluded. In State v. Harrold, 239 Kan. 645, 722 P.2d 563 (1986), we overruled certain statements made in Haines but did not address the issue of an appeal from probation. We now affirm our holding in Haines as it applies to an appeal from a denial of probation.
As the appellant has couched his appeal as one from the original sentence and denial of his motion for a modification thereof, we will consider that issue. At the time of the hearing on the motion for modification of sentence, Hamilton had been convicted of the crimes of aggravated robbery and aggravated battery committed while he was free on bond in this case. Clearly there was no abuse of discretion in denying the motion to modify the sentence.
At the time of the original sentence, Hamilton had not been examined at the KRDC. The presentence and psychological reports made available to the court at the time of sentencing indicated that the defendant was an abuser of heroin, alcohol, and other drugs, and that when the defendant was under the influence of alcohol or drugs, he expressed his anger in an explosive and hostile manner. The court imposed the minimum sentence possible, but set the maximum sentence at the long end of the permissible statutory range awaiting the KRDC report. The court’s comments at sentencing indicated, contrary to the contentions of appellant, that the court was deeply concerned about the dangerous propensities of the offender and sought a disposition which would be consistent with the needs of public safety. We find no abuse of discretion, partiality, or prejudice in the sentence originally imposed. The judgment and sentence in Case No. 58,927 must be affirmed.
We now turn to the appeal from the convictions of aggravated robbery and aggravated battery in case No. 58,980. In view of the result reached, it is not necessary to set forth the facts in detail. Suffice it to say there was evidence that Edward J. Washington was threatened and beaten on the night of March 2, 1985, by appellant and one Nathan Lattimore. There was also evidence to support the contentions of the State that appellant and Lattimore took $161.00 from Washington during the encounter.
The first issue raised by appellant is that he was denied his right to a fair trial as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution because of the interference, comments, and conduct of Judge Robert D. Watson during the jury trial. It is the position of the appellant that the trial judge inteijected himself into the trial of the action to such an extent that Hamilton was deprived of a fair trial. The Supreme Court has long recognized “the premise that the Due Process Clause guarantees the fundamental elements of fairness in a criminal trial.” Spencer v. Texas, 385 U.S. 554, 563-564, 17 L. Ed. 2d 606, 87 S. Ct. 648 (1967), and cases cited therein. Ap pellant asserts that the trial judge created an atmosphere during trial which implied that defense counsel was withholding or misstating the evidence, showed partiality to the State’s case, and indicated bias on the part of the judge, and that the comments of the judge reflected upon the credibility of the defendant, his defense, and defense counsel.
Hamilton was charged in an amended information with one count of aggravated robbery, one count of aggravated battery, and one count of attempted first-degree murder. Prior to trial, defense counsel unsuccessfully sought dismissal of the aggravated battery and attempted murder charges. The attempted murder charge was subsequently dismissed upon completion of the evidence and prior to submission of the case to the jury. At the beginning of the proceedings before the jury, Judge Watson, during his opening explanation of the case, read the amended information to the jury in order that it would be apprised of the charges against Hamilton. Immediately prior to reading the information, the trial judge stated:
“1 might inform the Jurors at'this point, that at the time that you get the case for final decision, there may be one count that you’ll consider. There may be two counts that you’ll consider and or there may be three counts that you’ll consider as a result of this. Or it may be under the correct factual situation and legal situation that the Court could take the whole case away from you. Very doubtful because it is extremely rare where you have an information with more than one count in it, that by the time that you receive the case and receive instructions from the Court, that the Court would be required to say by the law that you heard of three counts but now in your jury room you’ll only consider this count. This is the count that you consider. The rest has been taken care of in a manner which I will explain to you. But you’d be instructed. But at this point, there’s three counts pending as a result of accusations, allegations by the State.” (Emphasis added.)
Appellant argues that the comments reflected an opinion that the State’s case had merit, implied an opinion of guilt, and from the very start of the proceedings cast the trial judge in the role of an advocate partial to the State.
Appellant also points to numerous occasions where the trial judge commented upon the evidence, gave his recollection or opinion of the evidence, and admonished counsel about his manner of presenting and developing his defense. There are numerous incidents of such conduct in the record, not all of which need be detailed here. During cross-examination of the alleged victim, defense counsel was interrupted at least seven times by the judge’s comments upon the testimony, some of which were combined with admonishments to counsel. At the preliminary hearing, the witness had testified he had not drunk any alcoholic beverages on the day of the alleged crimes but during direct examination at trial, he testified to the contrary. The following occurred:
“Q.[by defense counsel] Mr. Washington, you testified that you had nothing to drink on that date. Is that right?
“THE COURT: He didn’t testify to that.
“MR. GREENO: Excuse me.
“THE COURT: Twice he’s testified that he may have had something to drink on the day. That he was inclined that he probably did ‘cause he had beer in the car and he hadn’t had a chance to drink it. Now, please state the evidence as it is. “MR. GREENO: That was a slip of the tongue and I’m sorry.”
Judge Watson, who had not conducted the preliminary hearing, was unaware of the prior inconsistent testimony and effectively precluded the defense from possible impeachment of some of the witness’ trial testimony as being inconsistent with his prior testimony at the preliminary hearing.
In another exchange on a minor matter wherein the trial judge interrupted with his view of the evidence, defense counsel attempted to abandon the line of questioning whereupon the judge stated:
“THE COURT: I want the evidence to be kept straight on the basis of your questioning.”
A few moments later, defense counsel was directed to add to the content of a question although the question was not vague or misleading and no objection had been made by the State.
Again during cross-examination of a detective, who investigated the case, defense counsel was attempting to impeach the witness upon the basis of certain omissions from the officer’s report. The following exchange took place:
“Q. Okay. Did Mr. Washington, at any time during your interview, tell you that Mr. Hamilton had stopped Mr. Lattimore from beating him?
“A. I can’t recall.
“Q. Okay. Is it in your report anywhere?
“A. I wouldn’t know.
“Q. Would you like to take a look at your report?
“A. It may take a while.
“THE COURT: Does counsel know it’s in the report?
“MR. GREENO: I know that —
“THE COURT: If you know it’s in there, show it to him. There’s no need taking time.
“MR. GREENO: I’m sorry. I’m not quite sure if it’s appropriate. I don’t know if it is in there.
“THE COURT; If you don’t, let’s don’t plant germs that don’t exist. Any time that you know that’s in there and think the witness has a question, with it being his report, you walk forth and show it to him. That’s the way to do it.
“MR. GREENO: Thank you, Your Honor.
“THE COURT: Thank you.” (Emphasis added.)
Immediately thereafter, there was another interruption:
“Q. It doesn’t say anywhere on this report, specifically, that Mr. Washington was advised by Mr. Lattimore that he was going to kill him. Is that correct; with that word?
“A. I don’t particularly understand your question.
“Q. I’m sorry. I think we went back over this. I asked you, did Mr. Washington advise you that Mr. Lattimore told him that he was going to take care of him?
“THE COURT: Let me set some guidelines here. You’ve in effect, made this man your witness because you’re beyond the direct examination area. Also, you’re examining him on his report. I tell you again, if you know that those facts aren’t in that report, don’t ask the questions. If you choose to get away from the report, let the witness know, but remember this, you’ve already had the witness testify that he put everything that he knew about this crime in that report.
“MR. GREENO: Okay.
“THE COURT: Which I doubt is possible.
“MR. GREENO: Well Your Honor, you know, I want to make note I take exception.
“THE COURT: You may take exception. But the Court’s aware that nobody can take a report and get every word in it, unless it’s taped. There’s no evidence that that was taped. You might inquire for the benefit of the Jury—
“MR. GREENO: Excuse me.”
During cross-examination of the State’s fingerprint expert, concerning a lack of fingerprints, the court remarked, absent any objection by the State:
“It’s not going to prove anything. Probably prove that they did a good job of wiping off fingerprints.”
The defendant, Gene Hamilton, testified in his own defense and upon cross-examination defense counsel objected to a question as being repetitious. The court stated:
“THE COURT: He hasn’t testified extensively. He’s testified on the surface. If I remember right, at the first time he told his story, I heard nothing about the using of the gun that he testifies is on the table. Then on cross-examination by the District Attorney, I think he made an estimate of licks by the gun. This is cross-examination, which allows more leeway than it does on direct. Okay. Overruled.”
During the same cross-examination, when defense counsel lodged valid objections, the court advised the State’s attorney how to state the questions and further commented upon the court’s recollection of the evidence. Numerous other unwarranted intrusions are reflected by the record and we see nothing to be gained by setting forth all of them in detail.
The trial judge is not merely a moderator, but is the governor of the trial. The judge must strive to have the trial conducted in an atmosphere of impartiality and should refrain from remarks or conduct that may injure a litigant. 75 Am. Jur. 2d, Trial § 87.
The impact of statements and conduct of a trial judge on a jury in a criminal proceeding was discussed in the dissenting opinion of Justice Jochems in State v. Wheat, 131 Kan. 562, 569, 292 Pac. 793 (1930), 85 A.L.R. 1412.
“The trial judge occupies a high position. He presides over the trial. The jury has great respect for him. They can be easily influenced by the slightest suggestion coming from the court, whether it be a nod of the head, a smile, a frown, or a spoken word. It is therefore imperative that the trial judge shall conduct himself with the utmost caution in order that the unusual power he possesses shall not be abused.
“Juries are composed of human beings. They are drawn from the body of the county and therefore, notwithstanding assertions to the contrary made by some critics of the jury system, it necessarily follows that they are composed of citizens of average intelligence. It is going too far to assume that they are so dumb that improper statements made in their presence do not make any impression on their minds and therefore cannot be prejudicial. On the other hand, it is entirely too much to assume that if an improper statement has been made in their presence and they are told to disregard it, they are so highly intelligent as to be able to proceed with their deliberations and erase such statements entirely from their minds and not be influenced by them. Jurors are not skilled lawyers or judges. They cannot be expected to make the fine distinctions required to shut out from their minds prejudicial or improper statements and thus be exact and impartial judges of their fellow men. Even a judge who has been trained in the law and who knows its niceties and refinements oftentimes finds difficulty in staying within the record and basing his decision solely thereupon, uninfluenced and unprejudiced by some bit of information or knowledge which he may have obtained about the case which does not appear in the record. In the language of one of the columnists of the day, it is well to remember that ‘we’re all human at that.’ ”
In State v. Diaz & Altemay, 232 Kan. 307, 654 P.2d 425 (1982), the defendant raised similar complaints to those found in the case at bar and, although the convictions were affirmed, the court quoted extensively from State v. Stoops, 4 Kan. App. 2d 130, 132, 603 P.2d 221 (1979). In Stoops, the Court of Appeals discussed the standards of judicial conduct and applicable rules of appellate review, stating:
“ ‘The trial judge should be the exemplar of dignity and impartiality. He should exercise restraint over his conduct and utterances. He should suppress his persona] predilections, and control his temper and emotions. He should not permit any person in the courtroom to embroil him in conflict, and he should otherwise avoid conduct on his part which tends to demean the proceedings or to undermine his authority in the courtroom. When it becomes necessary during the trial for him to comment upon the conduct of witnesses, spectators, counsel, or others, or upon the testimony, he should do so in a firm, dignified and restrained manner, avoiding repartee, limiting his comments and rulings to what is reasonably required for the orderly progress of the trial, and refraining from unnecessary disparagement of persons or issues.’ ”
“Allegations of judicial misconduct during trial must be decided on the particular facts and circumstances surrounding such alleged misconduct; and in order to warrant or require the granting of a new trial it must affirmatively appear that the conduct was of such a nature that it prejudiced the substantial rights of the complaining party. State v. Thomson, 188 Kan. 171, 174, 360 P.2d 871 (1961). In a more recent case, Plains Transport of Kansas, Inc. v. Baldwin, 217 Kan. 2, 10, 535 P.2d 865 (1975), the Kansas Supreme Court stated:
‘We enter our caveat that no comment or remark should be made by a judge, during the trial of an action, which may tend to excite prejudice or hostility in the minds of the jurors toward one of the party-litigants, or sympathy for the other, but a mere possibility of prejudice from a remark of the judge is not sufficient to overturn a verdict or judgment, and, where a construction can properly and reasonably be given to a remark which will render it unobjectionable, it will not be regarded as prejudicial. (88 C.J.S., Trial § 49, p.124.)’ ” 4 Kan. App. 2d at 132.
In the recent case of State v. Starbuck, 239 Kan. 132, 715 P.2d 1291 (1986), the court was faced with similar complaints about the conduct of Judge Watson during a hearing in which the defendant’s probation had been revoked. This court stated:
“Proceedings in court should be so conducted as to reflect the importance and seriousness of the inquiry to ascertain the truth. Throughout the hearing, judge Watson made comments regarding the evidence submitted by the accused probation violator. During the hearing, the judge repeatedly took over the examination of the witnesses. Occasionally, the judge expressed to the attorney for the defendant his opinions and that his ‘patience was wearing thin.’
“Canon 3 of the rules relating to judicial conduct requires that a judge be patient, dignified, and courteous. 235 Kan. clxiii. A judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law. He should exercise restraint over his conduct and utterances. If it becomes necessary during a proceeding for the judge to comment upon the conduct of witnesses, counsel or the testimony, he should do so in a firm, dignified and restrained manner, avoiding repartee and refraining from unnecessary disparagement of persons or issues.” p. 134.
In State v. Boyd, 222 Kan. 155, 563 P.2d 446 (1977), in discussing the role of the trial judge, the court said:
“In recognizing the right of a trial judge to cross-examine witnesses we have always coupled such recognition with words of warning. In State v. Winchester, [166 Kan. 512, 203 P.2d 229 (1949)], we stated that where the judge deems it necessary to cross-examine witnesses, he must exercise great care to prevent giving the jury the impression that he is biased against the defendant and he must not forget the function of a judge and assume that of an advocate. The same rule applies with respect to the credibility of a witness and a judge should exercise great care and caution to say nothing within the hearing of the jury which would give them an indication of what he thought about the truth or falsity of any part of the testimony. This admonition was recently repeated in State v. Jones, [204 Kan. 719, 466 P.2d 283 (1970)]. These admonitions are prompted by the truism that a jury has a natural tendency to look to the trial judge for guidance, and may find it even where it is not intended. The judge’s attitude and the result he supposedly desires may be inferred by the jury from a look, a lifted eyebrow, an inflection of the voice — in many cases without warrant in fact. (State v. Blake, [209 Kan. 196, 495 P.2d 905 (1972)].)
“Since the cross-examination of a witness by a trial judge is fraught with such dangerous consequences, if a trial judge sincerely believes that additional information should be obtained from a witness in order to clarify the evidence and enable the jury to arrive at the true facts, the better practice is for the trial judge to discuss the matter with counsel outside the presence of the jury and request counsel to pose the questions to the witness. Such a procedure will accomplish the full development of the truth without a direct participation by the trial judge in the examination of the witness and hence any question as to the judge’s bias may be avoided.” pp. 158-59.
We recognize that a trial court must control the proceedings in all hearings and trials and that the court has broad discretion and leeway in doing so. However, in the present case, when the entire record is considered, the totality of the circumstances reflecting the judge’s injection of himself and his personal beliefs and observations into the trial proceedings convinces us the appellant was seriously prejudiced, his constitutional right to a fair trial was denied, and he must be granted a new trial. In view of our determination, other issues raised on appeal need not be considered.
The judgment in Case No. 58,927 is affirmed. The judgment in Case No. 58,980 is reversed and the case is remanded for a new trial.
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The opinion of the court was delivered by
Schroeder, C.J.:
This is a direct appeal from jury convictions of first-degree murder (K.S.A. 21-3401) and aggravated robbery (K.S.A. 21-3427). The issues .on appeal are whether amendments made to the criminal complaint were prejudicial, whether there was prosecutorial misconduct, and whether the jury was properly instructed.
On the night of August 14, 1984, the body of Carl James Baldwin was discovered on a stairway of the Kansas Avenue bridge in Topeka, Kansas. He had been stabbed 65 times. Carl Baldwin had last been seen in the company of the defendant, Elmer “Butch” Barncord, and Henry Johnson at the Cowboy Palace, a local bar located approximately one-half mile from the place where the body was discovered. Mr. Baldwin was buying drinks at the bar and flashing a large amount of money. When the three men left the bar together, one witness noted the defendant was carrying a bone-colored fixed knife in his back pocket. Butch and Henry returned to the bar approximately fifteen to twenty minutes later, without Carl Baldwin. Dark stains were observed on the defendant’s jeans. The two men went into the restroom together where they remained for quite a while. Bloody towels were later discovered in the restroom. Henry was heard to make a statement to the effect that they had stabbed Baldwin at the north end of the Kansas Avenue bridge. Butch was heard to say, “We just mugged somebody and what it got us was five dollars.” A call was made to the police to report that a person at the bar had blood on his clothing. Henry was arrested at the bar. The defendant. was arrested approximately an hour later. He was wearing jeans which were soiled with a very deep red color. The defendant gave a statement to police that he had stabbed Baldwin. However, at trial the defendant testified Henry had stabbed Baldwin while the defendant watched in shock; finally, the defendant stabbed Henry in the leg in order to make Henry stop stabbing Baldwin.
The first issue on appeal has to do with three amendments made to the original complaint by the State during the course of the trial: (1) an amendment made to the charge of first-degree premeditated murder to include felony murder; (2) an amendment made to the charge of aggravated robbery to add the words “by force”; and (3) a second amendment made to the charge of aggravated robbery to delete the language “black handled buck knife,” leaving a description of the dangerous weapon used as “a knife.”
At the end of the preliminary hearing held August 31,1984, the State orally moved to amend Count I of the original complaint to include both premeditated murder, as was originally charged, and, in the alternative, felony murder. The district court judge, William Carpenter, took the matter under advisement, briefs were submitted, and on September 27, 1984, the court entered an order granting the State’s oral motion to amend. The defendant’s trial was originally set for November 8, 1984, but was continued due to the illness of the prosecutor, Sue Carpenter. On November 26, 1984, the first day of the rescheduled trial, at 4:53 p.m., the State filed an amended complaint. Two days later, after voir dire but before the jury was impaneled, the trial judge, Franklin Theis, noted to counsel problems he perceived with the amended complaint of Count II, the aggravated robbery charge: the words “by force” were omitted which are required under the decision of State v. Howell & Taylor, 226 Kan. 511, 601 P.2d 1141 (1979). It was at this time defense counsel first became aware an amended complaint had been filed.
The defendant first argues it was error to allow the amendment of felony murder to be filed during trial after the defense had prepared only for the crime of premeditated murder, thinking the State had abandoned its intention to pursue the alternative charge of felony murder.
Actually, the amendment to include felony murder was not necessary. In State v. Foy, 227 Kan. 405, 607 P.2d 481 (1980), the State amended the information to allege felony murder less than a week before trial. This court ruled an amendment to the information was not actually necessary, for an information in the ordinary form charging that a killing was done with malice aforethought, deliberation, and premeditation is sufficient to sustain a conviction of murder in the first degree committed in the perpetration of a felony. 227 Kan. at 408. See State v. Foy, 224 Kan. 558, 566, 582 P.2d 281 (1978); State v. Turner, 193 Kan. 189, 195, 392 P.2d 863 (1964).
Furthermore, had an amendment been required, K.S.A. 1985 Supp. 22-3201(4) provides a two-part -analysis to determine whether an amendment should be permitted:
“The court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.”
The defendant agrees no different or additional crime was charged. Premeditated murder and felony murder are not separate and distinct offenses. Rather, a prosecution under the felony-murder rule changes the type of proof necessary to prove first-degree murder. State v. McCowan, 226 Kan. 752, 759, 602 P.2d 1363 (1979), cert. denied 449 U.S. 844 (1980). The State is relieved of the burden of proving premeditation and malice when the victim’s death is caused by the killer while he is committing another felony. State v. Underwood, 228 Kan. 294, 302-03, 615 P.2d 153 (1980).
Addressing the second half of K.S.A. 1985 Supp. 22-3201(4), a factor to be considered bearing upon prejudice to the substantive rights of the defendant is whether the amendment came as a surprise to the defendant. State v. Johnson, 223 Kan. 185, 190, 573 P.2d 595 (1977); State v. Hill, 211 Kan. 239, 242, 505 P.2d 704 (1973). Here, the defendant knew Judge Carpenter had previously granted the State’s oral motion to amend the complaint. Evidence at the preliminary hearing supported both theories and defense counsel heard that evidence. After the trial was continued due to the prosecutor’s illness, defense counsel noted to the court no amendment had been formally filed and the court directed the State to file the amendment. Defendant cannot claim the amendment came as a surprise and the defendant has failed to establish how he was prejudiced by the amendment.
Turning to the amendment made to Count II, the aggravated robbery charge, to include the language “by force,” the defendant argues the complaint was fatally defective, thus the .court had no jurisdiction from the beginning and had no authority to amend the complaint.
In a prosecution for a felony, the indictment or information is the jurisdictional instrument upon which an accused stands trial. A conviction based upon an information which does not sufficiently charge the offense for which the accused is convicted is void. State v. Bird, 238 Kan. 160, 166, 708 P.2d 946 (1985); State v. Robinson, Lloyd & Clark, 229 Kan. 301, 304, 624 P.2d 964 (1981). It is fundamental that if the facts alleged in an information do not constitute an offense within the terms and meaning of the statute upon which it is based the information is fatally defective. State v. Howell & Taylor, 226 Kan. at 513; State v. Doyen, 224 Kan. 482, 488, 580 P.2d 1351 (1978); State v. Bishop, 215 Kan. 481, 482, 524 P.2d 712 (1974).
In State v. Howell & Taylor, 226 Kan. 511, the case upon which the district court relied, the defendant was charged and convicted of aggravated robbery. The information charged that the defendant had “unlawfully feloniously and willfully taken property, to-wit: a 1975 Dodge Van . . . from the person of Gene Swarz, while the said [defendant was] armed with a dangerous weapon, to-wit: a pistol.” 226 Kan. at 512. The information failed to allege that the taking was by force or by threat of great bodily harm. This court reversed the defendant’s conviction of aggravated robbery ruling the information was fatally defective: the additional element of taking by force or by threat of bodily harm is an essential element which must be stated in the information. 226 Kan. at 514.
In the instant case, Count II of the original complaint read as follows:
“On or about the 14th day of August, 1984, in the County of Shawnee and State of Kansas, Elmer E. Barneord, III did then and there unlawfully, feloniously and willfully take property, to-wit: $14.00 in cash from the person of Carl J. Baldwin while the said Elmer E. Barneord, III was armed with a dangerous weapon, to-wit: a black handled buck type knife and by inflicting great bodily harm upon the said Carl James Baldwin.” (Emphasis added.)
The words “by force” in the amended complaint were added as follows, “[The defendant] did then and there unlawfully, feloniously and willfully take property, to-wit: $14.00 in cash by force from the person of Carl J. Baldwin . . . .” (emphasis added). The words “and by inflicting great bodily harm” were not deleted in the amended complaint.
In determining the sufficiency of an information, it is not necessary to use the exact words of the statute if the meaning is clear. K.S.A. 1985 Supp. 22-3201(2); State v. Robinson, Lloyd & Clark, 229 Kan. at 304; State v. Washington, 226 Kan. 768, 772, 602 P.2d 1377 (1979). An information which charges an offense in the language of the statute or its equivalent is sufficient. State v. Lucas, 221 Kan. 88, 89, 557 P.2d 1296 (1976); State v. Barry, 216 Kan. 609, 619, 533 P.2d 1308 (1974). We find the language, “and by inflicting great bodily harm” is equivalent in meaning to the words “by force.” Therefore, the amendment to add the words “by force” was not necessary.
The defendant argues the involvement of the trial judge in bringing to the attention of counsel the case of State v. Howell & Taylor, 226 Kan. 511, removed the impartiality of the trial judge, severely handicapped the defense counsel in their representation of the defendant, and denied the defendant a fair trial. This argument is without merit. In State v. Foy, 227 Kan. 405, defense counsel sought, but failed, to have a district court judge disqualified who wrote a letter to the county attorney suggesting that if the State intended to rely on a felony-murder theory at trial, the State should amend the information to charge felony murder. On appeal, this court ruled the amendment was not legally required and, as the judge’s letter was only a suggestion to the county attorney, the judge need not be disqualified. Here, as previously stated, the amendment was not legally necessary and the judge’s mentioning of the case law did not handicap the defendant.
Finally, the defendant argues the third amendment made to the original complaint, deleting in the aggravated robbery charge the specific description of the knife used by the defendant, severely compromised his right to a fair trial and the effective assistance of well-prepared counsel. The defendant argues that because his defense was that he was a mere bystander and shocked observer of the stabbing of Carl Baldwin by Henry Johnson, who used a black-handled buck knife, the particular description of the knife stated in the complaint was a key to proving to the jury the defendant was neither a principal nor an aider or abettor of Johnson.
Prior to the amendment, the coroner was the only witness who had testified regarding the weapon used to kill the victim. The State showed the doctor the bone-handled knife, and he responded the injuries were consistent with that weapon. When the State was questioned by defense counsel whether the State had the other knife, the black-handled buck knife, and whether the State was going to mark it as a State’s exhibit, the State responded it was not the State’s intention to introduce evidence pertaining to Henry Johnson. In separate proceedings, Henry
Johnson was convicted of first-degree murder and aggravated robbery upon his pleas of nolo contendere. See State v. Johnson, 239 Kan. 124, 716 P.2d 192 (1986). The black-handled knife was marked as defendant’s Exhibit No. 1 and on cross-examination, the coroner testified either knife, the bone-handled or black-handled knife, would have done most of the injuries to the victim. After talking with another witness scheduled to testify, the State realized there was an error in the amended complaint and moved for an amendment. The district court allowed the State to amend the charge to read “[Defendant] was armed with a dangerous weapon, to-wit: a knife,” thereby striking the description of the knife as a black-handled buck knife.
It is a general rule of law that unnecessary allegations in an information, such as the caliber of a pistol used in a robbery, are surplusage and failure to prove the exact nature of those allegations does not constitute a fatal defect. State v. Johnson, 223 Kan. 185, 190, 573 P.2d 595 (1977); State v. LeVier, 202 Kan. 544, 548, 451 P.2d 142 (1969); State v. Lee, 197 Kan. 463, 465, 419 P.2d 927 (1966), cert. denied 386 U.S. 925, reh. denied 386 U.S. 978 (1967). The defendant relies on State v. Johnson, 223 Kan. 185, to support his argument the amendment prejudices his rights. Johnson, however, is factually distinguishable from the instant case. In Johnson, two handguns were found in the car which the defendant was driving — a .32-caliber revolver and a .22-caliber semi-automatic pistol. Ammunition for the semi-automatic pistol was recovered from the defendant’s pockets. The original information, charging the defendant with felony possession of a firearm, alleges the defendant possessed “a small caliber revolver.” At closing argument, the defendant argued the State had failed to prove the defendant was in possession of a revolver because the evidence showed the revolver was found underneath the passenger’s seat which had been occupied by another person and the ammunition found on the defendant would not fit the revolver. After closing argument, the State was allowed to amend the charge to possession of “a small caliber pistol.” On appeal, this court found the defendant’s substantial rights were prejudiced by the amendment because the defendant had been charged with the possession of a particular handgun and, as two different handguns had been recovered, the defendant’s defense hinged on the particular description alleged in the complaint.
Here, while two knives were recovered (the black-handled knife was recovered from Henry Johnson and the bone-handled knife was recovered from the defendant’s house), the defendant’s defense was that he was a shocked observer of the stabbing and robbing by Henry Johnson. That defense does not hinge on the particular description of the knife alleged in the complaint. Only one witness had testified concerning the knives prior to the amendment. Witnesses who testified after the amendment was allowed stated Henry and the defendant each possessed knives prior to the murder and that after the murder and before returning to the bar Henry had both knives. There was also testimony that Johnson was carrying the defendant’s knife in his sock because it was bloody. The defendant admitted Johnson was carrying the defendant’s knife inside his sock. We do not find the defendant’s substantial rights were prejudiced by amending the complaint from a specific description of a weapon to a general description.
Next, the defendant argues he was prejudiced by the failure of the State to exercise due diligence to discover prior to trial the existence of statements made by the defendant and Johnson to two witnesses, Marilyn Rice and Sheryl Bowers. These witnesses had not testified at the preliminary hearing. After the trial had commenced, but before the State had begun to present its case in chief, the State notified defense counsel of its intention to present testimony from these witnesses concerning statements allegedly made by the defendant and Johnson. A hearing was held outside the presence of the jury to screen the testimony of these witnesses. Their testimony at trial was allowed; Ms. Rice testified the defendant made the remark, “We just mugged somebody and what it got us is $5.” During extensive cross-examination Ms. Rice admitted she had never told the police about the defendant’s statement. The police report, of which defense counsel was provided a copy prior to trial, stated, “Reporting officer asked Rice if she had any conversations with these three men and she advised me that she had not.” Ms. Bowers testified Johnson had told her they had stabbed Carl Baldwin on the north end of the bridge. She asked him if it was worth it and the defendant replied they had “only got a few dollars.” On extensive cross-examination, Ms. Bowers admitted she had failed to include this in her statement to the police.
K.S.A. 22-3212(1) provides for pretrial discovery as follows:
“Upon request, the prosecuting attorney shall permit the defendant to inspect and copy or photograph any relevant . . . (d) memoranda of any oral confession made by the defendant and a list of the witnesses to such confession, the existence of which is known, or by the exercise of due diligence may become known to the prosecuting attorney.” [Emphasis added.]
The defendant’s whole argument is that the State failed to exercise due diligence in determining whether confessions made by the defendant to third parties existed. We find the defendant’s argument is without merit. Neither of the witnesses’ police statements indicated any oral confession by the defendant or Johnson had been heard. Therefore, the State was not alerted prior to trial to pursue the matter. Upon preparing the witnesses for trial, the State became aware of the statements. Defense counsel was notified and was able to cross-examine the witnesses at the pretrial hearing and to impeach their testimony at trial with their prior statements to the police. There is nothing in the record to indicate the State purposefully failed to disclose the evidence. Evidence not disclosed to the defendant before trial is not suppressed or withheld by the State if the defendant has personal knowledge thereof, or if the facts become available to him during trial and he is not prejudiced in defending against these new facts. State v. Cook, 225 Kan. 259, 261, 589 P.2d 616 (1979); State v. Glazer, 223 Kan. 351, 357-58, 574 P.2d 942 (1978); State v. Walker, 221 Kan. 381, 383, 559 P.2d 381 (1977). The defendant had ample opportunity to cross-examine these witnesses and, accordingly, he was not prejudiced in defending against having made the statements.
The defendant complains he was denied pretrial discovery by a blackout of information caused by the police. At trial, three witnesses, David Ralston, Sheryl Bowers, and Marilyn Rice, admitted during cross-examination they had refused to talk to defense counsel about the case. Mr. Ralston testified he was told by police on the night of the murder not to discuss the murder with anyone but the district attorney. The defendant argues the actions of the police cut off attempts to discover the State’s case through investigation.
A defendant is entitled to have access to any prospective witness although such right of access may not lead to an actual interview. A witness may refuse to be interviewed or may dictate circumstances under which he will submit to an interview. United State v. Brown, 555 F.2d 407, 425, reh. denied 559 F.2d 29 (5th Cir. 1977), cert. denied 435 U.S. 904 (1978). Although the State has no right to deny the accused and his counsel the right to interview witnesses, the witness cannot be compelled to submit to such an interview. Emmett v. State, 232 Ga. 110, 113, 205 S.E.2d 231 (1974). A witness has a right to refuse to submit to questioning by counsel prior to trial. People v. Brown, 87 Ill. App. 3d 368, 372, 409 N.E.2d 81 (1980).
As to David Ralston, who testified that on the night of the murder the police told him to talk only to the district attorney, the defendant has not shown any demonstrable prejudice. The defendant admits the prosecutor did not know the police had made such a statement to Ralston. Ralston testified fully at the preliminary hearing and any statement made by him was available to the defense pursuant to K.S.A. 22-3213. Neither Bowers nor Rice testified that the police told them to talk only to the district attorney; rather, they simply refused to talk to defense counsel. The defendant extensively cross-examined them, as previously stated, and we find the defendant has failed to show any demonstrable prejudice by not being able to interview them prior to trial.
The defendant argues he was further prejudiced by the behavior of Detective Hubert. First, Detective Hubert mentioned at trial, without being asked by the State, that the defendant, Johnson, and the victim had all served time together in Hutchinson. There was an order on file that no reference would be made directly or indirectly to the criminal record of the defendant.
In State v. Mitchell, 220 Kan. 700, 556 P.2d 874 (1976), the court was faced with a similar situation. A detective erroneously referred to the defendant’s “prior” similar offense. The remark was stricken by the trial judge and the jury admonished to disregard the remark. On appeal this court stated:
“If any error was committed by Detective Rainey’s remark, we hold the unsolicited and unresponsive remark constituted harmless error under the circumstances. (State v. Robinson, 219 Kan. 218, 547 P.2d 335; State v. Bradford, 219 Kan. 336, 548 P.2d 812; and State v. Childs, 198 Kan. 4, 11, 422 P.2d 898.) These cases dealt with an unforeseeable and unresponsive answer to a proper question. The cases recognize it is impossible for the court in advance to exclude an improper answer to a proper question. Therefore, the cases seem to turn on whether a limiting instruction was given and the degree of prejudice. In the case at bar any possible prejudice to the appellant was cured by the court’s admonition to the jury. (State v. Bradford, [219 Kan.] at 338; State v. Holsey, 204 Kan. 407, 464 P.2d 12.)
“A defendant is entitled to a fair trial but not a perfect one. The erroneous admission of evidence during a trial does not in every case require a reversal of a conviction. It is only where the erroneous admission of evidence is of such a nature as to affect the outcome of the trial and amounts to denial of substantial justice that a conviction must be reversed. [Citations omitted.]” 220 Kan. at 703-04.
Here, the trial court immediately admonished the jury to disregard Detective Hubert’s remark. In light of the vast trial transcript, the defendant’s own statements indicating his participation in the crimes, and the physical and circumstantial evidence produced at trial, the error had little, if any, likelihood of affecting the outcome of the trial.
Second, it was discovered that, as Detective Hubert was testifying, he was using field notes taken during the defendant’s interrogation to refresh his memory. He had previously been requested by the State and the defense to turn over everything he had “prepared” concerning this case. The defendant argues he was prejudiced by the failure of Detective Hubert to turn over the field notes.
In State v. Jackson, 226 Kan. 302, 597 P.2d 255 (1979), cert. denied 445 U.S. 952 (1980), a detective testified at trial from an undisclosed report concerning statements made by the defendant. All parties were surprised by the existence of the report. Defense counsel complained the State had failed to comply with the discovery order. The trial court ordered the State to provide a copy of the report to the defendant and the defendant was granted the right to recall certain witnesses for further cross-examination. This court ruled the trial court did not err in refusing to grant the defendant’s motion for a mistrial as the facts in the report were incorporated into the defendant’s final confession. 226 Kan. at 306.
Here, as soon as the existence of the field notes was discovered, a hearing was held outside the presence of the jury. At that hearing it was discovered the detective had made three reports: (1) his handwritten field notes taken during the defendant’s interrogation; (2) a handwritten police report prepared from the field notes; and (3) a typewritten report transcribed from the handwritten report. The handwritten and typewritten reports were turned over to the State and the defense counsel had received copies prior to the preliminary hearing. Defense counsel was given the opportunity to compare the notes and the two reports and found two differences: no quotation marks were used in the field notes while the handwritten and typewritten reports were punctuated as to statements attributed to the defendant; there was a realignment of the chronological sequence in the typewritten report as compared to the handwritten report. The trial court also reviewed and compared the notes and reports and, aside from the lack of quotation marks in the field notes, found no material difference. Additionally, the defendant extensively cross-examined the detective concerning the differences. The field notes contained statements made by the defendant during interrogation, such as, “we both stabbed him,” however, without the quotation marks. The handwritten report and typewritten report contained that same statement, but with quotation marks. We find the statements in the field notes were included in the handwritten and typewritten reports, copies of which defense counsel had been provided prior to the preliminary hearing, and no prejudice resulted to the defendant.
Finally, the defendant argues the aiding and abetting instruction was “incorrect and/or misleading.” The instruction given by the trial court is as follows with the italicized portion being what the trial court added to PIK Crim. 2d 54.05:
“You are instructed that a person who, either before or during its commission, intentionally aids or assists another to commit a crime with the intent to promote or assist in its commission is thereby considered criminally responsible for the crime [“committed” omitted] as if that person directly committed each act necessary to the commission of the crime regardless of the extent of the person s [“person’s” substituted for PIK’s use of “defendant’s”] participation, if any, in the actual commission of the crime. Mere presence, standing alone, is insufficient to find this association and participation.”
Here, the defendant’s defense was that he was a “mere bystander,” a “shocked observer” of the stabbing and robbing of Carl Baldwin by Henry Johnson. The defendant argues there was no defense unless the jury clearly understood it is no crime to be associated with a person who commits a crime and it is no crime to be present at the scene of the crime.
First, the defendant argues the trial court’s use of the word “person’s” rather than “defendant’s” in the instruction placed the jury’s focus on Henry Johnson’s participation in the crime rather than the defendant’s. We disagree. In breaking down the instruction, it reads as follows: “A person . . . is . . . criminally responsible . . . regardless of the extent of the person’s participation.” The use of the word “person” rather than “defendant” did not confuse the jury on whose participation was relevant. All of the instructions concerned the defendant’s criminal liability and the “person” indicated in the instruction was the defendant.
Second, the defendant argues the language “if any” could lead the jury to understand that no conduct or participation was necessary on the part of the defendant to be held liable for the acts of Johnson. We disagree on this point, also. The language “if any” is the exact wording found in the PIK instruction. Additionally, in the context of the final sentence added by the trial court, the jury could not have understood the language “if any” to mean no conduct or participation was necessary by the defendant to find the defendant criminally liable.
Finally, the defendant argues the last sentence added by the trial court is misleading because of the use of the words “association and participation.” In State v. Burton, 235 Kan. 472, 477, 681 P.2d 646 (1984), it was stated:
“It is the rule in this state that mere association with the principals who actually commit the crime or mere presence in the vicinity of the crime are themselves insufficient to establish guilt as an aider and abettor; however, when a person knowingly associates himself with the unlawful venture and participates in a way which indicates he willfully is furthering the success of the venture, such evidence of guilt is sufficient to go to the jury. [Citations omitted.]”
The final sentence goes directly to the defendant’s defense that he was a mere bystander and is a correct statement of the law. The jury instruction given is not misleading.
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The opinion of the court was delivered by
Rosen, J.:
On review of an unpublished decision of the Court of Appeals, Shaun Eugene Spagnola seeks reversal of a conviction of possession of methamphetamine, arguing that the district court admitted evidence derived from an unlawful search of his pockets following a traffic stop. We conclude that the search was not consensual under the circumstances and violated the Fourth Amendment to the United States Constitution protection against unreasonable searches.
On June 3, 2007, Officer Aaron Jones of tire Topeka Police Department observed a car drive through an intersection without stopping for a stop sign. Jones activated the lights of his patrol car and signaled the car to pull over to the side of the road. As the car pulled over, it rolled onto the curb and into a grassy area next to the curb and then back off of the curb before coming to a complete stop. Jones saw the driver reach down toward his right side as he pulled over, as if reaching into a pocket or the car console. Jones walked over to the car, and Spagnola, who was driving, presented his driver’s license.
Jones returned to his patrol car and, concerned that Spagnola might be armed, requested backup assistance. After the backup officer arrived, Jones returned to Spagnola’s car and asked him to step out of the car. As Spagnola was getting out of the car, Jones asked him whether he had anything illegal in his possession. Spag-nola replied that he was working on a computer monitor for a friend and he thought the monitor might have been stolen. Jones saw a small clip-on knife protruding from one of Spagnola’s pant pockets, and he removed the knife and then asked him whether he had anything' illegal on his person. Spagnola said, “Other than a knife, no.” Jones informed him that the knife was not illegal and inquired about drugs, knives, guns, needles, “or anything like that.”
After Spagnola said that he did not have any illegal items on his person, Jones asked, “Is it okay if I search your pockets?” Spagnola said, yes. Jones then asked Spagnola to turn around, place his hands behind his back, and interlace his fingers. Jones again asked for permission to search his pockets, and Spagnola again consented.
Spagnola was wearing cargo shorts with numerous pockets. In a zipper pocket behind the right cargo pocket Jones found two baggies of what appeared to be methamphetamine and a third baggie containing what appeared to be methamphetamine residue. Jones read Spagnola his Miranda rights and put him in handcuffs. The contents of the baggies were subsequently identified as methamphetamine.
The State filed a complaint charging Spagnola with one count of possession of methamphetamine and one count of failure to stop at a stop sign. Spagnola filed a motion to suppress evidence seized from his person and all statements that he made after the evidence was seized. The district court conducted a hearing on the motion to suppress and denied the motion. Immediately before trial, Spag-nola filed a renewed and more extensive motion to suppress, which the district court, following oral argument, also denied.
Following a bench trial, the judge found Spagnola guilty of both counts. The court sentenced Spagnola to a fine of $60 for failing to stop at a stop sign and a suspended sentence of 11 months’ imprisonment with a supervised postrelease period of 12 months for the possession of methamphetamine conviction. Spagnola timely appealed to the Court of Appeals, which held that he had failed to preserve the suppression issue for appellate review. The Court of Appeals went on to note in dicta that even if the issue had been preserved, there was “ample basis” for denying the motions to suppress, State v. Spagnola, No. 101, 521, 2010 WL 597004, at *2 (Kan. App. 2010) (unpublished opinion). This court granted review under K.S.A. 20-3018(b).
Preservation
Two witnesses testified at trial: Brad Crow, a forensic chemist for the KBI, and Aaron Jones, the police officer who searched and arrested Spagnola, Their testimony was presented without objection, but Spagnola objected to the introduction of Crow’s lab report and the introduction of the three plastic baggies “on the grounds of our motion to suppress.” The objections were overruled. The majority of the Court of Appeals panel found that Spagnola asserted his objections too late in the course of the witnesses’ testimony to allow appellate review.
The general rule is that the failure of a party to make a specific contemporaneous objection to the admission of evidence or testimony at trial precludes review of the admissibility of that evidence or testimony on appeal. K.S.A. 60-404; see State v. Gaona, 293 Kan. 930, 956, 270 P.3d 1165 (2012).
In State v. King, 288 Kan. 333, 204 P.3d 585 (2009), this court reiterated its commitment to the contemporaneous objection requirement. The court noted that the purpose of the requirement is to give the trial court the opportunity to conduct the trial without exposure to tainted evidence, thus avoiding possible reversal, and the rule is also necessary to ensure that litigation may be brought to a conclusion. King, 288 Kan. at 342.
In State v. Bogguess, 293 Kan. 743, 747, 268 P.3d 481 (2012), however, this court relaxed the objection requirement in the specific context of a bench trial on stipulated facts when the same judge presides over the hearing on the motion to suppress and conducts the trial:
“When a bench trial consists solely of stipulated facts, there is no opportunity for the defendant to malee a contemporaneous objection at trial to the admission of specific evidence. And when the bench trial is conducted by the same judge who 'presided over the hearing on the motion to suppress, there is no reason to rehash the same arguments tohen no additional evidence has been presented. The lack of a contemporaneous objection does not bar our review under these circum-stmices.” (Emphasis added.)
In Bogguess, 293 Kan. at 747, the court cited with approval State v. Parson, 226 Kan. 491, 493-94, 601 P.2d 680 (1979). In Parson, the court noted that the contemporaneous objection rule is relaxed to fit particular trial situations, including trials to the court rather than to a jury. Because the trial court and opposing counsel were informed of the appellant’s objections to the evidence in his argument on the motion for judgment of acquittal at the close of the State’s case, the court and the State had sufficient notice of the specific objections prior to the trial court’s decision. Parson, 226 Kan. at 493-94.
The Parson court in turn cited State v. Gordon, 219 Kan. 643, 652, 549 P.2d 886 (1976), where this court held:
“Ordinarily, failure to make timely, specific objection to the admission of evidence will bar consideration of the admissibility question on appellate review. [Citations omitted.] Here, the appellant’s objection was not ‘timely in the strict sense, but there is no doubt the district court was apprised of the issue before it rendered its decision .... What transpired is consistent with tire rationale underlying the contemporaneous objection rule—i.e.[,] objecting to admissibility and stating the grounds therefor permits the court to preclude improper evidence from affecting the decision. This was a trial by the court; no jurors had been swayed by the improper evidence. The court had not rendered its decision when the issue was raised, and we think under the circumstances of this case the spirit if not the letter of the contemporaneous objection rule was satisfied.”
In the present case, the trial court explicitly stated it understood that any future objections would be based on its ruling on the suppression issue and that the issue was clear. Although tire court directed Spagnola to make specific contemporaneous objections, it did not repeat that requirement when it denied Spagnola’s second suppression motion immediately before trial.
The same judge twice ruled on the suppression issue and then conducted the trial. As Judge Malone pointed out in his Court of Appeals dissenting opinion in Spagnola, 2010 WL 597004, at *2, the purpose of the contemporaneous objection rule was fulfilled without necessitating repeated interruptions of the trial. Furthermore, Spagnola interposed timely objections when the State sought to introduce physical evidence at the trial. For these reasons, we deem the suppression issue adequately preserved for appellate review.
The Constitutionality of the Search
In appeals of suppression issues, this court reviews the factual underpinnings of a district court’s decision for substantial competent evidence and the ultimate legal conclusion drawn from those facts de novo. The ultimate determination of the suppression of evidence is a legal question requiring independent appellate review. The State bears the burden to demonstrate that a challenged search or seizure was lawful. When the parties do not dispute the material facts, the suppression question is solely one of law. State v. Thomas, 291 Kan. 676, 682, 246 P.3d 678 (2011).
The trial court held that a chain of events, starting widi Jones’ traffic stop and suspicion that Spagnola was intoxicated, led to a proper stop, the detention of Spagnola, and the request for consent to search his pockets. The Court of Appeals agreed. Spagnola, 2010 WL 597004, at *2.
The Court of Appeals did not address, however, whether the search as carried out was reasonable in scope and whether Spag-nola’s consent to the search was given freely and voluntarily. We consider these factors and conclude that Jones exceeded the reasonableness that the United States Constitution requires.
There is little question that Jones had a legitimate reason to make a traffic stop: he witnessed a violation of the traffic laws. Under normal circumstances, a law enforcement officer may request license and registration, run a computer check, and issue a citation. Once tire driver has produced a valid license and proof has been confirmed that he or she is entitled to operate the vehicle, the driver must be allowed to proceed on his or her way without being subject to further delay by police for additional questioning. State v. Morlock, 289 Kan. 980, 986, 218 P.3d 801 (2009). The detaining of a driver justified solely for the purpose of issuing a ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that lawful objective. Illinois v. Caballes, 543 U.S. 405, 407, 125 S. Ct. 834, 160 L. Ed. 2d 842 (2005).
In the present case, however, Jones became aware of information that reasonably led him to prolong the stop. He saw Spagnola drive up over the curb, suggesting possible impairment. He saw Spagnola reach down in the direction of his right side or the car console, suggesting the presence of a weapon and danger to law enforcement. When asked about why he was reaching down, Spag-nola said he was looking for his cigarettes; he then changed his answer and said he was looking for his registration papers. These factors provided Jones with a legitimate concern that Spagnola might be armed or that he might be impaired. It was reasonable for Jones to wait for a backup officer before he returned to the car to write a ticket because of the objectively real threat to his safety.
Once a backup officer arrived, Jones asked Spagnola to step out of the car. A police officer may ask the driver to get out of a vehicle when the vehicle has been stopped for a traffic violation. Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977). After Spagnola stepped out of the car, he told Jones and the backup officer that stolen computer equipment might be in the car. At this point, Jones was still involved in the original traffic stop, and he had a reasonable basis to ask further questions relating both to possible impairment and possible stolen goods. He also had a legitimate concern about the possibility of weapons on Spagnola s person. A police officer may extend the length of the traffic stop for questioning beyond the initial purpose of the traffic stop if the officer has an objectively reasonable and articulable suspicion that illegal activity has occurred or if the driver voluntarily consents to further questioning. State v. Coleman, 292 Kan. 813, 816-17, 257 P.3d 320 (2011); State v. Reason, 263 Kan. 405, 410, 951 P.2d 538 (1997).
What the police officer did next was not reasonable under the Fourth Amendment to the United States Constitution. This is because the lawfulness of a defendant’s seizure is a question different from whether the ensuing search was voluntary. See, e.g., United States v. Valenzuela, 494 F.3d 886, 891 (10th Cir.), cert. denied 552 U.S. 1032 (2007).
The Fourth Amendment protects “against unreasonable searches and seizures.” Reasonableness is the touchstone of the Fourth Amendment. Ohio v. Robinette, 519 U.S. 33, 39, 117 S. Ct. 417, 136 L. Ed. 2d 347 (1996). The reasonableness of a police officer’s conduct is viewed in terms as understood by those versed in the field of law enforcement. State v. Walker, 292 Kan. 1, 8, 251 P.3d 618 (2011).
Although the initial stop was predicated on a traffic violation, tire detention continued less out of a concern about impaired driving and increasingly out of a concern about stolen property. The possible stolen property was in tire backseat of Spagnola’s car, not on his person. The only justification for the pocket search was for Jones’ safety.
Under the United States Constitution, Jones was allowed to conduct a pat-down search of Spagnola’s clothing. In the course of an investigatory detention, a police officer may conduct a pat-down search for weapons that might pose a danger to the officer. Knowles v. Iowa, 525 U.S. 113, 118-19, 119 S. Ct. 484, 142 L. Ed. 2d 492 (1998); Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); see K.S.A. 22-2402(2). In order to justify a pat-down search of a driver or a passenger during a traffic stop, the police officer must harbor reasonable suspicion that the person subjected to the search is armed and dangerous. Arizona v. Johnson, 555 U.S. 323, 327, 129 S. Ct. 781, 172 L. Ed. 2d 694 (2009). A warrantless Terry stop is permissible under the Fourth Amendment because of its limited nature and because of the officer’s narrow scope of authority. Michigan v. Summers, 452 U.S. 692, 698, 700 n.11, 101 S. Ct. 2587, 69 L. Ed. 2d 340 (1981).
There was no reason, however, for Jones to expand the pat-down search. Such a search exceeds the narrowly crafted exception that Terry created for the purpose of police protection.
During a Terry stop, a police officer may conduct a pat-down search only when nothing in the initial stages of the'encounter dispels his or her reasonable fear for his or her own or others’ safety. In such an instance, the officer may conduct a “carefully limited search of the outer clothing” to determine whether the individual has weapons that might be used against the officer. (Emphasis added.) Terry, 392 U.S. at 30.
“In the name of investigating a person who is no more than suspected of criminal activity, the police may not carry out a full search of the person or of his automobile or other effects. Nor may the police seek to verify their suspicions by means that approach the conditions of arrest.” Florida v. Royer, 460 U.S. 491, 499, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983).
The protections of the Fourth Amendment are not diluted when legitimate law enforcement interests justify a warrantless search; the search must still be limited in scope to whatever is justified by the exception to the constitutional requirement of a warrant. Royer, 460 U.S. at 500. “[T]he investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time.” (Emphasis added.) Royer, 460 U.S. at 500.
It is clear that the pocket search exceeded the scope of the constitutionally permissible action narrowly tailored to protect law enforcement. It was not the least intrusive means available to dispel the officer’s suspicion of a threat in the short period of time that Spagnola was detained.
As the courts below noted, however, Spagnola, who was standing outside of his vehicle in the authoritative presence of two armed police officers, told Jones that he had permission to search his pockets. In order for a consent to search to be valid, two conditions must be met: (1) There must be clear and positive testimony that consent was unequivocal, specific, and freely given; and (2) the consent must have been given without duress or coercion, express or implied. State v. Ransom, 289 Kan. 373, Syl. ¶ 4, 212 P.3d 203 (2009).
Whether a consent was freely given is determined by the totality of the circumstances. United States v. Drayton, 536 U.S. 194, 207, 122 S. Ct. 2105, 153 L. Ed. 2d 242 (2002); Robinette, 519 U.S. at 39.
The appropriate inquiry here is whether a reasonable person would feel free to decline the officer’s requests or otherwise terminate the encounter. See Florida v. Bostick, 501 U.S. 429, 436, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991).
“ ‘Consent’ that is the product of official intimidation or harassment is not consent at all. Citizens do not forfeit their constitutional rights when they are coerced to comply with a request that they would prefer to refuse.” Bostick, 501 U.S. at 438.
“[T]he Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means, by implied threat or covert force. For, no matter how subtly the coercion was applied, the resulting ‘consent’ would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed. . . .
“. . . In examining all the surrounding circumstances to determine if in fact the consent to search was coerced, account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents.” Schneckloth, 412 U.S. at 228-29.
This court has developed a nonexclusive list of objective factors to help determine whether a citizen’s encounter with police is voluntary or an investigatory detention. This list includes the presence of more than one police officer, the display of a weapon, physical contact by the police officer, use of a commanding tone of voice, activation of sirens or flashers, a command to halt or to approach, and an attempt to control the ability to flee. Walker, 292 Kan. at 6-7 (quoting State v. McGinnis, 290 Kan. 547, 552, 233 P.3d 246 [2010]). This court has also noted that the presence of more than one police officer may strongly suggest “a coercive atmosphere.” See Thomas, 291 Kan. at 686.
The seizure resulting from a traffic stop is more akin to an investigatory detention than an arrest. State v. Smith, 286 Kan. 402, 406, 184 P.3d 890, cert. denied 555 U.S. 1062 (2008). Once an involuntary encounter has occurred, the same factors that go into determining whether an encounter is voluntary may reasonably apply to whether the consent for a search was voluntary.
Spagnola was standing outside of his car in the presence of more than one police officer, one of whom had arrived as backup support. When Spagnola gave his second permission for the search, he was standing with his back to the officers, with his hands behind his back and his fingers interlaced. This was not a posture or an environment in which it can be said that consent was voluntarily given free from coercion.
The pocket search exceeded the scope of the “carefully limited” exception to the warrant requirement set out in Terry and could serve no purpose except to open up a hunt for evidence unrelated to the traffic stop and the detention. Spagnola’s consent was given in a highly coercive atmosphere. For these reasons, we conclude that the search violated the constitutional protection against unreasonable searches, and the evidence obtained from that search should have been suppressed.
As Judge Malone noted in his dissenting opinion in the Court of Appeals, this is not a new principle of law. This court has already-held in Smith, 286 Kan. at 419, that even though there is a consent to a search, a detention that exceeds the scope of or is unrelated to the stop violates the Fourth Amendment.
Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed and remanded with directions. | [
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The opinion of the court was delivered by
Luckert, J.:
The primary question raised in this appeal is whether the Kansas saving statute, K.S.A. 60-518, applies and saves the plaintiff s action from being barred by the applicable statute of limitation. Under tire Kansas saving statute, a plaintiff who timely files a legal action that is dismissed otherwise than on the merits after any applicable statute of limitation has run may file a second legal action within 6 months of the dismissal, of tire first action without being barred by the statute of limitation.
In this case, the plaintiff argues the saving statute preserved the plaintiff s right to bring this action because the plaintiff was a putative member in a class action that was timely filed against the defendants in another state and all requirements of K.S.A. 60-518 are met. The district court agreed and denied a motion to dismiss in which the defendants had asserted this action was barred by the statute of limitation and not saved by K.S.A. 60-518.
On appeal, the defendants raise two issues. First, they argue the district court erred in concluding the Kansas saving statute applies if the first action is filed in another state. Second, they argue the district court erred in concluding the requirements of the Kansas saving statute were satisfied under the undisputed facts of this case. Rather, the defendants contend: (a) The class action failed when a federal district court entered an order of dismissal and a subsequent appeal is of no consequence; (b) the dismissal was on the merits, meaning plaintiffs have not satisfied the requirement of K.S.A. 60-518 that the first action “fail[s] . . . otherwise than upon the merits;” (c) this case—the second action—was not filed within 6 months of the dismissal of the class action; (d) the claims and parties in this case are not substantially similar to tiróse in tire class action; and (e) the plaintiff was not the named plaintiff in the class action.
We conclude the district court did not err. First, we hold the Kansas saving statute applies even if the first action was filed in another jurisdiction because, among other reasons, the Kansas Legislature drafted the statute to apply to “any action” and did not limit the statute to actions filed in a Kansas state court. Second, we hold the district court correctly concluded the class action met all of the requirements of K.S.A. 60-518, the Kansas saving statute, and the defendants’ five subissues are without merit.
Facts and Procedural Background
On October 16, 2009, Seaboard Corporation filed this legal action in the District Court of Johnson County, Kansas, against Marsh Inc., Marsh USA, Inc. (collectively “Marsh”), and American International Group, Inc. (“AIG”) (collectively “Defendants”). Seaboard’s allegations against Marsh arose from Marsh’s conduct as Seaboard’s insurance broker, a relationship that began as early as 1990. Seaboard alleges that in the mid-1990’s Marsh began entering side agreements with multiple insurance companies that financially rewarded Marsh for steering insurance business to those companies. This practice eventually led to “bid rigging” and, according to Seaboard, inflated noncompetitive premiums for the insurance purchased by Seaboard.
Based on this conduct, Seaboard asserted eight causes of action in its petition against Defendants. These claims can be divided into three categories: (1) tort claims, including claims of faithless servant, fraud, negligent misrepresentation, tortious interference with a prospective business advantage, and civil conspiracy; (2) a stat utory claim based on the Kansas Restraint of Trade Act (KRTA), K.S.A. 50-101 et seq.; and (3) contract-related claims, including breach of contract and breach of an implied duty of good faith and fair dealing. The district court determined a 2-year statute of limitation applied to the various tort claims, a 3-year statute of limitation applied to the KRTA claims for damages, and a 5-year statute of limitation applied to the contract-related claims. See K.S.A. 60-513(a) (2-year period of limitation applies to various enumerated actions, including an action for fraud and an action for injury to the rights of another, not arising out of contract); K.S.A. 60-512(2) (3-year period of limitation applies to “[a]n action upon a liability created by a statute other than a penalty”); K.S.A. 60-511(1) (5-year period of limitation applies to “[a]n action upon any agreement, contract or promise in writing”).
In Seaboard’s petition, it did not allege the date on which these various claims accrued but stated that “Marsh, AIG and other insurance carriers, from at least 1998 through at least the end of 2004 ... engaged in systematic manipulation of bids for insurance.” Seaboard also included information in the petition about a civil complaint filed by the New York Attorney General and about criminal indictments arising from the scheme. Regarding the civil complaint, Seaboard noted the allegation was that Marsh, AIG, and others participated in the bid-rigging scheme from 2001 to 2004. According to Seaboard, the criminal indictments against executives and employees of Marsh and AIG arose from conduct during the period of November 1998 to September 2004.
Seaboard addressed the timeliness of its action by alleging that all applicable statutes of limitation had been tolled by Defendants’ fraudulent concealment of their unlawful conduct. As a result of this concealment, according to Seaboard, it “did not discover, nor could it have discovered through reasonable diligence, that Defendants and their co-conspirators were violating Kansas law.”
Defendants responded to the petition with a joint motion to dismiss. The motion raised several issues, only one of which—the bar of tíre applicable statutes of limitation—is at issue on appeal. Regarding the statutes of limitation issue, in various briefs and arguments related to the motion to dismiss, Defendants eventually suggested three time periods during which Seaboard’s causes of action accrued: (1) November 2002, the beginning of a policy period for excess casualty insurance that Seaboard purchased after AIG submitted an allegedly rigged bid; (2) October 14, 2004, the date on which the New York Attorney General filed a civil complaint alleging drat Marsh participated in bid-rigging schemes with insurance companies, including AIG; and (3) May 2005, when Seaboard chose to pursue its own claim rather than accept a settlement from Marsh that was offered as part of Marsh’s global setdement of the New York Attorney General’s civil action.
Defendants argued that based on any of these dates, Seaboard’s case was barred by the applicable statutes of limitation when this action was filed on October 16, 2009. According to Defendants, even if Seaboard’s claim of fraudulent concealment was given credit, Seaboard’s tort claims were reasonably ascertainable no later than May 2005, the date Seaboard opted out of Marsh’s global settlement. See K.S.A. 60-513(b) (tort claims covered by that statute “shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until tire fact of injury becomes reasonably ascertainable to the injured party”). Consequently, Defendants asserted all tort claims were barred before this action was filed. Defendants also pointed out to the district court that K.S.A. 60-511, which applies to the contract-related actions, does not contain similar language regarding accrual upon the fact of injury becoming reasonably ascertainable and that “[a] cause of action for breach of contract accrues when a contract is breached . . ., irrespective of any knowledge on the part of the plaintiff or of any actual injury it causes.” Pizel v. Zuspann, 247 Kan. 54, 74, 795 P.2d 42, modified on other grounds 247 Kan. 699, 803 P.2d 205 (1990). Consequently, according to Defendants, the statute of limitation for the contract-related claims expired in November 2007. Finally, without parsing the statute of limitation that governs statutory actions, including the KRTA, to determine if a discoveiy tolling exception applied, Defendants argued that, at the latest, the statute of limitation expired 3 years after May 2005. Thus, Defendants claim all of Seaboard’s claims were barred by the respective statutes of limitation when this action was filed on October 16, 2009.
In reply to Defendants’ motion to dismiss, Seaboard argued its petition was timely filed because the action had been preserved by the filing of several class actions against Marsh and AIG that were filed around the time of the New York Attorney General’s civil action. To support its arguments, Seaboard filed an affidavit that incorporated pleadings and other documents related to some of the class action proceedings. Seaboard stated it was a putative class member in these class action suits against Defendants. At least one class action, which was not filed in Kansas, was filed within 2 years of November 30, 2002, the earliest of the possible accrual dates.
According to information provided to the Johnson County District Court, as many as 40 class actions against Marsh, AIG, and others were eventually filed in or removed to federal courts. These various class actions were consolidated by the federal Judicial Panel on Multidistrict Litigation; the consolidated case, which we will refer to as the MDL action, was captioned In Re Insurance Brokerage Antitrust Litigation, No. 04-5184, MDL No. 1663. The MDL action was transferred to the United States District Court of New Jersey (New Jersey federal court). This action named Marsh, AIG, and others—a total of more than 76 defendants from 22 different insurance/corporate groups—as defendants. The MDL action included causes of action that Seaboard has labeled as breach of contract, breach of fiduciary duty, misrepresentation, deceptive trade practices, unjust enrichment, federal racketeering, and federal and state antitrust violations, including violations of the KRTA. According to Defendants, the federal class action did not include six of the causes of action brought by Seaboard in the present action, including fraud, negligent misrepresentation, breach of implied duiy of good faith and fair dealing, breach of contract, tortious interference with a prospective business advantage or relationship, and civil conspiracy.
In a series of orders filed in August and September 2007, the New Jersey federal court dismissed with prejudice the MDL plaintiffs’ federal antitrust and racketeering claims, declined to exercise supplemental jurisdiction over the state law claims, and dismissed the MDL class action in its entirety. See In re Insurance Brokerage Antitrust Litigation, Nos. 04-5184, 05-1079, 2007 WL 2892700, at *35 (D. N.J. 2007) (unpublished opinion); In re Insurance Brokerage Antitrust Litigation, Nos. 04-5184, 05-1079, 2007 WL 2533989, at *20 (D. N.J. 2007) (unpublished opinion).
The MDL plaintiffs timely appealed the orders of dismissal. In August 2010, the MDL appeal concluded. By that point, the appeal that we are now considering had already been docketed with this court. In the MDL appellate decision, the United States Court of Appeals for the Third Circuit vacated the dismissal of some, but not all, of the federal antitrust and racketeering claims, vacated the dismissal of the state law claims, and remanded the case to the New Jersey federal district court for further proceedings. In re Insurance Brokerage Antitrust Litigation, 618 F.3d 300, 383 (3d Cir. 2010).
In this present action, no party disputes that Seaboard was a putative class member of the MDL action. By the time of the Third Circuit’s decision, Marsh was no longer a party in the MDL action because it had entered into a settlement agreement with the MDL plaintiffs while the appeal was pending. The settlement agreement contained in the record is dated June 19, 2008. The United States District Court of New Jersey approved the settlement agreement and entered judgment against Marsh on February 17, 2009. AIG was still a defendant in the MDL action, however.
On October 17, 2008, Seaboard opted out of the MDL settlement with Marsh. On that same date, Seaboard entered into a tolling agreement with Marsh in which the parties agreed to toll all statutes of limitation and other time-related defenses and causes of action for 1 year. One day before the expiration of the tolling agreement with Marsh, Seaboard filed the petition in this case in Johnson County District Court. Up to the point in time when Seaboard filed this action, it remained a putative member of the class action against AIG.
Seaboard argued before the Johnson County District Court that its action against Marsh was timely because of the combined effect of tire saving statute and the tolling agreement. Although not abun dantly clear, it appears Seaboard’s position was that the saving statute alone preserved Seaboard’s action against AIG on a theory that AIG was still a party to the MDL action in which Seaboard was a putative party on October 16, 2009, when this present action was filed.
Defendants made a multifaceted response arguing that cross-jurisdictional tolling should not be recognized and that there were several reasons the saving statute requirements were not satisfied.
The Johnson County District Court rejected these arguments. The court held that Seaboard’s “participation in the commencement of a class action suspended the applicable statute of limitation under K.S.A. 60-512(2) and K.S.A. 60-513(a) until that time when plaintiff opted out of that action on October 17,2008.” The district court then granted Defendants permission to petition tire Court of Appeals to allow an interlocutory appeal. Defendants filed a joint application to take an interlocutory appeal. This court transferred the case under K.S.A. 20-3018(c) and granted Defendants’ application to bring this interlocutory appeal.
District Court Standard and Appellate Standard of Review
On appeal, there is one aspect of the district court’s order with which no party overtly disagrees—the district court’s statement of the standard to be applied to its consideration of Defendants’ motion to dismiss. Yet, the parties seem to implicitly reject the district court’s standard because they all cite to a different standard than the one cited by the district court. Although they cite a different standard, none of the parties criticizes the district court’s choice of standard, explains the reason it relies on a different standard, or discusses the justification for the standard it cites. This lack of explanation is troubling because we cannot discern a basis for applying the case all parties cite for the applicable standard—Wachter Management Co. v. Dexter & Chaney, Inc., 282 Kan. 365, 144 P.3d 747 (2006). But the district court did not cite to the correct standard either. To sort this out, we will review the standard applied by the district court, the reasons a different standard should have been applied, the standard espoused by the parties on appeal, and the standard we apply.
The district court cited two Kansas Court of Appeals decisions for the standard it applied: Stark v. Mercantile Bank, N.A., 29 Kan. App. 2d 717, 720-21, 33 P.3d 609 (2000), and Colombel v. Milan, 24 Kan. App. 2d 728, 729, 952 P.2d 941 (1998). These decisions rely on and quote this court’s decision in Ripley v. Tolbert, 260 Kan. 491, 921 P.2d 1210 (1996).
In Ripley, this court held that dismissal for failure to state a claim under K.S.A. 60-212(b)(6) is justified only when the allegations in a petition clearly demonstrate a plaintiff does not have a claim. The court noted that factual disputes cannot be resolved in ruling on a motion to dismiss; instead, tire well-pleaded facts of the petition must be read in the light most favorable to the plaintiff. Ripley, 260 Kan. at 493.
We have no quarrel with Ripley’s recitation of the standard that typically applies to consideration of a motion filed under K.S.A. 60-212(b)(6). The problem is that standard does not apply to the procedural circumstances of this case because the district court relied on facts that were not alleged in the petition or stated in other pleadings. In particular, the district court based its decision on the effect of the MDL action. The facts regarding the MDL action were presented in Seaboard’s response to the motion to dismiss. In the response, Seaboard stated facts in a summary judgment format with separately numbered paragraphs that were supported by citations to an affidavit and attachments to the affidavit. See Supreme Court Rule 141 (2011 Kan. Ct. R. Annot. 232).
Because the district court’s ruling on the motion to dismiss depended on the dates and other information gleaned from these documents rather tiran from information in the pleadings, at the time the motion in this case was submitted to the district court, K.S.A. 60-212(b) required the motion to be treated as one for summary judgment by stating:
“If, on a motion asserting the defense provided in subsection (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, tire motion must be treated as one for summary judgment and disposed of as provided in K.S.A. 60-256 and amendments thereto, and all parties shall be given reasonable opportunity to present all material made pertinent to such motion by K.S.A. 60-256 and amendments thereto.”
See K.S.A. 60-207(a) (defining allowed “pleadings” as various forms of petitions and answers).
Before the district court, Seaboard argued the Defendants’ motion to dismiss should be treated as a motion for summary judgment. Defendants did not object to the court’s consideration of the additional information; in fact, Defendants used the additional information to build arguments as to why Seaboard’s action had not been preserved or tolled. Further, Defendants did not controvert any of the separately numbered statements of fact offered by Seaboard. Then, in the joint application for permission to take an interlocutory appeal, Defendants stated that “[t]he briefs filed by the parties . . . made clear that there are no disputed issues of fact in connection with Defendants’ statute of limitations arguments.”
Yet, in their brief to this court, Defendants cite to the motion to dismiss standard discussed in Wachter Management Co., 282 Kan. 365. Seaboard, as appellee, does not reassert its position regarding summary judgment; rather, it acquiesces to Defendants’ reliance on Wachter Management Co. In doing so, the parties fail to recognize the application of K.S.A. 60-212(b)(6)’s summary judgment requirement or to recognize that Wachter Management Co. concerned the standard for a K.S.A. 60-212(b)(3) motion, which is not subject to K.S.A. 60-212(b)(6). Under K.S.A. 60-212(b)(3), it was appropriate for the Wachter Management Co. court to consider affidavits while applying a motion to dismiss standard. Wachter Management Co., 282 Kan. at 368; cf. Aeroflex Wichita, Inc. v. Filardo, 294 Kan. 258, Syl. ¶ 2,275 P.3d 869 (2012) (when a defendant’s K.S.A. 2011 Supp. 60-212[b][2] motion to dismiss for lack of personal jurisdiction is decided before trial on the basis of the pleadings, affidavits, and other written materials without an evidentiary hearing, any factual disputes must be resolved in the plaintiffs favor).
Ultimately, however, this difference in the applicable standard does not impede our ability to review dre district court’s decision. The district court treated the additional facts just as they were presented by the parties—as uncontroverted—and considered issues of law based on these uncontroverted facts regarding the interpretation and application of the Kansas saving statute.
This is consistent with the standard that applies to motions for summary judgment:
“Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with tire affidavits, show that there is no genuine issue as to any material fact and diat the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom tire ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to tire dispute must be material to the conclusive issues in the case. On appeal, we apply the same rulesf,] and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citations omitted.]” Shamberg, Johnson & Bergman, Chtd. v. Oliver, 289 Kan. 891, 900, 220 P.3d 333 (2009).
See Thomas v. Shawnee County Comm’rs, 293 Kan. 208, 227, 262 P.3d 336 (2011) (when considering summary judgment motion, district court must consider evidence in light most favorable to nonmoving party). This standard should have been applied by the district court and is the standard we apply in this appeal.
Another consideration applies to our standard of review because our analysis requires us to interpret the Kansas saving statute, K.S.A. 60-518. Interpretation of a statute is a question of law over which this court has unlimited review. Thus, this court is not bound by the district court’s interpretation of K.S.A. 60-518. See Osterhaus v. Toth, 291 Kan. 759, 789, 249 P.3d 888 (2011).
Kansas Saving Statute, K.S.A. 60-518
We begin our analysis by generally considering the provisions of the Kansas saving statute, K.S.A. 60-518, which is critical to the viability of Seaboard’s claims. The statute provides:
“If any action be commenced within due time, and the plaintiff fail in such action otherwise than upon tire merits, and the time limited for the same shall have expired, the plaintiff, or, if the plaintiff die, and the cause of action survive, his or her representatives may commence a new action within six (6) months after such failure.”
K.S.A. 60-518 is a saving statute. As this court explained in Denton v. Atchison, 76 Kan. 89, 91, 90 Pac. 764 (1907), “[t]he general periods of limitation are not changed by [the saving] provision, but it is intended to give a party who brought an action in time, which was disposed of otherwise than upon the merits after the statute of limitations had run, a [period] of grace in which to reinstate his case and obtain a determination upon the merits.” Accord Smith v. Graham, 282 Kan. 651, Syl. ¶ 5,147 P.3d 859 (2006); Rogers v. Williams, Larson, Voss, Strobel & Estes, 245 Kan. 290, 292, 777 P.2d 836 (1989). The Denton court concluded that the saving statute “is remedial, and should be liberally construed, with a view of carrying into effect the purpose of the legislature.” Denton, 76 Kan. at 92. These concepts were endorsed and applied in a case that serves as the basis for Seaboard’s arguments, Waltrip v. Sidwell Corp., 234 Kan. 1059, 678 P.2d 128 (1984).
In Waltrip, this court considered whether the Kansas saving statute applies in the circumstance where the first lawsuit was a class action and the second lawsuit was filed by a plaintiff not named in the class action but who had been putative members of the class. After the class action was dismissed by the Sedgwick County District Court because of a failure to meet the numerosiiy requirement of K.S.A. 60-223(a)(l), the second, individual action was filed in Comanche County District Court. The Comanche County District Court found the claims to be time barred under the applicable statutes of limitation and granted the defendants’ motion for summary judgment. The Waltrip plaintiffs appealed, arguing, among other claims, that the applicable statutes of limitation were tolled during the pendency of the class action. They maintained their individual action was timely filed under K.S.A. 60-518. Waltrip, 234 Kan. at 1060-61.
The Waltrip plaintiffs’ arguments were based on the United States Supreme Court’s holding in American Pipe & Construction Co. v. Utah, 414 U.S. 538, 554, 558, 94 S. Ct. 756, 38 L. Ed. 2d 713 (1974), where the Court applied the “judicial power to toll statutes of limitation in federal court” and determined that “commencement of a class action lawsuit suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.” After the American Pipe decision, the Supreme Court clarified in Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 353-54, 103 S. Ct. 2392, 76 L. Ed. 2d 628 (1983), that the American Pipe tolling rule applied to all members of a putative class, not just tiróse who actually intervened in the class action.
The Waltrip court looked to these United States Supreme Court decisions for guidance “because of the substantial similarity between K.S.A. 60-223 [class actions] and Fed. R. Civ. Proc. 23 [class actions].” Waltrip, 234 Kan. at 1061. In doing so, the Waltrip court adopted the rationale of both American Pipe and Crown, Cork (r Seal for the limited purpose of “determining the status of potential members of a class in a Kansas class action.” Waltrip, 234 Kan. at 1063. Yet, the court declined to adopt the rationale when determining “what rights were preserved by the filing of’ the class action. Waltrip, 234 Kan. at 1063. The court reasoned the similarities between the federal and state class action rules did not extend to tire law regarding statutes of limitation, where Kansas’ statutes regarding limitation periods, including the Kansas saving statute, governed rather tiran the judicial tolling powers adopted by the federal court.
The Waltrip court noted that Kansas does “not have any ‘tolling’ provisions which apply during the pendency of an action.” Waltrip, 234 Kan. at 1064. Instead, the court noted, the Kansas Legislature enacted K.S.A. 60-518, which the court clarified “is a saving statute and not a tolling statute.” Waltrip, 234 Kan. at 1064 (citing Howard v. State Highway Commission, 181 Kan. 226, 228, 311 P.2d 313 [1957]). The Waltrip court explained the distinction:
“The generally accepted result of a tolling provision is that the statute of limitations does not begin to run, or if begun, is interrupted due to certain factual circumstances. See K.S.A. 60-517. On the other hand, K.S.A. 60-518 does not stop or toll the running of the statute but preserves or saves to the plaintiff six months to file a second action if the statute of limitations has run during the pendency of the first action and that action is dismissed otherwise than on the merits. Jackson v. Oil & Gas Co., 115 Kan. 386, 222 Pac. 1114 (1924); Denton v. Atchison, 76 Kan. 89, 91, 90 Pac. 764 (1907).” Waltrip, 234 Kan. at 1064-65.
Because of the differences between Kansas law and the judicial tolling provisions applied by the Supreme Court, the Waltrip court concluded putative class members could use the Kansas saving statute, but they could not take advantage of the tolling principles of American Pipe and Crown, Cork & Seal. Waltrip, 234 Kan. at 1063. These differences did not impact many of the other aspects of the rationale of the American Pipe and Crown, Cork (r Seal decisions, however, leading the Waltrip court to borrow several principles. For example, the Waltrip court agreed that “[o]ne of the principal purposes of class action litigation is to avoid a multiplicity of actions when conditions exist that will allow all claims of numerous potential plaintiffs to be determined in a single action.” The court then concluded:
“To accomplish this purpose it is obvious that the rights of potential members of tire class must be preserved pending the determination of whether the court certifies the action as a class action under K.S.A. 60-223(c)(l). We hold that the right of all putative members of a proposed class in an action filed pursuant to K.S.A. 60-223 to file a separate action is preserved pending the determination of whether the initial case shall be maintained as a class action. If the court refuses to certify the class on the basis of a lack of numerosity (K.S.A. 60-223[a][l]),. . . then the potential members of the class are in the same position for the purposes of filing separate actions as if they had been named plaintiffs in the original action. ... As pointed out in both American Pipe and [Crown, Cork <b- Seal], the pendency of the initial action preserves the rights of potential class members under the applicable statute of limitations.” (Emphasis added.) Waltrip, 234 Kan. at 1064.
The Waltrip court also noted that interpreting the word “plaintiff’ in K.S.A. 60-518 to include putative members of a class was consistent with the purposes of statutes of limitation, which are “ Intended to put defendants on notice of adverse claims and to prevent plaintiffs from sleeping on their rights.’ ” Waltrip, 234 Kan. at 1063 (quoting Crown, Cork & Seal, 462 U.S. at 352).
Under the facts in Waltrip, the court concluded the rights of the Waltrip plaintiffs were preserved under K.S.A. 60-518 during the pendency of the class action. The court stated: “The determination that the proposed class . . . would not be certified as a class was tantamount to a dismissal otherwise than on the merits as to these plaintiffs.” Waltrip, 234 Kan. at 1065. Because the class action was filed prior to the expiration of the applicable statutes of limitation and the Waltrip plaintiffs filed their individual action within 6 months of the denial of class certification, their action was timely. Waltrip, 234 Kan. at 1065.
Seeking application of the holding in Waltrip, Seaboard notes that Defendants have not disputed Seaboard’s status as a putative class member of the MDL lawsuit. Consequently, under the rationale of Waltrip, Seaboard asserts its action against Defendants was preserved during the pendency of the MDL lawsuit.
Defendants disagree, raising the issues we previously outlined: (1) The district court erred in concluding the Kansas saving statute applies even if the first action is filed in another state and (2) the district court erred in concluding the requirements of the Kansas saving statute were satisfied under the undisputed facts of this case.
K.S.A. 60-518 Applies to Any Action
First, Defendants argue this court should reject the application of the Kansas saving statute, K.S.A. 60-518, to situations where the first action was filed in a court other than a Kansas state court. To make this argument, Defendants look to cases from other jurisdictions addressing “cross-jurisdictional tolling,” meaning tolling of one jurisdiction’s statute of limitation under American Pipe where the first action, a class action, was filed in a different jurisdiction. Defendants assert there are three valid policy reasons for rejecting cross-jurisdictional tolling: (1) cross-jurisdictional tolling under American Pipe would undermine state sovereignty, see, e.g., Wade v. Danek Medical, Inc., 182 F.3d 281, 288 (4th Cir. 1999); Portwood v. Ford Motor Co., 183 Ill. 2d 459, 466, 701 N.E.2d 1102 (1998); (2) cross-jurisdictional tolling under American Pipe would encourage forum shopping, see, e.g., Portwood, 183 Ill. 2d at 465; Ravitch v. Pricewaterhouse, 793 A.2d 939, 944 (Pa. Super. 2002); Maestas v. Sofamor Danek Group, Inc., 33 S.W.3d 805, 808 (Tenn. 2000); and (3) cross-jurisdictional tolling under American Pipe provides no benefit to states in the management of their own court systems; see, e.g., In re Urethane Antitrust Litigation, 663 F. Supp. 2d 1067, 1082-83 (D. Kan. 2009); Portwood, 183 Ill. 2d at 466-67.
Defendants also rely heavily on a local district court decision, Todd v. F. Hoffman-LaRoche, Ltd., No. 98CV4574 (Kan. D. Ct. 2004). There, the Wyandotte County District Court considered whether filing a class action in the District of Columbia Superior Court tolled die statutes of limitation in Kansas under Waltrip and American Pipe. The district court noted the decisions in Portwood, Ravitch, Maestas, and Wade and those courts’ policy reasons for rejecting cross-jurisdiction tolling. The district court opted to follow those courts’ lead and rejected cross-jurisdiction tolling. Todd, No. 98CV4575, at *7-9.
Defendants ask this court to “join the majority of jurisdictions that have considered this issue and . . . hold that K.S.A. 60-518 does not apply on a cross-jurisdictional basis.” Defendants further assert that “any decision to expand and import federal tolling principles into the Kansas saving statute should be a legislative, not judicial, one.’’
Seaboard, on the other hand, notes that several jurisdictions have adopted cross-jurisdictional tolling and, in doing so, have generally rejected the concerns expressed by those jurisdictions that have declined to apply cross-jurisdictional tolling and have relied instead on the efficiency and notice purposes the United States Supreme Court identified in American Pipe and Crown, Cork & Seal. See, e.g., Lee v. Grand Rapids Bd of Ed., 148 Mich. App. 364, 384 N.W.2d 165 (1986); Hyatt Corp. v. Occidental Fire & Cas., 801 S.W.2d 382, 389 (Mo. App. 1990); Stevens v. Novartis Pharmaceuticals Corp., 358 Mont. 474, 478, 247 P.3d 244 (2010); Staub v. Eastman Kodak Co., 320 N.J. Super. 34, 58, 726 A.2d 955 (1999); Vaccariello v. Smith & Nephew, 94 Ohio St. 3d 380, 381-83, 763 N.E.2d 160 (2002).
More fundamentally, Seaboard stresses that “[djefendants’ reliance on cross-jurisdictional tolling decisions ... is nothing more than a red herring.” In making this argument, Seaboard points out that Todd and the other decisions upon which Defendants’ rely are based on cross-jurisdictional tolling under American Pipe, but tolling was not the basis for the decision in Waltrip. In fact, as noted, the Waltrip court rejected tolling as a rationale for its holding because it had not been provided for by the Kansas Legislature.
As Seaboard suggests, the issue before us is not how we will apply the court-created American Pipe tolling principle. Rather, the question we must determine is whether K.S.A. 60-518 allows an action to be preserved by commencing a legal action in another jurisdiction. The answer to this question lies in the wording of K.S.A. 60-518 and requires us to interpret tire statute.
As always, our statutory analysis must begin with the plain language of the statute. If that language is plain and unambiguous, we do not speculate as to the legislative intent behind it and will not add words to the statute that are not readily found in it. 143rd Street Investors v. Board of Johnson County Comm’rs, 292 Kan. 690, 698, 259 P.3d 644 (2011). Policy concerns, such as those suggested by Defendants, are issues for the legislature, not this court. See Ft. Hays St. Univ. v. University Ch., Am. Assn of Univ. Profs., 290 Kan. 446, 460, 228 P.3d 403 (2010).
As we examine the language of K.S.A. 60-518, the words that are critical to this issue are among the first: “If any action be commenced within due time.” (Emphasis added.) Defendants’ position requires us to add words to this phrase, malting it read: If any action filed in a Kansas state court be commenced within due time. . . . To justify the addition of these words, Defendants note that the Waltrip court recognized that “the right of all putative members of a proposed class in an action filed pursuant to KS.A. 60-223 to file a separate action is preserved pending the determination of whether the initial case shall be maintained as a class action.” (Emphasis added.) Waltrip, 234 Kan. at 1064.
While the Waltrip holding was narrowly worded, nothing in the decision suggests the court purposefully excluded cases filed in other jurisdictions from the operation of the saving statute. Rather, the court merely limited the holding to the facts before it. Further, this court has indicated that tire Kansas saving statute is not limited to actions first filed or dismissed in Kansas, although the opposite view has been stated in at least one case. Compare Behen v. Street Railway Co., 85 Kan. 491, 118 Pac. 73 (1911) (indicating cross-jurisdictional filing not an impediment to application of saving statute); with Jackson v. Prairie Oil & Gas Co., 115 Kan. 386, 222 Pac. 1114 (1924) (suggesting first action must have been filed in Kansas). In addition, decisions of the Tenth Circuit Court of Appeals and our Court of Appeals have applied K.S.A. 60-518 even though the first action was filed in a different state. E.g., Garcia v. Inter national Elevator Co., Inc., 358 F.3d 777 (10th Cir. 2004); Prince v. Leesona Corp., Inc., 720 F.2d 1166 (10th Cir. 1983); Campbell v. Hubbard, 41 Kan. App. 2d 1, 201 P.3d 702 (2008). We will discuss these cases in some detail because they provide some guidance on the issue before us, although none of them is controlling because the language regarding the cross-jurisdictional filing is either dictum or relates to different factual circumstances.
In the earliest of these cases, Behen, the plaintiff filed an action in Wyandotte County District Court. After the defendant removed the action to federal court, the plaintiff voluntarily dismissed the action without prejudice and then filed a new action in Wyandotte County District Court. Because the statute of limitation had expired before the second action was filed, the defendant challenged the application of the saving statute to the plaintiff s second action on the ground that the Kansas saving statute “has no application to an action which has been pending or been dismissed in any court except a court of this state.” Behen, 85 Kan. at 493. The Behen court rejected this argument, stating:
“True, the provisions of the Code [of Civil Procedure] relate generally to steps taken and to be taken in the courts of this state, and the [saving] statute does not attempt to govern the procedure of the courts of other states, nor that of the federal courts; but it by no means follows, as the defendant argues, that in order to toll the statute the action must be commenced and dismissed in one of the courts of the state. It was the evident purpose of the statute to extend the time within which an action might be brought, where for any reason the plaintiff had failed in a previous action otherwise than upon merits.” Behen, 85 Kan. at 493-94.
The court’s indication that the Kansas saving statute is not limited to actions “commenced and dismissed in one of the courts of the state” suggests the statute would apply to actions first filed in another state or jurisdiction. Yet, because the Behen plaintiff s first action was filed in a Kansas state court, we cannot say that Behen controls our decision.
The next time this court addressed the question was in dictum in Jackson, 115 Kan. 386. In that case, an action originally filed in Oklahoma state court was removed to Oklahoma federal district court. The plaintiff dismissed the Oklahoma action and later filed an action in Kansas after the statute of limitation had run. To save the action, the plaintiff relied on K.S.A. 60-518. The Jackson court held the statute did not apply because tire limitation period had not expired when the plaintiff dismissed the case in Oklahoma. Hence, the court concluded, tire statute of limitation controlled. In passing, the court noted the defendant’s contention that the saving statute would not have applied anyway because the first action had been filed in Oklahoma. The court stated: “This point appears to be well taken. (Herron v. Miller, 220 Pac. 36 [Okla.]), though, in view of the conclusion already reached, it is not necessary to pass upon it.” Jackson, 115 Kan. at 391.
The Oklahoma court that decided the case cited in Jackson—Herron v. Miller, 96 Okla. 59, 60, 220 Pac. 36 (1923)—gave a two-prong justification for its holding. First, the Herron court concluded that “[t]he statutes of limitation of the various states have no extra-judicial effect, and apply only to actions commenced within the state. To express it differently, in determining whether the statute of limitation has run, tire law of the forum is the applicable law.” Herron, 96 Okla. at 60. Second, even though the Oklahoma statute, like Kansas’, applied to “any action,” the court reasoned the word “commenced” meant “commenced within this state as provided by” the Oklahoma statute defining when an action is commenced. Herron, 96 Okla. at 60.
This rationale has several weaknesses. First, as the Fourth Circuit Court of Appeals concluded in rejecting the Herron holding, “it is simply untrue that the statute of limitations of a given state never controls the commencement of actions in foreign forums.” Stare v. Pearcy, 617 F.2d 43, 45 (4th Cir. 1980). For example, under Kansas’ borrowing statute, K.S.A. 60-516, the statute of limitation of the jurisdiction where a cause of action arose determines the timeliness of an action filed in Kansas by a non-Kansas resident. Second, the result in Herron is contrary to the view that a saving statute is remedial and as such should be liberally construed. Stare, 617 F.2d at 45; LaBarge, Inc. v. Universal Circuits Inc., 751 F. Supp. 807, 810 (W.D. Ark. 1990). Third, applying Herron’s holding requires adding words to the statute so that it would read “commenced within due time under K.S.A. 60-203.” The fallacy of re strictively reading the word “commencing” as being solely dictated by the state’s statutes was explained by our Court of Appeals in Campbell, 41 Kan. App. 2d 1.
Campbell arose from an action first filed in Arizona and then filed in Kansas after the applicable statute of limitation had run. The issue was not whether the Kansas saving statute did or did not apply, because the first action had been filed in Arizona; rather the court considered whether Arizona or Kansas law determined if the first action had been “commenced” in due time as required by the saving statute. The Court of Appeals concluded that Arizona’s procedural law applied to this question, saving the plaintiffs action under K.S.A. 60-518 because Arizona law does not require service of process for an action to be “commenced.” Campbell, 41 Kan. App. 2d at 5. The court reasoned that to hold otherwise would be contraiy to the plain language of K.S.A. 60-518:
“[K.S.A. 60-518] saves actions ‘commenced within due time/ and it does not explicitly say ‘commenced within due time under KS.A. 60-203.’ (Emphasis added.) Thus, it does not explicitly incorporate the requirement that a suit be served within 90 days to be timely commenced. In our mobile society, the possibility that a suit might be filed in one state, dismissed, and refiled in another is not so remote that no one has thought of it.... Yet the legislature has not explicitly limited the application of the savings statute to cases in which service of process was obtained within 90 days.” Campbell, 41 Kan. App. 2d at 5-6.
See Chatterton v. Roberts, 44 Kan. App. 2d 22, 26-27, 235 P.3d 1251 (2010) (relying on Campbell to hold procedural rules of the forum of the first action control for determining when the first action was “commenced” where plaintiffs first lawsuit was filed in Missouri, dismissed for lack of jurisdiction, and then refiled in Kansas state court under K.S.A. 60-518).
Although the context of the Campbell court’s consideration of the issue was different from that in Herron or this case, the difference in context does not justify reading words into K.S.A. 60-518. Hence, this court’s dictum in Jackson in reliance on Herron is contrary to choice of law principles, the remedial purpose of K.S.A. 60-518, and the plain meaning of K.S.A. 60-518.
Another reason for rejecting Herron and Jackson was discussed by the Tenth Circuit Court of Appeals in Prince, 720 F.2d 1166. In that decision, the Tenth Circuit applied K.S.A. 60-518, even though the first action had not been filed in Kansas, and stated:
“Absent compelling precedent from a state, we see no reason to follow old [dictum as stated in Jackson] when virtually every state has a savings statute and no significant policy would be advanced by holding such a statute inapplicable to actions originally filed in sister states. Defendant here was put on notice of the action in a timely manner and there was no more delay involved than if the action had been filed in the forum state and dismissed there for procedural reasons. Nor would holding that a savings statute is inapplicable to actions filed in sister states further any policy of the forum state to protect its citizens from discrimination by other states.” Prince, 720 F.2d at 1169.
See Garcia v. International Elevator Co., Inc., 358 F.3d 777, 781 (10th Cir. 2004) (applying Prince and K.S.A. 60-518 where plaintiff s first action in Texas state court was dismissed for lack of personal jurisdiction and second action was filed in Kansas federal district court). Significantly, the Tenth Circuit’s rationale is consistent with that of the Waltrip court—assuring notice to the defendants and preventing a plaintiff from sleeping on his or her rights. Waltrip v. Sidwell Corp., 234 Kan. 1059, 1063, 678 P.2d 128 (1984) (quoting Crown, Cork & Seal, 462 U.S. at 352).
The Tenth Circuit’s decision in Prince and this court’s decision in Jackson were discussed by this court in Goldsmith v. Learjet, Inc., 260 Kan. 176, 917 P.2d 810 (1996). That case involved a legal action relating to a Colorado plane crash. The plaintiff, who was not a resident of Kansas, filed the action in Kansas state court against a Kansas corporation, dismissed the action, and then refiled in Kansas federal court within the 6-month saving period. The federal action, which was based on diversity jurisdiction, was time barred by Colorado’s statute of limitation. The federal district court determined the Kansas borrowing statute, K.S.A. 60-513, required application of Colorado’s statute of limitation because the action accrued in Colorado. The court reasoned this also meant that the plaintiffs could not rely on the Kansas saving statute. On appeal, the Tenth Circuit sought this court’s guidance on several certified questions, the first of which was “ whether the Kansas borrowing statute would borrow not only tire Colorado statute of limitations, but also the Colorado saving statute as well, thereby precluding the operation of the Kansas saving statute.’ ” Goldsmith, 260 Kan. at 177, 179.
In answering this question, the Goldsmith court noted the conflict between this court’s dictum in Jackson and the Tenth Circuit’s holding in Prince but did not resolve it. Ultimately, the Goldsmith court ruled the Kansas borrowing statute would not borrow the Colorado saving statute. Goldsmith, 260 Kan. at 193. It based this ruling on “this court’s inclination to give effect to the saving statute over one of limitation.” Goldsmith, 260 Kan. at 193 (citing See v. Hartley, 257 Kan. 813, 896 P.2d 1049 [1995]). Ultimately, the Goldsmith court concluded:
“The first filing being timely, Kansas jurisdiction attaches at that time, and the timeliness of the subsequent filing is to be determined under the saving provision of K.S.A. 60-518, not K.S.A. 60-516. The original fifing in the Kansas district court was timely under both Colorado and Kansas statutory limitations; thus, under K.S.A. 60-518, the second fifing in the United States District Court was also timely. Therefore, the answer to Certified Question No. 1 is ‘no.’ ” Goldsmith, 260 Kan. at 193.
This view reflects the philosophy of liberally construing the Kansas saving statute to effect its remedial goals, a philosophy that is a consistent theme in this court’s application of the Kansas saving statute.
Sorting through these cases, we conclude there are several principles that control our decision. First, we apply the plain language of the statute rather than base this decision on the policy reasons that underlie the tolling principle of American Pipe & Construction Co. v. Utah, 414 U.S. 538, 554, 558, 94 S. Ct. 756, 38 L. Ed. 2d 713 (1974), especially because we have previously declined to adopt American Pipe tolling principles. Second, grafting restrictions on the words “any action” or “commenced,” as would be required if we were to hold that the Kansas saving statute applies only to actions originally filed in a Kansas state court, is contrary to our long-established rules of statutory construction. Third, as we stated as long ago as 1911 in Behen, the evident purpose of the Kansas saving statute is to extend the time within which an action might be brought if for any reason the plaintiff had failed in a previous action. Behen, 85 Kan. at 493-94. With the exception of Jackson, the basis of which is questionable, the decisions of this court lean toward reading K.S.A. 60-518 as written, that is, so it applies to “any action” regardless of whether filed in Kansas or another jurisdiction. Finally, restricting the statute’s application to a situation where the first action was filed in a Kansas state court would be contrary to tire remedial purpose of the statute.
We hold the Kansas saving statute, K.S.A. 60-518, applies even if the first action was not filed in a Kansas state court.
Seaboard’s Action Meets the Requirements of K.S.A. 60-518
Next, Defendants contend the district court erred in ruling that K.S.A. 60-518 renders Seaboard’s claims timely. In making this argument, Defendants focus on several, but not all, of the requirements that must be satisfied in order for K.S.A. 60-518 to apply.
The first requirement imposed in K.S.A. 60-518 is that the first action must have been “commenced within due time.” Defendants do not raise an issue regarding this requirement. In other words, there has been no suggestion that the earliest of the class actions in which Seaboard was a putative class member was barred by the applicable statutes of limitation.
Second, for K.S.A. 60-518 to apply, the first action must “fail. . . otherwise than upon the merits.” Defendants argue this requirement has not been satisfied. In making this argument, Defendants contend the New Jersey federal district court dismissed the MDL action on the merits when it ruled against the class action plaintiffs on the federal antitrust and racketeering claims and declined to retain jurisdiction over the supplemental state claims. In making this argument, Defendants present two alternatives. Under one, the dismissal—regardless of whether on the merits or not—triggered the beginning of the 6-month grace period of K.S.A. 60-518, making the present case untimely because it was not filed within that 6-month period. In the second alternative, Defendants argue the dismissal was on the merits, meaning Seaboard fails to satisfy the “fails . . . other than upon the merits” condition. In response, Seaboard argues the New Jersey federal district court’s action did not trigger the grace period in K.S.A. 60-518 because the decision was timely appealed and was not a dismissal on the merits of the potential state law claims raised in the present action. To resolve this issue we must consider what, if any, circumstances triggered the grace period of K.S.A. 60-518 and whether there was a failure on the merits. But first we continue our listing of the requirements of K.S.A. 60-518 and the parties’ arguments.
The third requirement of K.S.A. 60-518 is that the limitation period must have expired before the first action was filed. This requirement is not at issue on appeal.
The fourth requirement of K.S.A. 60-518 is that the second action must have been filed within 6 months of the failure of the first action in order for K.S.A. 60-518 to apply. Defendants contend Seaboard failed to satisfy this condition. Again, they rely on the date of the New Jersey federal district court’s dismissal of the federal claims as the date that triggered the 6-month grace period of K.S.A. 60-518.
Additionally, Defendants argue that Seaboard failed to satisfy two requirements that are implied in K.S.A. 60-518. They suggest that for K.S.A. 60-518 to apply a defendant must have been put on notice. Adequate notice, Defendants argue, requires that the claims in the first and second action be substantially similar and that there be an identity of parties. According to Defendants, neither of these requirements is met. Finally, Defendants argue K.S.A. 60-518 does not apply because Seaboard was not a named plaintiff in the MDL class action.
These arguments present five issues for our consideration: (a) Whether the dismissal of the MDL action triggered the running of the grace period of K.S.A. 60-518; (b) whether the MDL action failed “otherwise than upon the merits”; (c) whether this action— the second action—was filed within 6 months of the failure of the first action; (d) whether there is a requirement that Seaboard’s petition be “substantially similar” to the petition or complaint filed in the MDL action and name all the same defendants and, if so, whether these conditions are satisfied; and (e) whether there is a requirement for Seaboard to be a named plaintiff in die first suit, a. Did the Dismissal of the MDL Action Trigger the 6-Month Grace Period?
As we noted, Defendants maintain the dismissal of the MDL action by the New Jersey federal district court in September 2007 is the event we must look to in determining when the 6-month grace period began to run—when it was triggered—and in determining if there was a failure “otherwise than upon the merits.” Conversely, Seaboard contends the dismissal was not a triggering event because of the timely appeal and the dismissal of the federal claims, which was largely reversed on appeal, was not a failure of the first action.
In arguing the MDL class dismissal by the New Jersey federal district court was the triggering event that began the grace period of K.S.A. 60-518, Defendants rely “by analogy” on numerous federal decisions addressing the effect of the denial of class certification on tolling under American Pipe. For example, in Culver v. City of Milwaukee, 277 F.3d 908, 915 (7th Cir. 2002), the court held that “decertification has the same effect on the members of the class, so far as the running of the statute of limitations is concerned, as dismissal of the class action—it is tantamount to dismissal—and so it should be treated the same under Rule 23(e).” Similarly, other courts have reasoned that plaintiffs often do not seek review of a denial of class certification until after final judgment; therefore, “tolling ends when class certification is denied in the trial court.” Stone Container Corp. v. United States, 229 F.3d 1345, 1355 (Fed. Cir. 2000). The basis for this conclusion, one court explained, is that
“reliance on tlie possibility of a reversal of the court’s certification decision is ordinarily not reasonable. We dierefore conclude that continued tolling of the statute of limitations after the district court denies class certification is unnecessary to protect any reasonable reliance by putative class members on their former class representatives.” Armstrong v. Martin Marietta Corp., 138 F.3d 1374, 1381 (11th Cir. 1998).
These cases are not persuasive because the Kansas saving statute does not use “dismissal” as the triggering point. Rather, the grace period of K.S.A. 60-518 is triggered when a plaintiff “fails” in the first action otherwise than on the merits. Thus, unlike these federal cases, it does not matter whether a plaintiff s reliance on an appeal is reasonable or whether class members usually file an appeal.
Also, we note that several federal courts have held that American Pipe tolling continues during the pendency of the class action, including While its certification status is on appeal. See Griffin v. Singletary, 17 F.3d 356, 360-61 (11th Cir. 1994) (holding that under American Pipe and Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 103 S. Ct. 2392, 76 L. Ed. 2d 628 [1983], charge-filing period for individual claims was tolled during the pendency of the class action—’’from the time the [class action] lawsuit was filed until this Court published its opinion vacating the order certifying die class”; “[i]nsofar as the individual claims are concerned, putative class members should be entitled to rely on a class action as long as it is pending”); Edwards v. Boeing Vertol Co., 717 F.2d 761, 766 (3d Cir. 1983), cert. granted, judgment vacated on other grounds by 468 U.S. 1201, 104 S. Ct. 3566, 82 L. Ed. 2d 867 (1984) (under American Pipe and Crown, Cork & Seal, individual plaintiff “entitled to rely on the pendency of [class] action so long as it was pending [including appeal]. Any other rule would needlessly proliferate separate lawsuits”); In re Initial Public Offering Securities Lit., 617 F. Supp. 2d 195, 200 n. 20 (S.D. N.Y. 2007) (holding that once class certification is granted, tolling under American Pipe continues “through all of the proceedings in the Second Circuit [and ultimately through Supreme Court review if certiorari is sought]”; stating, “it remains reasonable for [putative class members] to rely on these actions continuing as class actions and on their inclusion in those class actions unless and until this Court [or a higher court] definitively denies the pending motion for class certification”). The key under these cases is that the pendency of the class action, including while on appeal, tolls the applicable statute of limitation.
The rationale of focusing on whether a class action is pending, even on appeal, is consistent with statements in Waltrip suggesting it is the “pendency” of the initial action that preserves the rights of potential class members under the applicable statute of limitation. E.g., Waltrip, 234 Kan. at 1064. This is further consistent with the fact that a plaintiff cannot “fail” while an appeal is pending because the trial court’s ruling is subject to review and could be reversed. Additionally, preserving an action while an appeal is pending is consistent with the rationale of the decision in Waltrip, which was “to avoid a multiplicity of actions when conditions exist that will allow all claims of numerous potential plaintiffs to be determined in a single action.” Waltrip, 234 Kan. at 1064.
Defendants rely, however, on the Waltrip court’s statement that the second action must be filed within 6 months “of the trial court’s ruling” to be timely. (Emphasis added.) Waltrip, 234 Kan. at 1065. We do not read this statement as determinative of the effect of an appeal on the question of when an action “fails.” Under the facts in Waltrip, it was the court’s ruling—the dismissal for failing to satisfy numerosity requirements—that triggered the beginning of the 6-month saving period; there was no appeal from that ruling. Hence, the statement reflected the facts before the court, just as in other cases where this court has applied the facts before it and determined there can be events other than a trial court’s dismissal that trigger the beginning of the grace period of K.S.A. 60-518, including a plaintiff s voluntary dismissal of a case. E.g., See v. Hartley, 257 Kan. 813, 823, 896 P.2d 1049 (1995).
Defendants cite one other case applying K.S.A. 60-518 and holding that the determination of whether an action has failed under the statute is based on a dismissal at the trial court level, not the termination of an appeal. In that case, Augustine v. Adams, 88 F. Supp. 2d 1166 (D. Kan. 2000), a federal district court granted summary judgment to some but not all defendants. The plaintiff then voluntarily dismissed the action against the remaining defendant and appealed the summary judgment order to the Tenth Circuit. The Tenth Circuit dismissed the appeal after determining the summary judgment order was not ripe for review because a dismissal of some but not all defendants is not a final, appealable order. Augustine, 88 F. Supp. 2d at 1169. The plaintiff then filed a new action in federal court, asserting the same claims against the same parties.
The defendants again sought summary judgment, arguing in part that the action was barred under the applicable Kansas statute of limitation. The federal district court agreed, rejecting the plaintiff s argument that “ ‘[t]he continued pendency of [her] appeal to the Tenth Circuit tolled the statute of limitations’ so that the refiling of her complaint was not in violation of the statute of limitations.” Augustine, 88 F. Supp. 2d at 1172. The court held “it is the action commenced at the trial court level which must fail ‘otherwise than upon the merits’ thus, dismissal of an appeal for lack of jurisdiction did not trigger the beginning of the 6-month saving period. Augustine, 88 F. Supp. 2d at 1173.
Augustine is distinguishable from this case, which does not present an issue of whether an appellate court has jurisdiction. Further, in this case both the district court’s and appellate court’s rulings in the MDL action are merit based. Hence, in contrast to Augustine, there is not a question of whether a ruling otherwise than on the merits in an appellate court trumps the district court’s ruling on the merits.
Moreover, to the extent Augustine stands for the proposition that it is always the district court’s ruling that triggers the beginning of the 6-month period in K.S.A. 60-518, that holding is contrary to decisions of this court. For example, in New v. Smith, 86 Kan. 1, 5-6, 119 Pac. 380 (1911), a case where the court applied a prior, but very similar, version of the saving statute, this court held that the plaintiff had “one year from the filing of the decision in the supreme court [that was ‘otherwise than upon the merits’] within which to commence a new action.” (Emphasis added.) Defendants distinguish New on the basis that the plaintiff in that case had no real option but to appeal the district court’s order, which would otherwise be binding. A putative class member of the MDL action, however, could file an action on state law claims without appealing the New Jersey federal district court’s decision, they argue.
Again, this ignores the plain meaning of K.S.A. 60-518; having options does not mean a plaintiff s action has failed as K.S.A. 60-518 requires. Additionally, Defendants’ position ignores the purpose of applying the saving statute to putative class members— avoiding multiple actions—and the repeated statements of this court that it is the pendency of the initial action that preserves the rights of potential class members under K.S.A. 60-518. E.g., Waltrip, 234 Kan. at 1064; see Roy v. Young, 278 Kan. 244, 249, 93 P.3d 712 (2004); see also 5 Gard and Casad, Kansas Law and Practice, Kansas C. Civ. Proc. Annot. § 60-518, p. 53 (4th ed. 2003) (K.S.A. 60-518 saves claims “ ‘during the pendency of the action and for six months after the action has ceased to pend for any reason other than a determination on the merits.’ ”); see also See, 257 Kan. at 822 (saving statute “ ‘is intended to give a party who within the proper time brought an action which was disposed of otherwise than upon the merits after the statute of limitations had run [six months] of grace in which to reinstate his case and obtain a determination upon the merits’ ”).
While these cases do not expressly address the present issue, the message that can be gleaned from them is that it is the pendency of the first action that preserves a plaintiff s claims. This interpretation comports with the language of the saving statute. K.S.A. GO-SIS provides that plaintiffs have 6 months from the date they “fail” in their first action “otherwise than upon the merits” to commence a new action. The statute says nothing about “dismissal,” the key word in the federal cases cited by Defendants, and does not expressly provide that it is failure in the district court that triggers the 6-month grace period.
b. Otherwise Than on the Merits
Defendants also cite to a few federal district courts that have concluded that dismissal of a class action on the merits ends tolling under American Pipe. See, e.g., Lloyd v. General Motors Corp., 575 F. Supp. 2d 714, 722 (D. Md. 2008). Application of these cases, according to Defendants, establishes that the New Jersey federal district court’s dismissal of the federal racketeering and antitrust claims on the merits and its refusal to exercise jurisdiction over the state claims means the MDL action did not “fail... otherwise than upon the merits.” See K.S.A. 60-518. Such dismissals trigger the beginning of the 6-month grace period provided in the Kansas saving statute, according to Defendants.
We disagree. For many of the same reasons we have discussed, the pendency of the appeal in the MDL action means there was not a failure otherwise than on the merits when the New Jersey federal district court dismissed the MDL class action plaintiffs’ federal claims and refused to retain supplemental jurisdiction over the state claims because a timely appeal was taken. Ultimately, it was established the New Jersey federal court’s ruling was errone ous, at least in large part, and the appellate court reinstated the state claims that overlap with the claims in the present case. In summary, while we do not address a situation such as presented in Augustine, 88 F. Supp. 2d 1166, where the appellate court lacked jurisdiction over the appeal, we conclude that generally a district court’s ruling cannot be deemed to be a failure on the merits while an appeal is pending.
We further conclude the New Jersey federal district court’s dismissal of the MDL action does not mean Seaboard “fail[ed] in such action otherwise than upon the merits” at that point. See K.S.A. 60-518. Rather, the action continued—in other words, was pending—after a timely appeal was filed; the class action plaintiffs, including putative members of the class,- had not failed at .the point of dismissal because diat judgment was not final. The MDL action illustrates this point because the MDL action was ultimately reinstated on many, although not all, claims. Even if the plaintiffs had not succeeded on appeal, there would not have been a completed failure of the action until the appeal ended.
Here, the MDL appeal preserved Seaboard’s action and the action against Marsh ended in a manner otherwise than on the merits. While tire MDL appeal was pending, Marsh entered into a global settlement with the class action plaintiffs, and Seaboard opted out of the settlement on October 17, 2008.
On appeal, Defendants do not take issue with the proposition that a decision to opt out of a class action can be a dismissal otherwise than on the merits that would trigger the beginning of the 6-month grace period of K.S.A. 60-518. Rather, they argue that circumstance does not apply in this case because the New Jersey federal district court’s dismissal of the MDL class action triggered the beginning of the 6-month period and that a decision to opt out of the class cannot start a new 6-month period. Because we have held the dismissal did not trigger the 6-month period and the appeal continued to preserve the rights of the class action plaintiffs, we find no merit to Defendants’ argument.
Because Defendants have waived any other arguments regarding the “otherwise than on the merits” requirement, we conclude the 6-month grace period of K.S.A. 60-518 began running as to Sea board’s claims against Marsh when Seaboard elected to opt out of the global settlement and K.S.A. 60-518 can be utilized because this opt out was a failure “otherwise than upon the merits.” See State v. Raskie, 293 Kan. 906, Syl. ¶ 5, 269 P.3d 1268 (2012) (issue not adequately briefed is deemed abandoned). Similarly, there was no failure of the claims against AIG because, as we will discuss in more detail, Seaboard effectively opted out of the class action on the same day it filed the present action against AIG.
c. Within 6 Months of Such Failure
The next question we must resolve in determining whether Seaboard’s action meets the requirements of K.S.A. 60-518 is whether this present action was filed within 6 montírs of the failure of die class action. Seaboard exercised its right to opt out of Marsh’s global settlement on October 17, 2008. It was almost a year later before Seaboard filed diis second action. Consequently, the timeliness of Seaboard’s action depends on the combination of the opt out and the tolling agreement with Marsh in which Seaboard and Marsh agreed to toll all statutes of limitation and other time-related defenses and causes of action for 1 year from the date of the agreement. Seaboard filed its present action in district court on October 16, 2009, 1 day before the tolling agreement was set to expire. Defendants do not challenge the propriety of the tolling agreement or Seaboard’s combined use of the saving statute and the tolling agreement to make its action timely. Hence, we conclude the action against Marsh was timely filed.
A different analysis is required for AIG because AIG was not a party to the tolling agreement between Seaboard and Marsh. Likewise, AIG was not a party to the settlement agreement. Nevertheless, beyond one parenthetical in their brief, “(and it never entered into such an agreement with AIG),” and one statement in their reply brief, “Putting aside the fact that Seaboard does not explain how its opt-out from the Marsh settlement—as opposed to the September 2007 dismissal—could have constituted the relevant failure of the action as against non-settling AIG,” Defendants have solely relied on the New Jersey federal district court’s dismissal of the MDL action as being the triggering event for the 6-month grace period for both Marsh and AIG. They have presented no alternative argument in the event we decided, as we have, that the dismissal was not the triggering event. Consequently, AIG has abandoned any argument drat Seaboard’s filing of this action, while the MDL appeal involving AIG was still pending, was not a voluntary opting out of the class action against AIG and the equivalent of a voluntary dismissal. See Raskie, 293 Kan. 906, Syl. ¶ 5 (issue not adequately briefed is deemed abandoned). Seaboard’s action effectively marked this opt out, meaning this action was filed on the same day the saving period began to run.
Hence, Defendants’ argument that Seaboard’s action was not filed within the 6-month saving period of K.S.A. 60-518 is without merit.
d. Substantially Similar
Next, Defendants argue Seaboard’s action is not “substantially similar” to the complaint in the MDL lawsuit, as required for application of K.S.A. 60-518. Defendants maintain that counts III to VIII in Seaboard’s petition—fraud, negligent misrepresentation, breach of implied duty of good faith and fair dealing, breach of contract, tortious interference with a prospective business advantage or relationship, and civil conspiracy—were not asserted as causes of action in the MDL lawsuit. As such, Defendants maintain that K.S.A. 60-518 has “no application whatsoever” to Seaboard’s petition and, thus, “none of [Seaboard’s] claims are saved.” Additionally, Defendants argue that because the defendants in the MDL lawsuit and the present action are not “identical,” meaning because Seaboard has not named all 76 defendants that were named in the MDL lawsuit, the saving statute does not apply.
Seaboard counters that Kansas law does not require that the original suit and second suit be “identical” for application of the saving statute. Rather, Seaboard asserts that the district court correctly determined that because Seaboard’s action and the MDL lawsuit were “ ‘based upon the same factual occurrences and similar allegations’ ” Seaboard’s action is substantially similar to the MDL complaint.
Defendants rely on Johnson v. Railway Express Agency, 421 U.S. 454, 457, 95 S. Ct. 1716, 44 L. Ed. 2d 295 (1975), where the petitioner argued that the running of the statute of limitation for his 42 U.S.C. § 1981 claim was suspended during the pendency of his timely filed administrative complaint with the Equal Employment Opportunity Commission under Title VII because both actions were based on the same facts. The Supreme Court detailed the “independence of the avenues of relief respectively available under Title VII and [§ 1981]” and concluded that the petitioner, in effect, slept on his rights in failing to file a timely independent action under § 1981. Johnson, 421 U.S. at 460, 465-66. The Court rejected the petitioner’s attempted reliance on American Ripe, in part because “the tolling effect given to the timely prior filings in American Pipe . . . depended heavily on the fact that those filings involved exactly the same cause of action subsequently asserted.” Johnson, 421 U.S. at 467. In a footnote rejecting die petitioner’s additional argument that the Title VII claim put the defendant on notice of the § 1981 claim, the Court stated: “Only where there is complete identity of the causes of action will the protections suggested by petitioner necessarily exist and will the courts have an opportunity to assess the influence of the policy of repose inherent in a limitation period.” Johnson, 421 U.S. at 467 n. 14.
As Defendants point out, in a concurring opinion in Crown, Cork & Seal, Justice Powell cautioned that the tolling rule announced in American Pipe & Construction Co. v. Utah, 414 U.S. 538, 554, 558, 94 S. Ct. 756, 38 L. Ed. 2d 713 (1974), should not be read to allow a plaintiff to “raise different or peripheral claims following denial of class status.” Crown, Cork & Seal, 462 U.S. at 354 (Powell, J., concurring). Justice Powell wrote:
“It is important to make certain, however, that American Pipe is not abused by the assertion of claims that differ from those raised in the original class suit. . . . [W]hen a plaintiff invokes American Pipe in support of a separate lawsuit, the district court should take care to ensure that the suit raises claims that ‘concern the same evidence, memories, and witnesses as the subject matter of the original class suit,’ so that ‘the defendant will not be prejudiced.’ [Citation omitted.] Claims as to which the defendant was not fairly placed on notice by the class suit are not protected under American Pipe and are barred by the statute of limitations.” Crown, Cork & Seal, 462 U.S. at 355 (Powell, J., concurring).
As with all other issues presented in this case, there is a split of authority among courts addressing what this passage was intended to mean and regarding how similar the two actions must be in order for American Pipe tolling to apply. Some courts have required exact identity of claims between the two causes of actions. In most of these cases, the courts’ reasoning is based on the state law claims raised in the second action not having been asserted in the original federal class action or vice versa. See, e.g., In re Copper Antitrust Litigation, 436 F.3d 782, 794 (7th Cir. 2006) (Cudahy, J, concurring) (change of forum not dispositive in rejection of cross-jurisdictional tolling; problem is state and federal antirust laws create different legal claims); Card v. Duker, No. 03-35655, 2005 WL 319400, at *2 (9th Cir. 2005) (unpublished opinion) (.American Pipe requires identical causes of action; moreover, class action asserted state law claim whereas individual action asserted federal racketeering claim); In re Urethane Antitrust Litigation, 663 F. Supp. 2d 1067, 1082-83 (D. Kan. 2009) (noting no efficiency in tolling state statutes of limitation because plaintiffs would need to file individual suits to assert their state law claims regardless of whether the statutes of limitation were tolled). Conversely, other courts have found identity of claims in this class action tolling context to be illogical. Tosti v. City of Los Angeles, 754 F.2d 1485, 1489 (9th Cir. 1985) (finding no persuasive authority for identity of claims rule; sufficient that both suits “involved the same allegations”); Stevens v. Novartis Pharmaceuticals Corp., 358 Mont. 474, 485, 247 P.3d 244 (2010) (stating modem pleading mies only entitle defendants to notice of the nature of the claim; defendants’ alleged failure to warn, and the injury caused as a result, served as the underpinning for both the class action and plaintiff s individual claim; both actions substantially similar).
Again, the key to this issue is what our court has required under K.S.A. 60-518. Unfortunately, there is sparse guidance in Kansas on this issue. In Thompson v. Railway Co., 102 Kan. 668, 669, 171 Pac. 629 (1918), the court declined to extend application of the Kansas saving statute to the plaintiff because his two cases “were not brought upon the same cause of action.” The first action was founded on a contract, while the later one was based in tort. This, of course, suggests a requirement that the claims be identical. Yet, in a later case, the court said that “[t]he new action must, of course, be substantially the same as the action dismissed.” (Emphasis added.) Meyer v. Wilson, 131 Kan. 717, 720, 239 Pac. 738 (1930). Because both actions in Meyer related to the same transaction, charged the same frauds, and both asked for the recovery of damages, the court concluded they were substantially similar. Meyer, 131 Kan. at 720. This court has provided little additional guidance on this issue since these early cases. Most subsequent cases have dealt with a difference in the parties involved in the new lawsuits.
The Court of Appeals addressed the issue, however, in Taylor v. International Union of Electronic Workers, 25 Kan. App. 2d 671, 677, 968 P.2d 685 (1998). In Taylor, the plaintiff attempted to save his time-barred tort action under K.S.A. 60-518 by relying on an action he had previously filed in a different Kansas county and voluntarily dismissed. In deciding that the claims need not be identical for K.S.A. 60-518 to apply, the Court of Appeals looked to this court’s decision in a case involving a change of parties, Rogers v. Williams, Larson, Voss, Strobel & Estes, 245 Kan. 290, 294, 777 P.2d 836 (1989). Based on its reading of Rogers, the Court of Appeals concluded that “the position taken by the Supreme Court is one which requires the actions filed to be ‘substantially similar.’ ” Taylor, 25 Kan. App. 2d at 676. The Taylor court also noted that a number of other jurisdictions have adopted this substantially similar doctrine. Taylor, 25 Kan. App. 2d at 676 (listing jurisdictions).
Despite the lack of clear guidance in our previous caselaw, we are persuaded that tire substantially similar test should be applied. There are several considerations that lead us to this conclusion.
First, applying the substantially similar doctrine rather than requiring identical claims is consistent with a liberal construction of K.S.A. 60-518 and furthers its remedial purpose. Under a liberal construction, the key to claim preservation is that both actions arise from the same factual occurrences and that the first action adequately puts a defendant on notice of a plaintiff s purpose. See, e.g., Griffen v. Big Spring Indep. School Dist., 706 F.2d 645, 652-53 (5th Cir. 1983) (plaintiff s federal cause of action saved because it attempted “to vindicate the same rights” as the original action); Kulinski v. Medtronic Bio-Medicus, Inc., 577 N.W.2d 499, 503-04 (Minn. 1998) (finding in interpreting the language—“a new action”—in Minnesota’s saving statute, “a key to determining whether a subsequent action is saved is whether ‘by invoking judicial aid [in the original action], a litigant [has] give[n] timely notice to his adversary of a present purpose to maintain his rights before the courts’ ”); State v. Litzinger, 417 S.W.2d 126, 129 (Mo. App. 1967) (“the rule is that only the causes of action in the two petitions must be the same, not the manner in which they are pleaded”); Stone v. N. Star Steel Co., 152 Ohio App. 3d 29, 35, 786 N.E.2d 508 (2003) (“When determining whether the new complaint and tire original complaint are substantially the same, a court must determine whether the allegations in the first action gave the defendant fair notice of the type of claims asserted in the second action.”); Chandler v. Denton, 741 P.2d 855, 863-64 (Okla. 1987) (saving statute preserved plaintiff s second action, which was based on new legal theories, because defendant was put on notice in the first action of the underlying facts from which all claims arose); Foster v. St. Joseph Hosp., 158 S.W.3d 418, 422 (Tenn. App. 2004) (notice to defendant is the true test; it is not necessaiy that the two complaints be identical, only that the allegations arise out of the same transaction or occurrence).
Second, a focus on whether there was adequate and fair notice is consistent with this court’s statement in Waltrip v. Sidwell Corp., 234 Kan. 1059, 1063, 678 P.2d 128 (1984), that the fifing of a class action placed the defendants on notice of potential claims and potential plaintiffs. The Waltrip court noted Justice Powell’s caution in Croton, Cork & Seal that both actions should raise “claims that ‘concern the same evidence, memories, and witnesses as the subject matter of the original class suit.’ ” Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 355, 103 S. Ct. 2392, 76 L. Ed. 2d 628 (1983) (Powell, J., concurring). Having sufficient similarity to put a defendant on notice and to be related to the same evidence and witnesses does not require an identity of claims.
Finally, imposing a substantial similarity test comports with notice pleading and places a defendant in essentially the same position a defendant would have been in if the plaintiff had filed the original action and then filed an amended petition. Cf. K.S.A. 60-215(c) (amended claims relate back if the new claims arise “out of tire conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading”).
Consequently, we hold that in order for K.S.A. 60-518 to apply, the second lawsuit need not be identical to the first action as long as the two actions concern the same conduct, transaction, or occurrence and the first action provides adequate notice to the defendant.
Next, we must determine if these requirements are met in this case. Seaboard raised eight causes of action in its petition filed with the Johnson County District Court: (1) violation of the KRTA, K.S.A. 50-101 et seq.; (2) faithless servant; (3) fraud based on Marsh’s false representation that it was working for Seaboard and in Seaboard’s best interests; (4) negligent misrepresentation based on Marsh’s false representation; (5) breach of implied duty of good faith and fair dealing by engaging in conduct that destroyed Seaboard’s rights to receive the benefits expected under the contract; (6) breach of contract; (7) tortious interference with a prospective business advantage or relationship that prevented Seaboard from receiving a legitimate insurance bid; and (8) civil conspiracy. The MDL lawsuit asserted six causes of action: (1) federal racketeering violations, pursuant to 18 U.S.C. § 1961 et seq. (2006); (2) violations of Section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1; (3) violation of the antitrust laws of 48 states, including Kansas and the District of Columbia; (4) breaches of statutory and common-law-based fiduciary duties; (5) aiding and abetting breach of fiduciaiy duty; and (6) unjust enrichment. In re Insurance Brokerage Antitrust Litigation, Nos. 04-5184, 05-1079, 2007 WL 2892700, at *3 (D. N.J. 2007) (unpublished opinion).
Seaboard argues: “Each and every cause of action pled by Plaintiff in this litigation was specifically alleged in the MDL Complaint, including as predicate acts for the [racketeering] cause of action pled in the MDL Complaint.” With regard to its fraud claim, Seaboard states that the MDL complaint listed facts allegedly constituting actionable claims of mail and wire fraud. Seaboard also points to similarities in the allegations regarding misrepresenta tions. As to the contract claims, Seaboard points to allegations in the MDL complaint that Marsh breached its contracts with the class action plaintiffs and breached the implied duty of good faith and fair dealing. Finally, Seaboard argues that its civil conspiracy claim, which was based on an allegation of Defendants jointly acting against Seaboard with the intent of preventing Seaboard from receiving legitimate insurance bids, is substantially similar to the KRTA claim and the Sherman Antitrust Act claims in the MDL complaint, which alleged that Defendants shielded their insurer partners from normal bid competition.
The district court concluded that because Seaboard’s action was based upon the same factual occurrences and similar allegations as the MDL lawsuit, claim preservation under K.S.A. 60-518 was appropriate. We agree. There is little question that both actions were based on the same underlying allegations of a bid-rigging conspiracy between Marsh and various insurance companies, including AIG. Moreover, while the claims raised in the complaints are not identical, Seaboard has pointed to a substantial similarity between the basic allegations raised in the MDL lawsuit and those raised by Seaboard in the present case to have put the Defendants on notice of the potential claims.
Finally, Defendants argue there is not substantial similarity between the actions because every defendant named in the MDL lawsuit was not named in the present action. To support their argument, Defendants cite Taylor, 25 Kan. App. 2d at 677. In that case, the Court of Appeals concluded that the parties in the second action were not substantially similar to the parties in the original action because the plaintiff was not suing in the same capacity— in the first action he sought to recover damages only for himself but in the second action he sought to recover damages for the benefit of his wife—and because in the original action there were five defendants and only one of those defendants was listed in the second action.
We disagree with the conclusion that all defendants in the first action have to be named in the second action. The critical point is that both Marsh and AIG were named in the MDL action and had notice of the potential claims against them. To require a plaintiff asserting an individual action to name every defendant named in a class action, many of whom a plaintiff may have no complaint against, amounts to “court-ordered malicious prosecution.” Westerbeke & McAllister, Survey of Kansas Tort Law: Part I, 49 U. Kan. L. Rev. 1037, 1136 (June 2001). Moreover, such a requirement would contravene the purpose of tire application of K.S.A. 60-518 in the class action context. We conclude a plaintiff who files an individual action after a failure of a class action otherwise than on the merits can rely on K.S.A. 60-518 even if the plaintiff does not sue every defendant in the class action.
In this case, the second action is sufficiently similar to the MDL class action to have provided adequate notice to Defendants.
e. Plaintiff in First Action
Finally, seemingly spurred by Seaboard’s request that this court apply the plain language of K.S.A. 60-518, Defendants argue in their reply brief that K.S.A. 60-518 requires the plaintiff in both the original and the saved action to be the same and that Seaboard was not the plaintiff that commenced the original action.
This argument fails. First, Defendants raise this argument for the first time in their reply brief. “ ‘A new legal theoiy may not be asserted for the first time on appeal or raised in a reply brief. [Citation omitted.]’ ” Mynatt v. Collis, 274 Kan. 850, 868-69, 57 P.3d 513 (2002) (quoting Wood v. Groh, 269 Kan. 420, 434, 7 P.3d 1163 [2000]). Moreover, even in raising this issue, Defendants do not dispute that Seaboard was a putative plaintiff of the MDL action. This court has already determined that a putative class plaintiff qualifies as a plaintiff under K.S.A. 60-518. Waltrip, 234 Kan. at 1064.
Conclusion
In both American Pipe and Crown, Cork & Seal, the United States Supreme Court emphasized the necessity of balancing the competing policies of encouraging economy of litigation through class actions guaranteeing fairness to defendants through notice of claims and barring claims of plaintiffs who have slept on their rights. This court echoed those concerns in Waltrip. These policy considerations and the plain language of K.S.A. 60-518 support the district court’s conclusion in this case. Seaboard has satisfied the requirements of the Kansas saving statute, and its action against Defendants was timely filed.
Affirmed.
Nuss, C.J., and Moritz, J., not participating.
Roger L. Gossard and Frank J. Yeoman, Jr., District Judges, assigned. | [
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The opinion of the court was delivered by
Johnson, J.:
Daniel A. Benson seeks review of the Court of Appeals’ decision affirming his conviction and sentence for felony DUI. Benson’s primary argument is that the district court violated his right of confrontation under the Sixth Amendment to the United States Constitution by admitting into evidence the certificate of calibration for the Intoxilyzer 5000 machine used to determine the level of alcohol in Benson’s breath. Benson contends that the Confrontation Clause required that the person who completed the certificate had to testify in person at Benson’s trial. Because we conclude that the certificate of calibration is not testimonial in nature, its admission did not offend the holding in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). In a second issue, Benson challenges the use of his criminal history to enhance his sentence, albeit he concedes that his argument is controlled by State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002). Accordingly, the Court of Appeals correctly affirmed Benson’s conviction and sentence.
Facts and Procedural History
Benson was arrested for felony DUI after failing sobriety tests administered by the Shawnee County Sheriff s Department during a routine DUI check lane on July 18, 2004. After his arrest, Benson took an Intoxilyzer 5000 test that registered his blood alcohol concentration at .087—-above the legal limit of .08. Because it was his third offense, Benson was charged with felony DUI.
Before trial, Benson attempted to have the breath-test results excluded, in part by claiming error in tire admission of the certificate of calibration indicating that the Intoxilyzer 5000 was in proper working order. Benson contended that in order to comply with the Confrontation Clause requirements of Crawford, the employee who conducted the calibration should have testified in person. In denying that motion, the district court examined the nature of the document and concluded that the certificate of calibration was not testimonial and therefore not subject to Crawford’s Confrontation Clause requirements.
The Court of Appeals panel affirmed the district court’s findings based on its understanding of testimonial evidence as explained in Crawford and in reliance on the numerous other jurisdictions reaching similar conclusions. State v. Benson, No. 97,905, unpublished opinion filed September 26, 2008, slip op. at 4-5. Specifically, the panel noted that the calibration certificate was “prepared as a routine administrative matter required by the State and [wa]s not prepared in anticipation of any particular criminal proceeding.” Additionally, in reliance on Ivory, the panel quickly dispensed with Benson’s claim that his increased sentence was constitutionally infirm.
Benson raises the same two arguments in his petition for review. After holding the petition pending a decision in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009), we granted review.
Confrontation Clause
As noted, Benson’s first issue requires us to determine whether the certificate of calibration for the breathalyzer machine is testimonial in nature.
Standard of Review
“We employ an unlimited standard of review when addressing issues pertaining to the Confrontation Clause of the Sixth Amendment to the United States Constitution.” State v. Leshay, 289 Kan. 546, 547, 213 P.3d 1071 (2009) (citing State v. Noah, 284 Kan. 608, 612, 162 P.3d 799 [2007]); State v. Ransom, 288 Kan. 697, 708-09, 207 P.3d 208 (2009) (whether confrontation rights have been violated is a question of law subject to unlimited review).
Analysis
In Crawford, our Supreme Court held that certain out-of-court statements are inadmissible at trial unless the State proves that the person making the statement is unavailable and that the defendant had a prior opportunity to cross-examine the declarant. Crawford, 541 U.S. at 68. The Crawford Court explained that the admission of a hearsay statement implicates a defendant’s rights under the Sixth Amendment’s Confrontation Clause only when the statement is deemed to be testimonial. 541 U.S. at 68; see also State v. Miller, 284 Kan. 682, 711-12, 163 P.3d 267 (2007) (citing State v. Davis, 283 Kan. 569, 575, 158 P.3d 317 [modified opinion filed March 23, 2007]). Accordingly, Benson’s right of confrontation argument hinges upon whether the certificate of calibration constitutes a testimonial statement.
Crawford stopped short of specifically defining testimonial statements, but the opinion did identify the type of statements that could qualify:
“Various formulations of this core class of‘testimonial’ statements erist: ‘ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,’. . . ‘extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,’ [citation omitted]; ‘statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,’ [citation omitted].” 541 U.S. at 51-52.
Crawford’s failure to flesh out the definition of testimonial led to our attempt at synthesizing a list of factors from various post-Crawford cases to aid in the determination:
“(1) Would an objective witness reasonably believe such a statement would later be available for use in the prosecution of a crime?
“(2) Was the statement made to a law enforcement officer or to another government official?
“(3) Was proof of facts potentially relevant to a later prosecution of a crime the primaiy purpose of the interview when viewed from an objective totality of the circumstances, including circumstances of whether
(a) the declarant was speaking about events as they were actually happening, instead of describing past events;
(b) the statement was made while the declarant was in immediate danger, i.e., during an ongoing emergency;
(c) the statement was made in order to resolve an emergency or simply to learn what had happened in the past; and
(d) the interview was part of a governmental investigation?; and
“(4) Was the level of formality of the statement sufficient to malee it inherently testimonial; e.g., was the statement made in response to questions, was the statement recorded, was the declarant removed from third parties, or was the interview conducted in a formal setting such as in a governmental building?” State v. Brown, 285 Kan. 261, 291, 173 P.3d 612 (2007).
Later, Melendez-Diaz held that the sworn statements of laboratory analysts made in contemplation of litigation were testimonial statements and, thus, subject to Crawford’s confrontation requirements. 557 U.S. at 308-11; see also State v. Laturner, 289 Kan. 727, 733-34, 750-51, 218 P.3d 23 (2009) (relying on Melendez-Diaz in finding a Kansas statute unconstitutional where it authorized the admission of a sworn forensic lab report in lieu of the preparer s in-court testimony). Even more recently, in Bullcoming v. New Mexico, 564 U.S. 647, 131 S. Ct. 2705, 2717, 180 L. Ed. 2d 610 (2011), the Supreme Court determined that a forensic laboratory report certifying the defendant’s blood-alcohol concentration was, like the report in Melendez-Diaz, testimonial in nature. Bullcoming found it significant that while the analyst who prepared the report may not have had to exercise any independent judgment in creating it, the certification he signed included more than the “raw, machine-produced data” regarding Bullcoming’s blood alcohol level, such as the specific protocols followed by the analyst and information regarding the chain of custody. 131 S. Ct. at 2714. The Court suggested that it was those additional “representations, relating to past events and human actions” as to which cross-examination was most indicated. 131 S. Ct. at 2714.
In the present case, Benson reasons that the certificate of calibration is a testimonial statement because it was created in contemplation of trial, notwithstanding that the certificate was generated by an independent agency after it completed repairs on the machine some 3 weeks before it was used to test Benson. While this court has not previously addressed Benson’s argument, the Court of Appeals has ruled on the question in two other cases since Crawford and Brown. In those cases, the Court of Appeals held that documents showing the certification or calibration of a breath-test machine are not testimonial statements because they do not address a specific trial and do not tend to prove a specific element of a particular crime. State v. Johnson, 43 Kan. App. 2d 815, 826, 233 P.3d 290 (2010); State v. Dukes, 38 Kan. App. 2d 958, 962, 174 P.3d 914 (2008), aff'd 290 Kan. 485, 231 P.3d 558 (2010) (affirming the Court of Appeals’ opinion on other grounds but not addressing the panel’s analysis declaring the certificate testimonial because the issue was not properly preserved).
Dukes placed significant reliance on the fact that 14 other jurisdictions had determined that proof of a breath-test machine’s calibration was not testimonial evidence. 38 Kan. App. 2d at 961. However, those decisions, like Dukes, were issued before Melendez-Diaz—an argument raised in Johnson. But the Johnson panel distinguished Melendez-Diaz because the certificate it was reviewing only contained information related to the operation of the machine; it did not deal with a specific element of the crime. Johnson, 43 Kan. App. 2d at 826; see also Melendez-Diaz, 129 S. Ct. at 2531 (certificates at issue reported that the tested substance was in fact cocaine). Moreover, the Melendez-Diaz majority specifically limited its holding in a footnote:
“Contrary to the dissent’s suggestion, ... we do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the . . . accuracy of the testing device, must appear in person as part of the prosecution’s case. . . . [Documents prepared in the regular course of equipment maintenance may well qualify as nontestimonial records.” 129 S. Ct. at 2532 n.1.
The same distinction has been cited by other jurisdictions addressing this issue after Melendez-Diaz, and most jurisdictions uniformly agree that documents certifying maintenance records of breath-test machines are not testimonial in nature. See, e.g., United States v. Forstell, 656 F. Supp. 2d 578, 580-82 (E.D. Va. 2009); State v. Lindner, 227 Ariz. 69, 71-72, 252 P.3d 1033 (Ct. App. 2010); Jacobson v. State, 306 Ga. App. 815, 817-18, 703 S.E.2d 376 (2010); People v. Jacobs, 405 Ill. App. 3d 210, 216-17, 939 N.E.2d 64 (2010); Ramirez v. State, 928 N.E.2d 214, 219-20 (Ind. App. 2010); Commonwealth v. Zeininger, 459 Mass. 775, 788-89, 947 N.E.2d 1060 (2011). The most common rationale for these holdings is that the certificate of calibration is not created for the purpose of prosecuting any particular defendant, but rather it is designed for use in criminal prosecutions generally. See Melendez-Diaz, 129 S. Ct. at 2539-40 (explaining that the reason business records are nontestimonial and thus proper hearsay exceptions is because the documents are created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at a specific trial); Dukes, 38 Kan. App. 2d at 961-62. As the Massachusetts Supreme Judicial Court recently stated:
“[C]ertification records are outside the orbit of the ‘common nucleus’ of the various definitions of ‘testimonial’ set forth in Crawford .... [Citations omitted.] Whereas certificates of drug analysis were offered as direct proof of an element of the offense charged, [as in MelendezDiaz,] the [] certification records bear only on the admissibility or credibility of the evidence. The [] certification records are offered, first, as proof that the Commonwealth has met a foundational predicate to admissibility of die breathalyzer test results and, then, either through direct testimony or by implication, as evidence bolstering the reliability of those results. [Citations omitted.] We agree widi the Court of Appeals of Oregon, which concluded diat such records ‘bear a more attenuated relationship to conviction: They support one fact (the accuracy of die machine) that, in turn, supports another fact that can establish guilt (blood alcohol level).’ State v. Bergin, [231 Or. App. 36,] 41 [, 217 P.3d 1087 (2009)].
“. . . That the [] certification records are generalized and performed prospectively in primary aid of die administration of a regulatory program makes all die difference.” Zeininger, 459 Mass, at 786-88.
As noted above, Bullcoming intimated the same reasoning when the majority opinion alluded to the possibility that a report containing only “raw, machine-produced data” might not be considered a testimonial statement. Bullcoming, 131 S. Ct. at 2714 (noting that it was the analyst’s sworn “representations, relating to past events and human actions” that justified the certificate’s testimonial status). While it could be argued that under the test in Brown the certificate in the present case is testimonial because the only reason for calibrating the machine was to assure the reliability of information specifically used at trial, the report was not generated in contemplation of Benson’s specific criminal proceeding—a fact required by other courts addressing this issue before finding a certificate to be testimonial. See, e.g., Zeininger, 459 Mass. at 786-87; Dukes, 38 Kan. App. 2d at 961-62. Rather, when the certificate was created, its primary purpose was to establish that the machine was in compliance with administrative regulations in effect at the time. See K.A.R. 28-32-1 (revoked March 14, 2008). Thus, the certificate served a purpose at the time it was created, regardless of whether there ever would be a prosecution in the future at which it would be utilized.
In summaiy, the certificate of calibration in this case was routinely generated as part of the regular equipment maintenance. It was not created to establish a specific element in the prosecution of Benson’s case. Further, the certificate speaks only to the reliability of the evidence that Benson’s blood alcohol level was above the legal limit, it does not prove or disprove that element. Conse quently, we hold that the certificate of calibration is not a testimonial statement and is not subject to the Confrontation Clause requirements of Crawford. The district court did not violate Benson’s Sixth Amendment rights by admitting the certificate.
Sentencing
Benson argues that the district court violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution by imposing an enhanced sentence, based on prior convictions, without proving those convictions to the juiy beyond a reasonable doubt. This court has consistently rejected this argument. See, e.g., State v. Bennington, 293 Kan. 503, Syl. ¶ 9, 264 P.3d 440 (2011); State v. Riojas, 288 Kan. 379, 388, 204 P.3d 578 (2009); State v. Fewell, 286 Kan. 370, 394-96, 184 P.3d 903 (2008); Ivory, 273 Kan. at 46-48.
Standard of Review
“To the extent our decision involves . . . the interpretation and application of . . . court precedent, we are resolving questions of law and, thus, exercising unlimited review.” State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012); accord Johnson v. Brooks Plumbing, 281 Kan. 1212, 1213, 135 P.3d 1203 (2006).
Analysis
In Ivory, this court found that Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), did not prohibit basing the length of a sentence in part upon a defendant’s criminal history score under the Kansas Sentencing Guidelines Act, K.S.A. 21-4701 et seq. 273 Kan. at 44. Benson fails to propound any argument that would persuade us to revisit that holding. Accordingly, we affirm the Court of Appeals on this issue as well.
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The opinion of the court was delivered by
Johnson, J.:
Robert Henry Lackey II appeals from the trial court’s summary denial of his petition for DNA testing pursuant to K.S.A. 21-2512. Because we hold that Lackey s petition satisfied the criteria of K.S.A. 21-2512(a) and (c), we reverse and remand for an evidentiary hearing widr appointed counsel.
Factual and Procedural Overview
A more complete factual recitation can be found in State v. Lackey, 280 Kan. 190, 120 P.3d 332 (2005), cert. denied 547 U.S. 1056, overruled in part by State v. Davis, 283 Kan. 569, 158 P.3d 137 (2006). Here, we will provide a brief overview.
In 2002, a jury convicted Lackey of premeditated first-degree murder and rape for acts committed two decades earlier, in December 1982. The victim was a 22-year-old college student who volunteered at the Gospel Mission in Salina where Lackey—then known as Bob Moore—was a transient resident who also worked as a cook.
Lackey was last seen at the mission around 10 or 11 p.m. on December 11, 1982. The following day, Lackey and his personal belongings were gone, except for a pair of men’s underwear left under the bed Lackey had been using.
In the same time frame, the victim was last seen by her boyfriend, Jay Czamowski, on December 9 and last spoken to by her mother and sister on December 10. On December 18, Czamowski found the victim dead in a closet in the back bedroom of her mobile home. Evidence collected during the investigation of the victim’s death included the underwear found under Lackey’s bed; swabs from the victim’s anal, oral, and vaginal cavities; and scrapings from underneath the victim’s fingernails. Lackey also alleges that short hairs were found on the victim’s body.
The case remained unsolved until the Kansas Bureau of Investigation (KBI) received information from Canadian authorities in 1996 that a man named Bob Moore had been involved in a homicide in Salina in 1982. The KBI discovered that Bob Moore was an alias for Lackey, and in January 2002 the KBI located Lackey in Alabama. Ultimately, Lackey was extradited to Kansas in March 2002 and put on trial later that year.
At trial, the State proffered the testimony of Lisa Marie Burdett, a forensic scientist with the KBI. Burdett testified that she conducted DNA testing on vaginal, anal, and oral swabs taken from the victim; scrapings from underneath the victim’s fingernails; and biological material on the underwear found under Lackey’s bed in the Salina mission. Burdett then compared the DNA from these items to known DNA samples of the victim, Lackey, and Czar-nowski.
Burdett’s testimony established that sperm cells found in the victim’s vagina were consistent with Lackey’s DNA. The probability of selecting an unrelated Caucasian individual at random with that specific profile is 1 in 194 billion. Additionally, Burdett’s testimony established that Lackey could not be excluded as a partial contributor to the DNA profile from the victim’s fingernail scrapings, while Czarnowski could be eliminated as a contributor to that sample.
Burdett also testified that she did not compare Czarnowski’s DNA to the cutting from the underwear because it was a match with Lackey’s DNA. Burdett indicated that under usual circumstances, once there is a match she does not further compare DNA against anyone else, but on occasion she will make further comparisons when there are requests by agents of law enforcement. Burdett did compare Czamowski’s blood to the DNA found on the vaginal swabs from the victim. The results eliminated or excluded Czamowsld as a possible contributor.
Lackey was convicted and sentenced to life in prison on both counts. On appeal to this court, his convictions were upheld, but his sentences under the Habitual Criminal Act were vacated. Lackey, 280 Kan. at 235. Lackey’s resentencing on remand is not in issue here.
On May 16, 2007, Lackey filed a pro se petition for DNA testing pursuant to K.S.A. 21-2512. In the petition, Lackey asserted that the prior DNA test results were incompetent for a number of reasons, including the cross-contamination of male and female samples. He complains that some of the results were not compared against the DNA of the victim’s boyfriend, Czamowsld. The motion asked that a DNA expert of Lackey’s choosing be allowed to examine the DNA test procedures utilized, as well as the evidence samples and test results, in order to allow Lackey to make an informed and intelligent request for further testing. Lackey specifically requested the following testing:
“1) Re-test DNA of fingernail scrapings;
“2) Test underwear for semen of defendant AND vaginal fluid of alleged victim;
“3) Test all evidentiary DNA samples against Czamowsld; and
“4) Test the short hairs found on the alleged victim’s body.”
On May 30, 2007, the district court summarily denied Lackey’s petition, determining that the DNA evidence was properly offered and admitted by the court; that the DNA techniques used by the State were representative of the latest techniques available; that Lackey failed to show that more accurate techniques were available; and that Lackey’s petition failed to state a cause of action upon which relief could be granted pursuant to K.S.A. 21-2512. After the district court denied Lackey s motion for reconsideration, he appealed to the Court of Appeals.
The Court of Appeals held that tire defendant was “unable to establish that the DNA samples collected in this case were capable of producing noncumulative, exculpatory evidence relevant to his claim that he was wrongly convicted of the premeditated murder and rape [of the victim.]” State v. Lackey, 42 Kan. App. 2d 89, 101, 208 P.3d 793 (2009). The panel relied on the fact that Lackey s DNA was consistent with tire DNA found in the victim’s vagina and underneath the victim’s fingernails to opine “that testing of the biological evidence could not produce noncumulative, exculpatory evidence.” 42 Kan. App. 2d at 102. We granted Lackey’s petition for review.
Statutory Requirement for DNA Testing
Lackey argues on appeal that the district court ignored the plain meaning of K.S.A. 21-2512 in ruling on his petition for DNA testing. Specifically, Lackey complains that the district court failed to notify the prosecuting attorney of the petition, as required by K.S.A. 21-2512(b)(l), and that both the trial and appellate courts ignored the clear meaning of K.S.A. 21-2512(a)(3) with respect to the summary denial of his petition for DNA testing of the short hair and bloodstain evidence. In response, the State argues that Lackey’s petition was inadequate under K.S.A. 21-2512 and that Lackey failed to adequately brief his argument for DNA testing of the short brown hairs found on the victim’s body.
Standard of Review
The summary denial of a request for DNA testing under K.S.A. 21-2512 presents a question of law over which this court has unlimited review. Wimbley v. State, 292 Kan. 796, 810, 257 P.3d 328 (2011). Additionally, the interpretation of a statute is a question of law over which appellate courts have unlimited review. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
Analysis
As noted above, Lackey s petition specifically requested the following testing: (1) retesting of fingernail scrapings; (2) testing of underwear for Lackey s semen and the victim’s vaginal fluid; (3) testing of all evidentiary DNA samples against Czamowski’s DNA; and (4) testing of the short hairs found on the victim’s body. We begin by considering the initial, pretesting statutory procedure to be followed upon the filing of a DNA testing request under K.S.A. 21-2512. The relevant provisions of K.S.A. 21-2512 are as follows:
“(a) Notwithstanding any other provision of law, a person in state custody, at any time after conviction for murder as defined by K.S.A. 21-3401, and amendments thereto, or for rape as defined by K.S.A. 21-3502, and amendments thereto, may petition the court that entered the judgment for forensic DNA testing (deox-yribonucleic acid testing) of any biological material that:
(1) Is related to the investigation or prosecution that resulted in the conviction;
(2) is in the actual or constructive possession of the state; and
(3) was not previously subjected to DNA testing, or can be subjected to retesting with new DNA techniques that provide a reasonable likelihood of more accurate and probative results.
“(b)(1) The court shall notify the prosecuting attorney of a petition made under subsection (a) and shall afford the prosecuting attorney an opportunity to respond.
(2) Upon receiving notice of a petition made under subsection (a), the prosecuting attorney shall take such steps as are necessary to ensure that any remaining biological material that was secured in connection with the case is preserved pending the completion of proceedings under this section.
“(c) The court shall order DNA testing pursuant to a petition made under subsection (a) upon a determination that testing may produce noncumulative, exculpatory evidence relevant to the claim of the petitioner that the petitioner was wrongfully convicted or sentenced.”
Following the plain language of the statute, we discern that a district court receiving a request from a qualified inmate for DNA testing pursuant to K.S.A. 21-2512 should initially follow a three-step process: (1) notify the prosecuting attorney that a petition has been made under K.S.A. 21-2512(a); (2) determine whether the biological material sought to be tested qualifies for testing under K.S.A. 21-2512(a)(l)-(3); and (3) determine whether testing may produce noncumulative, exculpatory evidence relevant to the petitioner s claim of wrongful conviction or sentencing. In performing the second and third steps, the district court must assess whether to appoint counsel for an indigent applicant, as provided by K.S.A. 21-2512(e), and whether an evidentiary hearing is required.
Lackey complains that the district court summarily denied his testing request without notifying the prosecuting attorney. We agree that the district court erred in this regard. The purpose of the notification requirement is at least two-fold: First, it gives the State an opportunity to respond to the request; and, second, it provides a warning to the State that the biological material in question must be preserved. The latter purpose benefits the petitioner by preserving potentially exculpatory evidence. But the first purpose actually benefits the State by giving the prosecutor an opportunity to obtain an early disposition of the DNA testing request by showing the court that the biological material does not qualify for testing under the three factors of K.S.A. 21-2512(a). But given that neither party has shown any prejudicial effect from the court’s failure to properly notify the prosecuting attorney in this case, we discern no relief that may be given for the notification error.
With respect to the second step, we have previously discussed the three requirements for testing biological material pursuant to K.S.A. 21-2512(a). See Wimbley, 292 Kan. at 810-11. The first criterion—that the material be related to the investigation or prosecution that resulted in the conviction—is to be read broadly to include any material related to either the investigation or the prosecution; it is not limited to the evidence that was actually introduced at trial. Wimbley, 292 Kan. at 810. The biological material at issue here is clearly related to the investigation or prosecution of the murder and rape in this case.
The second criterion, in K.S.A. 21-2512(a)(2), only requires that the prisoner allege that the State has possession of the evidence to be tested, and we liberally construe pro se pleadings. Bruner v. State, 277 Kan. 603, 605, 88 P.3d 214 (2004). Here, Lackey alleged that all the material was in the State’s possession.
The third criterion, set forth in K.S.A. 21-2512(a)(3), provides two distinct alternatives: (1) The biological material has not been previously tested or (2) the material could be retested with new and improved techniques. With respect to most of the biological material identified in his motion, Lackey appears to stumble over the hurdle of K.S.A. 21-2512(a)(3).
In requesting retesting of the fingernail scrapings, Lackey quibbles over the technician’s findings in the original testing but does not allege that there are new DNA testing techniques which would yield more accurate results. Any complaint about the procedures followed by the State’s DNA technician or the ambivalence of the results she obtained in the original testing was a proper subject for cross-examination and impeachment at trial. K.S.A. 21-2512 is designed to obtain new testing, not to redo the old tests for impeachment purposes.
Lackey’s request that the underwear be tested for the presence of his semen or of the victim’s vaginal fluid likewise misses the point. The underwear was originally tested and matched to Lackey’s DNA to establish that the Bob Moore who was sleeping in tire bed where the underwear was found was the same person as the defendant. Lackey was certainly free to argue to die jury that die State had failed to show that the underwear contained his semen or the victim’s vaginal fluid. Apparently, he seeks the retest, in part, to corroborate the nonexistence of evidence that was not produced at trial. That is not the purpose of K.S.A. 21-2512. Moreover, Lackey once again failed to argue that newer techniques were available to improve on the original testing.
In making his request to have all evidentiary DNA samples tested against Czarnowsld’s DNA, Lackey further reveals his misunderstanding of the purpose of K.S.A. 21-2512. A profile of Czar-nowski’s DNA existed at the first trial, as evidenced by die testimony excluding him as a contributor to the fingernail scrapings and vaginal swab. What Lackey is really seeking is to have someone compare the existing DNA profile of Czarnowski with the existing DNA profiles on all of the evidence. K.S.A. 21-2512 contemplates the necessity for new or different DNA testing, not the further analysis of previous test results.
But Lackey’s request for testing of the short hairs on the victim’s body fits the first alternative of K.S.A. 21-2512(a)(3) because, as was apparently conceded in the Court of Appeals opinion, “DNA testing had never been performed on [the] short hairs found on [the victim’s] body.” Lackey, 42 Kan. App. 2d at 97. Accordingly, the record before us indicates that the short hairs evidence facially passed muster under all three criteria of K.S.A. 21-2512(a), i.e., the hairs were biological material that qualified for testing.
That moves us to the third step of the process—determining whether the “testing may produce noncumulative, exculpatory evidence relevant to the claim of the petitioner that the petitioner was wrongfully convicted or sentenced.” K.S.A. 21-2512(c). The Court of Appeals found that
“DNA testing on the short hairs would not produce exculpatory evidence in this case when Lackey’s DNA was consistent with the DNA found in [the victim’s] vagina and underneath her fingemails[,]... especially... since Lackey had denied knowing [the victim] and denied being in Kansas when the crimes against [the victim] were committed.” Lackey, 42 Kan. App. 2d at 97.
Apparently, the Court of Appeals was defining “exculpatory evidence” as evidence that definitively exonerates the defendant when weighed against the other evidence in the case and when viewed in light of the defendant’s theory of defense. We disagree with that premise.
As the panel noted and brushed aside, we previously, and rather explicitly, rejected the notion of defining exculpatory evidence under K.S.A. 21-2512(c) as being a function of weighing evidence. See Bruner, 277 Kan. at 606 (plain statutory language does not limit DNA testing to cases where evidence not overwhelming). In the context of a prosecutor’s obligation to disclose exculpatory evidence, we have said that “ ‘[e]vidence is exculpatory if it tends to disprove a fact in issue which is material to guilt or punishment.’ ” State v. Aikins, 261 Kan. 346, 382, 932 P.2d 408 (1997) (quoting State v. Carmichael, 240 Kan. 149, 153, 727 P.2d 918 [1986]). Additionally, Black’s Law Dictionary 637 (9th ed. 2009) defines exculpatory evidence as “[e]vidence tending to establish a criminal defendant’s innocence.” (Emphasis added.) Finally, and most compelling, Haddock v. State, 295 Kan. 738, 759, 286 P.3d 837 (2012), specifically acknowledged that evidence may be exculpatory without being exonerating. In other words, the argument that other inculpatory evidence and the theory of defense rendered the hair evidence not exculpatory was actually a non sequitur or fallacy of affirming the consequent, i.e., the panel committed a fallacy of relevance.
The district court is charged with the responsibility of assessing the exculpatory and cumulative nature of each item proposed to be tested. In Bruner, we clarified that the statute does not require the prisoner to make specific allegations regarding how the requested testing would produce noncumulative, exculpatory evidence. 277 Kan. at 606. Instead, we opined that it was the legislature, through the language employed in K.S.A. 21-2512, that had concluded a “fishing expedition” for DNA evidence is worth conducting in these cases. 277 Kan. at 606. Accordingly, in Bruner we concluded the district court should have appointed counsel and conducted an evidentiary hearing to make that determination. 277 Kan. at 608. We come to the same conclusion here, reversing and remanding this case for an evidentiary hearing at which Lackey has the assistance of counsel.
Before concluding, we pause to emphasize that our decision today only addresses the procedure to be followed up to and including tire order for DNA testing. After the test results are obtained, the procedure to be followed is governed by K.S.A. 21-2512(f). Under that subsection, the district court may well be called upon to weigh the evidence to make a “probabilistic determination about what reasonable, properly instructed jurors would do” with the new evidence in light of the totality of the circumstances. Haddock, 295 Kan. at 769. But the statute does not contemplate that exercise of discretion in determining whether to order the testing in the first instance. Accordingly, we reverse and remand for the appointment of counsel and the conducting of a hearing to determine whether DNA testing of the hair evidence is required under K.S.A. 21-2512.
Reversed and remanded with directions.
Moritz, J., not participating.
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The opinion of the court was delivered by
Rosen, J.:
After a jury trial, Vernie Burns was convicted of two counts of aggravated criminal sodomy and two counts of aggravated indecent liberties with a child. He was sentenced to three consecutive life sentences, each with a mandatory 40-year prison term. Burns raises two alternative means issues, multiple trial errors, and several issues related to his sentences.
Factual Background
In October 2007, Vernie Burns and his wife, Deborah, frequently spent time at Deborah’s daughter’s house. Deborah helped her daughter with cooking, laundiy, and, on occasion, babysitting her three young granddaughters—K.W., Ar.W., and Av.W.
On November 9, 2007, the children’s father picked them up from school because their mother had gone to pick up Burns and his wife for the weekend. When the children learned why their mother was not picking them up, they told their father that they did not want Burns to come over. When their father asked why, the children explained that “he [did] nasty stuff’ to them. After a bit more discussion, he called his wife and asked that she not bring Burns to the house. Only Deborah came to the house that evening. The parents left the children with Deborah and went to a church event, where they discussed the matter with one of the pastors. They called the police the next morning.
Officer Robert Ward responded to their call. He talked to the three children together, getting only the basic outline of their complaints. On November 19, 2007, the girls were interviewed, individually, on video at the Sunflower House—a child advocacy and abuse prevention center. The video recordings of their interviews were admitted at trial and played for the juiy. On November 30, 2007, the girls were examined at the Sunflower House. As expected for an exam more than 48 hours after the alleged abuse, the physical examinations showed no injuries.
K.W., who was 8 years old in October 2007, described several touches that occurred in the bedroom she shared with her sisters, Ar.W. and Av.W. She explained that Bums would have her lie on her sister s bed, which was tire lower bunk of a bunk bed. Burns would then touch her beneath her clothing on her “butt.”
Ar.W., who was 6 years old in October 2007, described one “bad touch” that occurred in the back room under a blanket. She explained that she wanted to hug Bums and that she was falling asleep against him. She said Bums was awake and that he put his hand underneath her clothing and underwear and touched the inside of her bottom. She described a second touch that happened in the front room while she was sharing a blanket with Bums. Again she described the touch as Burns reaching his hand underneath her clothing and touching the inside of her bottom. Ar.W. also testified that she saw Bums touching K.W.’s bottom in their bedroom on one occasion.
Av.W., who was 5 years old in October 2007, explained that Burns touched her several times on different days. She said all of these touches happened in the back room under a blanket where she had joined Bums to watch television. She described Bums reaching under her clothing and touching both her front private (the part she “go[es] pee” with) and inside her back private (the part she “go[es] poop” with). At trial, she added that Bums also touched her with his part that he “go[es] potty with.” Av.W. also testified that she had seen Bums touch K.W. in a similar manner in the back room.
Burns was charged with two counts of aggravated criminal sodomy of K.W., two counts of aggravated indecent liberties with Ar.W., and two counts of aggravated criminal sodomy of Av.W. The juiy convicted Bums of both counts involving Ar.W., and one count each involving K.W. and Av.W.
Alleged Trial Errors
Burns alleges that the following trial errors, individually or in combination, prejudiced his right to a fair trial: (1) the manner in which the district court responded to jury questions, (2) the prosecutor’s improper statements during closing arguments, and (3) the error in the Allen-type instruction. An examination of the total record shows that these cumulative errors denied Bums a fair trial. Accordingly, we reverse his convictions and remand for new trial.
Did the district court err in answering a question from the jury?
Burns claims that the trial court twice violated his right to be present during critical stages of his trial; both instances involved questions from the jury during deliberations. In the first incident, the district judge received two questions from the jury. With defense counsel present, the judge spoke to the attorney for the State on the telephone. With Burns and his counsel present, the judge read the questions into the record, proposed his answers, and asked if the defendant had any objection. The jury had sent a question requesting a DVD player to review the girls’ Sunflower House interviews, and the judge answered in the affirmative and sent the equipment in with the bailiff. The juiy also requested the initial police report, which the judge denied because it was not an admitted exhibit. Bums complains it was error to allow the DVD player to be sent back to the juiy room instead of playing the DVD again in open court. Bums concedes that this alleged violation was harmless.
The jury also requested a read back of certain testimony; Bums does not allege any violations with regard to the read back. When the jury returned to the jury room to consider its verdict the following day, the jury sent out a question that is the basis for Bums’ second allegation. The following is a portion of the record addressing this question:
“THE COURT: Let the record reflect the same appearances. The defendant and counsel are present outside the presence of the jury.
“We are in receipt of another question from the jury. And I will quote this into the record: Can we get clarification from Judge on Count 2 and Count 6?
“When I received that, 1 sent this message back with the bailiff: Can you be more specific on what you want? They came back then with this question: In comparison to Count 1, is Count 2 meaning the crime happened multiple times? In comparison to Count 5, is Count—they crossed it out, but I think they mean Count 6—meaning the crime happened multiple times?
“The accurate answer to their question is, I believe: Yes, comma, it happened more than once, period. That’s how I propose to answer both questions. Any objections?
“MS. LIDTKE: No.
“MR. MAHONEY: Judge, this is the form I would ask that you couch it in, the terms: The State has alleged it happened more than once. You’re giving them the impression this happened more than once. I realize it’s semantics.
“THE COURT: It is. And I’m not going to do that. I’ve answered it and I will have the bailiff send this back further with the—they have asked for some more testimony to be read back. The court reporter is isolating those parts of the testimony now and we will bring them back. She is just about ready with that, too. So we have got a few more items on my regular docket. As soon as we get a window of time, we will read back the testimony. Thank you.”
Standard of Review
Bums frames the issue as a deprivation of his right to be present at every critical stage of his trial. If his right to be present is at issue, the appropriate standard of review is a question of law over which this court exercises unlimited review. See State v. Martinez, 288 Kan. 443, 449, 204 P.3d 601 (2009).
If instead the issue is whether the trial judge properly responded to a jury question during deliberations, the standard of review is abuse of discretion. State v. Adams, 292 Kan. 151, 163, 254 P.3d 515 (2011). In State v. Ward, 292 Kan. 541, 550, 256 P.3d 901 (2011), cert. denied 132 S. Ct. 1594 (2012), we clarified our abuse of discretion standard as follows:
“Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based. [Citation omitted.]”
Analysis
Burns claims that sending an answer back to the jury rather than reading the answer in the presence of the defendant violates his constitutional right to be present at all critical stages of the trial, citing State v. Coyote, 268 Kan. 726, 732, 1 P.3d 836 (2000). Bums’ reliance on Coyote is misplaced. In Coyote, this court stated:
“The trial court’s written response of no’ to the jury without more is error. A trial court, when confronted with a question submitted to it by a jury during deliberations is required to advise counsel, provide the parties with the question, and give them an opportunity for input in tire presence of the defendant. Thereafter, the court is required to respond in toriting to the jury in the presence of the defendant. The court did not follow this procedure and its failure constitutes error.” (Emphasis added.) Coyote, 268 Kan. at 732.
Here, the trial court followed the procedure outlined by this court in Coyote. Burns and his counsel were present and informed of the jury’s question. The judge asked if there were any objections, and defense counsel proposed an alternative phrasing for the answer. The judge rejected this phrasing and answered the question in writing, “Yes, it happened more than once.”
Based on tire record of the trial, the district judge requested clarification on the question from tire jury without the defendant’s presence. But at the hearing for a new trial, the judge relates a different version of events. At that time, the judge says the defendant and counsel were in the courtroom when the generic question was discussed. The judge describes the events as:
“The first question that they wrote out was, can we get clarification from Judge on Counts 2 and 6? The defendant was brought into the courtroom. We discussed the matter with counsel and the defendant was present when the answer was crafted and that was, and I’ll quote, can you be more specific on what you want? We sent that back to the jury and they responded with two questions.”
But even if tire trial record is more accurate, it is difficult to imagine any impact the judge’s request for clarification had on the verdict. The jury’s first question—“Can we get clarification from Judge on Count 2 and Count 6?”—is too generic to answer. Bums was present when the judge read the amended question and pro posed his answer. Defense counsel was allowed to object and propose an answer to the jury’s question.
The more compelling argument is whether the judge improperly answered the jury question and as a result improperly injected himself into the jury deliberations. This question is reviewed under the more lenient abuse of discretion standard. But even under that standard, a judge should not answer a jury question by concluding that the crime happened on more than one occasion, especially when the defendant is charged with multiple counts of the crimes. The primary question in reviewing the court’s answer to a jury question is “ whether [the answer] was a correct statement of the law as applied to the facts brought out in the evidence.’ ” State v. Murdock, 286 Kan. 661, 683, 187 P.3d 1267 (2008) (quoting State v. Wilson, 169 Kan. 659, 663, 220 P.2d 121 [1950]).
The State argues that if the jury had read the judge’s answer to mean “the court believes it happened more than once” and placed an undue reliance on that answer, the jury would have returned guilty verdicts for counts two and six, which it did not. This ignores the fact that tire jury could have believed die crimes did not occur at all as to those two victims but, because of the judge’s answer, felt compelled to find Bums guilty at least once for each victim. We are therefore left to speculate as to what effect the judge’s answer had—none or undue prejudice.
When the jury asked for clarification on the difference between two identical counts, the judge responded by telling the jury, “Yes, it happened more than once.” By suggesting that the court believed the crimes happened multiple times when the defendant was charged with multiple counts, the judge essentially directed a verdict against the defendant. The court could properly have given Burns’ proposed answer: “The State has alleged it happened more than once.” Or, the court could have given an answer that referred to the instructions explaining how the jury was supposed to consider multiple counts when multiple acts are alleged by the State. It was an abuse of discretion for the judge to answer a jury question by stating that the crime happened at all, let alone that the crime happened more than once.
Did the State commit prosecutorial misconduct during closing arguments hy urging the jury to let the girls know “they did the right thing”?
Burns alleges that the State committed prosecutorial misconduct during closing arguments when the prosecutor urged the jury to let the victims “know that they did the right thing” by reporting the crimes. The State concedes that the comment was improper based on this court’s holding in State v. Martinez, 290 Kan. 992, 1015, 236 P.3d 481 (2010). But the State argues that the misconduct was not gross and flagrant, did not show ill will, and was harmless in light of the evidence presented against the defendant.
Burns also complains about the prosecutor’s discussion of charging decisions during closing arguments, regarding the State’s decision to charge two counts based on the events described by Av.W. despite the child’s description in the initial interview that it happened “eight to ten times.” Burns acknowledges that the jury found him not guilty of the second count of aggravated criminal sodomy against Av.W. despite the prosecutor’s comments. Instead, Bums alleges that this comment, along with the statement “let them know that they did tire right thing,” shows ill will on the part of the prosecutor.
Standard of Review
“This court employs a two-step analysis for allegations of prosecutorial misconduct regardless of whether a timely objection is made. First, the court determines whether the prosecutor’s statements exceeded the wide latitude of language and manner afforded a prosecutor in making closing arguments. Inherent in this latitude is the prosecutor’s freedom to argue reasonable inferences from the evidence. Second, the court must determine whether tire prosecutor’s comments constitute plain error. This occurs when the statements are so gross and flagrant they prejudiced the jury against the defendant and denied the defendant a fair trial. [Citation omitted.]
“The second step requires the examination of three factors: (1) whether the misconduct was so gross and flagrant it denied the accused a fair trial; (2) whether the remarks showed ill will by the prosecutor; and (3) whether the evidence against the defendant was of such a direct and overwhelming nature that the prosecutor’s statements would not have much weight in the jurors’ minds. [Citation omitted.]
“But none of these factors is controlling. Further, the third factor can never override the first two factors until the harmlessness tests of both K.S.A. 60-261 (prosecutor’s statements were inconsistent with substantial justice) and Chapman v. California, 386 U.S. 18, 22, 17 L. Ed. 2d 705, 87 S. Ct. 824, reh. denied 386 U.S. 987 (1967) ..., have been met. [Citations omitted.]” Martinez, 290 Kan. at 1012.
Analysis
The State acknowledges that this was the same prosecutor as in Martinez. But this case was tried more than a year before the Martinez decision was published, so the prosecutor did not disregard the law in making this statement. The State argues that the fact that this prosecutor used that remark in closing arguments for many child sexual abuse cases actually shows that she did not grossly or maliciously target this particular defendant.
As in Martinez, the statement was made to appeal to the jurors’ parental and protective instincts to validate and affirm the children’s beliefs. As such, it was an improper comment on matters outside the evidence and the law. Unlike Martinez, the disputed statement was not made during the State’s rebuttal closing argument in response to something the defense attorney said during his closing argument. Here, the statement was made during the first portion of the State’s closing argument. But the statement does not suggest that the children will face future harm if the jury returned a not guilty verdict.
Finally, the jury returned not guilty verdicts on two of the six counts charged against Bums. The State suggests that this supports finding that the statement had no reasonable possibility of changing the result of the trial because the jury overlooked the statement at least with regard to two of the charges. But, as we have already discussed, that verdict may have been influenced by the judge’s improper answer to a jury question.
Even so, considering die entirety of closing arguments, the statements are not so gross and flagrant that they denied Burns a fair trial. The remarks do not appear to show ill will by the prosecutor. And the evidence, albeit hinging entirely on the credibility of the three victims, provided substantial evidence of guilt. The statement, while error, was not reversible error standing alone.
Did the district court err by instructing the jury, prior to deliberation, that “[ajnother trial toould be a burden on both sides”?
Burns argues that it was clear error for the trial court to include tire following language in its instructions to the jury: “Another trial would be a burden on both sides.” This language was included in the Allen-type instruction. Burns did not object to this instruction. The State concedes that it was error for tire court to include that language in the instruction based on State v. Salts, 288 Kan. 263, Syl. ¶ 2, 200 P.3d 464 (2009), although Salts was decided after the trial in this case. We agree that the instruction was in error. While this error would not be grounds for reversal alone, it contributes to the cumulative trial error determination.
Cumulative Error
Standard of Review
“This court evaluates cumulative error claims by determining whether the totality of circumstances substantially prejudiced the defendant and denied tire defendant a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant.’ ” State v. Edwards, 291 Kan. 532, 553, 243 P.3d 683 (2010) (quoting State v. Ellmaker, 289 Kan. 1132, Syl. ¶ 12, 221 P.3d 1105 [2009]).
“We recently clarified that under the harmless error standards of K.S.A. 60-261, K.S.A. 60-2105, and Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386 U.S. 987 (1967), the test is whether the error affected substantial rights, meaning whether die error affected the outcome of die trial. See Ward, 292 Kan. 541, Syl. ¶¶ 5-6. As we stated in Ward:
‘The degree of certainty by which the court must be persuaded that the error did not affect the outcome of the trial will vaiy depending on whether the error infringes upon a right guaranteed by the United States Constitution. If it does not, die ... court should apply K.S.A. 60-261 and determine if there is a reasonable probability that the error did or will affect die outcome of die trial in light of the entire record. If the fundamental failure infringes upon a right guaranteed by the United States Constitution, die .. . court should apply die constitutional harmless error standard defined in Chapman, in which case the error may be declared harmless where die party benefitting from the error proves beyond a reasonable doubt that the error complained of will not or did not affect die outcome of the trial in light of die entire record, i.e., where diere is no reasonable possibility diat the error contributed to the verdict.’ Ward, 292 Kan. 541, Syl. ¶ 6.” State v. Tally, 293 Kan. 176, 193-94, 262 P.3d 314 (2011).
Analysis
Burns argues that the combination of the judge’s error in answering the jury question, the State’s improper statements during closing arguments, and the error in the Allen-type instruction combined to prejudice him and deny him a fair trial. The State maintains that no substantial errors were made during the trial and argues that the evidence was overwhelming. When considering a claim of cumulative error, this court examines the errors in the context of the record as a whole. We consider how the trial court dealt with the errors as they arose, the number of errors committed, the nature of those errors, tire relationship of the errors to one another, and the strength of the evidence against the defendant. Tully, 293 Kan. at 205-06.
As discussed above, there were three errors in this case. These errors occurred in close temporal proximity, playing off one another to deny Burns his right to a fair trial. The jury was first improperly instructed with the inaccurate and misleading language used in the Allen-type instruction. Immediately thereafter, the prosecutor improperly appealed to the emotions of the jurors, asking them to protect the child victims by supporting their version of the events. Finally, the judge compounded these errors by responding to a juiy question by informing the jury that the abuse had happened more than once. The interrelationship of these errors significantly increases their effect. We conclude that there is a reasonable probability that the cumulative errors affected the verdict. Because these errors substantially prejudiced Bums and denied him a fair trial, his convictions must be reversed and the case remanded for a new trial.
Sentencing Issues
Because we are reversing Burns’ convictions based on cumulative trial errors, we would not ordinarily address other claims of error. We consider those claims to determine a sufficiency of the evidence claim for double jeopardy purposes. Burks v. United States, 437 U.S. 1, 16-18, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978). While two of the sentencing issues Bums raised are moot, the third merits mention. Bums alleges that the State failed to prove his age at trial and that the trial court’s failure to include the element of age on the jury instructions prohibits the State from seeking the enhanced sentence under the provisions of Jessica’s Law. The State agreed with Burns’ request that the case be remanded for resent-encing using the grid sentence. But we are unable to decide this issue in light of the remand because the parties have not argued this issue before the trial court. See State v. Hernandez, 294 Kan. 200, 211, 273 P.3d 774 (2012).
Alternative Means
Like the sentencing issues, the alternative means claims Bums raised are rendered moot by our reversal of his convictions. But we may also address such a claim of error to provide guidance to the trial court on issues likely to arise on remand. See State v. Wells, 289 Kan. 1219, 1234, 221 P.3d 561 (2009). In the recently decided case, State v. Brown, 295 Kan. 181, 284 P.3d 977 (2012), we expanded our analysis of alternative means. We provide guidance on how that analysis applies to the crimes charged in this case.
Standard of Review
“A criminal defendant has a statutory right to a unanimous jury verdict. But unanimity is not required as to the means by which the crime was committed so long as substantial evidence supports each alternative means.”
“In an alternative means case, the State must present sufficient evidence to permit a jury to find each means of committing the crime beyond a reasonable doubt. When the jury is instructed on alternative means of committing a single crime and the State fails to present sufficient evidence to support both means, reversal is required.”
“In determining if the legislature intended to state alternative means of committing a crime, a court must analyze whether the legislature listed alternative distinct, material elements of a crime—that is, separate or distinct mens rea, actus reus, and, in some statutes, causation elements. Or, did the legislature list options within a means, that is [,] options that merely describe a material element or describe a factual circumstance that would prove the element?”
“The listing of alternative, distinct, material elements, when incorporated into an elements instruction, creates an alternative means issue demanding super-sufficiency of the evidence. However, the legislature generally does not intend to create alternative means when it merely describes a material element or a factual circumstance that would prove the crime. Such descriptions are secondary mat ters—options within a means—that do not, even if included in a jury instruction, raise a sufficiency issue that requires a court to examine whether the option is supported by evidence.” State v. Rojas-Marceleno, 295 Kan. 525, Syl. ¶¶ 13, 14, 15, 16, 285 P.3d 361 (2012).
Aggravated Criminal Sodomy
Bums claims that, as charged and instructed in this case, aggravated criminal sodomy could be committed by (1) anal penetration by a body part or (2) anal penetration by an object. Bums alleges that there was only sufficient evidence of anal penetration by a body part, specifically, a hand. The State responds that these are not alternative means because these alternatives were found in the statutory definition, rather than in the element instruction. Further, the State argues that a hand is an object; therefore, even if alternative means were charged, there was sufficient evidence of both alternative means.
As we stated in Brown, the court’s analysis must begin by determining whether the jury was presented with alternative means on this count of aggravated criminal sodomy. To do this, we examine the language of the relevant statutes, K.S.A. 21-3501(2) and K.S.A. 21-3506(a)(l). We review whether alternatives within a statute define alternative means or an “option within a means” de novo because this is a question of law. Rojas-Marceleno, 295 Kan. at 547.
At the time of the offense, K.S.A. 21-3506(a)(l) provided: “Aggravated criminal sodomy is: (1) Sodomy with a child who is under 14 years of age.” The proposed alternative means comes from the definition of sodomy in K.S.A. 21-3501(2), which states: “ ‘Sodomy’ means oral contact or oral penetration of the female genitalia or oral contact of the male genitalia; anal penetration, however slight, of a male or female by any body part or object; or oral or anal copulation or sexual intercourse between a person and an animal.”
K.S.A. 21-3506(a)(l) proscribes the crime of engaging in tire act of sodomy with a child who is under 14 years of age. The language and punctuation of K.S.A. 21-3501(2) indicates that there are three general but distinct ways in which one can complete the act of sodomy: (1) oral contact of genitalia, (2) anal penetration, and (3) sexual intercourse with an animal. We note that each act described within the definition of sodomy is separate and distinct from the other—the acts are factually different from one another, and one act is not inclusive of the others. Furthermore, each act is separated by a semicolon, which suggests that the legislature intended for each act to constitute a specific means of completing the general act of sodomy.
The actus reus of aggravated criminal sodomy under K.S.A. 21-3506(a)(1) is tire defendant’s act of sodomy with a child who is under 14 years of age. The definition in K.S.A. 21-3501(2) creates three alternative means of committing sodomy, but within the second alternative means, the anal penetration charged here, the definition only presents “options within a means,” that is, various factual circumstances that would prove the crime.
In the phrase “anal penetration, however slight, of a male or female by any body part or object,” the legislature did not define two or more distinct actus reus for this crime. The language on which Bums focuses, “by any body part or object,” merely describes different factual circumstances by which a defendant might perpetrate the required anal penetration. The inclusion of “by any body part or object” does not state material elements of sodomy but merely gives a full description of one of the means of committing sodomy; thus, it does not establish two alternative means of committing anal sodomy. Instead, the phrase only establishes one means of committing sodomy—anal penetration. The language “by any body part or object” does not establish alternative means, but options within a means. Therefore, the inclusion of this language in the jury instructions does not make this an alternative means case and does not trigger concerns of jury unanimity. Bums concedes that there was sufficient evidence of anal penetration by a body part, specifically, his hand. As a result, Bums is not entitled to reversal of his convictions for aggravated criminal sodomy based on this argument.
Aggravated Indecent Liberties
Bums was charged and the jury was instructed under the statutory language “with the intent to arouse or satisfy the sexual desires of either [the child] or the defendant, or both.” Bums claims that aggravated indecent liberties could be committed by lewd touching with the intent (1) to arouse the child, (2) to arouse himself, (3) to arouse both, (4) to satisfy die sexual desires of the child, (5) to satisfy his own sexual desires, or (6) to satisfy the sexual desires of both the child and the defendant. Burns alleges that no evidence was presented on whether he intended anyone involved in these incidents to be aroused, but he concedes that circumstantial evidence might support an inference of intent to satisfy his own sexual desires. Following our analysis in Brown, 295 Kan. 181, we reject Bums’ argument that these different mental states create alternative means.
As we stated in Brown, K.S.A. 21-3504(a) does provide several alternative means of committing the crime of aggravated indecent liberties with a child. Burns, like Brown, was charged with only one of these means—that set forth in K.S.A. 21-2504(a)(3)(A), any lewd fondling or touching of either a child who is under 14 years of age or the offender “done or submitted to with the intent to arouse or satisfy the sexual desires of either the child or the offender, or both.” See Brown, 295 Kan. 181, Syl. ¶ 12. The language on which Burns focuses is merely a description of the factual circumstances that may prove the single, distinct, material element of intent to arouse or satisfy sexual desires. This phrase merely outlines options within a means.
As a result, the jury was not instructed on alternative means, and the instruction does not trigger concerns of jury unanimity. Burns was charged with a single means of committing aggravated indecent liberties with a child. The jury, following the instructions given in this case, had to unanimously agree that Burns possessed the culpable mental state of an intent to arouse or satisfy sexual desires. Bums concedes that circumstantial evidence allowed the jury to infer that he acted with the intent to satisfy his own sexual desires.
Because this case does not present alternative means and Burns concedes there was evidence of sexual intent, he is not entitled to reversal.
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The opinion of the court was delivered by
McFarland, J.:
This is an appeal from a summary judgment entered by the district court wherein it was held that an employee covered by a collective bargaining agreement may not maintain a tort action against his employer for alleged retaliatory discharge for filing a workers’ compensation claim.
The issue before us is a question of law. The factual background from which this litigation arises may be summarized as follows. Plaintiff Terry Cox was an employee of defendant United Technologies, Essex Group, Inc., in 1982, serving as a fine-wire operator. Plaintiff filed a workers’ compensation claim which was settled on November 4, 1982. Thirteen days later plaintiff was discharged from his employment on the ground he had failed to report for work following the conclusion of his workers’ compensation claim. Prior to plaintiff s termination, a co-worker (Donald Smith) had been terminated on the same ground. Both employees were members of Local Union No. 851, United Rubber, Cork, Linoleum and Plastic Workers of America, and their employment was covered by a collective bargaining agreement. Said agreement contained the provision that an employee would not be terminated except for proper cause and provided grievance procedures, including binding arbitration, for the resolution of complaints and disputes.
Both employees filed grievances based on their terminations. The Smith grievance was concluded first. The arbitrator found that Smith’s discharge was unjust and restored Smith to duty, but denied back pay because Smith had failed to mitigate his position after termination. Plaintiff subsequently settled his grievance on the same basis as the arbitrator’s decision relative to Smith and was restored to duty. On April 20, 1983, plaintiff brought this action against defendant employer seeking, inter alia, actual damages and punitive damages for alleged retaliatory discharge for having filed a workers’ compensation claim. The district court entered summary judgment on the retaliatory discharge claim on the ground that such an action is not available in Kansas to an employee covered by a collective bargaining agreement such as covered plaintiff. Plaintiff s cause of action based upon alleged violation of 42 U.S.C. § 1981 (1982) proceeded to jury trial wherein a verdict was entered in favor of defendant. The sole issue on appeal concerns the propriety of the entry of summary judgment.
The issue before us may be stated as follows:
MAY A CAUSE OF ACTION BE MAINTAINED FOR AN ALLEGED RETALIATORY DISCHARGE BY AN EMPLOYEE WHOSE EMPLOYMENT RELATIONSHIP IS GOVERNED BY A COLLECTIVE BARGAINING AGREEMENT WHICH INCLUDES GRIEVANCE AND ARBITRATION PROCEDURES?
This precise issue is one of first impression in this state. The Court of Appeals, in Murphy v. City of Topeka, 6 Kan. App. 2d 488, 630 P.2d 186 (1981), recognized an action for retaliatory discharge for filing a workers’ compensation claim brought by an employee-at-will. Plaintiff herein asks the court to extend the Court of Appeals’ holding in Murphy to include employees covered by a collective bargaining agreement such as the one before us. Plaintiff argues that a tort action for retaliatory discharge would provide him with a remedy unavailable in a grievance procedure — namely, the right to seek punitive damages.
There is a strong public policy underlying the Workmen’s Compensation Act (K.S.A. 44-501 et seq.) and favoring the worker’s right to avail himself, or herself, of the benefits arising therefrom. An employee-at-will may be discharged with or without cause. An unscrupulous employer could subvert this public policy by placing the employee-at-will in the position of having to choose between filing a workers’ compensation claim or keeping his or her employment. Recognition of the tort of retaliatory discharge for filing of a workers’ compensation claim, by the Court of Appeals in Murphy, judicially created a remedy for a class of employees having no contractual remedy.
Plaintiff s employment is covered by a collective bargaining agreement which permits his employer to discharge him only for “proper cause.” Clearly, a discharge predicated upon an employee having exercised his right to file a workers’ compensation claim would not constitute “proper cause.” The contract herein contains a grievance procedure which includes binding arbitration of grievances. Through the grievance procedure, an improperly discharged employee may be restored to his employment and receive back pay. Valuable health insurance, seniority, and pension rights may be protected through the grievance procedure.
The employee-at-will’s tort remedy does provide relief, at most, of actual and punitive damages and cannot restore the job and the other benefits of continued employment.
In granting summary judgment herein, the district court relied heavily on Cook v. Caterpillar Tractor Co., 85 Ill. App. 3d 402, 407 N.E.2d 95 (1980). In Cook the Illinois Appellate Court was confronted with a similar situation to the one before us. In a prior case the Illinois Supreme Court had recognized a tort cause of action by an employee-at-will who alleged retaliatory discharge for having filed a workers’ compensation claim. The Cook court was asked to extend the prior holding to cover a union employee operating under a collective bargaining agreement. The Cook court declined to do so, stating:
“In Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353, the Illinois Supreme Court stated that where there has been a retaliatory discharge of an employee terminable at will, the discharged employee may bring an action in tort. The reasoning behind the court’s decision is that an employee terminable at will has no recourse against his employer if the employer decides to discharge the employee for filing a workmen’s compensation claim. In the absence of the ability to recover in tort, an employee terminable at will would be forced to choose between continued employment and the workmen’s compensation legally due him. This would have seriously undermined the Workmen’s Compen sation Act, and so the court permitted employees terminable at will to sue in tort for retaliatory discharge.
“The issue in this case is whether Kelsay is applicable to a situation where an employee is not terminable at will, but instead has recourse against an employer under a collective bargaining agreement permitting discharge only for just cause and allowing for arbitration to guarantee the parties’ rights. We believe that it is not. The policy considerations in Kelsay are not present here. In the instant case the employee is protected. As shown above, the discharge provisions of the collective bargaining agreement serve to protect the employee from retaliatory discharge. Thus, the employee is free to apply for workmen’s compensation without worrying that he will have to sacrifice his job to gain those benefits.” 85 Ill. App. 3d at 406.
The rationale of Cook was adopted by two other districts of the Illinois Appellate Court. See Suddreth v. Caterpillar Tractor Co., 114 Ill. App. 3d 396, 449 N.E.2d 203 (1983); Deatrick v. Funk Seeds International, 109 Ill. App. 3d 998, 441 N.E.2d 669 (1982). Likewise, Cook was followed by the United States Court of Appeals when applying Illinois law in Lamb v. Briggs Mfg., a Div. of Celotex Corp., 700 F.2d 1093 (7th Cir. 1983).
After the district court’s entry of summary judgment herein and while the case was on appeal, the Illinois Supreme Court, in Midgett v. Sackett-Chicago, Inc., 105 Ill. 2d 143, 473 N.E.2d 1280 (1984), cert. denied 474 U.S. 909, 88 L. Ed. 2d 243 (1985), held that a union employee could bring a tort action for retaliatory discharge, thereby overruling the prior Illinois Appellate Court decisions precluding such actions. The Illinois Supreme Court concluded that the union emloyees shall have such an action available to them in order to assure complete freedom to exercise their rights under the workers’ compensation laws and to deter employers from wrongful conduct.
A recent case refusing to expand the tort action to union employees is Phillips v. Babcock & Wilcox, 349 Pa. Super. 351, 503 A.2d 36 (1986), a case nearly on point with the instant case. In Phillips, a skilled worker was laid off as part of a general economic layoff. While laid off, he filed a workers’ compensation claim. The worker was not included in the employees recalled to work. He filed a grievance, during the pendency of which he brought suit for retaliatory discharge. Defendant was granted summary judgment. The sole issue before the Pennsylvania Superior Court was, as here, whether a civil action for the tort of wrongful discharge can be maintained by a union employee whose employment relationship is governed by a collective bargaining agreement providing protection from such discharge. In sustaining the trial court and rejecting plaintiff s public policy argument, the Phillips court wrote:
“Appellant and all like-situated employees are not without recourse when faced with indiscriminate discharge even when the discharge violates public policy. The collective bargaining agreement in the instant case provides protection against suspension or discharge without ‘proper cause.’ Surely, in pursuing a grievance under the provisions of the agreement, if appellant can show that his discharge was in retaliation for his filing a workmen’s compensation claim, he will have proved that his discharge was not for ‘proper cause.’ It would appear, therefore, that appellant will then be entitled to the remedies provided in the agreement.
“Furthermore, we are not persuaded by appellant’s argument that the wrongfully discharged at-will employee has greater remedies available in a civil action than does a union employee under a collective bargaining agreement since a civil court could award punitive damages. While the at-will employee may be entitled to punitive damages in a civil action, he does not have the ability to obtain some of the remedies available to union members; such as reinstatement to his position, which is a commonly provided remedy in labor agreements. Thus, we find that a difference in remedies is not enough to justify an extension of the coverage of the wrongful discharge action.
“Finally, in deciding not to extend the wrongful discharge action to employees who are otherwise protected by contract or statute, we must take into consideration the strong public policy which favors the right of parties to enter into contracts. In the instant case, the union and appellee in their agreement decided the remedies that would be available, and provided that those remedies would be final and binding. This intent is expressly set forth in the agreement and, therefore, the remedies available should be preclusive of any others. [Citation omitted.]” 349 Pa. Super, at 354-55.
We believe that the quoted rationales of Phillips v. Babcock & Wilcox, 349 Pa. Super. 351, and Cook v. Caterpillar Tractor Co., 85 Ill. App. 3d 402, are sound notwithstanding the subsequent contrary decision by the Illinois Supreme Court. An employee covered by a collective bargaining agreement, such as before us, precluding discharge except for proper cause and providing a grievance procedure which includes binding arbitration is adequately protected contractually from retaliatory discharge. The public policy of Kansas does not require that the tort of retaliatory discharge judicially recognized for employees-at-will in Murphy v. City of Topeka, 6 Kan. App. 2d 488, be extended to include employees covered by a collective bargaining agreement such as before us.
The judgment is affirmed. | [
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Per Curiam:
This is a contested original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Craig E. Collins, of Topeka, an attorney admitted to the practice of law in Kansas in 1988.
On December 8, 2011, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent’s motion for additional time to answer was granted, and he filed an answer on January 12, 2012. A hearing was held on the complaint before a panel of tire Kansas Board for Discipline of Attorneys on January 25, 2012, where the respondent was personally present. The hearing panel determined that respondent violated KRPC 1.3 (2011 Kan. Ct. R. Annot. 433) (diligence), 1.15(a) and (d)(1) (2011 Kan. Ct. R. Annot. 519) (safekeeping property and preserving client funds), 8.1(b) (2011 Kan. Ct. R. Annot. 609) (failure to respond to lawful demand for information from disciplinary authority), 8.4(g) (2011 Kan. Ct. R. Annot. 618) (engaging in conduct adversely reflecting on lawyer’s fitness to practice law), and Supreme Court Rule 207(b) (2011 Kan. Ct. R. Annot. 314) (failure to cooperate in disciplinary investigation).
The panel heard evidence in two separate complaints. In the first complaint, DAI1202, the panel found violations of the KRPC due to overdrafts on the respondent’s attorney trust account and his failure to cooperate during the investigation of the overdrafts. In the second complaint, DA11399, the panel found that the respondent violated the KRPC by not diligently preparing tax returns for complainants, Pete and Paula Hanes. The panel made the following findings of fact and conclusions of law, together with its recommendation to this court:
“FINDINGS OF FACT
“DA11202
“9. On May 26, 2010, pursuant to KRPC 1.15(f)(1), Core First Bank & Trust in Topeka, Kansas, reported to the Disciplinary Administrator that the Respondent overdrew his trust account.
“10. KRPC 1.15(f)(1) provides:
‘(f)(1) Every federal or state chartered or licensed financial institution referred to in KRPC 1.15(d)(1) shall be approved as a depository for lawyer trust accounts if it files with the Disciplinary Administrator an agreement, in a form provided by the Disciplinary Administrator, to report to the Disciplinary Administrator in tire event any properly payable instrument is presented against a lawyer trust account containing insufficient funds, whether or not the instrument is honored.’
“11.On July 21, 2010, the Disciplinary Administrator sent the Respondent an overdraft notification regarding his trust account. The overdraft notification contained information that a $200.00 debit had been presented for payment on the Respondent’s trust account when the available balance was $6.00. [Footnote: At the hearing on this matter, the Respondent testified that he did not authorize the credit card company to debit his account by $200.00. However, the Respondent’s testimony in his regard lacks credibility. It is unbelievable to the Hearing Panel that a company would agree to forego collection on the Respondent’s client’s debt by the Respondent simply providing an account number and routing number. Clearly, the company collected the information regarding the Respondent’s bank’s routing number and his attorney trust account number with the intent to satisfy the Respondent’s client’s debt.] The Disciplinary Administrator directed the Respondent to provide a written explanation of the overdraft within 15 days. The Respondent failed to do so.
“12. On June 1, 2010, Core First Bank & Trust reported to the Disciplinary Administrator that the Respondent again overdrew his trust account. On June 15, 2010, the Disciplinary Administrator sent the Respondent an overdraft notification regarding his trust account. The overdraft notification indicated that the $200.00 debit referred to above was presented to the bank for payment a second time. At that time the $200.00 debit was presented to the bank the second time, tire Respondent’s trust account had an available balance of $3.00. The Disciplinary Administrator directed the Respondent to provide an explanation for the overdraft within 15 days. The Respondent failed to do so.
“13. On July 23, 2010, Core First Bank & Trust reported that tire Respondent overdrew his trust account for a third time. On August 19, 2010, the Disciplinary Administrator forwarded the Respondent a third overdraft notification regarding his trust account. The overdraft notification indicated that a $330.00 check had been presented for payment on die Respondent’s trust account when die Respondent had an available balance of $29.88. The Disciplinaiy Administrator, again, directed the Respondent to provide a written explanation of the overdraft within 15 days. The Respondent failed to do so.
“14. On October 1, 2010, the Respondent wrote a check in the amount of $275.00 drawn on his trust account made payable to die Clerk of the Appellate Court for his annual attorney registration fee and an associated late fee. At the time the check was presented for payment, there was an available balance of $4.88. Core First Bank & Trust returned the check. On October 4, 2010, Core First Bank & Trust reported to the Disciplinary Administrator that the Respondent overdrew Ills account for a fourdi time.
“15. On October 6, 2010, die Respondent wrote a check for $170.00 to the Kansas Continuing Legal Education Commission for the annual fee and a late fee. At the time the $170.00 check was presented for payment, the Respondent’s trust account was overdrawn by $20.12. On October 7, 2010, Core First Bank & Trust reported to the Disciplinary Administrator that the Respondent overdrew his trust account for a fifth tíme.
“16. On October 8, 2010, Core First Bank & Trust reported that the Respondent overdrew his trust account for a sixtii time. The $275.00 check written to die Clerk of the Appellate Courts was presented for a second time for payment. At die time die check was presented for a second time for payment, the Respondent’s trust account was already overdrawn by $45.12.
“17. Because the Respondent repeatedly overdrew his trust account and because the Respondent failed to provide written explanations as directed, die Disciplinary Administrator docketed a complaint against the Respondent. On October 13, 2010, the Disciplinaiy Administrator wrote to the Respondent, informed him that a complaint had been docketed for investigation, and directed the Respondent, again, to provide a written response to the complaint. The Disciplinary Administrator directed the Respondent to provide a written response within 10 days. The Respondent failed to provide a written response widiin 10 days.
“18. The Disciplinary Administrator appointed Martin L. Miller, Special Investigator for the Disciplinary Administrator, to investigate the complaint. Initially, Mr. Miller attempted to contact the Respondent by telephone. Each time Mr. Miller called the Respondent’s office telephone number, Mr. Miller received a busy signal. After a few days of attempting to reach the Respondent by telephone, Mr. Miller went to the Respondent’s office and left his business card. Later that day, the Respondent called and left a voice mail message for Mr. Miller. Additionally, the Respondent sent Mr. Miller an electronic mail message.
“19. Eventually, on December 3, 2010, the Respondent provided written responses to the complaints.
“20. At the hearing on this matter, the Respondent testified that during the time in question, he did not have any client funds in his attorney trust account.
“Standard of Proof
“21. ‘Attorney misconduct must be established by clear and convincing evidence.’ In re Patterson, 289 Kan. 131, 133-34, 209 P.3d 692 (2009). ‘Clear and convincing evidence is “evidence that causes the fact finder to believe that tire truth of the facts asserted is highly probable.’ ” (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]). Thus, in order for the Hearing Panel to conclude that the Respondent violated tire Kansas Rules of Professional Conduct, the Hearing Panel must conclude that truth of the facts asserted to support the violations is highly probable.
“KRPC 1.15
“22. KRPC 1.15 provides:
‘(a) A lawyer shall hold property of clients or third persons that is in a laioyer’s possession in connection with a representation separate from the lawyer’s own property. Funds shall be kept in a separate account maintained in the state of Kansas. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.
‘(d) Preserving identity of funds and property of a client.
(1) All funds of clients paid to a lawyer or law firm, including advances for costs and expenses, shall be deposited in one or more identifiable accounts maintained in the State of Kansas with a federal or state chartered or licensed financial institution and insured by an agency of the federal or state government, and no funds belonging to the lawyer or lato firm shall be deposited therein except as follows:
(i) Funds reasonably sufficient to pay bank charges may be deposited therein.
(ii) Funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be deposited therein, but the portion belonging to the lawyer or law firm may be withdrawn when due unless the right of the lawyer or law firm to receive it is disputed by the client, in which event the disputed portion shall not be withdrawn until the dispute is finally resolved.’ (Emphasis added.)
“23. Because the Respondent did not have any client funds in his attorney trust account, it is clear that the Respondent had personal funds in his attorney trust account. Thus, the Hearing Panel concludes that the Respondent violated KRPC 1.15(a) and KRPC 1.15(d)(1) by holding personal funds in his attorney trust account.
“KRPC 8.4(g)
“24. ‘It is professional misconduct for a lawyer to . . . engage in any other conduct that adversely reflects on tire lawyer’s fitness to practice law.’ KRPC 8.4(g). In this case, the Respondent overdrew his attorney trust account on six occasions. Three of the overdrafts were the result of the Respondent using his attorney trust account for expenses associated with maintaining his license to practice law. Additionally, tire Respondent knew that at the time he wrote the checks that there were insufficient funds in the account to cover the checks. The Respondent’s use of his trust account in this fashion adversely reflects on his fitness to practice law. As such, the Healing Panel concludes that the Respondent violated KRPC 8.4(g).
“KRPC 8.1(b) and Kan. Sup. Ct. R. 207(b)
“25. Lawyers must cooperate in disciplinary investigations. KRPC 8.1(b) and Kan. Sup. Ct. R. 207(b) provide the requirements in this regard. ‘[A] lawyer in connection with a . . . disciplinary matter, shall not:. . . knowingly fail to respond to a lawful demand for information from [a] . . . disciplinary authority,...’ KRPC
8.1(b).
‘It shall be the duty of each member of the bar of this state to aid the Supreme Court, the Disciplinary Board, and the Disciplinary Administrator in investigations concerning complaints of misconduct, and to communicate to the Disciplinary Administrator any information he or she may have affecting such matters.’ Kan. Sup. Ct. R. 207(b).
The Respondent knew that he was required to forward written responses—he had been repeatedly instructed to do so in writing by tire Disciplinary Administrator. Because the Respondent knowingly failed to provide timely written responses to the overdraft notices, the Hearing Panel concludes that the Respondent violated KRPC 8.1(b) and Kan. Sup. Ct. R. 207(b).
“DA11399
“26. Pete Hanes retained the Respondent to provide legal representation, including the preparation of Mr. Hanes’ income tax returns and business transactions. Prior to tax year 2001, the Respondent prepared and filed the income tax returns without delay.
“27. In January, 2000, Mr. Hanes married Paula Hanes. Mr. and Mrs. Hanes retained the Respondent to continue to prepare their federal and state income tax returns. Mr. and Mrs. Hanes timely provided tire Respondent with the necessary information to prepare their federal and state income tax returns for 2001, 2002, 2003, 2004, and 2005. [Footnote: At the healing on the formal complaint, the Respondent testified that he could not prepare the tax returns because Mr. and Mrs. Hanes failed to provide him with required information that he requested. Mr. and Mrs. Hanes testified that with regard to the 2001, 2002, 2003, 2004, 2005, 2008, and 2009 tax years, they timely provided him with all requested information. The Respondent’s testimony on this subject lacks credibility.] However, the Respondent failed to prepare Mr. and Mrs. Hanes’ federal and state income tax returns for 2001, 2002, 2003, 2004, and 2005.
“28. Beginning in approximately 2005, Mr. and Mrs. Hanes began receiving correspondence from the IRS and the Kansas Department of Revenue regarding their failure to file income tax returns and pay their income taxes. Each time Mr. and Mrs. Hanes received correspondence from the IRS or the Kansas Department of Revenue, Mr. Hanes personally delivered the correspondence to the Respondent.
“29. Throughout the period of representation, Mr. Hanes placed telephone calls to the Respondent. Many times when Mr. Hanes called, the Respondent’s voice mail box would be full. When Mr. Hanes was able to leave a message for the Respondent, the Respondent failed to return many of the telephone calls. On the occasions Mr. Hanes was able to reach the Respondent, many times the Respondent would attempt to change the subject from a discussion of the completion of the taxes to other subject matters.
“30. Mr. and Mrs. Hanes questioned the Respondent regarding the status of the preparation of the 2001, 2002, 2003, 2004, and 2005 federal and state income tax returns. The Respondent repeatedly provided Mr. and Mrs. Hanes with excuses for his failure to complete the income tax returns. Additionally, the Respondent promised Mr. and Mrs. Hanes that taxes were nearly complete and that he would be completing them shortly.
“31. In 2006, Mrs. Hanes started a business providing natural hoof care for horses. At the conclusion of 2006, it took Mrs. Hanes some time to get the income and expense information together from her business for the preparation of their taxes.
“32. In 2007, the Respondent told Mr. and Mrs. Hanes that he needed to have income and expense information from 2006 to complete years 2001 through 2005. Mrs. Hanes questioned why the Respondent could not complete the 2001 through 2005 taxes without the 2006 income and expense information.
“33. Regarding the 2006 and 2007 tax years, it took Mrs. Hanes six months to a year to provide the Respondent with the necessary income and expense information.
“34. Mrs. Hanes timely provided the Respondent with the necessaiy income and expense information for tax years 2008 and 2009.
“35. In February, 2011, Mr. and Mrs. Hanes met with the Respondent. The Respondent informed Mr. and Mrs. Hanes that he had completed their tax returns for 2003 and 2004. The Respondent assured Mr. and Mrs. Hanes that he would complete the remainder of the tax returns by the following day at 5:00 p.m. The Respondent offered to pay Mrs. Hanes $150.00 and provide her with a steak dinner if tire tax returns were not completed by the following day at 5:00 p.m. Mrs. Hanes responded, stating that she would pay the Respondent $250.00 and provide him with a steak dinner if the taxes were completed by tire following day at 5:00 p.m.
“36. The next day after 5:00 p.m., Mr. Hanes called the Respondent and the Respondent told Mr. Hanes that he did not complete the tax returns.
“37. The following morning at 8:00 a.m., Mrs. Hanes went to the Respondent’s home/office. She was met at the door by the Respondent’s son, who indicated that his father was still asleep. Mrs. Hanes informed the Respondent’s son that she wished to pick up their file. Mrs. Hanes told the Respondent’s son that she would return at 11:00 a.m. to retrieve the file. At 11:00 a.m., Mrs. Hanes returned and picked up tire file.
“38. Mr. Hanes took the file to Jerry Saskowski and retained Mr. Saskowski to complete the federal and state income tax returns. Mr. Saskowski completed the returns. However, before the returns were signed and filed, on April 28,2011, the Kansas Department of Revenue came to Mr. Hanes’ home and place of business and seized many items of personal property.
“39. While representatives of the Kansas Department of Revenue remained at Mr. Hanes’ property, Mr. Saskowski brought the completed tax returns and Mr. and Mrs. Hanes signed the returns in front of the representatives of the Kansas Department of Revenue. However, the seizure continued. The seizure of their personal property cost Mr. and Mrs. Hanes approximately $10,930.00 in out-of-pocket expenses. Additionally, Mr. and Mrs. Hanes also suffered additional expenses.
“40. The Respondent never explained the meaning of tax levy or tax warrant to Mr. and Mrs. Hanes. Additionally, the Respondent never explained that the IRS or the Kansas Department of Revenue could seize personal property as a result of their failure to timely file and pay their taxes. Finally, the Respondent never explained that if Mr. and Mrs. Hanes were entitled to a refund of withheld taxes for a given year that they would not be able to receive die refund if the return was filed more than diree years late.
“41. As a result of the Respondent’s lack of diligence, Mr. and Mrs. Hanes lost $11,775.18 in refunds, as follows:
2001 $1,493.85
2002 $3,585.13
2003 $985.04
2004 $4,179.16
2005 $1,532.00
Total $11,775.18
“KRPC 1.3
“42. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. The Respondent failed to diligently and promptly represent Mr. and Mrs. Hanes by failing to complete dieir 2001, 2002, 2003, 2004, 2005, 2008, and 2009 federal and state income tax returns. Because the Respondent failed to act with reasonable diligence and promptness in representing Mr. and Mrs. Hanes, the Hearing Panel concludes that the Respondent violated KRPC 1.3.
“KRPC 8.4(g)
“43. ‘It is professional misconduct for a lawyer to . . . engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law.’ KRPC 8.4(g). Failing, for a period of 10 years, to complete Mr. and Mrs. Hanes’ tax returns directly reflects adversely on the Respondent’s fitness to practice law. The Hearing Panel concludes that the Respondent violated KRPC 8.4(g).
“AMERICAN BAR ASSOCIATION “STANDARDS FOR IMPOSING LAWYER SANCTIONS
“44. In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“45. Duty Violated. The Respondent violated his duly to his clients to diligently represent them. Additionally, the Respondent violated his duty to the legal profession to cooperate in disciplinary investigations.
“46. Mental State. The Respondent knowingly violated his duties.
“47. Injury. As a result of the Respondent’s misconduct, the Respondent caused actual, serious financial injury to his clients. Further, tire Respondent’s misconduct caused actual injury to the legal profession.
“48. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“49. A Pattern of Misconduct. The Respondent has engaged in a pattern of misconduct. For a period of 10 years, the Respondent failed to complete the federal and state income tax returns for Mr. and Mrs. Hanes.
“50. Multiple Offenses. The Respondent committed multiple rule violations. The Respondent violated KRPC 1.3, KRPC 1.15, KRPC 8.1, KRPC 8.4, and Kan. Sup. Ct. R. 207. Accordingly, the Hearing Panel concludes that the Respondent committed multiple offenses.
“51. Bad Faith Obstruction of the Disciplinary Proceeding by Intentionally Failing to Comply with Rules or Orders of the Disciplinary Process. The Disciplinary Administrator first requested that the Respondent provide a written explanation regarding the overdrafts on his attorney trust account in June, 2010. The Respondent failed to provide the written explanations until December, 2010.
“52. Refusal to Acknowledge Wrongful Nature of Conduct. During the hearing on the formal complaint, the Respondent made many excuses for what happened. However, tire Respondent’s excuses consisted of placing the blame elsewhere. The Respondent failed to take responsibility for any of his misconduct and refused to acknowledge that he violated the Kansas Rules of Professional Conduct. The Respondent’s failure to acknowledge tire wrongful nature of his conduct significantly aggravates the misconduct in this case.
“53. Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in the State of Kansas in 1988. At tire time the Respondent’s misconduct began in 2001, the Respondent had been practicing law for more than 14 years. Additionally, the Respondent’s misconduct spanned a period of 10 years.
“54. Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, tire Hearing Panel, in this case, found the following mitigating circumstance present:
“55. Absence of a Prior Disciplinary Record. The Respondent has not previously been disciplined.
“56. In addition to the above-cited factors, tire Hearing Panel has thoroughly examined and considered the following Standards:
‘4.22 Suspension is generally appropriate when:
(a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or
(b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client.
‘7.2 Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional, and causes injury or potential injury to a client, the public, or the legal system.’
“RECOMMENDATION
“57. The Disciplinary Administrator recommended that the Respondent be suspended from tire practice of law for one year. Additionally, the Disciplinary Administrator recommended that, prior to reinstatement, the Respondent be required to undergo a reinstatement hearing pursuant to Kan. Sup. Ct. R. 219.
“58. The Respondent made no recommendation regarding discipline. The Respondent simply argued that no client funds were in his attorney trust account and that he would not prepare tax returns that were not correct.
“59. Accordingly, based upon the findings of fact, conclusions of law, and the Standards listed above, the Hearing Panel unanimously recommends that the Respondent be suspended for a period of one year. The Hearing Panel further recommends that prior to reinstatement, the Respondent be required to undergo a hearing pursuant to Kan. Sup. Ct. R. 219.
“60. Costs are assessed against the Respondent in an amount to be certified by the Office of the Disciplinary Administrator.”
Discussion
In a disciplinary proceeding, this court considers the evidence, the findings of fact and conclusions of law of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, the discipline to be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009); see Supreme Court Rule 211(f) (2011 Kan. Ct. R. Annot. 334). Clear and convincing evidence is “ ‘evidence that causes the factfinder to believe that “the truth of the facts asserted is highly probable.” ’ ” Lober, 288 Kan. at 505 (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]). When the court assesses the existence of clear and convincing evidence, it refrains from weighing conflicting evidence, assessing witness credibility, or redetermining questions of fact. See In re B.D.Y., 286 Kan. 686, 699, 187 P.3d 594 (2008).
With this standard of review as our guide, we address in turn each of respondent’s exceptions to the hearing panel’s final hearing report.
There is clear and convincing evidence that respondent violated KRPC 1.15.
Respondent argues there is no violation of KRPC 1.15 because he had no client money in his trust account. He therefore suggests his personal funds there could not have been commingled. This is an issue of rule interpretation; therefore, we exercise unlimited review. See In re Bryan, 275 Kan. 202, 211, 61 P.3d 641 (2003) (“Interpretation of the Kansas Rules of Professional Conduct is a question of law over which this court has unlimited review.”). KRPC 1.15(d)(1) (2011 Kan. Ct. R. Annot. 519) prohibits the placing of personal funds in a client trust account, whether commingled or not. It states:
“(d) Preserving identity of funds and property of a client.
(1) All funds of clients paid to a lawyer or law firm, including advances for costs and expenses, shall be deposited in one or more identifiable accounts maintained in the State of Kansas with a federal or state chartered or licensed financial institution and insured by an agency of the federal or state government, and no funds belonging to the lawyer or law firm shall be deposited therein. . . .” (Emphasis added.)
In support of his argument respondent relies on a Georgia rule that similarly states, “No personal funds shall ever be deposited in a lawyer’s trust account. . . .” Georgia Rules of Professional Conduct R. 1.15(II)(b). Respondent argues that the Kansas rules do not contain such a specific proclamation. We disagree. KRPC 1.15(d) states that “no funds belonging to the lawyer or law firm shall be deposited” in a trust account. While there are two exceptions to that rule, neither applies in this case.
There is clear and convincing evidence that respondent kept personal funds in his client trust account. He admits that he used personal funds to pay his continuing legal education (CLE) commission fees, his Kansas attorney registration fees, and fees to the Kansas Bar Association for attending a CLE all out of his trust account. We adopt the panel’s conclusion that respondent violated KRPC 1.15.
There is clear and convincing evidence that respondent violated KRPC 8.1(b) and Supreme Court Rule 207(b).
KRPC 8.1(b) (2011 Kan. Ct. R. Annot. 609) and Supreme Court Rule 207(b) (2011 Kan. Ct. R. Annot. 314) require an attorney to respond to the Disciplinary Administrator’s requests and to comply with the investigations of misconduct. Here, the hearing panel found clear and convincing evidence that respondent did not respond to the Disciplinary Administrator’s letters of June, July, August and October of 2010 until December 2010.
Respondent first argues he did not have to comply with these rules because there was no violation of KRPC 1.15. But an attorney’s failure to cooperate under KRPC 8.1(b) is not dependent on an underlying violation of KRPC 1.15. The duty to cooperate is a separate independent duty.
Respondent next argues extenuating circumstances existed. He testified at the hearing that at the time of the returned checks he was going through rough financial and personal times. He had been evicted from his office, was unable to obtain some office supplies, and his father had been ill. But respondent admitted that he could have contacted the Disciplinary Administrator by phone or letter and explained his situation without waiting for months to pass. The panel’s finding that Collins failed to cooperate is supported by clear and convincing evidence. See In re Lober, 276 Kan. 633, 636-37, 78 P.3d 442 (2003). We therefore adopt the panel’s conclusion that respondent violated KRPC 8.1(b) and Supreme Court Rule 207(b).
There is clear and convincing evidence that respondent violated KRPC 1.3 and 8.4(g).
Respondent next argues that Pete and Paula Hanes were not credible witnesses. He further contends he was unable to timely file their tax returns because the Hanes failed to provided him with the necessaiy information. But Pete Hanes, Paula Hanes, and Jerry Saskowski all testified that the information the Hanes provided to respondent was acceptable. In addition, Saskowski testified he was able to complete the Hanes’ back tax returns based on the information previously provided to Collins. We do not “weigh conflicting evidence, pass on credibility of witnesses, or redetermine questions of fact.” In re Wiles, 289 Kan. 201, 203, 210 P.3d 613 (2009).
Respondent also argues that the panel erred in denying his request to admit Exhibit B—the Hanes’ 2001 tax return that respondent allegedly prepared. Because tire record shows that respondent did not offer Exhibit B into evidence at the hearing, the panel did not err in failing to admit the exhibit.
Finally, respondent contends that Pete and Paula Hanes failed to comply with the subpoena duces tecum. Pete Hanes testified, however, that he did not bring the subpoenaed information because it was not in his possession. And Paula Hanes testified that she brought all available information. Respondent does not explain what subpoenaed information was withheld or how its absence hurt his case other than his conclusory statement that if it had been admitted the complaint would have been dismissed. We adopt the panel’s conclusion that respondent violated KRPC 1.3 (2011 Kan. Ct. R. Annot. 433) and 8.4(g) (2011 Kan. Ct. R. Annot. 618).
Sanction
After rejecting respondent’s exceptions to the panel’s final hearing report, we move to the question of appropriate sanction for his violations of KRPC 1.3, 1.15(a) and (d)(1), 8.1(b), 8.4(g), and Supreme Court Rule 207(b).
At the panel hearing, the Disciplinary Administrator advocated for a 1-year suspension from the practice of law. Respondent made no disciplinary recommendation. The panel also recommended a 1-year suspension from the practice of law. Both the Disciplinary Administrator and panel also recommend that before reinstatement, the respondent be required to undergo a hearing under Kan. Sup. Ct. R. 219 (2011 Kan. Ct. R. Annot. 380).
We agree suspension is the appropriate discipline. Over a period of 9 years respondent failed to perform legal services which resulted in his clients suffering an unnecessary and expensive tax seizure. ABA Standards for Imposing Lawyer Sanctions § 4.42 (2003) (stating “Suspension is generally appropriate when: (a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or (b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client.”). We hold a 1-year suspension is the appropriate discipline given the nature of respondent’s offenses, as well as the undisputed findings that respondent failed to perform services for his clients and misused his client trust account. In addition, we require a hearing under Supreme Court Rule 219 if respondent wishes to seek reinstatement after the suspension period.
Among the other issues for the reinstatement hearing panel to consider under Supreme Court Rule 219(f), the panel specifically must consider and report to this court its evaluation as to: (1) respondent’s medical, physical, and emotional health as it may impact his fitness to return to the practice of law; (2) if reinstatement is recommended, whether respondent’s practice should be monitored by another attorney; and (3) if monitoring is recommended, any appropriate terms and conditions, including the time period for monitoring.
It Is Therefore Ordered that respondent Craig E. Collins be suspended from the practice of law in die state of Kansas for a period of 1 year, beginning on the date of filing this opinion.
It Is Further Ordered that before reinstatement, the respondent be required to comply with Supreme Court Rule 218 (2011 Kan. Ct. R. Annot. 379) and undergo a hearing pursuant to Supreme Court Rule 219 (2011 Kan. Ct. R. Annot. 380).
It Is Further Ordered that the costs of this proceeding shall be assessed to the respondent and that this opinion be published in the official Kansas Reports. | [
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The opinion of the court was delivered by
Johnson, J.:
On direct appeal, Elton Simmons challenged his conviction for aggravated battery, arguing that the district court committed reversible error by refusing to instruct the jury on simple battery as a lesser included offense. A panel of the Court of Appeals agreed, reversed his conviction, and remanded for a new trial. State v. Simmons, 45 Kan. App. 2d 491, 492, 249 P.3d 15 (2011). The State petitions for review, asserting that the panel applied an incomplete standard of review and, alternatively, that the panel improperly interpreted the skip rule. We affirm the Court of Appeals’ reversal and remand for a new trial.
Factual and Procedural History
The criminal charges against Simmons arose out of an altercation with his girlfriend, Camille Terry, which allegedly turned physical. A more detailed description of the facts can be found in the Court of Appeals opinion. For our purposes, a brief overview will suffice.
The fight involved two confrontations: the first one outside of Terry’s residence during which Simmons was alleged to have punched Terry after she slapped him, and the second one inside a neighbor’s house where Simmons allegedly punched Terry in the nose and forehead while she was talking by telephone with a 911 operator. Terry received treatment that night for a broken nose and a forehead cut requiring nine stitches. Later, she had surgery to correct damage from the broken nose. She claimed those injuries were sustained during the second, inside-the-house confrontation.
Ultimately, Simmons was charged with a number of crimes, the relevant ones here being misdemeanor battery for the first punches delivered outside the house and severity level 4 aggravated batteiy for allegedly causing great bodily harm or disfigurement with the later punches delivered inside the house. At trial, Simmons claimed self-defense for the outside punches and testified that he did not hit Terry at all during the inside confrontation.
The trial court held an instruction conference the last day of trial, which resulted in the giving of instructions on lesser degrees of felony aggravated battery as lesser included offenses. However, at the instruction conference, Simmons did not request an instruction on misdemeanor simple batteiy as a lesser included offense of the felony battery charge. Before the jury was instructed, Simmons’ attorney did request the simple battery lesser included offense instruction, and the prosecutor agreed that it should be given. Unfortunately, the district court declined to consider the joint request, stating: “I’m not going to. You guys have had three shots at instructions, and we have to get going.”
The jury found Simmons guilty of simple batteiy as charged for the first, outside punches. On the felony count, the jury did not find that Simmons had caused great bodily harm or disfigurement to Terry under the severity level 4 aggravated battery, as charged. Instead, the jury found Simmons guilty of the lesser included offense of level 7 aggravated batteiy, based upon Simmons having caused bodily harm to Terry in any manner whereby great bodily harm, disfigurement, or death can be inflicted.
On appeal to the Court of Appeals, Simmons argued that the district court erred in failing to instruct the jury on simple batteiy as a lesser included offense of the felony aggravated battery charge. The Court of Appeals agreed and further found that the skip rule did not save the error from being reversible. Simmons, 45 Kan. App. 2d at 507. We granted the State’s petition for review on the lesser included offense and skip rule issues.
Lesser Included Offense Instruction
The State first contends that the Court of Appeals applied an incomplete standard of review when it declared: “A trial court is obligated to instruct on any lesser included offense on which a jury might reasonably return a verdict [after] considering the evidence in a light most favorable to the defendant.” Simmons, 45 Kan. App. 2d at 499. Specifically, citing to a prior case with the same name, State v. Simmons, 282 Kan. 728, 741, 148 P.3d 525 (2006), the State asserts that the complete and correct standard is that a “criminal defendant has a right to an instruction on all lesser included offenses supported by the evidence as long as . . . the evidence, when viewed in the light most favorable to the defendant’s theory, would justify a jury verdict in accord with that theory.”
In other words, the State contends that the appropriateness of a lesser included offense instruction is measured against the defendant’s theory of defense, i.e., a district court does not err in refusing to give a requested instruction that is inconsistent with the defendant’s theory of defense. Applying that standard here, the State argues that the requested instruction on simple battery was inconsistent with Simmons’ trial strategy of denying that he hit his girlfriend during the second confrontation in the house.
We would first note that the State appears to mislabel the test for determining when a trial court must give a lesser included offense instruction as a standard of review. Review standards deal with the level of deference an appellate court affords to the trial court, rather than the test or basis for determining the merits of the issue. That shortcoming is certainly understandable, given that our appellate courts have not always been crystal clear or consistent in identifying standards of review or in distinguishing them from tests for reversibility when dealing with instruction issues. See Hodgldnson, Clear as MudP “Clearly Erroneous” as a Standard of Review for Instructional Claims, Kansas Bar Association Appellate Practice Newsletter (Spring 2012). In State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012), this day decided, we set forth an analytical framework for instructional issues with corresponding standards of review:
“For jury instruction issues, the progression of analysis and corresponding standards of review on appeal are: (1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether diere was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine 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).”
We will endeavor to apply that process to the facts of this case. First, exercising unlimited review, we are unable to find any impediment to our appellate jurisdiction and the issue appears to have been properly preserved for a full consideration of the merits on appeal. Simmons properly requested the lesser included offense instruction “before the jury [retired] to consider its verdict,” as required by K.S.A. 22-3414(3). The district court’s imposition of a more restrictive timeline for the requesting of lesser included offense instructions will not foreclose or restrict appellate review. Ironically, any few moments saved at the first trial will certainly pale in comparison to the time and effort required to rectify any error on appeal.
Next, looking to the legal appropriateness of the instruction, we find that, as a matter of law, simple battery is a lesser included offense of severity level 4 aggravated battery. Under K.S.A. 21-3107(2)(a), “[a] lesser included crime” is defined as “[a] lesser degree of tire same crime.” Obviously, misdemeanor battery is a lesser degree of the crime of severity level 4 felony aggravated battery. See, e.g., State v. Warbritton, 211 Kan. 506, 507, 506 P.2d 1152 (1973) (“state concedes that the offense of battery is a lesser included offense of aggravated battery”). The State does not argue otherwise.
Instead, for its legal argument, the State manufactures a rule of law, ostensibly divined from our prior decision in Simmons, 282 Kan. at 741-42, that
“[i]n order to be entitled to a lesser included instruction, three factors must coincide: (1) the requested instruction must be of a lesser degree with respect to tire crime charged; (2) the defendant’s theory of defense must not be inconsistent with a conviction based upon the requested lesser included instruction; and (3) the evidence at trial must not odierwise exclude a theory of guilt on the lesser offense.”
The State then does not challenge the existence of its first and third factors; rather, it relies on its second factor by arguing that a simple battery instruction was inconsistent with Simmons’ “I-did-not-hit-her” defense and, therefore, Simmons was not entitled to have the simple batteiy instruction. We do not agree that a consistent defense theory is a condition precedent to the entitlement to a lesser included offense instruction.
The Kansas Legislature has codified a trial court’s duty to instruct on lesser included offenses. The test for when the duty arises is “where there is some evidence which would reasonably justify a conviction of some lesser included crime,” and a constraint on judicial discretion is indicated by the mandatory language directing that “the judge shall instruct the jury as to the crime charged and any such lesser included crime.” (Emphasis added.) K.S.A. 22-3414(3); see State v. Cordray, 277 Kan. 43, 53-55, 82 P.3d 503 (2004). We have held that the evidence which would support a conviction on a lesser included crime is not restricted to that which was proffered by the defense, but rather it can include evidence presented by the State, as well. State v. Coleman, 253 Kan. 335, 354, 856 P.2d 121 (1993). Here, the State appears to concede that the evidence presented at trial was sufficient to reasonably justify a conviction for simple batteiy. That is all that the statute requires.
Perhaps more fundamentally, a defendant has a constitutional right to present his or her theory of defense and, in that regard, “ ‘[a] defendant is entitled to instructions on the law applicable to his or her theory of defense if there is evidence to support the theory.’ ” State v. Anderson, 287 Kan. 325, 334, 197 P.3d 409 (2008). But we have also clarified that a defendant is not constrained to presenting only one theory of defense; “inconsistent theories of defense are permissible.” State v. Trussell, 289 Kan. 499, 505, 213 P.3d 1052 (2009). Accordingly, it would be contradictory to allow a defendant to present inconsistent theories of defense, but refuse to instruct the jury on the defendant’s theories.
Accordingly, we disagree with the State’s premise that a theory of defense can negate the trial court’s obligation to instruct on a lesser included offense, where the evidence was sufficient to require such an instruction under K.S.A. 22-3414(3). That is not to say that the defense theory has no bearing on instructions. One might well envision a circumstance in which the defendant’s theory of defense could have a bearing upon whether an instructional error was harmless. But the defendant’s theory of defense does not trump the requirements of K.S.A. 22-3414(3).
We move now to a determination of whether the evidence was sufficient to support a conviction for simple batteiy, viewing the evidence in the light most favorable to Simmons. Under K.S.A. 21-3412, simple battery can be committed in two ways: “(1) Intentionally or recklessly causing bodily harm to another person; or (2) intentionally causing physical contact with another person when done in a rude, insulting or angry manner.” Here, the jury found sufficient evidence to convict Simmons of severity level 7 aggravated batteiy based upon his “intentionally causing bodily harm to another person ... in any manner whereby great bodily harm, disfigurement or death can be inflicted.” K.S.A. 21-3414(a)(l)(B). The same evidence that supported the intentional causing of bodily harm for the felony charge would support the intentional causing of bodily harm for simple battery.
The only possible question would center around the manner in which Simmons inflicted the bodily harm. We have repeatedly held that establishing the difference between harm and great bodily harm is a decision for the jury. State v. Green, 280 Kan. 758, 765, 127 P.3d 241, cert. denied 549 U.S. 913 (2006) (“Except for a few specific injuries that have been declared to be great bodily harm as a matter of law, the question of whether an injury constitutes great bodily harm is a question of fact for the jury to decide.”); see generally State v. Wagner, 248 Kan. 240, 245-46, 807 P.2d 139 (1991) (trial court erred in failing to instruct on simple batteiy as a lesser included offense where evidence showed that defendant hit victim on head with a pistol); State v. Vessels, No. 96,421, 2008 WL 1847374, at "3-4, 7 (Kan. App. 2008) (unpublished opinion) (concluding that great bodily harm may not be automatically as sumed where the defendant pulled the victim’s arm, twisting hard enough to break it, as well as hit her with a metal baton). Likewise, assessing the manner in which the bodily harm was inflicted should generally be a question for the jury to decide. Here, the juiy was precluded from fulfilling its role as factfinder. Therefore, the district court erred in refusing to give the requested lesser included offense instruction on simple battery.
The final step is to determine whether the district court’s error was harmless. Pursuant to State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012), we look to whether there was a “reasonable probability that the error [affected] the outcome of the trial in light of the entire record.” In the present case, the jury clearly did not believe Simmons’ defense that he did not hit Terry inside the house. Yet, reviewing the facts in favor of Simmons, the same juiy could have decided that the punches were not delivered in a manner which could cause great bodily harm, if they had been given that choice with a simple bat-teiy instruction. As the Court of Appeals noted, the juiy did, by acquitting Simmons of severity level 4 aggravated batteiy, reject the allegation that he caused great bodily harm to Teriy. That rejection would support a reasonable probability that the juiy would have also found that the manner in which Simmons inflicted the bodily harm was not amenable to the infliction of great bodily harm, disfigurement, or death, i.e., a reasonable probability that the jury would have found Simmons committed a simple battery. Therefore, we cannot declare the error to be harmless.
Skip Rule
Alternatively, the State argues that the panel’s interpretation of the skip rule was an improper reformulation of the rule that, as previously interpreted, would have insulated Simmons’ conviction from reversal. The interpretation of a court-made rule obviously presents a legal question over which we exercise unlimited review. Cf. McIntosh v. Kansas Dept. of Revenue, 291 Kan. 41, 43, 237 P.3d 1243 (2010) (interpretation of court’s own prior opinion a question of law subject to unlimited review).
The rule has been described as follows: “ ‘When a lesser included offense has been the subject of an instruction, and the jury convicts of the greater offense, error resulting from failure to give an instruction on another still lesser included offense is cured.’ ” State v. Horn, 278 Kan. 24, 43, 91 P.3d 517 (2004) (quoting Easter v. State, 306 Ark. 615, 620, 816 S.W.2d 602 [1991]). Here, the Court of Appeals described the operation of the rule as follows:
“If a jury convicts of a greater offense, having been given the opportunity to consider a lesser offense, and that verdict necessarily establishes a factual element that would be legally inconsistent with an even lower offense on which no instruction were given, the defendant cannot have suffered any prejudice from the failure to give that instruction.” Simmons, 45 Kan. App. 2d at 505.
As suggested by the Court of Appeals, the “rule” should be viewed as simply providing a route to harmlessness in those circumstances where the elements of the crime of conviction, as compared to a rejected lesser included offense, necessarily show that the jury would have rejected or eliminated a still lesser included offense. The State contends that the panel’s version of the slap rule operates to cure error only where no error actually exists, if the rule only applies where elements are eliminated. But the State fails to grasp the example of the rule’s appropriate use that was presented in this case.
Had the jury convicted Simmons of the level 4 version of aggravated battery, it would have necessarily found that Simmons had caused great bodily harm to Terry. That finding would have necessarily rejected the mere “bodily harm” element described in the severity level 7 lesser included offense instruction. Because the jury’s finding of great bodily harm would have been inconsistent with the rejected severity level 7 version of aggravated battery, it would likewise have been inconsistent with the same “bodily harm” element of simple battery. It would thus be illogical to believe that the jurors who had selected level 4 aggravated battery over the level 7 version would nevertheless have slapped down to simple battery if given the chance. That counterintuitive result could be sufficient to render the absence of the simple battery instruction harmless error under the “skip rule.”
But, here, the jury convicted Simmons of the level 7 version of aggravated battery, which contained the same “bodily harm” element as simple battery. Therefore, the jury did not necessarily find an element that would reject or eliminate the simple battery elements.
The State also points to the jury’s rejection of severity level 8 aggravated battery, which is based on recklessly causing bodily harm. However, the rejection of that lesser degree of the crime only informs us that the jury did not accept the idea that the bodily harm was caused recklessly, rather than intentionally. In other words, the rejection of severity level 8 aggravated battery provided no factual predicate upon which to reject or eliminate simple battery. The skip rule simply does not lead us to harmlessness in this case.
The Court of Appeals decision reversing the district court and remanding for a new trial is affirmed. | [
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The opinion of the court was delivered by
Holmes, J.:
The State of Kansas appeals, pursuant to K.S.A. 22-3602, upon a question reserved following the trial court’s discharge of the defendant in an action charging him with bigamy (K.S.A. 21-3601).
The facts are not in dispute. Dan and Donna Fitzgerald were married on August 1, 1980, at El Paso, Texas. In January 1983, the couple moved to Manhattan. While they lived in Manhattan, Dan attended school at Wichita State University. On October 20, 1983, Kerry Hsieh and the appellee were married in Wichita. Dan was still married to Donna and lived with her in Manhattan on weekends and holidays. During the week while in Wichita attending college, he lived with Kerry, who thought she was his wife. In August 1984, Kerry discovered that Dan was married to Donna and had been since 1980. Dan and Donna had two children at the time of this action. On October 22, 1984, in a proceeding brought by Kerry in the district court of Sedgwick County, the marriage between her and appellee was annulled. The evidence at trial in the case now before this court included the testimony of Donna Fitzgerald and Kerry Hsieh. At the close of the State’s case, appellee moved for discharge on the grounds that the annulment of the second marriage precluded any con viction of bigamy. On November 19, 1985, the court filed its memorandum opinion discharging the defendant, Dan L. Fitzgerald, based upon the court’s conclusion that no “marriage” occurred between Dan Fitzgerald and Kerry Hsieh due to the annulment which was granted in October 1984.
The sole issue on appeal is whether annulment of the second marriage will preclude a conviction for bigamy, pursuant to K.S.A. 21-3601.
The crime of bigamy is defined as the act of marrying or contracting a second marriage while the spouse by a former marriage is still alive and the former marriage is still in force. 10 Am. Jur. 2d, Bigamy § 1; 10 C.J.S., Bigamy § 1. In Kansas the offense of bigamy is defined in K.S.A. 21-3601, which provides:
“21-3601. Bigamy. (1) Bigamy is any of the following:
(a) Marriage within this state by any person who shall have another spouse living at the time of such marriage;
(b) Marriage within this state by an unmarried person to a person known to such unmarried person to be the spouse of some other person;
(c) Cohabitation within this state after marriage in another state or country under circumstances described in subsection (l)(a) or subsection (l)(b) of this section.
(2) It shall be a defense to a charge of bigamy that the accused reasonably believed the prior marriage had been dissolved by death, divorce or annulment.
(3) Bigamy is a class E felony.”
The trial court’s holding that annulment of the second (or bigamous) marriage barred a conviction based upon the annulled marriage was error. In Kansas a bigamous marriage is absolutely void, with or without an annulment proceeding. In Johnson County National Bank & Trust Co. v. Bach, 189 Kan. 291, 295-96, 369 P.2d 231 (1962), the court stated:
“Under Kansas law a marriage where one of the parties at the time has a husband or wife living is void, absolutely and in all its aspects. It requires no judgment of divorce or of nullity to render it void. It is void inherently and from the beginning. The innocent party may, however, maintain an action in equity to have such colorable marriage declared null and void. (Fuller v. Fuller, 33 Kan. 582, 7 Pac. 241.) In Powell v. Powell, 18 Kan. 371, the court, speaking of a void marriage for want of mental capacity on the part of one of the parties, said: ‘Not only was there no marriage de jure, but it would also be a misnomer to call it a marriage de facto, although law-writers thus frequently designate it.’ (p. 379.) (See, also, Werner v. Werner, 59 Kan. 399, 53 Pac. 127; Browning v. Browning, 89 Kan. 98, 130 Pac. 852; and 35 Am. Jur., Marriage, § 148, p. -271.)
“A void marriage may be treated as void by the parties to it and by all the world. It is good for no legal purpose, and is not attended or followed by any of the incidents of a valid marriage. A decree or adjudication of annulment for a void marriage is supported because conducive to good order and decorum, and to the peace and conscience of the party seeking it. (Powell v. Powell, supra.) An annulment has the effect of declaring the marriage relation void ab initio. (See, In re Estate of Crump, 161 Kan. 154, 166 P.2d 684.)”
In the present case the granting of the annulment was done solely for the benefit and convenience of the victim, Kerry Hsieh. The order of annulment had no effect on the actual legal status of the alleged marriage. The ruling of the trial court, if approved, would effectively nullify the offense of bigamy as it appears in K.S.A. 21-3601 since under Kansas law a bigamous marriage can never be a valid marriage and is always void.
While Kansas authority on the subject of bigamous marriages is sparse and not on point for the present issue, case law from other jurisdictions serves well to illustrate the error of the trial court. In State v. Eden, 350 Mo. 932, 169 S.W.2d 342 (1943), the defendant sought to avoid a conviction of bigamy claiming, among other things, that the second marriage was absolutely void and, therefore, there was no “marriage.” The court dismissed this contention, citing 7 Am. Jur., Bigamy § 13 to the effect that “it is the appearing to contract a second marriage and going through the ceremony which constitutes the crime of bigamy; otherwise it could never exist in ordinary cases, as a previous marriage always renders null and void a marriage celebrated afterward by either of the parties during the lifetime of another.” 350 Mo. at 938.
A similar approach was adopted in Allen v. State, 17 Ga. App. 431, 87 S.E. 681 (1916). The defendant, while married, entered into a marriage with a woman who was also married. The court discussed the relationship involving the various existing and purported marriages, noting that before there can be bigamy there must be a prior legal contract of marriage still in existence. The court stated:
“One can not be convicted for entering into a valid marriage. A marriage between one already married and one unmarried is not a valid marriage, because one of the parties labors under the disability of a ‘previous marriage undissolved,’ yet a married person who enters into the contract with one unmarried can be convicted legally of bigamy. . . . Before there can be bigamy, it is true, there must have been a prior legal contract of marriage; but the crime of bigamy is based entirely upon the proposition that the second or bigamous marriage is not and can not be legal. If it were a legal marriage, there could be no bigamy.” p. 432.
The court concluded by quoting from State v. Patterson, 24 N.C. 346, 38 Am. Dec. 699 (1842), which details the gravamen of the offense:
“[I]t is the abuse of this formal and solemn [marriage] contract, by entering into it a second time when a former husband or wife is yet living, which the law forbids because of its outrage upon public decency, its violation of the public economy, as well as its tendency to cheat one into a surrender of the person under the appearance of right. A man takes a wife lawfully, when the contract is lawfully made. He takes a wife unlawfully when the contract is unlawfully made — and this unlawful contract the law punishes.” p. 356.
See State v. Lewis, 46 Wash. 2d 438, 282 P.2d 297 (1955); Stevens v. State, 156 Tex. Crim. 431, 243 S.W. 2d 162 (1951); State v. Hughes, 58 Iowa 165, 11 N.W. 706 (1882).
The trial court in its opinion stated, in part:
“It is not sufficient to show that the Defendant went through the ‘actions’ of becoming married. It must be shown that Defendant was ‘married’ lawfully in order to successfully prosecute him for Bigamy.” (Emphasis added.)
While it is true that K.S.A. 21-3601 is a penal statute and subject to the rule requiring strict construction in favor of the accused, this rule is subordinate to the rule requiring judicial interpretation to be reasonable and sensible to effectuate the legislative design and intent in enacting the statute. State v. Fowler, 238 Kan. 213, Syl. ¶ 1, 708 P.2d 539 (1985). Adoption of the rule pronounced by the trial court would effectively erase the crime of bigamy from our law, an unreasonable interpretation and one clearly contrary to the specific legislative intent. A person cannot be lawfully married and also guilty of bigamy for the same marriage. We find the rationale of our sister states persuasive and hold that when a person enters into a purported marriage contract or relationship at a time when the person already has a living spouse, the crime of bigamy has been committed. Annulment of the second or bigamous marriage is no defense to the crime.
The appeal is sustained. | [
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The opinion of the court was delivered by
Holmes, J.:
Appellee, Michael R. Hanks, filed suit in Lyon County District Court against the appellants, parents of three young children, for damage to his barn resulting from a fire ignited by the children playing with matches. The action was brought pursuant to K.S.A. 38-120. Following trial to a jury a verdict was rendered in favor of Mr. Hanks for $20,170.00. The judgment was reversed by the Court of Appeals in Hanks v. Booth, 11 Kan. App. 2d 149, 716 P.2d 596 (1986). We granted review.
It is not disputed that appellee’s barn was destroyed as the result of appellants’ children, Angie Booth, age 7, Richard Booth, Jr., age 8, and Eric Coffman, age 8, playing with matches. It is also clear that none of the children intended to damage the barn and that when the last child left the barn, he thought all fire had been extinguished. K.S.A. 38-120 provides:
“Any person receiving bodily injury or any person, partnership, corporation, political subdivision or other entity whose property has been damaged or destroyed shall be entitled to recover damages in an appropriate action at law in a court of competent jurisdiction from the parents of any child, living with the parents, who maliciously or willfully injured such person or damaged or destroyed such property while under the age of eighteen (18) years. Such recovery shall be limited to the actual damages in an amount not to exceed one thousand dollars ($1,000), in addition to taxable court costs, unless the court or jury finds that the malicious or willful act of such minor causing such injury, damage or destruction is the result .of parental neglect, in which event the one thousand dollars ($1,000) limitation does not apply. Recovery under this section for bodily injury shall be limited to actual medical expenses.”
The statute was originally enacted in 1959 primarily for the benefit of governmental entities in combating the ever increasing acts of vandalism perpetrated against schools and other governmental property. Recovery was limited to $300.00 for property damage and did not include the element of parental neglect. In 1965 the statute was amended to provide for a maximum recovery of $1,000.00 unless the property damage resulted from parental neglect. In 1978 the statute was again amended to its present form which provides recovery for personal injury as well as property damage.
The Court of Appeals found that the statute requires both a malicious or willful act on the part of the children and that the resulting personal injury or property damage be intended by the children before the parents may be held liable. As there was no evidence that the children intended to damage or destroy the barn, the Court of Appeals found that the defendants’ motion for a directed verdict should have been sustained and the judgment of the district court was reversed.
The decision of the Court of Appeals interpreting the willful or malicious requirement of K.S.A. 38-120 was based upon the majority rule found in a number of similar cases from other jurisdictions relating to parental liability for vandalism. In the present case appellee does not seriously propound that the children acted maliciously, i.e., with an ill will toward him and an intent to burn down the barn. Rather, he argues that the children intended to light matches and burn small piles of hay, and therefore are liable for the resulting destruction of appellee’s barn. Appellee now asks this court to find that the children’s lighting matches or igniting small piles of hay is not only “willful” conduct but also willful damage to the barn sufficient to impose liability on their parents. That position would serve to impose parental liability for a child’s ordinary negligence instead of the standard provided for by law. In the present case the children’s conduct, while negligent, does not demonstrate a “willful” or “malicious” intent on their part.
Several cases from other jurisdictions illustrate the difference between ordinary negligence, which is not covered by parental liability statutes, and the type of culpability contemplated under these statutes. In Frost v. Taylor, 649 S.W.2d 264 (Mo. App. 1983), the court imposed liability on the father of a 15-year-old boy who shot and killed the plaintiff s dog. The court in Hyman v. Davies, 453 N.E.2d 336 (Ind. App. 1983), imposed liability on parents where the child broke into and stole items from the plaintiffs’ vehicles. Similarly, parents were held responsible for the acts of a group of minors who ganged up on and beat the plaintiff in Lamb v. Peck, 183 Conn. 470, 441 A.2d 14 (1981). Finally, in Buie v. Longspaugh, 598 S.W.2d 673 (Tex. Civ. App. 1980), the parents of two youngsters were held responsible for water damage caused when the children broke into three houses, plugged all the drains, and turned on the water. Obviously, in each case the child or children intended bodily injury or damage to the property of another.
Other cases reaching a contrary result illustrate that ordinary negligence, or an intent only to do the act, are insufficient to support liability. In Peterson v. Slone, 56 Ohio St. 2d 255, 10 Ohio Op. 3d 396, 383 N.E.2d 886 (1978), the defendants’ minor son was involved in a traffic accident while driving a vehicle without the owner’s consent. The court refused to find parental liability, finding that although the minor intended to drive the vehicle, he did not intend to damage plaintiff s car. In Town of Groton v. Medbery, 6 Conn. Cir. 671, 301 A.2d 270 (1972), the court refused to allow a police officer recovery from the parents of a minor for injuries sustained in a high speed chase. The court specifically recognized that willful and malicious injury requires a design or intent to injure. A like result obtained in Crum v. Groce, 556 P.2d 1223 (Colo. 1976), where a minor was using a car contrary to the parents’ wishes when it became involved in an accident. The court held that, while the use of the vehicle may have been willful or malicious, the child’s involvement in the accident was not shown to be willful or malicious. See generally Annot., Infants’ Torts — Parents’ Liability, 8 A.L.R.3d 612.
Perhaps the most precise authority for the interpretation given by the Court of Appeals comes from Farm Bur. Mut. Ins. Co. v. Henley, 275 Ark. 122, 628 S.W.2d 301 (1982). In Henley two six-year-old boys started a fire in a trash bin behind plaintiff s insureds’ gift shop. The children threw dirt on it and, believing it to be extinguished, left the area. The fire was not out and thereafter spread from the trash bin to the gift shop. One count of plaintiff s action was based on the parental responsibility statute. The trial court granted a directed verdict as to this count, ruling that the children had not acted willfully. The appellate court affirmed, stating:
“In this case the evidence is undisputed that appellees willfully threw matches in the trash bin, but this is not to say that they willfully set fire to the gift shop. There is no evidence that the boys actually intended to set fire to the shop. Under these circumstances the damage to the shop may have been the result of their carelessness, but not their willfulness.” 275 Ark. 127.
Accord Motorists Mut. Ins. Co. v. Bill, 56 Ohio St. 2d 258, 10 Ohio Op. 3d 398, 383 N.E.2d 880 (1978); Walker v. Kelly, 6 Conn. Cir. 715, 314 A.2d 785 (1973); and Connors v. Pantano, 165 Neb. 515, 86 N.W.2d 367 (1957).
We agree with the Court of Appeals’ interpretation and application of K.S.A. 38-120 to the facts in this case and that in order for appellee to sustain a cause of action under the statute he must have proved both the act of the offending children and the resulting damage to the barn were willful or malicious.
The opinion of the Court of Appeals filed April 3, 1986, reversing the district court is affirmed. The judgment of the district court is reversed. | [
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The opinion of the court was delivered by
Johnson, J.;
John Backus directly appeals his convictions for premeditated first-degree murder, aggravated kidnapping, and aggravated robbery in the 2005 death of Dollar General manager Robin Bell in Bonner Springs. Backus’ brief to this court raises six issues, which we will paraphrase as follows: (1) The district court erred in denying Backus’ request for a lesser included offense instruction on second-degree murder; (2) the district court erred in giving an “Aiien-type” jury instruction; (3) the district court’s denial of Backus’ new trial motion was an abuse of discretion; (4) the district court erroneously admitted inflammatory photographs; (5) the district court erred in finding that the evidence failed to establish a reason to believe that Backus is mentally retarded; and (6) cumulative error denied the defendant a fair trial. Finding no error that would require reversal, we affirm Backus’ convictions.
Factual and Procedural Overview
In 2005, the defendant and three other young people, Robert Iiaberlein, Christa Lewis, and an under aged female, A.R., set about planning a robbery to obtain money to fix the defendant’s car. After a reconnaissance trip, the group settled on the Dollar General store as a target because it lacked surveillance cameras. Later, Lewis would tell a detective that “a decision was made that there would be no witnesses, whoever was in the store, that there would be no witnesses, that there was going to be a homicide.”
On the day of the robbeiy, Lewis backed out at the last minute. The three others entered the chosen store just before closing. Backus went to the back of the building while Haberlein and A.R. pretended to shop. A.R. and Haberlein approached Bell, who was tending the cash register, and Haberlein put a gun to her head and demanded that she empty the register into a bag. After taking the register money, Haberlein ordered Bell to the back office, where shots were fired and Bell was forced to open the locked office safe. She escaped momentarily, but Backus dragged her back into the store where he and Haberlein savagely and unmercifully beat her with a number of objects before Haberlein shot her in the head. Backus grabbed the bag of money and all three left the store.
Later that night, A.R. and Haberlein burned the robbers’ bloody clothes. The next day, A.R.’s mother helped her daughter and Ha-berlein dispose of the gun in exchange for sharing the money with A.R., Haberlein, and Backus.
The crime remained unsolved for almost 2 years until Christa Lewis, Haberlein’s girlfriend and a friend of A.R., was reported as a runaway. On September 21,2007, Lewis and Haberlein appeared at the police station to discuss her runaway status. At some point, the officers discovered that Haberlein was wanted for questioning about another investigation, and during his interview, Haberlein revealed bits of information regarding Bell’s murder. That information eventually led the police to A.R., who gave two statements (one videotaped) to the police about the events of that night. That led the police back to Lewis, who provided a detailed statement, which included incriminating statements made by Backus and Ha-berlein in the days following the incident.
Backus was eventually charged with first-degree premeditated murder, or in the alternative, first-degree felony murder; aggravated kidnapping; and aggravated robbery. Haberlein was charged and tried separately. As of the date of Backus’ trial, A.R. had not yet been tried for the crime, but in exchange for her testimony against Haberlein and Backus, the State had agreed to try her as a juvenile.
The forensic pathologist who performed the autopsy provided extensive testimony about the injuries inflicted upon Bell, con- eluding that she “died as a result of being basically bludgeoned, and then also she had contributory effects from the gunshot wounds.” The doctor opined that Bell was still alive when she received the gunshot wounds, albeit he could not discern whether they occurred before or after the bludgeoning injuries.
At trial, the State introduced into evidence numerous photographs of tire autopsy and the crime scene. Backus objected to the admission of 10 of those photos as unduly gruesome, repetitive, and prejudicial. The district court sustained the objection to two of the photos that it regarded as cumulative, but admitted the other eight photographs.
Backus also requested a lesser included offense instruction on second-degree murder. The court declined the request, reasoning that the evidence of the underlying felony in the felony-murder charge was so strong that there was no basis for including the requested instruction. Also, without objection from either party, the trial court gave an Allen-type instruction that included the declaration: “Another trial would be a burden on both sides.”
After the jury convicted Backus of first-degree premeditated murder, aggravated kidnapping, and aggravated robbery, he filed a motion for new trial. One basis for the motion was an allegation of newly discovered evidence, supported by an affidavit from Backus’ father. In the affidavit, Backus’ father said that, although he had initially forgotten, he was now certain that Backus was at his home assisting with the sorting of Christmas decorations from 6 p.m. until they went to bed on the night of the murder. The motion also alleged that there was insufficient direct evidence lying Backus to the murder, that his motion for a directed verdict should have been granted, that the prosecutor made improper arguments during closing based on evidence not in the record, and that the admission of the contested photographs was erroneous. After entertaining arguments, the district court denied the motion in full.
Because the State filed notice that it intended to seek the hard 50 life sentence, Backus also filed a motion to determine his status as a mentally retarded person pursuant to K.S.A. 21-4634, because the court may not impose a hard 50 sentence on a mentally retarded person. When the motion was initially filed, the district court allowed Backus’ father to testify regarding the issue. Specifically, Backus’ father testified that Backus had never officially been diagnosed as mentally retarded, although his high school had listed him as a special education student. On that showing, the district court denied the motion for an evaluation but left open the possibility of the defense renewing the motion when it obtained Backus’ school records and other documentation. After those records were filed, the district court entertained the renewed motion, and again denied it at the first stage, concluding, “Certainly there were some learning problems and significant other problems, but nothing that would be an indication that the defendant was mentally retarded. ... I don’t think there is a basis for me to appoint physicians or psychologists to investigate further.”
Consequently, the district court imposed the hard 50 life sentence for first-degree premeditated murder based on the lack of mitigating factors and the weight of the aggravating factors: That “the crime was committed in order to avoid or prevent arrest or prosecution; [and] that the crime was committed in an especially heinous, atrocious or cruel manner.” The court imposed consecutive sentences of 586 months for aggravated kidnapping and 59 months for aggravated robbery. The case is now before us on direct appeal.
Lesser Included Offense Instruction on Second-Degree Murder
The State charged Backus in the alternative with both types of first-degree murder: premeditated murder and felony murder. Backus requested that the trial court give a lesser included offense instruction on second-degree intentional murder. At that time, there was a special rule for a felony-murder charge whereby lesser included offense instructions were required only when the evidence of the underlying felony was weak, inconclusive, or conflicting. See State v. Berry, 292 Kan. 493, 503, 254 P.3d 1276 (2011) (citing State v. Hoffman, 288 Kan. 100, 105, 200 P.3d 1254 [2009]). The trial judge denied the requested instruction based on the special felony-murder rule but did not assess whether the lesser included offense instruction was appropriate for the premeditated first-degree murder charge on which Backus was ultimately convicted. Backus contends that the trial court’s erroneous omission requires us to reverse his murder conviction and remand for a new trial.
Standard of Review/Legal Maxims
Recently, we attempted to set forth a more consistent analytical progression for reviewing jury instruction issues with accompanying standards of review for each step. See State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012). The last step in the progression applies where the appellate court has determined that the district court erred. At that point, “the appellate court must determine 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 132 S. Ct. 1594 (2012).” Plummer, 295 Kan. 156, Syl. ¶ 1. “This assessment of whether there has been injustice would involve a review of the entire record and a de novo determination. Cf. State v. Ward, 292 Kan. 541, Syl. ¶ 8, 256 P.3d 801 (2011) (harmless error analysis performed de novo), cert. denied 132 S. Ct. 1594 (2012).” State v. Williams, 295 Kan. 506, 516, 286 P.3d 195 (2012).
Analysis
It was not enough for the district court to apply the special lesser included offense rule tiren applicable to the alternative felony murder charge. The court should have analyzed the propriety of giving a lesser included offense instruction for the first-degree premeditated murder charge under the statutory directive in K.S.A. 22-3414(3). That provision requires the trial court to give a requested lesser included offense instruction if “there is some evidence which would reasonably justify a conviction of [that] lesser included crime.”
But in fairness to the trial court, the entire landscape of lesser included offense instructions has undergone a makeover since Backus’ trial. Therefore, we take the liberty of moving directly to the final step in the analytical progression to resolve the issue in this case on the basis that the failure to give a second-degree murder instruction was harmless error.
As noted, we use the harmlessness test set forth in Ward:
“[B]efore a Kansas court can declare an error harmless it must determine the error did not affect a party’s substantial rights, meaning it will not or did not affect the trial’s outcome. The degree of certainty by which the court must be persuaded that the error did not affect the outcome of the trial will vary depending on whether die error implicates a right guaranteed by the United States Constitution. If it does, a Kansas court must be persuaded beyond a reasonable doubt diat there was no impact on the trial’s outcome, i.e., there is no reasonable possibility diat die error contributed to the verdict. If a right guaranteed by the United States Constitution is not implicated, a Kansas court must be persuaded diat there is no reasonable probability diat the error will or did affect the outcome of the trial.” 292 Kan. at 565.
Again, the parties did not have the benefit of this holding when they submitted their briefs in this case. Therefore, we are not presented with any arguments on whether the error implicates a right guaranteed by the United States Constitution, e.g., a defendant’s right to present a defense. But that omission will not deter our resolution of this issue here and now, because even under the more stringent test, we are firmly convinced beyond a reasonable doubt that there was no impact on the trial’s outcome.
The jury heard a detective testify that Lewis, the nonparticipating co-conspirator, told him that after the four had selected the Dollar General store as their target, “a decision was made that there would be no witnesses, whoever was in the store, that there would be no witnesses, that there was going to be a homicide.” Although Lewis did not repeat that statement in her trial testimony, the evidence of what transpired in the store corroborated that intent. The jury heard that, when the victim escaped out of the store, Backus ran her down and forcibly brought her back into a storeroom. There, he and Haberlein savagely beat her about the head, utilizing multiple objects as weapons, including a stepladder, a piece of which the pathologist found inside the victim’s head during the autopsy. If the jury believed that Backus participated in the killing, it had to find that it was a cold, calculated, and premeditated act. There is no reasonable possibility that a lesser included offense instruction would have contributed to the verdict.
Allen-type Instruction
For the first time on appeal, Backus complains that the district court gave an instruction which included the statement that another trial would be a burden on both sides. He points out that we have found that jury instruction to be erroneous. See State v. Salts, 288 Kan. 263, 266-67, 200 P.3d 464 (2009).
But because Backus did not properly preserve the instruction complaint, K.S.A. 22-3414(3) requires that the omission be clearly erroneous in order to be both reviewable and reversible. See Williams, 295 Kan. at 515. The test to determine whether an unpres-erved instruction error requires reversal is “whether the reviewing court is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred.” Williams, 295 Kan. at 516.
Standard of Review/Legal Maxims
An assessment of whether an unpreserved instruction error requires reversal involves a review of the entire record and a de novo determination. Williams, 295 Kan. at 516.
Analysis
The State points out that our decision in Salts had not been filed when this case was tried. Nevertheless, it concedes that advising the jury that “another trial would be a burden on both sides” was erroneous. The State's position is that the evidence was substantial and compelling, leaving no real possibility of a different verdict if the juiy had not heard the Allen-type instruction. We agree.
As we clarified in Williams, Backus must shoulder the burden of convincing us that the juiy would have reached a different verdict had the instruction error not occurred. In his brief, Backus acknowledges that no Kansas case has yet found that the offending instruction language, standing alone, creates a reversible error. Yet the only argument that he proffers as to why his case should be the first is contained in one sentence: “The defendant asserts that, without the erroneous language, there is a likelihood that the jury would not have returned guilty verdicts in this case.”
Given Backus’ concession in the first issue that “[t]he evidence was sufficient to prove premeditation,” and in the absence of any evidence that tire jury was having difficulty reaching a verdict, we hold that the defendant has failed to carry his burden to convince us that the jury would have reached a different verdict. The instruction error is not reversible.
Denial of New Trial Motion
In a motion for new trial, Backus claimed that he had new evidence in the form of his father’s recent recollection that, on the night of the murder, Backus had been with his father. Backus argues that the evidence was new because it did not exist until the father remembered it, sometime after the trial.
Standard of Review/Legal Maxims
Both parties agree that this court reviews a district court’s decision on a motion for a new trial based on newly discovered evidence for an abuse of discretion. See State v. Rojas-Marceleno, 295 Kan. 525, Syl. ¶ 11, 285 P.3d 361 (2012); Monda v. State, 285 Kan. 826, 839-40, 176 P.3d 954 (2008) (reviewing order denying motion for new trial based on newly discovered evidence for abuse of discretion).
“The test for determining whether a new trial is warranted on the ground of newly discovered evidence has two parts: (1) whether the defendant has met the burden of establishing that the newly proffered evidence could not with reasonable diligence have been produced at trial and (2) whether the evidence is of such materiality that it would be likely to produce a different result upon retrial.” 281 Kan. at 992 (citing State v. Norton, 277 Kan. 432, 437, 85 P.3d 686 [2004]).
Analysis
The only materiality of the father’s testimony is to establish an alibi for Backus, i.e., he was with his father assembling Christmas decorations rather than at the Dollar General store bludgeoning a woman to death. By necessity, Backus had to have personal knowledge of his own whereabouts. He did not have to learn where he was on the night of the murder from his father’s recollection, i.e., the fact that an alibi witness existed was not unknown to Backus at the time of the trial.
Moreover, Backus’ specious argument that a witness need not exercise diligence in producing evidence at trial is completely unavailing. If one believes Backus’ father’s affidavit, Backus had to personally know that his father was a potential alibi witness, and he was required to exercise diligence in producing that evidence. The record does not reflect that Backus can clear the first hurdle of establishing that the evidence was truly newly discovered. The district court did not err in refusing to order a new trial based on the father’s after-the-fact affidavit.
Inflammatory Photographs
As noted, Backus objected at trial to the admission of 10 photographs as being unduly gruesome, repetitive, and prejudicial. The district court reviewed the photographs and granted the motion to exclude two of them as being cumulative. Backus contends that the district court erred in admitting the other eight photographs.
Standard of Review
“When reviewing die admission of photographic evidence, an appellate court’s first step is to determine whether the photos are relevant. The decision to admit photographs alleged to be overly repetitious, gruesome, or inflammatory, i. e., prejudicial, is reviewed for an abuse of discretion. [Citations omitted.] The party who challenges that decision bears tire burden of showing such abuse. [Citation omitted.] Admission of photographs that are unduly repetitious and cumulative, or that are introduced solely for a prejudicial purpose, constitutes an abuse of discretion, albeit such a finding is rare in a murder case.” State v. Edwards, 291 Kan. 532, 549, 243 P.3d 683 (2010).
See State v. Burnett, 293 Kan. 840, 853, 270 P.3d 1115 (2012); State v. Riojas, 288 Kan. 379, 387, 204 P.3d 578 (2009).
Analysis
Backus complains that because the manner of Bell’s death was not disputed at trial, the photographs were largely irrelevant. That argument has been rejected by this court. “Even where the defendant concedes the cause of death, the prosecution has the burden to prove all the elements of the crime charged . . . , including the fact and manner of death and the violent nature of the crime _” State v. Clark, 261 Kan. 460, 477, 931 P.2d 664 (1997); see State v. Kirby, 272 Kan. 1170, 1188, 39 P.3d 1 (2002). We have explained the relevancy of photographs in homicide cases as follows:
‘Photographs depicting the extent, nature, and number of wounds inflicted are generally relevant in a murder case. [Citation omitted.] Photographs which are relevant and material in assisting the jury’s understanding of medical testimony are admissible. Specifically, photographs which aid a pathologist in explaining the cause of death are admissible. [Citation omitted.] Photographs used to prove the manner of death and the violent nature of the crime are relevant and admissible. [Citation omitted.]’ ” ’ State v. Parker, 277 Kan. 838, 847, 89 P.3d 622 (2004) (quoting State v. Green, 274 Kan. 145, 147, 48 P.3d 1276 [2002]).
“Additionally, because the State has the burden to prove every element of the crime charged, photographs used to prove the elements of the crime, including the fact and manner of death and the violent nature of the crime, are relevant even if tire cause of death is not contested. [Citation omitted.] Finally, while we have stated that the “wholesale admission of similar grotesque and bloody photographs which add nothing new to the state’s case” is improper,’ a photograph need not be excluded simply because it is gruesome. [Citation omitted.]” Burnett, 293 Kan. at 853-54.
We note that Backus has not included the photographs in the record on appeal in his case, although he refers us to the record on appeal in Haberlein’s appellate case. Nevertheless, the district court acknowledged that almost all of the photographs, including some admitted without objection, were gruesome because of the gruesome nature of the crime. Yet the court thoughtfully reviewed and discussed each photograph, identifying permissible reasons for each photograph that was admitted over objection. The photographs were relevant and admissible, and the district court exercised its discretion in an appropriate manner. There is no error here.
Reason to Believe that Defendant Was Mentally Retarded
K.S.A. 21-4634 precludes the district court from imposing any mandatory term of imprisonment for premeditated first-degree murder upon a defendant who is determined to be mentally retarded. The statute provides that, upon a defense counsel’s request for a determination of whether the defendant is mentally retarded, the court is to take certain steps, as follows:
“(a) If a defendant is . . . convicted of the crime of murder in the first degree based upon the finding of premeditated murder, the defendant’s counsel... may request a determination by the court of whether the defendant is mentally retarded. If the court determines that there is not sufficient reason to believe that the defendant is mentally retarded, the court shall so find and the defendant shall be sentenced in accordance with K.S.A. 21-4635 through 21-4638. If the court determines that there is sufficient reason to believe diat the defendant is mentally retarded, the court shall conduct a hearing to determine whether the defendant is mentally retarded.
“(b) At the hearing, the court shall determine whether the defendant is mentally retarded. The court shall order a psychiatric or psychological examination of the defendant. For that purpose, the court shall appoint two licensed physicians or licensed psychologists, or one of each, qualified by training and practice to make such examination, to examine the defendant and report their findings in writing to the judge within 10 days after the order of examination is issued. The defendant shall have the right to present evidence and cross-examine any witnesses at the hearing. No statement made by the defendant in tire course of any examination provided for by this section, whether or not the defendant consents to the examination, shall be admitted in evidence against tire defendant in any criminal proceeding.
“(c) If, at the conclusion of a hearing pursuant to this section, tire court determines that tire defendant is not mentally retarded, the defendant shall be sentenced in accordance with K.S.A. 21-4635 through 21-4638.
“(d) If, at tire conclusion of a hearing pursuant to this section, the court determines that the defendant is mentally retarded, tire court shall sentence tire defendant as otherwise provided by law, and no mandatory term of imprisonment shall be imposed hereunder.
“(f) As used in this section, ‘mentally retarded’ means having significantly sub-average general intellectual functioning, as defined by K.S.A. 76-12b01 and amendments thereto, to an extent which substantially impairs one’s capacity to appreciate tire criminality of one’s conduct or to conform one’s conduct to tire requirements of law.” K.S.A. 21-4634.
Here, the district court dealt with the request in the first step, in subsection (a), by finding that there was not sufficient reason to believe that Backus was mentally retarded. On appeal, Backus argues that the evidence of mental retardation was enough to cause tire district court to sufficiently believe he was mentally retarded and thus require it to proceed to order an evaluation and hearing.
Standard of Review
The parties argue for the application of different standards of review. Backus attempts to frame the issue as one requiring statutory interpretation, which would involve a legal question subject to an unlimited review. Cf. State v. Jefferson, 287 Kan. 28, 33,194 P.3d 557 (2008). But we are not presented with the task of construing what the statute means when it says: “If the court determines that there is not sufficient reason to believe that tire defendant is mentally retarded, the court shall so find and the defendant shall be sentenced in accordance with K.S.A. 21-4635 through 21-4638.” K.S.A. 21-4634(a). Rather, the issue Backus raises is whether the evidence was sufficient to establish a sufficient reason to believe he was mentally retarded.
The State argues for an abuse of discretion standard, lobbying us to analogize to those cases determining whether a defendant is competent to stand trial under K.S.A. 22-3302. See, e.g., State v. Lopez, 271 Kan. 119, 127, 22 P.3d 1040 (2001) (“K.S.A. 22-3302 vests the trial court with authority to determine the question of a defendant’s competence to stand trial. On appeal, this court’s inquiry is limited to whether the trial court abused its discretion.”); see also State v. Green, 245 Kan. 398, 412-13, 781 P.2d 678 (1989) (“Whether a hearing on competency is needed during trial is a matter which is left to the sound discretion of the trial court, and we will not disturb that decision absent an abuse of discretion.”).
The State’s proposed analog is seductive. Under K.S.A. 21-4634(a), it is the district court that must determine whether there is sufficient reason to believe the defendant is mentally retarded, and, just like the competency to stand trial scenario, the trial judge is in a superior position to make that determination after observing and listening to tire defendant. Accordingly, it is appropriate to defer to the district court’s assessment by applying an abuse of discretion standard. Therefore, we will evaluate whether any reasonable person would take the view adopted by the district judge. See State v. Mondragon, 289 Kan. 1158, 1160-61, 220 P.3d 369 (2009).
Analysis
Ultimately, however, our selection of a standard of review does not impact the result in this case. Backus cannot prevail under any review standard simply because there is an absence of any evidence of mental retardation.
In malting the assessment under K.S.A. 21-4634(a), the district court was directed to utilize the definition of mental retardation set forth in K.S.A. 76-12b01, which states:
“(d) ‘Mental retardation’ means significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from birth to age 18.
“(i) ‘Significantly subaverage general intellectual functioning’ means performance which is two or more standard deviations from the mean score on a standardized intelligence test specified by the secretary.” K.S.A. 76-12b01.
The trial court gave Backus two opportunities to present some evidence, but even viewed in the light most favorable to Backus, the evidence arguably failed to establish that Backus even qualified as a special education student, much less as mentally retarded. Backus’ father conceded that Backus had never been diagnosed as mentally retarded and, in fact, said that “[w]e had to fight [the school district] to get him listed as a special education, special needs student for several years, and they finally agreed to that through the high school years.” Backus’ school records indicated that his test scores from 1993, 1999, and 2003 did not qualify him for special education services. More to the point, Backus’ test score did not meet the statutory definition of mentally retarded because it was not two standard deviations or more below the mean. Accordingly, the district court did not err in finding insufficient reason to believe that Backus was mentally retarded.
Cumulative Error
Backus argues that even if no individual trial error is sufficient to support a reversal of his conviction, the cumulative effect of multiple errors was so great as to require reversal. The test is “ whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant.’ ” Edwards, 291 Kan. at 553 (quoting State v. Ellmaker, 289 Kan. 1132, Syl. ¶ 12, 221 P.3d 1105 [2009]).
Standard of Review/Legal Maxims
By necessity, if this court must apply a totality of the circumstances test, we will have to review the entire record and engage in an unlimited review. Cf. State v. Ward, 292 Kan. 541, Syl. ¶ 8, 256 P.3d 801 (2011) (harmless error analysis performed de novo).
Analysis
Further, for errors to have a cumulative effect that transcends the effect of the individual errors, there must have been more tiran one individual error. See State v. Houston, 289 Kan. 252, 277, 213 P.3d 728 (2009); State v. Nguyen, 285 Kan. 418, 437, 172 P.3d 1165 (2007). Above, we found that the giving of the Allen-type instruction was error. We also found that the district court applied the incorrect test for determining whether to give a lesser included offense instruction on second-degree murder. Arguably, then, more than one error exists which could be accumulated.
Nevertheless, the instructional errors were not such as would lead us to the conclusion that Backus was denied a fair trial. Moreover, the inculpatoiy evidence, especially the eyewitness testimony, would certainly fit within the category of overwhelming evidence. In short, we are firmly convinced beyond a reasonable doubt that foe result of Backus’ trial would have been no different without foe instructional errors.
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The opinion of the court was delivered by
Holmes, J.:
Rodney A. Moore, administrator of the estate of Kathleen A. Grubb, appeals from an order of summary judgment granted in favor of the defendants, The Kansas State Rank of Rurden (Rank), Wayne E. Temple, and Ruby M. Temple, in an action based upon an alleged illegal setoff of funds by the Rank.
On August 10,1983, Kathleen A. Grubb filed a petition naming the Rank and Wayne E. Temple, its president, as defendants. She contended that the Rank had illegally declared a setoff against certain Social Security funds in the amount of $504.00 transmitted to the Rank for credit to the account of Mrs. Grubb. At the time of the setoff she was in default'upon an automobile loan owed the Rank in the amount of $358.78 plus interest. The amount set off by the Rank from the funds of Mrs. Grubb was $447.18, which included interest to the date of setoff. The original petition asserted three causes of action based upon fraud, conversion, and the tort of outrage.
Thereafter, on November 4, 1983, Mrs. Grubb filed an action, based upon the same factual allegations, in the United States District Court for the District of Kansas, against the same two defendants and Ruby M. Temple, who was also an officer of the Rank. Subsequently, a first amended complaint was filed in the federal court action by Rodney A. Moore, in his alleged representative capacity, asserting causes of action based upon fraud, conversion, outrage, invasion of privacy; and violations of the Kansas Uniform Commercial Code, the Kansas Uniform Consumer Credit Code, the Kansas Consumer Protection Act, the federal Social Security Act, the federal Electronic Funds Transfer Act, and the Racketeer Influenced and Corrupt Organizations Act. In each case the plaintiff sought damages of nearly $1,400,000.00.
Mrs. Grubb died December 15,1983, and thereafter this action appears to have been carried on by Rodney A. Moore as “next of kin of Kathleen A. Grubb, Deceased, and Administrator of the Estate of Kathleen A. Grubb, Deceased” although the record does not reflect that he was ever properly substituted as the party plaintiff or that there was any attempt to comply with the provisions of K.S.A. 60-225 and 60-269. On January 28, 1985, a pretrial questionnaire was filed in the Cowley County District Court action in which the appellant stated, “If this action is ultimately prosecuted [in the Cowley District Court], amendments to the pleadings will be made to conform to the Complaint filed in U.S. District Court, copy attached.” The record before us does not reflect that any amended petition was ever filed or that Ruby M. Temple was ever made a party defendant in this action. However, the trial court and the parties appear to have proceeded upon all the various theories asserted in the federal court action. It was agreed by the parties that discovery would be pursued in the federal court action and that all such discovery would also be utilized in the state court action. Following completion of the federal court discovery, the defendants moved for summary judgment in this case while Rodney A. Moore moved to have the action dismissed without prejudice.
The trial court, in its memorandum opinion, greatly condensed the facts, stating:
“In April, 1978, the State Bank of Burden made a loan to Kathleen A. Grubb. At this same time, Ms. Grubb opened a checking account with the bank. Ms. Grubb received Veteran Administration and Social Security benefits on a monthly basis. She signed authorizations for both agencies to make direct deposits of these funds to her checking account with the Burden bank. Apparently there is no record of these ever being affirmatively revoked.
“In July, 1979, Ms. Grubb was extended another loan by the bank for the purchase of a car. Later, in July 1981, this car was involved in an accident. Ms. Grubb had failed to maintain insurance coverage to cover the loan. In approximately September, 1981, Ms. Grubb defaulted on the outstanding note. At that time there was $358.78 principal balance remaining. It is disputed if notice of default was given to the debtor. There followed a period of time that the checking account was not used.
“In July, 1983, the bank received, through its ordinary course of business, a wire transfer of $252.00 to be applied to Ms. Grubb’s account. The source of the transfer was the Social Security Administration. In August the bank received another such transfer. These were credited to Ms. Grubb’s old checking account.
“Although not indicated as such on any document, the original Social Security funds were widow’s benefits for the support of a minor child, whereas the funds received in 1983 were benefits for Ms. Grubb’s disability.
“No bank statement concerning this wire transfer was sent to Ms. Grubb in July, 1983. Ms. Grubb discovered where her July and August payments had been sent and contacted the bank by telephone demanding they be sent to her. She was advised by the bank’s Vice President that it might exercise its right of set-off. (K.S.A. 9-1206.)
“The next day, August 5, 1983, Ms. Grubb’s attorney again made demand for the money. The bank conferred with its attorney and was advised it could legally exercise the set-off. On August 8 or 9, the bank set-off $447.18 and sent a statement to Ms. Grubb reflecting that transaction. On August 31, 1983, statements for July and August were sent to plaintiff.”
The court then granted the defendant’s motion for summary judgment on the tort claims of the plaintiff based upon conversion, invasion of privacy, outrageous conduct, and fraud, and also as to plaintiff s claim for punitive damages. The plaintiff s motion to dismiss the action without prejudice as to the claims based upon alleged violations of the Kansas Uniform Commercial Code, the Kansas Consumer Protection Act, the Social Security Act, the Electronic Funds Transfer Act, the Racketeer Influenced and Corrupt Organizations Act, and the Kansas Uniform Consumer Credit Code was sustained. Rodney A. Moore has appealed the granting of partial summary judgment on behalf of the defendants.
Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Peoples Nat'l Bank & Trust v. Excel Corp., 236 Kan. 687, 695, 695 P.2d 444 (1985). The benefit of all inferences which may be drawn from the admitted facts must be given to the party against whom judgment is sought. Professional Lens Plan, Inc. v. Polaris Leasing Corp., 238 Kan. 384, 390, 710 P.2d 1297 (1985). When summary judgment is challenged on appeal, an appellate court must read the record in the light most favorable to the party who defended against the motion for summary judgment. McAlister v. Atlantic Richfield Co., 233 Kan. 252, Syl. ¶ 4, 662 P.2d 1203 (1983).
In the case at bar the record indicates both parties responded to a pretrial questionnaire in the case. In addition, the defendants’ memorandum in support of their motion for summary judgment sets out extensive uncontroverted facts. In appellant’s response to the motion for summary judgment, he disagreed over several details but substantially agreed with the material facts as propounded by the defendants. Thus, while some facts remain controverted, the material facts essential to resolution of this case appear settled, and the only issue before this court is whether summary judgment was proper.
The first cause of action on which the trial court entered summary judgment in favor of the defendants was that for conversion. This court has defined conversion as the unauthorized assumption or exercise of the right of ownership over goods or personal chattels belonging to another to the exclusion of the other’s rights. Carmichael v. Halstead Nursing Center, Ltd., 237 Kan. 495, Syl. ¶ 2, 701 P.2d 934 (1985). Generally, an action for conversion will not lie for the recovery of an ordinary debt or account. Temmen v. Kent-Brown Chev. Co., 227 Kan. 45, Syl. ¶ 3, 605 P.2d 95 (1980). It is well recognized that the relationship between a general depositor and his or her bank is that of creditor and debtor, and money deposited, unless segregated into a special account and designated to be kept separate, becomes the property of the bank. Chilson v. Capital Bank of Miami, 237 Kan. 442, 444, 701 P.2d 903 (1985). Therefore, unless intended to remain separate, money deposited in a bank ordinarily cannot be the subject of an action for conversion. E.g., Baker, Administrator v. Brial, 185 Kan. 322, 341 P.2d 987 (1959); Annot., 44 A.L.R.2d 927 § 7(c), p. 943.
One of the facts in dispute was whether Mrs. Grubb had closed her checking account in 1981 following her dispute with the Rank over further payment on her wrecked automobile. When the Rank received, in July and August 1983, an electronic transfer of funds from the Social Security Administration for credit to Mrs. Grubb, the Rank credited her checking account, which had been inactive since 1981 and which had evidently carried a zero balance since that time. The Bank contended the account had never been actually closed by Mrs. Grubb. We find the issue of whether or not the account was closed in 1981 to be immaterial to a determination of the issues here. If the account remained open and the funds were credited to it, as the Bank contends, then a creditor-debtor relationship was created at that time. By the same token, even if the account was closed, when the Bank received the electronic transfer of funds from Social Security, the same relationship arose. The Bank was credited with funds for Mrs. Grubb, a former depositor, and the relationship of creditor and debtor again prevailed. It appears to be the contention of appellant that as the account of Mrs. Grubb was closed and as the Social Security payments are exempt from setoff, the Bank converted those funds when it did not forthwith transfer them to Mrs. Grubb.
We do not deem it necessary under the facts of this case to determine whether Social Security funds deposited with a bank are exempt under 42 U.S.C. § 407 (1982) from a setoff by the Bank in reliance upon K.S.A. 9-1206. Assuming, arguendo, that such funds are not subject to setoff, the erroneous application of the funds to the past-due debt owed the Bank does not constitute conversion under the facts of this case. Upon receipt of the notification from Social Security, the debtor-creditor relationship was created between the Bank and Mrs. Grubb and, as previously pointed out, the failure of the debtor to pay over such funds to the creditor does not ordinarily constitute conversion. While in certain instances there may be a conversion of commercial paper, Carmichael v. Halstead Nursing Center, Ltd., 237 Kan. 495, Syl. ¶ 3, or conversion of funds in a depositor’s account if the bank knows the funds are the property of a third party, Iola State Bank v. Bolan, 235 Kan. 175, Syl. ¶ 8, 679 P.2d 720 (1984), those situations are not applicable to the present case. Here, the Bank did not receive checks from Social Security payable to Mrs. Grubb which it converted to its own use, nor did the funds belong to a third party. We conclude that the trial court was correct in its determination that a debtor-creditor relationship existed between the Bank and Mrs. Grubb and that the proper action was one in contract rather than conversion.
Next, appellant asserts error in the trial court’s determination that there were no facts supporting a claim based upon the tort of outrage.
It has been recognized in Kansas that one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another may be liable for such emotional distress based upon what has come to be referred to as the tort of outrage. Neufeldt v. L. R. Foy Const. Co., 236 Kan. 664, Syl. ¶ 2, 693 P.2d 1194 (1985); Dawson v. Associates Financial Services Co., 215 Kan. 814, Syl. ¶ 1, 529 P.2d 104 (1974). To establish such a cause of action, proof of four elements is required: (1) The conduct of the defendant must be intentional or in reckless disregard of the plaintiff; (2) the conduct must be extreme and outrageous; (3) there must be a causal connection between the defendant’s conduct and the plaintiff s mental distress; and (4) the plaintiffs mental distress must be extreme and severe. Hoard v. Shawnee Mission Medical Center, 233 Kan. 267, Syl. ¶ 3, 662 P.2d 1214 (1983). Conduct sufficient to support an action for outrageous conduct must be beyond the bounds of decency and utterly intolerable in a civilized society. Neufeldt v. L. R. Foy Const. Co., 236 Kan. at 669. Liability for extreme emotional distress has two threshold requirements which must be met and which the court must, in the first instance, determine: (1) Whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery; and (2) whether the emotional distress suffered by plaintiff is in such extreme degree the law must intervene because the distress inflicted is so severe that no reasonable person should be expected to endure it. Roberts v. Saylor, 230 Kan. 289, Syl. ¶ 2, 637 P.2d 1175 (1981). Here, while there was some testimony by Mrs. Grubb in her deposition to the effect she was physically and mentally upset by the Bank’s declared setoff of funds, there is no evidence to support any finding of outrageous conduct on the part of the officials of the Bank. The most that can be said is that the Bank may have made an erroneous setoff of the Social Security funds against a legitimate indebtedness owed to the Bank. Such action was done only after consultation with counsel and without any showing of any intent to injure Mrs. Grubb, or a reckless disregard of her. The trial court was correct in granting summary judgment on this issue.
Appellant’s third claim is that the trial court erred in granting summary judgment upon the claim of fraud.
The broad outlines of fraud are said to include any cunning, deception, or artifice used, in violation of legal or equitable duty, to circumvent, cheat, or deceive another. The forms it may assume and the means by which it may be practiced are as multifarious as human ingenuity can devise, and the courts consider it unwise or impossible to formulate an exact, definite, and all-inclusive definition of the action. It is synonymous with, or closely allied to, other terms indicating positive and intentional wrongdoing, but is distinguishable from mistake and negligence. Citizens State Bank v. Gilmore, 226 Kan. 662, Syl. ¶ 2, 603 P.2d 605 (1979). Actual fraud is an intentional fraud, and the intent to deceive is an essential element of the action. Constructive fraud, however, is a breach of a legal or equitable duty which, irrespective of moral guilt, the law declares fraudulent because of its tendency to deceive others or violate a confidence, and neither actual dishonesty of purpose or intent to deceive is necessary. Andres v. Claassen, 238 Kan. 732, Syl. ¶ 2, 714 P.2d 963 (1986). A suppression or concealment of the truth is not at all times such fraud or deceit as will be relieved against. DuShane v. Union Nat’l Bank, 223 Kan. 755, 760, 576 P.2d 674 (1978). There must be a concealment of facts which the party is under a legal or equitable duty to communicate and in respect of which he could not be innocently silent. DuShane v. Union Nat’l Bank, 223 Kan. at 759.
Here, the Bank in July 1983 received a notification of the electronic transfer of $252.00 from the Social Security Administration for the benefit or account of Mrs. Grubb. Appellant’s principal argument seems to be that the failure to notify Mrs. Grubb of the receipt of the first funds in July 1983 and the failure to mail her a bank statement that month constituted fraud by concealment. Testimony of the Bank’s employees was to the effect they thought the transfer had been made in error because no previous funds had been received since 1981. They fully expected to receive a notification that the transaction was being reversed and, as a result, failed to immediately notify Mrs. Grubb. They then simply forgot about it until a similar notification was received in August 1983 for an additional $252.00. The Bank officers then checked into the matter, found the outstanding past-due note of Mrs. Grubb, and notified her they would set off the debt against the funds received. Such a determination was made only after consultation with legal counsel, who advised they had the right to declare such a setoff. It appears from the record that within a matter of a few days after declaring the setoff, officials of the Bank offered to pay over the entire $504.00 if Mrs. Grubb would return the loan papers which had been marked paid and mailed to her when the setoff was declared. Evidently this offer was refused by Mrs. Grubb or her legal counsel. It is argued that the Bank intentionally withheld mailing a July statement which would show receipt of $252.00 in order to receive the August Social Security payment which would result in the Bank having sufficient funds on hand to pay the entire indebtedness of Mrs. Grubb. The problem with this argument is there is absolutely no evidence to support it. It is based solely upon conjecture and speculation that the Bank intended to defraud Mrs. Grubb while all the evidence is to the contrary. The very most that can be made of the Bank’s actions is that its employees made a mistake and were possibly negligent in doing so. Under the evidence as disclosed by the record here, the failure to mail a July 1983 bank statement falls far short of a fraudulent failure to disclose that information to Mrs. Grubb. The other arguments relative to the claim of fraud have been carefully considered and are equally without merit. No error on the claim for fraud is shown.
Next, it is contended that the court erred in granting summary judgment on the issue of a claim for punitive damages. It is well settled that punitive damages are imposed to punish a wrongdoer for malicious, vindictive, or willful and wanton invasion of the plaintiff s rights with the purpose being to restrain and deter others from the commission of like wrongs. McDermott v. Kansas Public Serv. Co., 238 Kan. 462, Syl. ¶ 1, 712 P.2d 1199 (1986). An award of punitive damages, which generally requires an award of actual damages, is not designed to compensate the plaintiff for the wrong. McDermott v. Kansas Public Serv. Co., 238 Kan. at 464. No one has the right to maintain a civil action for the mere purpose of inflicting punishment upon a wrongdoer, and if a party has no cause of action independent of his claim for punitive damages, he has no cause of action at all. Sondegard v. Martin, 83 Kan. 275, 277, 111 Pac. 442 (1910). Having determined that the court was correct in its rulings on the tort claims asserted as a basis for recovery, it follows that there is no independent cause of action for punitive damages.
The final issue raised is the claim that the procedure followed by the trial court in entering summary judgment was improper. This issue is based on the fact that the trial court, at the time it granted summary judgment for the defendants, apparently did not have copies of the discovery depositions to review. The depositions had been taken in the federal court action and evidently neither party saw fit to have copies of the depositions filed in this action until after the decision of the trial court. The trial court’s original decision was filed June 12, 1985. The record reflects a motion for reconsideration, pointing out the lack of depositions and other issues, was filed and heard on June 13, 1985. The federal court depositions were then filed with the trial court on June 28, 1985. On July 31, 1985, the trial court’s decision on the motion for reconsideration was filed in which an earlier ruling pertaining to one of the federal court claims was changed, but the prior summary judgment rulings were affirmed. On August 9, 1985, a motion to vacate the prior orders was filed in which the issue relating to the availability of the federal court depositions was again asserted. This motion was overruled in a written decision filed January 15, 1986. The court addressed the state of the record in detail and specifically pointed out that the depositions were part of the record. It is noted the copies of the depositions had been part of the record for over a month prior to the ruling on the first motion to reconsider the decisions of June 12, 1985. The depositions are also part of the record in this appeal.
In the case at bar appellant relies heavily on Timmermeyer v. Brack, 196 Kan. 481, 412 P.2d 984 (1966), in support of his position. In Timmermeyer the trial court entered summary judgment on a claim based largely on counsel’s description of how his various witnesses would testify. This court reversed the trial court judgment, stating:
“The district court should not determine factual issues on considering the propriety of a summary judgment, but should search the record for the purpose of determining whether a factual issue exists. Certainly whether a factual issue exists should not be determined from the statements of counsel, seeking summary judgment, as to what certain witnesses will testify to when the testimony is not of record.
“The record discloses there are material facts to present which leaves remaining a genuine issue of a material fact. Summary judgment was, therefore, erroneously entered.” 196 Kan. at 484.
In the present case, unlike Timmermeyer, it appears that the record, as it existed at the time summary judgment was entered, indicated there were no significant material issues of fact which remained controverted. The litigants had each filed responses to pretrial questionnaires and legal memorandums outlining the factual situation and law as it pertained to summary judgment. In these memorandums all parties made reference to the depositions that are now complained of as not being included in the record. While certain facts remained controverted, none of those were material to the ultimate determination of the claims being asserted against the Bank. We conclude that the trial court correctly entered summary judgment in this case based on the uncontroverted material facts and the existing law, regardless of the absence of the discovery depositions in the record. Any error which may have resulted from the failure of the trial court to have copies of the depositions at the time of its first ruling is harmless at best. See City of Ottawa v. Heathman, 236 Kan. 417, 426, 690 P.2d 1375 (1984).
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The opinion of the court was delivered by
Miller, J.:
This is an appeal by the petitioner, Michael Danko, from an order and judgment of the District Court of Riley County, denying Danko’s petition for a Writ of Habeas Corpus and ordering him remanded to the custody of the appropriate authorities of the State of Arkansas for extradition. Three issues are raised: Whether the extradition documents are sufficient to satisfy petitioner’s Fourth Amendment right to a judicial determination of probable cause; whether the petitioner was illegally detained in Kansas beyond the 30-day period allowed by K.S.A. 22-2715; and whether the Arkansas extradition warrant was defective on its face because it failed to allege that Danko was in Arkansas at the time the offenses were committed.
Michael Danko was arrested in Riley County, Kansas, on December 20, 1985, pursuant to a complaint filed by the State of Kansas requesting his detention pending extradition proceedings on a criminal warrant issued in Arkansas charging Danko with the crime of capital murder, a felony. Danko was taken before the court on December 20, 1985, hearing was set for January 21, 1986, bond was set, counsel was appointed, and the defendant was returned to the Riley County jail in default of bond. On January 21, the State applied for a continuance for the reason that the governor s warrant had not yet been received. The trial court granted the continuance until February 18, 1986. On that date, the extradition documents were presented to the trial court. These included the governor’s warrant issued by the Governor of Kansas; the extradition requisition from the Governor of Arkansas to the Governor of Kansas and the warrant issued by the Governor of Arkansas; the verified request of the Arkansas prosecuting attorney, seeking a requisition from the Governor of Arkansas; the affidavit of the prosecuting attorney, stating informations were filed in the twelfth judicial circuit of Arkansas charging Michael Edward Danko with criminal use of a prohibited weapon, failure to appear, and capital murder, that warrants were issued against Danko for each of those offenses, and that Danko was present in Sebastian County, Arkansas, at the time of the commission of the crimes; copies of the verified complaints filed in Arkansas charging Danko with criminal use of a prohibited weapon, failure to appear, and capital muder, all felonies; affidavits of identification; affidavits of the investigating officers and prosecuting attorney; and an affidavit of the circuit judge, stating that he has reviewed the file and the evidence in the case against Michael Edward Danko, and “I find there is sufficient and probable cause to support the charges of Criminal Use of Prohibited Weapon, Failure to Appear and Capital Murder filed against the said Michael Edward Danko in the Circuit Court of Sebastian County, Arkansas.”
Turning to the first issue, petitioner contends that there is no showing in the file that there was a finding of probable cause by a neutral and detached magistrate in the State of Arkansas before a warrant for the arrest of Michael Danko was issued. The trial court agreed that the requisition and attached documents do not reflect a finding of probable cause prior to the issuance of the original warrants, nor do they supply information upon which such a finding could be made on the charges of capital murder or criminal use of a prohibited weapon, but the trial court found that there was a judicial determination of probable cause on the charge of failure to appear, based upon one of the affidavits and upon the issuance of a bench warrant at the direction of the Arkansas court.
Petitioner relies upon certain language of this court in the case of Wilbanks v. State, 224 Kan. 66, 579 P.2d 132 (1978). The first six paragraphs of the syllabus in that case deal with the initial finding of probable cause, prior to the issuance of search or arrest warrants, and those paragraphs remain the law of this state. The Fourth Amendment to the Constitution of the United States mandates that before a warrant for the arrest of the accused may be issued, there must be a finding of probable cause by a neutral and detached magistrate. That constitutional requirement is applicable to all states by virtue of the due process clause of the Fourteenth Amendment. See authorities cited in Wilbanks, 224 Kan. at 71.
Paragraphs seven and eight of the syllabus to the Wilbanks opinion read as follows:
“Under the Uniform Criminal Extradition Act, K.S.A. 22-2703, a conclusory complaint, void of supporting factual information, does not ‘substantially charge’ the person demanded with having committed an offense, and such a complaint is insufficient to support extradition.”
“In an appeal in a habeas corpus case challenging extradition proceedings, the record is examined and it is held that the complaint filed in the courts of the demanding state, and upon which the arrest warrant was issued, does not disclose probable cause, and therefore the petitioner should be discharged unless the demanding state makes a showing of probable cause within thirty days from the entry of this order.”
Those paragraphs, and corresponding parts of the opinion, deal with the matter of extradition. A few months after our opinion in Wilbanks was handed down, the Supreme Court of the United States decided the case of Michigan v. Doran, 439 U.S. 282, 58 L. Ed. 2d 521, 99 S. Ct. 530 (1978). Since the decision in Doran was announced, paragraphs seven and eight of the Wilbanks syl labus, and corresponding portions of the opinion, are no longer controlling law and they are hereby expressly overruled.
In Doran, the United States Supreme Court said:
“A governor’s grant of extradition is prima facie evidence that the constitutional and statutory requirements have been met. Cf. Bassing v. Cady, 208 U.S. 386, 392 [, 52 L. Ed. 540, 28 S. Ct. 392] (1908). Once the governor has granted extradition, a court considering release on habeas corpus can do no more than decide (a) whether the extradition documents on their face are in order; (b) whether the petitioner has been charged with a crime in the demanding state; (c) whether the petitioner is the person named in the request for extradition; arid (d) whether the petitioner is a fugitive. . . .”
“Under Art. IV, § 2, [of the Constitution] the courts of the asylum state are bound to accept the demanding state’s judicial determination since the proceedings of the demanding state are clothed with the traditional presumption of regularity. In short, when a neutral judicial officer of the demanding state has determined that probable cause exists, the courts of the asylum state are without power to review the determination. Section 2, cl.2, of Art. IV, its companion clause in § 1, and established principles of comity merge to support this conclusion. To allow plenary review in the asylum state of issues that can be fully litigated in the charging state would defeat the plain purposes of the summary and mandatory procedures authorized by Art. IV, § 2. [Citations omitted.]
“We hold that once the governor of the asylum state has acted on a requisition for extradition based on the demanding state’s judicial determination that probable cause existed, no further judicial inquiry may be had on that issue in the asylum state.” 439 U.S. at 289-90.
The record before us discloses that arrest warrants were issued by Arkansas judges on all three charges prior to Danko’s arrest in Riley County. The bench warrant charging Danko with failure to appear on a felony charge was issued upon the order of the judicial officer before whom Danko failed to appear on the weapon charge.
Arkansas courts, like Kansas courts, are required to make a finding of probable cause before issuing arrest warrants. Even though the probable cause information is not contained within the documents provided here, the proceedings in Arkansas are, under Doran, clothed with a presumption of regularity. Under Doran, our courts have no power to review the determination made by the Arkansas courts at the time of the issuance of the original arrest warrants. Additionally, we have the finding of probable cause, made by an Arkansas judge prior to the governor’s requisition and the issuance of the governor’s warrant. A judicial determination that probable cause exists has been made in Arkansas. No further inquiry may be had on that issue in this state.
We summarize the rule as follows: When extradition documents disclose that a judge or magistrate in the demanding state has issued an arrest warrant against the accused on a felony charge, Kansas courts are without power to review the determination of probable cause made by the courts of the demanding state. Even though the documents provided to us may not disclose a basis for a probable cause determination, the fact that a magistrate in the demanding state has issued an arrest warrant conclusively shows, so far as our courts are concerned, that a finding of probable cause has been made. Judicial proceedings in a demanding state are presumed to be regular and in conformity with Constitutional requirements. Any attack on those proceedings must be made, under Doran, in the courts of the demanding state.
The next issue is whether Danko was illegally detained beyond the 30 days authorized by K.S.A. 22-2715. Apparently petitioner made no objection to the order of the trial court entered on December 20, 1985, scheduling the matter for hearing on January 21, 1986. On that date, the trial court, again without objection, continued the matter until February 18, when it was heard. K.S.A. 22-2717 provides that on the date specified, the judge may recommit the accused for a further period not to exceed 60 days. Thus, a continuance until well into March could have been made. While we agree that the order of December 20 was erroneous, and should have fixed a hearing date within 30 days of petitioner’s initial appearance, petitioner made no timely objection and under the circumstances we find no reversible error.
Lastly, petitioner contends that K.S.A. 22-2703 (amended by Laws of Kansas, 1986, Chapter 123, Sec. 17) requires that a demand or requisition for extradition must allege on its face that the accused was present in the demanding state on the date the offenses were committed. While the document does not say on its face that the accused was present in Arkansas on the date the offenses were committed, the document incorporates the attached papers, certified to be authentic, and those verified and authenticated documents clearly disclose that the accused was present in Arkansas when the offenses were committed. We think the statute should not be so narrowly construed, and that not only the face of the requisition but the appended documents must be considered in determining whether the accused’s presence in Arkansas at the time of the commission of the offenses is sufficiently alleged. This appears to be the general rule. See Harris, Petitioner, 309 Mass. 180, 34 N.E. 2d 504 (1941), 135 A.L.R. 969; and Annot., 135 A.L.R. 973, 976. We conclude that the demanding documents now before us sufficiently allege petitioner’s presence in Arkansas when the offenses were committed.
The judgment of the district court, denying the petition of Michael Danko for a Writ of Habeas Corpus, is affirmed. | [
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The opinion of the court was delivered by
McFarland, J.:
This is a breach of express warranty action brought by plaintiff Cricket Alley Corporation against defendant Data Terminal Systems, Inc., (DTS) relative to plaintiff s purchase of certain computerized cash registers. Following a jury trial, judgment was entered in favor of plaintiff for $78,781.79. Defendant appeals therefrom.
Plaintiff operates a number of women’s clothing stores. The business, which had commenced in 1967 with one store, had grown by 1978 to seven or eight stores. The business was headquartered in Wichita. In order to keep up with its expanding business, plaintiff purchased a Wang computer which was located in its general office. The individual stores had NCR cash registers with no capacity to communicate directly with the Wang computer. Price tags of sold merchandise had to be manually sorted and posted to inventory records. The paper cash register tapes had to be physically delivered to the Wichita office and the data then transferred to the computer. Robert Harvey, president and founder of the plaintiff company, was desirous of modernizing the company’s operation. He was aware that technology existed whereby computerized cash registers in individual stores could communicate with the central computer via telephone lines. Inventory, layaway, sales, and payroll record keeping could then be greatly simplified and expedited. Inasmuch as the company already owned the Wang computer, any cash register system purchased for the stores had to be compatible with the Wang equipment. In 1980, Harvey saw an advertisement in a trade magazine featuring Wang computers and DTS cash registers working together. In January of 1981, Harvey attended a convention of the National Retail Merchants Association in New York City. Manufacturers of equipment utilized by retail merchants had displays at the convention. DTS had rented a ballroom in which to display its wares to those attending the convention. Harvey was attracted to the DTS display because of the magazine advertisement he had seen. In the DTS display area there was a Wang computer and a DTS cash register working together. Harvey asked a DTS representative present at the display if Wang and DTS equipment really could communicate with each other and the DTS representative stated that they did. Harvey was not an expert on these types of equipment and did not know which model Wang his company owned. He asked if “it will work on all Wangs” and the DTS representative responded affirmatively. Harvey made inquiries to other DTS personnel in the display area about DTS capabilities. Satisfied with their responses, Harvey inquired about purchasing DTS equipment. He was provided with the names and addresses of DTS dealers in Joplin, Denver, Omaha, and Kansas City.
Harvey hired Steve Axon, a computer programmer, and they conferred with Jim Hunter, a Wang employee, and Bob Mann, of Kansas City Cash Register (the Kansas City DTS dealer), about the particular programs they were seeking. Ultimately, plaintiff agreed to purchase ten DTS cash registers. Included in the system was an ANS-R-TRAN which is a combination of hardware and software. It is a circuit for electronic equipment that plugs into the cash register and is a necessary component if the cash registers were to communicate with a computer. Some of the software in the ANS-R-TRAN comes from DTS. The ANS-R-TRAN owners program reference guide was delivered to plaintiff either shortly before purchase of the equipment or shortly thereafter. This guide, prepared by DTS, indicated that the DTS cash registers would be able to communicate with the computer to perform the functions needed by plaintiff.
The DTS equipment was delivered to plaintiff s home office. All manner of problems, or “bugs,” developed when the equipment was being programmed. Meanwhile, the old NCR cash registers in the stores started breaking down and replacement parts were unavailable. Finally, although not functioning as a computerized system, the new DTS equipment was placed in the stores to perform basic cash register functions. The specific difficulties will be discussed elsewhere in this opinion. The fundamental problem was the inability of the Wang computer and the DTS equipment to communicate with each other. There was testimony at trial placing the problem of deficiency in the DTS equipment. Ultimately, plaintiff replaced the DTS equipment with that manufactured by IBM. This equipment then functioned as a system. Plaintiff brought this action against Wang, Kansas City Cash Register, and DTS. Wang and Kansas City Cash Register settled with plaintiff and only the claims against DTS proceeded to trial. At trial, a verdict, in the amount of $78,781.79, was entered in favor of plaintiff and against DTS. The case before us is an appeal by DTS from that judgment.
LIABILITY
For its first issue, DTS challenges the sufficiency of the evidence relative to liability. Specifically, DTS contends the district court erred in not granting its motions for summary judgment, directed verdict, judgment notwithstanding the verdict, and for new trial. It is the position of DTS that there was insufficient evidence of an express warranty or any breach thereof.
While evidence of the existence of the express warranty is certainly not overwhelming, we believe it was sufficient for submission to the jury. The jury could have concluded that DTS advertised that its products could communicate with Wang products; that these advertisements induced plaintiff s president to visit the DTS showroom where he saw a display showing Wang and DTS cash registers communicating and was told by a DTS employee that such communication capability was a fact; and that the ANS-R-TRAN manual published by DTS reinforced this representation as to DTS equipment’s capability. The evidence clearly showed that the capability of any new equipment to communicate with plaintiff s Wang computer was the prime consideration in selecting new cash registers. Under such circumstances the district court did not err in overruling the respective motions.
Next, DTS argues that the evidence of any breach of express warranty was insufficient. DTS argues that since plaintiff s own evidence showed that occasionally the Wang computer and the DTS cash registers could communicate, the express warranty that they could communicate was satisfied. This argument lacks merit. Certainly a warranty that the Wang and DTS equipment could communicate carries with it the necessity that such communication would be reliably regular and consistent. Undependable communication is, in some ways, worse than no communication at all.
Finally, DTS argues that the evidence was insufficient to place the fault for the failure to communicate on the DTS equipment. We do not agree. The evidence showed the DTS equipment had like problems when attempting to communicate with a different Wang computer. An expert testified that, through a process of elimination, he concluded the fault was in the DTS equipment. Further, the Wang computer was able to communicate with the subsequently purchased IBM equipment.
INSTRUCTIONS
For its next issue, DTS contends that certain instructions were erroneous.
Instruction No. 4 states:
“In the manufacture and sale of goods, any representation of fact or promise that relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods will conform to the representation or promise.
“A manufacturer whose product does not conform to the representation or promise is liable for the damages that could reasonably be expected.”
The instruction is a modification of PIK Civ. 2d 13.15. Defendant objects to the addition of the word “manufacture” in the first sentence and substituting the word “manufacturer” for “seller” in the second sentence. Although K.S.A. 84-2-313 provides for express warranties by the seller, Official UCC Comment No. 2 for the section states, in part:
“Although this section is limited in its scope and direct purpose to warranties made by the seller to the buyer as part of a contract for sale, the warranty sections of this Article are not designed in any way to disturb those lines of case law growth which have recognized that warranties need not be confined either to sales contracts or to the direct parties to such a contract.”
Kansas Comment to K.S.A. 84-2-313 states, “Even advertising by a manufacturer may become an express warranty.” DTS does not seriously argue that manufacturers have no liability for breach of express warranties.
PIK Civ. 2d 13.15 is designed for use where violation of K.S.A. 84-2-313 is alleged in a transaction between a buyer and a seller. Liability for breach of an express warranty by a manufacturer is not predicated upon K-S.A. 84-2-313. However, the modification of PIK Civ. 2d 13.15 contained in Instruction No. 4 is an adequate instruction for the alleged breach of the express warranty by the manufacturer (DTS) herein.
Next, plaintiff contends that the instruction was too broad as it did not limit the jury’s consideration to warranties made by DTS. It is argued that the jury was free to impute statements to DTS made by the dealer (Kansas City Cash Register). Errors regarding jury instructions will not demand reversal unless they result in prejudice to the appealing party. Instructions in any particular action are to be considered together and read as a whole, and, where they fairly instruct the jury on the law governing the case, error in an isolated instruction may be regarded as harmless. If the instructions are substantially correct, and the jury could not be reasonably misled by them, the instructions will be approved on appeal. Trout v. Koss Constr. Co., 240 Kan. 86, Syl. ¶ 1, 727 P.2d450 (1986); Douglas v. Lombardino, 236 Kan. 471, 480, 693 P.2d 1138 (1985); Powers v. Kansas Power & Light Co., 234 Kan. 89, 92, 671 P.2d 491 (1983). Instruction No. 2, the “elements” instruction, speaks of warranties of DTS and plaintiff s purchase of the equipment in reliance on the DTS warranty. We believe that the instructions when read as a whole adequately informed the jury on the applicable law.
DTS also complains of Instruction No. 5, which provides:
“A buyer claiming breach of an express warranty related to performance need not prove a specific defect or reason why a product did not perform. Liability for the breach of an express warranty related to performance is the failure of the product to operate or perform in the manner warranted by the manufacturer.”
DTS concedes this instruction is a correct statement of the law, but contends in this case it “placed an emphasis on plaintiff s theory of the case” and was misleading because the DTS equipment was a component part of a system that did not work properly. This point is without merit. The instruction simply means that plaintiff did not have to prove what was wrong in the design or manufacture of the DTS equipment which caused it not to perform as warranted — only that it did not function as warranted. The instruction did not relieve plaintiff of the burden to establish that the DTS equipment had failed to perform as warranted.
Finally, DTS complains that the district court erred in refusing to give certain requested instructions. We have carefully reviewed the record and find no reversible error in any of the particulars alleged.
CONSEQUENTIAL DAMAGES
In this action plaintiff sought consequential and incidental damages. DTS contends that, as a matter of law, plaintiff was not entitled to recover any consequential damages and consideration of same should not have been submitted to the jury.
The parties concede K.S.A. 84-2-714 and -715 constitute the applicable law.
K.S.A. 84-2-714 provides for a buyer’s damages for goods which have already been accepted, as here, by the buyer:
“(1) Where the buyer has accepted goods and given notification (subsection (3) of section 84-2-607) he may recover as damages for any nonconformity of tender the loss resulting in the ordinary course of events from the seller’s breach as determined in any manner which is reasonable.
“(2) The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount.
“(3) In a proper case any incidental and consequential damages under the next section may also be recovered.”
Kansas Comment 1983 to this statute states, in part:
“Subsection (3) merely states that the buyer is entitled to recover any incidental and consequential damages under 84-2-715.”
K.S.A. 84-2-715 provides:
“(I) Incidental damages resulting from the seller’s breach include expenses reasonably incurred in inspection, receipt, transportation and care and custody of goods rightfully rejected, any commercially reasonable charges, expenses or commissions in connection with effecting cover and any other reasonable expense incident to the delay or other breach.
“(2) Consequential damages resulting from the seller’s breach include
(a) any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise; and
(b) injury to person or property proximately resulting from any breach of warranty.” (Emphasis supplied.)
The consequential damages consist of increased labor costs attributable to the failure of the DTS cash registers to communi cate with the Wang computer. DTS contends that it did not know the general or particular requirements and needs of plaintiffs business at the time the express warranties were made and, hence, has no liability under K.S.A. 84-2-715(2)(a) for consequential damages.
Official UCC Comment No. 3 to K.S.A. 84-2-715 provides, in pertinent part:
“In the absence of excuse under the section on merchant’s excuse by failure of presupposed conditions, the seller is liable for consequential damages in all cases where he had reason to know of the buyer’s general or particular requirements at the time of contracting. It is not necessary that there be a conscious acceptance of an insurer’s liability on the seller’s part, nor is his obligation for consequential damages limited to cases in which he fails to use due effort in good faith.
“Particular needs of the buyer must generally be made known to the seller while general needs must rarely be made known to charge the seller with knowledge.” (Emphasis supplied.)
DTS concedes that K.S.A. 84-2-715(2)(a) is “simply a codification” of the old tests contained in Hadley v. Baxendale, 9 Ex. 341, 156 Eng. Rep. 145, 5 Eng. Rul. Cas. 502 (1854).
Computerized cash registers are manufactured for use in retail business establishments. DTS sought to attract retail merchants to their products by advertising in trade magazines and the setting up of a major display of their wares at a national convention of the National Retail Merchants Association where it employed a number of persons to be on hand to answer questions of the convention delegates concerning its products. DTS computerized cash registers are expensive and sophisticated pieces of equipment and the market for them lies largely in the more complex retail establishments. The “mom and pop” grocery store operation is, obviously, not the prime market for such products. The submission of data from the cash registers to the mainline computer on sales, payrolls, inventory, etc. is a common feature of such equipment and the failure of the cash registers to do so would foreseeably create additional labor costs for the afflicted retail merchants. The additional labor costs sought by plaintiff, herein, as consequential damages are not attributable to any unique features of plaintiff s business. We conclude that consequential damages as an element of plaintiff s damages were properly submitted to the jury herein.
DAMAGE AWARD
DTS contends that the evidence is insufficient to support the damage award of $78,781.79. Consequential and incidental damages were the only damages sought by plaintiff.
Defendant contends that the damages evidence was speculative and not based upon reasonable certainty. In Stair v. Gaylord, 232 Kan. 765, 659 P.2d 178 (1983), a farmer sought to recover for damages done to his 1979 strawberry crop due to a faulty irrigation system. In order to show damage, plaintiff showed evidence of the difference in his strawberry crop profits between 1979 and other years. Defendant argued the evidence was speculative. The trial court agreed and directed a verdict for the defendants. On appeal, this court reversed, stating:
“The basic objective of damages under the UCC is ‘that the aggrieved party may be put in as good a position as if the other party had fully performed . . . .’ K.S.A. 84-1-106(1). One commentator has stated: ‘Without incidental and consequential damages this goal would be unreachable in many cases .... The availability of consequential damages is vital. It may mean the difference between recovering one dollar, the price of a defective part, and one million dollars, the damages caused as a result of the defective part, in personal injury, lost profits, and more.’ Rasor, Kansas Law of Sales Under the UCC § 10-11, pp. 10-36, 10-37. See also La Villa Fair v. Lewis Carpet Mills, Inc., 219 Kan. 395, 406, 548 P.2d 825 (1976).
“Under the UCC consequential damages need not be proven with any particular degree of certainty. Indeed, one purpose of subsection (1) of K.S.A. 84-1-106 ‘is to reject any doctrine that damages must be calculable with mathematical accuracy. Compensatory damages are often at best approximate: they have to be proved with whatever definiteness and accuracy the facts permit, but no more.’ Official UCC Comment, § 1-106. . . .
“. . . The evidence shows the dramatic reduction in production and sales for 1979. The appellees vigorously cross-examined the Stairs [plaintiffs] thereby informing the jury the expense items were incomplete. The appellant was not required to provide an exact dollar amount of damages. The evidence presented a valid question of fact from which the jury could have rendered a verdict.” 232 Kan. at 773-74.
K.S.A. 84-2-715, Official UCC Comment No. 4, states “the section on liberal administration of remedies rejects any doctrine of certainty which requires almost mathematical precision in the proof of loss. Loss may be determined in any manner which is reasonable under the circumstances.”
Evidence submitted to the jury on damages included em ployee payroll spread sheets that indicated not only dollar expenses but the percentage of time each employee performed manual tasks which would have been unnecessary had the DTS equipment performed satisfactorily the functions needed by plaintiff and warranted by defendant. Testimony was admitted which supported the functions performed and time involved to accomplish them. The witnesses were vigorously cross-examined as to what costs were attributable to the failure of the DTS equipment to perform properly. Plaintiff claimed $191,517.03 in damages. The verdict awarded $78,781.79 in damages. A question of fact was determined by the jury. After carefully reviewing the record, we conclude the damage award is adequately supported by the evidence.
All other points raised have been considered and are held to be without merit.
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The opinion of the court was delivered by
Schroeder, C.J.:
This is a direct appeal taken by the defendant, Donald Eugene Alexander, from his convictions by a Douglas County jury of first-degree murder (K.S.A. 21-3401), rape (K.S.A. 1985 Supp. 21-3502[b]), and aggravated burglary (K.S.A. 21-3716). Numerous trial errors are asserted on appeal.
On the morning of August 5,1984, the dead body of Mrs. V., an 80-year-old woman, was found in her bedroom lying in a pool of blood. An autopsy revealed the victim had suffered severe blows to her head by an instrument and had been sexually assaulted by a rigid instrument inserted into her anus. The victim’s death was estimated to have occurred sometime between 10:00 p.m. on August 4, 1984, and 9:00 a.m. on August 5, 1984.
After seventeen days, the investigation of Mrs. V.’s death had reached a stalemate and the police officers returned to the victim’s neighborhood to re-interview persons living there. The defendant lived next door to the victim with his parents. The defendant accompanied two detectives to the police station at approximately 10:00 a.m. At 6:50 p.m., that same day, the defendant confessed to killing Mrs. V. The facts surrounding his confession will be discussed later in this opinion.
The defendant was charged and convicted of first-degree murder, rape, and aggravated burglary. His defense was not guilty by reason of insanity.
The defendant first asserts the trial court erred by allowing a jailer to testify that he had observed the defendant in jail and had observed nothing unusual in his behavior. The defendant does not object to a lay person’s testimony concerning the defendant’s sanity, but does object to the jailer mentioning that the defendant was incarcerated.
The last witness the State called in its case in chief .was Greydon Walker, a Douglas County jailer where the defendant was being held. He stated he had had the opportunity to observe the defendant as there were cameras which monitored the inmates inside their cells. The defendant objected to the reference to his incarceration and a hearing on the objection was held outside the jury’s presence. The State stated the sole purpose of calling Mr. Walker was to present lay testimony regarding the defendant’s demeanor. In a proffer to the court, Mr. Walker stated he had observed nothing unusual in the defendant’s behavior since he had been in jail. Rased upon that proffer, the trial court allowed Mr. Walker to testify. When the jury returned, Mr. Walker testified that from December 6, 1984, on, he had noticed nothing “unusual or irrational” in the defendant’s behavior.
The defendant argues the testimony of Mr. Walker was “nothing more than a direct attempt by the State to underline the fact that the defendant was incarcerated before the trial and during the trial.”
First, in an insanity case, lay testimony is permissible concerning the defendant’s sanity at the time of committing the crime provided the trial judge finds the opinion is rationally based on the witness’ perception and is helpful to a clearer understanding of his testimony. State v. Randol, 212 Kan. 461, 468, 513 P.2d 248 (1973), and cases therein cited. See State v. Shultz, 225 Kan. 135, 137, 587 P.2d 901 (1978). Here, the crime was committed August 4, 1984, and Mr. Walker testified to the defendant’s behavior after December 6, 1984, over four months later. His testimony did not concern the defendant’s behavior during a time period that was sufficiently close to the time the crime was committed.
Second, the defendant cites Estelle v. Williams, 425 U.S. 501, 48 L. Ed. 2d 126, 96 S. Ct. 1691,, reh. denied 426 U.S. 954 (1976), to support his argument it was error to allow testimony that the defendant was in jail. The defendant in Estelle was also in custody before and during his trial. He had asked for, but was denied, civilian clothes to wear during the trial. The defendant did not object to this denial, however, until after his conviction, in a writ of habeas corpus. The Supreme Court ruled that consistent with the Fourteenth Amendment the State cannot compel an accused to stand trial by a jury wearing identifiable prison clothes; however, because the defendant did not make a timely objection, there was no compulsion and no error. 425 U.S. at 512-13.
Kansas has addressed the issue of a defendant wearing prison clothes during his jury trial and has ruled that a defendant’s appearance in prison clothes does not in and of itself constitute reversible error, that prejudice to the defendant must be shown. State v. Hall, 220 Kan. 712, 715, 556 P.2d 413 (1976). See State v. Morgan, 231 Kan. 472, 479, 646 P.2d 1064 (1982), State v. Gilder, 223 Kan. 220, 225, 574 P.2d 196 (1977).
Other jurisdictions have held where the defendant is seen in shackles, handcuffs, or prison clothes by the jury, such error was harmless error in light of the evidence presented of defendant’s guilt. Mitchell v. Engle, 634 F.2d 353 (6th Cir. 1980); Boswell v. State of Ala., 537 F.2d 100 (5th Cir. 1976); State v. Reid, 114 Ariz. 16, 559 P.2d 136 (1976), cert. denied 431 U.S. 921 (1977); People v. Jacla, 77 Cal. App. 3d 878, 144 Cal. Rptr. 23 (1978); Fernandez v. United States, 375 A.2d 484 (D.C. 1977); and State v. Leggett, 363 So. 2d 434 (La. 1978).
This case, where the jury is told the defendant was observed in jail, and the above cases, where the defendant was seen by the jury in prison clothes or handcuffed, are analogous. In both, the jury discovered the defendant was incarcerated during trial. Such information is contrary to the presumption of innocence and it was erroneous for the trial court to allow the jailer’s testimony. However, was it harmless error? In applying the Kansas harmless error rule (K.S.A. 60-2105), a reviewing court must be able to declare the error had little, if any, likelihood of having changed the result of the trial and the court must be able to declare such a belief beyond a reasonable doubt. State v. Abu-Isba, 235 Kan. 851, 859, 685 P.2d 856 (1984); State v. Johnson, 231 Kan. 151, 159, 643 P.2d 146 (1982). Here, testimony that the defendant was in jail had little likelihood of affecting the outcome of the trial in light of the defendant’s confession, which will be discussed later, and the testimony of the various experts regarding his mental capacity.
The defendant’s second issue is that the trial court abused its discretion in allowing the State to recall Dr. Herbert Modlin as a rebuttal witness.
In its case in chief, the State introduced evidence that the defendant was sane at the time of the crime through the testimony of Dr. Modlin. During the presentation of the defendant’s case, Dr. Elias Chédiak testified the defendant did not know the difference between right and wrong at the time of the crime because the defendant suffered from a “brief reactive psychosis.” Dr. Chédiak explained a “brief reactive psychosis” appears when a person is exposed to a psychosocial stressor and experiences a severe distress. The resulting effect can be a state of confusion, suicidal or aggressive tendencies, hallucinations, or delusions. The “brief reactive psychosis” lasts from a few hours to two weeks, with the person eventually returning to his previous level of functioning. Dr. Chédiak also explained that the term “psychosis” means the loss of contact with reality and that a person suffering from the above diagnosis can lose the ability to distinguish between right and wrong.
Dr. Chédiak was the last witness the defendant called. On rebuttal the State recalled Dr. Modlin to testify. The State asked Dr. Modlin if he had an opinion whether the defendant suffered from any “brief reactive psychosis,” and the defendant objected on the basis this was not proper rebuttal. The State responded that Dr. Chediak’s testimony was the first time it had learned the defendant suffered from a “brief reactive psychosis,” as that diagnosis was not included in Dr. Chediak’s written psychological evaluation provided to the State. The trial court overruled the defendant’s objection and allowed the rebuttal testimony of Dr. Modlin. Dr. Modlin testified that, in his opinion, at the time the defendant entered and left the victim’s house, the defendant did not suffer from a “brief reactive psychosis.”
On many occasions this court has stated the law concerning rebuttal testimony:
“Rebuttal evidence is that which contradicts evidence introduced by an opposing party. It may tend to corroborate evidence of a party who first presented evidence on the particular issue, or it may refute or deny some affirmative fact which an opposing party has attempted to prove. It may be used to explain, repel, counteract or disprove testimony or facts introduced by or on behalf of the adverse party. Such evidence includes not only testimony which contradicts the witnesses on the opposite side, but also corroborates previous testimony. The use and extent of rebuttal rests in the sound discretion of the trial court and its ruling will not.be reversed unless it appears the discretion has been abused to a party’s prejudice.” State v. Weigel, 228 Kan. 194, 200, 612 P.2d 636 (1980).
See State v. Lovelace, 227 Kan. 348, 353, 607 P.2d 49 (1980); State v. Shultz, 225 Kan. 135, 138, 587 P.2d 901 (1978); State v. Phipps, 224 Kan. 158, 161, 578 P.2d 709 (1978); State v. Stuart and Jones, 223 Kan. 600, 604, 575 P.2d 559 (1978).
Here the trial court did not abuse its discretion in allowing the rebuttal testimony. Dr. Chediak’s psychological evaluation provided to the State made no mention of a “brief reactive psychosis”; rather, the evaluation concluded the defendant suffered from a “major depressive illness.” We note that in its case in chief the State questioned Dr. Modlin whether, in his opinion, the defendant suffered from a “major depressive illness” and his answer was no. While Dr. Modlin testified he relied on the “Diagnostic and Statistical Manual of Disorders-III” (DSM-III), he did not state that manual was the basis for his opinion, as the defendant argues. Furthermore, the defendant misstates Dr. Modlin’s case-in-chief testimony when the defendant argues Dr. Modlin testified the defendant suffered from no DSM-III disorders. While the “brief reactive psychosis” is one disorder listed in the DSM-III, Dr. Modlin was only questioned during the State’s case in chief whether the defendant suffered from a “major depressive illness,” and not whether he suffered from any of the many mental disorders contained in the DSM-III. Dr. Modlin did not touch upon the disorder of a “brief reactive psychosis” in the State’s case in chief, and, therefore, he did not testify to the same thing twice. The rebuttal testimony was proper.
The third issue is whether the trial court erred in denying the defendant’s motion for a change of venue. In support of his motion for a change of venue the defendant submitted twelve Lawrence Journal World newspaper articles, three University of Kansas newspaper articles, four television reports, one radio report, two Topeka Capital Journal newspaper articles, two Lawrence editorials concerning crime and police work, one religious pamphlet received by the defendant, and one hateful letter sent to the defendant’s home address.
The issue of whether it was error to deny a motion for a change of venue was recently discussed in State v. McKibben, 239 Kan. 574, 579, 722 P.2d 518 (1986), as follows:
“K.S.A. 22-2616(1) allows a change of venue once ‘the court is satisfied that there exists in the county where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial in that county.’ The granting of a change of venue lies within the sound discretion of the trial court. State v. Sanders, 223 Kan. 273, 280, 574 P.2d 559 (1977). The burden is on the defendant to establish prejudice as a demonstrable reality, and not as a matter of speculation. Specific facts and circumstances must be established to indicate it will be practically impossible for the defendant to obtain an impartial jury to try the case. State v. Haislip, 237 Kan. 461, 485-86, 701 P.2d 909, cert. denied 474 U.S. 1022 (1985); State v. Hill, 223 Kan. 648, 650-51, 664 P.2d 840 (1983). Media publicity alone will not establish prejudice per se. State v. May, 227 Kan. 393, 395, 607 P.2d 72 (1980); State v. Gander, 220 Kan. 88, 92, 551 P.2d 797 (1976).”
We have reviewed the articles and find they are factual and objective. We note that after the defendant’s pretrial motion for a change of venue had been denied, the matter of pretrial publicity was taken up during voir dire. The jury panel was asked a three-part question: whether they had heard or read anything about the case; and if so, whether that would lead them to be predisposed about the case; and if so, whether they could set aside their predispositions and be fair and impartial. Thirty-five panel members responded they had read or heard something about the case. Twenty-seven of those thirty-five stated they had formed no predispositions; five stated they had formed a predisposition but could set it aside and act fairly and impartially; three jurors stated they could not set aside their predispositions and those jurors, only three out of the thirty-five, were struck for cause.
In his brief the defendant cites the statement of panelist Baxter to show the degree of prejudice against the defendant in the community.
“PANELIST BAXTER: Yes, I have read about the case; and if by ‘predisposition/ you mean forming an opinion, I would think at the present time I have an opinion which was based upon the — what I considered the facts available to me at the time. However, this would not prevent me from reviewing the whole thing if new facts were presented.”
The defendant, however, fails to cite the complete questioning by defense counsel which includes responses by Mr. Baxter that he had an open mind and he could set aside any predisposition and reach a fair and impartial verdict. Defense counsel did not seek to have Mr. Baxter removed for cause.
Here, the defendant has failed to meet his burden of establishing prejudice by a demonstrable reality. The media reports are factual and objective in nature and were printed or released nearly four months prior to trial. Of the thirty-five jurors who had heard or read the media coverage, the three who stated they could not be fair and impartial were struck for cause. The trial court did not abuse its discretion in denying the defendant’s motion for a change of venue.
The fourth and fifth issues raised concern events surrounding the questioning of the defendant, the collecting of samples of the defendant’s pubic hair and body hair, and the giving of his confession.
First, the defendant argues the trial court erred in refusing to suppress the defendant’s hair samples. The defendant argues that although the defendant consented to the gathering of such evidence at the time, his consent was not voluntary but was the product of subtle pressures of the police officers.
On August 22, 1984, over two weeks after the crime, two detectives were assigned to interview the defendant. They had not interviewed him before. When the officers arrived at the defendant’s house at approximately 10:00 a.m., the defendant and his father were standing in the driveway. The defendant agreed to talk to the detectives at the police station and went with them in their car. The interview started at approximately 10:10 a.m. in an interview room. The defendant was not under arrest and was free to go. The police were looking for general information and asked what the defendant was doing on August 4, 1984. From 10:10 to 10:45 a.m., the defendant described his activities. He stated he had been in the victim’s house a week and a half before the crime and had used the bathroom. At 10:45 a.m., the police asked to take the defendant’s fingerprints, hand-prints, and samples of his pubic hair and body hair. The detectives testified the defendant was not a suspect at this time. They testified they had asked for the samples as part of tire elimination process — a lot of physical evidence had been collected at the crime scene and the defendant had stated he had been in the victim’s house. This same request had been made of other people interviewed. The defendant consented to their request and, at approximately 11:15 a.m., pulled and cut his own hairs. The defendant was not told he did not have to give the samples. At 11:37 a.m., after the samples were taken, the defendant was read his Miranda rights, and at 11:41 a.m., he signed a written waiver form waiving those rights.
The defendant’s pretrial motion to suppress the hair samples was denied by the trial court based upon findings that the defendant went voluntarily with the detectives, he was not under arrest, he was free to leave, the purpose of the interview was to explore leads and gain information, and it was understandable why the samples were requested in a follow-up investigation.
The defendant argues the hair samples should have been suppressed. The defendant does not argue that he should have been read his Miranda rights before the samples were taken, but does argue the fact that the Miranda rights were not read until after the samples were taken goes to the question of whether the defendant’s consent was voluntary.
The scope of review on this issue has been often stated. If the findings of the trial court on a motion to suppress evidence are based upon substantial evidence, this court on review will not substitute its view of the evidence for that of the trial court. State v. Nicholson, 225 Kan. 418, 423, 590 P.2d 1069 (1979); State v. Johnson, 223 Kan. 185, 187, 573 P.2d 595 (1977); State v. Youngblood, 220 Kan. 782, Syl. ¶ 2, 556 P 2d 195 (1976).
In State v. Buckner, 223 Kan. 138, 574 P.2d 918 (1977), the defendant argued the taking of hair samples was illegal because the defendant did not voluntarily consent. This court stated that assuming the taking of the hair samples constituted a search not conducted incident to a lawful arrest, the State had the burden to prove by a preponderance of the evidence that the defendant voluntarily consented to the search. 223 Kan. at 143. This court went on to say:
“The existence and voluntariness of a consent to search and seizure is a question of fact to be decided in light of attendant circumstances by the trial court and will not be overturned on appeal unless clearly erroneous. (State v. Jakeway, 221 Kan. 142, 146, 558 P.2d 113, and authorities cited therein.)” 223 Kan. at 144.
Here, there is evidence to support the trial court’s findings. The defendant freely accompanied the police officers to the police station, he cut and pulled his own hair samples, and even after he was read his Miranda rights he waived them and agreed to talk. At the time the samples were taken, the defendant was free to leave and was not under arrest.
Next, the defendant argues his confession was not voluntarily given but was the result of “sophisticated and subtle modes of persuasion” used by the police officers.
After the defendant was read his Miranda rights at 11:37 a.m., and had signed a written waiver at 11:41 a.m., the defendant described the kind of cigarettes he had purchased the night of August 4, 1984 — Marlboro Reds in a soft package. A package of this brand had been discovered inside a door to the victim’s garage. When asked what shoes he had been wearing that night the defendant replied the very shoes he had on. At approximately 12:09 p.m., the police asked if they could have the defendant’s shoes to test them for blood and the defendant gave the officers his shoes. The defendant was asked if he had attacked the victim and he responded “No.” Shortly after that statement, the defendant asked to go home and the interview concluded at 12:47 p.m. The defendant did not want to leave the police station without shoes, so he waited while the officers located another pair.
At approximately 1:13 p.m., the officers-asked if they could search the defendant’s bedroom and the defendant gave them permission. The officers and the defendant arrived at the defendant’s house at 1:30 p.m. and stayed there for 30 minutes. While at his home, the police did not ask the defendant any questions. The defendant was given the opportunity to eat while at home, but he declined. The police officers did not consider the defendant to be in custody at this time.
The defendant and the same two detectives then drove to the Kansas Bureau of Investigation headquarters in Topeka for a polygraph examination. They arrived at 3:45 p.m. The defendant was left with a KBI agent, Ron Blum, while the two detectives went to eat. The defendant understood why he was there and was read his Miranda rights again at 3:50 p.m. The defendant indicated he understood his rights, signed a waiver form, and agreed to speak. Agent Blum explained the defendant was there on a voluntary basis and was free to leave at any time. The defendant was questioned from 3:50 p.m to 6:15 p.m. Just before the defendant confessed to the crime, Agent Blum told the defendant that “whoever committed that type of crime it was not normal behavior” and told the defendant the person “may need some clinical help.” When the defendant said, “Okay I did it” the two detectives were then called into the room, the defendant was again reminded of his rights, and he gave a written confession at 6:36 p.m. The defendant was then advised he was under arrest for aggravated battery, he was handcuffed and returned to Lawrence at 8:17 p.m.
The defendant objected to the admission of the confession at the preliminary hearing. The trial court overruled the objection and at a subsequent hearing ruled the confession was admissible.
The defendant argues his confession was the result of mental and physical coercion, and that subtle pressures were used by the police officers — picking the defendant up, leaving him without his own mode of transportation, taking his shoes, searching his room, and ultimately telling the defendant that the person who committed the crime needed clinical help. The defendant also argues that he was temporarily denied food.
The issue of the voluntariness of a confession was addressed in State v. Waugh, 238 Kan. 537, 541, 712 P.2d 1243 (1986), as follows:
“K.S.A. 22-3215(4) places the burden of proving that a confession or admission is admissible on the prosecution. . . . When a trial court determines at a hearing that a defendant’s extrajudicial statement was freely, voluntarily and intelligently given and admits the statement into evidence at trial, the appellate court will not reverse such determination if it is supported by substantial competent evidence. State v. Lilley, 231 Kan. 694, Syl. ¶ 6, 647 P.2d 1323 (1982).
“When determining the voluntariness of a confession, one views the totality of the circumstances, including: (1) the duration and manner of interrogation; (2) the accused’s ability upon request to communicate with the outside world; (3) the accused’s age, intellect and background; and (4) the fairness of the officers in conducting the interrogation. State v. Newfield, 229 Kan. 347, 623 P.2d 1349 (1981).
“Under the Fourteenth Amendment due process voluntariness test, a case-by-case evaluation approach is employed to determine whether coercion was impermissibly used in obtaining a confession. Coercion in obtaining a confession from an accused can be mental as well as physical. In determining the voluntariness of a confession of crime, the question in each case is whether the defendant’s will was overborne at the time of the confession; if so, the confession cannot be deemed the product of a rational intellect and a free will. State v. Soverns, 215 Kan. 775, 777, 529 P.2d 181 (1974).”
There is substantial competent evidence to support the trial court’s finding the defendant’s confession was admissible. The defendant was given Miranda warnings twice — at 11:37 a.m. and at 3:50 p.m. He was also reminded of those rights prior to giving his written confession. The defendant was questioned from 10:10 a.m. to 12:47 p.m., then from 3:50 p.m. to 6:36 p.m., a total of approximately five and one-half hours. While the defendant did drink only two Cokes from 10:00 a.m. to 6:00 p.m., he was offered food at his house at approximately 1:30 p.m. and he was offered food before leaving for Topeka at 2:35 p.m., and he declined. He requested a hamburger at 3:30 p.m. or 4:00 p.m., when the two detectives left to get something to eat. The detectives returned at approximately 5:00 p.m., and the defendant was not given that food until 6:40 p.m., but even then he did not eat it until he arrived in Lawrence at 8:17 p.m. The defendant, an eighteen-year-old high school graduate, did not appear to be under the influence of drugs or alcohol. Agent Blum testified the defendant was not overly tired, exhausted, or under duress. The confession was properly admitted into evidence.
The defendant’s sixth issue is whether the trial court erred in not granting the defendant’s motion for a judgment of acquittal made after presentation of all the evidence. The defendant argues the State failed to fulfill its burden to prove, beyond a reasonable doubt, that the defendant was sane at the time the crimes occurred.
Two relatively recent cases dealt with the granting or denial of a motion for a judgment of acquittal where the defendant asserted an insanity defense. State v. Baker, 236 Kan. 132, 689 P.2d 803 (1984); State v. Boan, 235 Kan. 800, 686 P.2d 160 (1984). In both cases this court ruled the trial court properly denied the defendant’s motion. The applicable law was stated in State v. Boan, 235 Kan. at 811-12, as follows:
“In State v. Nemecheck, 223 Kan. 766, 576 P.2d 682 (1978), it is stated:
“ ‘There is presumption of sanity in a criminal proceeding that may be relied upon by the prosecution to establish a prima facie case. [Citation omitted.] The prosecution is never required to introduce evidence of sanity until some evidence is introduced which, if believed by the jury, could raise a reasonable doubt as to a defendant’s sanity at the time the offense was committed. [Citations omitted.] This evidence may come from either the defendant or the state. [Citations omitted.] The term “evidence,” however, does not include the insanity plea or opening statements. Neither rebuts the presumption of sanity. [Citations omitted.] . . .
“ ‘The presumption of sanity is rebutted when evidence is introduced which could raise a reasonable doubt concerning a person’s sanity. (State v. Johnson [92 Kan. 441, 447, 140 Pac. 839 (1914).] At that point the question of sanity becomes a question for the jury, assisted by proper instructions. (State v. Johnson, 223 Kan. 237, 240, 573 P.2d 994 [1977]; State v. Coltharp, [199 Kan. 598, 603, 433 P.2d 418 (1967)]; State v. Mendzlewski, [180 Kan. 11, 14, 299 P.2d 598 (1956)]. If the jury has a reasonable doubt as to a defendant’s sanity at the time the offense was committed, it is under a duty to acquit the defendant. (State v. McBride, 170 Kan. 377, 226 P.2d 246 [1951]; State v. Nixon, 32 Kan. 205, 4 Pac. 159 [1884]; State v. Crawford, [11 Kan. 32, 43 (1873)]. Itis a rare occasion when an insanity question should be taken from a jury by a motion for acquittal. In State v. Gustin, 212 Kan. 475, 510 P.2d 1290 (1973), we said:
“ ‘ “A trial judge in passing upon a motion for judgment of acquittal must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If he concludes guilt beyond a reasonable doubt is a fairly possible result, he must deny the motion and let the jury decide the matter. If he concludes that upon the evidence there must be such a doubt in a reasonable mind, he must grant the motion.” (Syl. 3.)
“ ‘In State v. Chase, 207 Kan. 352, 362, 480 P.2d 62 (1971), we quoted from Dusky t>. United States, 295 F.2d 743, 756 (8th Cir. 1961), as to the test for acquittal in an insanity defense case:
“ ‘ . . [I]n order to remove this case from the jury’s consideration, . . . “reasonable men must necessarily possess a reasonable doubt as to defendant’s sanity and . . . reasonable men must conclude that the government has failed to sustain its burden of proving beyond a reasonable doubt that the accused had the capacity to commit the crime.” . . .’ ”
“ ‘Unless evidence of insanity is so great that a trial judge can rule the government could not convince a reasonable man it has sustained its burden of proof as to defendant’s sanity, the issue should go to the jury, as we have recommended in the past. (E.g., State v. Sagebiel, 206 Kan. 482, 480 P.2d 44 [1971]; State v. Chase, [207 Kan. 352]; State v. Coltharp, [199 Kan. 598]; State v. Mendzlewski, [180 Kan. 11].)’ pp. 767-69.”
Here, in its case in chief, the State presented the testimony of two witnesses concerning the defendant’s sanity. Dr. Modlin, a psychiatrist, had asked Dr. Schuhnan, a psychologist, to perform a standard clinical evaluation of the defendant. Dr. Schulman concluded and testified that the defendant had a schizoid personality disorder. He stated that the defendant was a person who “does not relate to a lot of people easily, avoids the expression of feelings, in relationship with others is somewhat narrow, reserved, constricted, but a person who overall is in touch with reality, who overall knows what’s going on about them and who leads their life in sort of a narrow chamber or narrow path and avoids a lot of excessive stimulation and things of that sort.” Dr. Schulman was not asked to make any determination of insanity and could not conclude whether the defendant knew the difference between right and wrong at the time of the crime.
Dr. Modlin testified, in his opinion, the defendant did not suffer from a major depressive illness arid was sane at the time of the crime. On rebuttal, as was previously discussed, Dr. Modlin testified, in his opinion, the defendant did not suffer from a “brief reactive psychosis.”
The defendant presented the testimony of two witnesses on the issue of his sanity. Gloria Chédiak, a clinical social worker, testified various events in the defendant’s life were very stressful: physical and mental abuse by his parents, the move to a different school, health problems, the loss of a girlfriend, and the marriage of his brother. She concluded the defendant was “very depressed.”
Dr. Elias Chédiak, a physician-psychiatrist, testified extreme stress can affect a person’s ability to distinguish between right and wrong. He diagnosed the defendant as suffering from two mental illnesses: prior to the incident the defendant suffered from major depression, and at the time of the incident he suffered from a “brief reactive psychosis.” Dr. Chédiak testified that, at the time the defendant struck the victim, he did not know the difference between right and wrong.
Applying the principles of law stated in State v. Boan, 235 Kan. 800, to the above evidence, we cannot say that reasonable men would necessarily possess reasonable doubt as to the defendant’s sanity or conclude that the State failed to sustain its burden of proof as to the defendant’s sanity. The testimony was that the defendant was sane, insane, schizoid, and depressed. The trial court did not abuse its discretion when it denied the defendant’s motion for judgment of acquittal and allowed the issue of the defendant’s sanity go to the jury.
The last issue has to do with the jury instructions. The defendant argues the trial court erred in failing to advise the jury that the disposition of the case is a matter of concern only for the court and not the jury.
The trial court, in Instruction No. 17, informed the jury as suggested in PIK Crim. 2d 54.10-A, “A person found not guilty because of insanity is committed to the State Security Hospital for safekeeping and treatment until discharged according to law.” Because of this instruction, the trial court did not feel it was appropriate to give the complete PIK Crim. 2d 51.10: “Your only concern in this case is determining the guilt or innocence of the defendant. The disposition of the case thereafter is a matter for determination by the Court.” The trial court, in Instruction No. 25, gave only the first sentence of PIK Crim. 2d 51.10. The trial court felt the two instructions were inconsistent and contradictory — telling the jury they must consider the disposition if the defendant were found not guilty because of insanity and also telling them disposition is not their concern.
The defendant argues that by not giving the complete PIK Crim. 2d 51.10, the trial court “left the door open” for the jury to consider disposition of the case.
K.S.A. 1985 Supp. 22-3428(6) requires an instruction such as PIK Crim. 2d 54.10-A when the defense of insanity is asserted. PIK Crim. 2d 54.10-A was approved in State v. Wright, 219 Kan. 808, 814, 549 P.2d 958 (1976). In State v. Hamilton, 216 Kan. 559, 564, 534 P.2d 226 (1975), this court cited with approval the language from Lyles v. United States, 254 F.2d 725, 728 (D.C. 1957), cert. denied 362 U.S. 943 (1960), cert. denied 368 U.S. 992 (1962):
“This point arises under the doctrine, well established and sound, that the jury has no concern with the consequences of a verdict, either in the sentence, if any, or the nature or extent of it, or in probation. But we think that doctrine does not apply in the problem before us. The issue of insanity having been fairly raised, the jury may return one of three verdicts, guilty, not guilty, or not guilty by reason of insanity. Jurors, in common with people in general, are aware of the meanings of verdicts of guilty and not guilty. It is common knowledge that a verdict of not guilty means that the prisoner goes free and that a verdict of guilty means that he is subject to such punishment as the court may impose. But a verdict of not guilty by reason of insanity has no such commonly understood meaning. As a matter of fact its meaning was not made clear in this jurisdiction until Congress enacted the statute of August 9,1955. It means neither freedom nor punishment. It means the accused will be confined in a hospital for the mentally ill until the superin tendent of such hospital certifies, and the court is satisfied, that such person has recovered his sanity and will not in the reasonable future be dangerous to himself or others. We think the jury has a right to know the meaning of this possible verdict as accurately as it knows by common knowledge the meaning of the other two possible verdicts.”
The purpose of PIK Crim. 2d 54.10-A, therefore, is to inform the jury what will happen if they determine the defendant is not guilty by reason of insanity. Its purpose is not to force the jury into considering disposition, but to educate them regarding the insanity defense. By failing to give the complete 51.10 instruction, the trial court did not leave the door open for the jury to consider disposition. The jury was instructed that its only duty was to determine guilt or innocence. We note that during voir dire the prosecutor asked the panel whether they understood that whatever its verdict, sentencing was a matter for the court. The record reveals there were no responses to the question. We find the defendant’s argument is without merit.
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The opinion of the court was delivered by
McFarland, J.:
This is an original mandamus action wherein petitioner judges seek to compel respondent members of the State Board of Indigents’ Defense Services to pay compensation to seven attorneys appointed by petitioners to represent defendants in 1984.
Before proceeding to the issues, the background facts which led to the commencement of this unpropitious litigation must be set forth in some detail. Prior to 1982, the Board of Supervisors of Panels to Aid Indigent Defendants within the judicial branch administered the state program for compensation of court-appointed defense attorneys for indigent defendants in criminal felony cases. Effective July 1, 1982, the Board of Supervisors was abolished and its function was transferred to the newly created State Board of Indigents’ Defense Services operating within the executive branch of state government. See Indigents’ Defense Services Act, K.S.A. 22-4501 et seq. The change was not opposed by the judicial branch.
One of the primary factors leading to the change in administration of the program was legislative concern over the increasing cost of providing legal services to indigent defendants in criminal felony cases. Public defender programs had been established prior to 1982 in some judicial districts, but the majority of judicial districts had no such program. The Eighteenth Judicial District (Sedgwick County), in which petitioners serve as district judges, did not have a public defender program and, by virtue of the large number of criminal cases arising therefrom, a substantial portion of state monies allocated for payment of court-appointed indigents’ defense counsel was being expended each year in that district. The concept of establishing a public defender program in the Eighteenth Judicial District as a means of cost containment had been raised a number of times but never came to fruition. The judiciary in the district never endorsed the establishment of a public defender office, and some members thereof went on record as being opposed thereto.
The duties and powers of the newly created State Board of Indigents’ Defense Services are set forth in K.S.A. 1985 Supp. 22-4522. That statute, in part, provides:
“The state board of indigents’ defense services shall:
“(a) Provide, supervise and coordinate, in the most efficient and economical manner possible, the constitutionally and statutorily required counsel and related services for each indigent person accused of a felony and for such other indigent persons as prescribed by statute;
“(b) establish, in each county or combination of counties designated by the board, a system of appointed counsel, contractual arrangements for providing contract counsel or public defender offices, or any combination thereof, on a full- or part-time basis, for the delivery of legal services for indigent persons accused of felonies . . .” (Emphasis supplied.)
On October 15, 1983, the State Board of Indigents’ Defense Services (hereinafter referred to as the “Board”) voted to establish a public defender office in the Eighteenth Judicial District and notice of the decision was sent three days later to Judge James Noone, the district’s administrative judge, and to Judge Paul Clark, petitioner herein and presiding judge of the district’s criminal division.
On June 18, 1984, the public defender office, consisting of seven staff attorneys, opened for business in the district. On June 29, 1984, the Board met and received a report from the district’s chief public defender that “Judge Clark did not appoint him to an A felony case and said that he would decide on a case by case basis whether to appoint the public defender to such cases in the future.” The same day the Board adopted a policy “that in public defender districts the administrative judges appoint the public defender offices to A, B and C felonies (most serious offenses) in lieu of assigned counsel unless a conflict of interest arises and that the Board will review such claims from assigned counsel to decide whether or not such claims will be paid.” The minutes of the Board for that day further reflect that a motion was passed to inform Judge Clark of the policy just adopted and this was done.
The district’s public defender office continued to monitor court appointments and reported to the Board seven appointments of private attorneys occurring between August 24, 1984, and December 10,1984, in which the public defender office was not aware of any conflict with its office which would preclude representation by that office. As the claims started coming in from the seven attorneys involved, the Board requested an opinion from the Kansas Attorney General. The question posed was the “extent of the Board’s authority to deny claims for compensation filed by attorneys appointed to represent indigent criminal defendants in districts where the board has established a public defender office to provide legal services to such defendants.” Attorney General Opinion No. 84-119, dated December 13, 1984, concluded the Board had the authority to deny claims “which do not comply with the board’s plan for the provision of such services.”
Sometime in early December 1984, respondent Director Miles met with petitioner Clark concerning the Board’s review of claims submitted. On December 13, 1984, respondent Jones (Board Chairperson) sent the following letter to petitioner Clark:
Dear Judge Clark:
“As chairperson of the State Board of Indigents’ Defense Services, I was informed of your recent meeting with our director Ron Miles. I should mention that Mr. Miles made a special effort to accommodate your request for this meeting in order that our mutual concerns could be discussed. From the tenor and content of the questions you posed to Mr. Miles, I can only assume that you perceived the board’s policy to review certain defense vouchers to be directed at or against you individually.
“Let me assure you that the board does not nor has it ever entertained a policy to review claims based on which judge has approved them. I am surprised that there has been any misunderstanding of the board’s role in providing felony defense services for the state of Kansas. I am especially dismayed that the board’s motives in this area are being questioned.
“The board must fulfill its statutory mandate to ‘provide, supervise and coordinate in the most efficient and economical manner possible the . . . services for each indigent person accused of a felony.’ (K.S.A. 22-4522(a)). For this noble and ofttimes thankless task, board members are compensated at the rate of $35 per day for approximately eight full work days per year.
“The board’s dilemma has been that of funding which is inadequate to maintain two systems of defense services in the same district except when absolutely necessary (e.g. conflict cases). This dilemma and the board’s policy for addressing it are not confined to the 18th judicial district of Kansas.
“As to the source of this misunderstanding, I am sure you have reached the same conclusion that I have about it. An investigator, James Howard, was extremely upset by the board’s decision to deny a portion of his claim. If your information has been gleaned from Mr. Howard I will suggest that the board’s actions at that meeting have been grossly misrepresented to you. While it is true that some frustration was expressed by individual board members over the apparent lack of consistent voucher review practices throughout the state, the report you received indicating that the board’s action was a personal attack on you is patently false and may be intended to detract from the real issue which is that of the appropriateness of Mr. Howard’s claim.
“I have enclosed a copy of the minutes of the board’s June 29th meeting in the hopes that this matter can be laid to rest. I sincerely hope that any future misunderstandings can be resolved in a much more informal and timely manner through effective communication.
“I have also enclosed for your information a copy of the recent Attorney General Opinion which should clarify the basis for the board’s policy of reviewing all nonconflict claims from public defender districts.
“I trust your personal concerns have been addressed as a result of this letter and your meeting with Mr. Miles. Please do not hesitate to call on Mr. Ney or Mr. Miles if you perceive a problem in the operations of the Public Defender’s Office. Thank you for your interest.
Respectfully,
Is/ Deborah Puree Jones
Deborah Puree Jones
Chairperson
The stipulation filed herein reflects the following transpired thereafter relative to the seven private attorney appointments questioned by the public defender office.
“25. On March 22,1985, the Board at a regular meeting considered the claims of the attorneys appointed in cases 1,3,4, 5, and 6 pursuant to its policy to review all vouchers from districts served by a public defender office unless the case could not have been handled by the office because of a conflict of interest or other mitigating circumstances. Consideration of the claims was tabled and the Board’s Director was requested to write to Judge Clark asking for information regarding these appointments. The minutes of that meeting are Exhibit 12.
“26. By letter dated March 25, 1985, the Director invited Judge Clark to provide any input he may have concerning the circumstances of the appointments in cases 1, 3, 4, 5, and 6. That letter is Exhibit 13. Louis Hentzen, Judge Clark’s Administrative Assistant, responded to that letter at Judge Clark’s direction by telephoning the Board’s office with the following message: ‘Judge Clark says he will not justify to anyone or anybody why he appointed which attorney on what case. However, it is the policy of this court to appoint the public defender office when there is no conflict in the particular case.’
“27. On June 28,1985, the Board at a regular meeting considered the claims of the attorneys appointed in cases 1 through 7 and denied them ‘due to the board’s policy not to pay assigned counsel in cases where the public defender office could have been appointed.’ The minutes of that meeting are Exhibit 14. The attorneys submitting vouchers in those cases were notified by mail of the Board’s decision.
“28. On September 21,1985, the Board at a regular meeting reconsidered the claims of the attorneys appointed in cases 1 through 7 and, after conferring with counsel in an executive session, tabled those claims ‘until receipt of a letter from Judge Clark outlining the reason for their appointments.’ The minutes of that meeting are Exhibit 15.
“29. There is no documentation in the Court’s files or in the District Attorney’s files evidencing a conflict of interest in cases 1 through 7 which would have prevented the appointment of the Public Defender’s Office. Except for the appointment of Bonald D. DeMoss in case 2, neither Judge Clark nor Judge Beasley has a present recollection of why private counsel were appointed to represent the defendants in cases 1 and 3 through 7.”
Subsequently, the controversy escalated when petitioner Clark went on the offensive. The stipulation filed herein reflects the following:
“1. There is pending before Paul W. Clark, a Judge of the Eighteenth Judicial District, District Court, Sedgwick County, Kansas, a civil contempt proceeding involving seven criminal cases that were litigated to conclusion in the Eighteenth Judicial District of the State of Kansas.
“2. Those seven criminal cases are consolidated for the purposes of this hearing into a single proceeding. There was an Amended Order dated the 19th day of August, 1985, in which the Court ordered the Board and its individual members to either:
“1. Cause the State Board of Indigents’ Defense Services to pay compen sation for legal services rendered by and reimburse expenses reasonably incurred by appointed counsel in the cases captioned above, all pursuant to 1984 Supp. K.S.A. 22-4507, 1984 Supp. K.S.A. 22-4508 and 1984 Supp. K.S.A. 22-4520; or
“2. Be and appear personally in Wichita, Kansas, Courtroom 6-2, Sedgwick County Courthouse, Division Nine, District Court, at 10:30 o’clock a.m., September 30, 1985, there to show cause why you should not be held in contempt of court.
By agreement, the date and time for the individual members of the Board to appear and show cause was continued to 10:00 o’clock a.m. on December 2, 1985, and thereafter the case was again continued to 10:00 o’clock a.m. on January 10, 1986.
“3. On December 2, 1985, counsel for the parties, along with Judge Clark, held a conference where it was agreed that the parties had a substantial disagreement as to the rights, powers and authority of the parties. It was also agreed that the relevant issues in this matter involved the constitutional separation of powers doctrine and that this case would ultimately be appealed. The parties concluded that it would be appropriate to proceed by way of an original action in mandamus in the Supreme Court of the State of Kansas, if that Court would accept jurisdiction, to settle the dispute between the Judiciary and the Board. Therefore the contempt proceedings were continued.”
This action resulted with the contempt proceeding being held in abeyance during the pendency of this litigation. We turn now to the issues presented.
SEPARATION OF POWERS
The position of the petitioners is essentially as follows:
1. The judiciary has the right to appoint any qualified attorney it pleases to represent an indigent defendant in a criminal case.
2. The Board has an absolute duty to pay claims for services submitted by any attorneys so appointed without review or inquiry into the circumstances of appointment as any such inquiry or review would be violative of the separation of powers doctrine.
The respondents’ position in this regard may be summarized as follows:
1. The Board has the duty to establish a program in each county for providing legal services to indigent defendants in felony cases.
2. The Board has the duty to review and reject claims when the appointment was made contrary to the program it established for a particular county.
3. The review and possible rejection of claims by the Board is not violative of the separation of powers doctrine.
In State ex rel. Stephan v. Kansas House of Representatives, 236 Kan. 45, 59-60, 687 P.2d 622 (1984), this court said of the separation of powers:
“Like the Constitution of the United States, the Kansas Constitution contains no express provision establishing the doctrine of separation of powers. However, it has been recognized that the very structure of the three-branch system of government gives rise to the doctrine. State v. Greenlee, 228 Kan. 712, 715, 620 P.2d 1132 (1980); State ex rel. v. Bennett, 219 Kan. [285, 287, 547 P.2d 786 (1976)]; Leek v. Theis, 217 Kan. 784, 804, 539 P.2d 304 (1975); Van Sickle v. Shanahan, 212 Kan. 426, 440, 511 P.2d 223 (1973), The doctrine of separation of powers is an outstanding feature of the American constitutional system. The governments, both state and federal, are divided into three branches, i.e., legislative, executive and judicial, each of which is given the powers and functions appropriate to it. Thus, a dangerous concentration of power is avoided through the checks and balances each branch of government has against the other. Van Sickle v. Shanahan, 212 Kan. at 439-40; State, ex rel. v. Bennett, 219 Kan. at 287; State v. Greenlee, 228 Kan. at 715. Generally speaking, the legislative power is the power to make, amend, or repeal laws; the executive power is the power to enforce the laws; and the judicial power is the power to interpret and apply the laws in actual controversies. Van Sickle v. Shanahan, 212 Kan. at 440.
“The fact that the powers of one department may overlap with another department’s powers has long been a recognized fact. Recent cases have taken a pragmatic, flexible and practical approach to the doctrine, giving recognition to the fact there may be a certain degree of blending or admixture of the three powers of government and that absolute separation of powers is impossible. State v. Greenlee, 228 Kan. at 715-16; Leek v. Theis, 217 Kan. at 805-06; Manhattan Buildings, Inc. v. Hurley, 231 Kan. [20, 32, 643 P.2d 87 (1982)]. The following general principles concerning the separation of powers doctrine were summarized in State v. Greenlee, 228 Kan. at 716:
“ ‘(f) A statute is presumed to be constitutional. All doubts must be resolved in favor of its validity, and before a statute may be stricken down, it must clearly appear the statute violates the constitution. Leek v. Theis, 217 Kan. 784.
“ ‘(2) When a statute is challenged under the constitutional doctrine of separation of powers, the court must search for a usurpation by one department of the powers of another department on the specific facts and circumstances presented. Leek v. Theis, 217 Kan. at 785; State, ex rel., v. Fadely, 180 Kan. 652, 308 P.2d 537 (1957).
“ ‘(3) A usurpation of powers exists when there is a significant interference by one department with operations of another department. State, ex rel., v. Bennett, 219 Kan. 285, 547 P.2d 786 (1976).
“ ‘(4) In determining whether or not a usurpation of powers exists a court should consider (a) the essential nature of the power being exercised; (b) the degree of control by one department over another; (c) the objective sought to be attained by the legislature; and (d) the practical result of the blending of powers as shown by actual experience over a period of time. State, ex rel., v. Bennett, 219 Kan. 285.’ ”
With these principles in mind, let us consider how appointment of counsel and compensation therefor operate in Kansas.
The judiciary has the obligation to appoint counsel for indigent defendants charged with crimes, whether felonies or misdemeanors. Likewise, the judiciary has certain obligations to appoint attorneys in proceedings under the Code for Care of Children (K.S.A. 1985 Supp. 38-1501 et seq.) and the Juvenile Offenders Code (K.S.A. 1985 Supp. 38-1601 et seq.). Payment of fees of attorneys so appointed in juvenile proceedings is provided by counties. Payment of fees of attorneys appointed for indigent defendants charged only with misdemeanor offenses, likewise, has not been assumed by the State. Only in cases involving felonies does the State provide means for expending state monies for providing legal services to indigent defendants. The legislature has never given a blank check for payment of such attorney fees. Whether under the Board of Supervisors within the judicial branch (prior to 1982) or the present Board within the executive branch, payment of fees was always subject to funds available. The mere appointment of an attorney by a court in a felony criminal case does not create an absolute duty on the part of the State to compensate that attorney in full or in part for his or her services. As we held in State v. Keener, 224 Kan. 100, 577 P.2d 1182, cert. denied 439 U.S. 953 (1978):
“It is the moral and ethical obligation of the bar to make representation available to the public. (See, Canon 2, Code of Professional Responsibility, 220 Kan. cx.) Quite often, fulfillment of that obligation involves the representation of a client, particularly a criminal defendant, for little or no remuneration. Enactment of K.S.A. 22-4501, et seq. has served to relieve some of the hardships involved in fulfilling an attorney’s obligation to provide legal representation to the public; but it has not cancelled the attorney’s ethical responsibility to provide representation without compensation if necessary. Court appointed counsel has no constitutional right to be compensated, much less to receive full and adequate compensation which may have been received if the same time had been spent on a fee-paying client’s problems. (See, United States, v. Dillon, 346 F.2d 633 [9th Cir. 1965].)” 224 Kan. at 102.
Cost containment in the area of state expenditures in providing counsel to indigent defendants in felony criminal cases has been a legislative concern for many years. Such concern was a primary reason for the creation of the Board. K.S.A. 1985 Supp. 22-4522 outlines the Board’s power and duties, as follows:
“The state board of indigents’ defense services shall:
“(a) Provide, supervise and coordinate, in the most efficient and economical manner possible, the constitutionally and statutorily required counsel and related services for each indigent person accused of a felony and for such other indigent persons as prescribed by statute;
“(b) establish, in each county or combination of counties designated by the board, a system of appointed counsel, contractual arrangements for providing contract counsel or public defender offices, or any combination thereof, on a full- or part-time basis, for the delivery of legal services for indigent persons accused of felonies;
“(c) approve an annual operating budget for the board and submit that budget as provided in K.S.A. 75-3717;
“(d) adopt rules and regulations in accordance with K.S.A. 77-415 et seq., and amendments thereto, which are necessary for the operation of the board and the performance of its duties and for the guidance of appointed counsel, contract counsel and public defenders, including but not limited to:
“(1) Standards for entitlement to legal representation at public expense;
“(2) standards and guidelines for compensation of appointed counsel and investigative, expert and other services within the limits of appropriations;
“(3) criteria for employing contract counsel; and
“(4) qualifications, standards and guidelines for public defenders, appointed counsel and contract counsel;
“(e) prepare and submit to the governor and legislature an annual report on the operations of the board; and
“(f) hold a hearing before changing the system for providing legal services for indigent persons accused of felonies in any county or judicial district if such a hearing is requested by two or more members of the board.” (Emphasis supplied.)
Clearly, the Board is to establish the most cost-effective means in each county or combination of counties of adequately providing legal services for indigents accused of felony charges. The Board may, in its discretion, determine that in a given county a public defender office will be established. Certainly, the Board had the right to establish the public defender office in Sedgwick County, and even petitioners do not contend otherwise. K.S.A. 1985 Supp. 22-4522 further provides the Board shall establish the “[standards for entitlement to legal representation at public expense.”
These procedures dovetail with K.S.A. 1985 Supp. 22-4503(c) which provides, after a determination of indigency, the trial court shall:
“appoint an attorney from the panel for indigents’ defense services or otherwise in accordance with the applicable system for providing legal defense services for indigent persons prescribed by the state board of indigents’ defense services for the county or judicial district.”
The Indigents’ Defense Services Act further provides in K.S.A. 1985 Supp. 22-4507(a):
“An attorney, other than a public defender or assistant public defender or contract counsel, who performs services for an indigent person, as provided by this act, shall at the conclusion of such service or any part thereof be entitled to compensation for such services and to be reimbursed for expenses reasonably incurred by such person in performing such services.” (Emphasis supplied.)
We believe the intent and purpose of the Act is clear. The Board determines what program or combination of programs will be used in particular counties to provide state-paid defense counsel. The Board is directly responsible to the legislature for the development and operation of such programs and for the expenditure of all state monies allocated for payment of legal services for indigent defendants in felony cases. To fulfill its statutorily mandated duties, the Board must have the power to review and monitor claims and reject claims not authorized by the standards and programs established. Suppose a public defender office is established in County A by the Board and further suppose the judge or judges in the county totally ignore the public defender office and make all appointments from the private bar. Obviously then, the Board, if it were required to pay claims without question to all such private attorneys, would be paying for duplicate services. The Board would have no ability to carry out its legislative mandate.
We do not believe there is a valid separation of powers issue before us. The executive branch is not infringing herein upon the judicial branch. A judge may appoint any attorney he or she pleases who is capable of adequately representing a defendant providing, of course, the attorney accepts the appointment. There is no infringement on the judicial right or duty of appointment. It is only where compensation for the services of such appointed attorney is expected to be paid from state monies that compliance with the Board’s programs, standards, and policies becomes involved. The position of petitioners that review of claims of appointed counsel by the Board and rejection thereof, if not in compliance with the programs, standards, and policies of the Board, is a violation of the separation of powers doctrine is both legally and logically untenable.
TECHNICAL COMPLIANCE
The preceding issue has been concerned with power — what the Board has the power to do. The issue before us now is a technical one concerning the legal effect of the adoption by the Board on June 29, 1984, of a policy “that in public defender districts the administrative judges appoint the public defender offices to A, B and C felonies (most serious offenses) in lieu of assigned counsel unless a conflict of interest arises and that the Board will review such claims from assigned counsel to decide whether or not such claims will be paid.” Immediately after the policy was adopted, the minutes of the Board meeting reflect: “A motion was passed instructing Mr. Miles [State Director of Indigents’ Defense Services] to prepare a communication to Judge Clark expressing the Board’s concern and informing him that if he should appoint assigned counsel to A and B felonies that the Board will review all such claims and pay on a case by case basis.” As will be recalled, the Board had just heard from the chief public defender in the new Sedgwick County public defender office of an appointment by Judge Clark of private counsel for a defendant charged with an A felony where no apparent conflict existed as far as the public defender office was concerned. It is undisputed the message concerning the new policy was forthwith transmitted to Judge Clark by telephone. All of the appointments involved herein occurred after adoption of the policy and notification thereof to Judge Clark.
K.S.A. 1985 Supp. 22-4522(d), in pertinent part, authorizes the Board to:
“[A]dopt rules and regulations in accordance with K.S.A. 77-415 et seq., and amendments thereto, which are necessary for the operation of the board and the performance of its duties and for the guidance of appointed counsel, contract counsel and public defenders, including but not limited to:
“(1) Standards for entitlement to legal representation at public expense;
“(2) standards and guidelines for compensation of appointed counsel and investigative, expert and other services within the limits of appropriations . . .”
K.S.A. 1985 Supp. 77-425 provides, in pertinent part:
“Any rule and regulation not filed and published as required by this act shall be of no force or effect, except that any error or irregularity in form or any clerical error or omission of the revisor of statutes in the filing of such regulation not affecting substantial rights shall not invalidate the same.”
At the time of the appointments herein there was no rule or regulation filed and published in accordance with K.S.A. 1985 Supp. 77-425 expressing the policy established in the Board’s June 29, 1984, meeting relative to appointment of the public defender office to A, B, and C felony cases.
The position of the petitioners is that failure to file and publish the policy pursuant to K.S.A. 1985 Supp. 77-425 rendered the policy of no force or effect, thereby nullifying any requirement that the public defender office be appointed to such cases. Therefore, so petitioners’ argument goes, they were free to appoint private counsel under the system created prior to the establishment of the public defender office and such appointments are, in compliance with regulations published by the Board (K.A.R. 105-1-1 et seq.).
We find this argument to be without merit. The requirement for filing and publishing rules and regulations is primarily one of dissemination of information. Members of the public, and others affected thereby, should not be subjected to agency rules and regulations whose existence is known only by agency personnel. The attorneys whose claims are involved are not parties to this litigation. Rather, petitioners are members of the judiciary and actual notice of the policy was given to Judge Clark as presiding judge of the criminal division of the Eighteenth Judicial District. Presumably, he passed this information on to Judge Beasley. There is no contention Judge Beasley was unaware of the establishment of the policy. The public defender office had opened for business on June 18, 1984. Eleven days later a possible problem which could jeopardize the operation of the office was brought to the attention of the Board. The Board adopted a policy designed to eliminate the problem and caused notice thereof to be communicated directly to the presiding judge of the criminal division where the problem originated. We conclude that under the facts herein the June 29, 1984, policy declaration by the Board was valid and applicable to subsequent appointments by the petitioner judges as to any issue concerned in the litigation between the parties herein.
CONCLUSION
K.S.A. 60-801 provides:
“Mandamus is a proceeding to compel some inferior court, tribunal, board, or some corporation or person to perform a specified duty, which duty results from the office, trust, or official station of the party to whom the order is directed, or from operation of law.”
In Arney v. Director, Kansas State Penitentiary, 234 Kan. 257, 671 P.2d 559 (1983), we stated the general rules relative to mandamus as follows:
“K.S.A. 60-801 defines mandamus as a proceeding to compel some inferior court, tribunal, board, or some corporation or person to perform a specified duty, which duty results from the office, trust, or official station of the party to whom the order is directed, or from operation of law.”
“It has uniformly been held that the remedy of mandamus is available only for the purpose of compelling the performance of a clearly defined duty; that its purpose is to require one to whom the writ or order is issued to perform some act which the law specifically enjoins as a duty resulting from an office, trust, or station; that mandamus may not be invoked to control discretion and neither does it lie to enforce a right which is in substantial dispute, and further, that resort to the remedy may be had only when the party invoking it is clearly entitled to the order which he seeks.” Syl. ¶¶ 1, 2.
Clearly, the Board herein exercised discretion in the handling of the subject claims by attorneys appointed to represent indigent defendants and has no “clearly defined duty” to pay such claims. The Board’s activities in the area involve considerably more than ministerial acts. The Petition for Writ of Mandamus must be denied.
Before concluding, some additional comments are in order. It is most unfortunate that this controversy and litigation ever occurred. It is hoped that petitioners will, in the future, adopt a more reasonable and conciliatory approach to the Board. The judiciary, the Board, and attorneys representing indigents are bound together in the common goal of providing adequate legal services to indigent defendants on a cost-effective basis and should work together to accomplish that goal. The attorneys providing the legal services herein who have had their claims rejected have, through no apparent fault of their own, become casualties in a territorial dispute between two members of the judiciary and a state agency. It is hoped the denial of their claims will be reviewed in the future and sufficient information will then be provided to the Board by petitioners or the attorneys themselves to enable compensation to be paid.
The petition for writ of mandamus is denied.
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The opinion of the court was delivered by
Herd, J.:
This is a criminal action wherein the appellant, James “Pookie” Jennings, pled nolo contendere and was found guilty of one count of second-degree murder. The crime arose out of these facts:
On the evening of June 14, 1985, Jennings and another man, Richard G. Nichols, had an argument in the parking lot of an east Topeka liquor store. Jennings threateningly told Nichols he was going to kill him and left the parking lot, only to return fifteen minutes later with a sawed-off shotgun. Thereafter, upon the exchange of angry words, Jennings shot Nichols in the head. After the shooting, Jennings fled.
Jennings was charged with first-degree murder, but pursuant to the terms of a plea agreement, he pled no contest to second-degree murder on July 12, 1985.
On August 19, 1985, the appellant appeared before the district judge for sentencing. After a hearing, the judge found the mandatory sentencing provisions of K.S.A. 21-4618 applicable, since a firearm was used in the commission of the crime. The judge imposed a sentence of 15 years to life imprisonment — the maximum permissible under K.S.A. 1985 Supp. 21-4501(b).
On November 18, 1985, the appellant filed a motion to modify his sentence pursuant to K.S.A. 1985 Supp. 21-4603(3). Appellant further moved the court to return him to the Shawnee County jail for the purpose of a sentence modification hearing. In a memorandum decision dated January 7, 1986, this motion was denied.
For his first issue, appellant argues his due process rights were violated when the trial court denied his motion to modify sentence without holding a hearing. The appellant suggests that when a defendant petitions the court to modify his sentence he places his liberty at stake and accordingly, is entitled to notice and an opportunity to be heard.
K.S.A. 1985 Supp. 21-4603(3) authorizes the court to modify a sentence within the statutory limits any time within 120 days after a sentence is imposed; no hearing procedure is discussed. K.S.A. 1985 Supp. 21-4603(4) allows reduction of sentence below the statutory minimum upon the recommendation of the secretary of corrections; this subsection specifically provides for a hearing and notice to interested parties. K.S.A. 22-3504 specifically provides for a hearing and that a defendant be personally present for correction of a sentence. These distinctions are significant. The legislature did not provide for a hearing on sentence modification, 21-4603(3).
K.S.A. 1985 Supp. 22-3405(1) sets out the stages in a felony proceeding where the defendant’s presence is required and provides as follows:
“The defendant in a felony case shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by law.” (Emphasis added.)
Unless a motion for modification is considered part of the “imposition of sentence,” the appellant had no right to appear in support of his motion. We resolved this issue in State v. Bryant, 227 Kan. 385, 607 P.2d 66 (1980), where we held that a defendant’s right to be present does not extend to post-conviction motions. In so holding, we reasoned that the trial ends when a verdict has been rendered, any right which the accused may have to be present at proceedings following indictment con tinues only during the pendency of the trial, and a defendant, once convicted, cannot expect to be present at post-conviction motions. See also State v. Myers, 10 Kan. App. 2d 266, 271, 697 P.2d 879 (1985), where the Court of Appeals noted that a defendant has no right to be present at a ruling on a motion to modify. We agree and hold that a defendant has no right to a hearing on a motion to modify sentence or to be present at consideration of that motion.
This holding is consistent with federal law. Federal Rule of Criminal Procedure 35(b) is nearly identical to K.S.A. 1985 Supp. 21-4603(3). Under that rule, it is discretionary with the trial judge whether to hear testimony or arguments on the motion. 3 Wright, Federal Practice and Procedure: Criminal 2d § 586 p. 405. See also United States v. Donohoe, 458 F.2d 237 (10th Cir. 1972), where it was held a defendant has no right to a hearing in open court on a motion to modify sentence and has no constitutional right to be personally present or to be represented by counsel at consideration of motion to modify sentence.
Appellant next alleges the district court’s summary dismissal of his motion to modify violated his due process rights. Jennings’ arguments on this issue are essentially the same as those made in support of his first issue. Specifically, the appellant argues the trial court’s failure to hold a hearing and its summary dismissal of his motion to modify resulted in a denial of his right to appeal. Appellant reasons that without a hearing or memorandum detailing the reasons for denial of his motion, he has no record from which to appeal. This argument is without merit.
When the district court ruled on the motion to modify, it had before it a presentence report, an SRDC report, and the transcript of the sentencing hearing. It is obvious the court based its decision on this information. Further, where there is no right to a hearing in open court and the defendant has no right to be present, it is within the district court’s discretion to determine whether a motion to modify sentence should be summarily denied.
As his final point on appeal, the appellant contends the district court abused its discretion in sentencing the appellant to the maximum sentence possible for the crime committed.
The appellant was originally charged with murder in the first degree but, pursuant to a plea bargaining agreement, pled no contest to murder in the second degree, a class B felony. K.S.A. 1985 Supp. 21-4501 authorizes minimum imprisonment for a class B felony of not less than five years nor more than 15 years and a maximum of not less than 20 years nor more than life. The district court sentenced the appellant to 15 years’ to life imprisonment, the maximum provided under the statute.
We have repeatedly held a sentence imposed by a trial court will not be disturbed on the ground it is excessive, provided it is within the limits prescribed by law and within the realm of discretion on the part of the trial court, and the sentence is not the result of partiality, prejudice, or corrupt motive. State v. Van Cleave, 239 Kan. 117, 716 P.2d 580 (1986). We reaffirm that principle of law.
The sentence imposed upon the defendant was clearly within the limits prescribed by law; however, the appellant argues the trial court abused its discretion by not considering K.S.A. 21-4601 before imposing sentence upon him. The trial judge made the following comments in sentencing the defendant:
“After reviewing the Affidavit which sets forth the facts in this case together with the presentence report I can find very little redeeming in either. The fact that you were intoxicated is not a defense nor is it an excuse. It doesn’t diminish the fact that a person’s life has been taken. While it’s true that you have no prior criminal record I don’t think a minimum sentence is justified in this case. After reviewing the factors set forth in K.S.A. 21-4606 it is the judgment and sentence of the Court that the defendant be remanded to the custody of the Secretary of Corrections for a term of not less than 15 years nor more than life. The Court finds that a firearm was used in the commission of the crime, that the provisions of K.S.A. 21-4618 are applicable. The Court will request an evaluation and report from the State Reception and Diagnostic Center within 120 days.”
K.S.A. 21-4601 states the legislative policy to be followed in sentencing the criminal defendant. It provides:
“This article shall be liberally construed to the end that persons convicted of crime shall be dealt with in accordance with their individual characteristics, circumstances, needs, and potentialities as revealed by case studies; that dangerous offenders shall be correctively treated in custody for long terms as needed; and that other offenders shall be dealt with by probation, suspended sentence, or fine whenever such disposition appears practicable and not detrimental to the needs of public safety and the welfare of the offender, or shall be committed for a least a minimum term within the limits provided by law.”
We recently discussed this statute in State v. Harrold, 239 Kan. 645, 650, 722 P.2d 563 (1986), and noted that K.S.A. 21-4601 does not enumerate factors to be considered but does express “ ‘the current objectives of the correctional process.’ ” (Quoting from the 1968 Judicial Council report.) As such, it is not necessary for the sentencing judge to expressly consider this statute.
K.S.A. 21-4606, on the other hand, sets forth specific criteria to be considered by the sentencing court in fixing the minimum term of imprisonment. We have held that a trial court’s failure to make a detailed statement of the factors considered by the court in imposing sentence does not necessarily, in and of itself, constitute an abuse of discretion. State v. Harrold, 239 Kan. at 650. See also State v. Buckner, 223 Kan. 138, 151, 574 P.2d 918 (1977).
Here, the sentencing court specifically stated that it had reviewed and considered the factors listed in K.S.A. 21-4606. While it did not set out each of these factors, it did note the severity of the crime, that a firearm was used in the commission of the crime, that the defendant had no prior record, and that intoxication is not a defense to the crime for which the defendant was convicted. The court also stated that it had reviewed the affidavit setting forth the facts in this case and the presentence report. We find there was no abuse of discretion.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Johnson, J.;
Heather Page Hilton was sentenced to serve two consecutive 12-month probation terms. During the first term, the district court revoked both probations and ordered Hilton to serve her underlying prison sentences. Hilton appealed, claiming that the second probation term had not commenced when she violated the terms of the first probation term, so that the district court erred in sending her to prison on the second case. Hilton completed serving her prison terms before the case could be heard on appeal, and the Court of Appeals dismissed the appeal as moot. Finding that the issue raised by Hilton is one capable of repetition and of public importance, we reverse and remand to the Court of Appeals to reinstate the appeal.
Factual and Procedural Overview
As an initial matter, we note that documents in the record refer to the appellant by the surnames of Plilton, Page, and Page-Hilton. Given that the caption on the petition for review filed with this court uses the name, “Heather Hilton,” we will refer to the petitioner as Hilton.
This appeal involves two separate criminal cases. In the first, which we will refer to as the 2005 case, Hilton pled nolo conten-dere to felony criminal damage to property and was sentenced to an underlying prison term of 10 months and ordered to serve 12 months’ probation. The sentence included a rather large restitution order, which Hilton was unable to satisfy during the initial 12 months of probation, and the court extended the term of probation to April 16, 2009.
While on probation for the 2005 case, Hilton pled nolo conten-dere to attempted reckless aggravated battery, hereinafter referred to as the 2007 case. On January 12, 2009, the district court sentenced Hilton in the 2007 case to an underlying prison term of 8 months and ordered her to serve 12 months’ probation. During the same hearing, the district court revoked Hilton’s probation in the 2005 case but reinstated the probation for 12 months. The district court indicated that both the probation periods and the sentences were to be served consecutively, making a total probation time of 24 months with a combined underlying prison sentence of 18 months. The court did not clearly pronounce which sentence was to be served first. The “Additional Comments” section of tire sentencing journal entry in die 2007 case stated:
“Probation of 12 [months] consecutive to the probation of 12 [months] in 05 CR 264, revoked and reinstated. Total of 24 [months] probation to begin today. Probation through 1/12/11 total both cases. Sentence of 8 [months] also consecutive to the sentence of 10 [months] in 05 CR 264, total 18 [months] underlying.”
On die oilier hand, tire journal entry in the 2005 case suggested the odrer order of service:
“Probation 05 CR 264 consecutive to probation in 07 CR 312 (12 + 12 24 [months]). Sentence 05 CR 264 consecutive to sentence 07 CR 312 (10 + 8 18 [months]). Probation starts over today.”
A litde over a month later, on February 20, 2009, the State moved to revoke Hilton’s probation based upon her admission to drinking alcohol at a bar and being arrested for driving under the influence, both violations of her terms and conditions of probation. At the March 9, 2009, revocation hearing, Hilton’s attorney argued tirat because the probation in the 2007 case was ordered to run consecutive to the 12 months’ probation in the 2005 case, the 2007 probation would not begin until the completion of the 2005 probation. Therefore, the defense argued that the 2007 probation could not be revoked for an act that occurred before the probation even began. The district judge rejected the defense counsel’s argument, stating, “I don’t think it íegally applies, that she can’t be violated in her probation in the second case simply because she’s doing probation on the first case at the same time, or in the preceding case. She’s within the court’s jurisdiction.”
Hilton appealed the district court’s revocation of probation in both cases, which appeals were subsequently consolidated. Both Hilton and the State filed briefs in the matter. Citing to Price v. State, 28 Kan. App. 2d 854, 858, 21 P.3d 1021, rev. denied 271 Kan. 1037 (2001), Hilton argued that a person cannot simultaneously serve consecutive sentences, so that she was not serving the 2007 probation when she violated her 2005 probation. Again citing to Price, she pointed out that “ ‘[c]onsecutive sentences may not be treated collectively as one for the aggregate term of all, and the identity of the punishment for each must be preserved.’ ” 28 Kan. App. 2d at 858 (quoting 24 C.J.S., Criminal Law § 1582). Therefore, she contended that the district court’s aggregation of two consecutive 12-month probations into a total probation term of 24 months was erroneous.
But before her case could be considered by the Court of Appeals, Hilton was paroled and her sentence expired. Based upon a letter from the State regarding the defendant’s status change, the Court of Appeals issued a show cause order as to why the appeal should not be dismissed as moot. After Hilton responded, the Court of Appeals issued a pro forma order on July 9, 2010, that said simply: “Response to order to show cause by Appellant, Heather Page Hilton. Appeal dismissed.”
Hilton filed a petition for review with this court, raising two issues: (1) The Supreme Court should grant review to resolve a split of authority in the Court of Appeals as to what renders a probation revocation appeal moot; and (2) the district court erred in í'evoldng a consecutively imposed probation before its term began. We granted review.
Mootness of Probation Revocation Appeal After Completion of Sentence
In her petition for review, Hilton points out that in State v. White, 41 Kan. App. 2d 943, 206 P.3d 553 (2009), a panel of the Court of Appeals found that a challenge to a probation revocation did not become moot upon completion of the prison sentence be cause the fact that the appellant had failed to successfully complete probation could influence future judgments concerning the appellant’s amenability to probation. Yet, Hilton also notes that in State v. Montgomery, 43 Kan. App. 2d 397, 225 P.3d 760 (2010), in which a petition for review was then pending, another panel of the Court of Appeals found to the contrary, explicitly criticizing the holding in White. Hilton urges us to side with the holding in White.
Standard of Review/Legal Maxims
Generally, Kansas appellate courts do not decide moot questions or render advisory opinions. State v. McKnight, 292 Kan. 776, 778, 257 P.3d 339 (2011). That doctrine, however, is not a question of jurisdiction. Rather, this court has previously described the mootness doctrine as a court policy, which recognizes that the role of a court is to “ ‘determine real controversies relative to the legal rights of persons and properties which are actually involved in the particular case properly brought before it and to adjudicate those rights in such manner that the determination will be operative, final, and conclusive.’ ” State v. Bennett, 288 Kan. 86, 89, 200 P.3d 455 (2009) (quoting Board of Johnson County Comm’rs v. Duffy, 259 Kan. 500, 504, 912 P.2d 716 [1996]).
A court policy necessarily comes about through prior opinions of the court, i.e., the mootness doctrine developed through court precedent. Accordingly, our review is unlimited. See State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012) (“To the extent our decision involves . . . the interpretation and application of. . . court precedent, we are resolving questions of law and, thus, exercising unlimited review. Johnson v. Brooks Plumbing, 281 Kan. 1212, 1213, 135 P.3d 1203 [2006].”).
Analysis
On the same date as the oral arguments in this case, we heard arguments in the Montgomery case. In deciding that case, we noted:
“Montgomery has fully satisfied the sanction imposed for his probation violation, which was serving the entire underlying prison term of his original sentence. Montgomery’s debt to society has been paid in full, even if his claim that he was overcharged is correct. Likewise, the State of Kansas has no authority to punish or supervise Montgomery any further in this case. Accordingly, the Court of Appeals correctly stated that ‘[a]ny action this court might take in regards to his probation revocation would be an idle act insofar as Montgomery’s rights in this action are concerned.’ Montgomery, 43 Kan. App. 2d at 402.” State v. Montgomery, (No. 102, 119, opinion filed October 19, 2012, slip op. at 6-7).
The same holds true for Hilton. If the district court erred in revoking both probations, there is nothing we can do in this case to make it right with her.
But Hilton claims that she might suffer even further consequences in a future, separate criminal proceeding because of what the probation revocation will imply about her amenability to probation. We rejected that argument in Montgomery, stating:
“A case is not moot where it may have adverse legal consequences in the future. But the nonstatutoiy consequences arising from a probation revocation, which consequences will depend upon a judge’s exercise of discretion in a future criminal proceeding rather dran upon the mere fact of the prior probation revocation, are insufficient to perpetuate a controversy for purposes of the mootness doctrine, if the case has otherwise ceased.” Montgomery, (No. 102,119, slip op. at 1, Syl. ¶ 4).
That rationale fits Hilton’s circumstance, as well. Within weeks of being placed on probation, she admitted that she violated the terms and conditions of her probation in a rather significant manner. Regardless of whether Hilton’s inability to follow the rules and perform on probation resulted in the immediate revocation of one probation or two, her conduct while on probation will be what is germane to any future assessment of her amenability to probation. In other words, it is not the sanction for violating probation that makes a person nonamenable to probation, it is the violation itself. Accordingly, as in Montgomery, this appeal presents a moot issue.
Exceptions to the Mootness Doctrine
Unlike our decision in Montgomery, our finding of mootness in this case does not end the inquiry. Because the doctrine is not jurisdictional, it is subject to exceptions. One commonly applied exception to the rule that appellate courts will not review moot issues is where the moot issue “is capable of repetition and raises concerns of public importance.” State v. DuMars, 37 Kan. App. 2d 600, 605, 154 P.3d 1120, rev. denied 284 Kan. 948 (2007). In that context, public importance means
“something more than that the individual members of the public are interested in tire decision of die appeal from motives of curiosity or because it may bear upon their individual rights or serve as a guide for their future conduct as individuals.” ’ State ex rel. Stephan v. Johnson, 248 Kan. 286, 290, 807 P.2d 664 (1991) (quoting Annot., 132 A.L.R. 1185, 1188-89).” Skillett v. Sierra, 30 Kan. App. 2d 1041, 1048, 53 P.3d 1234, rev. denied 275 Kan. 965 (2002).
Here, Hilton’s probation revocation landed her in prison for 18 months. Presumably, she did not have any postrelease supervision after serving that term. See K.S.A. 22-3716(e) (offender whose nonprison sanction is revoked “shall not serve a period of post-release supervision upon the completion of the prison portion of that sentence”). Therefore, sadly, it would have been highly unlikely that anyone in that circumstance could have obtained relief on appeal for any error in the revocation proceedings before the issue became moot. Indeed, the number of recent Court of Appeals cases addressing tire mootness issue in the context of probation revocation speaks to the likelihood of repetition of that dilemma. See Montgomery, 43 Kan. App. 2d 397; State v. White, 41 Kan. App. 2d 943; Lee v. State, No. 106,274, 2012 WL 2476991, at *2 (Kan. App. 2012) (unpublished opinion); State v. Brown, No. 95,985, 2008 WL 2422761, at *2 (Kan. App.) (unpublished opinion), rev. denied 287 Kan. 766 (2008).
Moreover, a district court is statutorily required to impose a consecutive sentence for a crime that is committed while the offender was on probation. See K.S.A. 21-4608(c) (crime committed while on probation shall be served consecutively to term under which person on probation). Therefore, district courts are likely to face the circumstance of two cases with consecutive prison terms, and it is certainly a matter of public importance that such courts know the permissible manner in which to structure probation in those circumstances.
From the record, we are unable to discern whether the Court of Appeals analyzed the possible applicability of an exception to the court-made mootness doctrine. Nevertheless, we have engaged in that analysis and determined that this case fits squarely within the exception for moot issues that are capable of repetition and which are of public importance. Therefore, we reverse the Court of Appeals’ dismissal of this appeal and remand to the Court of Appeals for reinstatement and consideration of the issue presented.
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The opinion of the court was delivered by
Lockett, J.:
The plaintiffs, public officials, sought review by the district court of the county election officer’s determination that recall petitions to remove them from office were legally sufficient. K.S.A. 25-4331. The district court upheld the decision of the county election officer. Plaintiffs appeal.
Evan Unger and Ronald Temple are elected and acting members of the Unified School District No. 294 Board of Education. Separate petitions for their recall from office were filed with Marilyn Horn, county clerk and county election officer. The petitions stated:
“I, the undersigned, hereby seek the recall of Evan J. Unger from the office of USD 294 Board Member Pos. on the following grounds: He fails to make educated decisions by not utilizing the expertise of professional educators employed by the district, preferring to substitute his personal prejudices; he violates the Kansas Open Meetings laws by participating in unannounced private meetings; he creates the appearance of impropriety in that he fails to exercise his judgment independent from that of his employer.”
“I, the undersigned, hereby seek the recall of Ronald Temple from the office of School Board Member on the following grounds: As President of the School Board, fails to require or encourage a full examination of issues before the Board. He fails to utilize the expertise of professional educators employed by the district, preferring to substitute his personal prejudices, and he violates the Kansas Open Meetings law by participating in unannounced private meetings.”
On June 2,1986, Horn notified Unger and Temple that she had determined each petition was legally sufficient. Unger and Temple then filed this action in the district court to review Horn’s decision. K.S.A. 25-4331.
The district judge reviewed the petitions. The judge concluded that, even though the plaintiffs had never been charged or convicted of a violation of the Kansas Open Meetings Act, the allegation that Unger and Temple had violated the Act was legally sufficient under K.S.A. 25-4302. Unger and Temple appeal that decision. Horn does not appeal the judge’s decision that the other grounds alleged in the petitions were not sufficient.
Where a state constitutional provision provides for the recall of public officials, recall is viewed as a fundamental right which the people have reserved to themselves. When the power of recall is a fundamental right, statutes governing the exercise of the power are to be liberally construed in favor of the ability to exercise it, and any limitations on that power must be strictly construed. 63A Am. Jur. 2d, Public Officers and Employees § 190.
Article 4, Section 3 of the Kansas Constitution provides:
“All elected public officials in the state, except judicial officers, shall be subject to recall by voters of the state or political subdivision from which elected. Procedures and grounds for recall shall be prescribed by law.”
All elected public officers are subject to recall. K.S.A. 25-4301. The statutory grounds for recall are conviction of a felony, misconduct in office, incompetence, or failure to perform duties prescribed by law. K.S.A. 25-4302.
The power to remove elected public officials at the discretion of their electors is not unique. The concept of recall, at the direct instance and upon the motion of the electors, the ultimate source of power in the State, is contained within our Constitution. The electors are as qualified to determine the capability and efficiency of their elected officials, after giving those officials an opportunity to perform the duties of their offices, as they were when they first selected the officials to fill the positions. The elected public official takes the position for a fixed term with the condition attached that, should he violate a condition, he is subject to removal.
The recall of a local elected officer is conducted by the county election officer in the county where the petition is to be filed. K.S.A. 25-4319. The petition for recall must include a statement of the grounds for recall described in particular in not more than 200 words. K.S.A. 25-4320(a)(2). After the petition is filed, the county election officer determines the sufficiency of the petition. K.S.A. 25-4326. If the petition is determined to be sufficient, the county election officer, after notifying the election board and the official sought to be recalled that the petition was properly filed, prepares the ballots and calls a special election. K.S.A. 25-4328. The elected official sought to be recalled may file with the election officer a statement of not more than 200 words justifying his conduct in office. The election board must post copies of such statements for and against recall in conspicuous places at the polling place. K.S.A. 25-4329.
Any person aggrieved by the election officer’s determination that the petition for recall was sufficient or insufficient has 30 days from the date of notice to bring an action to review that determination in the district court. K.S.A. 25-4331.
A majority of those states which have considered the sufficiency of allegations in recall petitions have held that the truth or falsity of such grounds must be determined by the electors, not the courts. See Gilbert v. Morrow, 277 So. 2d 812 (Fla. Dist. App. 1973). The trial court may not pass upon the truth or falsity of the grounds stated for removal from office, inasmuch as this is the province of the electors. Still, the charges must allege sufficient facts to identify to the electors the act or failure to act without justification which is urged as misconduct in office. See Wallace v. Tripp, 358 Mich. 668, 101 N.W.2d 312 (1960); Mueller v. Jensen, 63 Wis. 2d 362, 217 N.W.2d 277 (1974).
The claim that Unger and Temple are incompetent or have failed to perform a duty prescribed by law are not questions raised in the appeal. The only question is whether the allegation in the recall petitions, that Unger and Temple violated the Kansas Open Meetings Laws by participating in an unan nounced private meeting is misconduct in office, is sufficient. Unger and Temple claim that only a conviction for violating the Open Meetings Act is sufficient grounds for a recall of a public official.
K.S.A. 25-4302 provides, inter alia, that a conviction of a felony is required to subject a public officer to recall. A public official charged with a felony would not be subject to recall until convicted, unless the criminal act was also misconduct in office. A public official charged with embezzlement of the public funds he controlled would be subject to recall prior to being convicted in the felony criminal action. A public officer charged with misconduct in office, incompetence, or failure to perform duties prescribed by law is tried by the public in the recall election.
The Kansas Open Meetings Act requires that meetings for the transaction of governmental affairs or governmental business be open to the public. K.S.A. 75-4317. Any public officer who knowingly violates the Act is subject to a civil penalty not to exceed $500. K.S.A. 75-4320. Black’s Law Dictionary 1150 (4th ed. rev. 1968) defines misconduct in office as “[a]ny unlawful behavior by a public officer in relation to the duties of his office, willful in character,” citing Wysong v. Walden, 120 W. Va. 122, 125, 196 S.E. 573 (1938).
An allegation in a petition for recall that a public official willfully violated the Kansas Open Meetings Act is a legally sufficient claim of misconduct and may subject the public official to a recall election. The district judge correctly determined that Unger and Temple were subject to recall for a violation of the Kansas Open Meetings Act whether or not they were charged and convicted of the violation.
Unger and Temple also claim that the allegations in the recall petition did not state the grounds for recall “in particularity” as required by the statute.
The petition for a recall must in substance conform to the statutory requirements. Some states require a general statement only of the grounds on which the recall is sought. The Nevada Constitution and its recall statute each require that the recall petition set forth reasons why recall is demanded in 200 words or less. In Batchelor v. District Court, 81 Nev. 629, 408 P.2d 239 (1965), the Nevada Supreme Court found that the recall statute did not require specificity. There the petition charged that the mayor had “lost the respect and confidence of the great majority of the citizens of Boulder City, Nevada, in that the manner in which he contrived to discharge the City Manager of said City violated the concept of fairness held by a majority of such citizens.” The court determined that all that is demanded is that “the” reason for recall be stated, not that the reason be specific or even good. The merit of that reason as grounds for removal is for the electorate to determine, not the court. The reason, in whatever manner expressed, presents a political issue for resolution by vote, not a legal question for court decision.
Other states which have statutes requiring some allegation of specificity of the grounds for recall have held that the mere allegation of a violation of the law was not sufficient grounds to support a recall petition. For example:
Gilbert v. Morrow, 277 So. 2d 812 (Fla. Dist. App. 1973). The petition for recall stated as grounds for recall that “all four said men have failed to obey or comply with the Charter of the City of Parker and the Law of the State of Florida.” 277 So. 2d at 813. No further grounds or charges were set forth in the affidavit. The court said that an officeholder has a property right in his office and this right may not be unlawfully taken away or illegally infringed upon. It added that “the charges must allege sufficient facts to identify to the electors the acts or failure to act without justification which are urged as misconduct in office.” 277 So. 2d at 814.
Steadman v. Hallard, 197 Mont. 45, 641 P.2d 448 (1982). The Montana recall statute requires a petition to set out “a general statement of the reasons for recall in not more than 200 words.” The petitioners had submitted a recall petition which stated that the sheriff “acted in a manner to bring discredit to himself and the Department by OFFICIAL MISCONDUCT stemming from an incident in Sweet Grass County on November 7, 1980.”
The Montana court, in considering the sufficiency of the petition, noted that initial review of recall petitions is intended to save the public and government officials the time and expense of circulating and responding to a petition which is fatally defective. It concluded that the statement of the grounds for recall “is deficient because it does not acquaint the public, whose signa tures are requested, with the alleged acts constituting misconduct, nor does it permit Sheriff Shaffer to respond and defend himself adequately against the allegation of misconduct in the event that an election is required.” 197 Mont, at 54. It added that recall charges are sufficiently specific if they are definite enough to allow the charged official to meet them before the tribunal of the people. “Otherwise discontented constituents could initiate a circulation petition by alleging misbehavior in terms so general that the object of the recall effort would be incapable of defending himself, and some electors would sign the recall petition with no idea of what words or acts of the official might have precipitated the recall effort.” 197 Mont, at 54.
Herron v. McClanahan, 28 Wash. App. 552, 558, 625 P.2d 707 (1981). The Washington statute requires that the recall petition include as grounds for recall “an act or acts of malfeasance, or an act or acts of misfeasance while in office, or has violated his oath of office . . . which charge shall state the act or acts complained of in concise language, giving a detailed description including the approximate date, location and nature of each act complained of . . . .” The court said that the charges are sufficiently specific if they are definite enough to notify the charged official of the precise act or acts of alleged misconduct so as to enable him to make a meaningful public response to the merits of each charge and sufficient to inform the voters of the charge. 28 Wash. App. at 559.
The Kansas Constitution mandates that there be a recall procedure for public officers. The form and substance of the recall petition are prescribed by Kansas statutes. During the 1913 session of the Kansas legislature, it approved adding three sections to Article 4 of the Kansas Constitution for recall of public officers. The three sections were adopted by the voters during the November 1914 general elections. In the 1915 General Statutes, § 193 provides for recall. It states that “the petition and proclamation of election shall state in not more than two hundred words the reasons for the recall.”
Recall procedures were later enacted for first, second, and third class cities and for school boards. For example, the General Statutes of 1949 § 13-1711 provided for recall of elective officers for first class cities. That statute required that the petition con tain “a general statement of the grounds for which removal is sought.” The city clerk was required to ascertain whether or not the petition was signed by the requisite number of qualified electors and to then certify the petition to the commission.
In 1975, Senate Bill No. 438, a procedure to recall elective public officials, was introduced. The bill provided that the petition for recall “shall contain a general statement of the grounds upon which the recall is sought, which statement is intended solely for the information of the electors and the sufficiency of which shall not be open for review.” The bill was referred to committee. In 1976, House Bill 2661 was drafted for consideration by the legislature. House Bill 2661 provided that each petition for recall of a local officer shall include “the grounds for recall described in particular in not more than two hundred (200) words.” Both the Senate and House bills were referred to a special committee. The Reports of Special Committees to the 1976 Kansas Legislature reveals that major features of the recall laws of five states (Alaska, California, Colorado, Idaho, and Wisconsin) were compared. Of the five states, only the Alaska statute specified that the ground for recall be stated in particular.
The committee’s recommendation for recall provided for a two-phase recall procedure prior to a possible recall election for state officers — an application and the recall petition. It stated that the application “should include, among other things, the grounds for recall described in particular in not over 200 words.” In its recommendations to the 1976 legislature, the committee found that H.B. 2661 made the constitutional provisions for recall meaningful and prevented undue harassment of elected officials. Our current recall statutes followed the committee’s recommendation and were enacted in 1976. K.S.A. 25-4320(a)(2) provides that each petition for recall of a local officer shall include “the grounds for recall described in particular in not more than two hundred (200) words.”
Black’s Law Dictionary 1275 (4th ed. rev. 1968) defines “particular” as “Relating to a part or portion of anything; separate; sole; single; individual; specific; local; comprising a part only; partial in extent; not universal. Opposed to general,” citing State v. Patterson, 60 Idaho 67, 78, 88 P.2d 493 (1939). In Foster v. Turner, 31 Kan. 58, 1 Pac. 145 (1883), this court discussed “particular,” not general, questions of fact to be submitted to a jury. The court stated, “We think it is also true that the jury, in giving answers to ‘particular questions of fact,’ may sometimes be required to state facts themselves, to the extent of giving amounts, dates, weights, sizes, speed or velocity, time, distances, etc., . . . and perhaps sometimes of giving other facts which do not now occur to us.”
It is obvious that the legislature intended, by adopting House Bill 2661’s requirement that the grounds for recall be described in particular, that the petition for recall contain more than a general statement of the grounds for removal.
The 1976 amendment of the recall statutes requires specificity when stating the grounds for recall. The grounds stated in a recall petition must be specific enough to allow the official an opportunity to prepare a statement in justification of his or her conduct in office. Here, the charge is merely a general allegation that Unger and Temple violated the Open Meetings Act. Unless a particular allegation of the violation of the Open Meetings Acts is stated, Unger and Temple have no opportunity to refute the charge. The petitions for recall of Unger and Temple do not contain a clear statement of the alleged act or acts constituting the grounds for recall.
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The opinion of the court was delivered by
Moritz, J.:
Kamaronte D. Jones appeals his convictions of first-degree murder and criminal possession of a firearm. He asserts the district court erred in (1) instructing the jury it could consider his gang membership, (2) giving an outdated eyewitness identification instruction that he requested, and (3) failing to give a lesser included offense instruction, despite his request that the instruction not be given. Finding no error, we affirm Jones’ convictions.
Factual and Procedural Background
The State charged Jones with first-degree murder and criminal possession of a firearm for shooting and killing Keith Peters on August 26, 2007, after Keith attempted to break up a fight between two rival gangs. Several trial witnesses recounted the events surrounding the shooting. Their testimony is summarized below.
The evening of the shooting, members of two rival gangs, the Bloods and the Crips, were present at a party on Catalina Street. Both groups were “flying their colors,” i.e., wearing gang rags around their necks—the Crips wore blue and the Bloods wore red. Jones was among the Crips at the party. He wore a blue bandana and carried a black handgun in his waistband. Jones claimed to others at the party that he was a “trey five seven” Crip—a specific set, or group, within the larger Crips organization. Jones instigated a fight with the Bloods when he held his hand over the gun in his waistband and commented, “[W]hat’s up cuz.”
Officer Clayton Schuler testified that Bloods refer to each other as “Blood” or use other words beginning with the letter “B,” while Crips refer to each other as “cuz” or use words beginning with the letter “C.” Schuler testified that when “you do it the other way around, usually you’re asking for trouble,” because that is a sign of disrespect.
As Jones prepared to fight a Blood, everyone was told to leave the party. Jones and others left the party and walked to another party approximately three blocks away on Fortuna Street. At the Fortuna Street party, Keith Peters acted as security, checking party-goers for weapons, drugs, and alcohol before allowing them into tire house. At the party, Bloods and Crips members were “getting hyped,” throwing up gang signs, and disrespecting each other. Myron Peters, Keith’s brother, saw Keith tell Jones to leave after Jones tried to bring liquor or a gun into the party.
At some point, a fight broke out between a Crip and a Blood outside the house. Others joined in, and Keith stepped in to separate the two groups. Although Keith broke up the fight, some bickering continued. Several Crips headed to cars located across the street to get their “burners,” or guns. Dominique Peters, another of Keith’s brothers, saw Jones go to a white car across the street and get a gun. On their way back to the house, the Crips yelled “trey five seven” and “what’s up, cuz.”
Dominique and Myron saw a “light-skinned” male standing in the street firing shots into the air. Keontae Peters, another of Keith’s brothers, later identified the person who fired shots in the air as DeQualyn Shaffer. As Shaffer fired the shots, everyone began to run away from the party. Dominique heard Keith telling everyone to go inside the house. At trial, Myron testified he saw Jones waving the gun in Keith’s face, but Myron ran off when Shaffer fired shots into the air. On tire night of the shooting, Myron told police he saw Jones reach behind him, pull a gun out, and point it at Keith’s face.
As Keith turned around, Dominique saw Jones fire four shots at Keith, shooting him in the arm. According to Dominique, “a grip part or a clip or something” fell from the gun as Jones fired the gun. As Keith attempted to run toward the back of the house, Jones raised his gun again and fired six rounds at Keith. Jones then ran back across the street and drove off in the same white car from which he had retrieved the gun.
Officers found a black rubber revolver grip at the scene of the shooting near where Dominique saw something fall from Jones’ gun. DNA extracted from the grip showed a mixture of DNA from three different persons; Jones, who is African-American, could not be excluded as a contributor to the DNA profile. Evidence at trial indicated that the possibility of selecting an unrelated individual at random as a potential contributor to the DNA profile obtained from the grip was 1 in 85.7 million in the Caucasian population, 1 in 5.34 million in the African-American population, and 1 in 143 million in the Hispanic population. Two bullets found in Keith’s body were determined to be fired from the same gun, and the State’s firearms expert testified both bullets were consistent with being fired from a revolver rather than a semiautomatic pistol.
A jury found Jones guilty as charged of first-degree murder and criminal possession of a firearm. The district court sentenced Jones to a hard 25 life sentence on the first-degree murder charge and 9 months’ imprisonment on the weapons charge, with the sentences to be served consecutively.
Analysis
The district court did not err in giving a limiting instruction regarding gang evidence.
In this direct appeal, Jones first contends the district court erred by instructing the jury:
“Evidence has been admitted tending to prove the defendant was a member of a gang. This evidence, if believed, was not allowed and may not be considered by you to prove he’s a person of bad character or that he has a disposition to commit crimes. This evidence may be considered solely for the purpose of proving defendant’s motive, intent, relationship of the parties, identification and to explain the inexplicable.”
In his appeal brief, Jones concedes he did not object at trial to either the admissibility of the gang evidence or to the limiting instruction as given. And on appeal, Jones does not argue the gang evidence was inadmissible. Instead, he contends the gang evidence was not admissible for all of the purposes specified in the instruction, and the district court should have omitted the last sentence of the limiting instruction. However, at oral argument on this appeal, Jones switched tactics and argued the trial court should not have issued a limiting instruction.
Citing State v. Brown, 285 Kan. 261, 297-300, 173 P.3d 612 (2007), the State contends that while gang evidence is admissible to show bias or establish motive for an otherwise inexplicable act, gang evidence is also admissible when it is relevant to explain the events surrounding the commission of the crime. The State asserts that the instruction given by the district court was appropriate because the gang evidence in this case was relevant to the events surrounding the crime and helped explain an otherwise inexplicable act. Further, the State contends the modified limiting instruction Jones now suggests would have been less favorable to Jones, as the jury would have been permitted to consider the gang evidence for any reason other than to prove he was a person of bad character or that he had a disposition to commit crimes.
Because Jones concedes he did not object to the giving of the instruction regarding gang evidence, K.S.A. 22-3414(3) describes our standard of review. That standard provides in relevant part:
“No party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects thereto before the juiy retires to consider its verdict stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the failure to give an instruction is clearly erroneous.” K.S.A. 22-3414(3).
We recently explained that although K.S.A. 22-3414(3) “purports to withhold appellate jurisdiction in die absence of a proper objection, the statute’s exception effectively conveys such jurisdiction and preserves for appellate review any claim that die instruction error was clearly erroneous.” State v. Williams, 295 Kan. 506, 515, 286 P.3d 195 (2012).
In Williams, we held that in order to determine whether the district court’s giving of or failure to give a jury instruction was clearly erroneous under K.S.A. 22-3414(3), the reviewing court must necessarily first determine whether the instruction was erroneous. This review for error presents a legal question subject to unlimited review. Williams, 295 Kan. at 515-16. We further explained that in applying K.S.A. 22-3414(3), the reviewing court engages in a reversibility determination only after determining the district court erred in giving or failing to give a particular instruction. The test to determine whether an instruction error requires reversal is whether the reviewing court is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. This assessment, because it requires a review of the entire record, is de novo. Williams, 295 Kan. at 516. Thus, in this case, we must first determine if the gang evidence instruction was erroneous.
We have consistently and repeatedly held that gang evidence is not evidence of a crime or civil wrong under K.S.A. 60-455. See, e.g., State v. Peppers, 294 Kan. 377, 387-88, 276 P.3d 148 (2012); State v. Conway, 284 Kan. 37, 48, 50, 159 P.3d 917 (2007); State v. Goodson, 281 Kan. 913, 925, 135 P.3d 1116 (2006); State v. Ross, 280 Kan. 878, 886, 127 P.3d 249, cert. denied 548 U.S. 912 (2006); State v. Lowe, 276 Kan. 957, 963, 80 P.3d 1156 (2003); State v. Bailey, 251 Kan. 156, 166, 834 P.2d 342 (1992) (“membership alone in the Insane Crips gang is not a crime or civil wrong”), modified on other grounds by State v. Willis, 254 Kan. 119, 864 P.2d 1198 (1993).
Instead, gang evidence is generally admissible if relevant, and “[t]he statute that addresses the admission of gang evidence is K.S.A. 60-445.” Ross, 280 Kan. at 886; see Peppers, 294 Kan. at 386; State v. Knighten, 260 Kan. 47, 53, 917 P.2d 1324 (1996). K.S.A. 60-445 provides the district court with discretion to exclude admissible evidence if the court determines the probative value of the evidence “is substantially outweighed by the risk that its admission will unfairly and harmfully surprise a party who has not had reasonable opportunity to anticipate that such evidence would be offered”; the statute does not place any categorical limitations on the admission of evidence. See Conway, 284 Kan. at 50 (“The legislature specifically limited the admissibility of evidence of crimes and civil wrongs in K.S.A. 60-455; no similar legislative statement exists with regard to evidence of gang affiliation.”).
But Jones does not contend on appeal that the evidence was inadmissible or that the trial court erred in admitting the evidence. Instead, he argues the limiting instruction was overbroad and permitted the juiy to consider the evidence for impermissible purposes. He argues this consideration prejudiced him and entitled him to a new trial.
We have recognized that “gang evidence may be prejudicial to a defendant, just as any evidence offered against a defendant on trial for the crime charged is often prejudicial. [Citation omitted.]” Conway, 284 Kan. at 50. But because K.S.A. 60-455 does not apply, a district court is not required to give a limiting instruction when gang evidence is admitted. Conway, 284 Kan. at 49-50; State v. Gholston, 272 Kan. 601, 614, 35 P.3d 868 (2001), cert. denied 536 U.S. 963 (2002); State v. Jamison, 269 Kan. 564, 568, 7 P.3d 1204 (2000).
Because no limiting instruction was requested or even required, we simply cannot say that it was error for the district court to, sua sponte, give a prophylactic limiting instruction in this case. That is particularly true in light of Jones’ argument on appeal regarding the instruction.
Specifically, Jones contends that this court has limited the admissibility of gang evidence to when it is relevant to show bias and to explain an otherwise inexplicable motive. Because the limiting instruction given by the trial court in this case contained several additional bases for consideration of the gang evidence, Jones argues the instruction was erroneous. But contrary to Jones’ contentions, while we have held that gang evidence may be relevant to show bias and to explain an otherwise inexplicable motive, this court has not held that gang evidence is admissible only for these two reasons. Rather, we have held that, generally, evidence of gang affiliation or involvement with gang activity is admissible if relevant and, specifically, that such evidence may be relevant for several reasons. See, e.g., Peppers, 294 Kan. at 380 (motive); Brown, 285 Kan. at 298-300 (motive for an otherwise inexplicable act); State v. Winston, 281 Kan. 1114, 1129, 1135, 135 P.3d 1072 (2006) (identity, motive, necessary context for crimes); State v. Tatum, 281 Kan. 1098, 1109, 135 P.3d 1088 (2006) (same); Ross, 280 Kan. at 886-88 (witness bias or interest); Lowe, 276 Kan. at 961-63 (motive for an otherwise inexplicable event); Gholston, 272 Kan. at 614 (same); State v. Walker, 252 Kan. 117, 137, 843 P.2d 203 (1992) (same).
Thus, we conclude the district court did not err in giving a limiting instruction that referred to several potential purposes for ad mitting the gang evidence. Moreover, even if we agreed with Jones that the gang evidence was not relevant to some of the purposes mentioned in the instruction, Jones’ suggested instruction contradicts his own appeal argument. Jones argues the instruction given allowed the jury to consider the gang evidence for “anything and everything,” and he contends the district court should have given the jury only the first sentence of the instruction: “Evidence has been admitted tending to prove the defendant was a member of a gang. This evidence, if believed, was not allowed and may not be considered by you to prove he is a person of bad character or that he has a disposition to commit crimes.”
But as the State points out, had the district court given only the first sentence of the instruction as Jones now proposes, the jury would have been permitted to consider the admitted gang evidence for any purpose other than to prove Jones was a person of bad character or that he had a disposition to commit crimes. Instead, the district court instructed the jury to consider the evidence for the specific purposes mentioned. Thus, the instruction given by the district court was more favorable to Jones than the instruction he now advocates.
Under these circumstances, it was not error for the district court to fail to give the instruction now suggested by Jones on appeal.
The doctrine of incited error precludes Jones’ remaining challenges.
Eyewitness identification instruction
Next, Jones challenges the district court’s use of PIK Crim. 3d 52.20 to instruct the jury regarding eyewitness identification. The State argues Jones invited any error because he requested the instruction he now challenges. At oral argument, Jones conceded he requested the eyewitness identification instruction he challenges on appeal.
As discussed, ordinarily when the party challenging an instruction given by the district court failed to object to the instruction given, we review the instruction to determine whether it was clearly erroneous. K.S.A. 22-3414(3); Williams, 295 Kan. at 515. However, in this case, we need not determine whether the district court’s eyewitness identification instruction was clearly erroneous because Jones’ challenge to the instruction is precluded by the rule of invited error. See State v. Divine, 291 Kan. 738, 742, 246 P.3d 692 (2011) (a defendant may not invite error and then complain of the error on appeal).
Lesser included offense instruction
Citing K.S.A. 22-3414(3), Jones contends that because there was some evidence of the lesser included offense of second-degree murder, the district court erred in failing to instruct the jury on that crime. The State contends that just as Jones invited error as to the eyewitness instruction, he also invited error as to the lesser included offense instruction, precluding him from asserting such error on appeal.
The record reveals that during an instruction conference outside the presence of the jury, the district court indicated a willingness to instruct the jury on the lesser included offense of second-degree murder, but Jones’ counsel objected to giving such an instruction. The judge then explained to Jones the distinction between first-degree murder and second-degree murder, and advised him that if he was found guilty of first-degree murder, he would receive a life sentence with no parole eligibility for 25 years. After conferring with his counsel, Jones indicated on the record that he understood and agreed with his counsel’s request that the court not give the lesser included second-degree murder instruction.
Jones’ belated and inconsistent objection to the failure to give a lesser included instruction is controlled by State v. Angelo, 287 Kan. 262, 278-80, 197 P.3d 337 (2008). There, we held that while a district court has a duty to instruct on all lesser included offenses reasonably justified by the evidence presented at trial, a defendant cannot complain on appeal of a district court’s action when the defendant invited and led the district court into error by requesting the court not give a lesser included offense instruction. 287 Kan. at 280. Although not critical to our decision, we noted in Angelo that “a denial of relief is particularly appropriate where [the defendant] twice told the court personally that he did not want the instruction, even after acknowledging that he could not appeal from the consequences of his decision.” 287 Kan. at 280.
Similarly, during the instruction conference in this case, the district court indicated its willingness to instruct the jury on second-degree murder, but Jones’ counsel objected to such an instruction. Nevertheless, the trial judge explained to Jones the distinction between first-degree murder and second-degree murder and explained the hard 25 sentence he would face if found guilty of first-degree murder. Despite the trial court’s warning, Jones personally affirmed on the record his agreement with his counsel’s request that the lesser included offense instruction not be given.
Under these circumstances, Jones invited the error of which he now complains, precluding his assertion of this error on appeal.
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The opinion of the court was delivered by
Lockett, J.;
During the probate of the estate of William B. Moe (Moe), the district judge at a de novo hearing reversed the district magistrate judge’s denial of the claim of Ida Turner (Turner) against the estate and ordered specific performance of an agreement between the deceased and Ida Turner for services rendered during Moe’s lifetime. William W. Moe, administrator of the estate, appealed the district judge’s decision. The Court of Appeals agreed with the district judge’s finding that Turner was entitled to specific performance of the oral agreement, but held that her claim against the estate was barred by K.S.A. 60-512’s three-year limitation for bringing an action on oral agreements. In re Estate of Moe, 11 Kan. App. 2d 244, 719 P.2d 7 (1986). Turner, in her petition for review, claimed that the Court of Appeals incorrectly found that K.S.A. 60-512’s limitation barred her claim. We granted review.
Moe died intestate on August 19, 1983. A petition for administration of his estate under the Kansas Simplified Estates Act, K.S.A. 59-3201 et seq., was filed, and William W. Moe, son of the decedent and his only heir-at-law, was appointed as administrator of the estate.
Ida E. Turner filed a petition for allowance of claim against Moe’s estate seeking $225,978.17 due and owing as of January 1, 1984, for services performed by Turner for Moe from July 1969 through May of 1983.
Turner’s claim was originally tried before the district magistrate. After hearing witnesses and reviewing the exhibits, the district magistrate denied Turner’s claim. Turner appealed to the district judge and received a hearing de novo based on the transcript of the prior hearing. K.S.A. 59-2408. The district judge found that Moe had orally promised to will certain property to Turner. He ordered specific performance of the contract by conveyance of the “pig pen” and a sum of money equal to the sale price of the “home place” to Turner.
The administrator appealed. The Court of Appeals found that there had been an oral contract between Moe and Turner, but that the contract had been breached when Moe sold the home place in 1980. It concluded that Turner’s 1984 claim against Moe’s estate was barred by the statute of limitations. We now reverse the Court of Appeals and find that Turner’s claim is not barred by the three-year limitation of K.S.A. 60-512.
Prior to September 1969, Turner was employed as a housekeeper on the home place by Albert “Cap” Moe, father of the decedent. In return for her housekeeping services, Turner received room, board, and $20 per week. Following “Cap” Moe’s death, William W. Moe employed Turner as his housekeeper on the home place under a similar oral contract.
Turner performed housekeeping services for Moe from September 1969 though June 1980. Moe was 67 years old in 1969 and in reasonably good health. Between 1969 and 1980, his health deteriorated markedly. He was hospitalized several times for ulcers, strokes, and the amputation of part of a foot. When he could no longer perform chores around the farm, Turner and her brother assumed those duties.
Prior to November 1976, Moe, at various times, promised Turner that if she would continue performing the housekeeping and other services, he would leave her the home place and another tract of land known as the “pig pen.”
On November 18, 1976, Moe executed a will leaving Turner the home place, the pig pen, and various lots in Scandia, Kansas; the cash in his bank account; his personal property; and all of the residue of his estate except that bequeathed to his son, William W. Moe. Turner received a copy of this will. On February 6, 1978, Moe executed a second will leaving the home place,, the pig pen, the Scandia lots, the personal property, and the estate residue to Turner and her daughter, Mary K. Riley. Turner also received a copy of this will.
On June 5, 1979, an altercation occurred between Turner and William W. Moe concerning Turner’s drinking. As a result, Turner left the home place and went to stay with her daughter in Wichita. During the week Turner was in Wichita, Moe repeatedly called Turner and asked her to return to the farm to care for him. After consulting with an attorney about her rights, Turner agreed to return. She resumed her housekeeping chores and lived in the home place until it was sold in July of 1980.
Moe’s dissatisfaction with Turner’s drinking and the resulting neglect of her work provided the impetus for him to sell the home place and move to town. Moe purchased a second house in Scandia and placed the title in Turner’s name. Turner then moved into that house which was a short distance from the house where Moe lived. From July 1980 until Moe’s death, Turner continued to perform housekeeping chores for Moe, and he continued to pay her $20 per week for her services. During this time Moe’s son assumed a greater role in the care of Moe, daily taking him out to meals and administering his father’s medications.
Turner raised six issues in the Court of Appeals. The Court of Appeals found that: (1) the pleadings were sufficient to establish a claim for specific performance of an oral contract; (2) the proffered rebuttal testimony was admissible; and (3) there was clear and convincing evidence to establish that the decedent did promise Turner the pig pen and the home place, in addition to paying her for housekeeping, if Turner would care for him and the farm until his death. The Court of Appeals ruled against Turner’s claim, finding it was barred by the statute of limitations, and therefore did not consider whether collateral estoppel was appropriate. On petition for review, Turner raises two issues:
1. Whether Turner’s claim based on an oral contract to provide services is barred by the statute of limitations.
2. Whether the administrator is collaterally estopped from asserting a statute of limitations defense.
The administrator claims that, because Turner knew the home place was sold in 1980, the three-year statute of limitations for the breach of the oral contract began to run at the time of the sale. Turner argues that since she continued to perform services for Moe, the statute of limitations did not begin to run until Moe’s death.
General contract law provides that once performance has begun and prevention of further performance takes place by repudiation or otherwise, there is an actual breach and further performance is excused. We recognized an exception to the general rule in Schaffner v. Schaffner, 98 Kan. 167, 157 Pac. 402 (1916), where if there is a single hiring and the term of service of the employee and also the time when his compensation shall become due are not fixed by agreement, and the hiring and service continue without interruption or payment until the death of the employer, the employment, in the absence of the evidence of a general custom or usage, may be deemed continuous. Under such circumstances, the statute of limitations will not begin to run against a claim for compensation until the services have ended.
Some noted authorities are critical of the exception to the general rule. As noted in 18 Williston on Contracts § 2027R, pp. 796-99 (3rd ed. 1978):
“Nevertheless, many courts call such repudiation after part performance an anticipatory breach, and allow the injured party a so-called election, which is necessarily fictitious, to continue the contract. Such courts, consequently allow an injured promisee, if he elects, after breach of a contract to keep it alive, to compute the statutory period not from the time of the breach, but from the time when ultimate payment or performance was promised.
“This is inconsistent with the general theory that the Statute begins to run as soon as there is a cause of action. The idea that the injured party may elect not to call a breach something that is a breach, or that he may elect to continue a contract when the wrongdoer will not let him continue it, is not logically defensible, whatever authorities may be cited in its favor.
“Many of the decisions holding that the statutory period may be computed from the later date were based on contracts to work for or to support a promisor in return for his promise to pay in whole or in part for the work or support by leaving at his death property to the promisee, and where, because of the promisor’s fault, the work or support has not been fully given.
“Such decisions are opposed to the generally, although not universally, accepted doctrine that a discharged employee acquires immediately a right of action for his entire damages, and cannot split his cause of action by recovering in several actions for the successive payments or performances promised in the contract.
“Some decisions on contracts other than those for future support likewise permit the statutory period to be calculated from the time when final performance becomes due, rather than from the time when a breach takes place that terminates any actual possibility of further performance.”
Three Kansas cases are relevant in determining when the K.S.A. 60-512 three-year statute of limitation bars Turner’s claim for continuous services under the oral contract. In the first, Heery v. Reed, 80 Kan. 380, 102 Pac. 846 (1909), Reed sought to recover against the decedent’s estate for services Reed had performed for the decedent during his lifetime. Reed lived with the decedent for 23 years performing housekeeping and farm chores. For Reed’s services, the decedent had promised to give Reed all his property at his death. When Reed married, however, the decedent ordered her to leave. This court found that the statute of limitations had not run on her claim even though more than three years had elapsed between her discharge and the decedent’s death. This court said Reed had the option to treat the contract as broken and sue for damages or claim the renunciation as inoperative and hold herself in readiness to do what the contract required and await the death of her employer to complete the performance and receive full payment.
In Engelbrecht v. Herrington, 101 Kan. 720, 172 Pac. 715 (1917), it was determined that the statute of limitations had run. There, the father promised the son that if he “would stay at home, work upon the farm and help earn money enough to pay the mortgage debt against it,” the son would receive half the farm after the father and his father’s wife had died. 101 Kan. at 721. The son stayed on the farm and worked for about five years, during which time the mortgage was paid. Twenty years after performance by the son, the father sold the farm to another person. The son brought no action at that time. Instead, the son sought damages when his father died, six years after the farm had been sold. The Engelbrecht court held that when the father conveyed the farm to another, performance by the father became a legal impossibility, and the son’s cause of action accrued at that time.
This case differs from Engelbrecht in that in Engelbrecht the son’s performance was completed at the time of the sale. The mortgage had been paid off, and the court found that the contract was fully performed 32 years before the action was brought. The Engelbrecht court noted that Heery was not controlling because the son’s services had been fully performed when the land was sold.
Neither Heery nor Englebrecht is exactly on point. In Heery, the decedent had not conveyed the property and, therefore, was not disabled from fulfilling his part of the contract, although he had prevented Reed from performing. In Engelbrecht, the plaintiff had performed his part of the contract many years before the land was sold. In the present case, Turner was willing to continue performing services. There is evidence to suggest she did continue providing services after a part of what had been promised her had been sold. She visited Moe daily and continued to provide care for him. Moe continued to pay her $20 a week for these services.
In a more recent case, In re Estate of Ray, 180 Kan. 634, 306 P.2d 190 (1957), Ray promised that if the claimant and her family would move into her home and make their home with her, she would leave the home to the claimant upon her death. The claimant and her family moved in and lived with Ray until she died intestate. It was then learned that five years prior to her death Ray had secretly deeded her property to her son and daughter. The court found that the claimant’s demand to recover specific property was beyond her reach. Since the claimant had performed her services under the oral contract during the lifetime of Ray, the court concluded that she was entitled to recover on quantum meruit the reasonable value of her services to Ray and that the statute of limitations commenced to run at the completion of the contract — the death of Ray.
In Ray, as in Heery, the claimants continued to perform or offer to perform their part of thé contract for continuous service until the decedents’ deaths. In Heery, the employer prevented the claimant from performing by sending her away. In Ray, the claimant was performing; but did not know that the employer had secretly given away the property she had promised to the claimant. The circumstances were different in Engelbrecht. The contract for service there was completed because the son had finished performing an¿ did not attempt to establish his claim when the property he was promised was sold.
Turner worked hard maintaining a large garden, canning food, mending fences, helping with the livestock, and whatever else needed to be done until the home place was sold. In 1979, when William W. Moe evicted Turner from the house, it was William B. Moe who called her numerous times and asked her to come back. After they moved to town, Turner visited Moe every day and worked around the house. Moe continued to pay Turner $20 a week up until the time of his death. Moe still owned the pig pen at his death. If Moe had wished to rescind the contract, he would not have bought a house in town for Turner and continued paying her for her services. The Court of Appeals incorrectly applied Engelbrecht to the facts of this case.
Turner continued to perform under the contract and is entitled to receive what remained of that originally promised plus the value of what had been promised but sold. The district court correctly determined that Moe orally promised certain property to Turner for her continuous services until his death. The district court’s award of the land known as the pig pen and a sum of money equal to the sale price of the home place was correct.
• Since we have determined that the statute of limitations had not run on Turner’s claim, we are not required to determine the issue of collateral estoppel.
The decision of the district court is affirmed and the decision of the Court of Appeals is reversed. | [
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The opinion of the court was delivered by
Prager, J.:
This is a direct appeal by the defendant, Leonard R. Louis, Sr., from convictions by the district judge sitting without a jury. The case was submitted to the court on stipulated evidence. The defendant was convicted on the following counts: Six counts of aggravated vehicular homicide (K.S.A. 1984 Supp. 21-3405a); driving while under the influence of alcohol or drugs (K.S.A. 1984 Supp. 8-1567); failure to decrease speed (K.S.A. 8-1335); and failure to obey a traffic control device (K.S.A. 1984 Supp. 8-1508). The defendant was sentenced to six consecutive terms of one-to-five years for the aggravated vehicular homicide convictions and, after modification, six months for driving under the influence of alcohol to run concurrently with the other sentences. Defendant appealed his convictions and the sentences imposed thereon.
The facts in the case are essentially undisputed and are as follows: This criminal prosecution arose out of a tragic automobile accident which occurred at an intersection in the city of Topeka on May 15, 1985. The vehicle, driven by the defendant, collided with another vehicle occupied by two young mothers and their four young children. All of the occupants of the other vehicle were killed in the collision. The defendant sustained serious injuries and received emergency medical treatment at the scene of the accident before he was transferred to the emergency room at St. Francis Hospital. Defendant was the only occupant of his vehicle. The State’s witnesses testified that defendant’s vehicle was proceeding toward the intersection at a speed estimated at between 60 to 80 miles per hour. According to witnesses, defendant’s vehicle ran a red light and crashed into the side of the other vehicle. Experts, who examined the vehicle and the physical facts at the scene, estimated defendant’s speed to be 104 miles per hour. Within just a few minutes after the collision, officers of the Topeka Police Department arrived at the accident scene.
The injured defendant remained at the scene until the arrival of an ambulance which transported him to St. Francis Hospital escorted by a police vehicle. The officer in charge at the scene realized the necessity of obtaining a blood sample from the defendant to determine the amount of alcohol in his blood. A police officer was assigned to “sit” on the defendant and to keep track of his every move at the hospital. The officers at the hospital were instructed that defendant was not to leave the hospital without the officers’ approval. Officer Owens, who followed the ambulance to the hospital in his patrol car, testified that he understood that it was his responsibility to maintain custody over the defendant until he was released. He testified that had defendant attempted to leave the ambulance or the hospital, officers would have stopped any such action. While the defendant was in the emergency room at the hospital, three police officers of the Topeka Police Department maintained constant vigil over him. The officers testified that at all times until a determination was made that he would be admitted to St. Francis Hospital, defendant was in their custody and was in no way free to go. This was the understanding not only of the officers at the hospital but those at the scene of the accident. The officers at the scene of the accident testified that they perceived the odor of an alcoholic beverage coming from the defendant. It is clear that the statements of the witnesses made at the scene of the accident as to the speed of the defendant’s automobile and that the defendant had run a red light, together with the odor of alcohol, gave the officers at the scene reasonable cause to believe that the defendant had been driving under the influence of alcohol.
In addition to the police officers at the scene, the Shawnee County Deputy District Coroner, Dr. Roman Hiszczynsky, was also present. The doctor contacted the hospital personnel to insure that a blood sample would be taken. Dr. Kathryn O’Keefe, the doctor on duty, received a call from the doctor asking her to have a blood sample and urine sample taken from the defendant at the time. She received the call after a blood sample had already been taken for the use of the hospital. The deputy coroner made it clear that he wanted a blood test and a urine test, and that, once the samples had been taken, a chain of evidence be established and the samples given to the police. Dr. O’Keefe clearly understood that the samples were for police evidence to determine if the defendant had been drinking alcohol or taking drugs. Dr. O’Keefe instructed Pat Hill, a registered nurse on duty that evening, that a blood alcohol test was to be taken for police purposes and that the sample was to be given to the police officers. Dr. O’Keefe examined the defendant in the emergency room, asking him several questions which required a “yes” response by squeezing her hand. This was necessary because the defendant had received an injury to his mouth. The doctor testified that defendant’s answers were appropriate and that, medically, his condition was stable and there were no signs of concussion. The doctor testified that, in her professional opinion, defendant understood all of the questions that she asked and knowingly responded thereto.
The blood sample was taken by Nurse Pat Hill. Prior to taking the blood, she asked defendant if he would consent for a blood sample to be taken “for police purposes.” The defendant squeezed her hand indicating his consent to the taking of the blood. Nurse Hill testified that she believed that the defendant knew exactly what he was doing when he consented to the taking of the blood sample. Nurse Hill testified that she explained two or three times to the defendant the procedure so that he knew exactly what she was asking for and that the samples would be delivered to the police. The testimony was undisputed that, at all times prior to the time the blood test was taken while the defendant was held in the emergency room, police officers were present, and that the police officers remained near defendant at the hospital during the initial stages of his treatment, while the blood sample was taken, and until he was actually admitted to the hospital for surgery. The defendant was immediately taken into custody on an arrest warrant upon his discharge from the hospital.
The first issue raised by the defendant on the appeal is that the trial court erred in overruling defendant’s motion to suppress the evidence of the defendant’s blood test. It was stipulated that the blood test showed .13 alcohol concentration in the defendant’s blood. After a full evidentiary hearing, the district court refused to suppress the blood test results, holding that the blood samples taken from the defendant in the emergency room of the hospital were taken while the defendant was in police custody pursuant to K.S.A. 8-1001, which at that time provided in pertinent part as follows:
“8-1001. Consent to submit to chemical test deemed given, when; authority to withdraw blood; administration of test; refusal admissible in evidence; procedure upon refusal to submit to test; notice; hearing; suspension of license, permit or operating privilege, (a) Any person who operates a motor vehicle upon a public highway in this state shall be deemed to have given consent to submit to a chemical test of breath or blood, to determine the alcoholic content of the person’s blood whenever the person is arrested or otherwise taken into custody for any offense involving operating a motor vehicle under the influence of alcohol in violation of a state statute or a city ordinance and the arresting officer has reasonable grounds to believe that prior to arrest the person was driving under the influence of alcohol. The test shall be administered at the direction of the arresting officer.
“(b) If a law enforcement officer requests the arrested person to submit to a chemical test of blood, the withdrawal of blood at the direction of the officer may be performed only by: (1) a person licensed to practice medicine and surgery or a person acting under the supervision of any such licensed person, (2) a registered nurse or a licensed practical nurse or (3) any qualified medical technician.” (Emphasis supplied.)
In passing, it should be noted that that K.S.A. 8-1001 was amended by the 1985 legislature. K.S.A. 1985 Supp. 8-1001, now provides in part:
“8-1001. Tests for alcohol or drugs; consent implied; administration of tests, when; procedures; immunity from liability; warning statement; search warrant, admissibility of test; availability of test result, (a) Any person who operates or attempts to operate a motor vehicle within this state is deemed to have given consent, subject to the provisions of this act, to submit to one or more tests of the person’s blood, breath, urine or other bodily substance to determine the presence of alcohol or drugs. The testing deemed consented to herein shall include all quantitative and qualitative tests for alcohol and drugs. A person who is dead or unconscious shall be deemed not to have withdrawn the person’s consent to such test or tests, which shall be administered in the manner provided by this section.
“(b) The test or tests deemed consented to under subsection (a) shall be administered when a law enforcement officer has reasonable grounds to believe the person was operating or attempting to operate a motor vehicle while under the influence of alcohol or drugs, or both, and one of the following conditions exists: (1) The person has been arrested or otherwise taken into custody for any offense involving operation or attempted operation of a motor vehicle while under the influence of alcohol or drugs, or both, in violation of a state statute or a city ordinance; or (2) the person has been involved in a motor vehicle accident or collision resulting in property damage, personal injury or death. The law enforcement officer directing administration of the test or tests may act on personal knowledge or on the basis of the collective information available to law enforcement officers involved in the accident investigation or arrest.
“(c) If a law enforcement officer requests a person to submit to a test of blood under this section, the withdrawal of blood at the direction of the officer may be performed only by: (1) A person licensed to practice medicine and surgery or a person acting under the supervision of any such licensed person; (2) a registered nurse or a licensed practical nurse; or (3) any qualified medical technician. . . .
“(2) It shall not be a defense to any prosecution for a violation of K.S.A. 8-1567 and amendments thereto, or to any other action arising out of the alleged operation or attempted operation of a motor vehicle while under the influence of alcohol or drugs, or both, that the person did not understand the written or oral notice required by this section because of any condition produced by the person’s voluntary intoxication or by injury resulting from that intoxication.” (Emphasis supplied.)
It should be noted that, under K.S.A. 8-1001 as it existed prior to 1985, a blood sample may be taken “whenever the person is arrested or otherwise taken into custody for any offense involving operating a motor vehicle under the influence of alcohol in violation of a state statute or a city ordinance and the arresting officer has reasonable grounds to believe that prior to arrest the person was driving under the influence of alcohol.” The 1985 statute, in subsection (b), provides that the blood test shall be administered when a law enforcement officer has reasonable grounds to believe the person was operating or attempting to operate a motor vehicle while under the influence of alcohol or drugs, or both, and one of the following conditions exists: (1) The person has been arrested or otherwise taken into custody for any offense involving operation or attempted operation of a motor vehicle while under the influence of alcohol or drugs in violation of a state statute or city ordinance; or (2) the person has been involved in a motor vehicle accident or collision resulting in property damage, personal injury, or death.
The basic issue presented on this point is whether or not the defendant was under arrest or otherwise in custody when the blood sample was taken from the defendant, because either an arrestor police custody is required under K.S.A. 8-1001. In State v. Gordon, 219 Kan. 643, 549 P.2d 886 (1976), this court held that K.S.A. 8-1001 becomes operative only after a person is arrested or otherwise taken into custody. K.S.A. 1985 Supp. 22-2202(4) defines the term “arrest” as follows:
“(4) ‘Arrest’ means the taking of a person into custody in order that the person may be forthcoming to answer for the commission of a crime. The giving of a notice to appear is not an arrest.”
The term “custody” is defined in K.S.A. 1985 Supp. 22-2202(9) as follows:
“(9) ‘Custody’ means the restraint of a person pursuant to an arrest or the order of a court or magistrate.”
In the present case, the parties agree that, at the time the blood sample was taken at the hospital, the defendant was not under arrest. The officers needed the evidence of the blood test in order to determine whether defendant was driving while under the influence of alcohol or drugs. The important issue is whether the defendant was “otherwise in custody” as required by K.S.A. 8-1001.
The term “custody” as defined by K.S.A. 1985 Supp. 22- 2202(9), which requires the restraint of a person “pursuant to an arrest or the order of a court or magistrate,” has a narrower meaning than the word “custody” as used under the code of criminal procedure. In this case, the defendant was not in custody pursuant to an arrest or the order of a court or magistrate. We have concluded, however, that the narrow definition of “custody” set forth in 22-2202(9) is not applicable in interpreting the provisions of K.S.A. 8-1001(b). It should be noted that K.S.A. 22-2201(1) provides:
“22-2201. Interpretation of words and phrases. (1) In interpreting this code, such words and phrases as are defined in this article shall be given the meanings indicated by their definitions, unless a particular context clearly requires a different meaning.” (Emphasis supplied.)
In State v. Brunner, 211 Kan. 596, 507 P.2d 233 (1973), it was held that a person who has not been arrested is not in police custody unless there are significant restraints on his freedom of movement which are imposed hy some law enforcement agency. Brunner further held that a police interview of an accident victim at a hospital is not “custodial interrogation “ unless his confinement is police instigated or controlled for custodial purposes.
The term “custody” in its broad sense was considered in State v. Bohanan, 220 Kan. 121, 551 P.2d 828 (1976), where the court in Syllabus ¶ 2 stated:
“A person who has not been arrested is not in police custody unless there are significant restraints on his freedom of movement which are imposed by some law enforcement agency.”
This definition of police custody was also recognized in State v. Taylor, 234 Kan. 401, 405, 673 P.2d 1140 (1983), and State v. Costa, 228 Kan. 308, 311, 613 P.2d 1359 (1980).
The test to be applied in this court in determining whether defendant was in custody at the time the blood sample was taken is whether at that time there were some significant restraints on his freedom of movement which were imposed by some law enforcement agency.
In support of the defendant’s position, counsel for the defendant vigorously maintains that the defendant was not in the custody of the Topeka Police Department for several reasons. He argues that defendant was never advised by anyone that he was under arrest or police custody. Hospital personnel were never specifically advised that defendant was in police custody or under arrest. A request for the blood sample was not made by an arresting officer but was made by Dr. O’Keefe and Nurse Hill. The defendant was not advised of his constitutional rights under Miranda v. Arizona prior to the blood sample being taken. Further, any restraints on defendant’s freedom of movement resulted from his physical condition and were not instituted by any restraints imposed by law enforcement officers.
Counsel for the State takes the position that the defendant was in police custody at the time the blood sample was taken. He points out that the ambulance which took the defendant to the hospital emergency room was accompanied by Officer Owens in his police vehicle. It was undisputed that there were at all times two or three police officers with the defendant in the emergency room for a period of three or four hours. He was not free to leave the hospital without their consent. One officer testified that if the defendant had tried to leave he would have been prevented from doing so. He further testified that the officers understood they were not to leave the hospital until the defendant had agreed to surgery and was admitted to the hospital. The testimony of the witnesses was undisputed that Nurse Pat Hill asked the defendant for a sample of his blood for police purposes. Three uniformed police officers were standing by when that request was made. The officers all testified that the defendant was expressly told that this was a police test for alcohol or drugs in the defendant’s blood. The three officers were present when the defendant responded by the squeezing of Nurse Hill’s hand giving his consent for taking the sample of blood. The State further argues that upon defendant’s release from the hospital he was immediately arrested on a warrant and taken to the police station.
The trial judge, after hearing all of the evidence and the highly professional arguments of able counsel, concluded that defendant Louis was in custody from the time he left the scene of the accident until he was admitted to the hospital for surgery after the blood samples had already been taken. The trial judge noted that defendant was transported to the hospital by ambulance accompanied by an officer in a police vehicle. Police officers remained at the hospital during the initial stages of his medical treatment and were present in the room when the blood sample was taken. Nurse Hill testified that, “We believed that the defendant was in custody,” although that was questioned by Dr. O’Keefe. After the defendant was admitted to the hospital for surgery, the police officers did not interfere until he was discharged from the hospital at which time he was immediately taken into custody on a warrant. The trial judge concluded that the defendant had been advised and that he understood that the blood was to be drawn for police purposes at a time when three police officers were present. In addition to these observations, we note that at the hearing on the motion to suppress the defendant took the stand and, although he could not remember exactly what took place at the hospital, he testified that he heard police sirens and when he got to the hospital he saw the police. He testified that he was served with a warrant and arrested when he was released from the hospital. He further testified that it was possible that he had squeezed Nurse Hill’s hand in response to her questions about taking the blood sample.
After carefully examining the evidentiary record taken at the hearing on the motion to suppress, it is clear to us that the trial court was presented with a fact issue as to whether or not defendant Louis was in police custody at the time the blood sample was taken. We have concluded that there was substantial competent evidence to support the finding of the trial court that, at the time the blood sample was requested and taken at the hospital, there were significant restraints on the defendant’s freedom of movement which had been imposed by the Topeka police officers.
We have considered the many cases cited by able counsel and have concluded that each case is distinguishable on its peculiar facts. For example, in State v. Brunner, 211 Kan. at 599, the trooper who asked the defendant to submit to the blood test was emphatic in his testimony that the defendant was not “arrested” and was not “in custody.”
We do not consider as controlling the fact that the police did not physically restrain the defendant or advise him at the hospital that he was under arrest and in police custody. We do not believe that the law is so inhumane as to require a police officer to confront a seriously injured citizen in a hospital and specifically advise him that he is under arrest or in police custody. Under the factual circumstances in this case, the mere presence of the police officers is sufficient to inform a hospitalized individual that his freedom of action is restricted. We think it especially important here that Nurse Hill informed the defendant that the sample of blood was being taken for police purposes at a time when three police officers were standing nearby. Under all the circumstances, we hold that the trial court did not err in denying defendant’s motion to suppress the blood test. The evidence of the blood test was properly admitted into evidence at the trial.
The second point raised by the defendant on the appeal is that the trial court abused its discretion in sentencing the defendant to six consecutive sentences on the aggravated vehicular homicide convictions. On September 11, 1985, the defendant was sentenced to one-to-five years on each of the aggravated vehicular homicide convictions to run consecutively. On defendant’s motion to modify the sentence, the district court permitted the consecutive sentences for the aggravated vehicular homicide convictions to stand. On this appeal, the defendant maintains that the district court abused its discretion by imposing the maximum sentences allowable for a class E felony on a first offense and, in addition, by ordering the six maximum sentences to run consecutively.
Specifically, defendant contends that the trial court abused its discretion in imposing consecutive sentences by failing to consider and apply the factors required by K.S.A. 21-4601 and K.S.A. 21-4606 and, further, by failing to set out in the record the reasons for the heavy sentences imposed. The general rule in Kansas is that a sentence which lies within the statutory limits set forth by the legislature will not be disturbed on appeal absent special circumstances showing an abuse of discretion. State v. Williams, 235 Kan. 485, 681 P.2d 660 (1984). At the time the sentences were finally determined when defendant’s motion for modification was denied, the trial court had before it the court services officer’s presentence report, the Sunflower Alcohol Safety Action Project report, and the report of the State Reception and Diagnostic Center. At the modification hearing, the trial court discussed the various statutory factors. The court noted that the defendant had no history of prior criminal activities. It noted that the act of the defendant was not intentional and that there was no provocation for the offenses. The trial court, however, could not disregard the fact that six innocent people had been killed as a result of the defendant’s criminal act. The trial court obviously could not get around the fact that the defendant’s reckless and irresponsible disregard for the safety of others had resulted in the death of six innocent people, and the consecutive sentences were imposed.
We have considered the entire record in the case. Certainly the consecutive sentences were severe, but we cannot say that the trial court abused its discretion under all the facts and circumstances existing at that time.
We note, however, the provisions of K.S.A. 1985 Supp. 21-4603(4) which permit a trial court to reduce the minimum term of confinement at any time before the expiration of the sentence when such reduction is recommended by the secretary of corrections and the court is satisfied that the best interests of the public will not be jeopardized and the welfare of the inmate will be served by such reduction. If the defendant Louis, during the period of his confinement, demonstrates to the secretary of corrections and to the trial court by his attitude and conduct that the sentences imposed in this case should be reduced, then perhaps it may not be necessary for the defendant to serve the entire period of the consecutive sentences. That, of course, is a matter for the future which to a great extent is dependent upon the efforts of the defendant. We hold the trial court did not abuse its discretion in imposing consecutive sentences on the six convictions for aggravated vehicular homicide.
The third issue raised by the defendant on the appeal is that the trial court erred in finding the defendant guilty of aggravated vehicular homicide while engaged in reckless driving in violation of K.S.A. 1984 Supp. 8-1566, or driving while under the influence of alcohol or drugs in violation of K.S.A. 1984 Supp. 8-1567, when he was not charged with and convicted of reckless driving. Defendant maintains, in substance, that it is a prerequisite to a finding of guilty of aggravated vehicular homicide that the defendant also be charged either with reckless driving (K.S.A. 1984 Supp. 8-1566); driving under the influence of alcohol or drugs (K.S.A. 1984 Supp. 8-1567); or fleeing or attempting to elude a police officer (K.S.A. 8-1568). There are no Kansas cases specifically addressing this issue. However, in our judgment the resolution of this issue is controlled by our holding in State v. Wise, 237 Kan. 117, 697 P.2d 1295 (1985). In that case, the defendant was convicted of felony murder. On appeal, the defendant contended that he could not be convicted of felony murder unless he was also charged with and convicted of the underlying felony. This court rejected that contention.
K.S.A. 1984 Supp. 21-3405a defines aggravated vehicular homicide as the unintentional killing of a human being while engaged in reckless driving in violation of K.S.A. 8-1566 and amendments thereto, or driving under the influence of alcohol or drugs in violation of K.S.A. 8-1567 and amendments thereto, or fleeing or attempting to elude a police officer in violation of K.S.A. 8-1568 and amendments thereto. While the statute provides for but one offense, it encompasses alternative violations. Nowhere does the statute require that a defendant be charged with the violation he was engaged in at the time of the unintentional killing. We find this point to be without merit.
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The opinion of the court was delivered by
Lockett, J.:
This is a workers’ compensation case. The injured worker was employed by the State of Kansas. It was discovered that seven and a half years prior to the present injury she had suffered a similar type injury while working for the State and had been determined to be permanently partially disabled. The Administrative Law Judge (ALJ) found that the Workers’ Compensation Fund (Fund) should be assessed a portion of the award since the State had retained a handicapped worker. The Fund appealed to the Director of Workers’ Compensation (Director). The Director ruled that there was not sufficient evidence to show that the employing agency had retained a handicapped worker. The State Self-Insurance Fund then appealed to the district court, which affirmed the Director’s decision. On appeal the Court of Appeals ruled on a legal issue determined below but, because there had been no cross-appeal of that legal issue, we accepted the matter for review.
Claimant/appellee DeElla Alice Johnson was a child development specialist and supervisor at the Kansas Neurological Institute (KNI) in Topeka. She had worked at KNI for 23 years. Her duties included dressing, bathing, feeding, transporting, and generally caring for the physical needs of 32 profoundly retarded, nonambulatory adult patients. On August 16,1982, while pulling a choking patient out of his wheelchair, Johnson injured her back. Her orthopedic surgeon diagnosed her condition as herniated or bulging discs with nerve root compression. She has not been released to work since the day of her injury.
Johnson filed a claim for compensation against respondents KNI and the State Self-Insurance Fund. The Fund was subsequently impleaded when a search of the Self-Insurance Fund’s records revealed that Johnson had settled a previous claim with KNI for 12 Vz percent permanent general disability for a slip- and-fall induced back injury suffered in November 1974. She had been off work for one month after the first injury and then had returned to work with no symptoms until the second injury approximately seven and a half years later.
At the hearing on the present injury before the ALJ, the contested issues were the nature and extent of Johnson’s disability and whether KNI had knowingly retained a handicapped employee. George Welch, the director of the State Self-Insurance Fund, testified that he had approved Johnson’s settlement in 1974, knowing she was likely to continue to have back problems. The ALJ awarded Johnson compensation based on a finding of a 95 percent permanent partial general work disability. The ALJ held: (1) that KNI had met its burden of showing knowing retention of Johnson because Welch was an employee of the State and his knowledge could be imputed to KNI, and (2) that the 1974 injury contributed 30 percent to the 1982 injury. He assessed 30 percent of the award against the Fund.
The Fund requested that the Director review the decision. The Director affirmed the finding of 95 percent work disability, but reversed as to the Fund’s liability. The Director found that KNI had imputed knowledge but, since Johnson’s preexisting disability was not demonstrably disabling, KNI had the burden of persuasion that it had a reservation when it retained the handicapped employee. Finding no evidence of such reservation, the Director concluded no portion of the award could be assessed against the Fund.
The State Self-Insurance Fund appealed to the Shawnee County District Court. The district court adopted the rulings of the ALJ as modified by the Director. KNI appealed the finding that it had not shown reservations about retaining the handicapped claimant. The Fund did not cross-appeal the district court’s finding that knowledge of claimant’s preexisting condition was imputable to KNI. On appeal, the Court of Appeals, however, considered whether George Welch had knowledge which was imputable to KNI. Johnson v. Kansas Neurological Institute, 11 Kan. App. 2d 161, 716 P.2d 598 (1986). The Court of Appeals stated:
“We need not reach consideration of what respondents here consider to be a troublesome application of the reservation concept. Assuming Welch’s testimony is sufficient to show knowledge, as we must on review, we nonetheless must disagree with the respondents’ legal conclusion that that knowledge must be imputed to KNI.” 11 Kan. App. 2d at 162-63.
The court went on to say that neither the cases nor the evidence require the conclusion that the director of the State Self-Insurance Fund was an agent of KNI for the purpose of imputing knowledge to KNI. It concluded that the district court was correct in holding that the Fund was not liable, even though the court reached that conclusion for the wrong reason.
KNI contends that the ALJ, the Director, and the district court all held that the claimant’s employer had imputed knowledge of claimant’s preexisting condition. KNI appealed the rulings adverse to it, but the Fund did not cross-appeal the finding that knowledge of the handicap was imputed to the employer. KNI argues that the Court of Appeals incorrectly based its decision on an issue not appealed and it never considered the issues raised on appeal.
K.S.A. 60-2103(h) provides:
“When notice of appeal has been served in a case and the appellee desires to have a review of rulings and decisions of which he or she complains, the appellee shall within twenty (20) days after the notice of appeal has been served upon him or her and filed with the clerk of the trial court, give notice of his or her cross-appeal.”
K.S.A. 60-2103(h) requires appellees to cross-appeal adverse rulings to obtain appellate review of those issues. Douglas v. Lombardino, 236 Kan. 471, 490, 693 P.2d 1138 (1985); Chetopa State Bancshares, Inc., v. Fox, 6 Kan. App. 2d 326, 334, 628 P.2d 249, rev. denied 229 Kan. 669 (1981). Timely filing of a cross-appeal is jurisdictional. Haas v. Freeman, 236 Kan. 677, 684, 693 P.2d 1199 (1985).
Appellate courts serve two quite different functions. The appellate court reviews the trial record for error in the particular case. It also uses the case before it as a vehicle for stating and applying constitutional principles, for authoritatively interpreting statutes, or for formulating and expressing policy on legal issues of state-wide concern.
Appellate courts should be reluctant to interfere with the course of litigation determined in the trial courts or administrative hearings. Deference to the lower court or the administrative process usually precludes review of issues other than those presented at the trial or the hearing. The rule limits reviewing courts somewhat from raising legal issues sua sponte.
Three exceptions to the general rule that reviewing courts will not consider on appeal issues not raised in the trial court or the administrative hearing are:
(1) Cases where the newly asserted theory involves only a question of law arising on proved or admitted facts and which is finally determinative of the case;
(2) cases where consideration of a question raised for the first time on appeal is necessary to serve the ends of justice or to prevent denial of fundamental rights; and
(3) cases where a judgment of a trial court may be upheld on appeal even though the court may have relied on the wrong ground or assigned a wrong reason for its decision. See State v. Puckett, 230 Kan. 596, 598-99, 640 P.2d 1198 (1982).
The Court of Appeals’ stated exception for raising the issue sue sponte was that the district court had “relied upon a wrong ground or assigned an erroneous reason for its decision.”
The Court of Appeals never decided that the district court was wrong when it determined there had been no “reservation.” Without notice to the parties, it chose to determine sua sponte whether knowledge of the prior injury was imputed from one state agency to another, an issue that was not appealed. Where an appellate court raises a new issúe sua sponte, counsel for all parties should be afforded a fair opportunity to brief the new issue and to present their positions to the appellate court before the issue is finally determined. State v. Puckett, 230 Kan. at 601.
We agree with the appellants that the Court of Appeals erred when it disregarded the “reservation” issue on appeal and determined sue sponte that the knowledge of the prior injury to the worker was not imputed from one state agency to another state agency.
Because this court granted the petition for review, we have jurisdiction to hear the appeal and the authority to determine the appropriate issues presented on appeal. State v. Galloway, 238 Kan. 100, 708 P.2d. 508 (1985).
KNI contends that the district court erred in holding that the Fund was not liable for any of the award, as KNI had failed to show a “reservation with respect to hiring or retaining the claimant.”
K.S.A. 1985 Supp. 44-567(b) provides:
“In order to be relieved of liability under this section, the employer must prove either that the employer had knowledge of the preexisting impairment at the time the employer employed the handicapped employee or that the employer retained the employee in employment after acquiring such knowledge. The employer’s knowledge of the preexisting impairment may be established by any evidence sufficient to maintain the employer’s burden of proof with regard thereto. If the employer, prior to the occurrence of a subsequent injury to a handicapped employee, files with the director a notice of the employment or retention of such employee, together with a description of the handicap claimed, such notice and description of handicap shall create a presumption that the employer had knowledge of the preexisting impairment.”
Under the statute, the employer has the burden of proving that it knowingly employed or knowingly retained in its employ a handicapped worker. Whether the worker’s impairment is of such a character as to constitute a handicap in obtaining employment is a question of fact, and the burden of proof rests with the party claiming it had knowledge that a handicap existed. Hinton v. S.S. Kresge Co., 3 Kan. App. 2d 29, Syl. ¶ 3, 592 P.2d 471 (1978), rev. denied 225 Kan. 844 (1979).
The determination of whether an employer had knowledge of a worker’s handicap is made on a case-by-case basis. Oates v. Post & Danley Truck Lines, 3 Kan. App. 2d 337, 339, 594 P.2d 684 (1979). Knowledge of a particular accident or injury is not necessarily knowledge of an impairment to an employee that constitutes a handicap. Hinton v. S.S. Kresge Co., 3 Kan. App. 2d at 33. An impairment need not be demonstrably disabling to the worker as long as it gives rise to a reservation in the mind of an employer in deciding to hire or retain the employee. Carter v. Kansas Gas & Electric Co., 5 Kan. App. 2d 602, 606, 621 P.2d 448 (1980).
In the present case, the evidence was undisputed that Johnson did not exhibit any symptoms for many years after her first injury. After the worker returned to work, she continued to do the same physical activities, including lifting, bending, and stooping, as before. The record supports the finding that KNI had no.reservation when it retained Johnson as an employee.
Next, KNI argues that the court should overthrow the reservation concept, which, according to KNI, is unworkable because it causes employers to violate the Kansas Act Against Discrimination. This issue was not raised below and, therefore, cannot be considered on appeal. Lostutter v. Estate of Larkin, 235 Kan. 154, 166, 679 P.2d 181 (1984).
KNI contends that there was not sufficient competent evidence to justify a finding of 95 percent permanent partial general work disability as to Johnson. It asserts that the finding is unsupported by the medical testimony, and the method of determining the percentage of permanent partial disabilty by the rating physican must be shown by a mathematical formula.
The scope of review in workers’ compensation cases was explained in Box v. Cessna Aircraft Co., 236 Kan. 237, 241, 689 P.2d 871 (1984):
“Judge Abbott has summarized the scope of appellate review in workers’ compensation cases in the recent case of Harris v. Cessna Aircraft Co., 9 Kan. App. 2d 334, 678 P.2d 178 (1984), as follows:
“ ‘If this court finds there is substantial competent evidence to support the finding of the trial court, the judgment will not be disturbed on appeal. Day and Zimmerman, Inc. v. George, 218 Kan. 189, 542 P.2d 313 (1975); Boyd v. Yellow Freight Systems, Inc., 214 Kan. 797, 522 P.2d 395 (1974). Such evidence is defined as that which is relevant and which carries enough weight to allow one to conclude that the judgment is proper. Hardman v. City of Iola, 219 Kan. 840, 549 P.2d 1013 (1976). In determining whether the evidence is substantial and competent, the record is viewed in a light most favorable to the prevailing party. Makalous v. Kansas State Highway Commission, 222 Kan. 477, 565 P.2d 254 (1977); Anderson v. Kinsley Sand & Gravel, Inc., 221 Kan. 191, 558 P.2d 146 (1976). If the evidence is substantial and competent, the ruling will be upheld even if there is evidence of record which supports contrary findings. Phillips v. Helms Inc., 201 Kan. 69, 439 P.2d 119 (1968).’ ”
K.S.A. 44-510e defines permanent partial general disability as a nonscheduled disability which is partial in character but permanent in quality. The extent of the permanent partial general disability is “the extent, expressed as a percentage, to which the ability of the workman to engage in work of the same type and character that he was performing at the time of his injury has been reduced.” K.S.A. 44-510e. Under our case law, the “pivotal question” in quantifying the extent of permanent partial general disability is what portion of claimant’s job requirements is he now unable to perform because of his injury. Houston v. Kansas Highway Patrol, 238 Kan. 192, 708 P.2d 533 (1985).
There is substantial competent evidence contained within the record to support the 95 percent work disability rating as found by the Director and adopted by the district court. We have no jurisdictional power to require that the doctors who evaluated claimant determine the extent of the permanent partial general disability and express by a mathematical formula how they arrived at that figure. The power to require the rating physician to explain his method of determining the percentage of general disability of a handicapped worker belongs to the legislature, not the courts.
The judgment of the Court of Appeals is affirmed as modified and the district court is affirmed. | [
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The opinion of the court was delivered by
Rosen, J.:
On review of an opinion by the Court of Appeals, Mark and Janis Evenson challenge the calculation of damages, primarily to trees, resulting from a fire on their rural property. Although we disagree with the analysis employed by the district court and by the Court of Appeals, we agree with their ultimate conclusions and affirm.
The Evensons purchased 160 acres of rural property in Greenwood County in 2002. The property contained a number of pine trees and fruit trees, as well as grapevines and other trees. In addition, the property contained a utility building, a pole bam, and a lean-to shed. The Evensons leased part of their property for crops and hay and used the remainder for hunting, camping, and other recreational activities.
Tim Lilley leased pastureland adjacent to the Evensons’ property. On April 12, 2006, Lilley started a fire on the pastureland that he intended to be a controlled bum. He lost control of the fire, however, and it spread to the Evensons’ property, destroying the outbuildings and around 200 trees. Lilley stipulated that he was at fault for the spread of the fire and the resulting damage.
The Evensons subsequently filed an action alleging negligence and seeking damages in excess of $75,000. The action was tried to the court based on stipulations of fact and the admission of documentary evidence relating to the value of the damaged property. The parties stipulated that the authors of documents would, if called, provide testimony consistent with their written evaluations.
Kip Hoffman, the president of a local nursery, wrote a letter in which he appraised the damages. He carried out his appraisal 20 months after the fire. He noted the presence of an irrigation system for the fruit trees on the property and wire cages around the trunks of the fruit trees to protect them from deer. Much of the land was mowed and maintained as a picnic area. The remainder of the land was used for hunting and other recreational activities. He then calculated the cost of replacing all the trees lost to the fire at $307,999. This estimate was based on replacing 213 trees with trees of comparable sizes as well as installing and maintaining an irrigation system for the replacement trees.
Sooner Construction provided a proposal for replacing the three destroyed wooden outbuildings with new metal buildings at a cost of $23,500.
David Sundgren, a certified general real estate appraiser, provided an appraisal of total damages to the property of $4,687 plus the cost of removing building debris left from the fire. His appraisal noted the presence of “scattered trees” on the land, approximately 40 acres of crop ground, and 1 acre of farmstead. He observed that water was provided by a stock pond and four water wells that were powered by generators or gas-powered pumps. No electricity or sewage facilities were present on the land. A pole barn built in 1920 that was in fair condition, a wooden lean-to added to the bam in 1935 that was in poor condition, and a wooden utility shed built in 1930 that was in fair condition constituted the structures on the property. Sundgren estimated the total value of the property, including improvements, to be $137,187 before the fire and $132,500 after the fire* taking into account the economic and aesthetic value of the trees, the .loss of the stmctures, and the likely resale value of the property.-
Mark Evenson testified that, in his opinion, the property was worth $1,000 an acre before the fire and was worth $700 an acre after die fire. He provided no other testimony or evidence relating to the value of the property as it pertained to the structures or the trees. He also provided no evidence showing that the fruit trees were harvested or used in any commercial fashion.
The district court held that the measure of damages was the difference in the fair market value of the property before and after the fire. The court awarded damages in the amount of $4,687 for the loss in value of the property and $3,000 for the cost of debris removal. The Evensons filed a timely notice of , appeal.
The Court of Appeals affirmed in Evenson v. Lilley, 43 Kan. App. 2d 573, 228 P.3d 420 (2010), and this court granted review on the question of whether the damage to the trees and outbuildings was “permanent” or “temporaiy” in nature.
Discussion
This appeal asks this court to rule on how to measure damages for the negligent destruction of trees, as well as outbuildings.
To the extent that the district court relied on documents and stipulated facts, this court exercises de novo review. In re Trust D of Darby, 290 Kan. 785, 790, 234 P.3d 793 (2010). The legal conclusion that the district court reached is the subject of this appeal and is subject to de novo review, while certain underlying factual findings not based on stipulations and documentary evidence will be reviewed under a substantial competent evidence standard. See Progressive Products, Inc. v. Swartz, 292 Kan. 947, 955, 258 P.3d 969 (2011).
The purpose of awarding damages to an injured party is to make that party whole by restoring the party to his or her position before the injury. In ruling that the measure of damages is the reduction in total property value, the district court relied on PIK Civ. 4th 171.20, which states:
“When damage to real estate is permanent or irreparable, the measure of damages is the difference between the fair and reasonable market value of the property as a whole, including the improvements thereon, immediately before and immediately after the injury.
“Fair and reasonable market value is that amount which would be paid under normal circumstances on the free and open market, in the usual course of dealings, by a willing buyer not forced to buy, and which amount would be acceptable to a willing seller not forced to sell.”
See PIK Civ. 4th 171.20, Comment (citing Williams v. Amoco Production Co., 241 Kan. 102, 110, 734 P.2d 1113 [1987] [measure of damages for permanent injury to real estate is difference in fair market value of land before and after injuiy]).
The Evensons urge this court to measure damages as the cost of restoring the property to its original condition by applying PIK Civ. 4th 171.21, which states:
When damage to real estate is temporaiy and of such a character that the property can be restored to its original condition, the measure of damages is the reasonable cost of repair necessary to restore it to its original condition, . . . but not to exceed its fair and reasonable market value before tire injury.”
See PIK Civ. 4th 171.21, Comment (citing Anderson v. Rexroad, 180 Kan. 505,306 P.2d 137 [1957] [recovery for temporary damage causing loss of use of property compensated based on restoration costs, not exceeding value of property]).
These instructions reflect the general rules that when property is so damaged that it cannot be restored, e.g., when a house is burned to the ground, the tortfeasor is liable for the amount by which the value of the property has diminished. When, however, the property is damaged in such a way that it can be restored, as when a house suffers smoke and water damage in a fire, the tort-feasor is liable for the costs of restoring the property to its former condition, up to the total value of the property.
Applying these rules to fire-damaged trees is problematic. Is it the loss of the tree that is permanent, or the loss to the real estate? A tree that has burned and is dead is permanently destroyed, but the land on which the tree was located can be restored, either immediately by bringing in a fully grown tree or by planting a sapling. The question of “permanent” versus “temporary” damage is ultimately less helpful than the question of how the trees were used and their intrinsic value to the property. See, e.g., Mosteller v. Naiman, 416 N.J. Super. 632, 638, 7 A.3d 803 (2010) (recognizing that quantifying damages for trees is a “ ‘complex subject’ ” that “depends ‘upon the evidence in the particular case.’ ”).
One legal encyclopedia explains the use-value formulation this way:
“There is no fixed rule of damages for injury to or destruction of shade and ornamental trees. A court has the discretion to allow the jury to consider more than one measure ,of damages in order to permit flexibility and achieve a just result. However, a court should not award damages under more than one theory.
“Generally, courts have measured damages by use of the ‘before-and-after rule—that is, the difference between tire market value of the land immediately before and immediately after the injury to trees or shrubbery. Recovery of the cost of replacing the trees or restoring the premises has been allowed in some circumstances, even though the before-and-after rule may also be recognized, but only if tire cost is reasonable in proportion to the damage to tire value of the real estate. The value of the trees separate and apart from the land may be an appro priate measure of damages, if the trees had such a separate value, the owner elected to sue for conversion of the trees, or it is not clear that the severance affected the value of the land. Some courts have considered the aesthetic loss or the deprivation of the comfort and convenience of trees when awarding damages, even though these losses are not pecuniary.’
“The measure of damages for the destruction or damage of productive trees (such as fruit or nut trees) and crops is generally the difference between the market value of the land immediately before and after the injury. However, this rule is not inflexible, and in a proper case, the plaintiff can recover the value of the crop prior to the injury.” 22 Am. Jur. 2d, Damages §§ 276-77, pp. 254-56.
See also Annot., 69 A.L.R.2d 1335, § 10 (measure of damages for destruction or injury to trees and shrubbery):
“The rule of measuring damages for the destruction of or injury to growing timber trees by the amount of the depreciation or diminution in the value of the premises upon which the trees stood has been applied where trees have been burned by a fire negligently set by the defendant, or injured or destroyed by other noxious agencies negligently controlled by the defendant.”
The annotation cites numerous state cases that follow that rule. That annotation contrasts with 95 A.L.R.3d 508 (measure of damages for injury to or destruction of shade or ornamental tree or shrub). That annotation notes that when damages have been sought for the destruction of or injury to shade or ornamental trees or shrubs, courts have applied various measures, and, although none of them are rigid and inflexible formulas, courts have generally held that ordinarily the measure of damages is the resulting depreciation in the value of the land on which the trees or shrubs stood. “In explaining their adherence to this view, the courts typically reason that such trees are ordinarily not marketable commodities whose value can thus be measured, but that their value principally inheres in what they impart to the realty on which they stand.” 95 A.L.R. 3d 508, § 2.
This flexible approach is sensible. If, for example, trees were going to be harvested for lumber, then tire income lost from the sale of the trees might be the appropriate measure of damages. See 2A Speiser, Krause, & Gans, The American Law of Torts § 8:38, pp. 160-61 (2009). If a tree has a specific, unique value, then the replacement cost of the tree may be the proper measure of damages. See, e.g., Farny v. Bestfield Builders, Inc., 391 A.2d 212, 214 (Del. Super. 1978) (damages could be based on replacement costs of trees having special ornamental or sound-screening qualities, but jury might also be instructed that if replacement costs are disproportionate to damage inflicted, better value is impact of the loss on value of land as a whole); Fiske v. Moczik, 329 So. 2d 35, 38 (Fla. Dist. App. 1976) (removal of unique and valuable palm trees from residential property required replacement-cost damages).
These cases, however, represent unusual circumstances and reflect an exception to the general rule that the value of destroyed trees is measured primarily by the value that those trees had to the surrounding real estate. The exception requires a showing that the trees have a special, inherent value or are essential to the value of the properly as a whole, such that they might require replacement if damaged—i.e., when they screen out wind and noise, produce income, or have ornamental value.
In other situations, courts generally look to the value of the properly as a whole before and after the injury. In Hardie v. Mistriel, 133 Conn. App. 572, 36 A.3d 261 (2012), for example, the court reversed the district court’s reliance on replacement costs as the measure of damages and remanded for imposition of nominal damages for trespass. The court noted:
“The only evidence submitted by the plaintiff as to the measure of damages was die testimony of Grant Putnam, a landscape contract designer, who testified as to the cost of replacing die trees that the defendant had removed. Replacement value alone is not sufficient. See [Palmieri v. Cirino, 90 Conn. App. 841, 851, 880 A.2d 172 (2005)], (court’s award of damages for removal of trees improper where record contained no evidence regarding diminution in property value or value of trees separate from land but only contained evidence of replacement value).” 133 Conn. App. at 576.
Kansas has historically followed a rule that the value of trees destroyed by fire is a question for the jury, and the jury may be instructed under various, and possibly conflicting, valuation theories. See, e.g., Railway Co. v. Lycan, 57 Kan. 635, 641-42, 47 Pac. 526 (1897) (where a building or a tree is destroyed by a wrongdoer, best measure of damages is value of thing destroyed as part of the really, and value of thing destroyed ordinarily is measure of dam ages; but if injury to the realty is less than value of tiling destroyed, plaintiff s recovery is limited to actual diminution in value of the realty); see also Railway Co. v. McDowell, 78 Kan. 686, 687, 98 Pac. 201 (1908) (defendant must be permitted to show fire caused no depreciation in value of land); Railway Co. v. Mosher, 76 Kan. 599, 602, 92 Pac. 554 (1907) (trees had no independent market value but could be valued as part of land on which they grew); Railroad Co. v. Noland, 75 Kan. 691, Syl. ¶ 4, 90 Pac. 273 (1907) (jury should be instructed on both independent value of trees and value of trees to land before and after fire); Railway Co. v. Geiser, 68 Kan. 281, Syl. ¶ 3, 75 Pac. 68 (1904) (either of two methods may be adopted to ascertain damage caused to fruit trees: their distinct value as part of land, or difference in value of land before and after destruction; both valuations may properly be given to jury).
When trees have a distinct value as an appurtenance to the land, however, such as the fruit trees in an orchard, Kansas courts have held that the specific value of the trees is “the most satisfactory method of determining the extent of the loss.” Barker v. Railway Co., 94 Kan. 61, 65, 145 Pac. 829 (1915); see also Lycan, 57 Kan. 635, Syl. ¶ 3 (“It is only where the damages to one part of die land affect other parts, and are incapable of more definite and direct proof, that the evidence is necessarily confined to proof of the value of the whole tract before and after the injury, though the actual damages can never, in any case, exceed the difference between such values.”).
These and other similar cases do not provide a clear and universal rule for measuring damages for the destruction of trees. They instead illustrate the wisdom of the general rule that damage to trees is to be evaluated in light of the loss of value to die entire property, subject to an explicit showing of a quality that makes the damaged trees Unique, either in terms of intrinsic value or revenue-producing value.
We conclude that the dichotomy of “temporary” versus “permanent” injury on which the district court relied is inappropriate for measuring the value of trees. It was therefore error for the district court and the Court of Appeals to rely on either of the two PIK instructions, even though the parties advocated adopting one or the other.
It was not, however, error for the district court to base damages on the diminution of the value of the real property. Such a measure is explicitly supported by Kansas caselaw and is the most widely applied rule in other jurisdictions.
If the Evensons had introduced evidence that their trees had any value independent of their value to the land, such as loss of income from fruit trees or the sentimental value of particular trees, then it might have been error for the district court to refuse to consider any other measures of damages. In addition to the loss of value to the land, the court might then have considered other measures of damages, such as aesthetic loss, loss of income production, or even replacement costs.
The Evensons made little showing that the trees had any value independent of their value to the land. It is true that Mark Evenson testified that his family used the land recreationally for picnicking and hunting, but he proffered no showing that the trees were important to those activities or that the enjoyment of those activities was reduced in any substantial way by the loss of trees in general or the loss of particular trees. He provided some speculative testimony that he might someday build a residence on the land, despite the lack of electricity, water, or sewage facilities, but he did not attempt to show that die damaged trees would have improved the value of such a residence.
The Evensons urge this court to follow what they call a “modem” trend in the law—-to allow damages for replacing the trees. But this is not really a modem trend; rather, it is an exception to a general mle of valuation that recognizes that, in special cases, certain trees or certain uses of trees may require replacement in order to make the injured party whole. The Evensons have not attempted to prove that their various pine and fruit trees, apparently growing randomly on their property and not subject to any organized harvesting, were of such a unique character that they required replacement in order to make the Evensons whole again.
The Evensons also contend that the district court erroneously calculated the damages for the destroyed outbuildings. They pre sented evidence to the district court showing how much it would cost to build structures representing significant upgrades in quality to the ones that were destroyed. Lilley, on the other hand, presented substantial competent evidence of the actual depreciated value of the destroyed buildings, all of which were many decades old and were in fair to poor condition. The latter is tbe correct measure of damages.
The ordinary measure of damages to real property is the difference in value immediately before and after the damage and, in the event of total destruction, the fair market value at the time of the destruction. See Ettus v. Orkin Exterminating Co., 233 Kan. 555, 561, 665 P.2d 730 (1983); Kennedy v. Heat and Power Co., 103 Kan. 651, Syl. ¶ 1, 175 Pac. 977 (1918).
The theory of damages that the Evensons advocate looks suspiciously like a windfall gain for them. Their property lost little of its appraised value, but, under their theory, they would receive an award roughly equal to the entire value of the property. The basic principle of damages is to make a party whole by putting it back in the position that it was in before the injury, not to grant tire party a windfall profit. State ex rel. Stephan v. Woldfenbarger £ McCulley, P.A., 236 Kan. 183, 189, 690 P.2d 380 (1984).
The district court and the Court of Appeals incorrectly attempted to superimpose principles of temporary and permanent damages on the facts of this case. Their conclusions were correct, however, and the district court did not err in relying on a diminished-value calculation of property loss.
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The opinion of the court was delivered by
Miller, J.:
This is an appeal by defendants Curtis R. Johnson and Donna Jo Johnson, the owners and mortgagors of 320 acres of land in Edwards County, from a judgment of the district court of that county foreclosing a second mortgage held by the plaintiff, Home State Bank, and from the sale of the land pursuant to that judgment. This foreclosure proceeding is complicated by several factors: the first mortgage was not foreclosed; additional funds were advanced by the bank to the owners, under a separate agreement and notes, over four years after the mortgage was executed and recorded; oil and gas was being produced under leases on the land and the landowners’ royalties were assigned to the mortgagees; and the owners filed a Chapter 7 bankruptcy petition during the pendency of this action.
The controlling issues may be stated as follows: (1) Did the trial court err in failing to fix the amount of the in rem judgment against the real estate and in not limiting that amount to $100,000? (2) Did the court err in determining who is entitled to the oil and gas royalties during the period (a) up until date of sale, and (b) during the period of redemption? and (3) Did the trial court err in ordering that taxes be paid out of the accumulated oil and gas royalties?
We will attempt to state the facts, which appear to be undisputed, in chronological order. On May 1, 1978, the Johnsons executed a first mortgage to The Travelers Insurance Company (Travelers). That mortgage was duly filed for record and recorded in the office of the Register of Deeds of Edwards County. That mortgage is not before us, was not foreclosed, and is not in dispute.
On May 5, 1978, the Johnsons executed to Travelers a document entitled Assignment of Bonuses, Rentals and Royalties under Oil and Gas Lease. That instrument recites the mortgage from the Johnsons to Travelers on the two described quarter sections of land in Edwards County; that each quarter section is subject to an oil and gas lease, one lease being held by Zenith Drilling Corporation, Inc., and the other being held by Texas Energies, Inc. It then recites that for certain consideration, the Johnsons hereby assign to Travelers:
“[A]ll the bonuses, rents and royalties under said oil and gas leases, provided, however, that so long as all of the provisions of said note and mortgage are faithfully performed, owner may receive from lessee for owner’s Own use, such bonuses, rents and royalties. But it is [the Johnsons’] intention that [Travelers] may receive such bonuses, rents and royalties upon a default in the performance of the provisions of said note and mortgage . . . .”
The assignment was duly signed, acknowledged, and recorded.
On June 2, 1978, the Johnsons executed to the Home State Bank a real estate mortgage covering two described quarter sections of land in Edwards County. The mortgage was given to secure a loan of $100,000, evidenced by a note from the Johnsons to the Bank on the same date. The mortgage contains the following provision:
“This mortgage is given to secure payment of the sum of One hundred thousand and no/100 Dollars ($100,000.00) and interest thereon, according to the terms of promissory note/s this day executed and subsequently to be executed by the mortgagors to the mortgagee, and all other sums which may hereafter be owing to the mortgagee by the mortgagors or any of them, however evidenced; it being understood and agreed that the mortgagee may from time to time make loans and advances to the mortgagors or any of them and that all such loans and advances and the interest thereon will be secured by this mortgage; provided that the aggregate principal amount of the loans and advances hereunder shall at no time exceed the amount hereinbefore stated.” (Emphasis supplied.)
The mortgage states that it is subject to a first mortgage to The Travelers Insurance Company in the amount of $165,000, dated May 1, 1978. The Home State Bank’s mortgage was duly recorded and the registration fee of $250 was paid, based on the indebtedness of $100,000, as required by K.S.A. 79-3102. (Kansas courts are prohibited by statute, K.S.A. 79-3107, from entering any judgment enforcing a real estate mortgage unless the registration fee fixed by K.S.A. 79-3102 has been paid.)
Johnson’s mortgage to the Home State Bank also contained a provision for the assignment of oil and gas royalties, and pursuant thereto on May 31, 1979, the Johnsons executed an amended division order, directing the Permian Corporation to pay to the Bank the Johnsons’ royalty interest in production on the oil and gas lease held by Zenith. Similarly, on June 5, 1980, Curtis R. Johnson executed a Transfer Order, directing Zenith Drilling Corporation to pay Johnson’s one-eighth landowner’s royalty from the Zenith lease to the Home State Bank.
On February 25, 1983, the Johnsons entered into a detailed loan agreement with the Home State Bank, which recited that the Johnsons were desirous of obtaining a line of credit in the aggregate principal amount of $370,000 to renew existing notes, both interest and principal, and to provide funds for 1982 operating expenses. The Johnsons executed two notes. A new note, in the amount of $60,000, was to be paid off within one year, and the principal and interest on that note was to be reduced by payment of all oil and gas royalty income. A renewal note, in the amount of $310,000, was to be paid by all other income, including that from farm crops, grazing crops, government payments, sale of grain, and from royalty income after the $60,000 note was paid. This agreement is lengthy and need not be set forth in full here, except for the following provision, which is the only reference in the loan agreement to the June 2, 1978, real estate mortgage:
“h. It is further understood by the parties that the consideration for this loan agreement is the further extension of credit by Bank to Borrower, all as provided by Real Estate Mortgage previously filed for record, all security agreements, all financing statements filed of record, assignment of all oil and gas royalty, bonuses and rentals income.”
The $310,000 renewal note stated: “Renew farm operating note,” and further recited that it was secured by security agreement on various personal property, assignment of oil and gas income “dated 6-1-80 Zenith, 5-31-79 Permian, R E Mtg dated 6-2-78 on NE % 12-25-17 Edws. Co., Ks.” At the time this foreclosure action was filed, this note had been reduced to some $260,000 by various credits. The $60,000 note for “1982 farm operating expenses” recited that it was secured by “Assgn. of oil & gas income dated 6-1-80 Zenith and 5-31-79 Permian. Also RE Mtg dated 6-2-78 on NE % 12-25-17 Edws. Co., Ks.” At the time this suit was filed, this note had been reduced to some $13,000 by payments received for oil and gas royalties.
On March 23,1984, this foreclosure action was filed. The Bank sought judgment against the Johnsons for the balance due on the renewal note, plus interest, and for foreclosure of its mortgage and sale of the real estate and the royalty interests and the personal property covered by the security agreements to pay that judgment. The petition states:
“That no suit of law has been had to secure the debt of said note or mortgage or any part thereof, and that defendants have been given credit for all proper offsets, and that there is now due and owing from the defendants to the plaintiff upon said note and mortgage . . . in the sum of $268,584.98 with interest to February 28,1984, and a per diem rate thereafter of $103.08, the said sum of $100,000.00 to be applied upon the real property mortgage. That defendants have failed to pay any payment of principal or interest from and after December 6, 1983, and that plaintiff has heretofore elected to declare the unpaid balance of the debt immediately due and payable and has so notified the defendants.” (Emphasis supplied.)
The Bank also sought a judgment against the Johnsons for some $13,000 plus interest, being the balance due on the “new” or $60,000 note, and for the sale of the personal property covered by the security agreements as security therefor. There is no dispute before us as to the sale and disposition of the proceeds of the personal property.
The Johnsons answered and filed three counterclaims. Those were tried to a jury, which returned a verdict for the Bank, and no issue regarding the counterclaims has been appealed.
On August 22, 1984, the trial court ordered certain oil and gas royalties accruing since March 1, 1984, be paid by the Permian Corporation to the clerk of the district court, and that the clerk place such funds in an interest-bearing account.
On October 9,1984, the Johnsons filed a joint petition for relief under Chapter 7 of the Bankruptcy Act with the Bankruptcy Court for the District of Kansas. That court promptly entered its order for a meeting of creditors and notice of the automatic stay arising pursuant to 11 U.S.C. § 362(a) (1982). A copy of that order and notice was received by the clerk of the Edwards District Court on October 19, 1984.
The Bankruptcy Court entered a turnover order on February 12, 1985, directing the clerk of the Edwards District Court to transmit the royalty funds held by the clerk to the clerk of the Bankruptcy Court, and also ordered Permian and Zenith to forthwith pay royalties on the two leases to the clerk of the Bankruptcy Court. The Court found that Travelers had a prior right to those funds, and it ordered its clerk to pay Travelers a $12,243.75 payment on its mortgage which had accrued and was due on January 1, 1985, and to pay semiannual payments thereafter as they became due and payable.
On April 11, 1985, the Bankruptcy Court discharged the John-sons from all dischargeable debts. About the same time, the Bankruptcy Court entered an order granting the Bank relief from the stay to proceed with the foreclosure in rem, without taking any personal judgment against the Johnsons.
On June 18, 1985, and apparently shortly after the Bankruptcy Court granted relief from the stay, the Bank filed in the Edwards County action a motion for summary judgment, together with an affidavit of the president of the Bank in support of the factual background for the motion. The affidavit stated that there was due on the notes $319,679.82 plus interest after June 17, 1985. The Johnsons filed a motion to quash the summary judgment motion. The Bank responded with a brief in support of its motion, and the Johnsons filed a memorandum supporting their position and opposing the motion. The matter came on before the court for oral argument on October 9, 1985. The court found that there were no disputed issues of material fact and granted the Bank’s motion for summary judgment. The court found that the notes were secured by the June 2, 1978, mortgage, that the Bank’s mortgage was a second mortgage and subject to the first mortgage of Travelers, and that the Bank was entitled to foreclose its mortgage and have the property sold, subject only to Travelers’ first mortgage and to oil and gas leases of record, and to the Johnsons’ right to redeem within six months. It ordered the sheriff to proceed with sale of the property upon those terms. The court took under advisement the issue of whether the Johnsons were entitled to the oil and gas royalties during the period to redemption.
On December 6, 1985, the sheriff filed his return on the order of sale. He reported that pursuant to the order of sale and following the required publication, he sold the two quarter sections of land to the Home State Bank, Lewis, Kansas,
“for the sum of $473,013.41, being the highest and best bid therefor, and the same being the bid of $134,083.00 of The Travelers Insurance Company, the additional sum of $337,172.45 being the additional bid of The Home State Bank, Lewis, Kansas, and the additional sum of $1,757.96 for taxes.”
On December 12,1985, the trial court entered an order finding that the Johnsons were entitled to the rents and profits from the two quarter sections of land during the period of redemption, and providing for a division of the proceeds from a wheat crop which the Johnsons planted prior to the sale and which would not be harvested prior to the expiration of the period of redemption. There is no issue here as to that portion of the order. The court also found that the Johnsons were not entitled to the oil and gas royalties during the period of redemption, “as allowing them to retain said proceeds would constitute a waste of the property and depletion of the oil and gas contained thereunder,” but the court ordered that the Johnsons should receive the interest earned on said oil and gas royalty proceeds, which were then being held by the clerk of the Bankruptcy Court.
On December 20, 1985, the Bankruptcy Court entered its order directing the disposition of the royalties accumulated by the clerk of that court. It found that the Trustee had no claim against the royalty interests which had accumulated since October 9, 1984, the date of the commencement of the Johnsons’ bankruptcy proceeding. It found that the Home State Bank had previously been granted relief from the automatic stay and leave to foreclose its mortgage in the Edwards District Court, and that the subject of the Johnsons’ royalty interest and the foreclosure of that interest was presently pending in the state court. It further ordered that the state court proceeding could continue, with such action having as one of its subjects the post-bankruptcy (after October 9, 1984) accumulation of royalty proceeds. The court made its findings a part of its order and decree, and it directed the clerk of the Bankruptcy Court to pay some $22,000 to the Trustee, that sum being the Johnsons’ interest in the royalty proceeds as of October 9, 1984, and it directed its clerk to forward the balance of the royalty funds and accumulated interest to the clerk of the Edwards District Court.
On January 7, 1986, the trial court considered the Bank’s motion to confirm the sale and the Johnsons’ objections thereto. The Johnsons moved to set aside the sale, claiming that the Bank could only enforce the mortgage in rem for $100,000; that the Bank did not pay additional moneys to the sheriff in excess of that enforceable judgment; and that the sheriff improperly accepted the bid in excess of the Bank’s valid judgment. The court also took up the Bank’s motion to reconsider its order of December 12 allowing the Johnsons to receive interest on the royalty payments during the period of redemption. The court found that the Bank had paid to the clerk of the district court the sum of $134,083 (Travelers) and the further sum of $1,757.96 (taxes). The court found that the Bank was not required to pay the sum due it to the clerk. It found that there were additional taxes due in the amount of $2,626.04, which should be paid out of the oil and gas royalty moneys then in the hands of the clerk. It confirmed the sale of the real estate to the Home State Bank for $473,013.41, directed the sheriff to issue to the Bank a certificate of purchase and, unless redemption was made within six months, directed the sheriff to execute and deliver to the legal holder of the certificate of purchase a deed. It ordered the clerk to pay to Travelers the sum of $134,083 for payment of its mortgage; to pay to the county treasurer delinquent real estate and gas personal property taxes of $1,757.96, and the additional sum of $2,626.04 from the funds received from the clerk of the Bankruptcy Court. By later order nunc pro tunc, the court corrected the $2,626.04 figure to $868.35.
Also on January 7, 1986, the court revised its order with reference to oil and gas royalties. It found that “by reason of K.S.A. 60-2412(a), [the Johnsons] have no right to receive any of the proceeds from their .125 royalty interest in oil and gas produced from property owned by them.” It also noted that the bankruptcy clerk was mailing to the clerk of the district court the sum of $15,900.45 pursuant to the Bankruptcy Court’s order of December 20, 1985, and that royalties would also be received by the clerk from Zenith and Permian. It directed the clerk to credit those funds to the Bank’s bid for the real estate and then to forward those sums, less taxes paid, to the Bank, to be held in trust by it during the period of redemption, providing that not over $100,000 was to be retained by the Bank, and any funds exceeding that sum were to be held by the clerk.
On March 14,1986, upon receipt of $134,083.00 from the clerk, Travelers assigned its mortgage to the Home State Bank, and Home State Bank remains the owner and holder of that mortgage. We were advised by counsel during oral argument that there has been no redemption, that the sheriff has executed and delivered his deed for the real estate to the Bank, and that the Bank has not conveyed the property.
The first issue is whether the trial court erred in failing to fix the amount of the in rem judgment against the real estate and in not limiting that amount to $100,000. We consider first whether the trial court erred in failing to fix the dollar amount of the in rem judgment. The Bankruptcy Court granted relief to the Home State Bank from the automatic stay, and authorized it to proceed in rem in this foreclosure action. The Bank was specifically prohibited by the order of the Bankruptcy Court from taking any personal or excess judgment against the Johnsons. The Bankruptcy Court’s order, however, does not preclude the state court from determining the amount of the judgment which is chargeable against the land.
This amount is important since it fixes the total amount which the Bank may bid without paying any excess in cash. The Bankruptcy Court has discharged the debtors from any unsecured obligation they had, prior to October 9, 1984, to the Bank. Therefore, the Johnsons may well be entitled to receive any amount bid over and above the amount of the Bank’s judgment against the land. The dollar amount of the in rem judgment is also important in determining the ultimate cost of redemption to the mortgagors. F or an example of the entry of a judgment in rem against certain real estate, for an amount certain, see Emporia State Bank & Trust Co. v. Mounkes, 214 Kan. 178, 519 P.2d 618 (1974).
We hold that when a district court is entering an order of foreclosure in rem against mortgaged land, it is error for the court to fail to determine and state the amount of the judgment which is being entered against the land.
Next, we turn to the last part of the first issue, whether under the facts the in rem judgment against the mortgaged real estate should be limited to $100,000 plus, of course, accrued interest on that sum, together with taxes, insurance (if any), and costs. The mortgage was given to secure the sum of $100,000 plus future advances. By the specific terms of the mortgage, however, “the aggregate principal amount of the loans and advances” secured by the mortgage “shall at no time exceed” $100,000. The registration fee required by K.S.A. 79-3102 which was paid was based on an indebtedness of that sum.
The loan agreement of February 25, 1983, stated that the consideration for that agreement “is the further extension of credit by Bank to Borrower, all as provided by Real Estate Mortgage previously filed for record.” (Emphasis supplied.) The agreement thus incorporates the terms of the mortgage; it does not change the future advances limitation included in it. At the same time, the Johnsons executed notes which listed various personal property, oil and gas income, and the real estate mort gage as security. Again, there was no change in the future advances limitation of the mortgage.
The petition which was filed at the commencement of this action recites that “the said sum of $100,000.00 [is] to be applied upon the real property mortgage.” (Emphasis supplied.) That sum is not mentioned elsewhere in the body of the petition, only in the copy of the mortgage which is appended. That statement in the petition indicates that the Bank acknowledged and recognized the extent of the lien of its mortgage. Bankruptcy, however, was yet to come.
The Bank relies upon the future advances clause of the mortgage to authorize the enforcement of the mortgage as security for the total amount still due on both notes. We have recognized the validity of future advances clauses in a number of cases. See First Nat'l Bank & Trust co. v. Lygrisse, 231 Kan. 595, 647 P.2d 1268 (1982); Emporia State Bank & Trust Co. v. Mounkes, 214 Kan. 178; Potwin State Bank v. Ward, 183 Kan. 475, 327 P.2d 1091 (1958), 80 A.L.R.2d 166.
Such clauses, as we said in Mounkes, 214 Kan. at 181, should be “carefully scrutinized and strictly construed.” The key, and the controlling issue, is the intention of the parties. See Mounkes, 214 Kan. at 181; Lygrisse, 231 Kan. at 600-01. As with any written contract, the intention of the parties thereto is to be determined from the instrument when its terms are plain and unambiguous. Notes and mortgages are contracts between the parties, and the rules of construction applicable to contracts apply to them. Carpenter v. Riley, 234 Kan. 758, Syl. ¶ 3, 675 P.2d 900 (1984). As we said in Lygrisse, 231 Kan. 595, Syl. ¶ 5, “The best and most persuasive evidence of the intention of the parties who enter into a written agreement is that which is expressed by the terms of that agreement.”
The terms of the mortgage are crystal clear; the mortgage was not intended to secure a principal amount, whether the original loan or later advances, in excess of $100,000. The written loan agreement and the two notes do not vary, but confirm, the terms of the mortgage. The construction of a written instrument is a question of law and the instrument may be construed and its legal effect determined by this court on appeal. See W-V Enterprises, Inc. v. Federal Savings & Loan Ins. Corp., 234 Kan. 354, Syl. ¶ 1, 673 P.2d 1112 (1983).
The only portion of the Johnsons’ indebtedness to the Bank which was secured by the 1978 real estate mortgage was the principal sum of $100,000 plus accrued interest on that sum, plus taxes, insurance (if any), and costs. The trial court erred in not determining that amount and entering judgment therefor against the mortgaged land.
The second major issue is whether the trial court erred in determining entitlement to the oil and gas royalty income. The Bankruptcy Court ordered that royalty income accruing prior to the date of filing for bankruptcy, October 9, 1984, be paid to the Trustee in Bankruptcy, so the disposition of that portion of the royalty income is not before us. The post-filing royalties accumulated by the bankruptcy clerk were paid to the clerk of the district court and royalties have been paid directly to the clerk since the Bankruptcy Court entered its order on December 20, 1985.
The trial court ultimately determined that “by reason of K.S.A. 60-2412(a),” the Johnsons had no right to receive any royalties. K.S.A. 60-2412 has no subsection (a) and is inapplicable here. The Bank’s motion which the trial court sustained refers to K.S.A. 60-2414(a), and that appears to be the statute upon which the court relied. K.S.A. 60-2414(a) provides in part that the “right of redemption shall not apply to oil and gas leaseholds.” As used in the context of Section 2414, an oil and gas leasehold means the estate of the oil and gas lessee. The Johnsons, as owners of the real estate, and as lessors, granted two separate oil and gas leases on separate quarter sections. The oil and gas leasehold estates are not being foreclosed upon and sold in this proceeding. Neither is there any attempt by the Bank to void the oil and gas leases; the petition specifically excepts “all valid oil and gas leases, easements and oil and gas production.” The trial court erred in its application of K.S.A. 60-2414(a) and in barring the Johnsons from receiving royalties during the period of redemption.
The Johnsons have a one-eighth royalty interest, reserved to them as the landowners and lessors. They have, by the terms of the mortgage to Travelers, as interpreted by the Bankruptcy Court, pledged their right and interest in the proceeds attributable to that royalty interest to Travelers. Although they later assigned their royalties to the Home State, the first and prior assignment was to Travelers. They defaulted on Travelers’ mortgage on January 1, 1985; presumably all payments falling due on Travelers’ mortgage since January 1, 1985, have been paid out of the royalty income. The Home State is now the owner and holder of Travelers’ mortgage but we will continue to refer to it as Travelers’ mortgage. It has not been foreclosed. When plaintiff s second mortgage was foreclosed, the sheriff reported that he had sold the land to the Home State “for the sum of $473,013.41, being the highest and best bid, and the same being the bid of $134,083.00 of The Travelers Insurance Company, the additional sum of $337,172.45 being the additional bid of the Home State Bank, Lewis, Kansas, and the additional sum of $1,757.96 for taxes.”
Travelers did not foreclose its mortgage. The Home State Bank paid the $134,083.00 to the clerk, under order of the court, the clerk sent the money to Travelers, and Travelers assigned its mortgage to the Home State Bank.
The trial court ordered the accrued and accruing royalties to be credited by the clerk to the Bank’s bid, and then to forward those sums, less taxes paid, to the Bank, to be held by it in trust during the period of redemption. We disagree. The royalty payments should be applied against Travelers’ mortgage first. If and when it is paid, then royalty payments may be applied to the Home State mortgage, up until the date of sale.
Royalties accrued during the period of redemption, however, present a different problem. The right to possession, and to the rents and profits of land being foreclosed, is, under K.S.A. 60-2414, in the defendant owner of the property, and, except for waste, this right is absolute. First Federal Savings & Loan Ass’n. v. Moulds, 202 Kan. 557, 561, 451 P.2d 215 (1969). As we said in Broadhurst Foundation v. New Hope Baptist Society, 194 Kan. 40, 43, 397 P.2d 360 (1964):
“One of the most important purposes of the redemption statutes is to provide the mortgagor with rents and profits from the property during the redemption period to enable him, to redeem. Such purpose is specifically indicated in G.S. 1949, 60-3461, which provides the holder of the certificate of purchase may appoint a receiver to take possession in order to prevent waste; ‘but the income during said time, except what is necessary to keep up repairs and prevent waste, shall go to the owner or defendant in execution, or the owner of the legal title.’ ” (Emphasis supplied).
Our present statute, K.S.A. 60-2414(p), contains a similar provision:
“The holder of the certificate of purchase shall be entitled to prevent any waste or destruction of the premises purchased. For that purpose the court, on proper showing, may issue an injunction or, when required to protect the premises against waste, appoint a receiver who shall hold the premises until the purchaser is entitled to a deed. The receiver may rent, control and manage the premises but the income during that time, except the amount that is necessary to keep up repairs, prevent waste and pay real estate taxes and insurance premiums, shall go to the person who otherwise would be entitled to possession during the period of redemption.” (Emphasis supplied.)
The trial court recognized the Johnsons’ right to possession of the land during the period of redemption, and to the rents and profits from the farming operations during that time; the court also held, however, that they were not entitled to the royalties because that would constitute “waste.” In Moulds, 202 Kan. at 562, we distinguished waste from normal use. We said: “The term implies neglect or misconduct resulting in material damage to or loss of the property.” We also quoted from Black’s Law Dictionary 1760 (4th ed. rev. 1968), which defines “waste” in part as “An abuse or destructive use of property by one in rightful possession. . . . An unreasonable or improper use, abuse, mismanagement, or omission of duty touching real estate by one rightfully in possession, which results in its substantial injury.”
While the removal of oil and gas from land pursuant to a lease results in normal depletion of the hydrocarbons thereunder, the grazing of cattle or the raising of crops on land also tends to deplete the natural productivity of the soil and the minerals therein. The ordinary production of oil and gas does not equate with the instances of waste cited in Moulds — the cutting of timber, or the abandonment of a building which had its windows and doors removed. We conclude that the continued production of oil and gas from the premises does not constitute waste.
We hold that the landowner’s royalties, arising from the production of oil and gas under a lease upon mortgaged premises, constitute a part of the rents and profits from the land to which the landowner-mortgagor is ordinarily entitled during the period of redemption. Accordingly, when the land here involved is sold under an order of foreclosure of the Bank’s second mortgage, the Johnsons would be entitled to have possession of the land and to receive the rents and profits therefrom, including the royalties attributable to the redemption period, during the period of redemption. However, the Johnsons have assigned the royalties to Travelers, default was made on Travelers’ first mortgage, that mortgage has not been foreclosed, and so far as we are advised, the mortgage debt has not been satisfied. The royalties received during the period of redemption must therefore be applied to Travelers’ mortgage. If it is fully paid before the end of the period of redemption following sale under Home State’s judgment, then the Johnsons shall receive the royalties during the rest of the redemption period.
Finally, the Johnsons contend that the taxes should not be paid out of the royalty income. Our resolution of the royalty problem determines this issue. We agree that during the period of redemption, absent Travelers’ interest as set forth above, the Johnsons would be entitled to the landowners’ royalties without deduction therefrom. However, Travelers or its assignee is entitled to have the taxes paid from the royalties or to pay the taxes itself and to add such sums to the principal due on that mortgage. Therefore, taxes were properly paid from royalty funds.
The order and judgment of the Edwards District Court foreclosing the mortgage in rem, without finding and stating the amount due, the order and judgment denying to the landowners the royalties during the period of redemption, and the order of confirmation of sale are reversed and the case is remanded to the district court with directions to set aside the sheriff s sale and deed, and for further proceedings in conformity with this opinion.
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The opinion of the court was delivered by
Prager, J.:
This case involves consolidated appeals in two district court cases filed by the children of a farm couple seeking to recover damages for their wrongful deaths. The case arose out of an automobile collision which occurred at the intersection of two county roads in Haskell County, Kansas, on September 25, 1980. At the time of the collision, Jessie Lightner was driving a pickup truck used in farming operations. It collided with a truck driven by the defendant, Linden Litwiller, and owned by defendant Floyd Frank, his employer. As a result of the collision, Dale and Jessie Lightner were killed.
Dale Lightner was the president and majority stockholder, and Jessie Lightner was the secretary and a minority stockholder, in a farming corporation known as D. Lightner Farms, Inc. The Lightners, together with seven of their eight children, were engaged in extensive farming operations in Finney and Haskell Counties. The farm corporation had leased some land in Gray County which is referred to in the record as the Batman land. On the day of the accident, Dale and Jessie Lightner drove after lunch to the location of the Batman land to check the condition of the crop. From there they were to go to another tract of land near their homestead to pick up a farm tractor and then return home. The collision occurred between the Batman land and the place where the farm tractor was located. It was undisputed that Jessie Lightner was driving the vehicle and Dale Lightner was the passenger. The accident occurred at an intersection where the view was partially obscured by growing corn, and apparently neither of the drivers saw the other vehicle.
Two actions for wrongful death were brought by the plaintiffs, as the children and heirs of their parents, to recover damages. The primary issue of fact presented at the jury trial was the percentage of causal fault to be allocated as between Jessie Lightner, driver of the corporation’s truck, and Linden Litwiller, driver of the other truck. From the evidence presented at the trial, the jury allocated the causal negligence for the accident 50% to Linden Litwiller, 50% to Jessie Lightner, and 0% to Dale Lightner.
Over the objection of the plaintiffs, the jury was submitted an instruction and verdict form requiring the jury to determine whether or not Dale and Jessie Lightner were engaged in a joint enterprise at the time of the collision. The jury found that they were engaged in a joint enterprise. As a result of that finding, the district court held that the 50% negligence of Jessie Lightner was to be imputed to Dale Lightner, and as a result the plaintiffs, as his next of kin, were barred from recovery for his wrongful death.
After motions for new trial were denied, the Lightner heirs took an appeal to the appellate courts. That appeal is Case No. 57,563 in which the basic issue is whether any negligence of Jessie Lightner in driving the pickup truck is to be imputed to Dale Lightner, the passenger, on the basis of joint enterprise.
While this appeal was pending, the defendant, Linden Litwiller, sent a letter to the plaintiffs’ attorney stating that he had lied at the trial and now admitted that he had been driving 60 to 70 miles per hour rather than 25 to 30 miles per hour as he had testified. The plaintiffs filed a motion for a new trial on the basis of newly discovered evidence and also moved the Court of Appeals to remand the case back to the district court for hearing on that motion.
The district court held a hearing on the motion for a new trial and denied the motion on the basis that it had no jurisdiction, because the first appeal was then pending before the Court of Appeals. The plaintiffs then filed an appeal from the order denying plaintiffs’ motion for a new trial based on newly discovered evidence. That appeal is Case No. 58,330.
The two appeals were consolidated and heard by the Court of Appeals. In Case No. 57,563, the Court of Appeals affirmed the judgment based upon the jury verdict in an unpublished opinion filed April 3, 1986, on the basis of Supreme Court Rule 7.042(c) (235 Kan. Ixxiv). Although the Court of Appeals stated no reason for its decision, it obviously concluded that the question of joint enterprise was an issue of fact which had been determined by the jury and that determination of fact was binding on the appellate court. In Case No. 58,330, the Court of Appeals held, in the same unpublished opinion, that the district court erred in finding that it had no jurisdiction to hear and determine the plaintiffs’ motion for a new trial based upon newly discovered evidence. It remanded the case to the district court to determine the merits of the motion. The plaintiffs filed a Petition for Review in both cases with the Supreme Court. The Supreme Court granted the plaintiffs’ Petition for Review.
In Case No. 57,563, the basic issue to be determined is whether there was substantial competent evidence presented at the trial to support the finding of the jury that Dale and Jessie Lightner were engaged in a joint enterprise at the time of the collision so as to impute Jessie’s negligence to Dale, thus barring the action by Dale’s heirs to recover for his wrongful death.
In order to determine this issue, it would be helpful at the outset to review the basic legal principles governing joint enterprise which have been recognized by this court. These general principles are discussed in depth in the excellent opinion by Justice Fromme in Scott v. McGaugh, 211 Kan. 323, 506 P.2d 1155 (1973). In Scott, the rule is recognized that in the absence of vicarious responsibility (imputed contributory negligence) a passenger in an automobile is required to use reasonable care for his own safety. Thus, as a general rule, a passenger may be barred from recovery if the negligence of a third person is a legally contributing cause of his harm, and if his own negligence has contributed to cause the accident.
In this case, the negligence of Dale Lightner, himself, is not involved. We are concerned here with imputed causal negligence arising from the relationship between Dale Lightner and Jessie Lightner. Imputed negligence may bar a plaintiff s recovery, but it does so not from culpability or wrongful act of the plaintiff but from liability for another person’s wrongful act. Such responsibility or liability is imposed by reason of the relationship. One such relationship giving rise to imputed negligence is loosely referred to as a joint adventure or joint enterprise. In Scott, we recognized that the fiction which gives rise to imputed negligence has been criticized and is said to find small favor with the courts. This court criticized the doctrine in Reading Township v. Telfer, 57 Kan. 798, 48 Pac. 134 (1897). The doctrine of imputed negligence has been rejected by the courts in several of the states in automobile cases. Bauer v. Johnson, 79 Ill. 2d 324, 403 N.E. 2d 237 (1980); Pierson v. Edstrom, 286 Minn. 164, 174 N.W. 2d 712 (1970); Weber v. Stokely-Van Camp, Inc., 274 Minn. 482, 491, 144 N.W.2d 540 (1966).
In the opinion in Scott, this court recognized that four basic elements are necessary to establish a joint venture so as to impose vicarious liability. They are:
(1) An agreement;
(2) a common purpose;
(3) a community of interest; and
(4) an equal right to a voice, accompanied by an equal right of control over the instrumentality (the automobile). 211 Kan. at 327.
There must be equal responsibility for the negligent operation of the vehicle, and there can be no equal responsibility unless there is equal privilege and right to direct and control its operations. Schmid v. Eslick, 181 Kan. 997, Syl. ¶ 2, 317 P.2d 459 (1957).
In Scott, 211 Kan. 323, we held without equivocation that the mere association of persons riding together in an automobile having a common purpose in making a trip and a common destination does not in itself give to a passenger equal privilege and right to control the method and means of operating the vehicle so as to constitute a joint enterprise imposing vicarious liability. The court adopted the “right of control” test, stating in Syl. ¶ 4:
“In determining a passenger’s equal privilege and right to control an automobile, the essential question is whether, under the facts and circumstances, there is an understanding between the parties that he has the right and is possessed of equal authority to prescribe conditions of use and operation. This is commonly referred to as the ‘right of control’ test.” (Emphasis supplied.)
Stated simply, there must be an understanding or an agreement in advance between the driver and the passenger that the passenger has a right to tell the driver how to drive the automobile.
In Scott, the opinion reviews many prior Kansas cases on the subject of joint enterprise involving a driver-passenger relationship including Hunter v. Brand, 186 Kan. 415, 350 P.2d 805 (1960), which involved an automobile collision where the husband was driving and the wife was a passenger. The plaintiff passenger and her husband resided on a farm near Sedan. The husband operated a cattle ranch and the station wagon was owned by a partnership composed of the husband and his father as the operators of a cattle company. The wife had accompanied her husband on a business trip to St. Joseph, Missouri, and they were returning home when they were involved in a collision. The issue of joint enterprise was submitted to the jury, which found a joint enterprise existed, thus imputing the negligence of the husband to the wife-passenger. On appeal, the Supreme Court reversed and granted a new trial. The court found that there was no evidence or circumstances which justified the trial court’s instruction on joint enterprise or the submission of that issue to the jury. As a matter of law, there was no evidence to support a finding that the driver and passenger had an equal right to manage or control the operation of the vehicle.
Following the decision in Scott v. McGaugh, 211 Kan. 323, this court decided Schmidt v. Martin, 212 Kan. 373, 510 P.2d 1244 (1973). In Schmidt, the opinion discussed the doctrine of imputed negligence, pointing out that in the course of our judicial history we have rejected the application of the doctrine of imputed negligence in the following special relationships: Parent and child; husband and wife; driver and passenger; owner of vehicle and driver; and bailor and bailee. The doctrine of imputed negligence is now approved and accepted in Kansas only when applied to two special relationships — the master-servant relationship and joint enterprise. The court in Schmidt rejected the application of the doctrine of imputed negligence in a case where the question was whether the negligence of the custodian of a child should be imputed to his parents as a matter of law solely on the basis of that relationship. Again the court pointed out that the only logical basis for the imputation of the negligence of one person to another is the right of the latter to control the acts of the former.
With these principles in mind, we turn to the evidentiary record in the case now before us to determine whether there is substantial competent evidence that Dale Lightner and Jessie Lightner were engaged in a joint enterprise at the time of the collision so as to impute Jessie’s negligence as the driver to Dale as the passenger. The evidence in the record discloses that the Lightner family was engaged in an extensive farming operation involving several thousand acres of land. Somewhere along the way, a family farming corporation, D. Lightner Farms, Inc., had been created for tax reasons or some other business purpose. Dale Lightner was president and majority stockholder, owning 800 shares of the corporate stock. Jessie Lightner owned 20 shares of stock and was the corporate secretary. Three of the children, Lloyd, Robert, and Gerald Lightner, owned a total of 180 shares. Dale was 6'8" tall and weighed 270 pounds. Jessie was 5'8" and weighed about 160 pounds. It was undisputed that on the day of the accident Dale and Jessie were on corporate business.
At the trial, all of the children testified. It is obvious from their testimony that Dale Lightner was the person who was in charge of the farm and directed the family farming operation. The testimony established that Jessie Lightner spent most of her time at the home and helped Dale in making family decisions and by paying the bills and keeping payments up to date.
The evidence established that Jessie Lightner very seldom made automobile trips relating to the farming operation. Ordinarily, one of the boys would make the trip. The only exception occurred when there were too many jobs around and the boys were otherwise occupied. On those rare occasions, Jessie had to be pulled away from the house because there was no one else available. On the day of the accident, the trip to the Batman land and to pick up the tractor was discussed at lunch; the boys were all busy and unable to go on the trip. For that reason, Jessie went along to help Dale. The only testimony presented by any of the children on the issue of Dale’s right to control Jessie Lightner in the driving of a family vehicle was that of Lloyd Lightner, the eldest son. He categorically denied that Dale had any right to control Jessie in driving an automobile. He was asked on cross-examination whether in driving an automobile his father had equal authority to tell his mother what to do. He responded that his father didn’t tell his mother how to drive, nor did he tell her where to drive or how fast to drive. He testified that “neither one of them said anything to the other one when one was driving.” The record is completely lacking in any testimony whatsoever that there was any agreement or understanding between Dale Lightner and Jessie Lightner that Dale had the right to control Jessie’s operation of an automobile. In the absence of any proof of a prior agreement or understanding, we have no hesitancy in holding that a joint enterprise was not sufficiently established in the case now before us.
At one time in the judicial history of this state, the concept was expressed by this court that, by the universal sense of mankind, a privilege of management, a superiority of control, a right of mastery is accorded to the husband over the wife during a joint automobile trip. See Reading Township v. Telfer, 57 Kan. at 802, decided in 1897. Since that time, the world has changed, and any assumed superiority or mastery of a husband over a wife in driving an automobile can no longer be recognized in Kansas law.
Based on the rationale stated above, we hold as a matter of law that there is no substantial competent evidence in the record to establish that Dale and Jessie Lightner were engaged in a joint enterprise at the time of the accident so as to impute Jessie’s negligence to Dale. The essential element of a prior agreement or understanding which gave Dale as a passenger the equal right to control the vehicle was not shown. We hold that the district court erred in instructing the jury on the subject of joint enterprise and in submitting that issue to the jury.
The judgment of the district court is reversed in Case No. 57.563. The case is remanded to the district court to afford the plaintiffs a new trial.
In view of the fact that we have ordered a new trial in Case No. 57.563, the appeal from the order of the district court denying plaintiffs’ motion for a new trial on newly discovered evidence becomes moot, although we agree with the Court of Appeals that the trial court erred in finding that it had no jurisdiction to determine that motion.
The judgment of the district court and the judgment of the Court of Appeals is reversed. The cases are remanded with directions to grant the plaintiffs a new trial on all issues. | [
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The opinion of the court was delivered by
Miller, J.:
This is an action by David M. Friedman against Alliance Insurance Company, Inc., seeking payment for a theft loss under his parents’ homeowners policy. The trial court, at the close of a bench trial, determined that Friedman was covered under the policy and awarded plaintiff judgment for the total amount of his claim, $9,143.30, plus attorney fees and certain prejudgment interest. Alliance appealed, and the Court of Appeals, in an unpublished per curiam opinion, affirmed, with the exception that it modified the date upon which the prejudgment interest began. The Court of Appeals also allowed additional attorney fees of $500 for the appeal. Alliance petitioned this court to review the judgment of the Court of Appeals, and Friedman also petitioned this court to review the allowance of attorney fees on appeal, contending that the amount awarded was insufficient. We granted review. The controlling issue is whether Friedman was a resident of his parents’ household at the time of the loss, June 7, 1983.
Friedman’s parents reside at 641 North Woodlawn, Wichita, Kansas, and Friedman regarded that as his residence. He had a key to the premises, had his own room there with some of his personal belongings, filed Kansas and federal tax returns giving that address as his residence in 1983, maintained his checking account in Wichita, and licensed his car there. His parents had a homeowners policy with the defendant providing, under Coverage C, insurance on personal property up to the limit of $100,000. Pertinent policy provisions are as follows.
“DEFINITIONS
“3. ‘insured’ means you and the following residents of your household: a. your relatives;
“4. ‘insured location’ means: a. the residence premises;
d. any part of a premises not owned by any insured but where any insured is temporarily residing . . . .”
“SECTION 1 - COVERAGES “Coverage C Personal Property
“We cover personal property owned or used by any insured while it is anywhere in the world. . . . Our limit of liability for personal property usually situated at any insured’s residence, other than the residence premises, is 10% of the limit of liability for Coverage C, or $1000, whichever is greater. Personal property in a newly acquired principal residence is not subject to this limitation for the 30 days immediately after you begin to move the property there.” ' “SECTION 1 - PERILS INSURED AGAINST
“9. Theft, including attempted theft and loss of property from a known location when it is likely that the property has been stolen.
“This peril does not include loss caused by theft that occurs away from the residence premises of:
a. property while at any other residence owned, rented to, or occupied by any insured, except while any insured is temporarily residing there. Property of a student who is an insured is covered while at a residence away from home if the student has been there at any time during the 45 days immediately before the loss.
b. unattended property in or on any motor vehicle or trailer, other than a public conveyance, unless there is forcible entry of the vehicle while all its doors, windows and other openings are closed and locked and there are visible marks of the forcible entry; or the vehicle is stolen and not recovered within 30 days.”
“THEFT COVERAGE EXTENSION
“For an additional premium, we insure for direct loss caused by theft of covered personal property away from the residence premises while unattended:
a. in or on any motor vehicle or trailer;
All other provisions of this policy apply.”
In 1983, Friedman attended the University of Texas at Austin, where he lived in an apartment. Sometime in May 1983, he attended graduation services but he did not receive his degree because he had a geology field trip to take in order to complete work for his degree. He completed this work at the end of May 1983. He received his diploma from the university in August 1983.
Prior to graduation, he accepted a job with CGG American Services, Inc., an oil and gas exploration company. He was to report to company offices in Mobile, Alabama, on June 7, 1983. On June 6, 1983, he departed from Austin, taking with him all of the furnishings from his apartment and most of his personal possessions in a U-Haul trailer attached to his car. He arrived in Mobile that evening and stopped at a motel for the night. The trailer was locked. Some time in the early morning hours of June 7, persons unknown broke into the trailer and took all of Friedman’s personal property. Friedman immediately reported the break-in to the police; nothing has been recovered. He reported to CGG for work on June 8, 1983. Friedman’s father filed a claim with Alliance for $9,143.30, and Alliance refused the claim for the reason expressed in its letter to him, as follows:
“[S]ince your son had a job in Mobile, Alabama when he moved there, our company’s position is he would no longer be a resident of your household.
“Under your policy, the only property covered would be your property or a resident of your household’s property. Since it would appear that your son had no intention of returning to Wichita and was going to follow his job until it led to something in the Houston area, we do not feel that your policy would extend coverage to him.”
At the time the loss occurred, Friedman was in the process of moving from his apartment in Texas to Alabama. He had not reported for work and had not yet moved any of his belongings out of the trailer and into a home or apartment. The loss occurred just seven days after the completion of his work at the university. In regard to his residence, he testified that during this period of time he considered his parents’ home in Wichita as his residence. He testified in part as follows:
“Q. At the time you were in Mobile, Alabama, on June 7th, 1983, you didn’t have any intention to return to your parents’ house to live at that address permanently or for an indefinite period of time, did you?
“A. That’s not true. That was a distinct possibility. In fact, I actively sought employment here in Wichita before my graduation; and this February, when I was between jobs, I had sought employment here.
"Q. Your intention then, as you phrase it, to return to your parents’ house and stay there permanently or for an indefinite period of time, that was a possibility if the CGG American Services job didn’t work out?
“A. That’s correct.
“Q. And when you went there the day before you were to report for the job, you had no expectation that that job wouldn’t work out, did you?
“A. I knew that it would not be permanent because the job market was very tough when I got out of school, but I had every intention of getting as much experience as I could.
“Q. You were going to get that job, big push to make it work, if you could?. “A. That’s correct.”
The job Friedman was about to commence with CGG would entail considerable traveling and moving about. He hoped to wind up living in either Houston or Wichita. He had not reported for work, had not rented an apartment in Mobile, and was very much in the process of moving at the time the loss occurred. The trial court held that Friedman’s residence was with his parents on the day of the loss. The court said:
“The day he went away to college, I suppose, he hoped to be able to eventually establish a separate place of abode, which would become his residence and where he would sever for once and for all the ties with his parents and parental home. That was still his state of mind when he got in his car in Austin on a day or two before June 7th and headed for Mobile, Alabama. But he — there was no place yet to which wherever he went he always intended to return other than his parents’ home in Wichita.
“. . . His intent on that day was if all else failed — was to go back to North Woodlawn in Wichita, Kansas, 641, where his parents were. . . .
“[T]he residence once established is presumed to continue until another one is clearly established.”
The court then discussed Teter v. Corley, 2 Kan. App. 2d 540, 584 P.2d 651 (1978), and concluded:
“David Friedman was not a footloose wanderer. He knew where his root was, and it was at 641 North Woodlawn, Wichita, Kansas; and he had never had another residence. . . .
“I can’t find any justification for the failure of the insurance company to settle this case. I think they seized upon the fact that he had taken a job to place the entire weight of this case on; and it just isn’t going to work.”
Judgment was entered in favor of Friedman and against Alliance. The Court of Appeals, in affirming the trial court, said:
“The scope of our review is to determine if the findings below are supported by substantial competent evidence and are sufficient to support the resulting conclusions of law. Woods v. Midwest Conveyor Co., 236 Kan 734, 697 P.2d 52 (1985). If so found, a determination of residence will be upheld on appeal. Teter v. Corley, 2 Kan. App. 2d 540, 542, 584 P.2d 651 (1978). In this case, however, we believe the question becomes one of law only because the facts as to residence were not disputed. See Ramsey v. KFB Ins. Co., 237 Kan. 86, 697 P.2d 863 (1985), where the determination to be made was who were ‘members of a household.’
“With the scope of appellate review in mind, we turn to the relevant policy provisions [as set forth above]:
“As stated in Teter, 2 Kan. App. 2d at 543, the term ‘ “residence” requires two elements: (1) bodily presence at the location, and (2) intent to remain there either permanently or for an indefinite period.’ See also Palmer v. Parish, 61 Kan. 311, 313, 59 Pac. 640 (1900), holding that a residence once established — in the present case, the Wichita residence — is presumed to continue until the same has been abandoned. This holding was approved in Estate of Schoof v. Schoof, 193 Kan. 611, 614, 396 P.2d 329 (1964). There was no evidence that Friedman intended to stay at the motel either permanently or indefinitely. To the contrary, his intent to stay at any location in Mobile was definite in duration: three weeks.
“It follows that there was no error in the determination that Friedman had not abandoned his former residence and, as a relative of his parents, he was an insured person under the policy. Furthermore, and while not relied upon by the trial court, we conclude there is adequate additional language in the policy to cover this loss because of the 30-day provision: [quoting the language from Section I - Coverages — Coverage C Personal Property, as set forth above]. This provision makes Alliance’s defense shallow indeed because it is based upon the claim that Friedman had established a new residence in Mobile. If that claim were true, this loss still would be covered by the policy for 30 days after he abandoned the Wichita residence.”
Alliance contends that the trial court and the Court of Appeals improperly applied the presumption that a residence once established continues until it is abandoned, because this presumption is a product of jurisdiction cases. We have held that while “domicile” and “residence” are substantial equivalents when jurisdiction or venue is at issue, there is a distinction for many legal purposes. Estate of Schoof v. Schoof 193 Kan. 611, 613-14, 396 P.2d 329 (1964). That case involved the question of venue. We said:
“The establishment of residence requires the concurrence of two factors: one physical, the other intellectual. There must be bodily presence at a location coupled with intent to remain there either permanently or for an indefinite period, before residence can be said to have been acquired. A residence once established is presumed to continue until the same has been abandoned.” 193 Kan. at 614.
Apparently, this court has never interpreted “resident” as used in the phrase “resident of the [named insured’s] household” in an insurance policy. Although the phrase “the named insured or a member of the same household” was used in the policy involved in Ramsey v. KFB Ins. Co., 237 Kan. 86, 87, 697 P.2d 863 (1985), it was undisputed that the son and his parents were members of the same household (see 237 Kan. at 88), and the decision did not turn on an interpretation of that phrase.
Many cases involving “resident” or “member” of the household are cited by industrious counsel and many may be found in Annot., Who is “Resident” or “Member” of Same “Household” or “Family” as Named Insured, Within Liability Insurance Provision Defining Additional Insureds, 93 A.L.R.3d 420, and the 1986 Supplement to that volume. These cases involve children who are away at college or are away taking specialized training, children who have moved out of the home and are living apart for one reason or another, children of divorced parents who are living in the home of one parent when the claim arises, children in the military service, children working and living away during the week but returning on weekends, unemancipated minors who live with relatives, and all of the infinite variety of factual situations which may arise. None of the cases cited by counsel and none we have found, however, involve facts similar to those at hand — where the child has completed college and is in transit and in the process of moving when the loss occurs.
Clearly, Friedman’s property was insured under the theft provisions of the policy while he was a student. Even without specific policy provisions, the cases indicate that, generally, children who are living away from home while attending educational institutions remain residents of their parents’ homes for policy purposes. See Annot., 93 A.L.R.3d 420, 446, § 8.
A helpful opinion is that written by the distinguished Utah jurist Justice A. H. EUett, in American States Ins. Co., Western Pac. Div. v. Walker, 26 Utah 2d 161, 486 P.2d 1042 (1971). He concisely sets out the facts and the court’s rationale as follows:
“Dixie Ann went away to college during the school years 1965-66 and 1966-67, where she was studying to go into the field of education. She considered herself a resident of her father’s household all during this time and returned to his home in Idaho Falls, Idaho, at the end of each school year. After two years of college study, she decided to become an X-ray technician and came here to Salt Lake City, Utah, to receive her training in a local hospital. She lived at the hospital for approximately four months until she had to move to make room for some student nurses, and thereafter she lived in an apartment with some other girls. She opened a joint bank account here with her father and had a telephone listed in her own name. She was born July 23, 1947, and was just under 21 years of age on May 30, 1968, the date when the accident in question happened. While in training as an X-ray technician she was paid a salary of approximately $140 per month take-home pay. Her parents augmented her income by giving her small amounts of money, clothing, and food when she would return home on visits. At all times prior to the date of the accident she kept some furniture, her books, and her clothing in her father’s home. She considered herself a resident of Idaho and voted in the general election there in November 1968. She had a driver’s license issued by the State of Idaho but none by Utah. As opposed to the foregoing, the insurance company points out that when she filed her 1968 income tax return, she listed her residence for the year as being in Utah.
“With this evidence before him, the trial court held on May 30, 1968, Dixie Ann Walker was a resident of her father’s household. It is our duty to affirm him if there is any substantial evidence to sustain that ruling.
“[1] A resident of a household is one who is a member of a family who live under the same roof. Residence emphasizes membership in a group rather than an attachment to a building. It is a matter of intention and choice rather than one of geography.
“[2] Ordinarily when a child is away from home attending school, he remains a member of the family household, and the question of when he ceases to be such is one which must be determined from all of the facts and circumstances as revealed by the evidence.
“[3] The trial court heard the evidence and made a finding that at the time of the collision Dixie Ann Walker was still a resident of her father s household. Whether we would have made the same ruling had we tried the case is immaterial, and on appeal we are not justified in substituting our judgment for his, since the evidence was such as to sustain his judgment.
“The ruling made is further buttressed by the testimony to the effect that Dixie Ann and her father went to the agent of the insurance company for advice as to whether an additional insurance policy should be taken out to cover her when she left Idaho for training in Utah. The agent told them that she would be covered by her father’s policy.” 26 Utah 2d at 163-64.
While the facts in Walker differ from those here, we fully agree with the statements made in paragraphs [1] and [2] of the opinion. Whether one who has been a “resident of the [named insured’s] household” has ceased to be such is a question to be determined from all of the facts and circumstances.
“Residence,” as used in Kansas statutes, is defined by K.S.A. 1985 Supp. 77-201, Twenty-third:
“ ‘Residence’ means the place which is adopted by a person as the person’s place of habitation and to which, whenever the person is absent, the person has the intention of returning. When a person eats at one place and sleeps at another, the place where the person sleeps shall be considered the person’s residence.”
“Resident” is defined by Webster’s Third New International Dictionary of the English Language, Unabridged, p. 1931 (1964), as “one who resides in a place: one who dwells in a place for a period of some duration.”
“Household” is defined in the same work as “those who dwell under the same roof and compose a family: a domestic establishment; specif: a social unit comprised of those living together in the same dwelling place.” p. 1096. The court focused upon that definition in Schehen v. North-West Insurance, 258 Or. 559, 484 P.2d 836 (1971), holding that a daughter who remained with her children in the home she had shared with her parents was no longer a resident of her father’s household after her father and mother moved to another city.
A reasonable definition of a resident of a household would seem to include those persons who physically reside in the household and those who are temporarily absent. Applying that definition to the facts of a particular case, however, must be done on a case-by-case basis.
It would be helpful to list the various factors which the courts have relied upon in determining whether a child is a resident of the parents’ household, or has ceased to be a resident thereof. These factors, while not intended to be all-inclusive, include the following:
1) The child’s intent;
2) the child’s bodily presence in the home;
3) whether there exists a second place of lodging, a second address, and if so, the relative permanence or transient nature thereof;
4) the child’s relationship with the parents;
5) whether the child has a key to the home, his or her own room, and personal belongings there;
6) whether the child is self-supporting;
7) whether a new residence has been established;
8) where one votes, gets mail, pays taxes, registers vehicles, banks, and has permanent ties, and
9) the length of time the child has actually resided in the home; the permanency of the living arrangements.
Friedman hoped to make a success of his new job — but he had not entered into it at the time of the loss. If, when he reported for work on June 7 as planned, the job no longer existed, if he found he could not work there, or if the job did not work out, he had but one place to go: home to Wichita. At the time of the loss he still considered himself a resident of his father’s house. He had engaged a motel room for the night; he had not established a residence in Mobile. He had not been in the Wichita home recently, so far as the record indicates, but so long as he was a student living in the Austin apartment he remained a resident of his father’s household for coverage purposes. We see no difference in his leaving Austin and heading for Mobile than if he had returned to Wichita and left from there for Mobile. He was in transit, in the process of moving, when the loss occurred.
He had a temporary place of lodging — the motel — but that had no permanence. His relationship with his father was close and cordial. He relied upon him for advice on financial and social matters, and his first moves after discovering the loss were to call the police, and then to call his father. He had a key to his parents’ home; had his own room; had furniture, clothing, and personal items there; filed income tax returns giving his Wichita address; registered for the draft and to vote in Wichita; maintained his bank accounts there; and drove a vehicle titled in his and his father’s name and insured under his father’s policy.
Friedman had been employed during the summer, but there is no evidence as to whether he worked during the school year or whether he was self-supporting at the time of the loss. Since that time he has been fully employed, but his income and his activities since the loss have little bearing upon his residence at the time the loss occurred.
Where, as here, the trial court has made findings of fact and conclusions of law, the function of this court on appeal is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. Holly Energy, Inc. v. Patrick, 239 Kan. 528, Syl. ¶ 2, 722 P.2d 1073 (1986). Upon a thorough review of the evidence, we conclude that there is substantial competent evidence to support the finding of the trial court that Friedman was a resident of his father’s household at the time of the loss, and such finding supports the trial court’s conclusions of law and the judgment entered.
The next issue is whether the trial court erred in allowing attorney fees to the plaintiff. The Court of Appeals held that there was no error, saying:
“Turning to the allowance of attorney fees, we note that the amount of the allowance is not raised as an issue. Alliance’s only claim is that there is a genuine and good faith question that it refused without just cause or excuse to pay the claim, thus making the allowance unauthorized by the specific language of K.S.A. 40-256.
“Just cause or excuse is to be determined as of the time a claim is denied, judging the circumstances ‘as they would appear to a reasonably prudent man having a duty to investigate in good faith’ and determine the facts of the controversy. Watson v. Jones, 227 Kan. 862, 871, 610 P.2d 619 (1980); Brown v. Continental Casualty Co., 209 Kan. 632, 498 P.2d 26 (1972); DiBassie v. American Standard Ins. Co. of Wisconsin, 8 Kan. App. 2d 515, 661 P.2d 812 (1983).
“Successful prosecution of a suit by an insured does not necessarily result in entitlement to attorney fees because they are properly denied if there is a good faith legal controversy as to liability. Harper v. Prudential Ins. Co. of America, 233 Kan. 358, 372, 662 P.2d 1264 (1983). In this case, however, we believe the allowance comes within the law of trial court discretion. See Farm Bureau Mutual Ins. Co. v. Carr, 215 Kan. 591, 598, 528 P.2d 134 (1974), and DiBassie, 8 Kan. App. 2d at 523. As stated earlier, we view Alliance’s claim of no liability as shallow. Even so, Alliance argues that this case is one of first impression and the novelty of the case constitutes just cause for denial of the claim. Novelty alone, however, does not necessarily support a just cause refusal to pay the claim. See Estate of Bingham v. Nationwide Life Ins. Co., 7 Kan. App. 2d 72, 80, 638 P.2d 352 (1981), aff'd as modified 231 Kan. 389, 646 P.2d 1048 (1982).
“Friedman maintains this case falls within the specific language of Bingham, which states Nationwide took a ‘strained position ... as to how it interpreted the policy it wrote.’ Bingham, 7 Kan. App. 2d at 80. A more accurate observation in this case would seem to be that Alliance never considered the uncontroverted facts in light of its policy provisions which no one has claimed were in any way ambiguous. We find the allowance was a proper exercise of trial court discretion . . . .”
The company’s denial of coverage was based on the new job Friedman had “taken” — although he had not yet gone to work— and his lack of intention to return to Wichita— although Friedman told the company’s investigator that his parents’ home was his permanent residence. Also, Friedman was no longer a student and the special policy provisions relating to students were inapplicable. Alliance questioned whether or not there was coverage under the policy. The trial court found that Alliance did not have just cause or excuse to refuse to pay the loss, K.S.A. 40-256, and awarded attorney fees. The Court of Appeals affirmed. Upon a careful review of the record, however, and particularly in view of the dearth of cases involving similar factual situations, we hold that there was a good faith question of coverage in this case and, therefore, refusal to pay the claim was not without just cause. Where there is a genuine issue, raised in good faith, the insurer should be able to litigate it without being subject to paying counsel fees under this statute. The award of attorney fees cannot stand.
The trial court also awarded prejudgment interest on that portion of the claim ($6,643.30) which was undisputed. The Court of Appeals affirmed, modifying the judgment only to have the interest computed from the date the claim was filed, August 31, rather than the date of the loss, June 7. Alliance stipulated, at the opening of trial, that the values claimed were correct. That amount not being in dispute, that portion of the claim is liquidated, and the allowance of prejudgment interest was proper. See Leader Clothing Co. v. Fidelity & Casualty Co. of N. Y., 237 F.2d 7 (10th Cir. 1956) (applying Kansas law), and Mitchelson v. Travelers Ins. Co, 229 Kan. 567, 573, 629 P.2d 143 (1981).
The judgment of the Court of Appeals is affirmed except for the award of attorney fees, which is reversed. The judgment of the trial court is modified as to the date prejudgment interest is to commence, August 31, 1983; it is reversed as to the allowance of attorney fees; and, otherwise, it is affirmed. | [
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The opinion of the court was delivered by
Per Curiam:
A jury convicted Scott D. Cheever of capital murder for the killing of Greenwood County Sheriff Matthew Samuels (K.S.A. 21-3439[a][5]), four counts of attempted capital murder of law enforcement officers Robert Keener, Travis Stoppel, Mike Mullins, and Tom Harm (K.S.A. 21-3439[a][5]; K.S.A. 21-3301[a]), criminal possession of a firearm based on a previous felony conviction for aggravated robbery (K.S.A. 21-4204[a][3]), and manufacture of methamphetamine (K.S.A. 65-4159[a]). Cheever was sentenced to death on the capital offense. In addition, he was given a controlling sentence of 737 months for the attempted capital murder convictions, which included concurrent sentences of 146 months for the manufacturing conviction and 8 months for the firearm conviction. Cheever filed a timely appeal of his convictions and sentences. We have jurisdiction under K.S.A. 21-4627(a) (“A judgment of conviction resulting in a sentence of death shall be subject to automatic review by and appeal to the supreme court of Kansas.”).
We conclude that allowing the State’s psychiatric expert, Dr. Michael Weiner, to testify based on his court-ordered mental examination of Cheever, when Cheever had not waived his privilege under the Fifth Amendment to the United States Constitution in that examination by presenting a mental disease or defect defense at trial, violated Cheever’s privilege against compulsoiy self-incrimination secured by the Fifth and Fourteenth Amendments to the United States Constitution. Because we are unable to conclude beyond a reasonable doubt that Weiner’s testimony did not contribute to the capital murder and attempted capital murder verdicts obtained in this case, this constitutional error cannot be declared harmless. Consequently, Cheever’s convictions for capital murder and attempted capital murder must be reversed and remanded for a new trial.
Cheever did not challenge his convictions and sentences for manufacture of methamphetamine and criminal possession of a firearm. We affirm those convictions and sentences.
Facts and Procedural Background
On January 19, 2005, Scott D. Cheever shot and killed Greenwood County Sheriff Matthew Samuels at Darrell and Belinda Coopers’ residence near Hilltop, Kansas. Samuels, acting on a tip, had gone to the Coopers’ residence, along with Deputy Michael Mullins and Detective Tom Harm, to attempt to serve an outstanding warrant for Cheever’s arrest. Cheever, along with the Coopers, Matt Denney, and Billy Gene Nowell, had been cooking and ingesting methamphetamine in the early morning hours prior to Samuels’ arrival. In the ensuing attempts to remove the wounded Samuels from the residence and arrest Cheever, Cheever also shot at Mullins, Harm, and two state highway patrol troopers, Robert Keener and Travis Stoppel.
At trial, the facts surrounding the shootings were recounted by several witnesses including the Coopers, the surviving law enforce ment officers, and by Cheever himself. There was little discrepancy in the pictures painted by the various accounts.
Shortly before Samuels, Mullins, and Harm arrived at the Coopers, Belinda had received a telephone call informing her that the police were on their way to the house to look for Cheever. Belinda told Cheever the police were coming and asked him to get his stuff together and leave, but Cheever’s car had a flat tire.
When Samuels arrived at the Cooper’s house, Cheever and Denny were hiding in an upstairs bedroom. Cheever had two guns with him—a .44 caliber Ruger revolver and a .22 caliber semiautomatic pistol. As he hid upstairs, Cheever heard the officers pull up to the house and heard Darrell yell that the cops were there and that he was going to tell them Cheever was not there. Cheever also heard Darrell answer the door and tell Samuels Cheever was not there. Cheever heard Darrell agree to allow Samuels inside to look around.
Cheever heard Samuels calling out his name as he looked for Cheever on the first floor. The doorway to the upstairs had a piece of carpet covering it and Samuels asked Belinda where the doorway led. Belinda said it went upstairs. Samuels pulled the carpet back and yelled for Cheever. Cheever looked over at Denny and told him, “Don’t move, don’t make a sound, just stay right where you are.” Samuels then went through the doorway to go upstairs.
Cheever heard Samuels’ steps on the stairs. Cheever had the loaded and cocked .44 in his hand when he stepped out of the bedroom and looked down the stairway. Cheever saw Samuels coming up the stairs. Cheever pointed his gun and shot Samuels. Cheever then stepped back into the bedroom and told Denny not to go out of tire window because they would shoot him. Cheever returned to the stair railing, looked down the stairs, saw Samuels, and shot him again. Cheever stepped back into the bedroom and saw that Denny had left through the window. Cheever then shot at Mullins and Harm as they tried to get the wounded Samuels out of the stairwell. Later, he shot at Keener and Stoppel, who were part of the SWAT team that entered the house to arrest Cheever.
Cheever asserted a voluntary intoxication defense, based on the theory that methamphetamine use had rendered him incapable of forming the necessary premeditation to support the murder and attempted murder charges. Cheever’s evidence in support of his defense consisted of his own testimony and the testimony of his expert witness, Dr. Roswell Lee Evans, Jr., a doctor of pharmacy with a specialty in psychiatric pharmacy.
The jury found Cheever guilty on all counts as charged. At the penalty phase, the jury unanimously found beyond a reasonable doubt that the three alleged aggravating circumstances had been proven to exist and that they were not outweighed by any mitigating circumstances found to exist and therefore sentenced Cheever to death. The trial court subsequently accepted the jury’s verdict and imposed a sentence of death.
While the facts of the case are relatively straightforward, the procedural history of the case is less so. The case was originally filed in Greenwood County District Court shortly after the crime. At about the same time, this court found the Kansas death penalty scheme unconstitutional in State v. Marsh, 278 Kan. 520, 102 P.3d 445 (2004), -rev cl and remanded by Kansas v. Marsh, 548 U.S. 163, 126 S. Ct. 2516, 165 L. Ed. 2d 429 (2006). The state proceeding was dismissed after federal authorities initiated prosecution in the United States District Court under the Federal Death Penalty Act, 18 U.S.C. § 3591 etseq. (2006).
The federal case went to jury trial in September 2006, but 7 days into jury selection, the case was suspended when Cheever’s defense counsel became unable to proceed. The federal case was subsequently dismissed without prejudice and the state case was refiled, went to trial, and resulted in the convictions and sentences before us in this appeal. Additional facts will be included in the discussion where relevant to the issues.
I. Court-ordered Mental Examination
During the course of the federal proceedings, Judge Monte Be-lot ordered Cheever to undergo a psychiatric examination with Dr. Michael Weiner, a forensic psychiatrist hired by the government. While the precise circumstances leading to Judge Belot’s order are not in the record before us, the record is sufficient to show that the mental examination was ordered because Cheever had raised the possibility that he would assert a defense based on mental condition. As a result of that order, Cheever submitted to examination by Weiner. Weiner s interview of Cheever lasted 5 and ½ hours, was videotaped, and resulted in a 230-page transcript.
Weiner’s examination first became an issue at trial during the State’s cross-examination of Cheever. The State sought to use the transcript of Cheever’s interview with Weiner to impeach Cheever’s testimony that he did not hear Samuels ask if he could go upstairs. Defense counsel objected, arguing that because the defense had not filed a notice of intent to rely on a mental disease or defect defense, the State was not entitled to use Weiner’s examination of Cheever. The trial court allowed the impeachment as “a prior inconsistent statement given to a witness who will testify” after the State confirmed Weiner would be called as a rebuttal witness to Cheever’s voluntary intoxication defense.
Cheever’s expert witness in support of his voluntary intoxication defense was Dr. Roswell Lee Evans, Jr., a doctor of pharmacy, who specialized in psychiatric pharmacy, the pharmacological effects of drugs, including illegal drugs such as methamphetamine. Evans testified that methamphetamine is a very intense stimulant drug that has three pharmacological phases: the initial rush, dre long-term intoxication, and the neurotoxic phase. Evans explained that the initial rush is a virtually instantaneous very extreme high that lasts approximately 30 minutes. Following tire initial rush is the long-term intoxication period. He testified that the intoxication lasts about 13 to 14 hours, during which the user is still under the influence of the drug.
Evans testified that while methamphetamine is not pharmaco-logically addictive, the intense pleasure of the initial rush makes the drug psychologically addictive. Users seek that intense high and therefore, once that starts, they do not have much control over whether they continue to use the drug. However, methamphetamine users develop a tolerance to the initial rush, leading them to increase the frequency of use or tire dosage, which then extends the long-term intoxication stage.
The neurotoxic phase, Evans testified, develops in chronic, long-term users. He said that the neurotoxic effect of long-term use can change the structure of the brain, resulting in the loss of gray matter and consequential loss of brain function, including loss of cognitive functions that deal with planning, assessing consequences, abstract reasoning, and judgment. Evans testified that long-term use can cause paranoid psychosis which, due to impairment of the brain functions responsible for judgment and impulse control, can result in violence. According to Evans, chronic users in a state of paranoid psychosis begin to react—just like the natural reaction to touching a hot stove—-to all sorts of stimuli based on their paranoid ideations. While Evans testified that neurotoxic changes could potentially be permanent, his testimony primarily indicated that these changes persist only as the result of continued drug use and would abate after a period of nonuse ranging from 4 to 6 months.
Testifying about Cheever specifically, Evans said that at the time of the crimes, Cheever’s drug use had progressed to the point that he had developed neurotoxicity and was showing symptoms of psychosis, evidenced by doing “really stupid judgment kind of stuff.” Evans noted that Cheever had progressed to the point where he had become so suspicious of people he was carrying a gun and was reacting to perceived threats that were not real.
Ultimately, Evans testified it was his opinion that at the time Cheever committed these crimes, Cheever was both under the influence of recent methamphetamine use and impaired by neu-rotoxicity due to long-term methamphetamine use, which affected his ability to plan, form intent, and premeditate the crime. With respect to shooting Samuels, Evans testified that there “was no judgment. There was no judgment at all. This man just did it.”
On cross-examination, the State made clear that Evans was not a medical doctor, not a psychiatrist, not a neurologist, and not a psychologist. The State characterized Evans as a “pharmacist.”
At the conclusion of Evans’ testimony, the defense rested. The State then sought to present Weiner as a rebuttal witness. Defense counsel objected, arguing that because Cheever had not asserted a mental disease or defect defense in this case, the State could not use Weiner’s examination. The State contended that Weiner’s testimony was proper rebuttal to Cheever’s voluntary intoxication defense. Further, the State suggested that Weiner’s testimony was proper rebuttal because Evans had testified he relied upon Wei-ner’s report. The trial court ruled that Weiner’s testimony was admissible as rebuttal to the voluntary intoxication defense.
Weiner’s testimony began with a long discourse on his qualifications, his substantial fee, and the extensive methodology he applies to cases under his review. Weiner also described in detail the materials he reviewed prior to interviewing Cheever, the 5 and ½ hour interview process, and the psychological testing that was conducted on Cheever.
Weiner testified that based on his examination, it was his opinion that on January 19, 2005, Cheever’s perceptions and decision-making ability were not impaired by methamphetamine use. Weiner told the jury that Cheever had the ability to control his actions, he had the ability to think the matter over before he shot Samuels, and he had the ability to form the intent to kill.
Addressing the relationship between Cheever’s level of suspicion on tire day of tire crimes and his use of methamphetamine, Weiner testified that while Cheever was suspicious that morning, his suspicions were reality based—given that Cheever was involved with several people in making illegal drugs and that he knew law enforcement officers were looking for him because he had violated parole. Weiner testified that this demonstrated Cheever’s suspicions were not irrational. Weiner also concluded that there was no change in Cheever’s level of suspicion after he used methamphetamine.
Addressing the relationship between Cheever’s level of suspicion and violence, Weiner testified that Cheever’s conduct demonstrated that his suspicions were not a trigger for violence. He considered it significant that, although Cheever had suspicions about the others taking his manufacturing supplies or swindling him in some way, Cheever did not react with violence. Instead, Cheever attempted to gain control over tire situation and defuse the perceived threats by giving Denny a walkie-talkie to monitor die area and personally engaging with Nowell, whom he did not trust. Wei-ner testified that Cheever’s reactions did not change after he used methamphetamine. Upon learning that the police were on their way, Cheever’s response, “Well, I hope everyone is happy,” was consistent with his suspicion that everyone at the house was out to get his methamphetamine. Yet despite that suspicion, Cheever did not become hostile or react with threats or violence.
Weiner also addressed whether Cheever had suffered any “longstanding-effects” or “brain damage” as a result of methamphetamine use. He noted that neuropsychological testing conducted by another doctor showed Cheever had high-average executive functioning and response inhibition. Weiner testified that Cheever’s drought processes and decisions on the day of Samuels’ killing were consistent with that finding, demonstrating that Cheever’s executive decision-making abilities were not impaired by methamphetamine. To support that conclusion, Weiner went through each and every step of the events, describing what Cheever had perceived, every decision Cheever had made, and every resulting action of those decisions:
“Within that look at executive functioning, Dr. Price found that Mr. Cheever had high average what is known as response inhibition .... The reason that that is significant is that it is testing that looks at complex tasks of thinking and processing and also inhibiting response. And when I think about the decisions and processing that he was making all through that day, [‘]I’m suspicious of these people, I’m armed, this person is hostile to me, I’m giving him drugs without threat, I’m suspicious of this person, he is unarmed, I am armed, I don’t threaten him, I’m not intimidating him,[’] I’m talking about Matthew Denny. [‘]I hear police. I recognize the voice of this person as someone that I have had positive experiences with. I make a decision not to shoot, but to be silent, with tire hope that this person goes away. The person comes near me but turns, and I’m aware of his movements, and still I am quiet and I don’t shoot and I don’t move. And I don’t jump out the window the way my confederate later does. And when I do shoot, I don’t shoot before Matthew Samuels walks through the curtain in such a way that I might scare him, the way my later shots frightened the deputies that came to pull him away, but I shoot him at a point in which he is very much within my range, has passed through that curtain, and I know that he is coming upstairs, and that is when I shoot. And then I stop shooting when someone says stop shooting. And tiren I continue not to shoot the entire day, not until I know that a SWAT team is making its way up and then I fire shots, and as soon as my bullets expire, I throw my hands up and say I surrender.!’] And so this is a whole range of executive decision-making that reflects go, no go, act, don’t act. And so it is— his histoiy is consistent with what was found in Dr. Price’s testing of, certainly, unimpaired, but what Dr. Price found was that he had high-average response inhibition to his cognitive functioning.”
Focusing specifically on the shooting of Samuels, Weiner described Cheever’s decision-making process:
“The decision-making ability, as I’ve—as I’ve assessed it in this case, began with his—his decision-making once it became clear that the police were there. He made a decision not to try to flee, not to try to run. He made a decision to keep himself where he kept himself, as opposed to another part of the house. He made a decision to stay quiet lest any land of disturbance aroused suspicion from Matthew Samuels downstairs. He made a decision to hold his fire when he did, even though he was armed. He made a decision to hold his fire even after Matthew Samuels approached the first time. And he made a decision to hold his fire even though he knew Matthew Samuels was outside and preparing to come back, that he did not shoot out the window or do anything of a provocative and intimidating way to say, ‘Stay away, because I will shoot.’ And he made a decision to shoot when he did.
“And then he engaged Matthew Denny and tiren went back and made a decision to shoot again. And then when he stopped shooting he made a decision to stop shooting.”
Weiner testified he considered and ultimately discounted other factors that could possibly explain Cheever s crimes, such as psychiatric conditions or disorders. He also considered and ultimately discounted environmental phenomena that could influence Cheever s efforts to avoid being taken into custody. Weiner told the jury that Cheever identified with and looked up to people that he described as bad boys or outlaws and that he wanted to outdo them. Weiner opined that, while it was possible methamphetamine made Cheever more aggressive, it did not affect “his decision to be an outlaw and to identify with outlaws and to make decisions as outlaws do.”
Cheever argues that his Fifth Amendment privilege against compulsory self-incrimination was violated when the trial court allowed the State to use the court-ordered mental examination by Weiner when Cheever had not waived his privilege in that examination by asserting a mental disease or defect defense at trial.
A. Preservation/Standard of Review
The State argues that Cheever s constitutional challenge to the admission of evidence from the court-ordered examination was not properly preserved for review because he did not object on Fifth Amendment grounds at trial. See K.S.A. 60-404 (a timely and spe cific objection is required to preserve evidentiaiy issues for appeal); State v. Richmond, 289 Kan. 419, Syl. ¶ 4, 212 P.3d 165 (2009) (“A defendant cannot object to tire introduction of evidence on one ground at trial and then assert another ground on appeal.”).
Although Cheever disputes the State’s contention that his objection was insufficient to preserve his constitutional claim, he argues alternatively that preservation is not fatal to his claim. In support, Cheever relies on the following language of K.S.A. 21-4627(b):
“[in a death penalty case] [t]he supreme court of Kansas shall consider the question of sentence as well as any errors asserted in the review and appeal and shall be authorized to notice unassigned errors appearing of record if the ends of justice would be served thereby.” (Emphasis added.)
Cheever asserts that because Weiner’s testimony played a large role in the guilt and penalty phases, it serves the ends of justice to determine whether the use of that evidence violated his constitutional privilege against compelled self-incrimination.
We hold that lack of preservation is not an obstacle to our review, but not because of our authority to notice unassigned errors under K.S.A. 21-4627(b), as Cheever argues. K.S.A. 21-4627(b) provides two distinct exceptions in death penalty cases to general rules concerning appellate review: It requires the court to consider all errors asserted on appeal, and it authorizes tire court to notice unassigned errors appearing in the record if doing so serves the ends of justice.
The first exception applies to errors raised by the parties. The statute mandates that we consider any errors the parties raise on appeal, whether preserved for review or not. State v. Kleypas, 272 Kan. 894, 952, 40 P.3d 139 (2001), cert. denied 537 U.S. 834 (2002), abrogated on other grounds by Kansas v. Marsh, 548 U.S. 163, 126 S. Ct. 2516, 165 L. Ed. 2d 429 (2006) (K.S.A. 21-4627[b] requires the court to consider the defendant’s claims of prosecu-torial misconduct “whether or not objected to at trial.”). Thus, the statute imposes a mandatoiy exception in death penalty appeals to the various statutes and rules barring consideration of unpreserved issues. See, e.g., State v. Bornholdt, 261 Kan. 644, 651, 932 P.2d 964 (1997), disapproved on other grounds by State v. Marsh, 278 Kan. 520, 102 P.3d 445 (2004), revd, and remanded on other grounds by Kansas v. Marsh, 548 U.S. 163 (2006) (construing identical language in K.S.A. 1993 Supp. 21-4627, which applied in hard 40 appeals, tire court held tire requirement that the court review any error asserted on appeal supersedes the contemporaneous objection rule of K.S.A. 60-404); State v. Collier, 259 Kan. 346, Syl. ¶ 1, 913 P.2d 597 (1996) (special review provision of K.S.A. 1993 Supp. 21-4627 requires court to “consider and reach” each issue raised on appeal, “even if the defendant fail[ed] to raise objections in the trial court”).
The second exception applies to unassigned errors. An unassigned error is one not raised by the parties but noticed by the court on its own during its review of the record. Cf State v. Hayes, 258 Kan. 629, 637, 908 P.2d 597 (1995) (because defendant did not receive a hard 40 sentence, the court would not search the record for unassigned errors under the special review provision of K.S.A. 1993 Supp. 21-4627). In contrast to our duty to consider all asserted errors, our review of unassigned errors is permissive and conditional. K.S.A. 21-4627(b) (The court “shall be authorized to notice unassigned errors appearing of record if tire ends of justice would be served thereby.”).
On this issue and throughout his brief, Cheever misses the distinction between tírese two provisions. Because Cheever raises the Fifth Amendment issue in his brief, it is not an unassigned error; it is an asserted error. Accordingly, we must review Cheever s constitutional claim, notwithstanding the State’s contention that Cheever’s failure to raise that specific ground at trial precludes appellate review.
Having determined that this issue is reviewable, we next address tire standard of review. Because Cheever challenges the legal basis for the admission of this evidence, our standard of review is de novo. State v. Appleby, 289 Kan. 1017, 1054-1055, 221 P.3d 525 (2009) (claim that admission of evidence violated the Sixth Amendment’s Confrontation Clause reviewed de novo); State v. White, 279 Kan. 326, 331-33, 109 P.3d 1199 (2005) (appellate court has unlimited review of claim that evidentiary ruling violated constitutional rights).
B. Analysis
Cheever relies primarily on Estelle v. Smith, 451 U.S. 454, 101 S. Ct. 1866, 68 L. Ed. 2d 359 (1981), Buchanan v. Kentucky, 483 U.S. 402, 107 S. Ct. 2906, 97 L. Ed. 2d 336 (1987), and several related cases to argue that because he had not waived the privilege by presenting evidence of a mental disease or defect at trial, the State was precluded by the Fifth Amendment from using statements he made during Weiner’s examination, conducted as part of the federal case, against him. The State responds that its use of Weiner’s examination was proper rebuttal and impeachment.
In Smith, the United States Supreme Court held that a court-ordered pretrial psychiatric examination implicated the defendant’s rights under the Fifth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, when the defendant neither initiated the exam nor put his mental capacity into issue at trial.
In Smith, the trial court ordered a competency examination of the defendant. Defense counsel had not raised an issue of competency or sanity and was unaware that the examination was ordered. 451 U.S. at 456-57 n.l. The psychiatrist interviewed the defendant and provided a report to the trial court in which he concluded the defendant was competent to stand trial. 451 U.S. at 457-58. During the penalty phase of the defendant’s capital trial, the State called the psychiatrist to testify as to the defendant’s future dangerousness—one of three factors the State was required to establish to obtain the death penalty under Texas law. The psychiatrist’s testimony included his conclusions that the defendant was a “severe sociopath” with no regard for property or human life, that he would continue his criminal behavior if given the opportunity, and that he had no remorse for his actions.
The Court determined that under the “distinct circumstances” of the case, the Fifth Amendment privilege applied to the examination. 451 U.S. at 466. The Court emphasized that the Fifth Amendment is not implicated by an order requiring a criminal defendant to submit to a competency examination “for the limited, neutral purpose of determining... competency to stand trial.” 451 U.S. at 465. Further, as long as the examination is conducted consistent with that limited purpose and used for that neutral purpose, there is no Fifth Amendment issue. 451 U.S. at 465, 468-69.
The Court noted that although the scope of the examination went beyond the question of competency, it was not the conduct of the examination that triggered the Fifth Amendment, but its use against the defendant at trial to establish an element necessary to obtain a verdict of death. 451 U.S. at 462, 465, 466 (quoting Cu-lombe v. Connecticut, 367 U.S. 568, 581-82, 81 S. Ct. 1860, 6 L. Ed. 2d 1037 [1961]) (the Fifth Amendment requires “That the State which proposes to convict and punish an individual produce the evidence against him by the independent labor of its officers, not by the simple, cruel expedient of forcing it from his own lips’ ”). The Court observed that there would have been no Fifth Amendment issue if the psychiatrist’s findings had been used solely for the purpose of determining competency. 451 U.S. at 465. But because “the State used [Smith’s] own statements, unwittingly made without an awareness that he was assisting the State’s efforts to obtain the death penalty!,]” the Fifth Amendment privilege applied. 451 U.S. at 466.
The Court made clear that its ruling applied only to situations in which the defendant “neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence” at trial. 451 U.S. at 468. The Court explained that where a defendant has placed his or her mental state in issue, a court-ordered psychiatric examination may be the only way the State can rebut the defense:
“Nor was the interview analogous to a sanity examination occasioned by a defendant’s plea of not guilty by reason of insanity at the time of his offense. When a defendant asserts the insanity defense and introduces supporting psychiatric testimony, his silence may deprive the State of the only effective means it has of controverting his proof on an issue that he interjected into the case. Accordingly, several Courts of Appeals have held that, under such circumstances, a defendant can be required to submit to a sanity examination conducted by the prosecution’s psychiatrist. [Citations omitted.]” 451 U.S. at 465.
In Buchanan, the Court addressed the situation it had distinguished in Smith. In Buchanan, the defense joined with the prosecution in requesting a court-ordered mental examination of the defendant and presented evidence supporting a mental-state-based defense at trial. The Court held that under those circumstances, allowing the State to use the results of the mental examination for the limited purpose of rebutting that defense did not violate the defendant’s Fifth Amendment privilege. 483 U.S. at 423-24.
In addition to the Smith/Buchanan line of precedent, Cheever also relies on Battie v. Estelle, 655 F.2d 692 (5th Cir. 1981) and Gibbs v. Frank, 387 F.3d 268 (3rd Cir. 2004). In Battie, the Fifth Circuit Court of Appeals rejected the argument that a defendant waives his or her Fifth Amendment privilege by requesting or submitting to a psychiatric examination to determine sanity at the time of the crime. The court explained that waiver occurs when the defense introduces psychiatric testimony, in the same manner as would the defendant’s election to testify at trial. 655 F.2d at 701-02 n. 22. See also Powell v. Texas, 492 U.S. 680, 684, 109 S. Ct. 3146, 106 L. Ed. 2d 551 (1989) (stating that the Fifth Circuit’s discussion of waiver in Battie is supported by Smith and Buchanan).
We explore Gibbs in some depth, because the Third Circuit Court of Appeals examined and applied the Smith and Buchanan line of precedent to a situation with similarities to Cheever’s case.
The defendant in Gibbs was tried twice for the 1984 murder of a security guard in Pennsylvania. In the first trial, the defense requested that an expert be appointed for the purpose of determining whether to raise a mental infirmity defense. After the examination, the defense notified the State of its intent to raise such a defense and, consequently, the State secured an order for its own psychiatric examination. The State’s psychiatrist gave the defendant Miranda warnings, and the defendant made several inculpatory statements. At trial, Gibbs offered expert testimony to establish a diminished capacity defense, and the State called its own expert witness to rebut the testimony. The defendant was found guilty and sentenced to death, but his conviction was ultimately reversed.
At his second trial, the defendant presented an identity defense, not a mental-state-based defense. Nevertheless, the State was permitted to call its expei*t psychiatric witness to testify about the in-culpatory statements the defendant had made during his exami nation. The defendant was convicted, and the conviction was affirmed on direct appeal. On federal habeas review, the Third Circuit addressed the defendant’s claim that his Fifth Amendment privilege was violated when the State was permitted to introduce its psychiatrist’s testimony despite the fact that the defendant did not raise the diminished capacity defense at his second trial. 387 F.3d at 271.
The Third Circuit examined and synthesized the Supreme Court’s precedent to determine the applicable rules for resolving the issue:
“If we lay these decisions out, the following landscape emerges. A compelled psychiatric interview implicates Fifth and Sixth Amendment rights (Smith). Before submitting to that examination, the defendant must receive Miranda warnings and (once the Sixth Amendment attaches) counsel must be notified (Smith). The warnings must advise the defendant of the ‘consequences of foregoing’ his right to remain silent (Smith). The Fifth and Sixth Amendments do not necessarily attach, however, when the defendant himself initiates the psychiatric examination (Buchanan, Penry). Similarly, the Fifth—but not Sixth—Amendment right can be waived when the defendant initiates a trial defense of mental incapacity or disturbance, even though the defendant had not been given Miranda warnings (Buchanan, Powell). But that waiver is not limitless; it only allows the prosecution to use the interview to provide rebuttal to the psychiatric defense (Buchanan, Powell). Finally, the state has no obligation to warn about possible uses of the interview that cannot be foreseen because of future events, such as uncommitted crimes (Penry)." 387 F.3d at 274.
Applying this synthesis, the Third Circuit held that while the psychiatrist’s testimony was admissible in tire first trial at which the defendant had presented a mental capacity defense, it was not admissible at the subsequent trial. The defense had not provided notice of intent to raise a mental capacity defense, tire interview was court-ordered and conducted by the State’s expert, the defense had not presented psychiatric testimony at trial, and the report was not used for rebuttal; indeed, the report was not even used for psychiatric purposes. 387 F.3d at 274-75.
Kansas statutes and caselaw are consistent with Smith, Buchanan, Battie, and Gibbs. Under K.S.A. 22-3219(1), in order to present a mental disease or defect defense at trial, a criminal defendant must file a pretrial notice of the intent to do so. Filing such a notice is deemed to be consent to a court-ordered mental examination. K.S.A. 22-3219(2) (“A defendant who files a notice of intention to assert [a mental disease or defect defense] thereby submits and consents to abide by such further orders as the court may make requiring tire mental examination of the defendant... .”)■ See also State v. Ji, 251 Kan. 3, 23, 832 P.2d 1176 (1992) (State was entitled to use court-ordered examination of defendant to rebut defendant’s insanity defense, despite the fact the examination was conducted without the benefit of Miranda warnings; under K.S.A. 22-3219, the defendant’s notice of intent to assert insanity defense was consent to the examination, and the defendant presented evidence supporting insanity defense).
Moreover, although filing a notice of intent under K.S.A. 22-3219(1) constitutes consent to a court-ordered examination, the mere fact the defendant submitted to the examination is not a waiver of the privilege so as to allow the State to use that examination against the defendant at trial. The court-ordered examination remains privileged unless and until tire defendant presents evidence supporting a mental disease or defect defense at trial. Cf. State v. Foster, 259 Kan. 198, 910 P.2d 848 (1996); State v. Williams, 20 Kan. App. 2d 185, 884 P.2d 755 (1994).
In Williams, the defendant filed a notice of intent to raise an insanity defense and then scheduled and paid for a psychiatric examination of the defendant. The State filed a motion to compel discovery of tire report, arguing that K.S.A. 22-3219 required its release. The district court ordered the defendant to produce the report. The defendant tiren withdrew tire notice of intent to use the insanity defense and asked the district court to vacate its order. The district court refused, stating the report had to be produced, regardless of whether it was going to be used. Defense counsel refused to comply, arguing that because the notice was withdrawn, the defendant retained his Fifth Amendment privilege in the report. Defense counsel was held in contempt and they appealed.
A panel of the Court of Appeals reversed the contempt order and held that the trial court’s initial order to produce the report was consistent with K.S.A. 22-3219(2), because the defendant had filed a notice of intent to assert an insanity defense. 20 Kan. App. 2d at 190. After the defendant withdrew his intent to assert an insanity defense, however, the district court’s refusal to reconsider its order to produce was erroneous:
“K.S.A. 1993 Supp. 22-3219(1) prohibits admission of any evidence concerning an insanity defense unless a notice of intent to plead insanity has been timely filed or accepted by the court. After appellants withdrew defendant’s insanity notice, they became estopped from attacking the presumption of sanity surrounding defendant. K.S.A. 1993 Supp. 22-3219 no longer controlled the discovery of defendant’s psychiatric report after defendant’s notice of intent to plead insanity was withdrawn.” Williams, 20 Kan. App. 2d at 191.
In Foster, 259 Kan. 198, the defendant argued that the prosecutor committed misconduct by cross-examining him about statements he made during a psychological evaluation to determine sanity. The defendant had filed a notice of intent to assert an insanity defense, but the defendant’s psychologist had not testified at the time the prosecutor asked the question. Citing Williarns, this court held that the defendant’s conversations with the psychologist remained privileged until the psychologist testified. 259 Kan. at 210 (citing Williams, 20 Kan. App. 2d at 191).
We note that the defendant’s objection at trial and the trial court’s ruling in Foster were based upon the psychologist-client privilege, not the Fifth Amendment privilege and that our analysis in Foster does not mention the Fifth Amendment. Nevertheless, our cite to Williams for the proposition that the defendant’s conversations with the psychologist remained privileged suggests that we recognized the situation implicated the Fifth Amendment privilege.
In summary, we hold that K.S.A. 22-3219 and our caselaw are in harmony with the scope of the Fifth Amendment privilege as construed in the Smith and Buchanan line of precedent. Read together, the following rules apply.
Where a defendant files a notice of intent to assert a mental disease or defect defense under K.S.A. 22-3219, the Fifth Amendment does not prevent the court from ordering the defendant to submit to a mental examination. Buchanan, 483 U.S. at 423-24; Smith, 451 U.S. at 465. The filing of such a notice constitutes consent to a court-ordered mental examination by an expert for the State, making Miranda warnings unnecessary. K.S.A. 22-3219(2); Ji, 251 Kan. at 23. Consent to the examination, however, does not waive the defendant’s Fifth Amendment privilege so as to entitle the State to use the examination against the defendant at trial. Waiver does not occur unless or until the defendant presents evidence at trial that he or she lacked the requisite criminal intent due to a mental disease or defect. Cf Foster, 259 Kan. at 210; Williams, 20 Kan. App. 2d at 191. See also Battie, 655 F.2d at 702 (submitting to examination does not waive the privilege, waiver occurs when the defendant presents mental-state defense at trial). If the defendant withdraws the notice to assert a mental disease or defect defense or does not present evidence supporting that defense at trial, the Fifth Amendment privilege remains intact and the State may not use the mental examination as evidence against the defendant. Foster, 259 Kan. at 210; Williams, 20 Kan. App. 2d at 191 (defense withdrew notice of intent to assert insanity defense). If, however, the defendant presents evidence supporting a mental disease or defect defense, the State may use the court-ordered examination for the limited purpose of rebutting the defendant’s mental disease or defect defense. 483 U.S. at 423-24.
Applying these rules to Cheever’s case, Cheever retained a Fifth Amendment privilege in the Weiner examination. Cheever could waive his privilege and allow use of the report under the proper circumstances. Absent such a waiver, however, the report was privileged under the Fifth Amendment.
1. Did Cheever waive the privilege, thus entitling the State to use the examination for rebuttalP
The State contends that Cheever presented expert testimony at trial regarding his mental state, and therefore it was entitled to use the examination to rebut that defense. Cheever contends that he did not present evidence of a mental disease or defect defense. Cheever argues his evidence was limited to showing voluntary intoxication, which is not a mental disease or defect under Kansas law and, therefore, the State was not entitled to use the examination for rebuttal.
The only mental capacity defense recognized in Kansas is the mental disease or defect defense, as defined by K.S.A. 22-3220:
“It is a defense to a prosecution under any statute that the defendant, as a result of mental disease or defect, lacked tire mental state required as an element of the offense charged. Mental disease or defect is not otherwise a defense.” (Amended L. 2010, ch. 136, sec. 20; now K.S.A. 2011 Supp. 21-5209).
It is well established that voluntary-intoxication-induced temporary mental incapacity at the time of the crime is not evidence of a mental disease or defect. Kleypas, 272 Kan. 894, Syl. ¶ 1; In re Habeas Corpus Petition of Mason, 245 Kan. Ill, 113, 775 P.2d 179 (1989). Evidence of permanent mental incapacity due to long-term use of intoxicants, however, may support a mental disease or defect defense. Petition of Mason, 245 Kan. at 114.
In Kleypas, the defendant attempted to introduce expert witness testimony that he had experienced a blackout at the time of the offenses due to voluntary intoxication and chronic cocaine use. The State objected that the defendant was attempting an end run around the procedural and substantive consequences of asserting a mental defect defense after having withdrawn his previously filed notice of intent to assert such a defense. The trial court agreed. On appeal, we held that the defendant’s expert testimony did not relate to a mental disease or defect but solely to voluntary intoxication, and thus the trial court erred in refusing to allow the defendant to present that evidence. 272 Kan. at 921.
Our Kleypas decision was based on Petition of Mason, 245 Kan. 111. In Mason, the trial court ordered a mistrial after defense counsel told tire jury during opening statement that the defense would present evidence that the defendant was in an alcohol-induced blackout at the time of the offense, due, in part, to long-term alcohol abuse. The trial court found that the evidence described would constitute evidence of insanity, not voluntary intoxication, and thus ordered a mistrial because the defendant had not filed notice of an insanity defense. 245 Kan. at 113. We reversed, holding that evidence of temporary mental incapacity caused by voluntary intoxication is not evidence of insanity. 245 Kan. at 113 (discussing State v. Seely, 212 Kan. 195, 510 P.2d 115 [1973]). We noted we had previously held that evidence that continued use of intoxicants had caused “permanent mental deterioration or disease” may constitute insanity. Petition of Mason, 245 Kan. at 114 (discussing State v. James, 223 Kan. 107, 574 P.2d 181 [1977]). But because the defendant was not claiming that his alcohol-induced blackout at the time of the crime was “anything . . . other than temporaiy,” the trial court erred in finding that the evidence described in the defendant’s opening statement would be evidence of insanity, rather than voluntaiy intoxication. 245 Kan. at 113.
Cheever’s voluntary intoxication defense was based on evidence that his mental state at the time of the crime was a product of a combination of immediate voluntary ingestion of methamphetamine and long-term use of the drug. Cheever did not present evidence, however, that his use of methamphetamine had caused permanent mental impairment. Evans testified that while neuro-toxic changes could potentially be permanent, in most cases, those changes abate after a 4- to 6-month period of nonuse. Evans did not testify that Cheever had sustained permanent damage. In fact, he testified that psychological testing done on Cheever some 6 months after his arrest was unlikely to be useful for determining his mental state at the time of the crime because he would no longer have been suffering the effects of the drug.
Accordingly, we find that Cheever’s evidence showed only that he suffered from a temporary mental incapacity due to voluntary intoxication; it was not evidence of a mental disease or defect within the meaning of K.S.A. 22-3220. Consequently, Cheever did not waive his Fifth Amendment privilege and thus permit his court-ordered examination by Dr. Weiner to be used against him at trial. Therefore, we conclude that allowing Weiner to testify in rebuttal to the voluntary intoxication defense violated Cheever’s constitutional rights under the Fifth and Fourteenth Amendments to the United States Constitution.
2. Impeachment
Cheever also argues that allowing the State to use statements he made to Weiner to impeach his testimony at trial violated his Fifth Amendment privilege. The State contends that because there is no evidence Cheever’s statements to Weiner were unlawfully coerced and Cheever does not malee such a claim, there was no reason to exclude that evidence. In its brief, the State argues:
“Whether viewed as a constitutional claim or otherwise, there is no basis for exclusion of Dr. Weiner’s testimony. The exclusion of relevant evidence obtained by the State in a criminal prosecution is a judicially created remedy designed to safeguard the rights of defendants through its deterrent effect. Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357, 371,118 S. Ct. 2014,141 L. Ed. 2d 344 (1998). The primary purpose of the exclusionary rule “is to deter future unlawful police conduct.’ ” When there is no government misconduct, there is no basis for applying the exclusionary rule. Because there was no allegation of government misconduct here, the exclusion of Dr. Weiner’s testimony by the trial court was not warranted.”
At oral argument, Cheever noted the State’s argument appeared to be based on die rationale of Harris v. New York, 401 U.S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971) (defendant’s statements, inadmissible in prosecution’s case-in-chief as a sanction for failing to provide Miranda warnings, may be used to impeach defendant’s testimony at trial; the benefits of allowing the prosecution to use the truth-testing device of impeachment outweigh the minimal deterrent value of excluding tainted evidence for all purposes).
We hold the exclusionary rule argument has no relevance here. Cheever’s statements to Weiner are not excluded as a sanction for governmental misconduct; they are inadmissible because they are protected by the Fifth Amendment privilege against compelled self-incrimination. Cf. Kansas v. Ventris, 556 U.S. 586, 129 S. Ct. 1841, 173 L. Ed. 2d 801 (2009) (evidence protected by Fifth Amendment privilege is inadmissible to prevent violation of the substantive protection of the Fifth Amendment privilege; evidence inadmissible under the exclusionary rule is excluded as a sanction for a constitutional violation that has already occurred).
Although not argued by the parties, we note there is conflicting federal caselaw on the question of whether a defendant’s statements made during a court-ordered mental examination, while not admissible to rebut a mental-state defense, may nevertheless be used to impeach the defendant’s trial testimony. Compare United States v. Leonard, 609 F.2d 1163 (5th Cir. 1980) (construing Fed. R. Crim. Proc. 12.2[c]; defendant’s statements during a court-ordered mental examination are admissible solely on the issue of sanity and may not be used for impeachment); and United States v. Castenada, 555 F.2d605 (7th Cir. 1977) (holding that statements made during court-ordered mental examination under 18 U.S.C. § 4244 (1976) that are inadmissible on the issue of guilt, are admissible for impeachment because they go to credibility, not guilt).
We recognize there are compelling, but conflicting, policy rationales for die competing positions. On one hand, prohibiting use for impeachment promotes the candid conversation with the expert that is necessaiy to produce rehable psychiatric testimony for the government or defendant, as the case may be. 609 F.2d at 1165-66. On the other hand, allowing impeachment of a testifying defendant’s inconsistent testimony “protect[s] the integrity of the fact-finding process” by preventing a defendant from “ perverting]’ ” the shield provided by the statute “ ‘into a license to use perjury by way of defense, free from the risk of confrontation with prior inconsistent utterances.’ ” Castenada, 555 F.2d at 610 (quoting Harris v. New York, 401 U.S. 222, 226, 91 S. Ct. 643, 28 L. Ed. 2d 1 [1971]).
We conclude that under the circumstances, resolution of this issue must await another day. The important considerations that underlie this issue have not been appropriately raised, briefed, and argued. In addition, as discussed below, the erroneous admission of Weiner’s testimony requires reversal and remand of the capital murder and attempted capital murder convictions. Thus, even if we were also to determine that Cheever’s statements were properly admitted for impeachment, that determination would not change the outcome in this case.
Last, we address an additional point about the admissibility of Weiner’s testimony. The trial court suggested that Weiner’s testimony was admissible for rebuttal because Evans relied on Weiner’s report in reaching his conclusions. During the arguments over Cheever’s objection to the State calling Weiner to testify in rebuttal to Evans, the State interjected that Evans had testified he relied on Weiner’s report. Defense counsel confirmed the State’s repre sentation. The trial court then stated “that fact standing alone probably allows the State to call him to give his own point of view.”
Although defense counsel confirmed the State’s representation, tire record does not. Evans never stated that he relied upon Wei-ner’s report. Evans specifically testified that he did not watch the video of Weiner’s interview or read the transcript of the interview. The only reference he made to Weiner’s report is in an exchange between the State and Evans, in which the State commented: “That’s what he [Cheever] told Dr. Weiner. I guess if you’d read that interview, you’d know that.” Evans responded: “I don’t remember that piece of Mr. Weiner’s report.”
The trial court did not provide a legal basis for its statement that Evans’ reliance on Weiner’s report supported allowing Weiner to testify in rebuttal. Cheever identifies it as a hearsay ruling and focuses his argument on his contention that Evans did not rely on Weiner’s report. In any event, we need not speculate about the legal basis for the trial court’s suggestion that Evans’ reliance upon Weiner’s report provided an alternate ground for allowing Weiner to testify, because the record plainly fails to establish that Evans actually did rely upon Weiner’s report to arrive at his own opinions.
C. Harmless Ei-ror Analysis
Because the admission of Weiner’s testimony violated Cheever’s Fifth Amendment privilege against compelled self-incrimination, we apply the federal constitutional harmless error test of Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386 U.S. 987 (1967). Under Chapman, an error that violates a criminal defendant’s constitutional rights requires reversal unless the party who benefitted from the error—here, the State—“proves beyond a reasonable doubt that the error complained of . . . did not affect the outcome of the trial in light of the entire record, i.e., proves there is no reasonable possibility that the error affected the verdict.” State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 (2011), cert, denied 132 S. Ct. 1594 (2012); Kleypas, 272 Kan. at 1084 (State must prove beyond a reasonable doubt that federal constitutional error did not contribute to the verdict obtained).
In Satterwhite v. Texas, 486 U.S. 249, 258, 108 S. Ct. 1792, 100 L. Ed. 2d 284 (1988), the United States Supreme Court considered whether the erroneous admission of the defendant’s court-ordered psychiatric examination was harmless error under Chapman. Because of parallels with Cheever’s case, we set out in detail the Court’s discussion of the evidence at issue and its effect on the outcome:
“Dr. Grigson [who conducted the examination of the defendant] was the State’s final witness. His testimony stands out both because of his qualifications as a medical doctor specializing in psychiatry and because of the powerful content of his message. Dr. Grigson was the only licensed physician to take the stand. He informed the jury of his educational background and experience, which included teaching psychiatry at a Dallas medical school and practicing psychiatry for over 12 years. He stated unequivocably [sic] that, in his expert opinion, Satterwhite ‘will present a continuing threat to society by continuing acts of violence.’ He explained that Satterwhite has ‘a lack of conscience’ and is ‘as severe a sociopath as you can be.’ To illustrate his point, he testified that on a scale of 1 to 10— where ‘ones’ are mild sociopaths and ‘tens’ are individuals with complete disregard for human life—Satterwhite is a ‘ten plus.’ Dr. Grigson concluded his testimony on direct examination with perhaps his most devastating opinion of all: he told the jury that Satterwhite was beyond the reach of psychiatric rehabilitation.
“The District Attorney highlighted Dr. Grigson’s credentials and conclusions in his closing argument:
‘Doctor James Grigson, Dallas psychiatrist and medical doctor. And he tells you that on a range from 1 to 10 he’s ten plus. Severe sociopath. Extremely dangerous. A continuing threat to our society. Can it be cured? Well, it’s not a disease. It’s not an illness. That’s his personality. That’s John T. Satterwhite.’
“The finding of future dangerousness was critical to the death sentence. Dr. Grigson was the only psychiatrist to testify on this issue, and the prosecution placed significant weight on his powerful and unequivocal testimony. Having reviewed tire evidence in this case, we find it impossible to say beyond a reasonable doubt that Dr. Grigson’s expert testimony on the issue of Satterwhite’s future dangerousness did not influence the sentencing jury.” 486 U.S. at 259-60.
Satterwhite involved the admission of evidence in the penalty phase of a capital murder proceeding, while here, Weiner’s testimony was admitted in the guilt stage. As the Court recognized in Satterwhite, assessing the prejudicial effect of error in the sentencing phase can be more difficult because of the discretion the jury has in determining whether death is the appropriate punishment. 486 U.S. at 258. That difference notwithstanding, we find the Court’s analysis of the prejudicial effect of the error in admitting psychiatric evidence instructive for the ways in which it parallels Cheever’s case.
As with Grigson’s testimony in Satteitohite, Weiner’s “testimony stands out both because of his qualifications . . . and because of the powerful content of his message.” 486 U.S. at 259. Weiner’s background and qualifications were significantly more impressive than Evans’. Weiner testified about his board certifications in psychiatry, forensic psychiatry, and advanced clinical psychopharma-cology. His experience included private practice and teaching, both as an associate professor of psychiatry at New York University School of Medicine and as an adjunct professor of law at Duquesne University School of Law at the University of Pittsburgh. He testified at length about his background, including an American Psychiatric Association award, keynote speaking engagements, research work, publications, and testimony before state legislatures on psychiatry and the law.
Evans’ credentials were simply not on the same level—a point the State highlighted during its cross-examination of Evans. Through its questions, the State obtained Evans’ acknowledgment that he was not a medical doctor or a psychiatrist.
The content of Weiner’s testimony also stands out. Weiner was the last witness the jury heard during the guilt phase of the trial, and his testimony was extensive and devastating. He employed a method of testifying that virtually put words into Cheever’s mouth. He focused on the events surrounding the shootings, giving a moment-by-moment recounting of Cheever’s observations and actual thoughts to rebut the sole defense theory that he did not premeditate the crimes. He characterized Cheever as a person who had chosen an antisocial outlaw life style and who was indifferent to the violence he had committed. Cf. State v. Vandeweaghe, 351 N. J. Super. 467, 799 A.2d 1 (2002), ajfcl 177 N. J. 229,827 A.2d 1028 (2003) (Weiner’s testimony that defendant had antisocial personality disorder and was a liar, presented in rebuttal to intoxication defense, was highly prejudicial plain error, requiring reversal).
Arguably, it is possible the jury might have convicted Cheever even without Weiner’s testimony; however, that is not the standard we must apply under Chapman. “The question ... is not whether the legally admitted evidence was sufficient to support” the verdict, “but, rather, whether the State has proved ‘beyond a reasonable doubt that tire error complained of did not contribute to the verdict obtained/ ” Satterwhite, 486 U.S. at 258-59 (quoting Chapman, 386 U.S. at 24).
Because this error violated Cheevers federal constitutional rights, we must reverse unless we can say with “tire highest level of certainty that the error did not affect the outcome.” Ward, 292 Kan. at 564. After reviewing the entire record, we do not have that level of certainty; we cannot conclude beyond a reasonable doubt that Weiner s testimony did not contribute to the verdict in this case. Consequently, the error is not harmless, and Cheevers convictions for capital murder and attempted capital murder must be reversed and remanded for a new trial.
Our decision reversing Cheevers convictions for capital murder and attempted capital murder make it unnecessary to resolve the other issues Cheever has raised. Nevertheless, because we are remanding the case for a new trial, we will address those issues that are likely to arise on remand in order to provide guidance to the trial court. State v. Scott, 280 Kan. 54, 107, 183 P.3d 801 (2008); Kleypas, 272 Kan. at 1057.
II. Felony Murder as a Lesser Included Offense of Capital Murder
The trial court instructed the jury on first-degree premeditated murder as a lesser included offense of capital murder. On appeal, Cheever argues that the first-degree murder instruction should have included the alternative theory of felony murder as a lesser included offense of capital murder. Cheever acknowledges he did not request such an instruction or object to its absence in the district court; thus the trial judge did not have an opportunity to address this issue.
Cheever argues that capital murder and first-degree murder are different degrees of the crime of homicide under K.S.A. 21-3107(2)(a); therefore, first-degree murder, which includes felony murder, is a lesser included crime of capital murder. We agree.
K.S.A. 21-3107(2) sets out the definition of lesser included crimes:
“(2) ... A lesser included crime is:
(a) A lesser degree of the same crime;
(b) a crime where all elements of die lesser crime are identical to some of the elements of the crime charged;
(c) an attempt to commit the crime charged; or
(d) an attempt to commit a crime defined under subsection (2)(a) or (2)(b).”
Kansas has long-recognized that the generic crime of homicide, “ ‘of which murder is the highest and most criminal species, is of various degrees, according to circumstances. The term ... is generic, embracing eveiy mode by which the life of one man is taken by the act of another.’ ” State v. Gregory, 218 Kan. 180, 182-83, 542 P.2d 1051 (1975) (citing State v. Ireland, 72 Kan. 265, 270, 83 Pac. 1036 [1905] [quoting Commonwealth v. Webster, 59 Mass. 295, 1850 WL 2988 (1850)]. Thus, in Gregory, we held that involuntary manslaughter is a lesser degree of second-degree murder and is therefore a lesser included crime under K.S.A. 21-3107(2)(a). We explained that while it appears murder and manslaughter are different crimes, “ ‘they involve but one crime and are only degrees of felonious homicide.’ ” 218 Kan. at 183 (quoting Warren on Homicide § 83, pp. 415-16).
To date, our caselaw has recognized the following homicide degree crimes, in descending order: first-degree murder, second-degree murder, voluntaiy manslaughter, and involuntary manslaughter. See State v. Garcia, 272 Kan. 140, 150, 32 P.3d 188 (2001), disapproved on other grounds by State v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006). Before the capital murder statute was enacted in 1994, first-degree murder was recognized as the highest degree of our homicide crimes. See State v. Bradford, 219 Kan. 336, 343, 548 P.2d 812 (1976) (“First-degree murder, whether felony murder or not, is the highest degree of homicide.”). We have not had occasion to consider whether capital murder is part of the homicide-degree-crime structure for purposes of K.S.A. 21-3107(2)(a).
Capital murder is first-degree murder, with “one or more specific elements beyond intentional premeditated murder” that func tion as part of the constitutionally required narrowing process. Marsh, 548 U.S. at 175-76. It logically follows, and we hold, that capital murder is now the highest degree of homicide in Kansas.
With capital murder as the highest degree of homicide, first-degree murder is a lesser degree of capital murder under K.S.A. 21-3107(2)(a) and is therefore a lesser included crime of capital murder. The crime of first-degree murder may be committed in two ways: premeditated murder and felony murder. See State v. Hoge, 276 Kan. 801, 810, 80 P.3d 52 (2003) (premeditated murder and felony murder are alternate means of committing the same crime and are not separate and distinct crimes); State v. McKinney, 265 Kan. 104, 110, 961 P.2d 1 (1998) (“Felony murder is not a lesser degree of murder than premeditated murder. Felony murder is first-degree murder; premeditated murder is first-degree murder.”)- Accordingly, felony murder is a lesser included crime of capital murder and, where facts support it, should be included in instructions on lesser included crimes in capital murder cases.
We note that K.S.A. 21-3107 has been amended recently to eliminate lesser degrees of the crime of felony murder. See K.S.A. 2011 Supp. 21-5109(b)(l), as amended by L. 2012, ch. 157, sec. 2 (A lesser included crime is “[a] lesser degree of the same crime, except that there are no lesser degrees of murder in the first degree under subsection [a] [2] [felonymurder] of K.S.A. 2011 Supp. 21-5402.”). This amendment has no bearing on our analysis. The issue at hand concerns whether felony murder is a lesser degree of the crime of capital murder, not whether some other offense is a lesser degree of felony murder.
III. Voir Dire Comments Mentioning Appellate Review
The trial court divided the prospective jurors into seven panels for voir dire. The trial court’s introductoiy remarks to each panel were substantially similar and began by introducing the parties, their counsel, and court personnel, including the court reporter. In explaining the role of die court reporter, the trial court told the prospective jurors that the court reporter’s written record of the proceedings served two purposes: for reference during the trial and for appellate review should the case be appealed.
The following remarks made to the seventh panel are representative of those made to all of the panels:
“Almost everything is on the record that we do in here.
“We refer back to that record from time to time during the trial to see what someone said, whether a question’s already been asked, tilings of that nature, and if this case should go up on appeal to the appellate courts in Kansas in Topeka, a transcript is made of everything we do and that transcript is sent to the appellate court, along with the exhibits, and the appellate court decides all issues on appeal based on that record that we’ve made here in the trial court.”
Cheever argues that the trial court’s remarks violated the Eighth Amendment to the United States Constitution as applied in Caldwell v. Mississippi, 472 U.S. 320, 328-29, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985) (holding that “it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere”). Cheever contends the trial judge’s remarks in this case created the risk that the jurors would believe that the ultimate responsibility for Cheever’s sentence rested with the appellate courts, thereby undermining the heightened reliability the Eighth Amendment demands of a juiy’s determination that death is the appropriate punishment.
In Caldwell, the prosecutor argued to the jury that a decision to impose the death sentence would not be final because it was subject to review by tire appellate court. The Supreme Court held the remarks rendered the death sentence unconstitutional. The Court explained that remarks that “[seek] to minimize the jury’s sense of responsibility for determining the appropriateness of death” undermine the reliability of the jury’s death sentence in violation of the Eighth Amendment. 472 U.S. at 341. See also Romano v. Oklahoma, 512 U.S. 1, 9, 114 S. Ct. 2004, 129 L. Ed. 2d 1 (1994) (Caldwell is “ ‘relevant only to certain types of comment—those that mislead the jury as to its role in the sentencing process in a way that allows the jury to feel less responsible than it should for the sentencing decision.’ ”) (quoting Darden v. Waimoright, 477 U.S. 168, 183 n.15, 106 S. Ct. 2464, 91 L. Ed. 2d 144 [1986]).
State v. Nguyen, 251 Kan. 69, 833 P.2d 937 (1992), provided this court with an opportunity to consider whether a trial judge commits judicial misconduct by mentioning to a juiy the possibility that the case before it could be appealed. In explaining the process for the jury to submit questions or request readbacks during deliberations, the judge said:
“ ‘I explained to you drat if I get a question, and that will be through my bailiff, Ms. Mies, the foreman will write it down and date it. And I would request also that he write the time—he or she write the time on there. That question will be preserved, ‘cause defense, regardless, would have a right to appeal. As I told you, that a judge is under a microscope and that [to] be sure that any defendant receives die correct legal decisions. I can be challenged. And I welcome the challenges.’ ” 251 Kan. at 78-79.
The defendant argued that mentioning the right to appeal was improper because the remarks “lessened the jury’s sense of responsibility in the correctness of its decision and the jury’s belief in the importance of its decision[,] . . . might have given the jurors the impression that a mistake in their findings of fact also would be correctable by appeal[, and]... created the impression the court believed he was guilty.” 251 Kan. at 79. Although we found the comments were not prejudicial, we unequivocally stressed that “[a] trial court should not mention a defendant’s right to appeal.” 251 Kan. at 80.
Nguyen was not a death penalty case; however, the reasoning is consistent with Caldwell. Accordingly, we take this opportunity to reiterate our general directive: It is improper for a trial court to make comments to the jury regarding appellate review. Moreover, we emphasize that the life-or-death stakes in a capital murder proceeding require extra vigilance on the part of the trial court to abide by this directive. We note the remarks in this case are not analogous to those that required reversal in Caldwell. Nevertheless, under Nguyen, it is error for the trial judge to tell jurors, even prospective jurors, that the exhibits and transcripts of the proceedings will be reviewed by an appellate court. Whether that error would be held to be prejudicial depends on the specific circumstances of the particular case; however, because it is error that is entirely within the judge’s power to avoid, it should be avoided.
IV. Cheever’s Age at the Time of the Offense
Cheever argues that his death sentence was imposed in violation of his right to jury trial under the Sixth and Fourteenth Amendments to the United States Constitution because the jury did not find beyond a reasonable doubt that he was at least 18 years old at the time of the crime, a fact that he contends is necessary to render him eligible for the enhanced sentence of death. Cheever does not dispute that he was at least 18 years old at the time of the capital offense.
The Sixth Amendment right to jury trial requires that any fact, other than a prior conviction, “that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). In Bing v. Arizona, 536 U.S. 584, 609,122 S. Ct. 2428,153 L. Ed. 2d 556 (2002), the Court extended the holding of Apprendi to capital sentencing proceedings. There, the Court held that Arizona’s sentencing scheme violated the Sixth Amendment right to jury trial because it permitted a judge to find the existence of statutory aggravating factors necessary to impose the death penalty. 536 U.S. at 609 (overruling Walton v. Arizona, 497 U.S. 639, 110 S. Ct. 3047, 111 L. Ed. 2d 511 [1990]). Under Ring, all facts necessary for imposition of the death penalty must be found by a jury beyond a reasonable doubt. 536 U.S. at 602, 609.
Resolution of this issue therefore hinges on whether the fact Cheever was at least 18 years of age at tire time of the crime is a fact necessary for imposition of the death penalty. Cheever argues that it is, relying primarily on Roper v. Simmons, 543 U.S. 551, 578, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005) (“The Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed.”). Cheever points out that Roper held that being 18 years or older at the time of the offense is an eligibility requirement for the death penalty. 543 U.S. at 574 (18 is “the age at which the line for death eligibility ought to rest”). Moreover, he notes, the Court specifically rejected the suggestion that youth should be con sidered as a mitigating factor on a case-by-case basis and instead “[drew] tire line at 18 years of age” as a “categorical rule[].” 543 U.S. at 574.
Cheever also points to K.S.A. 21-4622 of our capital sentencing statutes. That statute provides:
“Upon conviction of a defendant of capital murder and a finding that the defendant was less than 18 years of age at the time of the commission thereof, the court shall sentence the defendant as otherwise provided by law, and no sentence of death or life without the possibility of parole shall be imposed hereunder.”
Cheever contends that under this statute, it is a prerequisite to the imposition of the death penalty that the defendant be 18 years of age or older at the time the capital murder offense was committed.
Cheever also cites our Jessica’s Law cases. In them, we addressed the question of age as an element of the offenses designated for enhanced sentencing under K.S.A. 21-4643 (requiring life sentence with mandatory minimum of 25 years for a defendant convicted of specified offenses and who was at least 18 years old at the time of the offense). Applying Apprendi, we have held that when a defendant is charged with tire more serious off-grid version of the crime subject to enhanced sentencing, the defendant’s age at the time of the offense is a fact that must be submitted to the jury and proved beyond a reasonable doubt. See State v. Gonzales, 289 Kan. 351, Syl. ¶ 11, 212 P.3d 215 (2009); State v. Bello, 289 Kan. 191, Syl. ¶ 4, 211 P.3d 139 (2009); State v. Momingstar, 289 Kan. 488,495, 213 P.3d 1045 (2009); State v. Reyna, 290 Kan. 666, 676, 234 P.3d 761 (2010).
Tying these together, Cheever argues that because the death penalty cannot be imposed unless the defendant was at least 18 years old at tire time the crime of capital murder was committed, the defendant’s age is a fact necessary to the imposition of a death sentence, just as a defendant’s age at tire time of the offense is a fact necessary to the imposition of the enhanced sentencing provision of Jessica’s Law. Therefore, the Sixth Amendment requires that the fact that he was at least 18 years old at the time of the crime be submitted to and found by a jury beyond a reasonable doubt.
The State responds that the defendant’s age is not within the scope of Apprendi because it is not a fact that increases the statutory maximum sentence. According to the State, death is the maximum authorized sentence under our capital sentencing statutes, with the defendant’s age merely a fact that mitigates that sentence to life in prison. The State cites K.S.A. 21-4622, which provides that upon a finding that the defendant was “less than” age 18, the defendant shall not be sentenced to death. The State argues that because the finding as to the defendant’s age does not increase the severity of the maximum sentence, it is not a fact that must be found by a jury beyond a reasonable doubt.
We deem the State’s arguments unpersuasive. First, we disagree that death is the maximum authorized sentence. The statutory maximum penalty for Sixth Amendment purposes is determined by the facts reflected by the jury’s verdict. Ring, 536 U.S. at 602 (the Sixth Amendment prohibits exposing a defendant “ ⅛ a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.’ ” Under K.S.A. 21-4624(e), life in prison without parole—not death—is the maximum sentence that can be imposed based solely on a jury’s verdict finding a defendant guilty of capital murder. K.S.A. 21-4624(e) (“the defendant shall be sentenced to life without the possibility of parole” unless “by unanimous vote, the jury finds beyond a reasonable doubt that one or more of the [statutory] aggravating circumstances . . . exist and, further, that the existence of such aggravating circumstances is not outweighed by any mitigating circumstances which are found to exist”).
Second, the Supreme Court in Roper explicitly rejected the idea that the Eighth Amendment could be satisfied by treating the defendant’s youth as a mitigating circumstance. Instead, the Court drew a bright line, holding that the age of 18 or older is a requirement for death eligibility. 543 U.S. at 574.
Third, under our statutory scheme, the fact the defendant was at least 18 is a prerequisite to imposition of the death penalty. Although K.S.A. 21-4622 refers to a finding that the defendant was under age 18, it is clear that a capital sentencing proceeding does not even occur if a defendant is found to be less than 18 years of age at the time of the commission of the capital murder. See K.S.A. 21-4624(b) (“Except as provided in K. S.A. 21-4622 . . . upon conviction of a defendant of capital murder, the court, upon motion of the county or district attorney, shall conduct a separate sentencing proceeding to determine whether tire defendant shall be sentenced to death.” [Emphasis added.])
Accordingly, we conclude that the fact the defendant was at least 18 years old at the time of the crime is a fact necessary to subject the defendant to the death penalty and therefore within the scope of Sixth Amendment protection.
Because we are addressing this issue only for guidance on remand, we need not address Cheever s arguments that dre same conclusion is dictated by our Jessica’s Law jurisprudence. We hold only that it is required by Ring and Roper. Similarly, we need not decide whether the failure to instruct the jury to find the defendant’s age was harmless under the facts of this case. See State v. Colston, 290 Kan. 952, 975, 235 P.3d 1234 (2010) (citing Reyna, 290 Kan. 666, Syl. ¶ 10) (harmless error analysis applies to error in omitting element of defendant’s age where age was uncontested and supported by overwhelming evidence).
Additionally, we decline to address, and express no opinion on, whether the lack of a jury finding that Cheever was at least 18 years of age at the time of the crime is a determination on the sufficiency of the evidence for purposes of double jeopardy. Cf. State v. Hernandez, 294 Kan. 200, 209-10, 273 P.3d 774, 780 (2012) (declining to address whether an Apprendi error in a noncapital case is equivalent to a determination that the evidence was insufficient to support the conviction for double jeopardy purposes when the issue was not raised, briefed, or argued on appeal). As we noted in Hernandez, the parties are free to raise such an issue on remand. 294 Kan. at 211.
V. Penalty-phase Instructions on Mitigating Circumstances
State v. Kleypas contained the following directive concerning instruction of juries on mitigating circumstances in death penalty cases:
“[A]ny instruction dealing with the consideration of mitigating circumstances should state (1) they need to be proved only to the satisfaction of the individual juror in the juror’s sentencing decision and not beyond a reasonable doubt and (2) mitigating circumstances do not need to be found by all members of the jury in order to be considered in an individual juror’s sentencing decision.” 272 Kan. 894,1078, 40 P.3d 139 (2001).
The penalty-stage jury instructions in this case did not state that mitigating circumstances need not be proved beyond a reasonable doubt. Cheever argues that as a result, the instructions did not conform to Kansas law.
We note that the instruction at issue followed PIK Crim. 3d 56.00-D (2003 Supp.). That pattern instruction did not conform to our directive in KLeypas. In 2008, PIK Crim. 3d 56.00-D was amended to inform the jury that mitigating circumstances do not need to be proved beyond a reasonable doubt. In any retrial of this case, the most current version of the PIK Crim. 3d instructions on mitigating evidence should be used.
VI. Mercy Instruction
Cheever challenges the mitigating circumstances instruction on another ground, specifically, the following part:
“Mitigating circumstances are those which in fairness may be considered as extenuating or reducing the degree of moral culpability or blame or which justify a sentence of less than death, even though they do not justify or excuse the offense.
“The appropriateness of exercising mercy can itself be a mitigating factor in determining whether the State has proved beyond a reasonable doubt that the death penalty should be imposed.”
Cheever argues that by characterizing mercy as a mitigating circumstance and placing it in the context of the weighing equation, the instruction prevents the jurors from being able to give full effect to mercy as a basis for a sentence less than death, in violation of the Eighth Amendment. Cheever argues that the jurors must be allowed the opportunity to extend mercy and impose a life sentence after determining that the mitigators do not outweigh the aggravators and death is the appropriate sentence by law. He suggests the following language would properly allow jurors who choose to exercise mercy to give effect to that decision:
“Whether or not the mitigating circumstances outweigh the aggravating circumstances, you may recommend mercy for the Defendant and sentence him to life imprisonment.”
This same argument was made and rejected in Kleypas:
“Kleypas argues that while the instruction introduces die concept of exercising mercy to the jury, it does so in a legally insufficient manner. Kleypas argues that mercy, if it is to be exercised, must be exercised only after the jury has weighed aggravating and mitigating circumstances and determined that a sentence of death is warranted. According to Kleypas, only after the jury has decided that Kleypas should be put to death can it truly exercise mercy and instead impose a nondeath sentence, thus mercy itself should not be characterized as a mitigator.” 272 Kan. at 1035-36.
We found the argument was not persuasive. First, we held the defendant was not entitled to a mercy instruction under federal or state law:
“[T]he United States Supreme Court has held that the Eighth Amendment requires two things of a death sentence: (1) The sentencer must not have unbridled discretion in determining tire fate of the defendant, and (2) the defendant must be allowed to introduce any relevant mitigating evidence of his character or record or circumstances of the offense. California v. Brown, 479 U.S. 538, 541, 107 S. Ct. 837, 93 L. Ed. 2d 934 (1987). A mercy instruction per se is simply not required as part of this equation by federal or state law, nor is a specific type of mercy instruction.” 272 Kan. at 1036.
Second, we held that the instruction, as given, properly and adequately informed the jury of the role of mercy in the weighing process. 272 Kan. at 1036.
Cheever argues, however, that the United States Supreme Court’s decision in Marsh, 548 U.S. 163, provides grounds for reconsideration of that holding in Kleypas. According to Cheever, the Court’s interpretation of the weighing process as the decision for life or death and its recognition that Kansas’ mercy instruction “ ‘eliminate[s] the risk that a death sentence will be imposed in spite of facts calling for a lesser penalty,’ ” provides new support for his argument. Neither party mentions that in Scott, we addressed and rejected this argument, concluding that nothing in Marsh required such an instruction:
“We do not find Scott’s arguments to support additional instructions persuasive. Kansas v. Marsh cannot be read to require an additional step beyond weighing. In fact, the United States Supreme Couit specifically reasoned a decision that the aggravating and mitigating factors are in equipoise is a decision supporting imposition of the death penalty[.]” 286 Kan. at 98.
Cheever’s argument is the same argument we considered and rejected in Kleypas, and his further argument that the Marsh decision justifies a different conclusion was resolved against him by our decision in Scott. Cheever offers nothing new to support revisiting the decisions in those cases.
VII. Prosecutorial Misconduct During Penalty Stage
Cheever contends that certain comments concerning consideration of mitigating circumstances made by the prosecutor during the penalty-stage closing argument constitute prosecutorial misconduct.
The first comment at issue was made during the State’s closing argument rebuttal:
“Ladies and gentlemen, let’s start off by looking at these mitigating circumstances offered to you by the defendant, which Judge Ward has contained in the instructions. First of all, it’s important to remember that these are contentions only. The judge, by instructing you about these, is not suggesting to you that they are true. What he’s telling you is that die defendant has put diese before you, you can consider them if you choose, hut you don’t have to. Or you can give them as little weight as you choose to give them.” (Emphasis added.)
Cheever contends the highlighted remark told the jury that it did not have to consider mitigating circumstances. Cheever argues that because the Eighth Amendment is violated when a capital sentencing jury is precluded from considering relevant mitigating evidence that might serve as a basis for a life sentence, the remark was improper.
The Eighth Amendment’s concern for “ ‘reliability in the determination that death is the appropriate punishment in a specific case” requires that a capital sentencing jury not be precluded from considering and giving effect to mitigating evidence offered by a defendant as a basis for a sentence less than death. Penry v. Lynaugh, 492 U.S. 302, 328, 1095 S. Ct. 2934, 106 L. Ed. 2d 256 (1989) (quoting Woodson v. North Carolina, 428 U.S. 280, 305, 96 S. Ct. 2978, 49 L. Ed. 2d 944 [1976]). In Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978), the Supreme Court considered an Ohio death penalty statute that allowed only three specific factors set out in the statute to be considered in mitigation. The Court held that under its decisions in Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976), Proffitt v. Florida, 428 U.S. 242, 96 S. Ct. 2960, 49 L. Ed. 2d 913 (1976), and Jurek v. Texas, 428 U.S. 262, 96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976), to satisfy the Eighth Amendment’s individualized sentencing requirement, “a death penalty statute must not preclude consideration of relevant mitigating factors.” 438 U.S. at 608. The Court explained:
“[A] statute that prevents the sentencer in all capital cases from giving independent mitigating weight to aspects of the defendant’s character and record and to circumstances of tire offense proffered in mitigation creates the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty. When tire choice is between life and death, that risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments.” Lockett v. Ohio, 438 U.S. at 605.
Although Lockett involved a statute, it applies “whether the barrier to the sentencer’s consideration of all mitigating evidence is interposed by statute,” by a trial court’s evidentiary ruling, by jury instructions, or by prosecutorial argument. Mills v. Maryland, 486 U.S. 367, 375, 108 S. Ct. 1860, 100 L. Ed. 2d 384 (1988). See also Ábdul-Kabir v. Quarterman, 550 U.S. 233, 259 n.21, 127 S. Ct. 1654, 167 L. Ed. 2d 585 (2007) (recognizing that prosecutorial argument that prohibits a jury from being able to consider relevant mitigating evidence can violate the Eighth Amendment).
It is important to understand the scope of the Lockett rule, however. It is violated only when the jury is prevented, as a matter of law, from considering mitigating evidence. Eddings v. Oklahoma, 455 U.S. 104, 113, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982). It does not prohibit a capital sentencing juiy from assessing the weight of mitigating evidence “and find[ing] it wanting as a matter of fact[.]” 455 U.S. at 113.
In Eddings, the sentencing court had determined that it could not consider the defendant’s evidence of his violent upbringing and resulting emotional problems as mitigation because it was not mit igating under the law. The Oklahoma Court of Criminal Appeals agreed, concluding that evidence must tend to provide a legal excuse for criminal conduct in order to be legally relevant to mitigation. In reversing the Oklahoma decision, the Supreme Court recognized the constitutional distinction between considering and rejecting relevant mitigating evidence based on the circumstances of the case and being legally precluded from or refusing to consider such evidence as a matter of law.
We recognized this distinction in Kleypas. Based on Eddings and subsequent cases, we held that a Lockett-based constitutional violation occurs only when the State “ ' “cut[s] off in an absolute manner” ’ ” tire sentencer’s consideration of mitigating evidence. 272 Kan. at 1074 (quoting Johnson v. Texas, 509 U.S. 350, 361, 113 S. Ct. 2658, 125 L. Ed. 2d 290 [1993]) (addressing defendant’s challenge to the mitigating circumstances instruction). Thus, we held it is constitutionally permissible for a prosecutor to argue, based on the circumstances of the case, that certain circumstances should not be considered as mitigating circumstances. 272 Kan. at 1102-03.
The prosecutor’s comment in this case was part of an argument drat the mitigating circumstances identified in the instructions were only contentions and, as such, the jury did not have to accept them as established simply because they were listed in the instructions. That comment was not an effort to “cut off in an absolute manner” the jury’s consideration of Cheever’s mitigating evidence. 272 Kan. at 1074. The larger argument, moreover, was consistent with the law and tire instructions. See PIK Crim. 3d 56.00-D (“The defendant contends that mitigating circumstances include, but are not limited to, the following . . . .”). See also K.S.A. 21-4624(e); PIK Crim. 3d 56.00-D (“The determination of what are mitigating circumstances is for you as individual jurors to decide under the facts and circumstances of the case.”). It was not improper.
Cheever raises the same claim concerning two other comments made during the State’s penalty-stage rebuttal argument. The first of these related to Cheever’s mitigating circumstance that he was exposed to drug use in the home:
“Now, perhaps there was marijuana use at the home. We don’t contend there wasn’t. But what it boils down to, ladies and gentlemen, is that a mitigator, is that a mitigator which is sufficient to outweigh the aggravating factors we put before you? Marijuana use in the home, that’s a bad thing. No question about it. But does that, as Mr. Evans sízí/[s], excuse what he did? Is that—does that outweigh the aggravating factors? We contend it does not and it cannot.” (Emphasis added.)
The second comment concerned Cheever s mitigating circumstance that he “was addicted to methamphetamine and he was under its influence at the time of the crime.” The prosecutor argued:
“The defendant tells us he was addicted to methamphetamine, and that’s the reason, that’s a mitigator. Well, tell that to Robert Sanders ‘cause he wasn’t on methamphetamine that night. Now, you’ve already decided methamphetamine did not play a role in the capital murder of Matt Samuels. And you should reject it now, too.”
Cheever argues these comments told the jury that it did not have to consider mitigating evidence if it did not excuse the crime or have a causal link to the crime. In support, Cheever relies on Kley-pas, where we held: “A prosecutor who argues that mitigating circumstances must excuse or justify the crime improperly states the law.” 272 Kan. at 1103.
The prosecutor in Kleypas made several arguments, discussed at length in the opinion, which we found violated this rule. We reached a different conclusion on a similar claim in Scott. There, we acknowledged that while there was some suggestion in the comments that the defendant’s “mental illness did not excuse his culpability,” read in context, the comments were an argument “that [the defendant’s] mental illness was not as severe as he made it out to be, because it did not prevent’ him from committing the crimes.” 286 Kan. at 118.
The difference between the outcomes in Kleypas and Scott lies in the distinction recognized in Eddings: comments that cut off in an absolute manner the jury’s consideration of certain mitigating evidence run afoul of Lockett, but comments that the defendant’s mitigating evidence is entitled to little or no weight based on the circumstances of the case are constitutionally permissible. 272 Kan. at 1074.
Addressing the “excuse” comment first, we find the comment, considered in context, was permissible. As with the comments in Scott, there is some suggestion in the remark that marijuana use in the home did not excuse Cheever’s culpability. See Scott, 286 Kan. at 118. That remark, however, was followed with: “[D]oes that outweigh the aggravating factors? We contend it does not and it cannot.” Viewed in context, the prosecutor’s comments did not tell the juiy that to be considered in mitigation, evidence of the marijuana use in the home had to excuse or justify tire crime as a matter of law. Instead, the remarks were directed at the weight the jury should give that evidence in deciding whether the mitigating circumstances outweigh the aggravating factors.
Cheever argues that the comment “tell that to Robert Sanders ‘cause he wasn’t on methamphetamine that night,” improperly suggested that his mitigation evidence had to have a causal link to the crime in order to be considered. We disagree. Viewed in context, tire comment was part of the State’s argument addressing evidence concerning a specific mitigating circumstance: that Cheever was under the influence of methamphetamine at the time of crime. We note that that particular mitigating circumstance alleged a causal relationship between the crime and methamphetamine use. Cheever cannot now complain if the State responded to that contention. In any event, the Eddings distinction is determinative. The point of the prosecutor’s comment was simply that because the evidence showed Cheever committed a violent criminal act when he was not under the influence of methamphetamine, the jury should give little weight to Cheever’s mitigating circumstance that he was under the influence of methamphetamine at the time of the crime. As such, it was not improper.
The last comment at issue concerned the jury’s rejection of Cheever’s voluntary intoxication defense in the guilt stage: “[Y]ou’ve already decided methamphetamine did not play a role in the capital murder of Matt Samuels. And you should reject it now.” According to Cheever, this remark suggested to the jury that because it rejected the voluntary intoxication defense at the guilt stage, it could reject Cheever’s mitigating circumstance that he was under tire influence of methamphetamine at the time of the crime. Although the prosecutor said “you should reject it,” the remark crossed the line between comment on the weight of the evidence as it relates to specific mitigating circumstances and argument to the jury that it could not consider a mitigating circumstance as a matter of law. Not only is such an argument an incorrect statement of the law, it could lead a juror to refuse to consider legally relevant mitigating evidence, in violation of the Eighth Amendment. We strongly suggest the State avoid this argument on remand.
The convictions and sentences for manufacture of methamphetamine and criminal possession of a firearm are affirmed. The convictions for capital murder and attempted capital murder are reversed, and the case is remanded for a new trial.
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On December 8, 2006, this court suspended the respondent, Joseph M. Laskowsld, from the practice of law in Kansas for an indefinite period of time. See In re Laskowski, 282 Kan. 710, 147 P. 135 (2006). Before reinstatement, tire respondent was required to pay tire costs of the disciplinary action, comply with Supreme Court Rule 218 (2011 Kan. Ct. R. Annot. 379), and comply with Supreme Court Rule 219 (2011 Kan. Ct. R. Annot. 380).
On August 9,2011, the respondent filed a petition with this court for reinstatement to tire practice of law in Kansas. The petition was referred to the Disciplinary Administrator for consideration by the Kansas Board for Discipline of Attorneys, pursuant to Supreme Court Rule 219. The Disciplinary Administrator affirmed that the respondent met all requirements set forth by the court.
The court, after carefully considering the record, accepts the findings and recommendations that the respondent be reinstated to the practice of law in Kansas.
It Is Therefore Ordered that the respondent be reinstated to the practice of law in the state of Kansas conditioned upon his compliance with the annual continuing legal education requirements and upon his payment of all fees required by .the Clerk of the Appellate Courts and the Kansas Continuing Legal Education Commission. When the respondent has complied with the annual continuing legal education requirements and has paid the fees required by the Clerk of the Appellate Courts and the Kansas Continuing Legal Education Commission, the Clerk is directed to enter respondent’s name upon the roster of attorneys engaged in the practice of law in Kansas.
It Is Further Ordered that this order of reinstatement of Joseph M. Laskowsld shall be published in the Kansas reports, and the costs of the reinstatement proceedings are assessed to the respondent.
Dated this 16th day of October, 2012. | [
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Denied.
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The opinion of the court was delivered by
Rosen, J.:
After a bench trial, Michael Trevon Lewis was found guilty of felony murder and aggravated robbery. Lewis received a hard 20 life sentence for the felony-murder conviction and a consecutive 61-month prison sentence for the aggravated robbeiy conviction. The district court also imposed lifetime parole for both convictions.
On direct appeal before this court, Lewis argues: (1) the State presented insufficient evidence to convict him of either felony murder or aggravated robbery; (2) he did not knowingly and voluntarily waive his right to a jury trial; (3) the district court erred in denying his motion to dismiss the charges against him based on the alleged destruction of potentially exculpatory evidence; (4) the district court erred in imposing lifetime parole in connection with the aggravated robbery conviction; and (5) the cumulative effect of the alleged trial errors deprived him of a fair trial.
Before focusing on these issues, we address whether the notice of appeal filed in this case was sufficient to confer jurisdiction on this court over all the issues Lewis raises on appeal. We- conclude that it was sufficient to confer jurisdiction over all the issues. Addressing the merits of tire issues, we agree with Lewis that the district court erred in imposing lifetime parole in connection with his aggravated robbery conviction. Thus, we vacate that portion of his sentence and remand for resentencing. But, we reject his other alleged errors and, accordingly, affirm his convictions.
Facts
Because Lewis challenges the sufficiency of the circumstantial evidence used to convict him of the charged crimes, a detailed recitation of the evidence presented at his bench trial is warranted.
Curley Tyler, the victim in this case, and his son, Eshawn, lived together at an apartment complex in Shawnee, Kansas. Tyler and Eshawn made their living by buying and selling automobiles. Sometime in early 2010, Lewis, a family friend, began renting a Mercedes Benz from Tyler. Later, the two reached an agreement where Lewis would begin making payments toward the purchase of the car.
During the evening of April 3,2010, the day before Easter, Tyler went out to dinner with his girlfriend, Sabrina Steen; Steen’s son, Ben; and Tyler’s nephew, Emmanuel. After dinner, the group, rid ing in Tyler s Cadillac Escalade, went to a church fundraiser for an acquaintance of Tyler s. After the fundraiser, the group stopped at a Walmart’ located near 1-435 and Shawnee Mission Parkway (close to Tyler s apartment) so Steen could purchase an Easter egg coloring kit.
While Steen shopped, Tyler and die others remained inside the Escalade. During this time, Tyler spoke on his cell phone with Lewis. Though Emmanuel could only hear Tyler s side of the conversation, Emmanuel said that the two men spoke about Lewis paying money he owed to Tyler for renting the Mercedes Benz. According to Emmanuel, Tyler tried to convince Lewis to bring the money to him in Shawnee, but Tyler ultimately agreed to meet Lewis in Grandview, Missouri.
The group eventually left Walmart and arrived back at Tyler s apartment. Once at the apartment, Tyler changed into different clothes and told Steen that he was going to take Emmanuel back to his home. Tyler then planned to meet Lewis so Lewis could pay him the money he owed for the car. After meeting Lewis, Tyler planned on stopping by his grandson’s house to deliver clothes to him for Easter services the next day and tiren planned on stopping by his brother Alfred’s house to cut Alfred’s hair.
Tyler and Emmanuel left tire apartment in Tyler’s Escalade sometime after 11 p.m. Shortly after they left, Tyler’s son, Eshawn, arrived back at the apartment. On the way to Emmanuel’s home, Tyler told Emmanuel that he was going to Grandview, Missouri, to pick up some money from Lewis and asked Emmanuel if he would go to Grandview with him. Emmanuel declined. Tyler eventually dropped Emmanuel off at his home sometime around 11:30 p.m. Ultimately, Tyler never delivered the clothes to his grandson nor did he ever arrive at Alfred’s house to cut his hair.
Because Tyler was late in returning to his apartment, Steen began calling his cell phone at around 1 a.m. on April 4 and proceeded to call Tyler’s phone numerous times throughout the night, but Tyler never answered his phone.
Cody Martin, a 13-year-old boy who lived with his mother in the same apartment complex as Tyler, had been up watching TV but was heading to bed when he heard “two loud metal clings.” Martin told a detective that he believed he heard the clings at around 2 a.m., but later testified at trial that he was not sure when he heard die sounds. He also was not positive whether he had heard two distinct sounds and conceded that it might have been one sound and its echo. Regardless, about 5 minutes after hearing the sounds, Martin looked out his bedroom window and saw what appeared to be a man sleeping inside a pearl white Escalade parked in front of Martin’s apartment. Martin said that the man’s body was lying between the two front seats of the Escalade.
Shanaya Kane, another resident of the apartment complex, arrived back at her apartment with her boyfriend sometime shortly after 4 a.m. As they pulled into Kane’s parking space, they noticed a pearl white Escalade parked in the next stall over. Kane did not recognize the vehicle.
At around 6 a.m., Steen woke Eshawn and told him that Tyler had not come home and was not answering his phone. Steen asked Eshawn to go look for Tyler. Eshawn called Tyler’s phone several times, but Tyler never answered his phone.
Eshawn looked out the front of the apartment and saw that Tyler’s Escalade was not parked in its usual spot. At approximately 6:45 a.m., Eshawn looked through a back window of the apartment and saw Tyler’s Escalade parked outside. Eshawn went outside and saw that Tyler’s body was lying inside the vehicle. Law enforcement responded to the scene shortly thereafter.
Tyler was found lying face down on the front passenger seat, his midsection draped over the console, and his legs positioned behind the driver’s seat. It was later determined that Tyler had suffered a single bullet wound to the back right of his head; the bullet exited near his left temple. The bullet was ultimately found between the frame of the front driver’s side door and the dashboard. On the floor mat in front of the rear passenger-side seat, investigators found a spent .10 millimeter shell casing.
Tyler’s bullet wound and subsequent blood splatter analysis indicated that Tyler was sitting upright in the front driver’s seat when he was shot and that whoever shot Tyler did so while sitting behind him and to his right.
Additional blood splatter analysis showed that Tyler, after being shot, remained in an upright position for an indeterminate amount of time. His body was then moved into the position it was found in—lying face down on the front passenger seat with the midsection draped over the center console and the legs extended behind the driver s seat. A large amount of blood pooled along the bottom of the front passenger door, eventually dripping out of the interior of the Escalade. One blood-flow pattern found outside the car suggested that the Escalade may have been moving after Tyler started bleeding; however, the detective performing the analysis could not definitively say whether this was so. Notably, a yaw mark on the parking lot surface near the front driver’s side tire indicated that the Escalade had made a hard right turn into the parking stall. The detective also indicated that based on blood transfer stains found on the driver’s seat, it was possible that someone else sat in the driver’s seat after Tyler’s body was moved.
Though Tyler was known for canying a large amount of cash (Eshawn believed that his father had approximately $3,000 in cash on him when he met Lewis) and a cell phone, neither cash nor a cell phone were found on Tyler or inside the Escalade. In fact, the pockets of his pants were found turned inside out as if someone had gone through them, and the cell phone holder clipped to the waist of his pants was empty.
After Tyler’s body was discovered, members of Tyler’s family began calling Lewis’ phone that morning, informing him of Tyler’s death and asking him whether he had met with Tyler the previous night. Michael Tyler, Tyler’s nephew and Alfred’s son, called Lewis, and Lewis told Michael that he had heard what had happened and was on his way to the apartment complex. Later, when Lewis failed to arrive at the apartment complex, Michael called Lewis again to ask where he was, and Lewis told him that people were threatening him. Notably, Lewis told Michael that he had met Tyler the previous night at Lewis’ mother’s house near Sixth and Parallel in Kansas City, Kansas, and that he had given Tyler some money.
At 12:35 p.m. on April 4, a police officer with the Shawnee Police Department called Lewis’ cell phone. Lewis never answered his phone, so the officer left a voice message asking him to contact the police so they could discuss Tyler s murder. Lewis never contacted police. Later, on April 7, 2010, law enforcement made a request to Sprint Nextel, Lewis’ cell phone carrier, to ping Lewis’ cell phone, i.e., determine which cell tower and tower sector the phone had recently used. Based on the information Sprint provided, law enforcement determined that the cell phone was pinging off of a tower and sector that serviced the area where Lewis’ mother’s house was located in Kansas City. That same day, a detective with tire Shawnee Police Department went to the house. As the detective looked inside the house for Lewis, the detective called Lewis’ cell phone, and a cell phone began ringing inside the house. Upon locating the phone, the detective took possession of it. Police also located the Mercedes Benz that Lewis had rented from Tyler at an apartment complex located in Kansas City, Kansas.
About a week after the homicide, members of Tyler’s family learned that Lewis was in Long Beach, California, and passed the information on to law enforcement. A detective with the Shawnee Police Department forwarded the information to police in Long Beach. On April 12, 2010, Long Beach police arrested Lewis. That same day, detectives with the Shawnee Police Department flew out to Long Beach to interview Lewis.
The detectives learned that Lewis, during his trip to California, had stopped in Las Vegas to visit his sister, Jessica McDonald. After interviewing Lewis, the detectives traveled from Long Beach to Las Vegas to speak with McDonald. McDonald confirmed that Lewis had stopped at her house on the way to California and that the two of them spoke for about an hour. During their conversation, Lewis told McDonald that he had nothing to do with Tyler’s murder.
Near the end of the detective’s interview with McDonald, she asked them whether Tyler had been robbed. At trial, McDonald claimed that she had asked the question because, during the interview, the detectives were continually asking her whether Lewis had given her any money. McDonald stated that Lewis only gave her $5.
After Lewis was taken into custody, prints of his fingers and palms were taken as well as a sample of his DNA. Lewis’ right palm print was found on the exterior of the Escalade’s rear driver’s side door. His left palm print was found on two different locations on the interior of the Escalade’s rear driver’s side door frame. His left thumb print was also found on the rear driver’s side door frame. Notably, prints of Lewis’ left palm and fingers were found on the interior handle of the rear passenger’s side door. The placement of the prints on the handle was consistent with Lewis using his left hand to reach across his body to open the rear passenger’s side door (evidence presented at trial established that Lewis is right handed). Finally, Lewis’ DNA was found on the interior manual lock mechanism of the front driver’s side door.
During the course of the investigation into Tyler’s murder, law enforcement obtained Tyler’s cell phone records from T-Mobile. These records showed that between 10:53 p.m. and 11:52 p.m. on April 3, 2010, Tyler’s phone pinged off cell towers that were along a route of travel consistent with moving east from Johnson County, Kansas, into Kansas City, Missouri, and then south on Highway 71 toward Grandview, Missouri. Notably, the last activity recorded for Tyler’s cell phone was an 11:52 p.m. call made to Lewis’ cell phone. In making Ais call, Tyler’s phone first pinged off Ae southeast side of a tower located at 5701 Longview Road in Kansas City, Missouri—-just east of Highway 71. When the call ended 3 minutes later, Tyler’s phone was pinging off the souAwest side of a tower located at 7205 Longview Road in Kansas City, Missouri—further east on Longview Road.
Lewis’ cell phone records from Sprint Nextel showed Aat he was contacted by Tyler numei'ous times on April 3, 2010.
• Lewis’ phone received a call from Tyler’s phone at 12:23 p.m. on April 3, 2010. Lews’ phone pinged off the north side of a tower located at 6111 East 129th Street in Grandview, Missouri—just east of Highway 71.
• At 5:11 p.m., Lewis’ phone received a call from Tyler’s phone. Lewis’ phone first pinged off the north side of the tower located at 6111 East 129th Street in Grandview. When the call ended, Lewis’ phone was pinging off the east side of a tower located at 12407 Grandview Road in Grandview.
• At 6:09 p.m., Lewis’ phone received a call from Tyler’s phone. Lewis’ phone pinged off the north side of the tower located at 6111 East 129th Street in Grandview.
• At 7:36 p.m., Lewis’ phone received a call from Tyler’s phone. Lewis’ phone pinged off the east side of the tower located at 12407 Grandview Road. When the call ended, the phone was pinging off the north side of the tower located at 6111 East 129th Street in Grandview.
• At 10:42 p.m., Lewis’ phone received a call from Tyler’s phone. Lewis’ phone pinged off the north side of the tower located at 6111 East 129th Street in Grandview.
• At 11:33 p.m., Lewis’ phone received a call from Tyler’s phone. Lewis’ phone pinged off the north side of the tower located at 6111 East 129th Street in Grandview.
• At 11:52 p.m., Lewis received a final call from Tyler. Again, this was the last call or activity recorded for Tyler’s phone. During tins call, Lewis’ phone pinged off the north side of the tower located at 6111 East 129th Street in Grandview.
After this call, Lewis’ phone called Kelcy Shackelford’s cell phone at 11:57 p.m. (Shackelford was a former girlfriend and high school classmate of Lewis’. The two were close friends. Phone records showed that they had been in contact with each other throughout the day on April 3.) During this phone call, Lewis’ phone pinged off the east side of the tower located at 12407 Grand-view Road in Grandview. Shackelford’s phone (a Verizon Wireless phone) pinged off of a tower located at 5301 Martha Truman Road in Grandview.
Records showed that Lewis and Shackelford continued to contact each other throughout the early morning, and showed which cell towers their respective phones used to complete each call.
• At 12:33 a.m. on April 4, 2010, Lewis’ phone called Shackelford’s phone. Lewis’ phone pinged off a tower located at 11308 Blue Ridge Boulevard— near the intersection of Blue Ridge Boulevard and Longview Road in Kansas City, Missouri. Shackelford’s phone pinged off the tower located at 5301 Martha Tinman Road in Grandview.
• At 12:36 a.m., Lewis’ phone received a call from Shackelford’s phone. Lewis’ phone pinged off the north side of the tower located at 6111 East 129th Street in Grandview. Shackelford’s phone pinged off the tower located at 5301 Martha Truman Road in Grandview.
• At 12:38 a.m., Lewis’ phone called Shackelford’s phone (the call lasted 13 seconds). During this call, Lewis’ phone pinged off the north side of the tower located at 6111 East 129th Street in Grandview. After Ais call ended, Shack-elford’s phone immediately called Lewis’ phone back. During this second call, Lewis’ phone pinged off Ae tower located at 11308 Blue Ridge Boulevard in Kansas City, Missouri. Shackelford’s phone pinged off the tower located 5301 Martha Truman Road during both calls.
• At 12:40 a.m., Lewis’ phone called Shackelford’s phone. Lewis’ phone again pinged off the tower located at 11308 Blue Ridge Boulevard in Kansas City. Shackelford’s phone pinged off the tower located at 5301 Martha Truman Road.
• Between 12:41 and 12:50 a.m., Lewis and Shackelford exchanged a series of text messages. Cell tower information for tire text messages was not collected.
• At 1:34 a.m., Shackelford’s phone called Lewis’ phone. Lewis’ phone first pinged off the north side of the tower located at 6111 East 129th Street in Grandview. When the call ended, Lewis’ phone was pinging off the southeast side of a tower located at 9801 Bunker Ridge Road in south Kansas City, Missouri. Shackelford’s phone again pinged off the tower located at 5301Mar-tha Truman Road.
• At 1:59 a.m., Shackelford!s phone called Lewis’ phone. Lewis’ phone first pinged off the north side of a tower located at 15400 Midland Drive in Shawnee, Kansas. When the call ended, Lewis’ phone was pinging off the northwest side of a tower located at Reynolds Lawn and Leisure, 12902 Shawnee Mission Parkway in Shawnee. Notably, this tower is just east of Tyler’s apartment complex and is risible from the complex. Furthermore, this is the same tower Eshawn Tyler’s cell phone (also a Sprint phone) pingéd off of later that morning when Eshawn was calling Tyler’s cell phone, attempting to locate him.
• During the 1:59 a.m. phone call, Shackelford’s phone first pinged off a tower located at 7700 Cottonwood Street in Lenexa, Kansas. When the call ended, Shackelford’s phone was pinging off a tower located at 6875 Mauer Road in Shawnee.
• At 2:09 a.m., Shackelford’s phone called Lewis’ phone. Though tower information for Lewis’ phone was not recorded by Sprint, records kept by Verizon showed that Shackelford’s phone pinged off the tower located at 6875 Mauer Road in Shawnee.
• At 2:11 a.m., Shackelford’s phone called Lewis’ phone. Again, tower information for Lewis’ phone was not recorded by Sprint. Verizon’s records showed that Shackelford’s phone again pinged off the tower located at 6875 Mauer Road in Shawnee.
• At 2:35 a.m., Shackelford’s phone made an outgoing call. The phone pinged off of a tower located at 6415 State Avenue, Kansas City, Kansas.
The next time cell tower information was recorded for Lewis’ phone was at 8:04 a.m. on April 4 when he made an outgoing call. His phone pinged off the north side of the tower located at 6111 East 129th Street in Grandview, Missouri.
After Shackelford’s 2:35 a.m. phone call, tire next activity recorded on her phone was an outgoing call made at 8:28 a.m. The phone pinged off the tower located at 5301 Martha Truman Road in Grandview, Missouri.
Notably, the cell phone records obtained by law enforcement for Lewis’ phone documented activity between March 21 and April 7, 2010. The records showed that the only time Lewis’ phone ever pinged off of the towers located at 15400 Midland Drive and 12902 Shawnee Mission Parkway was when he received a call from Shack-elford at 1:59 a.m. on April 4.
Because cell phone records showed that Lewis and Shackelford contacted each other numerous times between the late evening and early morning hours of April 3 and 4, 2010, detectives witii the Shawnee Police Department contacted Shackelford and spoke with her at her home in Kansas City, Kansas, on April 12. Initially, Shackelford claimed that the last time she spoke with Lewis was prior to the Easter weekend. But after the detectives informed her that phone records showed that she was in contact with Lewis multiple times between April 3 and 4, she admitted to speaking with him during that time period.
When asked about her activities during the late evening and early morning hours of April 3 and 4, Shackelford said that she was out “clubbing.” She could not, however, recall any names of places she went to that night or identify any people that she had been with or seen. She denied seeing Lewis that night. When asked whether she was in Kansas or Missouri that night, Shackelford said Missouri. A detective then asked Shackelford what she was doing in Shawnee at 1:59 a.m. on April 4. Shackelford answered that she was clubbing. Shackelford’s 1999 Pontiac Grand Am was subsequently taken into custody and the interior was examined for the presence of blood. All tests came back negative.
The State charged Lewis with alternative counts of first-degree premeditated murder and felony murder and charged him with one count of aggravated robbery. His case proceeded to a bench trial where the State, in addition to the above evidence, presented the testimonies of three cell phone company representatives and the testimony of an expert witness specializing in tracking cell phone activity.
Gavin Pinchback, T-Mobile’s representative, explained that a cell phone tower basically consists of a pole and three groupings of antennas surrounding it called sectors. When a cell phone malees or receives a call, it will generally ping off the tower with the strongest signal and ping off the tower sector which is facing the phone. Pinchback said that in most cases, a cell phone will ping off of the closest tower because that tower’s signal will likely be the strongest amongst the other towers in the area. Pinchback said that the range of T-Mobile’s towers is between ⅛ of a mile and 5 miles, depending on the specific tower and the conditions in the area at the time of the call.
Pinchback also indicated that when a phone pings off of two different towers during a single phone call, it most likely (but not necessarily) means that the phone is being moved during the phone call.
Pinchback indicated that the technology used to locate a phone for emergency purposes (e.g., when 911 is dialed on a cell phone) is much more accurate in determining that phone’s location than compared to simply looking at records showing what towers and sectors a cell phone pinged off of during a particular call. Pinchback noted, however, that the technology used to pinpoint a cell phone’s exact location can only be used when the phone is currently in use.
On cross-examination, Pinchback conceded it was possible that a cell phone could ping off a tower’s sector that is not facing tire direction of where the cell phone is located. Subsequently, the following exchange took place:
“Q. [DEFENSE COUNSEL] Is it also possible that a cell phone would skip the tower close to it and connect with another tower which is not geographically closest to the phone?
“A. [PINCHBACK] Yes, that is possible.
“Q. In light of that I would assume, then, that this sort of fashion is land of rudimentary in terms of being a reliable way to actually determine someone’s location. Would that be a fair statement?
“A. Okay. Yes.
“Q. The strongest signal from a tower doesn’t necessarily mean that the tower is tire closest tower based upon your testimony; correct?
“A. That is correct,”
Jennifer Scheid, the subpoena specialist and custodian of records for Sprint Nextel, testified that in the Kansas City area, Sprint’s cell phone towers have a range of between 2 and 10 miles, depending on location. In more urban areas, the range would be closer to 2 miles, and in more rural areas, the range would be up to 10 miles.
On cross-examination, Scheid stated that when a phone call is placed, the tower providing the strongest signal in relation to the cell phone would be the tower that handles the call. She conceded that the tower with the strongest signal would not necessarily be tire one that is closest to the cell phone. Scheid also said that a cell phone could ping off a tower s sector that is not facing the direction of where the cell phone is located.
Brett Diebolt, the records custodian for Verizon Wireless, explained that a cell phone will ping off the tower closest to it depending on network availability. He noted that 2 a.m. is generally not a high-traffic time for Verizon’s network. He also said the potential range of Verizon’s towers is between 3 and 5 miles.
Diebolt acknowledged on cross-examination that simply looking at records showing which tower and sector a cell phone pinged off of during a phone call will not give you the exact location of where the cell phone was during the call. Accordingly, the best approximation he could give regarding the location of Shackelford’s cell phone during the calls at issue was that the phone was within 3 to 5 miles of each tower that it pinged off of during the calls.
John Hauger, a special agent with the Federal Bureau of Investigation and member of its Cellular Analysis Survey Team (CAST), testified for the State. Hauger said that CAST members “are experts in the field of cellular technology, either in historical cell site analysis, or in geographical] location of cell phones which is a fancy way of saying finding a cell phone.” He further said that he had experience in performing a historical plotting of call detail records.
Hauger explained how a cell phone works:
“Cell phones are basically a two-way radio. I think we all had them when we were ldds; talks back and forth to a tower. The tower authenticates who it’s talking to. So, you know—so, the tower knows your phone is indeed a paying customer. Each tower[] is divided up into three separate sectors, and the—part of the phone will go to the tower/sector which it—which has the strongest signal. So, your phone, everybody’s phone, as I said earlier, is constantly scanning their environment, looking for the best signal, and your phone knows where to go when you make a call or when you receive a call. So, your cell phone as we speak, if your cell phone’s on here now in Court, it’s looking for the closest tower—excuse me, the strongest tower, which most of the time is the closest.”
Hauger said that the only thing that really affects a cell network is some land of big event which causes many people to use their cell phones at once, such as reacting to a disaster. He indicated that mornings and evenings—times when people are normally using their phones—would not generate the volume of usage that would affect the coverage of a cell phone tower. Hauger said that the early morning hours of April 4, 2010, would not have been a high usage time for a cell tower.
Hauger reviewed Lewis’ cell phone records and plotted out on a map which towers and sectors the phone pinged off of between 12:38 a.m. and 8:04 a.m. on April 4, 2010. Hauger noted that between 12:38 a.m. and 1:35 a.m., Lewis’ phone pinged off of three different towers located along Highway 71 near Grandview, Missouri. Then, between 1:59 and 2 a.m., Lewis’ phone pinged off of the two towers in Shawnee, Kansas. Hauger stated going normal highway speeds, the distance between the tower that Lewis’ phone pinged off of at 1:35 a.m. and the tower his phone initially pinged off of at 1:59 a.m. could be traveled within 25 minutes.
Using software that allowed him to determine the range of a cell phone tower while driving in the area, Hauger identified on a map the two areas in Shawnee where a Sprint cell phone would have to be in order to ping off the two Sprint towers Lewis’ phone pinged off of during the 1:59 a.m. phone call. Notably, both areas are near Tyler’s apartment complex.
Hauger noted that a cell phone will use different towers to stay connected as it is being moved through an area. Based on the results of his driving test, he concluded that Lewis’ phone was being moved during the 1:59 a.m. call.
Hauger was specifically asked whether a cell phone located in Grandview, Missouri, during the early morning hours of April 4, 2010, would have pinged off the towers located at 15400 Midland Drive and 12902 Shawnee Mission Parkway. Hauger said no.
During cross-examination, Hauger said that it was possible, but unlikely, that a cell phone would ping off a tower sector that was not facing in the direction of where the cell phone was located. In order for the phenomenon to occur, Hauger said that there would have to be some obstacle—like a large building—to refracture the radio waves. Hauger noted that there were no large structures in die Shawnee area surrounding the two towers that would have caused radio waves to refracture.
Konstantino Dimitrelos, the owner of Cyber Forensics 360 (a company that provides cyber forensics, cellular forensics, and cellular triangulation services), testified as an expert witness for Lewis.
Dimitrelos reviewed Lewis’ cell phone records, which he referred to as cellular historical data reconstruction records or CHDR records for short. He said CHDR records show “call patterns and vicinity or approximating where a phone can be but defining where a phone cannot be.” He later added that CHDR records are never accurate for locating a phone, but they are excellent in determining where a phone is not.
Notably, Dimitrelos stated that it would be misleading or even false to say that any particular cell phone tower services a particular location. But on cross-examination, Dimitrelos seemed to contradict himself when he indicated that based on CHDR records showing which tower and sector a cell phone pinged off of during a call, he could determine the general location of where the phone was at during the call based on the area serviced by the tower and sector.
Dimitrelos testified that a cell phone is always communicating with three separate towers and will ultimately use the tower with tire strongest signal to place a call. He stated that numerous things—physical structures, waterways, the weather, the distance from a tower—determines a cell phone’s ability to connect with a specific tower. Dimitrelos indicated, however, that network traffic would not have been an issue during the late evening and early morning hours of April 3 and 4.
Dimitrelos said it was completely normal for a cell phone to ping off two different towers during a single phone call—a phenomenon which he stated does not necessarily result from the phone being moved during the call. Dimitrelos did not find it remarkable or unusual that Lewis’ phone pinged off two different towers during the 1:59 a.m. call with Shackelford. Dimitrelos also indicated that it would be possible for a cell phone located inside a store on the north side of Shawnee Mission Parkway to ping off of the two towers that Lewis’ phone pinged off of during the 1:59 a.m. call.
On cross-examination, Dimitrelos indicated that he had used the same software and testing method employed by Agent Hauger to determine where a cell phone would have to be in order to ping off a particular tower and sector. Notably, during Dimitrelos’ cross-examination, he was shown a print out of a webpage from his company’s website. The print out was introduced into evidence. The webpage states that “[o]nce the CDR and tower information is obtained, mapping diagrams are produced related to specified call activity.” The webpage shows an example of using cellular reconstruction to denote on a map “a direction of travel or movement based on call patterns and sector activity.”
Dimitrelos conceded drat the cell phone tower information in this case was not overlooked and that the in-field environmental survey referenced on his company’s website was the same methodology employed by Agent Hauger in preparing his report. In fact, Dimitrelos conceded that the information on his company’s website supported “the veiy methodologies and the mechanisms that Agent Hauger used in this case.”
Lewis testified at his trial and specifically denied killing Tyler, who he considered a friend. Lewis said that in April 2010, he was living by himself in an apartment on the “borderline” between Kansas City, Missouri, and Grandview, Missouri. When asked, Lewis could not remember the address to his apartment. Lewis said that he would also occasionally stay at his mother’s house and at the house of one of Tyler’s nephews.
Lewis said he earned money by being a care provider for his grandmother, gambling, and selling marijuana and cocaine. Lewis said that he was a member of a drug dealing enterprise headed by Tyler and that Tyler supplied him with drugs to sell. Notably, when law enforcement searched Tyler and Eshawn’s apartment, they found a ziplock-type bag containing nine individually-wrapped bags full of a green leafy substance that they believed was marijuana. Additionally, Kiarah Carter, an acquaintance of Lewis’, testified that she had purchased marijuana from Lewis in the past and that he had informed her that Tyler and his sons were his suppliers.
In an apparent attempt to explain why his DNA was found on the manual lock mechanism of the Escalade’s front driver’s side door, Lewis testified that he had rented Tyler’s Escalade on five separate occasions between November 2009 and March 2010. Specifically, Lewis claimed that for his birthday on November 7,2009, he rented the Escalade from Tyler. Lewis said that he and his friend, Daniel Rowe, went out that night in the Escalade and eventually had sex with two women inside the vehicle. Rowe testified at trial and corroborated Lewis’ story. Furthermore, Lewis’ sister, McDonald, testified that in November 2009, she remembered Lewis driving an Escalade. Lewis told her that he had rented the vehicle for his birthday. Furthermore, Carter said that sometime in late February or early March 2010, she and her sister went to dinner with Lewis. Carter said that Lewis drove Tyler’s Escalade to the dinner.
Lewis also said that on March 27, 2010, he rode in the Escalade with Eshawn Tyler and others to and from a party in Lawrence. Lewis said at a couple points during the evening, he sat in the driver’s seat of the Escalade and may have touched the driver’s side door. But when Eshawn testified at trial, he denied that Lewis rode in the Escalade during the evening of March 27. He also said that Tyler was very particular about whom he would allow to drive the Escalade. Eshawn specifically said that his father never let Lewis drive the Escalade.
Steen, Tyler’s girlfriend, and Alfred, Tyler’s brother, both stated that Tyler never rented his Escalade, and Alfred said that he never recalled seeing Lewis in the Escalade. Emmanuel, Tyler’s nephew, said that he was not aware of his uncle ever renting the Escalade to Lewis. Finally, when police spoke with Lewis’ friend, Rowe, on April 9, 2010, he claimed that the only vehicle he was aware of Lewis driving the month prior to Tyler’s murder was a silver Mercedes Benz.
Regardless of whether Lewis had access to the Escalade prior to April 3 and 4, the State presented evidence to suggest that any DNA left by Lewis inside the vehicle would have been removed prior to Tyler’s murder. Numerous witnesses testified that Tyler constantly cleaned the interior and exterior of his Escalade. In fact, David Lucas, an acquaintance of Tyler’s, said that he ran into Tyler at a car wash on April 2, 2010, and saw him cleaning the interior and exterior of the Escalade.
Lewis said that on April 3, 2010, he was supposed to meet Tyler in order to pay him back rent for the Mercedes Benz and to make a payment towards the purchase of the vehicle. In total, Lewis said he owed Tyler $1,300. According to Lewis, Tyler kept calling him throughout the day and putting off the time for their meeting. Eventually, Tyler, after making several phone calls to Lewis asking for directions to his apartment in Grandview, arrived at the apartment sometime between 11:30 p.m. on April 3 and 12 a.m. on April 4.
According to Lewis, Tyler remained sitting in his Escalade. In an apparent attempt to explain why his prints were found on the interior and exterior of the rear driver’s side door and on the interior handle of the rear passenger side door, Lewis stated that he entered the Escalade through the rear driver’s side door. Lewis explained that he did this because he could not tell whether someone was already sitting in the front passenger seat (the windows of the Escalade are tinted). After entering the Escalade, Lewis said that he realized that Tyler was by himself in the vehicle. Tyler told Lewis to get into the front passenger seat, so Lewis slid across the rear passenger seat, exited the vehicle through the rear passenger door, and got into the front passenger seat.
Lewis said that once he was sitting in the front passenger seat, he pulled his money out, counted out $1,300, and handed it over to Tyler. The two men then spoke briefly before Tyler left the apartment complex. Lewis said that shortly after Tyler left in the Escalade, he called Lewis again asking for directions. After giving Tyler directions, Lewis said that he left his apartment and went to a nearby club. He then proceeded to travel towards his mother’s house in Kansas City, Kansas, taking Highway 71 north to 1-435 West and eventually to 1-435 North.
In explaining why his cell phone pinged off of towers located at 15400 Midland Drive and 12902 Shawnee Mission Parkway in Shawnee when Shackelford called him at 1:59 a.m. on April 4, Lewis said that on his way to his mother’s house, he stopped at a gas station and at a Walmart located off of Shawnee Mission Parkway. Notably, the Walmart that Lewis claimed he stopped at was within the servicing area of the tower located at 15400 Midland Drive.
Lewis said that he eventually arrived at his mother’s house and picked up some clothes. He then traveled back to his apartment in Grandview and went to sleep. Lewis specifically denied ever seeing Shackelford that night. Later that morning, Lewis proceeded to receive numerous calls from Tyler’s relatives asking him about Tyler’s whereabouts. Lewis said that Tyler’s relatives eventually told him that Tyler had been murdered. Lewis said that the relatives started threatening him because they thought he was responsible for Tyler’s murder. (Other evidence presented at trial corroborated Lewis’ claim that he received threats from Tyler’s family.) Lewis said that he planned on traveling to Tyler’s apartment that morning, but Tyler’s brother, a pastor, called him and advised him against coming to the apartment complex due to the pastor’s fear that more violence would occur.
Because of the threats he was receiving from Tyler’s family, Lewis became concerned for his safety. He decided then to leave the Kansas City area on April 10 and travel to California. Lewis said that he planned on returning to the area once the murderer was caught and the situation cooled off.
Lewis said that he rented a car from a friend named B.J. for $300. Lewis said that his mom’s friend, Darnell, and two other people (Lewis was unable to remember their names) traveled with him in the rented car to California. Lewis said that after paying the money to rent the car, he had about $300 remaining for the trip. On the way to California, Lewis said that they stopped in Las Vegas to visit with his sister. During their brief visit, Lewis said that his sister asked for $5 so he gave her $5. Lewis said that he eventually arrived in Long Beach, California, where he stayed at his half-brother s father’s house for 2 days before being arrested by police.
On February 15, 2012, a few days after the bench trial concluded, the district court judge announced his verdict from tire bench, finding Lewis guilty of felony murder and aggravated robbery. In explaining his verdict, the district court judge stated:
“Murder cases often are proved by circumstantial evidence. The victim can’t testify. Unless there is a confession or an eyewitness, we have to rely on that other evidence. All of tire forensic evidence here was vigorously challenged, but the fingerprints, the DNA, die cell phone evidence, and die plotted movements of tiiose phones do not lie. I do not accept the defense’s alternative explanations for drat evidence. The substantial evidence of hiding and flight clearly support the State’s dieory of the case. Frankly I’m not convinced that robbery of a few thousand dollars was the only motive for diis murder. I am not convinced that Curly Tyler was shot at the exact location where the Escalade was found.
“But the evidence proves beyond a reasonable doubt that the defendant here, Michael Lewis, committed the crimes of first degree felony murder and aggravated robbery, and I find him guilty of those charges.”
On February 29, 2012, Lewis filed a motion for a new trial, arguing, among other things, that the evidence presented at trial was insufficient to convict him of the charged crimes and that he was denied “the opportunity for a fair trial and was denied the opportunity to have a trial to a jury ‘of his peers,’ requiring [him] to waive jury trial to avoid facing an all white or virtually all white jury panel.”
At sentencing on April 3, 2012, the district court denied Lewis’ motion for a new trial. The court then sentenced Lewis to a hard 20 life sentence for the felony-murder conviction and a consecutive 61-month sentence for the aggravated robbery conviction. In announcing Lewis’ sentence from the bench, the district court did not impose parole or postrelease supervision in connection to the felony-murder and aggravated robbery convictions, respectively. In the journal entry of judgment, however, the district court imposed lifetime parole for both the felony-murder and aggravated robbery convictions.
Lewis filed his notice of appeal with the district court on April 9, 2012. The notice of appeal states in its entirety: “COMES now Donald S. Smith, attorney for the defendant, and hereby files his Notice of Appeal as to the judgment and orders of this Court on the 3rd day of April, 2012.” The notice of appeal shows that Lewis signed it on April 3 and that a copy of the notice was emailed that same day to the prosecutor.
Sufficiency of Lewis’ Notice of Appeal
Because the language of Lewis’ notice of appeal seemed to suggest that Lewis was only appealing the district court’s judgment and orders made on April 3, 2012 (the date of Lewis’ sentencing), we issued an order to the parties asking them to be prepared to discuss at oral arguments whether the notice of appeal filed in this case was sufficient to confer jurisdiction on this court over all the issues Lewis raises on appeal. See State v. Richard, 300 Kan. 715, 728, 333 P.3d 179 (2014) (appellate court has duty to question jurisdiction on its own initiative). Determining whether an appellate court has jurisdiction raises a question of law over which the scope of appellate review is unlimited. State v. Brown, 299 Kan. 1021, 1027, 327 P.3d 1002 (2014).
At oral arguments, Lewis contended that the language used by trial counsel in the notice of appeal was ambiguous and should not be interpreted as referencing only issues arising at sentencing. Lewis argued that the phrase “judgment and orders” was broad enough to encompass both sentencing and nonsentencing issues and noted that the district court did rule on his motion for a new trial at sentencing, which raised nonsentencing issues. Accordingly, Lewis argued that the notice of appeal was sufficient to confer jurisdiction over all of the issues he raised on appeal. The State, commendably, agreed with Lewis’ argument.
We find that the entirety of the notice of appeal indicates that it was trial counsel’s intent to appeal both sentencing and non-sentencing issues. The phrase “judgment and orders” is broad enough to convey this meaning. Cf. State v. Coman, 294 Kan. 84, 89-91, 273 P.3d 701 (2012) (notice of appeal stated that defendant was appealing from “the sentence imposed” and specifically de scribed the subject matter of the appeal as the requirement that he register as a sex offender; because notice of appeal “did not even suggest that [defendant] was challenging his conviction,” court elected not to address nonsentencing issues, reasoning that “[although our appellate courts have, at times, liberally construed a notice of appeal to retain jurisdiction, one simply cannot construe a notice that appellant is appealing his or her sentence to mean that he or she is appealing the conviction”); State v. Wilkins, 269 Kan. 256, 270, 7 P.3d 252 (2000) (notice of appeal stated defendant was appealing from “ judgment of sentence’ ”; court accepted defendant’s argument that notice of appeal should have read “ judgment and sentence’ ” and, thus, found that notice of appeal was sufficient to confer jurisdiction on the Court of Appeals to determine nonsentencing issues raised in defendant’s appeal).
Furthermore, it appears that the phrase “on the 3rd day of April, 2012” is a misplaced modifier and that the notice of appeal should read: “COMES now Donald S. Smith, attorney for the defendant, and on the 3rd day of April, 2012, hereby files his Notice of Appeal as to the judgment and orders of this Court.” Though this reading seems somewhat strained, it is supported by the fact that Lewis signed the notice of appeal on April 3 and trial counsel emailed a copy that same day to the prosecutor. Accordingly, we believe that trial counsel meant to reference April 3, 2012, as the date he prepared and intended to file the notice of appeal and not as the date of the occurrences he wished to appeal on behalf of Lewis. Accordingly, we conclude that the notice of appeal filed in this case was sufficient to confer jurisdiction on this court over all the issues Lewis has raised on appeal.
Sufficiency of the Evidence
Lewis argues that the State failed to present sufficient evidence to show that he was the person who robbed and murdered Tyler.
When the sufficiency of the evidence is challenged in a criminal case, this court reviews the evidence in a light most favorable to the State to determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Frye, 294 Kan. 364, 374-75, 277 P.3d 1091 (2012). This standard applies to convictions arising from bench trials as well as those arising from jury trials. 294 Kan. at 374. An appellate court does not reweigh evidence, resolve conflicts in the evidence, or pass on the credibility of witnesses. State v. McCaslin, 291 Kan. 697, Syl. ¶ 8, 245 P.3d 1030 (2011). Furthermore, this court has recognized that there is no distinction between direct and circumstantial evidence in terms of probative value. State v. Evans, 275 Kan. 95, 105, 62 P.3d 220 (2003). “A conviction of even the gravest offense can be based entirely on circumstantial evidence and the inferences fairly deducible therefrom. If an inference is a reasonable one, the jury has the right to malee the inference.” McCaslin, 291 Kan. 697, Syl. ¶ 9.
The evidence presented at trial showed that Tyler left his apartment in Shawnee around 11 p.m. on April 3 and arrived at Lewis’ apartment in Grandview shortly before midnight. Tyler’s cell phone placed an outgoing call to Lewis’ phone at 11:52 p.m. During this 3-minute phone call, Tyler’s phone pinged off of towers in the south Kansas City area near Grandview and Lewis’ phone pinged off of a tower in the north part of Grandview. Based on Lewis’ testimony acknowledging that he met Tyler on the night of his murder sometime between 11:30 p.m. and midnight, it can be inferred that the two men met shortly after the 11:52 p.m. phone call ended—sometime around midnight on April 4.
Notably, the 11:52 p.m. call on Tyler’s phone was the last activity recorded for his phone. Additionally, after meeting with Lewis, Tyler had planned to drop off clothes at his grandson’s house and then go to his brother’s house to cut his hair. Tyler failed to complete either errand. All of this evidence suggests that something happened to Tyler around the time he met with Lewis.
Because Tyler’s body was discovered inside his Escalade— parked in an unusual spot behind his apartment—we know that, somehow, Tyler and his vehicle traveled from Grandview back to Shawnee. Based on Kane’s testimony (the resident of the apartment complex who saw the Escalade parked in the stall next to her parking spot) we also know that the Escalade was back at the apartment complex no later than 4 a.m.
Whether Tyler had died during his return trip from Grandview is unknown. Regardless, Lewis’ phone records and testimony established that after Lewis met with Tyler, Lewis also traveled from Grandview to Shawnee. Lewis’ cell phone records showed that after his 11:52 p.m. phone call with Tyler, he remained in the North Grandview/South Kansas City area for about 1½ hours. Then, during a 1:34 a.m. phone call from Shackelford, Lewis’ phone initially pinged off of a tower located at 6111 East 129th Street in Grand-view and then pinged off of tower further north at 9801 Bunker Ridge Road. The next time tower information was recorded for Lewis’ phone was at 1:59 a.m. when Shackelford called his phone. During diis phone call, Lewis’ phone first pinged off of a tower located at 15400 Midland Drive in Shawnee and then pinged off of another Shawnee tower located at 12902 Shawnee Mission Parkway. As mentioned above, the tower at 12902 Shawnee Mission Parkway is just east of Tyler’s apartment complex and can be seen from the complex. Furthermore, records showed that Eshawn’s cell phone pinged off of this tower when he tried calling Tyler’s cell phone later that morning. From this evidence, it can be inferred that, at the very least, Lewis was within the vicinity of Tyler’s apartment complex and, at the most, Lewis was at the apartment complex.
The forensic evidence discovered on and inside the Escalade tied Lewis to the crimes. As mentioned above, Lewis’ right palm print was found on the exterior of the rear driver’s side door. His left palm print was found on two different locations on the interior of tire Escalade’s rear driver’s side door frame. His left thumb print was also found on the rear driver’s side door frame. Prints of Lewis’ left palm and fingers were found on the interior handle of die rear passenger’s side door. The placement of die prints on the handle was consistent with Lewis using his left hand to reach across his body to open the rear passenger’s side door. Using his left hand to open the rear passenger’s side door would indicate that Lewis was holding something in his right hand (i.e., a gun) which prevented him from using that hand—his dominant hand and the one closest to the rear passenger’s side door—to open the door. Coincidentally, Tyler’s bullet wound and the subsequent blood splatter anal ysis—showing that Tyler was sitting upright in the front driver’s seat when he was shot—indicated that whoever shot Tyler did so while sitting behind him in the backseat and to his right.
Additional blood splatter analysis showed that Tyler, after being shot, remained in an upright position for an indeterminate amount of time. His body was then moved into the position it was found in—lying face down on the front passenger seat with the midsection draped over the center console and the legs extended behind the driver’s seat. The detective performing the blood splatter analysis indicated that based on blood transfer stains found on the driver’s seat, it was possible drat someone else sat in the driver’s seat after Tyler’s body was moved. Notably, Lewis’ DNA was found on the interior manual lock mechanism of the front driver’s side door.
Evidence also showed that Tyler was carrying a cell phone and a large amount of cash on the night he was murdered. But neither a cell phone nor cash were found on Tyler or inside the Escalade. In fact, tire pockets of Tyler’s pants were found turned out as if someone had gone through them, and Tyler’s cell phone holder— clipped to the waist of his pants—was found empty. When this evidence is considered in conjunction with: (1) Lewis’ finger and palm prints being found in the rear passenger compartment; (2) Lewis’ DNA being found on the manual lock mechanism of the front driver’s side door; (3) Lewis’ late night trip to Shawnee; and (4) Lewis’ subsequent trip to California after being contacted by police, it points to Lewis being the person who robbed and shot Tyler. See State v. Phillips, 295 Kan. 929, 947, 287 P.3d 245 (2012) (“Evidence of a defendant’s flight or attempted flight may be relevant to show both the commission of the acts charged and the intent and purpose for which those acts were committed.”).
Admittedly, Lewis denied killing Tyler and stated that after paying Tyler his money, Tyler left in his Escalade. Lewis also provided innocent explanations for (1) why his cell phone pinged off of towers located in the vicinity of Tyler’s apartment complex; (2) why his DNA and prints were found inside the Escalade; and (3) why he traveled to California after being contacted by police. Lewis points to this evidence as supporting his argument for why tire State did not present sufficient evidence to convict him of the crimes. Essentially, Lewis asks us to engage in a reweighing of the evidence and passing on fire credibility of witnesses—things which this court cannot do on appeal. See McCaslin, 291 Kan. 697, Syl. ¶ 8.
When the evidence presented at the bench trial is viewed in the light most favorable to the State, it shows that a rational factfinder could have found Lewis guilty of felony murder and aggravated robbery beyond a reasonable doubt. Accordingly, we conclude that the State presented sufficient evidence to convict Lewis of both crimes.
Jury Trial Waiver
Next, Lewis argues that he did not knowingly and voluntarily waive his right to a jury trial. He raised this issue before the district court in his motion for a new trial.
“Whether a defendant waived the right to a jury trial is a factual question, subject to analysis under a substantial competent evidence standard of review. But when the facts of the district court’s determination to accept a jury trial waiver are not disputed, the question whether the defendant voluntarily and knowingly waived the jury trial right is a legal inquiry subject to unlimited appellate review.” State v. Beaman, 295 Kan. 853, 858, 286 P.3d 876 (2012).
Applicable Facts
The parties do not dispute the pertinent facts related to the jury trial waiver. The record on appeal contains a 'Complete transcript of the pretrial motions hearing where Lewis’ waiver was discussed. At the hearing, the following exchange took place:
“THE COURT: The case was set for motions today. I think there is a motion to suppress at least on file. [Defense counsel], I guess I will ask you to start there.
“[DEFENSE COUNSEL]: Judge, I think just in terms of logistics, the first thing we probably ought to do would be to formally waive our right to jury trial in this case. I have talked with Mr. Lewis on many, many occasions regarding this issue. I know he has counseled with some of his friends and family regarding this as well. For a number of reasons, Judge, which we don’t need to annunciate for record purposes, we believe that it is in our best interests and we would ask to be allowed to waive jury trial at this time and ask the trial be had to tire Court.
“THE COURT: Mr. Lewis, obviously you are charged here with a very serious-crime for which you could be sentenced to life in prison. You have a right to have your case heard by a jury of your peers. If you waive that right, your case will be heard by a judge. It would be my plan to be here to hear it, but once you waive a jury, you can’t get it back later on. Is that what you want to do here?
“THE DEFENDANT: Yes.
“THE COURT: Do you have any question about that? Have you had plenty of time to discuss this widr Mr. Smidr?
“THE DEFENDANT: Yes. I feel like if I take the jury trial, I won’t get a fair trial because it says a jury of your peers, but I don’t think it will really be my peers. But in Johnson County with a Johnson County jury, I feel like I won’t be treated fairly. I wouldn’t be—-I wouldn’t want to get convicted of a crime I didn’t commit.
“THE COURT: Well, I think I understand your position here, but I want to be clear for the record that you want your case to be heard by a judge rather dran a jury. You have a constitutional right to have your case heard and decided by a jury of your peers. Now, we talk about that all of the time, and the fact of the matter is you might not consider the impaneled jury exactly your peers and they might not consider you their peer.
“But if we try this case, we would call in 36 citizens from the county. Your attorney and the State’s attorney would have a right to go through and see if any of drem had any sort of reason to be against you or especially for you, if any of them felt any bias or prejudice against you. And then even after they went through all of that and we had 36 people, each of these attorneys have a right to release 12 people each. In other words, the State would get to eliminate 12 one by one and your attorney would get to eliminate 12 one by one, and what is left is the jury of 12 that would hear and decide your case.
“And so I just want to be clear that you have a right to have your case heard by a juiy of your peers. That is the system we use to assemble that juiy. And I just want to make sure that you understand what you’re giving up by waiving your right to have your case heard by a jury. Are you comfortable with this?
“THE DEFENDANT: Yes, I understand. It is pros and cons to the judge. Pros and cons to both sides.
“THE COURT: Have you had a chance to consider all of that and discuss all this with your attorney?
“THE DEFENDANT: Yes, sir.
“THE COURT: That is still what you want to do here?
“THE DEFENDANT: Yes, sir.
“THE COURT: All right. I will accept the waiver as knowing and voluntary.”
In his motion for a new trial, Lewis claimed that he “was denied the opportunity for a fair trial and was denied the opportunity to have a trial to a jury ‘of his peers/ requiring the defendant to waive jury trial to avoid facing an all white or virtually all white jury panel.” Nowhere in the record does it indicate that Lewis ever requested to change the venue of his trial.
Analysis
Lewis argues that the transcript of his waiver and the subsequent argument he made in his motion for a new trial show that his waiver was not voluntary because he believed that as an African-American, he would not face a jury of his peers in Johnson County and, thus, not receive a fair trial. Accordingly, he alleges that he mistakenly believed that the only way to receive a fair trial was to waive his right to a jury trial and proceed with a bench trial. Lewis contends that the district court should have corrected his mistaken belief by informing him that defense counsel could make challenges under Batson v. Kentucky, 476 U.S. 79, 88-89, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), during voir dire if it appeared that the State was purposely striking African-Americans from the potential jury.
A criminal defendant may waive the fundamental right to a jury trial if the court and State agree to the waiver. K.S.A. 22-3403 (defendant can submit felony case to court instead of jury with consent); State v. Irving, 216 Kan. 588, 589, 533 P.2d 1225 (1975). But this court has said that jury trial waivers should be strictly construed to ensure the defendant has every opportunity to receive a fair and impartial trial by jury. 216 Kan. at 589.
The test for determining a waiver’s validity is whether it was voluntarily made by a defendant who knew and understood what he or she was doing. Whether that test is satisfied depends upon the particular facts and circumstances in each case. Irving, 216 Kan. at 589; see also State v. Clemons, 273 Kan. 328, 340, 45 P.3d 384 (2002) (determination of knowing and voluntary jury trial waiver must be based upon facts and circumstances in each case); State v. Fisher, 257 Kan. 65, 73-74, 891 P.2d 1065 (1995) (no error in waiver because defendant spoke with counsel prior to decision, was informed of constitutional right to jury trial and effect of bench trial, and showed desire to have bench trial). A waiver will not be presumed from a silent record. Irving, 216 Kan. at 589.
In Irving, the court cited the American Bar Association’s (ABA) standards for accepting a jury trial waiver, which the court adopted as the accepted procedure in Kansas. 216 Kan. at 589-90. Those standards are the same today. See 3 American Bar Association Standards for Criminal Justice, Trial by Juiy, Standard 15-1.2(b) (2d ed. 1980). Fashioned from the ABA’s recommendation, the Irving court stated: “[F]or a criminal defendant to effectively waive his right to a trial by juiy, the defendant must first be advised by the court of his right to a jury trial, and he must personally waive this right in writing or in open court for the record.” 216 Kan. at 590.
Lewis’ contention that his waiver was not knowingly made because the district court judge should have informed him of his attorney’s ability to make Batson challenges is not supported by our caselaw. In Beaman, this court, relying on the standard enunciated in Irving, rejected the defendant’s argument that his jury trial waiver was not knowingly made because the judge failed to inform him that a 12-person jury would need to unanimously agree in order to convict him. Beaman, 295 Kan. at 862; see also Clemons, 273 Kan. at 340-41 (same). If that type of general information about jury function does not need to be conveyed to a defendant before he or she can validly waive the right to a juiy trial, it does not follow that specific details regarding jury composition via Batson be required before a jury trial waiver can be considered knowingly made.
There is no dispute that Lewis’ waiver occurred in open court. The only issue is whether that waiver was knowingly and voluntarily made. In the judge’s initial statement to Lewis, the judge informed Lewis that he had a right to have his case heard by a juiy of his peers and if he waived that right, his case would be decided by the judge. After Lewis indicated that he wanted to waive his right to a jury trial, the judge then asked Lewis if he had any questions. Lewis did not ask any questions but expressed his reason for wanting to proceed with a bench trial: because he felt that a jury comprised of Johnson County residents would not consist of his peers and, thus, would not treat him fairly. Notably, Lewis never explained who he considered to be his peers and, thus, qualified to serve on his jury. Regardless, the judge proceeded to explain to Lewis that he had a constitutional right to have his case decided by a jury of his peers and gave an overview of the system used to assemble 12 impartial jurors to hear his case. After giving this explanation, the judge asked Lewis if he was still comfortable with waiving his right to have his case heard by a jury. Lewis said yes and indicated he was aware that there were “pros and cons” to having his case decided by either a jury or a judge. After indicating to the judge that he had considered his options and discussed the matter with his attorney, Lewis acknowledged that he wanted to waive his right to jury trial and proceed with having his case heard by the judge.
The transcript of the waiver hearing indicates that Lewis knew and understood that he had a right to a juiy trial and that he voluntarily waived this right so his case could be decided by the district court judge. Accordingly, we conclude that Lewis’ jury trial waiver was valid.
Motion to Dismiss
Next, Lewis argues that tire district court erred in denying his motion to dismiss the charges against him based on the State’s alleged destruction of exculpatory evidence.
“In cases where the State fails to preserve potentially useful evidence, there is no due process violation unless the defendant shows bad faith on tire part of the State.” State v. LaMae, 268 Kan. 544, 550, 998 P.2d 106 (2000). The determination of the question of bad faith turns on the “officers’ knowledge of the exculpatory value of the evidence at the time it was lost or destroyed,” and the question of bad faith is a question of fact. 268 Kan. at 551. Accordingly, the district court’s factual findings regarding the presence or absence of bad faith are reviewed under a substantial competent evidence standard. Its conclusions of law based on those facts are subject to unlimited review. See State v. Finley, 273 Kan. 237, 241, 42 P.3d 723 (2002).
Applicable Facts
After law enforcement discovered Tyler’s body inside his Esca-lade on the morning of April 4, 2010, they conducted a search of the Escalade for forensic evidence. After the search was conducted, the Escalade was transported to the Johnson County Crime Lab where a second search for forensic evidence was conducted.
In November 2010, John Stirling, the lead detective assigned to the Tyler murder, spoke with Tyler s brother, Elliott, about tire investigation. During their discussion, Elliott mentioned that his brother had a security system installed on the Escalade that could take video footage of the interior of the vehicle. Elliott told Stirling that a car alarm and audio store in Kansas City, Kansas, had installed the system in the Escalade.
Stirling and Mark Phillips, a deputy with the Johnson County Sheriff s Office who works in the criminalistics lab and specializes in video footage, went to the car alarm and audio store. They spoke with a representative of the store about whether the store sold any car alarm systems with video capabilities. The store rep said drey did not. The officers looked around the store and noticed a particular system for sale—a ScyTek VisionGuard—and asked about the system. The store rep told the officers that the system could not store video but had the ability to store 10 still images. The officers asked the store rep whether the store had installed such a system in Tyler’s Escalade, but the store rep could not recall ever doing so.
As a result of their visit to the store, in December 2010, the officers, pursuant to a search warrant, searched tire Escalade. The officers noticed a small antenna attached to the rearview mirror and a wire coming out of die back of the mirror. It appeared that the wire fed into the rearview mirror. Upon further investigation, however, the officers discovered that the wire did not feed into tire mirror but was loose and had the appearance of being pulled out of something. The officers discovered that another wire ran from the antenna and “underneath die headliner, down the A-pillar, and tiren back behind underneath the dash, and back behind the steering column.” After removing the covering underneath die steering column, the officers discovered a black box with the designation “VG8000” on it which contained the electronic components of the security system.
The officers learned that the wire which appeared to feed into the rearview mirror should have fed into a small camera. The officers, however, did not find a camera inside the car. The wire that fed into the camera had a “jagged” look to it, indicating to the officers that the wire had been jerked out of the camera. Attached to the windshield, the officers discovered a mounting bracket that should have held the missing camera.
The officers determined that the system was a ScyTek VisionGuard 8000—the same system they saw at the car alarm and audio store. Phillips contacted the company who manufactured the security system and learned that if the vehicle’s battery was allowed to die, any images saved on the system would be lost.
The officers placed a charger on the batteiy and charged it before starting the car. Once the car was started, it was placed on a tow truck and hauled to the crime lab. Once at the lab, the officers continued to charge the battery and then followed the protocol the engineers from ScyTek described for downloading the images from the system’s antenna to a key fob that was on Tyler’s key ring (the fob had a 1 inch by half-inch screen which displayed black and white images). The officers determined that there were no images saved on the system.
Prior to trial, Lewis filed a motion to dismiss or, in the alternative, requesting sanctions based on law enforcement’s failure to preserve pictures that may have been taken by the security system installed in Tyler’s Escalade. Lewis argued that the security system may have taken photos of Tyler’s murderer and, thus, could have constituted exculpatory evidence. Notably, in making his argument, Lewis stated:
“In the present case, while it certainly could be concluded that the officers’ lack of timely checking tire security system of the vehicle was ignorance or negligence, rather than bad faith, that really is irrelevant to the determination of whether the prosecution is irreparably flawed by virtue of allowing the battery to go dead and, therefore, the unavoidable destruction of the strongest piece of evidence that the defendant could hope to receive.” (Emphasis added.)
At the motion hearing, Stirling was shown a photo of the Esca-lade taken on April 4, prior to Tyler’s body being removed from the vehicle. The photo depicted the front windshield seen from tire perspective of the driver’s seat. On the rearview mirror, there can be seen a small antenna that has a wire coming out of it. Stirling testified drat without further investigation, the wire appeared to feed directly into the rearview mirror. Upon seeing it, he thought that it was some component of the Escalade’s alarm system.
Stirling also stated that at the crime scene, he remembered seeing the mounting bracket attached to the windshield and that he had discussed the bracket with crime scene personnel. Stirling said that they were not sure what the bracket was at the time they saw it and thought that it may have been a type of windshield sensor for the Escalade’s alarm system.
Stirling said that prior to speaking with Tyler’s brother, he had no information to indicate that the ScyTek system was even installed in the Escalade. Stirling stated that had he known about tire system back in April 2010, he would have attempted at that time to download any photos that might have been saved on the system.
On cross-examination, Stirling said that in April 2010, he had heard of automobile security systems with photographic capabilities. He conceded that the key fob that went with the security system identified it as a ScyTek VisionGuard and that the fob was visible to the investigating officers back on April 4. He also conceded that an investigation of the key fob could have potentially alerted officers to the fact that the security system had photographic capabilities.
Phillips testified that the camera on the ScyTek system was a small 1 inch by 1 inch camera. Phillips believed that the camera did not have flash capabilities for taking photos in darkness. Phillips stated that the camera would record two images within 5 seconds of tire car alarm activating. The system would also take a still image if two buttons on the key fob are pressed. The photos are then stored on the system’s antenna. If battery power to the vehicle is lost, any images stored on tire antenna are lost. Phillips said he spoke to ScyTek engineers who told him that any images saved on the system could only be viewed with the key fob; the images could not be downloaded to a computer. Phillips noted that the security system’s camera was never recovered.
Phillips said that unless the alarm system is set off or the camera is operated manually by pushing the two buttons on the key fob, the system would not have taken any photos.
At the conclusion of the hearing, the district court held that even assuming the security system recorded images at the time of the murder, there was no evidence that law enforcement acted in bad faith in failing to preserve those images. Accordingly, the court denied Lewis’ motion to dismiss.
Analysis
In Arizona v. Youngblood, 488 U.S. 51, 57, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988), reh. denied 488 U.S. 1051 (1989), the United States Supreme Court stated that while good or bad faith of the State is irrelevant when the State fails to disclose material exculpatory evidence, the Due Process Clause of the Fourteenth Amendment to the United States Constitution requires a different result when the State fails to preserve evidentiary material “of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.” The Court stated that it was not willing to read the Due Process Clause as imposing on the police an absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance, and
“requiring a defendant to show bad faith on the part of the police both limits the extent of the police’s obligation to preserve evidence to reasonable bounds and confines it to that class of cases where the interests of justice most clearly require it, i.e., those cases in which tire police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant.” 488 U.S. at 58.
Again, “[i]n cases where the State fails to preserve potentially useful evidence, there is no due process violation unless the defendant shows bad faith on the part of the State.” LaMae, 268 Kan. at 550. The determination of the question of bad faith turns on the “officers’ knowledge of tire exculpatory value of the evidence at the time it was lost or destroyed,” and the question of bad faith is a question of fact. 268 Kan. at 551.
Here, there was no evidence presented at the hearing to even suggest that the officers, prior to November 2010, were even aware that the security system in the Escalade had the ability to record images. After Stirling became aware of the possibility, he and Phillips went to great lengths to identify what system was installed in the Escalade. Once they determined that the system could record images, they attempted to preserve any images that may have existed on the system. However, no images were recovered. Based on the evidence presented at the hearing, we conclude that substantial competent evidence supports the district court’s finding that the State did not act in bad faith by failing to preserve any images that may have been recorded by the Escalade’s security system.
Lifetime Parole
Next, Lewis argues that the district court imposed an illegal sentence by ordering lifetime parole in connection with his aggravated robbeiy conviction. Under K.S.A. 22-3504, an illegal sentence can be corrected'at any time.
In State v. LaBelle, 290 Kan. 529, Syl. ¶ 1, 231 P.3d 1065 (2010), this court stated the applicable standard of review:
“The question of whether a sentence is illegal is a question of law over which this court has unlimited review. An illegal sentence is a sentence imposed by a court without jurisdiction, a sentence which does not conform to die statutory provision, either in character or the term of the punishment authorized, or a sentence which is ambiguous witíi regard to the time and manner in which it is to be served.”
As mentioned above, tire district court sentenced Lewis to a hard 20 life sentence for the felony-murder conviction and a consecutive 61-month sentence for the aggravated robbery conviction. In announcing Lewis’ sentence from the bench, the district court did not impose parole or postrelease supervision in connection to the felony-murder and aggravated robbery convictions, respectively. In the journal entry of judgment, however, the district court imposed lifetime parole for both the felony-murder and aggravated robbeiy convictions.
As the State concedes in its brief, the district court, pursuant to K.S.A. 2009 Supp. 22-3717(d)(l)(A), should have imposed 36 months of postrelease supervision in connection with the aggravated robbeiy conviction, a severity level 3 felony. See K.S.A. 21-3427. Consequently, the lifetime parole term imposed in connection with the aggravated robbery conviction does not conform to the applicable statutory provisions and, thus, is an illegal sentence. Accordingly, that portion of Lewis’ sentence must be vacated and his case remanded for resentencing so the correct term of post-release supervision can be imposed in connection with his aggravated robbery conviction.
Cumulative Error
Finally, Lewis argues that cumulative error deprived him of a fair trial.
Cumulative trial errors, when considered collectively, may require reversal of the defendant’s convictions when the totality of circumstances substantially prejudiced tire defendant and denied the defendant a fair trial. State v. Burns, 295 Kan. 951, 960, 287 P.3d 261 (2012), overruled in part on other grounds by State v. King, 297 Kan. 955, 967, 305 P.3d 641 (2013). “Cumulative error,” however, “will not be found when the record fails to support the errors raised on appeal by die defendant.” State v. Cofield, 288 Kan. 367, 378, 203 P.3d 1261 (2009).
We have concluded that none of the alleged trial errors raised by Lewis on appeal have merit. Consequently, his cumulative error argument must fail.
We affirm Lewis’ convictions, but we vacate the lifetime parole term imposed in connection with his aggravated robbery conviction and remand his case for resentencing so the correct term of post-release supervision can be imposed.
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Powell, J.:
William L. Scaife appeals the summary denial of his motion filed pursuant to K.S.A. 60-1507. Scaife argues the district court improperly denied his motion because (1) the court erroneously determined it was untimely and (2) it was manifest injustice for the court to summarily deny his timely motion without an evidentiary hearing. Because we agree with the district court that Scaife’s motion was untimely, we affirm.
Factual and Procedural Background
The relevant facts are not in dispute. Scaife was convicted by a jury of (1) murder in the first degree, (2) attempted murder in the first degree, (3) two counts of aggravated robbery, and (4) felony fleeing to elude police. On direct appeal, the Kansas Supreme Court affirmed eveiy conviction and sentence except the court vacated and remanded for retrial the conviction of murder in the first degree. State v. Scaife, 286 Kan. 614, 623, 186 P.3d 755 (2008). The Kansas Supreme Court announced its opinion on July 3, 2008, and issued its mandate on September 24, 2008. Scaife did not petition for writ of certiorari with the United States Supreme Court.
On December 31, 2008, upon remand to the district court, Sc-aife entered into a plea agreement in which he pled guilty to a reduced charge of voluntary manslaughter, agreed to accept a sentence under die Kansas Sentencing Guidelines Act, and waived his right to appeal. The district court accepted Scaife’s plea and sentenced him to a guideline sentence on January 15, 2009. In accordance with his waiver, no direct appeal was filed by Scaife.
On January 6, 2010, Scaife filed his present K.S.A. 60-1507 motion in Wyandotte County District Court, alleging: (1) Scaife’s original trial attorney was wrongly disqualified in violation of Scaife’s rights under die Sixth and Fourteenth Amendments to the United States Constitution, (2) Scaife’s replacement counsel was ineffective during Scaife’s trial and direct appeal in violation of Scaife’s Sixth Amendment rights, and (3) a fatal variance existed between the information and the evidence produced at trial in violation of Scaife’s Sixth and Fourteenth Amendment rights.
On December 12, 2011, after an unexplained delay of nearly 2 years, the district court summarily dismissed Scaife’s motion solely because the motion had not been filed prior to the 1-year statutory deadline pursuant to K.S.A. 60-1507(f). Scaife appealed the district court’s dismissal, and after a series of procedural delays—the reasons are immaterial—our court reinstated Scaife’s appeal on March 13, 2014.
Did the District Court Err in Summarily Dismissing Scaife’s K.S.A. 60-1507 Motion as Untimely?
Scaife’s sole issue on appeal challenges the district court’s finding that his motion filed under K.S.A. 60-1507 was untimely. Significantly, Scaife does not argue that the motion, if untimely, should be reviewed to prevent manifest injustice but argues it was manifest injustice for the district court to deny him an evidentiary hearing on a timely motion. Accordingly, he has abandoned any such claim. See State v. Gardner, 10 Kan. App. 2d 408, 413, 701 P.2d 703, rev. denied 237 Kan. 888 (1985).
Standard of Review
Because the facts are not in dispute and resolution of this issue involves an interpretation of a statute, which is a question of law, our review is unlimited. State v. Jefferson, 287 Kan. 28, 33, 194 P.3d 557 (2008). The fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Hall v. Dillon Companies, Inc., 286 Kan. 777, 785, 189 P.3d 508 (2008). Our duty is to ascertain that intent through the statutory language used and give ordinary words their ordinary meaning. State v. Gracey, 288 Kan. 252, 257, 200 P.3d 1275 (2009). However, when the meaning of a statute is unclear, “we may consider the provisions of the entire act with a view toward reconciling and bringing them into harmony. [Citation omitted.] [We] always strive [] for a reasonable . . . construction that avoids an unreasonable or absurd result. [Citation omitted.]” Baker v. State, 297 Kan. 486, 488, 303 P.3d 675 (2013).
Analysis
K.S.A. 60-1507(a) gives prisoners tire right to collaterally attack their sentences:
“Motion attacking sentence. A prisoner in custody under sentence of a court of general jurisdiction claiming the right to be released upon the ground that the sentence was imposed in violation of the constitution or laws of the United States, or the constitution or laws of the state of Kansas, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may, pursuant to the time limitations imposed by subsection (f), move the court which imposed the sentence to vacate, set aside or correct the sentence.”
However, there is a 1-year time limit for prisoners to bring such an action:
“Time limitations. (1) Any action under this section must be brought within one year of: (i) The final order of the last appellate court in this state to exercise jurisdiction on a direct appeal or the termination of such appellate jurisdiction; or (ii) the denial of a petition for writ of certiorari to the United States supreme court or issuance of such court’s final order following granting such petition.
“(2) The time limitation herein may be extended by the court only to prevent a manifest injustice.” K.S.A. 60-1507(f).
Supreme Court Rule 183 (2014 Kan. Ct. R. Annot. 286) governs procedures applicable to K.S.A. 60-1507 motions:
“(c) When Remedy May Be Invoked.
(1) The provisions of K.S.A. 60-1507 may be invoked only by a person in custody claiming the right to be released.
(2) A motion to vacate, set aside, or correct a sentence may not be filed while an appeal from the conviction and sentence is pending or during the time within which an appeal may be perfected.
(3) A proceeding under K.S.A. 60-1507 ordinarily may not be used as a substitute for direct appeal involving mere trial errors or as a substitute for a second appeal. Mere trial errors must be corrected by direct appeal, but trial errors affecting constitutional rights may be raised even though the error could have been raised on appeal, provided exceptional circumstances excuse the failure to appeal.
(4) Unless the court extends the time to prevent manifest injustice, a motion under K.S.A. 60-1507 must be filed not later than one year after the later of:
(A) the date the mandate is issued by the last appellate court in this state which exercises jurisdiction on a movant’s direct appeal or the termination of the appellate court’s jurisdiction; or
(B) the date the United States Supreme Court denies a petition for the writ of certiorari from the movant’s direct appeal or issues its final order after granting the petition.”
As is clear from the language quoted above, any prisoner in custody under a sentence of a court of general jurisdiction may challenge his confinement and sentence, provided the challenge is brought either (a) within 1 year from the final order of the last appellate court to exercise jurisdiction on a direct appeal or (b) within 1 year from the termination of appellate jurisdiction. However, no challenge may be brought while a direct appeal is pending or during the time within which an appeal may be perfected.
Scaife contends the 1-year statutory time limit within which to bring his K.S.A. 60-1507 motion commenced 14 days after he was sentenced for voluntary manslaughter by the district court on remand. See K.S.A. 2014 Supp. 22-3608(c) (14 days to perfect appeal after judgment of the district court). Citing K.S.A. 60-1507(f)(l)(i), Scaife contends that appellate jurisdiction terminated 14 days after the January 15, 2009, sentencing date for his voluntary manslaughter conviction, because he never exercised his right to file a direct appeal of his sentence. Therefore, under Scaife’s interpretation of K.S.A. 60-1507(f), he had until January 29, 2010, to file his motion, rendering his K.S.A. 60-1507 motion submitted on January 6,2010, timely. Unfortunately, Scaife fails to cite caselaw to support his reading of K.S.A. 60-1507(f).
The State counters that the 1-year statutory period commenced 90 days after the Kansas Supreme Court affirmed Scaife’s convictions and that the vacated first-degree murder conviction is not relevant to the triggering criteria found in K.S.A. 60-1507. The State reasons that once our Supreme Court issued the mandate on September 24, 2008, Scaife’s convictions could not be appealed any further after the 90-day period during which Scaife could seek certiorari from the United States Supreme Court had expired. Thus, the State contends K.S.A. 60-1507(f)(l)(ii) controls, and the 1-year statutory period commenced on December 28, 2008—90 days following the Kansas Supreme Court’s mandate in Scaife, 286 Kan. 614. Like Scaife, the State cites no caselaw in making this argument.
Fortunately, our Supreme Court and various panels of this court have considered similar questions which are helpful to our analysis. The most relevant for our purposes is Baker, in which the defendant initially directly appealed his conviction and sentence for first-degree murder. The Supreme Court affirmed the conviction but vacated the sentence and remanded the entire case for resentenc-ing. After receiving a new sentence on remand, Baker did not file a direct appeal. Within 1 year from when he was resentenced on remand—but more than 1 year after the Supreme Court’s opinion affirming his conviction had become final—Baker filed a 60-1507 motion, alleging he received ineffective assistance from his trial counsel. The State filed a response, arguing that Baker’s motion was untimely under K.S.A. 60-1507(f)(l). The district court agreed and dismissed the petition.
On appeal, our court reversed, finding that because Baker’s motion was filed within 1 year from when appellate jurisdiction over his resentencing had terminated, the motion was timely filed under K.S.A. 60-1507(f)(l). Baker v. State, 42 Kan. App. 2d 949, 951-54, 219 P.3d 827 (2009). The State sought review by the Supreme Court, which affirmed our court:
“K.S.A. 60-1507(a) affords relief only to a prisoner in custody under sentence.’ (Emphasis added.) If Baker was not ‘under sentence’ for the purpose of K.S.A. 60-1507 between the date the mandate issued (July 5, 2006) and the date he was resentenced (December 21, 2006), then the limitation period of K.S.A. 60-1507(f)(l)(i) would apply during a time period a movant could not have sought relief. In this case, the result would reduce the legislatively determined 1-year time limitation to less than 7 months.” 297 Kan. at 489.
However, our Supreme Court stopped short of holding that Baker was not a prisoner in custody under sentence, relying instead on Supreme Court Rule 183, which prohibits the simultaneous pursuit of a direct appeal and a motion under K.S.A. 60-1507 and prohibits filing such a motion during die time within which an appeal may be perfected. 297 Kan. at 489-90; Rule 183(c)(2) (2014 Kan. Ct. R. Annot. 285); see also Swenson v. State, 284 Kan. 931, 940, 169 P.3d 298 (2007) (simultaneous direct appeal and 1507 motion prohibited). The court reasoned that because Baker was prohibited from filing his K.S.A. 60-1507 motion between the time the court remanded for resentencing and the time Baker’s right to appeal his new sentence upon remand expired, if the 1-year time limit clock started running from the earlier date (the date the court remanded for resentencing), then Baker’s 1-year time limitation would have been reduced to less than 7 months. Baker, 297 Kan. at 489-90. Consequently, the court adopted the latter date—the date Baker’s right to appeal expired—as the date the 1-year limitation clock began to run. 297 Kan. at 491-92.
Also significant was the court’s favorable view of now Chief Judge Malone’s concurring opinion in the Court of Appeals’ decision:
“K.S.A. 60-1507(a) provides tírat ‘[a] prisoner in custody under sentence of a court of general jurisdiction . . . may, pursuant to tire time limitations imposed by subsection (f), move tlie court which imposed the sentence to vacate, set aside or correct the sentence.’ In his concurrence, Judge Malone reasons that K.S.A. 60-1507(a) did not allow Baker to file his motion before resentencing because he was not ‘in custody under sentence of a court of general jurisdiction.’ Baker, 42 Kan. App. 2d at 953-54 (Malone, J., concurring).
“Judge Malone’s concurring opinion has merit. . . . [T]he Court of Appeals has held that K.S.A. 60-1507 ‘clearly contemplates that the sentence being attacked is the one resulting in the present custody.’ (Emphasis added.) Johnson v. State, 4 Kan. App. 2d 573, 574, 608 P.2d 1044 (1980). The statute does not permit relief where the movant is not in custody under the sentence he or she is attempting to challenge. 4 Kan. App. 2d at 574.” Baker, 297 Kan. at 491.
The upshot of the Supreme Court’s Baker decision is that because the defendant’s sentence for a single conviction had been vacated and remanded for resentencing at the conclusion of the direct appeal, any issues relating to that sentence were still ap-pealable, meaning appellate jurisdiction had not terminated under Supreme Court Rule 183(c) (2014 Kan. Ct. R. Annot. 285) thereby barring a motion under K.S.A. 60-1507, until the conclusion of the 14-day period after the defendant’s resentencing. Moreover, a motion under K.S.A. 60-1507 would have been premature because the defendant was not yet a prisoner in custody under sentence. Only until he was resentenced did he become a prisoner in custody under sentence.
Although we can apply the principles from Baker to the present case, we observe that Scaife is not similarly situated to Baker in a number of respects. Unlike Baker: (1) Scaife was charged with multiple offenses; (2) all of Scaife’s convictions and sentences were affirmed but for the primary count, murder in the first degree; and (3) there was finality with respect to the affirmed convictions to which Scaife’s motion pertains. These facts suggest, unlike in Baker, that when the Supreme Court issued its mandate on September 24, 2008, Scaife was free at that time to pursue a motion under K.S.A. 60-1507 to challenge any irregularities relating to his affirmed convictions and sentences.
It is well established that each charge in a case is to be considered its own information, meaning the final result in the affirmed convictions and sentences is unaffected by the reversal of the first-degree murder conviction and vice versa. See State v. Hunt, 8 Kan. App. 2d 162, 166, 651 P.2d 967 (1982); PIK Crim. 4th 68.060, Multiple Counts—Verdict Instruction; see also State v. Beach, 275 Kan. 603, 622, 67 P.3d 121 (2003) (inconsistent verdicts on multiple counts permitted). Therefore, Scaife became a prisoner in custody under a sentence at the time the mandate was issued on the affirmed convictions and sentences, notwithstanding the remand on the first-degree murder charge. Also, pursuant to Supreme Court Rule 183(c), appellate jurisdiction terminated upon the issuance of the mandate as to the affirmed convictions and sentences. Therefore, Scaife could have filed his present motion without running afoul of the prohibition against filing a simultaneous direct appeal and motion under K.S.A. 60-1507 and the prohibition against filing a motion under K.S.A. 60-1507 within the time appellate jurisdiction could be perfected.
As an aside, we note this rule may not have applied to sentences in multiple conviction cases until recently. The longstanding rule had been that multiple sentences from multiple counts in a single case were considered a single sentence, State v. Woodbury, 133 Kan. 1, 2, 298 Pac. 794 (1931), meaning that if one or more sen- fences in a multiple count case had been vacated, the sentencing court on remand had the power to alter the original sentence even on the unaffected counts. See State v. Snow, 282 Kan. 323, 342, 144 P.3d 729 (2006). This suggests appellate jurisdiction still may have existed over the unaffected counts. However, this rule was subsequently abrogated by our Supreme Court. State v. Guder, 293 Kan. 763, 766-67, 267 P.3d 751 (2012) (disapproving Snow). In Guder, the court held that with the enactment of the Kansas Sentencing Guidelines Act, sentencing courts were prohibited from modifying legal sentences except in narrow circumstances, one of which was when the defendant’s primary conviction had been overturned. 293 Kan. at 766-67. Another narrow exception occurs when a defendant’s probation is revoked. State v. McGill, 271 Kan. 150, 154, 22 P.3d 597 (2001) (upon revocation of probation, court may impose lesser sentence).
However, the retention by the sentencing court of the power to modify a legal sentence in certain instances does not necessarily mean that a defendant is not a prisoner in custody under sentence or that appellate jurisdiction remains. In the context of probation revocations, our court has held the 1-year time limit for a K.S.A. 60-1507 motion challenging the defendant’s underlying conviction and sentence began when the mandate on the direct appeal was issued or when appellate jurisdiction terminated upon a defendant’s failure to file a direct appeal to his or her underlying conviction and sentence, meaning that a defendant could only challenge aspects of his probation revocation in a subsequent K.S.A. 60-1507 motion. Wilkerson v. State, 38 Kan. App. 2d 732, 734, 171 P.3d 671 (2007). In our view, the same principle applies to cases, such as this one, where only the defendant’s primary conviction has been vacated.
Therefore, pursuant to Baker and Supreme Court Rule 183(c), Scaife was free to pursue his present motion as of September 24, 2008, because the mandate on his direct appeal had been issued and appellate jurisdiction had terminated as to those affirmed convictions and sentences, the remand on the first-degree murder charge notwithstanding. Moreover, Scaife became a prisoner in custody under a sentence at the same time. See generally Rawlins v. State, 39 Kan. App. 2d 666, 669, 182 P.3d 1271 (“in custody under sentence of a court” broadly construed to mean any restraint of liberty imposed by court order), rev. denied 286 Kan. 1179 (2008). Accordingly, die 1-year time limit within which Scaife was free to file his present 60-1507 motion ended on September 24, 2009, months prior to the date he actually filed his motion.
With respect to the remaining conviction of voluntary manslaughter, the result is somewhat different. Our Supreme Court reversed Scaife’s original first-degree murder conviction and remanded for a new trial, leading him to enter a plea to a lesser charge of voluntary manslaughter after remand.
The State argues, and we agree, that when the Kansas Supreme Court reversed Scaife’s conviction for murder in the first degree, all previous errors as to that charge were cured, and prosecution on the remanded charge began anew. Because it is fundamental to any claim under K.S.A. 60-1507(b) that prejudice to a defendant must result from the errors alleged, any allegations of error asserted by Scaife that may have impacted his original first-degree murder conviction were cured when the Supreme Court vacated his conviction and remanded for a new trial. See State v. Carr, 300 Kan. 1, 252, 331 P.3d 544 (2014).
Additionally, should error have infectéd the subsequent proceeding, then a collateral challenge under K.S.A. 60-1507 would not be based on the same grounds asserted in Scaife’s present motion. Hypothetically, if Scaife had been convicted and sentenced on the reversed count of murder in the first degree and if he had retained and exercised all of his avenues of review, a subsequent 60-1507 motion would relate to the alleged errors that only could have occurred after the Kansas Supreme Court reversed the initial conviction of murder in the first degree. That Scaife instead entered into a plea deal for voluntary manslaughter on remand, therefore, does not bear on the finality of the convictions originally affirmed by our Supreme Court. Indeed, Scaife’s plea deal itself served to cure any deficiencies in his subsequent 60-1507 motion that he may have complained of relating to the remanded charge, further divorcing it from Scaife’s affirmed convictions. See State v. Edgar, 281 Kan. 30, 40, 127 P.3d 986 (2006) (“[T]he general rule in Kansas [is] that a plea is a waiver of all defects or irregularities in the proceedings prior to the plea.”).
Accordingly, we hold that Scaife’s K.S.A. 60-1507 motion filed January 6, 2010, was untimely as he had 1 year from the date of the Supreme Court’s mandate, or until September 24,2009, to file his motion.
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Buser, J.:
Bernard Orville Wallin appeals his convictions for one count of rape, three counts of aggravated criminal sodomy, and two counts of aggravated sexual battery. The victim of these acts, M.J., is an adult with developmental disabilities. Wallin-raises two issues on appeal. First, he contends tire State presented insufficient evidence to establish his guilt. In particular, Wallin contends there was insufficient evidence to prove that M.J. was incapable of giving consent to the sexual acts due to a mental deficiency or disease because the State did not present any expert medical testimony. Second, Wallin asserts the district court erred when it provided the jury, after closing arguments and prior to die evening recess, an instruction on juror misconduct.
We conclude that, depending on the facts of the case, in order to prove beyond a reasonable doubt the crimes of rape (K.S.A. 2014 Supp. 21-5503[a][2]), aggravated criminal sodomy (K.S.A. 2014 Supp. 21-5504[b][3][C]), and aggravated sexual battery (K.S.A. 2014 Supp. 21-5505[b][3]), the victim’s incapacity to give consent because of mental deficiency or disease may be established without expert testimony. After carefully reviewing the evidence in this case, which did not include expert testimony, we are persuaded the evidence was sufficient to convince a rational factfinder that M.J. did not have the capacity to give consent due to a mental deficiency or disease. We also find no error in the district courts instruction regarding juror misconduct. Accordingly, the convictions are affirmed.
Factual and Procedural Background
The State charged Wallin with various sex crimes against two adult women with developmental disabilities, i.e., R.K. and M.J. The charges originated after R.K. approached a patrol officer for the Minneapolis Police Department in late 2011 and asked him to give a handwritten note to the chief of police, which contained sexual molestation allegations.
Subsequently, Officer Robert Matlack began investigating the case. Due to his knowledge of the limited mental capacity of R.K. and M.J., Officer Matlack spoke with Margaret Kilpatrick, M.J.’s guardian and conservator and R.K. s adoptive mother. According to Officer Matlack, Kilpatrick informed him that M.J. and R.K. performed chores for Carolyn Allen, Kilpatricks neighbor and Wal-lin’s roommate, in the summer of 2011, but she terminated their employment when M.J. told her that she had seen Wallin touching R.K. and having her engage in oral sex. Additionally, M.J. said that Wallin had “touched her and had her work with her pants pulled down.”
Officer Matlack interviewed R.K. and M.J. R.K. told Officer Matlack that she and M.J. had unwanted sexual contact with Wal-lin, and she did not report the abuse sooner because “[s]he was afraid she was going to get in trouble if she did.” M.J., on the other hand, advised Officer Matlack that she saw Wallin unsuccessfully attempt to lass R.K. on the lips once, and she relayed information she heard from R.K. about R.K.’s other encounters with Wallin. M.J. also claimed that Wallin had attempted to kiss her and asked her to engage in oral sex but she declined.
Officer Matlack then spoke with Wallin, and during two separate interviews, Wallin acknowledged that R.K. and M.J. had performed chores at Allen s residence but he insisted that other than the girls giving him “hugs that lasted too long,” no sexual activity or fondling occurred. Later, however, Wallin participated in a recorded interview with Agent Ricky S. Atteberiy of the Kansas Bureau of Investigation (KBI). During this interview, Wallin admitted “to certain sexual acts” with R.K. and M.J. Following the interview, Wallin prepared a written statement:
“The sexual contact [djenials I gave to Matlack were inacuart [sic]. The contacts were to each of the girls, they were to their brests [sic] [and] to their vergina [sic]. Happened maybe four [and] five times. Don’t recall any oral sex on [R.K.] she did on me. Never asked me to stop! Was injoying [sic] it too much. Maybe 4 or 5 times or even less. [M.J.] performed oral sex on me maybe 3 or 4 time[s]. No force was ever used [and] both were wanting to do these things, by opening their colthes [sic] [and] showing their privates to me.”
After Wallins interview with Agent Atteberry, Officer Matlack spoke with M.J. about her earlier statement. M.J. explained that the first time she spoke with him she was afraid that she and R.K. would “get in trouble” with the police if she reported what actually happened. According to Officer Matlack, M.J. “then told [him] that Mr. Wallin had touched her private spots. .. . She defined that as her breasts and vaginal areas. She talked about him performing oral sex on her, her performing oral sex on him, [and Wallin] digitally penetrating her vagina with his finger.” M.J. further indicated that she did not want to have sexual qontact with Wallin.
At the conclusion of the trial, the jury acquitted Wallin of all charges related to R.K. but convicted him of one count of rape, three counts of aggravated criminal sodomy, and two counts of aggravated sexual battery against M.J., a victim the jury deemed incapable of giving consent due to a mental deficiency or disease. On November 12, 2013, the district court sentenced Wallin to a controlling term of 155 months’ imprisonment followed by 36 months’ postrelease supervision.
Wallin filed this timely appeal.
Sufficiency of the Evidence
Wallin contends the State presented insufficient evidence to support his convictions because the State failed to prove, beyond a reasonable doubt, that M.J. was incapable of giving consent due to a mental deficiency or disease. When the sufficiency of evidence is challenged in a criminal case, we review the claim by looking at the evidence in a light most favorable to the prosecution and determining whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014).
The jury convicted Wallin of one count of rape, a severity level 1 person felony in violation of K.S.A. 2014 Supp. 21-5503(a)(2); three counts of aggravated criminal sodomy, severity level 1 person felonies in violation of K.S.A. 2014 Supp. 21-5504(b)(3)(C); and two counts of aggravated sexual battery, severity level 5 person felonies in violation of K.S.A. 2014 Supp. 21-5505(b)(3). In order to establish Wallin’s guilt for these crimes, the State was required to prove that M.J. was (1) “incapable of giving consent because of mental deficiency or disease” and (2) such “condition was known by” Wallin “or was reasonably apparent to” Wallin. See K.S.A. 2014 Supp. 21-5503(a)(2); K.S.A. 2014 Supp. 21-5504(b)(3)(C); K.S.A. 2014 Supp. 21-5505(b)(3).
The test for consent is whether the alleged victim understands the nature and consequences of the proposed sexual act. See State v. Greene, 299 Kan. 1087, 1098, 329 P.3d 450 (2014); State v. Ice, 27 Kan. App. 2d 1, 4, 997 P.2d 737 (2000); State v. Juarez, 19 Kan. App. 2d 37, 40, 861 P2d 1382 (1993), rev. denied 254 Kan. 1009 (1994). As explained by our court:
“Therefore, in order to preserve the constitutionality of the provision, the definition of ‘nature and consequences’ must be sufficiently clear to permit the person proposing sex, and the jury, to discern whether the individual can give legal consent. If an individual can comprehend the sexual nature of the proposed act, can understand he or she has the right to refuse to participate, and possesses a rudimentary grasp of tire possible results arising from participation in the act, he or she has the capacity to consent.” Ice, 27 Kan. App. 2d at 4-5.
On appeal, Wallin acknowledges that when viewed in a fight most favorable to the State, the evidence established through lay witness testimony that M.J. “(1) was 44 [years old], but developmentally 4-6 [years old], (2) could not read or write, (3) could not put together a sequence of events, (4) could not cook, (5) could not use a dryer, and (6) did not know how a baby is made.” Wallin complains, however, that while these facts pointed to whether he knew about M.J.’s condition or whether M.J.’s “ability, or inability, to consent was reasonably apparent,” they do not address whether M.J.’s “condition actually rendered her medically incapable of engaging in consensual sexual intercourse.” (Emphasis added.) According to Wallin, adults with developmental disabilities have varying intellectual abilities and limitations, so the State was required to introduce expert medical testimony to prove “M.J. could not, in an actual medical capacity, process the necessary mental thought pattern to form consent to sexual activity.” (Emphasis added.)
The State did not introduce any expert testimony or admit medical records concerning M.J.’s mental capacity; instead, the State primarily relied upon the testimony provided by Kilpatrick, M.J., and the defendant to establish her inability to consent. But as tire State asserts, while expert testimony could be helpful to a jury in cases such as this, Wallin has advanced no persuasive legal authority which supports his contention that the State must introduce expert medical testimony in order to obtain a lawful conviction for die charged crimes.
Expert testimony is generally admissible if it aids the jury with unfamiliar subjects or the interpretation of technical facts or if it assists the jury in arriving at a reasonable factual conclusion from the evidence. See State v. Gaona, 293 Kan. 930, 948, 270 P.3d 1165 (2012). Expert testimony, however, is unnecessary if the normal experience and qualifications of jurors allows them to draw proper conclusions from the provided facts and circumstances. See State v. Wells, 289 Kan. 1219, 1236, 221 P.3d 561 (2009); see also K.S.A. 2014 Supp. 60-456 (generally governing the admissibility of lay and expert opinion testimony). In other words, “[t]o be admissible, expert testimony must be helpful to the jury. Where it is not helpful, that is, where tire normal experience and qualifications of laypersons serving as jurors permit them to draw proper conclusions from given facts and circumstances, expert testimony is inadmissible. [Citation omitted.]” State v. Papen, 274 Kan. 149, 157, 50 P.3d 37, cert. denied 537 U.S. 1058 (2002).
Wallin argues that in analogous situations Kansas courts have held that the State must introduce expert testimony to prove elements of other offenses. In support, he cites State v. McAdam, 31 Kan. App. 2d 436, 66 P.3d 252 (2003), aff’d in part, rev’d in part 277 Kan. 136, 83 P.3d 161 (2004), and State v. Laturner, 289 Kan. 727, 218 P.3d 23 (2009). Neither of these cases advance Wallin’s legal contention.
Wallin maintains that Laturner demonstrates that “[i]n a prosecution for methamphetamines, the State must produce expert testimony at trial regarding results of lab tests.” Laturner clearly is not applicable, however, because it addressed whether K.S.A. 22-3437, which permits the use of a forensic laboratory analysts certificate of analysis in lieu of testimony, violated a defendant’s rights under the Confrontation Clause of the Sixth Amendment to tire United States Constitution. After discussing the issue at length, our Supreme Court answered this question in the affirmative. 289 Kan. at 731-53.
Likewise, in McAdam, the defendant argued that the State presented insufficient evidence to sustain his convictions for attempted possession of anhydrous ammonia and conspiracy to possess anhydrous ammonia. Both of these crimes required the State to prove “ ‘the defendant knowingly possessed with the intent to use anhydrous ammonia for the illegal production of a controlled substance in a container not approved for that chemical hy the Kansas Department of Agriculture.’” 31 Kan. App. 2d at 443. The State failed to present such evidence, and our court reversed McAdam’s convictions. Our court did not, however, hold that expert testimony is the only means by which the State could have proven this element of the offense. 31 Kan. App. 2d at 443.
Wallin also cites a case, Juarez, that is factually more similar to this case. According to Wallin,' Juarez provides that expert medical testimony is required to prove the victim’s incapacity to consent. In Juarez, 19 Kan. App. 2d at 39, the defendant argued that in order to obtain a conviction for aggravated criminal sodomy based upon the victim’s incapacity to consent due to a mental deficiency or disease, “the State must prove not only that the victim is mentally deficient but also that the mental deficiency renders the victim incapable of giving consent.” After analyzing the issue, our court stated:
"Keim [v. State, 13 Kan. App. 2d 604, 777 P.2d 278 (1989)] held that a person of common intelligence is capable of determining whether an individual’s mental deficiency renders him or her incapable of giving consent. A juror, by definition, is a person of common intelligence. Therefore, when the capacity of a mentally deficient individual to consent to a sexual act is at issue, the jury is capable of determining whether that individual is able to understand the nature and consequences of engaging in such an act. In reaching its determination, the juiy should evaluate the individual’s behavior in normal social intercourse as well as consider any expert testimony concerning the individual’s mental deficiency.” (Emphasis added.) 19 Kan. App. 2d at 40.
Our court rejected Juarez’ insufficiency of the evidence argument because “[t]he testimony of [the victims] psychologist and his mother, as well as the demeanor of [the victim], were more than sufficient to support” a finding that the victim was incapable of consent. 19 Kan. App. 2d at 41.
Wallin reads Juarez as standing for the proposition that a “jury may determine an alleged victim’s mental capacity when an expert testifies to that specific victim’s actual abilities.” But the State aptly points out that the Juarez panel never actually articulated such a requirement; indeed, “the [panel] s choice of language— ‘consider any expert testimony’—plainly suggests there may or may not be expert testimony to consider.” (Emphasis added.) As the State explains, “[i]f the [panel] contemplated that expert testimony was required and would always be present, then it would have used a more definite article and said the jury should evaluate the individual’s behavior ‘as well as consider the expert testimony.’ ” Wallin has misread our court’s opinion in Juarez.
Medical, psychiatric, or psychological testimony may provide valuable expert evidence tending to prove—or disprove—the victim’s incapacity to consent to sexual acts. We have never found, however, that such expert testimony is necessarily required in order to prove the victim was incapable of consent. Depending on the facts of the case, in order to prove beyond a reasonable doubt the crimes of rape (K.S.A. 2014 Supp. 21-5503[a][2]), aggravated criminal sodomy (K.S.A. 2014 Supp. 21-5504[b][3][C]), and aggravated sexual battery (K.S.A. 2014 Supp. 21-5505[b][3]), the victim’s incapacity to give consent because of mental deficiency or disease may be established without expert testimony.
Turning to the unique facts of this case, we find the evidence was clearly sufficient, without expert testimony, to convince a rational factfinder that M.J. did not have the capacity to consent.
Kilpatrick, who has served as M.J.s guardian and conservator for 15 years and operated a foster home for “children that [were] developmentally . . . normal and also children that were developmentally challenged,” testified about M.J. s mental capabilities, the extent of her disabilities, and her understanding of the nature and consequences of sexual acts. Although M.J. was 44 years old at the time of Wallin s trial, Kilpatrick estimated that she has a mental capacity equivalent to that of a 4- to 6-year-old child who requires constant supervision. M.J. cannot read, and, with the exception of copying down letters, she cannot write. According to Kilpatrick, M.J. has the ability to perform activities of daily living, but she cannot use a stove as “she does not have the concept of how not to burn herself or set a fire,” and she cannot drive a car “[b]ecause she is not capable of making the decisions that are necessary to drive.” Kilpatrick further explained that while M.J. can remember past occurrences, it is “impossible” for her to sequence events and she does not really have any concept of time.
According to Kilpatrick, in November or December 2011, M.J. told her, in “very simple[,] basic words,” that she was upset because Wallin had been sexually molesting R.K., and then, after 10 to 15 minutes, M.J. stated that Wallin had also been “touching her sexually and had been making sexual innuendoes to her.” According to Kilpatrick, M.J. does not understand how a baby comes into the world; M.J. simply knows the baby is “in die mothers tummy and she knows it comes out.” Kilpatrick explained that she told M.J. not to have sex, as “[w]e’re going to do a lot of working and living and enjoying and having a good time in our life and we do not need that.” Although Kilpatrick believed M.J. understood, she indicated that M.J. is “always a victim” because she will follow any instruction an adult gives her: “She is the person that if any man or whatever just said lie down she would do what she was told.”
The jury also had the opportunity to observe M.J. s intellect and demeanor and fully assess her ability to understand the nature and consequences of the sexual acts and comprehend the fact that she had the right to refuse to participate. See Greene, 299 Kan. at 1098 (“[I]t is significant that A.F. testified for almost 2 hours, permitting the jury to fully assess A.F. s responses and demeanor and determine based on all the evidence whether A.F. comprehended the sexual nature of the acts she engaged in with Greene, understood she had a right to refuse, and possessed a rudimentary grasp of the consequences.”) Our review of M.J. s testimony reveals that she had difficulty understanding abstract concepts, occasionally had difficulty comprehending questions, and frequently gave confusing or inappropriate answers to questions.
M.J. testified that during the time she performed chores at Al-lens residence, she “did not like how [Wallin] touched [her] and in [her] private spots touched [her] butt and [her] breasts and he kissed [her] on the mouth.” According to M.J., Wallin touched her breasts with his mouth, her buttocks with his hands, and he told her to engage in oral sex. M.J. explained that Wallin placed his fingers inside her vagina on more than one occasion which terrified her and made her angry. M.J. further testified that Wallin touched her vagina with his mouth: “He licked me in my private spots, I know he did.... I told him he was really rude.” Twice, M.J. made a statement—in an apparent reference to the frequency with which the sexual acts occurred—to the effect of: “He did it 70 times and 16 times with me and [R.K.] and that’s the truth.” Moreover, while M.J. demonstrated the ability to identify male and female anatomy using common terminology, her responses to questions on the topic of consent showed that she did not have a rudimentary understanding of her right to refuse unwanted sexual contact.
Finally, Wallins testimony also supports the jury’s finding that M.J. was incapable of providing consent. While Wallin openly admitted that he engaged in various sex acts with R.K. and M.J., he maintained the acts were consensual. According to Wallin, his sexual relationship with R.K. and M.J. began because “they talked about sex a lot.” Regarding M.J., Wallin testified that she told him she had a baby “probably 20 years” ago and she was currently involved in a sexual relationship with a man named Mike Smith. Wal-lin, however, doubted the veracity of this story: “Well I knew that none of that was true in my mind, yet she wanted me to think that it was and that there was a sexual relationship there.” But Wallin believed that M.J. properly consented to him touching her because “it had been done before with . . . someone else in the past and she had a baby and she talked about it.” Nevertheless, Wallin could not recall the events that precipitated the sexual activity: “As far as [M.J.] goes, I don’t recall how it happened, how it started. I don’t really know. There was no—no pushing away or saying no or screaming or nothing. It just was allowed.”
Significantly, the following direct and cross-examination tended to show that Wallin knew M.J. was incapable of providing consent due to her mental deficiencies:
“[DEFENSE COUNSEL:] Okay. And would you describe [R.K.] for example as lower developed?
“[WALLIN:] Lower than a 26 year old or 28 year old, yes, but she wasn’t a five year old by any means.
“[DEFENSE COUNSEL:] And with [M.J.]?
“[WALLIN:] To compare the girls [M.J. ] would be closer to the jive or six year old, seven, somewhere in there.
“[DEFENSE COUNSEL:] Again that’s how you describe it. Is that how you feel about her, that she’s a seven year old girl?
“[WALLIN:] No.
“[DEFENSE COUNSEL:] Is she smart, [M.J.]?
“[WALLIN:] No. No, she’s not.
“[DEFENSE COUNSEL:] Is she normal?
“[WALLIN:] No, I wouldn’t say she’s normal.
“[DEFENSE COUNSEL:] Is she below normal?
“[WALLIN:] Depending on what you call normal or what.
“[DEFENSE COUNSEL:] What do you call normal? ...
“[WALLIN:] Well normal would be well a high school kid, you know, that just got out of school.
“[PROSECUTOR:] . . . [T]his morning you watched the video, do you recall Mr. Atteberry asking you—he asked you about whether the girls understood sex and do you recall saying [R.K] does; do you remember that?
“[WALLIN:] Yes, I would say I said that.
“[PROSECUTOR:] And then do you recall saying but [M.J.] does not—but [M.J.] does not?
“[WALLIN:] That is a false statement. I think she does.
“[PROSECUTOR:] But on the video you said she didn’t; do you recall that?
“[WALLIN:] I may have said that on the video, but I don’t have to believe it. It’s because I said it and I said some things on that video that I think they wanted to hear.” (Emphasis added.)
The jury found the evidence sufficiently established Wallins guilt as to M.J. The jury however, acquitted Wallin of similar charges relating to R.K. The verdicts demonstrate that the jury utilized its assessment of dre responses and demeanor of R.K. and M.J. to determine, based upon the evidence, their respective abilities to consent. On appeal, we do not reweigh evidence, resolve eviden-tiary conflicts, or make determinations regarding witness credibility. Williams, 299 Kan. at 525. Such decisions are solely within the province of the trier of fact, and we will not overturn a jury’s verdict simply because the evidence failed to exclude every other reasonable conclusion or inference. See State v. Scaife, 286 Kan. 614, 618, 186 P.3d 755 (2008).
In summary, when viewed in the light most favorable to the prosecution, there is substantial competent evidence upon which a rational factfinder could have found Wallin guilty of committing the six sex crimes against M.J., a victim incapable of providing consent due to a mental deficiency or disease.
Propriety of the Instruction on Juror Misconduct
For his second issue on appeal, Wallin contends the district court deprived him of a fair trial when, after closing arguments and prior to the evening recess, the district judge provided the jury with an instruction against juror misconduct similar to PIK Civ. 4th 101.12. This preliminary instruction for jurors in civil cases advised the juiy to avoid outside information about the case because a new trial would be an expense and inconvenience to both parties.
At trial, because closing arguments concluded at 5:10 p.m., the jury decided to delay the commencement of its deliberations until the morning. Prior to excusing the jury for the evening, the district judge admonished the jurors about their responsibilities. After describing, at length, the rules and restrictions regarding outside exposure to information related to Wallin s case, the district judge stated:
‘You must not engage [in] any activity or be exposed to any information that might unfairly affect the outcome of this case. Any juror who violates these restrictions I have explained to you jeopardizes these proceedings and a mistrial could result that would require tire entire trial process to start over. As you can imagine a mistrial is a tremendous expense on each of the parties, the court and the taxpayers.” (Emphasis added.)
Our standard of review for addressing challenges to jury instructions is based upon the following analysis:
"'(1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine 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 (4) finally, if the district court erred, the appellate court must determine 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 132 S. Ct. 1594 (2012).’ [Citation omitted.]” State v. Woods, 301 Kan. 852, 876, 348 P.3d 583 (2015).
With regard to the preservation inquiry, Wallin candidly concedes that he did not object to the instruction. This failure to object is consequential. A party may not claim error for the district courts giving or failure to give a juiy instruction unless (1) the party objects before the jury retires, stating distinctly the matter to which the party objects and the grounds for the objection; or (2) the instruction or the failure to give the instruction is clearly erroneous. State v. Smyser, 297 Kan. 199, 204, 299 P.3d 309 (2013). Accordingly, because Wallin failed to object to the instruction, he must establish clear error. See State v. Bolze-Sann, 302 Kan. 198, 209-10, 352 P.3d 511 (2015).
Appellate courts utilize a two-step process in determining whether a challenged instruction was clearly erroneous: (1) the court must determine whether there was any error at all by considering whether the subject instruction was both legally and factually appropriate, employing an unlimited review of the entire record; (2) if the court finds error, it must assess whether it is firmly convinced the jury would have reached a different verdict without the error. See State v. Clay, 300 Kan. 401, 408, 329 P.3d 484, cert. denied 135 S. Ct. 728 (2014). In evaluating whether an instruction rises to the level of clear error, the issue of “[rjeversibility is subject to unlimited review and is based on the entire record,” and the party claiming error in the instructions has the burden to prove the degree of prejudice necessaiy for reversal. State v. Betancourt, 299 Kan. 131, 135, 322 P.3d 353 (2014).
Citing State v. Salts, 288 Kan. 263, 200 P.3d 464 (2009), Wal-lin argues that the district judge committed reversible error because he provided the juiy with an Allen-type instruction, i.e., he informed the jury that a “mistrial is a tremendous expense on each of tire parties, the court and the taxpayers.” See Allen v. United-States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896). “[A]n Allen instruction is any instruction ‘that encourages the jury to reach a unanimous verdict so as to avoid a mistrial.’ [Citations omitted.]” State v. Tahah, 302 Kan. 783, 794, 358 P.3d 819 (2015). In Salts, our Supreme Court disapproved of the inclusion of the phrase “ ‘[a] nother trial would be a burden on both sides’ ” in an Allen-type instruction:
“Contraiy to this language, a second trial may be burdensome to some but not all on either side of a criminal case. Moreover, the language is confusing. It sends conflicting signals when read alongside . . . [an] instruction that tells jurors not to concern themselves with what happens after they arrive at a verdict.” Salts, 288 Kan. at 266.
Recently, however, a majority of our Supreme Court declined to expand the holding of Salts to preliminary jury instructions. Tahah, 302 Kan. at 794-95. In Tahah, the district court informed the newly impaneled jury at the beginning of trial that the “consideration of outside information could result in a mistrial, which ‘is a tremendous expense and inconvenience to the parties, the Court and the tax payers.’” 302 Kan. at 792. After noting the courts “long and justified history of disapproving Allen-type jury instructions,” the majority concluded that the “warning against juror misconduct contained in PIK Civ. 4th 101.12 is both legally and factually accurate in the criminal context as well as the civil.” 302 Kan. at 794. The court explained:
“The preliminary juiy instruction here ... is not an Allen instruction. Its character and purpose are entirely different. The instruction occurred at the start of trial, before the presentation of evidence, and warned jurors of the dangers of a mistrial resulting from their own misconduct. As such, its coercive effect (to prevent juror misconduct) is entirely proper and justified. Moreover, because its purpose is proper, tire instruction is factually accurate. The prospect of a mistrial due to juror misconduct—especially when viewed from the pretrial vantage point of the parties—is, in fact, equally inconvenient and undesirable to both parties. In particular, it interferes with the defendant’s right to a speedy resolution of the criminal allegations against him or her. Given this significant distinction, the Salts rationale is inapplicable here.
“Juror misconduct imposes grave costs not only to the parties and others involved in tire trial process, but significantly to the integrity of our jury trial criminal justice system itself, which depends on the honest and ethical behavior of jurors. We do not need to look far to see the ease with which today’s smartphone equipped jurors can commit misconduct—perhaps even innocently. [Citation omitted.]” Tahah, 302 Kan. at 795.
Based on Tahah, we find no error occurred here because the district judges admonishing remarks were not legally or factually inaccurate.
It is important to note, however, there is one difference between the facts in Tahah and this case; the instruction in Tahah was given before the presentation of evidence whereas the instruction provided here was given after closing arguments and prior to the juiy’s deliberation. See Tahah, 302 Kan. at 795. As explained by our court in State v. Davis, No. 112,204, 2015 WL 6443466, at *3 (Kan. App. 2015) (unpublished opinion):
“We note this difference because the court in Tahah suggested that the ‘coercive effect’ of tire instruction was proper in part because of the timing of the instruction—that is, the juiy should be cautioned about misconduct in light of the opportunity for such misconduct to occur during the trial. [Tahah, 302 Kan. at 795.]”
The instruction at issue in Davis presented a similar timing issue because it was provided to the jury at the close of the evidence but before the parties’ closing arguments. Nevertheless, our court determined that although the “better practice” would be to give such an instruction at the beginning of the trial, it is not erroneous for a district court to give the instruction prior to jury deliberation because “as the majority observed in Tahah, there is both the opportunity for and danger of juror misconduct during the deliberation phase of the trial.” 2015 WL 6443466, at *3.
We find Davis persuasive. Accordingly, we conclude the district court did not err when it utilized a juror misconduct instruction similar to PIK Civ. 4th 101.12. We reiterate, however, the Davis court s admonition that, if the instruction is given, the better practice is to provide it to the jury at the beginning of trial.
Moreover, assuming the timing of the admonishment was erroneous, this error does not warrant reversal because Wallin has failed to show that it impacted the outcome of his trial. See State v. Horton, 300 Kan. 477, 493, 331 P.3d 752 (2014) (in tire absence of evidence of deadlock and in the presence of compelling evidence of guilt, no clearly reversible error in giving Allen-type instruction); State v. King, 297 Kan. 955, 985-86, 305 P.3d 641 (2013) (same).
Wallin insists that reversal is warranted because the district judges admonishment may have coerced a minority juror to convict him, as “[tjhis case amounted to a credibility contest between [Kilpatrick] and [himself].” We doubt the admonishment had any coercive effect. The record is devoid of any evidence which suggests the jury was unduly influenced by the district judges admonishment. In fact, the jury deliberated 4 to 6 hours, and during this time, the jurors never communicated that they were deadlocked, at an impasse, or in any way pressured into reaching a verdict. Additionally, the evidence supporting Wallins convictions was substantial, and the jury’s decision to acquit on the charges related to R.K. demonstrates the jury “remained quite capable of holding the State to its burden of proof at trial, despite the language in the preliminary instruction.” See Davis, 2015 WL 6443466, at *4.
In conclusion, the district court did not err when it provided the jury with an instruction similar to PIK Civ. 4th 101.12.
Affirmed.
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Per Curiam:
This is an original disciplinary proceeding against Honorable Timothy H. Henderson, District Judge of the Eighteenth Judicial District, sitting in Sedgwick County (Respondent). The matter was investigated by Panel A of the Kansas Commission on Judicial Qualifications (Commission), following which that panel docketed a formal complaint against Respondent and gave due notice. See Supreme Court Rule 611(b) (2014 Kan. Ct. R. Annot. 801) (discussing procedure for filing of formal proceedings). The complaint alleged three counts of judicial misconduct constituting various violations of Canons 1 and 2 of the Kansas Code of Judicial Conduct (the Code), as will be discussed in detail below. See Rule 601B of the Rules of the Kansas Supreme Court (2014 Kan. Ct. R. Annot. 751) (containing the Code).
After being served with the Notice of Formal Proceedings, Respondent timely filed an Answer, in which he denied that his conduct violated the Code. The matter was then set for a public hearing before Panel B of the Commission (the hearing panel). At the hearing, the Commission’s investigating attorney presented evidence and argument in support of the formal complaint and Respondent’s attorney presented evidence and argument on his behalf.
Subsequently, the hearing panel announced its decision through a written document, entitled “Findings of Fact, Conclusions of Law, and Recommendation,” in which it found Code violations under all three counts and recommended that Respondent be disciplined by public censure. The panel’s written report, in relevant part, stated as follows:
“AMENDED FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION
“On March 21, 2014, Panel A of the Commission on Judicial Qualifications issued a Notice of Formal Proceedings, pursuant to Rule 611(b) (2013 Kan. Ct. R. Annot. 776), against Timothy H. Henderson, District Judge of the 18th Judicial District: The Notice of Formal Proceedings alleged that Respondent did engage in certain conduct which violated Rules 1.2 and 1.3 of Canon 1 (2013 Kan. Ct. R. Annot. 733-735) and Rules 2.2, 2.3, and 2.9 of Canon 2 (2013 Kan. Ct. R. Annot. 735-740).
“On April 21, 2014, the Notice of Formal Proceedings was amended at Count II, Paragraph 5 to read ‘pending or impending matter.’
“On May 15-16, 2014, a public hearing was held in Topeka, Kansas, before Panel B of the Commission on Judicial Qualifications, at which hearing the Panel accepted stipulations and heard evidence on the record.
“Members of the Panel present for this hearing were: Jeffery A. Mason, Chair; Honorable Robert J. Fleming; Honorable David J. King; Honorable Nicholas St. Peter, and Diane S. Worth. Edward G. Collister, Jr., and Adam M. Hall appeared in support of the Notice of Formal Proceedings. Respondent appeared personally and through counsel, Thomas J. Berscheidt.
“Having heard the evidence and arguments of counsel, the Panel makes the following findings of fact, conclusions of law, and recommendation to the Supreme Court of the State of Kansas concerning discipline.
“COUNT I
“FINDINGS OF FACT
“The Panel concludes the following facts are established by clear and convincing evidence. See In re Rome, 218 Kan. 198, 542 P.2d 676 (1975).
“1. Respondent engaged in harassment as well as gender bias by making repeated inappropriate and offensive comments in the presence of female attorneys employed by the Sedgwick County District Attorney’s Office.
“2. The Respondent’s conduct was directed toward multiple female attorneys, including Melissa Green, an attorney employed by the Office of the District Attorney, Juvenile Division, in the 18th Judicial District since January 2013. Respondent engaged in incidents of inappropriate, harassing behavior towards Melissa Green.
“3. While Ms. Green was employed with the now-named Department for Children and Families prior to her employment with the Office of the District Attorney, Ms. Green was assigned to Respondent’s court for approximately five years. Ms. Green testified that, in approximately October 2006, at a time when Respon dent and Ms. Green were in the courtroom alone, Respondent told Ms. Green that after his wife gave birth the doctor asked Respondent if he wanted an extra stitch in Respondent’s wife for Respondent’s pleasure.
“4. Respondent testified at the hearing that, although the doctor did in fact make the statement, Respondent denied repeating it to Ms. Green. The Panel does not find Respondent’s testimony credible because the incident occurred years before Ms. Green knew Respondent. She would not have had contemporaneous knowledge of the incident.
“5. While Ms. Green was employed with tire Department for Children and Families prior to her employment with tire Office of the District Attorney, Respondent regularly made sporadic and pervasive comments of a sexual or suggestive nature. Two examples were telling Ms. Green she was the girl who wouldn’t date him in high school and remarking on another occasion, ‘whatever, prom queen.’ Ms. Green testified that, although each comment standing alone might not have been offensive, it was tire cumulative effect of so many of tírese comments that became offensive.
“6. While Ms. Green was employed with the Office of the District Attorney, Ms. Green made and delivered an over-the-hill birthday cake for Jennifer Redd’s birthday party, at the request of Respondent. Respondent pointed to a representation of an old couple crossing the street and laughed, stating it looked like she was giving lrinr tire ‘reach around.’ Ms. Green testified at the hearing that this is a comment of a sexual nature from the gay community and could not have been used innocently.
“7. Initially, Respondent testified that dre comment was a reference to ‘feeling the aches and pains’ of his age and that before long his wife would have to ‘reach around and help me like that.’ Later he testified that he intended tire comment to be a joke about his own size. The Panel did not find Respondent’s explanations credible.
“8. On September 10, 2013, after a difficult trial, the Respondent asked Ms. Green if she felt tire tension between lrerself and the father in the case. Ms. Green testified at tire hearing that Respondent placed particular emphasis on the word ‘tension.’ Based on her past experiences with Respondent, Ms. Green interpreted tire comment to mean sexual tension. Respondent repeated the question several times, to Ms. Green’s embarrassment, and she asked him to stop. She testified drat she found tire comments hurtful and disrespectful following her professional work with a difficult witness. Kristi Topper, Assistant District Attorney, advised Ms. Green Respondent discussed tire hearing and tire sexual tension between Ms. Green and the father tire next day in the hallway with two male attorneys. Ms. Topper specifically testified at tire hearing that Respondent used the word ‘sexual’ with regard to the tension.
“9. Melissa Green also testified about another comment Respondent made in February 2013 in the law library. Respondent overheard women attorneys joking about shaving their legs and inserted himself into the conversation saying, “Well, your legs rub together when you walk.’ The women were embarrassed, and Ms. Green told Respondent to ‘shut up.’ Kristi Topper was also present and corroborated Ms. Green’s testimony. Ms. Topper found Respondent’s comment highly offensive.
‘TO. The Respondent’s conduct was directed toward multiple female attorneys, including Amanda Marino. Respondent engaged in incidents of inappropriate, harassing behavior towards Amanda Marino, an Assistant District Attorney whose practice focuses primarily on children in need of care.
“11. Respondent made inappropriate comments in late 2011 insinuating that Ms. Malino liked to have a lot of sex. The comments were based on a vacation she was talcing to Las Vegas and a statement that she liked to play a slot machine called Sex in the City. Her comment was apparently cut short, resulting in a statement that she liked sex. Respondent repeated the joke numerous times to Ms. Marino’s embarrassment.
“12. Respondent joked about whether Ms. Marino was pregnant or would be pregnant after vacations. This subject continued for a few years. One incident in particular occurred in 2013 when Respondent inquired across the courthouse parking lot whether Ms. Marino had ‘another one on the way’ after she returned from vacation. Respondent testified these comments were not sexual but rather celebrated children. The Panel did not find this explanation credible.
“13. In September 2013, there was a CINC case involving a young girl from China forced to work long hours in a financial-type human trafficking. Ms. Marino was in the law library, discussing house work. The Respondent asked Ms. Marino if she needed someone to help her with house work because he knew a young Asian girl who was available.
“14. On another occasion, Respondent encouraged Ms. Marino to ask his court reporter, Jennifer Redd, about her back pain. Twice, Respondent said, ‘Go ahead, ask her where she’s been all weekend.’ When Ms. Marino did not respond, Respondent commented, ‘Yeah, her back hurts because she’s been with her boyfriend all weekend.’ On the witness stand, Ms. Redd denied that Respondent made the comment, but she did corroborate that she had a sore back for a few weeks.
“15. Ms. Marino complained to her supervisor, Ron Paschal, in 2012 about Respondent’s conduct and was re-assigned so that she no longer appeared before him. She testified that she didn’t report the incidents before because Respondent was a judge and she felt he would retaliate.
“16. The Respondent’s conduct was directed toward multiple female staff members, including Sandra L. (Charbonneau) Lessor. Respondent engaged in incidents of inappropriate, harassing behavior towards Ms. Lessor, Assistant District Attorney.
“17. Ms. Lessor and Respondent have worked together in some capacity for approximately 15 years. Between October 21, 2012, and July 5, 2013, Ms. Lessor heai'd Respondent malee numerous comments regarding women getting pregnant on their honeymoons. Around January 23, 2013, Respondent made a similar comment to her.
“18. Ms. Lessor heard Respondent make inappropriate comments of a sexual nature to Amanda Marino regarding Ms. Marino’s trip to Las Vegas.
“19. When asked why she did not file a complaint against Respondent, she testified at the hearing, ‘Who wants to take on the boss?’ Other Assistant District Attorneys who testified against Respondent did not come forward initially with complaints about the judge’s conduct because they were each afraid of his ability to jeopardize their careers. The judge had made clear that he was well connected politically.
“20. It was die Assistant District Attorneys’ supervisor, Angela Wilson, who made tíre decision that something needed to be done about Respondent’s behavior toward diese women when she saw a pattern in his behavior. She was concerned about die District Attorney’s liability for sexual harassment, and she determined it would violate her own ethical dudes not to see that a report was made. Ultimately, it was die decision of the District Attorney, Marc Bennett, to file the ethical complaint against Respondent.
“21. In rebuttal to direct testimony by Lynette Hermann, a former Assistant District Attorney called on behalf of Respondent, that frivolous allegations of sexual innuendo had been made against Judge Henderson ‘to further an agenda’ of die District Attorney’s Office, Court Services Officer Andrew Hinshaw testified that he had worked around Respondent since November 2006 and had observed Respondent make comments to females tiiat Hinshaw characterized as sexual and inappropriate. He testified, for example, tiiat right after Melissa Green joined the District Attorney’s Office Respondent made a comment at the end of a hearing in his courtroom that she was the ‘new hot DA.’ Mr. Hinshaw is employed by the Sedgwick County Juvenile Court.
“22. Knowledge of die nature of Judge Henderson’s humor extended beyond diese female attorneys. Lanora Franck, then Juvenile Justice Education Liaison for the Sedgwick County Department of Corrections, testified that Respondent frequentiy would malee sexual comments in a professional setting.
“23. In an evidentiary deposition taken on May 13, 2014, Chief Judge James Fleetwood of the 18th Judicial District responded to die following questions posed by counsel for the Commission on Judicial Qualifications:
‘Q. Do you have any personal experience with sort of off color or blue humor being used by Judge Henderson?
‘A. Yes.
‘Q. And in your personal experience is that off color or blue humor of a sexual nature?
‘A. Yes.’
“24. In response to Chief Judge Fleetwood’s testimony, Respondent testified as follows: ‘A lot of times judges get together, we get togedier for lunch, we talk about our jobs, we talk about our cases. The case I’m thinking tiiat Judge Fleet-wood is—I can’t speculate— obviously for the purposes of this hearing didn’t ask me if my memory was die same as his memory, is we have a gentleman in To- pelea—excuse me, in Wichita named King David David. And King David David whenever he would have sexual relationships with a woman he would collect her [sic] undergarments and put it [sic] in a Brandy sniffer on his fireplace mantle. I recall talking over lunch about what a crazy strange case I had in that regard. I’m assuming that’s what he means. We’d talk about our cases. Sometimes cases are sexual and those things get talked about. Judge Fleetwood is a very devout Mor-man Elder and I’m sure I’ve used vulgar language or a cuss word at times that probably offended him. I told him afterwards I do apologize if I did offend you.’ The Panel did not find Respondent’s explanation credible.
“COUNT I
“CONCLUSIONS OF LAW
“25. The Notice of Formal Proceedings alleges in Count I that Respondent’s conduct violated the provisions of Rule 1.2 of Canon 1 and Rule 2.3 of Canon 2.
“26. CANON 1 provides: [‘]A JUDGE SHALL UPHOLD AND PROMOTE THE INDEPENDENCE, INTEGRITY, AND IMPARTIALITY OF THE JUDICIARY, AND SHALL AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY. [’]
“27. RULE 1.2 provides: [‘]A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety. [’] “Comment [5] of Rule 1.2 provides further insight.
[‘][5] Actual improprieties include violations of law, court rules, or provisions of this Code. The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge violated this Code or engaged in other conduct that reflects adversely on the judge’s honesty, impartiality, temperament, or fitness to serve as a judge. [’]
“28. CANON 2 provides: [‘]A JUDGE SHALL PERFORM THE DUTIES OF JUDICIAL OFFICE IMPARTIALLY, COMPETENTLY, AND DILIGENTLY. [’]
“29. RULE 2.3 provides, in relevant part:
H(B) A judge shall not, in the performance of judicial duties, bywords or conduct manifest bias or prejudice, or engage in harassment, including but not limited to [emphasis added] bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation . . . ■[’]
“Comments [2-4] of Rule 2.3 provide further insight.
[*] [2] Examples of manifestations of bias or prejudice include but are not limited to epithets; slurs; demeaning nicknames; negative stereotyping; attempted humor based upon stereotypes; threatening, intimidating, or hostile acts; suggestions of connections between race, ethnicity, or nationality and crime; and irrelevant references to personal characteristics. Even facial expressions and body language can convey to parties and lawyers in the proceeding, jurors, the media, and others an appearance of bias or prejudice. A judge must avoid conduct that may reasonably be perceived as prejudiced or biased.
[c] [3] Harassment, as referred to in paragraphs (B) and (C), is verbal or physical conduct that denigrates or shows hostility or aversion toward a person on bases such as race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation.
[c][4] Sexual harassment includes but is not limited to sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that is unwelcome. [’]
“30. The Panel unanimously finds that Respondent’s conduct, established by clear- and convincing evidence, violated Rule 1.2 of Canon 1 and Rule 2.3 of Canon 2.
“31. Respondent engaged in pervasive comments of a sexual nature which were offensive and demeaning to female attorneys in the District Attorney’s Office.
“32. The complainants’ recollections were clear and unequivocal; whereas, the Panel found Respondent’s denials not to be credible.
“COUNT II
“FINDINGS OF FACT
“The Panel concludes the following facts are established by clear and convincing evidence. See In re Rome, 218 Kan. 198, 542 P.2d 676 (1975).
“33. On Saturday, May 11, 2013, Respondent sent an email from his personal email account to Wjkahrs [later identified as William Jeffrey Kahrs, an employee of the Department for Children and Families] and Diane Bidwell [then head of the Wichita Regional Office of DCF] regarding Wichita attorney Martin Bauer’s employment in adult guardianship cases. Ms. Bidwell testified at the hearing that she had a prior face-to-face meeting with Respondent on the same subject.
“34. In testimony at the hearing, it was established that Diane Bidwell forwarded the email through the DCF system where it eventually reached Bruce Brown, Assistant Program Director. Testimony at tire hearing established that the email traveled from Diane Bidwell, to Gina Hummel, to Leslie Hale, and finally to Bruce Brown. The email from Diane Bidwell to Gina Hummel on May 14, 2013, contained a statement that she (Diane) ‘would like to take Martin Pringle off of the list.’
“35. In addition to commenting on Martin Bauer’s presumed hourly rate, Respondent commented further in the email: ‘For many years he [Martin Bauer] handled the life [sic] birth adoptions from Dr. Tiller. Rick Macias can tell you about his very liberal positions on the national adoption attorneys [association. Judge Brooks can tell you about tire gay adoptions and custodianship’s [sic] that he has attempted to establish. Your call of course, but I wanted to malee you aware of the situation.’
“36. Respondent admitted at the hearing that he had incorrect information about Martin Bauer’s hourly rate and admitted that he expressed a personal political view in the email that he should not have expressed.
“37. Respondent’s email exhibits a negative stereotype and/or a hostility or aversion toward Martin Bauer and his beliefs that conveys the appearance of bias and prejudice.
“38. Martin Bauer and his law firm were removed from the DCF appointment list.
“39. Diane Bidwell testified at the hearing that weight was placed on Respondent’s view in making the decision to remove Martin Bauer. Leslie Hale testified that Martin Bauer was removed solely because of the email.
“40. The Respondent contacted a represented party about a pending or impending matter and did not notify opposing counsel of the email, thus engaging in an ex parte communication.
“COUNT II
“CONCLUSIONS OF LAW
“41. The Notice of Formal Proceedings alleges in Count II that Respondent’s conduct violated the provisions of Rule 1.2 of Canon 1 and Rules 2.2, 2.3, and 2.9 of Canon 2, as follows:
"42. CANON 1 provides: [‘]A JUDGE SHALL UPHOLD AND PROMOTE THE INDEPENDENCE, INTEGRITY, AND IMPARTIALITY OF THE JUDICIARY, AND SHALL AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY. [’]
“43. RULE 1.2 provides: [‘]A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety. [’] “Comment [5] of Rule 1.2 provides further insight.
[*] [5] Actual improprieties include violations of law, court rules, or provisions of this Code. The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge violated this Code or engaged in other conduct that reflects adversely on the judge’s honesty, impartiality, temperament, or fitness to serve as a judge. [’]
“44. CANON 2 provides: [‘]A JUDGE SHALL PERFORM THE DUTIES OF JUDICIAL OFFICE IMPARTIALLY, COMPETENTLY, AND DILIGENTLY. [’]
“45. RULE 2.2 provides: [‘]A judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially. [’]
“Comment [1] of Rule 2.2 provides further insight.
f‘][l] To ensure impartiality and fairness to all parties, a judge must be objective and open-minded.[’]
“46. RULE 2.3 provides, in relevant part:
[‘](B) A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation . . . .[*]
“47. RULE 2.9 provides, in relevant part:
[‘](A) A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers, concerning upending or impending matter....[’]
“48. The Panel unanimously finds that Respondent’s conduct, established by clear and convincing evidence, violated Rule 1.2 of Canon 1 and Rules 2.2, 2.3, and 2.9 of Canon 2.
“49. Evidence introduced at the hearing established that Respondent exhibited bias or prejudice against attorney Martin Bauer or appealed to the recipient’s bias or prejudice to the detriment of Mr. Bauer.
“50. Respondent inappropriately mixed his personal views on socio-political issues with his role as a judge.
“51. Respondent inappropriately engaged in ex parte communication about an impending legal action.
“COUNT III
“FINDINGS OF FACT
“The Panel concludes the following facts are established by clear and convincing evidence. See In re Rome, 218 Kan. 198, 542 P.2d 676 (1975).
“52. Around the end of the school year- in June 2012, Respondent approached Lanora Nolan [now Franck], in her capacity as a Board Member of the Wichita Board of Education, and requested that she intervene on behalf of Respondent’s wife with the Wichita School District. At the time, Lanora Nolan was the Juvenile Justice Education Liaison for the Sedgwick County Department of Corrections, working with Respondent in a professional capacity. The conversation occurred at the courthouse. Respondent’s inquiry concerned a teaching position or, in the alternative, another position within the school district for his wife.
“53. Respondent asked Lanora Nolan to investigate the reason his wife was not offered a contract, if appropriate records had been kept, and if there was any foul play involved. Ms. Nolan looked into the matter and found that Respondent’s wife had been offered a contract for a full-time position. Ms. Nolan communicated this information to Respondent. The Respondent contacted Ms. Nolan again and asked if there might be a half-time position available for his wife, as his wife had decided to return to school for further education.
“54. Lanora Nolan felt, at the time, the Respondent was using his position to request her to compromise her position on die Wichita School Board on behalf of his wife. Ms. Nolan [now Franck] testified drat there was not pressure in an overt way, but she was influenced by die fact drat he was a judge.
“55. Respondent testified at the hearing that, in his passing conversation with Lanora Nolan, he was only concerned about his wife’s KPERS rollover. He didn’t intend to use his position as a judge to influence her. Respondent’s version of the incident, however, is not credible. In fact, it was refuted by the documentary evidence offered in rebuttal testimony by Ms. Nolan.
“56. On rebuttal, Lanora Nolan [now Franck] testified that she did not recall a conversation about KPERS. She produced copies of emails that established Respondent’s inquiry was more than a passing one.
“57. On August 7, 2012, Respondent emailed Lanora Nolan with the subject heading Re: wife. Respondent wrote: ‘You ever get a chance to look into this?’
“58. On November 14, 2012, Respondent again emailed Lanora Nolan with the subject heading Re: Ann [Respondent’s wife]. Respondent wrote: ‘Lanora. Did you ever find out if Gateway is willing to consider a .5 math teacher? Tim.’
“59. On November 15, 2012, Lanora Nolan responded: ‘Yesterday was the first day back at school and I left a message for the principal.’
“COUNT III
“CONCLUSIONS OF LAW
“60. The Notice of Formal Proceedings alleges in Count III that Respondent’s conduct violated the provisions of Rules 1.2 and 1.3 of Canon 1, as follows:
“61. CANON 1 provides: [‘]A JUDGE SHALL UPHOLD AND PROMOTE THE INDEPENDENCE, INTEGRITY, AND IMPARTIALITY OF THE JUDICIARY, AND SHALL AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY. [’]
“62. RULE 1.2 provides: [‘]A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and tire appearance of impropriety. [’]
“63. RULE 1.3 provides: [‘]A judge shall not lend the prestige of judicial office to advance the personal or economic interests of the judge or others, or allow others to do so.[’]
“Comment [1] of Rule 1.3 provides further insight.
['] [1] It is improper for a judge to use or attempt to use his or her position to gain personal advantage or deferential treatment of any kind. For example, it would be improper for a judge to allude to his or her judicial status to gain favorable treatment in encounters with traffic officials ....[’]
“64. The Panel unanimously finds that Respondent’s conduct, established by clear and convincing evidence, violated Rules 1.2 and 1.3 of Canon 1.
“65. Evidence introduced at tire hearing established that Respondent asked Ms. Nolan [now Franck] for a favor to gain an employment opportunity for his wife.
“RECOMMENDATION TO THE SUPREME COURT
“The Panel has considered all of the testimony and evidence, had the opportunity to observe the demeanor of witnesses testifying at the hearing, and it is the Panel’s considered judgment that many of Respondent’s explanations, or denials, of the allegations are not credible. In some instances, Respondent’s testimony changed in questioning on the same subject. In other instances, his testimony was contradicted by evidence tire Panel found extremely credible.
“Pursuant to Supreme Court Rule 620 (2013 Kan. Ct. R. Annot. 780), based upon the foregoing Findings of Fact and Conclusions of Law, and based on the unanimous vote of the members, the Panel recommends to the Supreme Court of the State of Kansas that Respondent be disciplined for the violations set forth above by public censure.”
After the panel submitted its written decision, Respondent filed a statement with this court, advising that he “does not wish to file exceptions to the Findings of Fact and Conclusions of Law and does not request to reserve the right to address the Supreme Court with respect to the disposition of this case unless counsel for the Commission of Judicial Qualifications is granted authority to address the Court.” Pursuant to Supreme Court Rule 623(d) (2014 Kan. Ct. R. Annot. 808), “[a] hearing panel’s findings of fact and conclusions of law shall be conclusive and may not be challenged by respondent unless exceptions have been timely filed.” Accordingly, a hearing was conducted before this court with respect to the disposition of the case.
Discussion
The hearing panel found that the charges against Respondent had been proven by clear and convincing evidence. See Supreme Court Rule 620(a) (2014 Kan. Ct. R. Annot. 806) (requiring clear and convincing evidence). Clear and convincing evidence is “ ‘evidence that causes the factfinder to believe that “the truth of the facts asserted is highly probable.” ’ ” In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009) (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]). As noted, given Respondent’s statement declining to file exceptions to the hearing panel’s findings of fact, they are deemed conclusive.
Moreover, our review of the record confirms that1 the panel’s conclusions of law were. supported by clear and convincing evidence. Accordingly, we adopt those conclusions and find that the Respondent violated Rules 1.2 and 1.3 of Canon 1 (2014 Kan. Ct. R. Annot. 759), and Rules 2.2, 2.3, and 2.9 of Canon 2 (2014 Kan. Ct. R. Annot. 761) of the Kansas Code of Judicial Conduct.
The remaining task for this court is to “impose such discipline or malee such other disposition as may be deemed proper and just.” Supreme Court Rule 623(d) (2014 Kan. Ct. R. Annot. 808). The hearing panel unanimously recommended to this court that Respondent be disciplined by public censure. See Supreme Court Rule 620 (2014 Kan. Ct. R. Annot. 806) (“ ‘Discipline’ means public censure, suspension, or removal.”). Interestingly, the panel did not follow the recommendation of the hearing panel examiner, who asked the panel to temporarily suspend and then remove the Respondent, stating: “In the absence of a respondent who is taking responsibility for what happens, accepts what had occurred, and is willing to change his conduct, we see no alternative than to remove him.” The Respondent takes no exception to the panel’s recommendation of public censure.
Rut the hearing panel’s recommendation as to the disposition of the case is not binding upon this court. In re Robertson, 280 Kan. 266, 269, 120 P.3d 790 (2005) (citing In re Platt, 269 Kan. 509, 528, 8 P.3d 686 [2000]). We “may refer the matter back to a hearing panel for such further proceedings as the court may direct, reject the recommendations, dismiss the proceedings, order discipline or compulsory retirement, or make such other disposition as justice may require.” Supreme Court Rule 623(f) (2014 Kan. Ct. R. Annot. 809).
In In re Robertson, this court opined that “[t]he aim of judicial discipline ‘is the maintenance of the honor and dignity of the judiciary and the proper administration of justice rather than the punishment of the individual.’ ” 280 Kan. at 273 (quoting State ex rel. Comm'n on Judicial Qualifications v. Rome, 229 Kan. 195, 206, 623 P.2d 1307 [1981]). The Robertson court discussed helpful factors to use in evaluating the appropriate judicial discipline to impose, to-wit: “the extent of the misconduct, the nature of the misconduct, the judge’s conduct in response to the Commission’s inquiry and disciplinary proceedings, the judge’s discipline record and reputation, and the effect the misconduct had upon the integrity and respect for the judiciary.” Robertson, 280 Kan. at 270 (citing Gray, Handbook for Members of Judicial Conduct Commissions 15 [American Judicature Society 1999]).
Looking first at the nature of the misconduct, the evidence established that the Respondent exhibited extremely poor judgment or blatantly misused the power of his judicial position in multiple ways. He made offensive and demeaning comments of a sexual nature to female attorneys and staff members. Those victims endured the harassment over an extended period of time because they feared Respondent would use his professed political connections to jeopardize their careers. The Respondent interfered with an attorney’s practice by sending an ex parte email communication to the attorney’s client that expressed bias or prejudice toward the attorney, founded in part on the Respondent’s apparent disagreement with the attorney’s moral beliefs. Finally, the Respondent tried to use the influence of his judicial position for personal gain by brokering an employment opportunity for his wife. These offenses were not inadvertent “technical” missteps. The nature of Respondent’s misconduct struck at the very heart of the honor and dignity drat the public expects and the legal profession demands from a judge.
The extent of Respondent’s misconduct was wide-ranging, especially with respect to the first count of the three-count complaint. What the Respondent’s Chief Judge labeled “off color or blue humor” was pervasive and ongoing. The Respondent subjected multiple female attorneys and staff members to repeated inappropriate and offensive comments for literally years. Moreover, often the comments directed at a particular female were made in front of other persons, thereby further broadcasting the denigration of the judiciary’s integrity.
The Respondent’s conduct in response to the Commission’s inquiry and the disciplinary proceedings does not suggest that he grasped the nature or severity of his actions. In his Answer, Respondent denied all Code violations, including “emphatically” denying the alleged violation of Canon 2, Rule 2.3 (2014 Kan. Ct. R. Annot. 762) in Count 1, which was based on the Respondent’s offensive and demeaning comments to various females. At his panel hearing, Respondent’s attempted denials, rationalizations, and explanations were either effectively rebutted by other evidence or incredible. When asked by this court whether he had sought any type of sensitivity training or counseling, Respondent made the unsubstantiated declaration that therapists had told him that therapy would not help with this type of misconduct.
The next factor—the judge’s disciplinary record and reputation—cuts both ways in this case. In his favor, Respondent has no prior disciplinary record. But Respondent’s reputation for employing what his Chief Judge called “off color or blue humor” extended beyond the females that he specifically harassed in this case. And most disconcerting, despite that widespread knowledge, Respondent’s conduct went unchallenged for years.
Perhaps the most important factor for our consideration is the effect that Respondent’s misconduct had upon the integrity and respect for the judiciaiy. The Preamble to the Kansas Code of Judicial Conduct explains why this factor is so important when it states: “Our legal system is based upon the principle that an independent, impartial, and competent judiciary, composed of men and women of integrity, will interpret and apply the law that governs our society.” Supreme Court Rule 601B (2014 Kan. Ct. R. Annot. 751). The Preamble goes on to inform judges that they “must respect and honor the judicial office as a public trust and strive to maintain and enhance confidence in the legal system,” and, in that regard, “[j judges should maintain the dignity of judicial office at all times, and avoid both impropriety and die appearance of impropriety in their professional and personal lives.” 2014 Kan. Ct. R. Annot. 752. Moreover, the Code was put in place to “assist judges in maintaining the highest standards of judicial and personal conduct.” 2014 Kan. Ct. R. Annot. 752.
A judge who sexually harasses female attorneys and staff members, who uses his judicial office to harm the law practice of an attorney with whom the judge disagrees on moral issues, and who uses his judicial office for personal gain by trying to influence whetiier his wife is offered a job has fallen well short of those highest standards. Such improprieties are precisely the type of misconduct that can undermine the public’s confidence in the judiciary.
The Respondent’s conduct in making “repeated inappropriate and offensive comments” to female staff members and to female attorneys appearing in his court is particularly troubling. Even in the private sector, the law would not tolerate such a hostile work environment. See, e.g., Labra v. Mid-Plains Constr., Inc., 32 Kan. App. 2d 821, Syl. ¶ 8, 90 P.3d 954 (2004) (“Isolated incidents of conduct that may be offensive or boorish are not actionable as sexual harassment, but where the employee is the target of a persistent pattern of sexually provocative conduct that is intended to satisfy the supervisor’s prurient desires in the workplace and beyond, such conduct is actionable in Kansas.”). But we have set the bar higher for the courts, declaring that “[hjeightened sensitivity to respectful relationships in the Kansas judicial workplace is mandatory.” In re Alvord, 252 Kan. 705, 709, 847 P.2d 1310 (1993).
Accordingly, we do not view public censure as the appropriate sanction in this case and a majority of the court hereby imposes an initial sanction of an unpaid, 90-day suspension, commencing within 10 days of the filing of this opinion. A minority would impose a more severe sanction.
In addition, because Respondent does not seem to appreciate why his conduct was unacceptable, we also impose an educational requirement. Within 1 year of this opinion’s filing date, Respondent shall have satisfactorily completed a course in sexual harassment, discrimination, and retaliation prevention training, as well as educational program(s) on tire employment law applicable to such conduct. Respondent shall file a report with this court within that 1-year period, detailing tire training and program(s) completed.
Further, Respondent shall be prohibited from accepting any position in the Eighteenth Judicial District that involves the supervision of any judicial branch employee, other than his chambers staff, for a period of 2 years following completion of the above-described educational requirement.
If Respondent violates or fails to meet any of the conditions set forth in this opinion, such noncompliance shall be deemed a Code violation. See Canon 2, Rule 2.16 (2014 Kan. Ct. R. Annot. 772) (requiring cooperation with disciplinary authorities).
It Is Therefore Ordered that Respondent shall be suspended from his judicial duties for a period of 90 days without pay, commencing within 10 days of the filing of this opinion.
It Is Further Ordered that Respondent shall, within 1 year of this opinion, satisfactorily complete a course in sexual harassment, discrimination, and retaliation prevention training and one or more educational programs on the employment law applicable to such conduct and shall file a report with this court within that 1-year period, detailing the training and program(s) completed.
It Is Further Ordered that Respondent shall be prohibited from accepting any position in the Eighteenth Judicial District that involves the supervision of any judicial branch employee, other than his chambers staff, for a period of 2 years following completion of the above-described educational requirement.
It Is Further Ordered that any violation of or failure to meet any of the conditions set forth in this opinion shall be deemed a violation of the Kansas Code of Judicial Conduct.
It Is Further Ordered that this opinion shall be published in the official Kansas Reports and that the costs of this action shall be assessed to the Respondent.
Luckert and Biles, JJ., not participating.
Joseph L. McCarville, III, District Judge, assigned. | [
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Green, J.;
Roger Hollister sued his former attorney, James Heathman, for legal malpractice under the Kansas Consumer Protection Act. Following Roger s death, Heathman filed a suggestion of death with the trial court. Shortly afterward, Heathman moved to dismiss for failure of Roger’s successor or representative to substitute a party within a reasonable time after the service of the statement noting Roger s death. The trial court ultimately granted Heathman’s motion to dismiss for failure to substitute a party within a reasonable time. In her pro se brief, Rebecca Hollister, Roger’s wife, argues that because she was not properly served with the notice of suggestion of death, the trial court abused its discretion when it granted Heathman’s motion to dismiss for failure to substitute a party within a reasonable time. Finding merit in Rebecca’s argument, we reverse and remand this matter for further proceedings.
Roger Hollister brought a pro se legal malpractice action under tire Kansas Consumer Protection Act against his former attorney, James Heathman. On March 20, 2013, while his action was still pending, Roger died. Heathman’s attorney filed a suggestion of death in the trial court on March 27, 2013. Heathman’s attorney also served the suggestion of death on the former attorney of Rebecca Hollister, Roger’s wife, on March 27, 2013. On April 21, 2013, Heathman moved to dismiss the malpractice action, without prejudice, because Rebecca had failed to substitute a party after the death of her husband. Similar to the suggestion of death pleading, Heathman’s attorney also served the motion to dismiss on Rebecca’s former attorney. On May 1, 2013, Rebecca wrote the trial judge a letter. This letter is not included in the record. The trial judge’s response to Rebecca’s letter, however, is included in the record. The trial judge wrote both Rebecca and Heathman and told them that he would consider Rebecca’s letter as a “Motion for Substitution of the Proper Party” and that he would schedule a status conference.
At the status conference on May 20, 2013, the trial judge discussed Rebecca’s motion. The trial judge discussed the consequences of Rebecca being substituted as a party in Roger’s action. The trial judge also asked Rebecca if it was still her intent to be substituted as the party in Roger’s lawsuit. Rebecca responded, “Yes.” Before accepting the motion and ordering Rebecca to be substituted as a party, Heathman’s attorney told the trial court that the language in Rebecca’s motion was improper. Heathman’s attorney explained that Rebecca needed to substitute the “personal representative” of Roger’s estate and not herself as the proper substituted party.
In agreeing with Heathman’s attorney, the trial judge explained to Rebecca that she would need to substitute Roger’s estate to continue with his action. At the beginning of the status conference, Rebecca had asked the trial court to grant her 90 days to hire an attorney. The trial judge granted Rebecca 90 days to open a probate estate for Roger, substitute the personal representative of the estate, hire an attorney, and respond to Heathman’s motions. The trial judge stayed all requests and motions until the proper party was substituted and warned Rebecca that he would grant Heath-man’s motion to dismiss if she failed to take these actions within 90 days.
Though not included in tire record, both parties agree that Rebecca moved for and was granted an additional 2-week extension to open Roger’s estate and to substitute it as the proper party on August 8, 2013. On August 15, 2013, Rebecca filed a “Petition for Probate of Will and Issuance of Letter Testamentary,” which was scheduled for hearing on September 27, 2013.
On September 6, 2013, the trial court held another status conference. At that hearing, the trial judge found that Rebecca had not moved to substitute a party. He also found that it had been 5 months since Heathman’s attorney filed the notice of suggestion of death. The trial court held that a reasonable time had elapsed since the filing of the notice of “Suggestion of Death” in accordance with K.S.A. 2013 Supp. 60-225(a)(l). As a result, the trial court dismissed the action.
Following this hearing, Rebecca moved for the trial court to reconsider its dismissal. Rebecca also moved to substitute parties. The trial court denied both motions.
Did the Trial Court Err When It Granted Heathman s Motion to Dismiss for Failure to Substitute a Party Within a Reasonable TimeP
Rebecca contends that the trial court abused its discretion in how it applied K.S.A. 2013 Supp. 60-225 in her effort to substitute a party in her husband’s action. Because this issue involves the interpretation of a statute, our review is unlimited. Graham v. Herring, 297 Kan. 847, 855, 305 P.3d 585 (2013).
K.S.A. 2013 Supp. 60-225(a)(l) states:
“If a party dies and the claim is not extinguished, the court must on motion order substitution of the proper party. A motion for substitution may be made by any party or by the decedent’s successor or representative. If the motion is not made within a reasonable time after service of a statement noting the death, the action by or against the decedent must be dismissed.”
K.S.A. 2013 Supp. 60-225(a)(l) requires that the motion for substitution be made within a reasonable time after service of the suggestion of death. Rebecca was not a party in Roger s action. The form of service of the motion for substitution and the suggestion of death on a nonparty is prescribed by K.S.A. 2013 Supp. 60-225(a)(3).
K.S.A. 2013 Supp. 60-225(a)(3) provides that “[a] motion to substitute, together with a notice of hearing, must be served ... on nonparties in the manner provided for the service of a summons. A statement noting death must be served in the same manner.” Moreover, “[dismissal is directed by the statute [K.S.A. 2013 Supp. 60-225(a)(l)] only if there is a proper service of a suggestion of death on the record and only if a motion for substitution is not made within a reasonable time after that properly served suggestion of death.” Graham, 297 Kan. at 856-57.
On appeal, Rebecca argues that the trial court abused its discretion when it granted Heathman’s motion to dismiss for failure to substitute a party within a reasonable time because she had never been personally served with the suggestion of death. Rebecca argues that because she was never properly served with the suggestion of death and because the time to substitute a party begins to run only after proper service of the suggestion of death, the trial court could not have properly ruled that she had failed to move to substitute a party within a reasonable time.
Because Rebecca was a nonparty, Heathman was required under K.S.A. 2013 Supp. 60-225(a)(3) to serve the suggestion of death on Rebecca in the prescribed manner for service of a summons. K.S.A. 2013 Supp. 60-303 describes the methods of service of process, which include service by return receipt delivery and personal and residence service. K.S.A. 2013 Supp. 60-303(c)-(d). K.S.A. 2013 Supp. 60-303(b) further provides that “[t]he sheriff of the county in which tire action is filed must serve any process by any method authorized by [K.S.A. 2013 Supp. 60-303] . . . unless a party, either personally or through an attorney, notifies the clerk that the party elects to undertake responsibility for service.” Moreover, since Rebecca is an individual, service of process must have been made by “serving [her] or by serving [her] agent authorized by appointment or by law to receive service of process.” K.S.A. 2013 Supp. 60-304(a).
Pleathman, however, never served the suggestion of death on Rebecca in accordance with K.S.A. 2013 Supp. 60-303 or K.S.A. 2013 Supp. 60-304. Instead, Heathman served tire suggestion of death on Rebecca’s former attorney. It seems that Heathman attempted to serve Rebecca with the suggestion of death in the same manner one would serve a party under K.S.A. 2013 Supp. 60-205. For instance, K.S.A. 2013 Supp. 60-225(a)(3) requires that parties be served with the suggestion of death as provided in K.S.A. 2013 Supp. 60-205. K.S.A. 2013 Supp. 60-205(b)(l) requires that a person serve a party’s attorney if that party is represented by an attorney. Nevertheless, in this case, Rebecca was a nonparty, and Heathman was required to serve the suggestion of death on her in the prescribed manner for service of a summons. K.S.A. 2013 Supp. 60-225(a)(3). Furthermore, Heathman served tire suggestion of death on Rebecca’s former attorney, who had represented Rebecca in an unrelated matter. Obviously, this land of service would not even comply with proper service on a party under K. S .A. 2013 Supp. 60-205. Thus, Rebecca correctly asserts that she was never properly served with the suggestion of death.
Because Heathman never properly served the suggestion of death on Rebecca, there was no proper service of the suggestion of death on the record. In Graham, our Supreme Court held that a trial court could dismiss under K.S.A. 2013 Supp. 60-225(a)(l) only if the “proper service of a suggestion of death [was] on the record” and a reasonable time had passed since the suggestion of death was properly sewed. 297 Kan. at 856-57. Thus, the reasonable time period starts to run only when there has been a proper service of the suggestion of death on tire record.
Moreover, the Graham court held that “[t]he relevant time period to be analyzed for reasonableness under K.S.A. [2013] Supp. 60-225(a)(l) is the period between the proper service of notice of a party’s death and the filing of a motion for substitution.” (Em phasis added.) 297 Kan. 847, Syl. ¶ 4. As a result, Rebecca argues that the trial court abused its discretion because it applied the incorrect legal standard in its calculation of the relevant time period for determining the reasonableness of a delay in substituting a party.
When dismissing under K.S.A. 2013 Supp. 60-225(a)(l), the trial court has discretion to determine whether a reasonable time to move to substitute has elapsed. Graham, 297 Kan. at 855 (citing Livingston v. Estate of Bias, 9 Kan. App. 2d 146, 147, 673 P.2d 1197 [1984]). Moreover, “an abuse of discretion necessarily results when the district court applies incorrect legal standards in the exercise of its discretion.” Graham, 297 Kan. at 855 (quoting O’Brien v. Leegin Creative Leather Products, Inc., 294 Kan. 318, 331, 277 P.3d 1062 [2012]). Nevertheless, an appellate court has unlimited review over issues of statutory interpretation. Graham, 297 Kan. at 855 (citing In re Marriage of Brown, 295 Kan. 966, 969, 291 P.3d 55 [2012]).
Thus, the ultimate question before us is whether the interpretation of K.S.A. 2013 Supp. 60-225(a)(l) by the trial court is correct. As stated earlier, that question is a matter of law.
At the status conference on September 6, 2013, the trial court granted Heathmaris motion to dismiss based on its calculation that over 5 months had elapsed since the filing of the suggestion of death. Thus, the trial court began its calculation on March 27,2013, the date that Heathman filed the notice of suggestion of death with the trial court and served it on Rebecca’s former attorney. The trial court ended its calculation on the day of the status conference. Although the trial court cited Graham in explaining how it calculated whether a reasonable time had elapsed, the trial court failed to comply with the Graham holding in two ways.
First, the trial court started its calculation on March 27, 2013, the date on which Rebecca was improperly served with the suggestion of death. As discussed earlier, tire Graham holding requires that the suggestion of death must be properly served in accordance with K.S.A. 2013 Supp. 60-225(a)(l) and on the record. 297 Kan. 847, Syl. ¶ 1. Neither of tírese rules was complied with in the instant case. Thus, tire trial court could not have correctly started its calculation of reasonable time on that date because Rebecca had not been properly served with the suggestion of death on March 27, 2013, as discussed previously.
Second, the trial court incorrectly considered the time that had elapsed after the trial court wrote Rebecca and Heathman that he would consider her letter a “Motion for Substitution of the Proper Party” in its reasonable time calculation. Again, Graham held that “the relevant time period for determining the reasonableness of a delay in substituting a party begins with the statement noting the death and ends with the filing of a motion for substitution.” 297 Kan. at 864. The Graham court also held that calculating reasonable time in this manner is “supported by the plain language of tire statute, which refers to the time that the motion is ‘made’; it does not refer to the time that the motion is heard, ruled upon, or effectuated.” Graham, 297 Kan. at 857. Moreover, in overruling Long v. Riggs, 5 Kan. App. 2d 416, 617 P.2d 1270 (1980), tire Graham court noted that nothing but the “time when tire motion for substitution is filed” is relevant in a reasonable time calculation. En route to its holding, tire Riggs court stated that “no substitution of tire parties was effectuated.” (Emphasis added.) 5 Kan. App. 2d at 418. The Graham court declared: “To the extent that Riggs intended the term ‘effectuated’ to mean anything other than the time when the motion for substitution is filed, it is overruled and disapproved.” 297 Kan. at 858-59.
In this case, the trial judge wrote Rebecca and Heathman that he would consider her letter a “Motion for Substitution of the Proper Party.” Rebecca sent this letter on May 1, 2013. At the status conference on May 20, 2013, the trial judge was ready to order a substitution based on Rebecca’s letter motion until Heath-man’s attorney told the court that Rebecca could not substitute herself as a party, as her motion evidently stated. The trial court granted Rebecca an extension to open Roger’s estate and to substitute it as the proper party. Nevertheless, by May 1, 2013, Rebecca had moved to substitute a party.
Consequently, the trial court abused its discretion when it made its reasonable time calculation. According to Graham, the relevant time period for determining the reasonableness of a delay in sub- stitutíng a party starts with the notice of suggestion of death and ends with the filing of the motion of substitution. Here, Rebecca wrote the letter which the trial court stated it would consider as a “Motion for Substitution of the Proper Party” on May 1, 2013. Because the trial court considered the time that had elapsed after Rebecca’s motion to substitute a party was filed, it applied tire incorrect legal standard in its calculation of the relevant time period for determining the reasonableness of a delay in substituting a party. Thus, the trial court abused its discretion.
For the sake of argument, even if Heathman had properly served Rebecca with the suggestion of death on March 27, 2013, the trial court could not have properly granted Heathman’s motion for failure to substitute party within a reasonable time. For example, under Graham, the reasonable time calculation would have been from March 27, 2013, the date the suggestion of death was filed and May 1,2013, the date Rebecca sent her letter to the trial court. This time period would have been only 35 days after Heathman had served Rebecca with die suggestion of death. Graham held that die reasonable time that a motion for substitution must be filed under K.S.A. 2013 Supp. 60-225(a)(l) is based on the totality of the circumstances and not subject to a bright-line rule. 297 Kan. at 859. Undoubtedly, parties would have acted within a reasonable time if they move to substitute a party within 35 days of a proper service of a suggestion of death on the record. Thus, had Heathman properly served Rebecca with the suggestion of death, it would have undoubtedly been an abuse of discretion for the trial court to grant Heathman’s motion to dismiss because Rebecca would have moved to substitute a party within a reasonable time. Accordingly, we reverse and remand this matter for further proceedings. | [
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Leben, J.;
On first glance, it might seem the attorneys in this case got their briefcases switched. The prosecutor argues that a misdemeanor domestic-violence offense is not a serious one, while the defendant—who was convicted of that offense—argues that it is.
The reason the case has reached us in this odd posture is that the defendant was convicted in a trial to a judge, not a jury. He now seeks a do-over on the ground that he had a constitutional right to a juiy trial—one that he never agreed to waive. And whether he had a constitutional right to a juiy trial depends on whether the offense is categorized as a serious or a petty offense. If it’s a serious offense, then he was entitled to a jury trial under the Sixth Amendment to the United States Constitution and section 10 of the Kansas Constitution Bill of Rights. If it’s a petty offense, he has no constitutionally based jury-trial right, and his conviction stands.
In this case, then, we don’t use the term “serious” as we might use it in conversation. The terms “serious offense” and “petty offense” are terms of art, used in specific ways in decisions of the United States Supreme Court interpreting die Sixth Amendment. And since the Kansas Supreme Court has interpreted the jury-trial right under the Kansas Constitution identically to the United States Supreme Courts interpretation of die Sixth Amendment, we must determine whether misdemeanor domestic violence is a serious offense or a petty one based on those United States Supreme Court cases. See State v. Carr, 300 Kan. 1, 56, 331 P.3d 544 (2014) (noting that Kansas has not analyzed its state constitutional provision granting jury-trial rights differently than the federal provision), rev'd in part on other grounds 136 S. Ct. 633 (2016); State v. Lawson, 296 Kan. 1084, 1091, 297 P.3d 1164 (2013) (noting that Kansas has generally interpreted its state constitutional provisions identically with their federal counterparts).
We know that these phrases are terms of art from several United States Supreme Court opinions, including Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968); Baldwin v. New York, 399 U.S. 66, 90 S. Ct. 1886, 26 L. Ed. 2d 437 (1970); Blanton v. North Las Vegas, 489 U.S. 538, 109 S. Ct. 1289, 103 L. Ed. 2d 550 (1989), and Lewis v. United States, 518 U.S. 322, 116 S. Ct. 2163, 135 L. Ed. 2d 590 (1996). See generally 6 LaFave, Israel, King & Kerr, Criminal Procedure § 22.1(b), pp. 8-17 (4th ed. 2015). In Duncan, which applied the Sixth Amendments jury-trial provision to the states under the Fourteenth Amendment, the Court noted that “[s]o-called petty offenses were tried without juries both in England and in the Colonies and have always been held to be exempt from the otherwise comprehensive language of the Sixth Amendments juiy trial provisions,” though “the boundaries of tire petty offense category have always been ill-defined . . . 391 U.S. at 159, 160. The Court concluded that it did not have to determine “the exact location of the fine” to decide Duncan, 391 U.S. at 161, but in Baldwin, it determined that “no offense can be deemed petty’ . . . where imprisonment for more than six months is authorized.” 399 U.S. at 69. Accordingly, a jury-trial right exists when the authorized penalty is more than 6 months. In our case, though, the maximum penalty is 6 months, so a jury trial is not required under that test.
But that doesn’t end the analysis. In Blanton, the Court said that although we “presume” for purposes of the Sixth Amendment that an offense with a maximum prison term of 6 months or less is petty that presumption may be rebutted. 489 U.S. at 542-43. A defendant will still be entitled to a jury trial if tire offense carries statutory penalties in addition to the jail term that “are so severe that they clearly reflect a legislative determination that the offense is a ‘serious’ one.” 489 U.S. at 538. Even so, tire Blanton Court emphasized that “[pjrimary emphasis ... must be placed on the maximum authorized period of incarceration,” 489 U.S. at 542, and there has not yet been a case in which the Court found that an offense with a maximum authorized incarceration period of 6 months, was a serious one so as to require a jury trial under the Sixth Amendment. In Lewis, the Court reaffirmed these rules, 518 U.S. at 326-27, and held that a defendant had no jury-trial right when charged with multiple petty offenses in a single prosecution;, even though he could have received a total sentence of more than 6 months. 518 U.S. at 327-30.
In sum, then, we look primarily to tire maximum authorized incarceration period set by the legislature for tire offense. If it is no more than 6 months, then the defendant has no constitutional jury-trial right unless any extra statutory penalties are severe enough to clearly show a legislative determination that the offense is a serious one.
We turn now to our case. The maximum punishment is incarceration for 6 months. K.S.A. 2015 Supp. 21-5414(b)(l). So the offense is presumed to be petty unless additional statutory penalties are severe enough to change the outcome.
The primary statute setting out penalties for this offense provides that tire court can also fine the defendant from $200 to $500 or may order the offender to undergo a domestic-violence-offender assessment and follow its recommendations. K.S.A. 2015 Supp. 21-5414(b)(1). In addition, K.S.A. 2015 Supp. 2143608(a) allows the court to impose up to 2 years of probation, in lieu of a jail sentence, in all misdemeanor cases; K.S.A. 2015 Supp. 21-6604(p) requires that the court order those convicted of domestic violence to “[ujndergo a domestic violence offender assessment,” comply with any recommendations, and pay the cost for the assessment.
These punishments are no more severe than ones the United States Supreme Court has found to correspond to petty offenses. In Blanton, in addition to any jail sentence, the offender had to pay a fine ranging from $200 to $1,000, automatically lost his or her drivers license for 90 days, and had to attend and pay for an alcohol-abuse-education course. 489 U.S. at 539-40. The Court held that these additional consequences didn’t turn the otherwise-petty offense into a serious one for Sixth Amendment purposes. 489 U.S. at 543-45. Similarly, in United States v. Nachtigal, 507 U.S. 1, 113 S. Ct. 1072, 122 L. Ed. 2d 374 (1993), a defendant convicted of a DUI offense in a national park faced a maximum fine of $5,000, up to 6 months in prison, or (as an alternative to prison) up to 5 years on probation. Despite the high fine and long probation term, the Supreme Court held that the DUI was a petty offense because a fine and probation are “far less intrusive than incarceration.” 507 U.S. at 5. The Court also noted that while a variety of probation requirements might be placed on the defendant, “discretionary probation conditions ... do not approximate the severe loss of liberty caused by imprisonment for more than six months,” 507 U.S. at 5, and thus do not make the offense a serious, one for jury-trial purposes.
The penalties established by statute for Woolverton’s offense are no more serious than those found in Blanton and Nachtigal. Accordingly, if we look only at tire punishments directly established by statute for this offense, it is a petty offense, and Woolverton had no constitutional right to a jury trial.
But Woolverton argues that other statutes provide additional punishments that are so severe as to transform his offense from petty to serious. We do not find that any of these statutes increase die punishment for Woolverton’s offense in a way that would affect his right to a jury trial:
• Woolverton notes that federal law prohibits domestic-violence offenders from purchasing firearms. See 18 U.S.C. § 922(g)(9) (2012). But the existence of a federal statute says nothing about how the Kansas Legislature views the offense, and we look to the punishments it has established to determine the seriousness of the offense. Woolverton has cited no case in which a court has considered the combination of federal and state statutoiy penalties to determine whether a defendant has a jury-trial right. Moreover, any limitation on Woolverton’s ability to buy firearms is a collateral consequence of the conviction, not the direct punishment for it. Collateral consequences are not considered when determining whether a jury-trial right exists. See 6 LaFave, Israel, King & Kerr, Criminal Procedure § 22.1(b), p. 12 & n.48 (“[Cjollateral consequences do not count.”) (citing cases). Applying this rule, the Nevada Supreme Court held that federal firearms restrictions did not convert Nevada’s domestic-battery offense—punishable by up to 6 months in jail—from a petty offense to a serious one for jury-trial purposes. Amezcua v. Eighth Judicial District Court, 319 P.3d 602, 605 (Nev.) (“[Rjestrictions on possession of a firearm and deportation . . . are collateral consequences of a conviction: they arise out of federal law, not the Nevada statute that proscribes first-offense domestic battery. [Citations omitted.]”), cert. denied 135 S. Ct. 59 (2014).
• Woolverton cites several statutes that provide rights or services to victims of domestic violence. See K.S.A. 2015 Supp. 22-2307(b)(10) (requiring that law-enforcement officers provide information to domestic-violence victims about their rights and available resources); K.S.A. 2015 Supp. 44-1132 (protecting domestic-violence victims from retaliation by employers for taking time off to seek services or to participate in the prosecution of their cases). Serving and protecting victims does not increase the punishment to defendants.
• Woolverton notes that Kansas law requires that officers arrest a person when they have probable cause to believe he or she has committed a domestic battery. See K.S.A. 2015 Supp. 22-2307(b)(l). While true, that doesn’t increase the punishment beyond the 6-month limit; the time the defendant spends in jail before posting bond will count toward tire eventual sentence.
• Woolverton notes that K.S.A. 2015 Supp. 20-369 allows a court to assess a fee of up to $100 against a domestic-violence offender if the local judicial district has set up a fund to provide for domestic-violence programs. Even if we consider that fee to be a fine—and thus punishment of the defendant—it would simply raise the maximum possible fine for Woolverton’s offense to $600, well under the fine amounts for offenses the Supreme Court found petty in Blanton ($1,000) andNachtigal ($5,000).
Woolverton also argues generally that several other statutes or policies elevate the seriousness of domestic-violence cases: Prosecutors must adopt policies to effectively prosecute domestic violence, see K.S.A. 22-2309; significant public funds are spent to combat domestic violence; law-enforcement officers must file offense reports with the Kansas Bureau of Investigation for all domestic-violence calls, whether or not they malee an arrest, see K.S.A. 2015 Supp. 22-2307(b)(ll); and law-enforcement officers are encouraged or required to act on “lethality assessments” at the scene in domestic-violence cases. But while these facts show that we take domestic violence seriously as that term is commonly used, they do not affect the analysis when determining whether a right to a jury trial exists under the Sixth Amendment. None ofthese statutes or policies increased Woolverton s punishment in any significant way.
Woolverton makes one final argument to support his claim of a constitutionally based juiy-trial right: He notes that some felony sentences in Kansas can be shorter than 6 months. That’s true—for a defendant with no significant criminal history, convicted of the lowest-level nondrug felony, the trial judge can choose a sentence of 5,6, or 7 months. See K.S.A. 2015 Supp. 21-6804. But how other offenders are sentenced is not the focus in determining whether a defendant has a Sixth Amendment jury-trial right. Instead; we look to the maximum sentence allowed for a crime, not the sentence imposed. See Lewis, 518 U.S. at 326. The maximum sentence that can be imposed for Woolverton s offense, a first-time misdemeanor domestic battery, is 6 months. Neither that sentence length nor any other punishment the Kansas Legislature has adopted for this offense makes it a serious offense for jury-trial purposes.
Based on the analysis we’ve provided to this point in our opinion, we have concluded that Woolverton had no constitutionally based juiy-trial right. We turn next to his argument that he was also denied his statutory right to a jury trial.
K.S.A. 22-3404(1) provides that “[t]he trial of misdemeanor cases shall be to the court unless a jury trial is requested in writing by the defendant not later than seven days after first notice of trial assignment is given .. . .” The right granted by statute is limited by the requirement that the defendant timely request it. Woolverton makes no claim that he requested a jury trial before his trial to a judge took place.
Woolverton contends that his failure to request the juiy trial should be excused because no one told him he had that statutoiy right. In support of his claim that his case could not be tried to a court unless he had been told he had a juiy-trial right and expressly waived that right, he cites to cases involving charges of more serious misdemeanors where tire maximum possible sentence was 12 months, not 6. E.g., State v. Bell, No. 110,550, 2014 WL 5801050 (Kan. App. 2014), rev. denied 301 Kan. 1047 (2015); State v. Marshall, No. 107,982, 2013 WL 3791689 (Kan. App. 2013). Thus, in each of those cases, the defendant had a constitutional right to a jury trial. That’s significant because a defendant must be told about his or her constitutional right to a jury trial before he or she may properly give up that right. See State v. Lewis, 301 Kan. 349, 376-77, 344 P.3d 928 (2015); State v. Irving, 216 Kan. 588, 589, 533 P.2d 1225 (1975). Here, though, Woolverton had no constitutional jury-trial right, and the statutory right only applies if the defendant makes a timely jury-trial request. Since Woolverton didn’t make a jury-trial request, we find no violation of his statutory jury-trial right.
Our ruling should in no way be read to suggest that domestic violence is not a serious matter. Nor, we can be sure, does the State intend its argument in this case to make that suggestion. Domestic violence is a real, important, and serious problem, and many laws at the state and federal level attest to this. All we are saying here is that the penalties prescribed by the Kansas Legislature for this offense are within tire category defined as petty for die purpose of determining whether a defendant has a constitutional right to a juiy trial. Given those penalties, there is no constitutional right to a jury trial for this offense. Since Woolverton did not request a jury trial under the statutory provision, K.S.A. 22-3404(1), his case was properly tried to a judge sitting without a jury.
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Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Kerry Dale Holyoak, of Leawood, an attorney admitted to the practice of law in Kansas in 1989.
On March 23, 2015, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent filed an answer on April 9, 2015. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on July 1, 2015, where the respondent was present and was represented by counsel. The hearing panel determined that respondent violated KRPC 5.4(d) (2015 Kan. Ct. R. Annot. 639) (professional independence of a lawyer); 7.1(a) (2015 Kan. Ct. R. Annot. 653) (communications concerning a lawyers services); 8.4(c) (2015 Kan. Ct. R. Annot. 672) (engaging in conduct involving misrepresentation); and 8.4(g) (2015 Kan. Ct. R. Annot. 672) (engaging in conduct adversely reflecting on lawyer’s fitness to practice law).
Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court:
“Findings of Fact
“8. Wilson County Holdings, LLC (WCH), a subsidiaiy of Stranded Oil Resources Corporation based in Austin, Texas, developed a project to revitalize an oil field located in Fredonia, Kansas. To carry out the project, they sought to purchase mineral rights within the City of Fredonia from individual lot owners, based on the size of each lot.
“9. On January 30, 2013, Donald Missey, Project Manager for WCH, sent the respondent and his wife an offer to purchase the mineral rights associated with Iris residential property and commercial property. The total mineral purchase price for the respondents two properties totaled $938.52.
“10. On February 1, 2013, the respondent and his wife, Kerry I. Holyoak, sent Mr. Missey a letter rejecting WCH’s offer. The respondent and his wife made a counter offer. The offer to lease their mineral rights for an annual payment of $34,450 plus .689% of revenues in excess of $5,000,000 annually. In addition, the respondent’s letter provided:
‘To date we have chosen not to share our research, data or any information related to this offer with anyone. We recognize the sensitivity of such a proposal and would agree to sign a confidentiality and non-disclosure agreement. This counter-proposal is valid until 5:00 PM on Friday, February 15, 2013.’
“11. On February 12, 2013, Mr. Missey responded to the respondent’s offer. Mr. Missey told the respondent that he had passed their offer on to their management team for evaluation. It appears that WCH did not accept or reject the respondent’s counter offer during the time allotted.
“12. On April 29, 2013, the respondent and his wife wrote to Mr. Missey again. In that correspondence, they clearly stated they were only willing to consider leasing their mineral rights. They made a new offer. According to their April 29, 2013, letter, they were willing to accept a lease signing bonus of $35,156.25 plus annual royalties of 3/16 for their relative portion of the pooled units [(gross revenue x .1875) x .05]. In addition to making an additional offer, the respondent and his wife posed a number of detailed questions regarding the project to Mr. Missey at that time.
“13. On May 17, 2013, Mr. Missey wrote to the respondent and his wife and rejected their latest offer. Through Mr. Missey, WCH made another proposal to the respondent and his wife.
“14. On June 3, 2013, the respondent and his wife made a verbal presentation to the mayor and commissioners of Fredonia at the regularly scheduled City Council meeting. They expressed their concerns about the mineral rights of the residents of Fredonia, Kansas, related to the project being conducted by WCH.
“15. On August 5, 2013, the respondent and his wife wrote to the Fredo-nia, Kansas, City Manager and Mr. Missey. The respondent provided a proposed franchise agreement. According to the respondent, he and his wife ‘discussed this proposed franchise agreement'with numerous citizens’ who were ‘willing to sign a petition or vote in a special election.’ Also according to the respondent, the proposed franchise agreement sought to accomplish the following:
T. Pool the mineral rights of the residents of the entire city [sic] of Fredo-nia, Kansas;
‘2. Authorize a lease of said mineral rights to Wilson County Holdings, LLC for the purpose of horizontally drilling under the city [sic] for the exploration and production of oil and gas minerals;
‘3. Require Wilson County Holdings, LLC to compensate each landowner their proportionate share of a 3/16 royalty on production of all gas and oil gross revenues;
‘4. Require Wilson County Holdings, LLC to properly survey the entire city [sic] of Fredonia in order to accurately determine the square footage allocation of each parcel owner, in an effort to illustrate an accurate representation of the mineral owner’s percentage of the overall pool, for future compensation purposes;
‘5. Establish procedures for responding to emergencies;
‘6. Require specific performance from Wilson County Holdings, LLC whenever there is an incident of damage reported that has been caused by their drilling and exploration activities;
‘7. Revert ownership of mineral rights that have been sold to Wilson County Holdings during the period January 2011 to date, to tire original surface owner, and treat payments made for said sales, as advances on future royalties.’
“16. On May 16, 2014, the respondent and his wife wrote to WCH. In thé letter, the respondent and his wife indicated that they had reconsidered their position and would agree to sell the mineral rights associated with their residential property to WCH. However, they indicated their interest in selling tire mineral rights was contingent upon WCH purchasing their home at a price of $250,000 plus moving expenses. The respondent and his wife indicated drat they were only interested in leasing dre mineral rights associated widr their commercial property.
“17. On May 29, 2014, Bill Metzler met widr the respondent and his wife at dreir residence. The respondent and his wife told Mr. Metzler drat if WCH would pay them $1.9 million, they would agree not to pursue any legal action against WCH due to its underground drilling project. To memorialize that agreement, the respondent and his wife presented Mr. Metzler with a ‘Covenant Not to Sue’ and ‘Purchase Contract.’
“18. Also during that meeting, the respondent and his wife made oral statements and representations concerning the transactions proposed. Mr. Metzler memorialized the respondent’s statement in the form of an affidavit, which provided as follows:
‘a. Kerry Dale Holyoak is legal counsel to 50 local landowner clients who have engaged him “to bring the company .down” and “stop the project”;
‘b. The Holyoaks prefer to enroll their children in private school and relocate Keriy Dale Holyoaks’ [sic] law practice in Kansas City but need WCH’s help [sic] finance that move;
‘c. In exchange for payment of $1.9 million the Holyoaks would agree to leave the town “quickly and quietly”;
‘d. The $1.9 million dollar [sic] payment to KWADCO, a Bahamas Corporation, via an offshore wire to an unidentified account at the Royal Bank of Canada;
‘e. The landowners opposed to WCH will not do anything if the Holyoaks “don’t take the lead for them”; and
‘f. The Holyoaks will only sign the covenant not to'sue if WCH purchases Kerry Dale Holyoaks law practice in addition to the Holyoaks’ mineral rights and house, and if WCH refuses, then the Holyoaks will commute from Kansas City to ensure its allies “stand and fight” against WCH.’
The respondent later explained that he was not attempting to sell his law practice. Rather, he agreed to sell his property and in order to value the property, he took into account tire value of his law practice.
“19. The ‘Covenant Not to Sue’ prepared by the respondent and given to Mr. Metzler provides as follows:
‘COVENANT NOT TO SUE
‘THIS Agreement made and entered this_day of_, 2014, by and between Kerry Dale Holyoak and Kerry Irene Holyoak, a married couple (hereinafter referred to as PLAINTIFFS), located at 530 N. 10th Street, Fredonia, KS 66736 and Wilson County Holdings, and Stranded Oil (hereinafter referred to as DEFENDANTS), located at 1135 N 15th St., Fredonia, KS 66736.
‘In exchange for tire complete compliance of all terms of the PURCHASE CONTRACT for the sale of all real estate owned by the PLAINTIFFS within Wilson County, Kansas, plus the cost of professional movers, and additional consideration in the amount of $_(_mil-lions) paid to (KWADCO, a Bahamas Corporation) the chosen entity to receive compensation for and on behalf of Kerry Dale Holyoak and Kerry Irene Holyoak, by Wilson County Holdings. (Funds to be paid by wire transfer to the Royal Bank of Canada, Account No._.)
WITNESSETH:
T. PLAINTIFFS, have a cause of action against DEFENDANTS for fraud and misrepresentation with regard to the manner in which DEFENDANTS coerced mineral purchases and mineral leases from the residents within the city limits of Fredonia, Kansas.
‘2. PLAINTIFFS understand that should they initiate a lawsuit against DEFENDANTS for their claims it would cause no less than fifty additional plaintiffs to come forward and file similar lawsuits for similar claims. The potential number of plaintiffs could escalate to as many as have sold or leased their mineral rights to DEFENDANTS under false pretenses, thereby constituting grounds for a class action lawsuit.
‘3. PLAINTIFFS agree not to initiate or participate in any lawsuit or action against DEFENDANTS as counsel, co-counsel, local counsel, wit ness, plaintiff, party, or otherwise, with regard to any and all of the business activities of DEFENDANTS, within the region of Wilson County, Kansas.
‘4. PLAINTIFFS further agree not to participate in any legal action against DEFENDANTS at any point in the future, as pertaining to the operations of DEFENDANTS in Wilson County, Kansas.
‘5. PLAINTIFFS agree not to provide any legal advice to anyone seeking information about DEFENDANTS and/or their business operations.
‘NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT
T. PLAINTIFFS agree to permanently dispose of any and all documentation, records, recordings, witness statements, personal contact information for potential litigants, research and all other forms of discoveiy as it pertains to evidence which could be used against DEFENDANTS in a lawsuit of any nature.
‘2. PLAINTIFFS agree to relocate their family and business a distance of not less than 75 miles away from Fredonia, Kansas.
‘3. PLAINTIFFS agree not to return to Fredonia, Kansas, except to engage in contacts or business unrelated to potential litigation against DEFENDANTS.
‘4. DEFENDANTS agree to assist PLAINTIFFS with their move by covering the cost of a professional moving company to assist the parties in moving their personal belongings from their home, their office building and their storage unit and relocating them to a new home more than 75 miles away.
‘5. PLAINTIFFS and DEFENDANTS agree not to disclose any of the terms of this agreement. If either party discusses the terms of this agreement, the offending party will bear the burden of the cost of any litigation including reimbursement of attorney fees and expenses for the non-offending party.
‘6. Time is of the essence in this agreement. If DEFENDANTS fail to complete and comply with the terms of this agreement by the_day of _, 2014, then neither party shall be bound by the terms of this agreement and PLAINTIFFS will be free to engage in litigation against DEFENDANTS regarding the extraction of minerals from the city [sic] of Fredonia or from any other location and may do so' as parties, witnesses, legal counsel and/or support staff or in any other manner for any entity or entities engaged in litigation against DEFENDANTS or any discussion of or exposure of the actions of DEFENDANTS.
‘7. Bill Metzler, as agent for DEFENDANTS has complete authority to enter into this agreement on behalf of DEFENDANTS and bind the DEFENDANTS to all terms thereof.
‘8. This covenant does not indicate the guilt or innocence of either party.
‘This document is the only covenant between PLAINTIFFS and DEFENDANTS regarding litigation against DEFENDANTS, and any statements or provisions made by either party that are not contained in this document are neither valid nor binding.’
“20. The ‘Purchase Contract’ prepared by the respondent provided as follows:
‘PURCHASE CONTRACT
‘THIS CONTRACT made and entered into this _ day of _, 2014, by and between KERRY DALE HOLYOAK and KERRY IRENE HOLYOAK, a married couple, of Wilson County, Kansas, (hereinafter called “Sellers”), and_as agent for WILSON COUNTY HOLDINGS/STRANDED OIL, a corporate entity of _, (hereinafter called “Purchaser”)
“WITNESSETH:
T. Sellers agree to sell and convey to Purchaser and Purchaser agrees to buy and to pay for the following described real property subject to compliance with tire following terms and conditions as set forth herein:
Lots Eleven (11) and Twelve (12), Block Six (6), Hamilton’s Addition to the City of Fredonia (commonly known as the residence located at 530 N. 10th Street, Fredonia, Kansas 66736)
Beginning at the Southwest corner of Lot One (1), Block Fifteen (15), City of Fredonia, thence North 60.36 feet, thence East 34.3 feet, thence South 23.06 feet, thence West 8.7 feet, thence South 7.6 feet, thence West 5 feet; thence South 29.7 feet, thence West 20.6 feet to the point of beginning, (commonly known as the office building located at 521 Madison Street, Fredonia, Kansas 66736)
‘2. Sellers are the owners of said real property and are not engaged in and have not previously engaged in any litigation which may impact their ownership or control of said property. Sellers have not entered into any other agreements which may impact their ownership or control of said property and have not incurred expenses against and have not suffered any liens to be held against the real property. In the event that any of the conditions set forth in this paragraph have been broken, this transaction shall become void and the purchase funds shall be immediately refunded to Purchaser.
‘3. Purchaser shall pay to Sellers the purchase price of $_ to be made in one earnest money payment of $10,000.00 plus a lump sum payment of $_payable to Sellers as the price of the real property and mineral rights plus $_for the Sellers’ moving expenses by a commercial moving company.
‘4. Sellers shall have thirty (30) days to remove all unattached items of personal property and vacate the residence and the office building and deliver all keys to Purchaser.
‘5. Sellers agree to deliver and Purchaser agrees to accept the property in its present condition with all attachments and Sellers agree to provide a Warrant [sic] Deed to Purchaser.
‘6. All taxes and assessments against the property prior to the date of this agreement and for prior years shall be paid by Sellers. Purchaser shall be responsible for all taxes and assessments coming due from the date of this agreement forward.
‘7. The sale of said real property shall also include the transfer of all Sellers’ mineral rights. Sellers are the owners of said mineral rights and are not engaged in and have not previously engaged in any litigation which may impact their ownership or control of said mineral rights. Sellers have not entered into any other agreements which may impact their ownership or control of said mineral lights, have not incurred expenses against and have not suffered any liens to be held against said mineral rights. In the event that any of the conditions set forth in diis paragraph have been broken, this transaction shall become void and the purchase funds shall be immediately refunded to Purchaser.
‘8. _, as agent for Purchaser has complete authority to enter into this agreement on behalf of Purchaser and bind Purchaser to all terms thereof.’
“21. On June 4, 2014, Mr. Metzler sent an email to the respondent. At that time, Mr. Metzler informed the respondent that their May, 2014, proposal was under review.
“22. The next day, June 5, 2014, the respondent and his wife replied to Mr. Metzler’s email message. The respondent and his wife, as a courtesy, informed Mr. Metzler that it was their intention to file a written protest to WCH’s petition to the KCC requesting an Order Granting Exception from Casing and Completion Requirements. The respondent and his wife also informed Mr. Metzler that they planned to appear at the hearing set for June 16, 2014, and provide testimony and evidence in support of their concerns. The respondent and his wife set a deadline of June 6, 2014.
“23. On June 6, 2014, Jonathan Rosen, outside compliance counsel for WCH wrote to the respondent and his wife regarding serious concerns about tire May, 2014, offer. Mr. Rosen stated:
‘We have serious concerns about your proposed and uninvited scheme to receive an exorbitant offshore wire to a nominee account in exchange for a series of tainted inducements, including the honest services of a licensed attorney and an illicit competitive advantage.’
Mr. Rosen included in his correspondence the oral statements made by the respondent as recorded by Mr. Metzler in his affidavit.
“24. Mr. Rosen also stated:
T specifically note that these representations and assertions are memorialized and/or corroborated by the proposed covenant not to sue and purchase contract, which you gave to WCH in support of the “offer” on May 29,2014. We have reviewed these facts and, as a former federal and state prosecutor, I believe your scheme implicates significant ethical and legal concerns.
‘First, we have concerns that your proposal betrays Mr. Holyoak’s ethical and fiduciary obligations as a licensed attorney.
‘Second, you rely on an illicit competitive advantage in an attempt to coerce payment from WCH. Wholly independent of Mr. Holyoak’s status as a licensed fiduciary, you purport to be civic leaders who exert influence over a significant number of local landowners. You condition your uninvited promise to abandon these followers and, in your opinion, facilitate the success of WCH’s project, only if WCH purchases your business location in addition to your mineral rights and home. Your bad faith implicates state and federal criminal law. See, e.g., K.S.A. 21-6501 (defining extortion, in part, as an act which causes “the competition of the person from whom the payment is demanded, solicited or received to be diminished or eliminated.”). See also 18 U.S.C. § 1343 (wire fraud).
‘Third, your scheme structures an offshore transaction to a Bahamas shell corporation in an apparent effort to conceal your beneficial interest in any ill-gotten gains. Despite your ready access to local banks, your covenant not to sue requires an offshore wire to a nominee account maintained by a Bahamas corporation, KWADCO. WCH has absolutely no information on the offshore account, the nominee corporation or your compliance with criminal laws requiring that you disclose to the Internal Revenue Service your financial interest or signature authority over such offshore accounts. Moreover, you demanded this specific manner of payment in full knowledge that WCH’s prior offer, dated January 30, 2013, specifically identified that payment would be made via a domestic bank draft payable to you individually.
‘Fourth, the desperation conveyed with the “offer” is further evidence of bad faith. As reflected by your inability to marshal any support for your bogus claims against WCH and purported plan at the Fredonia City Commission in June 2013, Mr. Holyoak’s public masquerade as a citizen attorney general has failed. This is further demonstrated by WCH’s past and continuing success in partnering with landowners to support the project. While WCH does not begrudge any prospective seller’s good faith effort to maximize his or her self-interest, we strenuously object to using illicit means to achieve your personal ambition.
‘Further, yesterday we received additional evidence of your attempt to coerce the elicit [sic] payment in the form of your June 5, 2014 e-mail to Mr. Bill Metzler of WCH concerning the Kansas Corporation Commission (“KCC”). In that e-mail, you’ make the further offer to “forego filing the objection or intervening in any KCC proceedings now or in the future” if WCH pays you the $1.9 million demanded prior to the expiration of the protest period for WCH’s applications for exceptions to the KCC. This is further evidence of your continuing practice of bad faith with respect to the project.
‘As a good corporate actor in a highly regulated marketplace, WCH has zero tolerance for unethical and illegal conduct. Over the past 18 months, WCH has engaged in a fully transparent process to successfully purchase mineral rights from a substantial number of landowners. WCH remains interested in acquiring such rights at a fair market value, but WCH has never and will never condone or participate in any instance of fraud, extortion or other such matters.
‘Please provide your response directly to me concerning the serious items no later than June20, [sic] 2014 so that we may continue our review of these issues along with considerations of duties or obligations to disclose all relevant facts to appropriate enforcement, regulatory and licensing authorities.’
“25. In a letter also dated June 6, 2014, the respondent and his wife responded to Mr. Rosen’s letter. The Holyoaks’ letter provides:
We are in receipt of your letter dated June 6, 2014, wherein you have grossly mischaracterized and misunderstood not only our “offer” but also our intentions. We accept your letter as WCH’s refusal of our offer to settle.
‘It is my understanding that MORRIS, LAING, EVANS, BROCK & KENNEDY, CHARTERED of Wichita, Kansas is counsel of record for WCH in the KCC administrative proceedings. As a matter of courtesy, we are including a copy of our protest to the KCC.
‘You have characterized our request for an “exorbitant offshore wire” as though it is some sort of extortion. To be clear, our interests are tied up in real estate and business interests within and around the city [sic] of Fredonia, Kansas. Our offer is fair and can in no way be construed as extortion or illicit or illegal. There is nothing illegal about receiving funds in an offshore account. It is called asset protection. [Footnote: Neither in his correspondence nor during his testimony at the hearing on this matter did the respondent satisfactorily explain what he meant by “asset protection.”] Your assumptions about our relationship with the IRS are also baseless. We are honest tax payers. Our “offer” was not tied to some arbitrary or fanciful number. These numbers directly relate to the value of our lives in Fredonia, Kansas and are based upon the following:
1. We have 107-year old Victorian home we value at $250,000 which we have continued to renovate and improve.
2. We have an office building we value at $90,000 which we have also continued to renovate and improve.
3. We have a small town law practice which generates around $330,000 per year in gross revenues. We did a simple “business valuation” of 5 times gross revenue to arrive at the figure of $1,650,000.
We do not agree with the practices of Wilson County Holdings. We have tried to invite their cooperation in protecting the financial and environmental interests of this community as members of the community and NOT as legal counsel for anyone. However, representatives of WCH have regularly refused to grant leases to small property owners and have offered to purchase mineral rights for a one-time payment of 4 cents per square foot or, in tire alternative, that the property owners receive nothing. This does not constitute an “arm’s-length” transaction, is not a meeting of the minds, severely lacks any semblance of good faith negotiation and is nothing more than an “it’s my [sic] or the highway” negotiation. This seems especially unfair since WCH has been aware of the potential value of oil production to the land owners from the outset. Only recently have they granted any leases to a few local small property owners without whom they could not even run horizontal casings.
‘At no time have I, Kerry D. Holyoak, announced that I am legal counsel for anyone in any proceeding regarding WCH. My wife and I are concerned citizens who do not agree with the WCH project based upon their refusal to deal fairly with small property owners and their initial promises not to engage in fracking. Our home and our business are directly affected by the drilling and oil production activities of WCH and we have a right to state our concerns and be treated fairly.
We view our offer as being no different than the farmers who were fairly compensated with millions of dollars to sell their acreage and minerals. Owners of large tracts of land have also been fairly compensated for the value of their minerals by being granted a 3/16 lease. Owners of small tracts of land within the city, such as ours, have been denied any lease by WCH but are instead offered 4 cents per square foot to sell all mineral rights in perpetuity. Therefore, we and other small property owners are being denied fair value for the pooled minerals under our own land and this is in violation of our correlative rights and forms part of the basis for our protest, a copy of which is included for your review.
‘Our business is not a farm, but it is a business with value nonetheless. We do not wish to live in a town facing potential ruin by the environmental effects of the WCH project. These environmental concerns are not imaginary but are evident by the WCH request for an exception to the industry standard of cementing wall casings and another exception to allow them to flare gas taken during petroleum extraction. Based on these concerns, we requested that they consider purchasing ALL of our interests and not just our real estate and mineral rights.
We did tie this to a request to a Covenant Not to Sue and Confidentiality [sic] Agreement. We did not do this in any attempt to extort the company. They have the right to proceéd with their project and we have the right to protest their actions. In fact, we have the right as citizens to seek redress in administrative and judicial venues whether we first make an offer to settle or not. We believe that certain other residents and citizens of the City of Fredonia may also have valid causes of action for fraud and conversion against Wilson County Holdings. We do not represent them as counsel but we have met with them in the past as friends, neighbors, and fellow citizens and we are willing to help other counsel and further actions against WCH should they want to taire action. In the event that we reach a resolution with WCH, I would be surprised if other citizens choose to take action.
1 find it amazing that you choose to use your status to threaten me witii potential state and/or criminal prosecution in an effort to gain an advantage for your client in a civil matter and then you choose to characterize my motives as unethical.
‘I also find it amazing that you consider it a violation of the federal tax code for someone to use an offshore bank account in order to minimize tax liability.
1 also find it amazing that you appear to characterize WCH as some sort of victim of what you characterize as our “scheme” and fail to see the deceitful manner in which they have dealt witii some citizens in order to obtain mineral rights for much less than fair value and deny others any recompense at all.
‘You have chosen to call me names and threaten my wife and I and our livelihood. You characterize our attempt to present a franchise agreement to the City of Fredonia and-WCH as that of a failed “public masquerade as a citizen attorney general”. We did that on our own time and expense as citizens in [sic] attempt for all of the small landowners to be treated fairly. The city [sic] was not interested in such an agreement as they had already received a lease from WCH. The only response by WCH Representative Don Missey was “that’s interesting.” We can see now how diat effort would be repugnant to WCH in their efforts to purchase small land owner’s mineral rights for a pittance and not share with the small landowners tire real financial benefits of pumping the oil from underneath their properties.
‘Nevertheless we are also mediators and we saw an opportunity.to resolve our complaints without litigation. It is a completely normal practice to make such types of agreements in business as we have proposed.
‘Based upon your rather demeaning and caustic letter, it appears that WCH is not as interested in reaching any land of resolution witii us as they are in using your position as a former federal prosecutor to intimidate and frighten us from exercising our rights as private citizens and from attempting to negotiate a settlement.
‘It was and continues to be our good faith intention to offer WCH an opportunity to avoid litigation and resolve this and future matters.
‘Should you have any questions, please feel free to contact tiiis office.’
“26. On July 8, 2014, Jonathan A. Schlatter and Douglas S. Laird filed a complaint against the respondent.
“27. The respondent’s law practice was established as a limited liability company with the Kansas Secretaiy of State’s office. As of June 6, 2014, the respondent listed his wife, Keny I. Holyoak, as an owner of his law firm. The respondent’s wife is not an attorney. The respondent has since corrected this problem.
“28. The respondent has a website which advertises his legal services. As of June 12, 2014, the respondent’s website also featured his wife’s services as a mediator. It was unclear from a review of the respondent’s website whether the respondent’s wife was also an attorney practicing law in the respondent’s firm. The respondent has since removed references to his wife from his website.
“Conclusions of Law
“29. In the formal complaint, Mr. Walczak included specific rules which he alleged the respondent violated. In deliberating this matter, in addition to the rules alleged in the formal complaint, the hearing panel considered whether the respondent violated two additional rules: KRPC 5.3(b) and KRPC 8.4(g).
“30. It is appropriate to consider violations not specifically included in the formal complaint under certain circumstances. The law in this regard was thoroughly examined in State v. Caenen, 235 Kan. 451, 681 P.2d 639 (1984), as follows:
‘Supreme Court Rule 211(b) (232 Kan. clxvi), requires the formal complaint in a disciplinary proceeding to be sufficiently clear and specific to inform the respondent of tire alleged misconduct.
‘The seminal decision regarding the applicability of the due process clause to lawyer disciplinary proceedings is found in In re Ruffalo, 390 U.S. 544, 88 S. Ct. 1222, 20 L. Ed. 2d 117, reh. denied 391 U.S. 961, 88 S. Ct. 1833, 20 L. Ed. 2d 874 (1968). There the United States Supreme Court held that a lawyer charged with misconduct in lawyer disciplinary proceedings is entitled to procedural due process, and that due process includes fair notice of the charges sufficient to inform and provide a meaningful opportunity for explanation and defense.
‘Decisions subsequent to Buffalo have refined the concept of due process as it applies to lawyer disciplinary hearings, and suggest that the notice to be provided be more in tire nature of that provided in civil cases. The weight of authority appears to be that, unlike due process provided in criminal actions, there are no stringent or technical requirements in setting forth allegations or descriptions of alleged offenses. . . . Due process requires only that the charges must be sufficiently clear and specific to inform the attorney of the misconduct charged, but the state is not required to plead specific rules, since it is tire factual allegations against which the attorney must defend. . . . However, if specific rules are pled, the state is thereafter limited to such specific offenses. . ..
‘Subsequent to the Buffalo decision, the due process requirements in lawyer disciplinary proceedings have been given exhaustive treatment by this court. In State v. Turner, 217 Kan. 574, 538 P.2d 966 (1975), 87 A.L.R.3d 337, the court summarized prior Kansas and federal precedent on the question, including Ruffalo, and held in accordance with established precedent that the state need not set forth in its complaint the specific disciplinary rules allegedly violated . . ., nor is it required to plead specific allegations of misconduct. . . . What is required was simply stated therein:
“ ‘We must conclude that where the facts in connection with the charge are clearly set out in the complaint a respondent is put on notice as to what ethical violations may arise therefrom. . . .
“ ‘It is not incumbent on the board to notify the respondent of charges of specific acts of misconduct as long as proper notice is given of the basic factual situation out of which the charges might result/ ”
235 Kan. at 458-59 (some citations omitted). Thus, only when the formal complaint alleges facts that would support findings of violations of additional rules, will considering additional violations be allowed. The hearing panel will address the above-stated law with respect to KRPC 5.3(b) and KRPC 8.4(g) separately below.
“KRPC 5.3(b)
“31. KRPC 5.3(b) provides:
‘With respect to a nonlawyer employed or retained by or associated with a lawyer:
‘(b) a lawyer having direct supervisory authority over the non-lawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer . . . .’
In this case, the evidence presented at the healing on this matter clearly established that the respondent failed to supervise a nonlawyer, his wife, as required by KRPC 5.3(b). The formal complaint, however, is void of sufficient facts to put the respondent on notice that he may have violated KRPC 5.3(b). As such, the hearing panel is unable to conclude, based upon Caenen, that the respondent violated KRPC 5.3(b).
“KRPC 5.4(d)
“32. KRPC 5.4(d) provides that:
‘A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if:
(1) a nonlawyer owns any interest therein, except that a fiduciary representative of tire estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration
The respondent formed his law practice as a limited liability company. The respondent’s wife, a nonlawyer, was registered as an owner of the company with the Kansas Secretary of State. The respondent stipulated that he violated KRPC 5.4 in this regard. As such, based upon the respondent’s stipulation and the facts presented, the hearing panel concludes that the respondent violated KRPC 5.4. (It is worth repeating, the respondent has resolved this issue.)
“KRPC 7.1(a)
“33. Lawyers must not make false or misleading statements about their services. ‘A communication is false or misleading if it. . . contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.’ KRPC 7.1. The respondent stipulated that he violated KRPC 7.1 by including references to his wife and the mediation services that she provides on his law firm’s website. On the website, the respondent omitted facts which were necessary to make the website considered as a whole not materially misleading. As such, the hearing panel concludes that the respondent violated KRPC 7.1.
“KRPC 8.4(c)
“34. It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.’ KRPC 8.4(c). The respondent misrepresented information when he communicated with Mr. Missey and Mr. Metzler and when he drafted the covenant not to sue. Specifically, the respondent claimed that he represented 50 other landowners when he did not. As such, the hearing panel concludes that the respondent violated KRPC 8.4(c).
“KRPC 8.4(g)
“35. ‘It is professional misconduct for a lawyer to... engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law.’ KRPC 8.4(g). With regard to KRPC 8.4(g), the disciplinary administrator included sufficient facts in the formal complaint to warrant consideration of such a violation. Thus, under Caenen, the hearing panel concludes that it is proper to consider a violation of KRPC 8.4(g).
“36. The respondent engaged in conduct that adversely reflects on his fitness to practice law. First, the respondent drafted the covenant not to sue. In that covenant, the respondent included the following provision:
T. PLAINTIFFS agree to permanently dispose of any and all documentation, records, recordings, witness statements, personal contact information for potential litigants, research and all other forms of discovery as it pertains to evidence which could be used against DEFENDANTS in a lawsuit of any nature.’
The respondent’s offer to destroy evidence is conduct which adversely reflects on his fitness to practice law.
“37. Second, the respondent offered to settle his claims by having WCH wire transfer $1.9 million dollars to an offshore account in the Bahamas. The respondent stated that he wished to have the money transferred to tire offshore account as a form of ‘asset protection.’ The respondent, however, denied that he was attempting to avoid paying taxes on the money. The respondent was unable to offer any legitimate explanation for ‘asset protection.’ Based on all the evidence, it is reasonable for the hearing panel to conclude that the respondent was attempting to avoid paying taxes on the money he hoped to get from WCH.
“38. Thus, the hearing panel concludes that the respondent violated KRPC 8.4(g).
“American Bar Association Standards for Imposing Lawyer Sanctions
“39. In making this recommendation for discipline, the hearing panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyers mental state, tire potential or actual injury caused by the lawyers misconduct, and the existence of aggravating or mitigating factors.
“40. Duty Violated. The respondent violated his duty to the public to maintain his personal integrity. The respondent also violated his duty to the legal profession.
“41. Mental State. The respondent knowingly violated his duties.
“42. Injury. As a result of the respondents misconduct, the respondent caused actual injury to the legal profession.
“43. Aggravating and Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found the following aggravating factors present:
“44. Prior Disciplinary Offenses. The respondent has been previously disciplined on one occasion. In 1993, the disciplinary administrator informally admonished tire respondent for violating the rules requiring diligent representation and adequate communication.
“45. Dishonest or Selfish Motive. The respondents misconduct was motivated by dishonesty and selfishness. The respondent sought to use unlawful means to obtain $1.9 million. Accordingly, the hearing panel-concludes that the respondent’s misconduct was motivated by dishonesty and selfishness.
“46. Multiple Offenses. The respondent committed multiple rule violations. The respondent violated KRPC 5.4(d), KRPC 7.1(a), KRPC 8.4(c), and KRPC 8.4(g). Accordingly, the hearing panel concludes that the -respondent committed multiple offenses.
“47. Refusal to Acknowledge Wrongful Nature of Conduct. The respondent stipulated that he violated KRPC 5.4(d) (relating to the ownership of his law office) and KRPC 7.1(a) (relating to his website). The respondent, however, refused to admit that he engaged in any misconduct relating to his dealings with WCPI. Accordingly, the hearing panel concludes that the respondent refused to acknowledge the wrongful nature of his conduct.
“48. Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the respondent to practice law in the State of Kansas in 1989. At the time of the misconduct, the respondent has been practicing law for more than 20 years.
“49. Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found the following mitigating circumstance present:
“50. Remoteness of Prior Offenses. The discipline imposed in 1993 is remote in character and in time to the misconduct in this case.
“51. In addition to the above-cited factors, the hearing panel has thoroughly examined and considered the following Standards:
‘5.11 Disbarment is generally appropriate when:
(b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer’s fitness to practice.
‘5.12 Suspension is generally appropriate when a lawyer knowingly engages in criminal conduct which does not contain the elements listed in Standard 5.11 and that seriously adversely reflects on the lawyer’s fitness to practice.
‘5.13 Reprimand is generally appropriate when a lawyer knowingly engages in any other conduct that involves dishonesty, fraud, deceit, or misrepresentation and that adversely reflects on the lawyer’s fitness to practice law.
‘7.2 Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional and causes injury or potential injury to a client, the public, or the legal system.’
“Recommendation
“52. The disciplinary administrator recommended that the respondent be suspended for a period of 6 months. Counsel for the respondent recommended that the respondent be permitted to continue to practice and that he be censured by the Kansas Supreme Court.
“53. The respondent engaged in serious misconduct which involved misrepresentations. Based upon the seriousness of the misconduct, a suspension is warranted. Accordingly, based upon the findings of fact, conclusions of law, and the Standards listed above, the hearing panel unanimously recommends that the respondent be suspended for a period of 6 months.
"54. Costs are assessed against the respondent in an amount to be certified by the Office of the Disciplinary Administrator.”
Discussion
In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Foster, 292 Kan. 940, 945, 258 P.3d 375 (2011); see Supreme Court Rule 211(f) (2015 Kan. Ct. R. Annot. 350). Clear and convincing evidence is “ ‘evidence that causes the factfinder to believe that “the truth of the facts asserted is highly probable.’”” In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009) (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]).
Respondent was given adequate notice of the formal complaint, to which he filed an answer, and adequate notice of the hearing before the panel and the hearing before this court. The respondent did not file exceptions to the hearing panels final hearing reports. As such, the findings of fact are deemed admitted. Supreme Court Rule 212(c) and (d) (2015 Kan. Ct. R. Annot. 369).
The evidence before the hearing panel establishes by clear and convincing evidence the charged misconduct violated KRPC 5.4(d) (2015 Kan. Ct. R. Annot. 639) (professional independence of a lawyer); 7.1(a) (2015 Kan. Ct. R. Annot. 653) (communications concerning a lawyer’s services); 8.4(c) (2015 Kan. Ct. R. Annot. 672) (engaging in conduct involving misrepresentation); and 8.4(g) (2015 Kan. Ct. R. Annot. 672) (engaging in conduct adversely reflecting on lawyer’s fitness to practice law), and it supports the panel’s conclusions of law. We adopt the panel’s conclusions.
The only remaining issue before us is the appropriate discipline for respondent’s violations. At the hearing before the panel, the office of the Disciplinary Administrator recommended that respondent be suspended from the practice of law in tire state of Kansas for a period of 6 months. Respondent recommended he be disciplined by public censure. The hearing panel agreed with the office of the Disciplinary Administrator in recommending a 6-month suspension.
At the hearing before this court, at which the respondent appeared, the office of the Disciplinary Administrator recommended that respondent be suspended from the practice of law in the state of Kansas for a period of 6 months. Respondent stated that he was not opposed to a 6-month suspension. This court is not bound by the recommendations of the Disciplinary Administra tor or die hearing panel. In re Mintz, 298 Kan. 897, 911-12, 317 P.3d 756 (2014). The hearing panels recommendations are advisory only and do not prevent us from imposing greater or lesser sanctions. Supreme Court Rule 212(f) (2015 Kan. Ct. R. Annot. 369); see In re Kline 298 Kan. 96, 212-13, 311 P.3d 321 (2013). After careful consideration, the court holds that a greater sanction is appropriate under the circumstances. The uncontested findings demonstrate respondent committed multiple acts of professional misconduct, the most troubling being: (1) He engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation. KRPC 8.4(c). Here, the respondent misrepresented information when he communicated with Donald Missey and Bill Metzler and in his proposed covenant not to sue. Specifically, the respondent claimed that he represented 50 other landowners when he did not. (2) He engaged in multiple acts of conduct that adversely reflect on his fitness to practice law. KRPC 8.4(g). First, the respondent drafted the covenant not to sue. In that covenant, the respondent included a provision to permanently dispose of any and all documentation, records, recordings, witness statements, personal contact information for potential litigants, research, and all other forms of discovery as it pertains to evidence which could be used by his clients and others against defendants in a lawsuit of any nature. The respondent’s offer to destroy evidence is conduct which adversely reflects on his fitness to practice law. Second, the respondent offered to settle his claims by having WCH wire transfer $1.9 million dollars to an offshore account. The respondent stated that he wished to have the money transferred to the offshore account as a form of “asset protection.” The respondent, however, denied that he was attempting to avoid paying taxes on the money. The respondent was unable to offer any legitimate explanation for “asset protection.” Based on all the evidence, it was reasonable for the hearing panel to conclude that the respondent was attempting to avoid paying taxes on the money he hoped to get from WCH.
The respondent refuses to acknowledge the wrongful nature of his conduct, particularly as it pertains to the covenant not to sue. We rarely see such behavior unaccompanied by any misgivings that reflects so poorly on our profession. We find his conduct, which ultimately evolved into a scheme of bribery and extortion, to be of such a serious magnitude and unconscionable nature that an indefinite period of suspension is warranted. If not fully accepting and appreciating that falsely claiming to the representation of over 50 litigants and offering to destroy all evidence that could be used on their and others’ behalf in exchange for wiring $1.9 million to an offshore account is wrongful, nothing short of the action we are taking today will adequately protect die public.
Conclusion and Discipline
It Is Therefore Ordered that Kerry Dale Holyoalc be indefinitely suspended from the practice of law in the state of Kansas, in accordance with Supreme Court Rule 203(a)(2) (2015 Kan. Ct. R. Annot. 293), as of the date of this order.
It Is Further Ordered that respondent shall comply with Supreme Court Rule 218 (2015 Kan. Ct. R. Annot. 401), and in the event respondent seeks reinstatement, he shall comply with Supreme Court Rule 219 (2015 Kan. Ct. R. Annot. 403).
It Is Further Ordered that the costs of these proceedings be assessed to the respondent and that this opinion be published in the official Kansas Reports. | [
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The opinion of the court was delivered by
Luckert, J.:
In State v. Alexander, 268 Kan. 610, 1 P.3d 875 (2000), this court held that a defense of dwelling jury instruction should not be given in a trial where the person defending a dwelling is the alleged victim rather than a defendant. We reexamine that holding in this appeal and conclude the defense of dwelling instruction should be given when necessary to fully inform the jury regarding the legal principles that govern the case, even if it is the alleged victim who defended his or her dwelling, rather than the defendant. In this case, the trial judge gave the pattern instructions regarding defense of a dwelling and defense of self, and we conclude this was not error under the facts of this case.
In addition to giving the pattern instructions, the trial judge inserted a sentence in the defense of dwelling instruction that told the jury self-defense is not available to someone who is being forced out of a dwelling by an individual who is lawfully defending the dwelling. This addition to the pattern instructions misstated the law because the two defenses are not mutually exclusive; self-defense is still available if a person reasonably believes another’s use of force is unlawful. Nevertheless, we conclude this erroneous addition to the pattern instruction was harmless, and we affirm James R. Andrew’s convictions.
Facts and Procedural Background
The parties agree that the Court of Appeals’ decision fairly and adequately summarized the facts in this case, stating:
“On the evening of January 25, 2008, Andrew’s son arrived home to find his father lying face down on the floor at the bottom of the stairs. Andrew was unconscious and bloody, and the house was in disarray. According to the son, it ‘land of looked like someone was going through, maybe to try and find something.’ The son called 911, and the police spoke with both Andrew and Iris son.
“After the police left Andrew’s house, the son went to a neighboring house where [Mitchell] Garlach and A. J. Brewer lived. Although Brewer was not home at tire time, Garlach was there with some of his friends. Before leaving Andrew”s house, the son told Andrew where he was going and told him not to follow. However, about 20 minutes later, Andrew entered Garlach and Brewer’s house without knocking.
“Garlach testified that he did not know Andrew and confronted him when he came into the house. According to Garlach, he asked Andrew who he was and told him to get out of his house. Andrew, who Garlach testified appeared to be extremely drunk, said that he was looking for his son or Brewer. Garlach testified that Andrew asked him if he wanted to ‘get stuck’ and pulled a kitchen knife out of his pocket. Garlach claimed that he did not have any type of weapon displayed prior to Andrew pulhng out the knife.
“Andrew’s son, however, recalled the events somewhat differently. He testified that Garlach got angry when Andrew came into the house, that Garlach pulled a billy club out of his pocket, and that he started ‘talking smack.’ According to the son, when Garlach and some of his friends started to close in, Andrew pulled the kitchen knife out of his pocket. The son, who was standing between Garlach and Andrew, called 911. It appears, however, that the son did not mention the billy club during the 911 call or in his written statement to the police.
“Andrew was subsequently charged with two counts of aggravated assault—one against his son and one against Garlach. The charge against Andrew for assaulting his son was dismissed at trial for insufficient evidence.” State v. Andrew, No. 104,666, 2011 WL 6942933, at “1 (Kan. App. 2011) (unpublished opinion).
Andrew did not testify at trial. Instead, he relied on evidence of the circumstances, as primarily established through his son’s testimony, to assert that he acted in self-defense. The trial judge accepted Andrew’s argument and, during the jury instruction conference, proposed using the pattern instruction regarding self-defense, PIK Crim. 4th 52.200 (Use of Force in Defense of a Person). The judge also proposed using PIK Crim. 4th 52.210 (Use of Force in Defense of a Dwelling, Place of Work, or Occupied Vehicle).
As adapted to this case, the proposed self-defense instruction explained Andrew’s claim that he reasonably believed force was necessary to defend himself against Mitchell Garlach’s imminent use of unlawful force. In the defense of dwelling instruction, the trial judge proposed instructing that a person “is permitted to use force to the extent that it appears to him and he reasonably believes such force is necessary to prevent another person from unlawfully remaining in his dwelling.” Both proposed instructions explained that “ [reasonable belief requires both a belief by the person and the existence of facts that would persuade a reasonable person to that belief.” In addition, both proposed instructions indicated that someone acting in lawful self-defense or in defense of another person is not required to retreat.
All of these statements were consistent with the pattern jury instructions. But the trial judge proposed the following language be added to the defense of dwelling instruction: “When acting within this permitted use of force, self-defense is not available to tire person being forced out.”
Andrew objected to the proposed defense of dwelling jury instruction, arguing it was not factually appropriate because Andrew was not in Garlach’s house unlawfully. Although Andrew had not testified, he proffered evidence of what his testimony would have been if he had known that the judge was going to instruct the jury on the law regarding the defense of a dwelling. The substance of the proffer established that Andrew had been in Garlach’s home previously to visit A.J. Brewer. He supported this point by also proffering the testimony of other witnesses who had not been called to-testify during the trial. In addition, he argued the proposed addition to the pattern instruction was a misstatement of law.
The trial judge decided to give the instruction as proposed despite Andrew’s objections. The judge explained his rationale for giving the modified defense of dwelling instruction:
“[I]f [Garlach is] within his rights to put his hand on and use force against the defendant to force him out of the house[,] ... it makes no sense at all for the defendant to be allowed to use force back against [Garlach],
“Similar situation would be where the police are using legal force on somebody and they place their hands on somebody, put them into handcuffs, and the person resists and wants to claim self-defense in his battery on a law enforcement officer. It makes no sense to allow somebody who is having force legally applied to them to be able to use force back.
“I’ve got to tell the jury if [Garlach] is using lawful force, the defendant can’t use force. I understand [the defense’s] position that [Andrew] wasn’t involved in a violent felony, he can claim self-defense, but he can’t if force is being applied lawfully to him.”
Applying these instructions, the jury convicted Andrew of the aggravated assault of Garlach.
Andrew timely appealed to the Court of Appeals, raising two issues: (1) whether the jury instruction regarding defense of a dwelling correctly stated Kansas law as applicable to the facts of this case, and (2) whether the trial judge erred in refusing to instruct the jury on voluntaiy intoxication. In a split decision, a majority of the Court of Appeals affirmed Andrew’s conviction. The majority distinguished Alexander and essentially concluded the statement in Alexander prohibiting the use of the defense of dwelling instruction in any case where the defense relates to the actions of an alleged victim was dicta. Andrew, 2011 WL 6942933, at *2-5. Judge Arnold-Burger dissented, arguing the holding in Alexander controlled and, therefore, the defense of dwelling instruction should not have been given. Judge Arnold-Burger further concluded the trial judge’s addition to the instruction was incorrect because the theories of self-defense and defense of a dwelling are not mutually exclusive. 2011 WL 6942933, at *6 (Arnold-Burger, J., dissenting).
Andrew timely filed a petition for review raising the same two issues as he did before the Court of Appeals. We granted review on only the defense of dwelling instructional issue. K.S.A. 2013 Supp. 22-3602(e) (party may petition the Supreme Court for review as provided in K.S.A. 20-3018[b]); K.S.A. 20-3018(b) (party aggrieved by a decision of the Court of Appeals may petition the Supreme Court for review); Supreme Court Rule 8.03(e) (2013 Kan. Ct. R. Annot. 74) (discretion in granting review); Supreme Court Rule 8.03(g)(1) (order granting review may limit the issues on review).
Defense of Dwelling and Self-Defense Instructions
In reviewing a claimed instructional error, an appellate court conducts a four-step analysis. Those steps, with the accompanying standards of review, are:
“(1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine 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 (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree óf certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).” State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012).
Here, under the first step of the analysis, Andrew objected to the defense of dwelling jury instruction and articulated specific reasons for his objection. Thus, he fully preserved this issue.
Next, we must consider whether giving the defense of dwelling jury instruction was factually appropriate. As we have noted, in Alexander, 268 Kan. 610, this court indicated the instruction should not be given when it is the alleged victim who asserts the defense of dwelling defense, not the defendant. Alexander is the only published Kansas case cited by the parties to discuss whether the instruction should be given when it is the victim who defended a dwelling. If Alexander is correct, it was error to give the jury instruction in the present case. Nevertheless, as the Court of Appeals majority observed, there are significant factual distinctions between Alexander and this case.
The defendant in that case, Patricia Alexander, had been involved in a longstanding dispute with Walter Young; they fought several times over a several-week period. Initially, the skirmishes caused black eyes and other minor injuries. These skirmishes escalated to a knife fight in which Alexander fatally stabbed Young three times.
On the day of the knife fight, Young and Alexander first fought outside Young’s housé. Young then went inside his house. Despite Young’s retreat, Alexander pounded on Young’s door with a plastic baseball bat and then broke into and entered the house. Witnesses heard scuffling from inside and then saw the two emerge with Young holding Alexander in a headlock and pressing a large knife to her throat. A neighbor gained control of the knife, and the fight broke up.
Alexander, however, refused to leave, and the two went back into Young’s house. Later, Young went to Alexander’s niece’s house and told the niece to “come over and get your Auntie before I kill her.” Before Young made it back to his house, Alexander met Young in the street and threatened him with a knife. Young attempted to run away, but Alexander caught him. The two struggled, and at that point Alexander fatally stabbed Young.
As accurately explained by the Court of Appeals majority:
“In Alexander the evidence revealed that the stabbing occurred in the street— not in a dwelling. In fact, the victim’s defense of his dwelling had taken place earlier in the day, and the Kansas Supreme Court found that the two events were ‘disconnected from each other.’ 268 Kan. at 614. Thus, the defense of dwelling instruction given in Alexander was not relevant to the defendant’s claim of self-defense at the time of the stabbing.” Andrew, 2011 WL 6942933, at "3-4. Because Young was not defending his home when he was stabbed by Alexander, the defense of dwelling juiy instruction was not factually appropriate. Alexander, 268 Kan. at 613-14.
While the fatal fight in Alexander occurred in the street, in this case Andrew assaulted Garlach in Garlach’s home after Garlach threatened the use of force by displaying a billy club. See K.S.A. 2013 Supp. 21-5221(a)(l)(A) (defining “use of force” to include “[w]ords or actions that convey the threat of force”). Given these facts, a juiy could have reasonably concluded Garlach was defending his home after Andrew—a stranger to Garlach—-walked in uninvited and did not immediately retreat when Garlach asked Andrew why he was in Garlach’s home. As tire Court of Appeals noted: “Here, it is undisputed that Andrew pulled a knife while Garlach was trying to remove Andrew from his home. Unlike the victim in Alexander, Garlach’s actions in defending his dwelling are direcdy connected to Andrew’s claim of self-defense.” Andrew, 2011 WL 6942933, at s3. Thus, we conclude the defense of dwelling jury instruction was factually appropriate.
This leads to the question of whether the instruction was legally appropriate. Again, Alexander appears to control this determination with its holding that tire instruction should not be given if the defense justifies the actions of the alleged victim. But it is unclear why the Alexander court made diis statement. The statement was not necessaiy to the resolution of the case because the instruction was not factually appropriate, and the case could have been resolved solely on that basis. Further, in adding the statement, the Alexander court did not explain its reasoning nor did it cite supporting authority.
Given the facts of this case, these deficiencies in the Alexander analysis raise valid questions about the statement found in the opinion. Thus, we must reexamine whether a defense of dwelling jury instruction can be given if it is the victim who defended his or her dwelling.
In doing so, we recognize that the purpose of jury instructions is to state the law as applied to the facts of the case. See State v. Torres, 294 Kan. 135, 147, 273 P.3d 729 (2012) (juiy instructions fail their purpose if they “omit[] words that may be essential to a clear statement of the law”)- This leads to the question of whether the jury could fully understand the law that dictates the outcome of this case without understanding whether Garlach acted lawfully when he incited a reaction from Andrew. The trial judge and the Court of Appeals majority concluded that both instructions—defense of a dwelling and defense of self—were necessary to a full understanding of the law. As the Court of Appeals noted: “[T]he jury in this case had to decide whether Andrew was in Garlach’s home unlawfully, whether Andrew provoked the incident, whether Garlach used reasonable force in an attempt to remove Andrew from his home, and whether Andrew was entitled to use force to defend himself in Garlach’s home.” Andrew, 2011 WL 6942933, at *3. As the Court of Appeals concluded, applying Alexander would leave the jury without any guidance regarding the law relating to the lawfulness or unlawfulness of Garlach’s efforts to remove Andrew from Garlach’s home.
Further, we can find no authority or basis for a rule absolutely prohibiting giving a defense of dwelling jury instruction when the defense is used to justify the actions of the alleged victim. The defense of a dwelling is statutorily defined, and the language of the statute does not make the distinction. Rather, K.S.A. 2013 Supp. 21-5223, refers generically to a “person,” stating:
“(a) A person is justified in the use of force against anodrer when and to the extent that it appears to such person and such person reasonably believes drat such use of force is necessary to prevent or terminate such other’s unlawful entry into or attack upon such person’s dwelling, place of work or occupied vehicle.
“(b) A person is justified in the use of deadly force to prevent or terminate unlawful entry into or attack upon any dwelling, place of work or occupied vehicle if such person reasonably believes that such use of deadly force is necessary to prevent imminent deatir or great bodily harm to such person or another.
“(c) Nothing in this section shall require a person to retreat if such person is using force to protect such person’s dwelling, place of work or occupied vehicle.” (Emphasis added.)
The legislature could have limited the applicability of the statute to a “defendant” but instead it referred to a “person.” In this regard, the lack of a limitation on the applicability of the statute makes the legislature’s intent clear and unambiguous. When a statute is unambiguous, a court attempting to determine legislative intent merely interprets the statutory language, it is not free to read words into the statute. State v. Brown, 295 Kan. 181, Syl. ¶ 5, 284 P.3d 977 (2013). Consequently, it would be inappropriate to read the statute as being limited to a defendant. We, therefore, disapprove of the statement in Alexander that “[bjecause Young [the victim] was not on trial, Instruction No. 14 [die pattern defense of dwelling instruction] should not have been given.” Alexander, 268 Kan. at 613.
In this case, Andrew entered Garlach’s house without knocking. Both Andrew’s son and Garlach testified that no one opened the door to let Andrew in; Garlach just heard the door shut as Andrew stepped inside. Although Andrew had been to the house before, there was no evidence he had permission to enter the home whenever he wished. Thus, a jury question arose as to whether Garlach could reasonably defend his dwelling under the circumstances. Consequently, we hold the trial judge did not err in providing the jury with both PIK Crim. 4th 52.200 (Use of Force in Defense of a Person) and PIK Crim. 4th 52.210 (Use of Force in Defense of a Dwelling, Place of Work, or Occupied Vehicle).
This does not end our analysis, however, because the trial judge modified the defense of dwelling pattern instruction by adding the following sentence: “When acting within this permitted use of force, self-defense is not available to the person being forced out.” In dissent, Judge Arnold-Burger concluded this additional sentence “ ‘confuse[d] or muddle[d] the issue of self-defense’ ” by advising the jury that the two theories were mutually exclusive. Andrew, 2011 WL 6942933, at “5 (Arnold-Burger, J., dissenting). Consequently, Judge Arnold-Burger determined that “[t]he instruction erroneously informed the jury that Garlach’s defense of his dwelling eradicated Andrew’s claim of self-defense.” 2011 WL 6942933, at s6 (Arnold-Burger, J., dissenting).
To determine whether the defenses are mutually exclusive we consider the self-defense statute, K.S.A. 2013 Supp. 21-5222, which provides:
“(a) A person is justified in the use of force against another when and to the extent it appears to such person and such person reasonably believes that such use of force is necessary to defend such person or a third person against such other’s imminent use of unlawful force.
“(b) A person is justified in the use of deadly force under circumstances described in subsection (a) if such person reasonably believes that such use of deadly force is necessary to prevent imminent death or great bodily harm to such person or a third person.
“(c) Nothing in this section shall require a person to retreat if such person is using force to protect such person or a third person.” (Emphasis added.)
The language of the self-defense statute is also unambiguous. In sum, it provides that a person is justified in the use of force only when the person reasonably believes force is necessaiy against another’s imminent use of unlawful force. A legally sufficient claim of self-defense requires evidence supporting both (1) a subjective belief on the part of the defendant that (a) the use of unlawful force is imminent and (b) the use of force is necessaiy and (2) an objective determination that a reasonable person would have come to the same conclusions. State v. Walters, 284 Kan. 1, 9, 159 P.3d 174 (2007).
In order for it to be objectively reasonable for a defendant to use force in self-defense, the defendant must “reasonably believe it to be, ‘unlawful’ force—meaning, in general, that it be a crime or tort (generally assault and battery) for the adversaiy to use the force. Thus one cannot properly defend himself against known lawful force.” 2 LaFave, Substantive Criminal Law § 10.4 (2d ed. 2003). For example, considering the analogy used by the trial judge, a self-defense instruction is generally not available for resisting arrest by an identified, uniformed police officer. If an officer must use force to make an arrest, the arrestee cannot respond with force. State v. Tyler, 251 Kan. 616, 626, 840 P.3d 413 (1992).
Nevertheless, the rule is qualified by stating that self-defense is not available against “known lawful force.” (Emphasis added.) 2 LaFave, Substantive Criminal Law § 10.4. This rule was followed by this court in Tyler, which is instructive.
In Tyler, several sheriff officers executed a search warrant. They entered a house with a battering ram, announcing who they were. St. John Tyler, however, was in the kitchen at the back of the house and did not hear the officers’ announcement. When an officer came into the kitchen, Tyler shot the officer. Tyler testified that he thought the officer was a robber when the officer, who had long hair and a beard, ran into the kitchen with his gun drawn. He and other witnesses explained there had been rumors that the house was going to be robbed, and while the officer wore a jacket with a sheriff office insignia, he was not in full uniform. Tyler requested jury instructions on self-defense and defense of a dwelling. The trial judge refused the request, reasoning the defenses are only available when one is defending against unlawful force, and the officer s force was lawful. In other words, die trial judge adopted die same position as that taken by the trial judge in this case.
On appeal, this court in Tyler found the trial judge’s reasoning was flawed. “Under the circumstances where a person unidentifiable as a law enforcement officer uses force to execute a warrant where a reasonable person would believe the officer was an unlawful aggressor, then force is justified to repel the aggressor.” 251 Kan. at 626.
Likewise, in this case, the trial judge’s ruling and his addition to the pattern instruction was too broad and, consequently, incorrect. Contrary to the defense of dwelling jury instruction read to the jury by the judge in this case, defense of self is not absolutely prohibited when another party has used lawful force. As applied under the facts of this case, even if the use of force in defense of a dwelling is lawful, an individual responding to that force may counter with reasonable force if he or she reasonably believes the force used to defend the dwelling is unlawful. Thus, the trial judge’s modification of the pattern instruction was erroneous.
In the final step of our analysis, we “must determine 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 132 S. Ct. 1594 (2012).” Plummer, 295 Kan. 156, Syl. ¶ 1. Here, the instructional error impacts a constitutional right, the right to present a theory of defense. Consequently, we must assess whether the error was harmless under the federal constitutional harmless error standard, i.e., whether there was “no reasonable possibility” that the error contributed to the verdict. See Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386 U.S. 987 (1967); Ward, 292 Kan. 541, Syl. ¶ 6; see also State v. Flynn, 299 Kan. 1052, 1069, 329 P.3d 429 (2014) (applying federal constitutional harmless error standard to instructional error where error implicated defendant’s theory of defense).
Judge Arnold-Burger concluded the error was reversible, stating:
“At trial there was evidence presented through Andrew’s son, who was a prosecution witness and also an alleged victim in die case, that Andrew knew the cotenant, Brewer, and had been in the house before. . . . Andrew and Garlach did not know each other. . . . Therefore, the jury could have concluded that Andrew reasonably believed he had permission to be in the house because he knew Brewer; that he did not know Garlach had authority to ask him to leave because he did not know Garlach; and that Andrew brought out the knife to defend himself against Garlach and Iris friends who started to surround him. But based on the instruction given, if the jury believed that Garlach did in fact have the authority to use force to convince Andrew to leave, Andrew was prohibited from claiming self-defense.” State v. Andrew, No. 104,666, 2011WL 6942933, at ”6 (Kan. App. 2011) (unpublished opinion) (Arnold-Burger, J., dissenting).
While we otherwise have agreed with Judge Arnold-Burger’s analysis, at this point we depart, largely because we believe that it is irrelevant that Andrew had previously been a guest in Garlach and Brewer’s home. There was no evidence that Andrew had a standing invitation to enter the house at will. Rather, he entered as a person with no explicit privilege to be where he was.
Other courts have recognized that people who enter a home without permission “face the possibility of lawful physical force by a person defending against the trespass [and] are not in the same position as an otherwise innocent person . . . with respect to the privilege of using force in self-defense.” People v. Toler, 9 P.3d 341, 353 (Colo. 2000). The Colorado Court of Appeals applied Toler and further explained that “[b]ecause every person is generally presumed to know the law [citation omitted], it is presumed that defendant knew the victim could employ lawful force against him if he unlawfully entered her dwelling.” People v. Hayward, 55 P.3d 803, 806 (Colo. App. 2002); cf. K.S.A. 2013 Supp. 21- 5224(a)(1)(A) (“a person is presumed to have a reasonable belief that deadly force is necessary” if the force is used against someone who “[i]s unlawfully or forcefully entering” a dwelling); K.S.A. 2013 Supp. 21-5220 (K.S.A. 2013 Supp. 21-5224 to be applied retroactively). The parties do not cite these Kansas statutes or argue for their application in this case; consequently, we do not base our decision on them. Nevertheless, we find the rationale of our sister state persuasive.
As a result, when measuring Andrew’s actions against an objective standard, we begin with the presumption that Andrew should have recognized that the law allowed anyone who dwelled in the home to use force against him. Even though there was evidence that Andrew did not know Garlach, Andrew’s son testified that as soon as Andrew entered, Garlach asked: “ “Why are you in my house?’ ” The reference to “ ‘my house’ ” clearly identified Garlach as someone with the right to defend his home. We do not know what Andrew thought when he heard this statement because he did not testify—i.e., there is no direct evidence of the subjective prong. The State does not challenge Andrew’s request on this basis, however. Rather, the State asks us to focus on the objective prong, and Andrew’s testimony is not necessary in order for us to do so.
Based on our evaluation, we conclude Andrew’s use of force against Garlach was objectively unreasonable. Once Andrew knew he was in Garlach’s house against Garlach’s wishes, Andrew was presumed to know that Garlach’s use of force was lawful. See State v. Moore, 287 Kan. 121, 131-33, 194 P.3d 18 (2008) (discussing cases where appellate court determines use of force objectively unreasonable); State v. Jackson, 262 Kan. 119, 123-24, 936 P.2d 761 (1997) (after defendant had been repeatedly told to leave a club, bouncer placed hands on defendant and again told him to leave; defendant’s use of force not objectively reasonable because bouncer’s actions were lawful); Tyler, 251 Kan. at 626 (finding use of force objectively unreasonable).
Consequently, under the facts of this case, Andrew’s use of force was unlawful, and there is not a reasonable possibility that the error in the jury instructions affected the outcome of the trial.
Judgment of die Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.
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Standridge, J.:
Travis M. Knighten appeals from his convictions for one count of second-degree intentional murder and one count of aggravated battery, arguing the district court erred in denying his challenge based on Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), in failing to require his presence during a critical part of the proceedings, and in failing to deny his request for an instruction on the lesser offense of voluntary manslaughter. Knighten also argues the district court violated his Sixth and Fourteenth Amendment rights by sentencing him without requiring either the aggravating factors or his criminal history score to be proven to a jury beyond a reasonable doubt.
Facts
At around 2 a.m. on May 7, 2011, Carl Meridy, Kedrick Harrison, and Mario Brown went to a night club located at the comer of 13th and Hillside in Wichita. When they got to the club, it was closed, so they hung out in the parking lot. There were approximately 50-80 people in the parking lot at the time. Many people were leaving in their cars.
While Meridy was standing in the parking lot, he saw a dark-colored sport utility vehicle (SUV) pull up. He and another witness saw a hand holding a gun reach out of the front passenger side window of the SUV and fire shots. Meridy was struck by bullets in the right leg and the left arm. Brown was also struck by bullets in tire back, shoulder, chest, and thigh. Brown and Meridy were both transported to a hospital. Meridy was treated and survived to testify at trial. Brown ultimately was pronounced dead at 3:35 a.m.
Witnesses at the scene described the SUV as a black vehicle with a white roof. They could not provide an exact make and model but told police it looked boxy, like a military vehicle. Later, the police recovered security footage belonging to a neighboring business and were able to determine that the SUV was a Toyota FJ Cruiser. The police identified Addison Buck as the owner of the vehicle. When interviewed, Buck told police that she believed her boyfriend, Arthur Gary, had the SUV on the night of the shooting.
The police were not able to immediately locate Gary and believed he may have, left Wichita. In December 2011, about 7 months after the shooting incident, Detective Tim Relph learned that Gaxy might be back in town. Relph attempted to contact Gary through Buck. Gary later called Relph and agreed to meet him. When they met, Gary told Relph that four people were with him in the SUV at the time of the shooting: Jasper Gray, Ebony James, Dashawn Robertson, and Knighten. Gary said he was driving and Knighten was sitting in the front passenger seat. As they drove through the parking lot of the club, someone started walking toward the SUV and gesturing. Gary then saw Knighten pull a gun out of his pants pocket and fire it.
Knighten was charged with first-degree murder and aggravated battery. He pled not guilty to both counts, and his case proceeded to jury trial. After voir dire concluded, both the State and Knighten raised Batson challenges. Knighten’s Batson challenge was based on the State’s decision to strike two of the four potential African-American jurors from the jury pool. The State, on the other hand, claimed that Knighten had struck a disproportionate number of white males from the jury pool. The district court denied both Batson challenges.
At trial, the jury heard testimony from all tire passengers in the SUV except Knighten. Gary passed away prior to trial, so his pre- liminaiy examination testimony was read to the juiy. Gary testified that he was driving the SUV and Knighten was in the passenger seat at the time of the shooting. He said that a man he did not know started walking up to the SUV making gestures. He observed Knighten take a gun out of his pants pocket and fire it. Gary also stated that after the shooting, Knighten told him that he was sorry that the incident had happened in the vehicle.
Ebony testified that she was sitting in the back seat on the passenger side and that Knighten was in the front passenger seat. She said she put her head down as soon as she heard shots and did not know whether the shots came from inside or outside the vehicle. She testified that she never actually saw a gun.
Jasper testified that she was sitting in the middle of the back seat of the SUV at the time of the shooting and Knighten was in the front passenger seat. Jasper said she also put her head down as soon as she heard shots and did not see where tire shots were coming from. This testimony, however, conflicted with earlier statements she made in an interview with Relph when she identified Knighten as tire individual who fired the gunshots.
Robertson testified that he was in the back middle seat and, like the rest of the occupants, confirmed that. Knighten was in the front passenger seat. Robertson said that when the group got to tire parking lot of the club, somebody came up on the SUV like “they was feeling some kind of war.” Robertson testified that he did not see a gun or weapon of any land in tire hands of the person who was approaching the vehicle but that the individual was with a large group of guys walking up to the SUV. He testified that soon thereafter, Knighten started shooting at them. •
Knighten did not testify. But his older sister, Sheronda Knighten, and his cousins, Kendra Hunter and Shaquala Horn, all testified that Knighten was babysitting Sheronda’s daughter on the night of the shooting.
After the close of evidence, Knighten requested that the jury be instructed on voluntary manslaughter as a lesser included offense of tire first-degree murder charge. The district court denied the request.
During deliberations, the jury asked two questions in writing. The district court held a conference in chambers with the attorneys to discuss die questions and how to respond. Then, the district court conducted a hearing on the record to discuss the proposed answers. Knighten was present at the hearing. During the hearing, the attorneys for both sides approved the proposed responses on the record. Knighten’s attorney also informed the court that he had discussed the matter with Knighten and diat Knighten seemed fine with the decision not to object to the answers. The district court judge then instructed the bailiff to deliver the written answers to the juiy. The jury eventually found Knighten guilty of intentional second-degree murder and aggravated battery.
Prior to sentencing, Knighten filed a motion requesting a du-rational departure sentence. The motion was denied. The district court sentenced Knighten to 285 months’ imprisonment for his second-degree murder conviction. It also sentenced him to 9 months’ imprisonment for his aggravated battery conviction. The district court ordered that the sentences should run consecutively.
Analysis
On appeal, Knighten claims the district court erred (1) by denying his Batson challenge without requiring the State to provide race-neutral reasons for striking two potential jurors; (2) by failing to include Knighten in its meeting with counsel to discuss questions asked by the jury during deliberations; (3) by denying his request to instruct the juiy on the lesser offense of voluntary manslaughter; (4) by sentencing him without requiring either the aggravating factors or his criminal history score to be proven to a jury beyond a reasonable doubt; and (5) by violating his constitutional rights. We discuss each of Knighten’s claims of error in turn.
1. Batson challenge
In Batson, the United States Supreme Court determined that the Equal Protection Clause forbids the State from challenging potential jurors solely on account of their race. 476 U.S. at 89. District courts use a three-step analysis to resolve Batson chai- lenges, and each step has a distinct standard of review on appeal. State v. McCullough, 293 Kan. 970, 992, 270 P.3d 1142 (2012).
First, a defendant must make a prima facie showing that the prosecutor exercised peremptory challenges on the basis of race. This court exercises plenary review over this question. In the second step, the burden shifts to the prosecutor to give race-neutral reasons for striking prospective jurors. In this step, the prosecutor only has the burden of production, not persuasion, so unless a discriminatory intent is inherent in the answer, the offered reason will be deemed race-neutral. Finally, the district court must determine whether the defendant ultimately carried his or her burden of proving purposeful discrimination. Appellate courts review the district court’s determination for abuse of discretion. McCullough, 293 Kan. at 992.
At the beginning of the Batson hearing in this case, the following exchange occurred:
“THE COURT: Before we get to the Batson, I will note the State struck two black males [and] one Hispanic male. Defense has struck one apparent female. I will note the majority of the panel composed is white. I didn’t really have a head count on gender.
“Mr. Owens, you raised the Batson issue first. Go ahead, please.
“MR. OWENS [defense counsel]: There were limited numbers of African-American potential jurors. I believe there were four. Half of them have been struck. And State needs to give a race neutral reason.
“THE COURT: If I find there’s a purposeful pattern of discrimination. I will note they have also left on [R.H.], number 22, who[] is a black male, as you have as well. And [C.E.], number 24, a black female, as you have also. Okay.”
A short time later, after discussing the State’s reasons for raising its Batson challenge, the following exchange occurred:
“THE COURT: You guys really want to throw the panel out and start over brand new? If you want to, I’m happy to do it. It won’t be me. It will be somebody else. You guys want to throw it out, let’s throw it out. Your choice, your call.
“State want to throw the panel out? No, it is your call, Jennifer [Amyx, prosecutor], you made die request. Do you want to throw the panel out?
“MS. AMYX: No.
“THE COURT: Do you want to throw the panel out, Mr. Owens?
“MR. OWENS: No.
“THE COURT: Is there really a Batson challenge? Or are we just posturing?
“MS. AMYX: Judge, it is not posturing when the first four come out and then it changes so . . .
“MR. OWENS: Just for the record, one of the primary tilings that I would put a minus by boxes would be individuals that appeared to be handgun enthusiasts. Not all of those I struck, but they tended to be white males.
“THE COURT: I’m not asking for a race, gender, or any land of neutral explanation at this point. I saw the selection, I saw the individuals, I heard their answers. I’m aware that quite honestly on race alone the State wins on the number of strikes to minorities.
“I’m not going to find any purposeful pattern or discrimination by either side, and I will deny the Batson challenges on both sides. I think what we have is a pretty representative jury.
“If either side wants to place race or gender neutral reason on the record, you can. I will give you that choice.
“Mr. Owens, you want to add to what you’ve already said?
“MR. OWENS: No, Your Honor.
“THE COURT: Ms. Amyx.
“MS. AMYX: No, Judge.
“THE COURT: AH right. Were closed.”
Knighten argues that the district court erred by denying his Batson challenge without engaging in the requisite analysis. Specifically, Knighten asserts the district court erroneously failed to engage in the first two steps of the Batson analysis and instead ruled only on the ultimate question of discrimination set forth in the third step.
To establish a prima facie case of intentional racial discrimination as required in the first step of the Batson analysis, the defendant must show that the prosecutor has exercised peremptory challenges to remove venire members from the jury and that this fact, along with any other relevant circumstances, raises an inference that the government used the peremptory challenges to exclude members of the venire panel on account of their race. State v. Edwards, 264 Kan. 177, 193-94, 955 P.2d 1276 (1998) (acknowledging that the holding in Batson was expanded by the United States Supreme Court in Powers v. Ohio, 499 U.S. 400, 415, 111 S. Ct. 1364, 113 L. Ed. 2d 411 [1991], to prohibit striking minority jurors who are a different race or ethnicity than the accused). Upon review of the record, it appears the district court did not decide whether Knighten made a prima facie showing of race discrimi nation under Batson. But Knighten argues that the preliminary issue of whether the defendant has made a prima facie showing becomes moot if the trial court went on to rule on the ultimate question of discrimination. See State v. Bolton, 271 Kan. 538, 540-41, 23 P.3d 824 (2001) (citing Hernandez v. New York, 500 U.S. 352, 359, 111 S. Ct. 1859, 114 L. Ed. 2d 395 [1991]; Edwards, 264 Kan. at 194). The parties do not dispute that the district court in this case did, indeed, rule on the ultimate question of discrimination here. Accordingly, we find the issue of whether Knighten met his prima facie burden is moot. See Bolton, 271 Kan. at 540-41.
But our finding of mootness with regard to the first step of the Batson test is not determinative of Knighten’s claim of error on appeal. Specifically, Knighten asserts the court abused its discretion by deciding the State did not engage in a purposeful pattern of discrimination under the third step without deciding whether the State met its burden to produce race-neutral reasons for striking the jurors at issue under the second step. “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. [Citation omitted.]” State v. Smith, 299 Kan. 962, 970, 327 P.3d 441 (2014). Substantial competent evidence is that which
“ ‘possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. In other words, substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion.’ (Emphases added.) Drach v. Bruce, 281 Kan. 1058, Syl. ¶ 2, 136 P.3d 390 (2006), cert. denied 549 U.S. 1278 (2007).” State v. Gonzalez, 290 Kan. 747, 757, 234 P.3d 1 (2010).
To that end, Knighten claims the court erred as a matter of law by deciding the State did not engage in purposeful discrimination under the third step without first deciding whether the State met its burden of production under the second step. Knighten also claims the district court erred as a matter of fact because there is no evidence in the record, let alone substantial competent evidence, to establish that the State had a race-neutral reason for striking the two African-American jurors. See McCullough, 293 Kan. at 992 (the burden to provide race-neutral reasons for striking prospective jurors is only one of production, not persuasion and, unless a discriminatory intent is inherent in tire answer, the offered reason will be deemed race-neutral).
In support of his request to remand the matter for a new trial or for a proper Batson hearing based on this alleged abuse of discretion, Knighten compares tire facts in his case to those in Bolton. In deciding the Batson issue in Bolton, the district judge stated that he relied on a review of his own notes regarding the jurors who were challenged and the objections lodged. 271 Kan. at 540. On appeal, the Kansas Supreme Court specifically held that “[i]n the typical peremptory challenge inquiry, tire decisive question will be whether counsel’s race-neutral explanation for a peremptory challenge should be believed.” Bolton, 271 Kan. at 541 (citing Hernandez, 500 U.S. at 365). Upon review of the record, however, the Bolton court found no evidence to support a finding that the State relied on race-neutral reasons for striking tire jurors. Given this lack of evidence, the court held there was insufficient evidence upon which to decide whether the reasons offered by the State for striking the jurors revealed an inherently discriminatory intent or whether the offered reason should be deemed race-neutral. Given appellate courts do not have the opportunity to see or hear examination of tire jurors, the court remanded the matter to the district court for a Batson hearing. Bolton, 271 Kan. at 544-45.
In this case, the district judge specifically advised the parties during the Batson hearing that he was “not asking for a race, gender, or any kind of neutral explanation at this point.” The judge then denied Knighten’s Batson challenge, stating, “I saw the selection, I saw the individuals, I heard their answers. I’m aware that quite honestly on race alone the State wins on tire number of strikes to minorities. I’m not going to find any purposeful pattern of discrimination by either side.” Although the court eventually provided the State an opportunity to place race-neutral explanations on the record after denying Knighten’s Batson challenge, the State declined to do so.
As in Bolton, there is insufficient evidence in this record to decide whether the State’s decision to strike the jurors was discrim- inatoiy or race-neutral. In order to determine whether the reasons offered by the State for striking the jurors revealed an inherently discriminatory intent or whether die' offered reason should be deemed race-neutral, we necessarily must have before us some reason why the State decided to strike the African-American jurors. The record reveals that die district court relied on its own notes and experiences from the juiy selection process to determine the ultimate question of discrimination instead of asking the State to provide race-neutral reasons for striking the African-American jurors. As such, we find the court erred as a matter of law in ruling that the State did not engage in a purposeful pattern of discrimination without first'requiring the State to produce race-neutral reasons. And in the absence of any race-neutral reasons by the State for striking the jurors that it did, we also find the court’s ruling lacks substantial competent evidence in the record. For both of these reasons, we conclude the district court abused its discretion in finding the State did not engage in a purposeful pattern of discrimination and, as our Supreme Court did in Bolton, we remand this matter for a proper Batson hearing. See Bolton, 271 Kan. at 544-45.
2. Defendant’s presence at all critical stages of trial
Knighten argues the district court violated his constitutional and statutoiy rights to be present at every critical stage of his trial. Although Knighten did not raise this issue below, our Supreme Court recently held that the personal nature of a defendant’s statutory and constitutional rights to be present at all critical stages means that they cannot be waived by counsel’s mere failure to object. State v. Verser, 299 Kan. 776, 788, 326 P.3d 1046 (2014). We therefore will address Knighten’s argument, which raises a question of law over which this court exercises unlimited review. 299 Kan. at 787.
While deliberating, the jury in this case submitted two written questions to the district court through the bailiff. The first question was: “Further define ‘great bodily harm’ [and] does it include gunshot wounds?” The second question was: “Is touching physical contact by a bullet?” The district court held a conference in chambers to discuss the questions and how to respond. After this conference, the district court conducted a hearing on the record to discuss the proposed answers. Knighten was present at the hearing. The proposed answers presented by the court at the hearing stated:
“1. In addition to the definition of 'great bodily harm’ provided in instruction 10, Kansas does not provide a statutory definition. It is a phrase of common words to be given their ordinary meaning by the jury.
“2. Physical contact by a bullet can be considered touching. That is up to the jury’s view of the evidence.”
The attorneys for both sides approved these responses on the record at the hearing. Knighten s attorney also informed the court at the hearing that Knighten seemed fine with the decision not to object to the answers. The district court judge then instructed the bailiff to deliver the written answers to the jury.
Knighten contends the district court violated his constitutional and statutory rights to be present at every critical stage of his trial by (1) improperly providing a written answer to the questions instead of providing the answers to the jury in open court with him present and (2) improperly excluding him from the initial discussion in chambers held to discuss how to answer the two questions from the jury. Under the Sixth Amendment to the United States Constitution, a defendant has the right to be present at every critical stage of his or her trial. See State v. King, 297 Kan. 955, 968, 305 P.3d 641 (2013). K.S.A. 2014 Supp. 22-3405(a) similarly provides that a defendant in a felony case must be present at every stage of his or her trial.
a. Written answer
K.S.A. 2014 Supp. 22-3420 sets forth the procedure to be used by a district court in answering questions from the jury. The statute was amended during the 2014 legislative session, and the amendments became effective on July 1, 2014. Although not raised by either party, section (d) of the amended statute requires the court to “respond to all questions from a deliberating jury in open court or in writing” and the defendant to be “present during any response if given in open court, unless such presence is waived.” (Emphasis added.) K.S.A. 2014 Supp. 22-3420(d). Prior to the amendment, the statute contained no provision for answering jury questions in writing. See K.S.A. 22-3420(3). Because subsection (f) of the amended statute expressly states that the amendments set forth in K.S.A. 2014 Supp. 22-3420 are procedural in nature and must be construed and applied retroactively, the district court’s decision to provide a written response to the jury’s questions does not violate the statute. K.S.A. 2014 Supp. 22-3420(d), (f).
Although no statutory rights are implicated due to the express retroactivity of the amendments, the Kansas Supreme Court recently held in Verser that a defendant’s rights under the Sixth Amendment also are violated if the court provides a written answer to a jury question without the defendant present in the jury room when the written answer is received. 299 Kan. at 788-89. We note, however, that the constitutional violation found by the court in Verser was inextricably intertwined with its finding of a statutory violation under the prior version of K.S.A. 22-3420. Thus, we question whether a constitutional right under the Sixth Amendment still exists in the absence of an underlying statutory right to have the court respond to jury questions verbally in open court with the defendant present. We find it unnecessary to answer this question today, however, because even if there was a constitutional violation under the facts presented in this case, any resulting error was harmless.
When a defendant suffers a violation of his or her right to be present, Kansas courts apply tire federal constitutional harmless error test. State v. Gleason, 299 Kan. 1127, 1182, 329 P.3d 1102 (2014), cert. granted 83 USLW 3290 (2015). Under this test, an error is only harmless where the party benefitting from the error persuades the court “beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., proves there is no reasonable possibility that the error affected the verdict.” State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012) (citing Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 3d 705, reh. denied 386 U.S. 987 [1967]). Four factors are relevant to this analysis:
“(1) the strength of tire prosecution’s case; (2) whether the defendant lodged an objection; (3) whether die communication concerned some critical aspect of the trial or was instead an innocuous and insignificant matter, as well as the manner in which the communication was conveyed to the juiy; and (4) die ability of a posttrial remedy to mitigate the constitutional error.” State v. Bowen, 299 Kan. 339, 357, 323 P.3d 853 (2014).
With regard to the first factor relevant to our harmless error analysis, we find the prosecution’s case here was strong. Every other passenger of the SUV testified that Knighten was in the SUV at tire time of the shooting, and two passengers testified that they saw Knighten fire the shots that killed Brown and injured Meridy. Therefore, this factor weighs in favor of a finding that the error was harmless.
With regard to the second factor, Knighten did not lodge an objection below. This also weighs in favor of harmless error.
As to the third factor, we find the substance of the jury’s questions related to a critical aspect of the trial: the elements of aggravated battery. But we also find the district court’s written responses to the jury questions were correct statements of law and could not have contributed to the verdict. The juiy’s questions asked for further definition of great bodily harm and if physical contact by a bullet constituted “touching.” The court responded to the first question by correctly referring the juiy to the definition of great bodily harm provided in jury instruction 10 and stating that Kansas does not provide a statutory definition of great bodily harm. In response to the second question, the court correctly responded that “[pjhysical contact by a bullet can be considered touching. That is up to the juiy’s view of the evidence.” In its responses, the district court did not misstate the law, did not provide additional information, and did not place any emphasis on whether the jury should find Knighten guilty or not guilty.
Regarding the fourth factor, both Knighten and his counsel were aware of the procedure used to respond to the juiy’s questions but chose not to pursue any posttrial remedies. Thus, this fourth factor also weighs in favor of harmless error.
Because none of the factors to be considered in the harmless error analysis weigh in favor of Knighten, we conclude beyond a reasonable doubt that the court’s decision to provide written answers to the jury without Knighten’s presence instead of verbal answers in open court had no impact on the outcome of the trial and, therefore, was harmless.
b. Chambers conference
Next, Knighten contends the district court violated his constitutional and statutory rights to be present at every critical stage of his trial by improperly excluding him from the initial discussion in chambers held to discuss how to answer the two questions from the jury. Because the statutory language clearly expresses the legislature’s intent that it be applied retroactively, we must utilize the amended statute in conducting our analysis. To that end, K.S.A. 2014 Supp. 22-3420(d) specifically requires the defendant to be present during the discussion of any written questions presented by the jury, unless the defendant has waived his or her presence. Although Knighten does not deny he was present at the initial conference in chambers, he alleges we must presume he was improperly excluded because there is no evidence in the record affirmatively establishing his presence or his waiver. See State v. Jackson, 49 Kan. App. 2d 116, 138-39, 305 P.3d 685 (2013), rev. denied 299 Kan. 1272 (2014). We agree that the lack of evidence establishing his presence or his waiver requires us to presume that Knighten’s rights under K.S.A. 22-3405 and the Sixth Amendment were violated and constitutes error. See Verser, 299 Kan. at 788 (a violation of the procedural requirements set forth in K.S.A. 22-3420 violates both K.S.A. 22-3405 and the Sixth Amendment).
Nevertheless, we find this error was harmless. As set forth above, there are four factors relevant to deciding whether an error is harmless under the federal constitutional harmless error test. See Ward, 292 Kan. at 569 (an error is harmless under the federal constitutional harmless error test when the party benefitting from the error persuades the court “beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., proves diere is no reasonable possibility that the error affected the verdict”). Again, these four factors are
“(1) the strength of the prosecution’s case; (2) whether the defendant lodged an objection; (3) whether the communication concerned some critical aspect of the trial or was instead an innocuous and insignificant matter, as well as the manner in which the communication was conveyed to the jury; and (4) tire ability of a posttrial remedy to mitigate the constitutional error.” Bowen, 299 Kan. at 357.
To place our discussion of tírese four harmless error factors in the context presented here, we reiterate the two questions asked by the jury and initially discussed in chambers when Knighten allegedly was not there. The first question was: “Further define ‘great bodily harm’ [and] does it include gunshot wounds?” The second was: “Is touching physical contact by a bullet?” The answers ultimately provided to the jury were as follows:
“1. In addition to the definition of ‘great bodily harm’ provided in instruction 10, Kansas does not provide a statutoiy definition. It is a phrase of common words to be given their ordinary meaning by the jury.
“2. Physical contact by a bullet can be considered touching. That is up to the jury’s view of the evidence.”
With regard to the first factor relevant to our harmless error analysis, we already have found the prosecution’s case here was strong. In support of this finding, we noted that eveiy other passenger of the SUV testified that Knighten was in the SUV at the time of the shooting, and two passengers testified that they saw Knighten fire the shots that lulled Brown and injured Meiidy. Once again, this factor weighs in favor of a finding that the error was harmless.
With regard to the second factor, Knighten’s attorney participated in the initial conference held in chambers but did not lodge an objection to Knighten’s alleged absence. Thus,.this also weighs in favor of harmless error.
As to the third factor, we again find the substance of the jury’s questions related to a critical aspect of the trial but that the district court’s written responses to the jury’s questions were correct statements of law and could not have contributed to the verdict. Moreover, we find it significant that although there is no affirmative evidence to establish that Knighten-was present when the court held the conference in chambers to discuss -the juiy’s questions and how to respond, the court thereafter conducted a hearing on the record to discuss the proposed answers. The record reflects that Knighten was present at this hearing. And at that hearing, the court reviewed the proposed answers that ultimately were given to the jury in response to its questions, the attorneys for both sides approved these responses on the record, and Knighten’s attorney informed the court that Knighten seemed fine with the decision not to object to the answers. None of the parties objected to the content of the answers at that time, and no objection to the content of the answers has been raised to date. Given Knighten ultimately did have an opportunity to object and provide input on the answers to be given to the jury, this third factor also weighs in favor of harmless error.
Finally, both Knighten and his counsel were aware of the procedure used to respond to the jury’s questions but chose not to pursue any posttrial remedies. Thus, the fourth factor also weighs in favor of harmless error.
Because none of the factors to be considered in the harmless error analysis weigh in favor of Knighten, we conclude beyond a reasonable doubt that based on our consideration of the four factors, Knighten’s alleged absence from the initial conference in chambers had no impact on the outcome of the trial and, therefore, was harmless.
3. Instruction on lesser included offense
At trial, Knighten requested that the jury be instructed on voluntary manslaughter as a lesser included offense of first-degree murder. The district court declined to give such an instruction, which Knighten now argues was erroneous. K.S.A. 2014 Supp. 22-3414(3) requires a district court to instruct the jury on lesser included offenses where there is some evidence that would reasonably justify a conviction of the lesser included offense. This duty to instruct applies even if the evidence is weak or inconclusive. State v. Maestas, 298 Kan. 765, Syl. ¶ 6, 316 P.3d 724 (2014). When an offense includes a lesser included crime, failure to instruct on the lesser crime is erroneous only if the instruction would have been factually appropriate under K.S.A. 2014 Supp. 22-3414(3). State v. Armstrong, 299 Kan. 405, 432, 324 P.3d 1052 (2014). Thus, the standard of review for this court is whether, after review of all the evidence viewed in the light most favorable to the prosecution, we are convinced that a rational factfinder could have found tire defendant guilty beyond a reasonable doubt. Armstrong, 299 Kan. at 432-33.
Here, a voluntary manslaughter instruction would not have been factually appropriate. Voluntary manslaughter is knowingly killing a human being committed upon a sudden quarrel or heat of passion. K.S.A. 2014 Supp. 21-5404(a)(l). In order to prove voluntary manslaughter, there must have been legally adequate provocation. Provocation is legally adequate to justify a conviction for voluntary manslaughter if it is calculated to deprive a reasonable person of self-control and to cause the defendant to act out of passion rather than reason. Mere words or gestures, however insulting, do not constitute adequate provocation. Finally, the test for sufficiency of provocation is objective, not subjective. State v. Vasquez, 287 Kan. 40, 54-55, 194 P.3d 563 (2008).
Upon review of the record, we find no evidence of any provocation in this case. No witness testified that any words were exchanged between the victims and Knighten. Robertson did testify that someone in the parking lot was “feeling some land of war” and that prior to the shooting, a large group of guys started walking toward the SUV. Robertson affirmatively stated, however, that he did not see a weapon of any land in anyone’s hand other than in Knighten’s.
Knighten cites Robertson’s testimony and argues that the mere act of walking up to the SUV in a dark, crowded parking lot establishes some evidence of adequate provocation to justify a conviction for voluntary manslaughter. But even viewed in tire light most favorable to the prosecution, no evidence appears in the record to suggest that any person provoked Knighten. Thus, a jury could not reasonably convict Knighten of voluntary manslaughter because no evidence of legally adequate provocation was presented to the jury. A voluntary manslaughter instruction would not have been factually appropriate under tire circumstances presented here. The district court did not err by declining to instruct the jury on voluntary manslaughter as a lesser included offense.
4. Use of criminal history to determine criminal history score
Knighten’s presumptive sentence was determined by using his criminal history. He argues that his criminal history was not proved to a jury beyond a reasonable doubt, and therefore his constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), were violated. He concedes in his brief that die Kansas Supreme Court previously rejected this claim in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002), but states that he includes this argument in order to preserve it for possible federal review. Consequendy, his claim fails.
5. Use of criminal history within sentencing grid box
Knighten claims that the district court violated his constitutional rights under Apprendi by sentencing him to the highest number in the applicable sentencing grid box found at K.S.A. 2014 Supp. 21-6804(a). He argues that, in order to do so, the district court necessarily relied on aggravating factors that were not proved to a jury beyond a reasonable doubt.
First, Knighten misstates the law when he asserts that a district court was required to find aggravating factors in order to impose tiie highest number in the applicable grid box under the Kansas sentencing guidelines. K.S.A. 2014 Supp. 21-6804(e)(l) clearly states that the district court has discretion to sentence a criminal defendant to any sentence toithin the applicable grid box. Further, K.S.A. 2014 Supp. 21-6820(c)(l) forbids an appellate court from reviewing any sentence within the presumptive sentence for the crime charged. In the context of a sentencing challenge similar to Knighten’s, the Kansas Supreme Court expressly ruled that a sentence which falls within a grid block under the Kansas sentencing guidelines may be considered a presumptive sentence and, because it is presumptive, appellate courts lack jurisdiction to review it. State v. Johnson, 286 Kan. 824, 840-42, 190 P.3d 207 (2008). Accordingly, we dismiss Knighten’s claim of error on this issue.
In sum, we find the district court abused its discretion on the first claim of error presented by Knighten; accordingly, we reverse and remand this matter for the sole purpose of conducting a proper Batson hearing to determine whether the State met its burden to produce race-neutral reasons for striking the jurors at issue under die second step of the Batson analysis. In light of that determination, the district court must then decide whether the State engaged in a purposeful pattern of discrimination under the third step of the Batson analysis. We further find no reversible error with respect to Knighten’s second claim of error, no error at all with respect to Knighten’s third claim of error, and no jurisdiction to consider Knighten’s fourth and fifth claims of error.
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Powell, J.:
Todd Lloyd appeals the revocation of his probation, contending the district court erred in relying upon a probable cause finding made at his preliminaiy hearing on a new charge of kidnapping to find by a preponderance of the evidence that Lloyd had violated the conditions of his probation. The district court then revoked his probation and ordered Lloyd to serve his underlying sentence. Because we agree with Lloyd that the standard for bind ing someone over for trial—probable cause the defendant committed the act(s) for which he or she was charged—is a lesser standard than that required to find someone in violation of the terms and conditions of probation—by a preponderance of the evidence—we find the district court erred by relying on the wrong standard to find him in violation of his probation. Accordingly, we vacate the district court’s order and remand for further proceedings.
Factual and PROCEDURAL Background
On February 1, 2013, Lloyd pled no contest to aggravated battery and misdemeanor theft. Despite having an A criminal history score, the district court granted Lloyds motion for a downward dis-positional departure to probation and sentenced him to 24 months’ probation with a 32-month underlying prison sentence. Less than a year later, in October 2013 Lloyd stipulated to a number of probation violations; the district court imposed a 60-day jail sanction and extended Lloyd’s probation for 24 months. In December 2013 Lloyd again stipulated to a probation violation; the district court imposed another 60-day jail sanction and extended Lloyd’s probation for an additional 24 months.
In April 2014, Lloyd was involved in a standoff with police that resulted in his arrest and being charged with kidnapping. After this incident, the State filed a motion to revoke Lloyd’s probation. The amended motion included 14 alleged probation violations. Before tire hearing on the State’s motion to revoke probation, a preliminary hearing was held on the April 2014 kidnapping charge, and Lloyd was bound over for trial and arraigned.
At the subsequent probation revocation hearing, the State moved to amend its motion to revoke to include just one alleged probation violation: that Lloyd had been bound over on a charge of kidnapping. The district court granted this motion. Lloyd’s defense attorney stated:
“Because of the new case pending, he will stipulate that he was found in violation or bound over for preliminaiy hearing, and that the standard at the preliminary hearing is higher than it is at a probation violation, so the Court can find that he is in violation of his probation based on the difference in tire standards.”
When asked by the district court, Lloyd himself stipulated only to being bound over for arraignment in the kidnapping case. He did not stipulate to violating the terms and conditions of his probation or to his guilt in the kidnapping case. Based on the stipulation of being bound over in the kidnapping case, tire district court found Lloyd violated the conditions of his probation and imposed Lloyd’s underlying sentence of 32 months’ imprisonment.
Lloyd timely appeals.
Did the District Court Err in Revoking Lloyd’s Probation Based Solely on the Prorable Cause Finding in the New Criminal Case?
On appeal, Lloyd contends that the trial court erred in revoking his probation based solely on the probable cause finding made in the kidnapping case. Lloyd argues the State had the burden to prove a violation of the terms and conditions of probation by a preponderance of the evidence and failed to do so.
Revocation of probation by the district court is reviewed for an abuse of discretion. State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). A district court abuses its discretion when its decision “(1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact.” State v. Waller, 299 Kan. 707, 722, 328 P.3d 1111 (2014).
A district court has no “discretion in a probation revocation proceeding until the evidence establishes a probation condition violation.” State v. Garcia, 31 Kan. App. 2d 338, 341, 64 P.3d 465 (2003). The State has the burden of establishing probation violations. K.S.A. 2015 Supp. 22-3716(b)(2). “To sustain an order revoking probation on the ground that a probationer has committed a violation of the conditions of probation, commission of tire violation must be established by a preponderance of the evidence.” Gumfory, 281 Kan. at 1170. “A preponderance of the evidence is established when the evidence demonstrates a fact is more probably true than not true.” State v. Inkelaar, 38 Kan. App. 2d 312, 315, 164 P.3d 844 (2007), rev. denied 286 Kan. 1183 (2008). Conviction for the act which allegedly violated the conditions of probation is not required. 38 Kan. App. 2d at 315.
Here, the district court relied upon the probable cause finding in Lloyds kidnapping case to conclude that the State had satisfied its duty to establish by a preponderance of the evidence that Lloyd had violated the terms and conditions of his probation by committing kidnapping. As we see it, the central question in this case is whether the probable cause standard used to bind over a defendant for trial amounts to a higher burden of proof than the preponderance of the evidence standard; if so, then the district court was at liberty to make the finding it did because the State had more than met its burden of proof.
It is well established that in eveiy felony case—except for a grand jury indictment—a defendant is entitled to a preliminaiy hearing, and a district court must find “probable cause to believe a felony has been committed” before a defendant maybe bound over for trial. K.S.A. 2015 Supp. 22-2902(3). “Probable cause at a preliminary hearing has been defined as evidence sufficient to cause a person of ordinaiy prudence and caution to conscientiously entertain a reasonable belief of the accused’s guilt.” State v. Puckett, 240 Kan. 393, 395, 729 P.2d 458 (1986).
Our Supreme Court answered a very similar question in State v. Ultreras, 296 Kan. 828, 295 P.3d 1020 (2013), where the district court was faced with the proper burden of proof required to negate a claim of immunity from prosecution based upon the justified use of force. The district court held that the defendant had the burden to prove by a preponderance of the evidence that his use of force was necessary. Our Supreme Court rejected this, finding instead that the State had the burden to negate the defendant s claim under a probable cause standard and that the district court had erred by “imposing a higher standard of proof than probable cause.” 296 Kan. at 845.
Here, the district court revoked Lloyds probation based solely on his admission to being bound over in another criminal case. The State did not present any evidence of a probation violation other than its own statements regarding the new charge. The State was required to prove the probation violation by a preponderance of the evidence, but only the lesser standard of probable cause was required for Lloyd to be bound over after his preliminary hear ing. See K.S.A. 2015 Supp. 22-3716(b)(2); K.S.A. 2015 Supp. 22-2902(3); Gumfory, 281 Kan. at 1170. Accordingly, the district court’s revocation of Lloyd’s probation on the basis of his stipulation was an error of law and, therefore, an abuse of discretion. See State v. Williams, No. 112,228, 2015 WL 5613253, at *7-8 (Kan. App. 2015) (unpublished opinion) (reversing probation revocation where stipulation to being bound over on another case not enough to revoke probation and State failed to prove validity of new charges by preponderance of evidence); State v. Bailey, No. 100,918, 2009 WL 2506265, at *3 (Kan. App. 2009) (unpublished opinion) (reversing probation revocation where State put on no evidence other than copy of indictment and counsel’s argument regarding nature of pending changes and district court relied on probable cause standard of proof for new charge rather than preponderance of evidence).
However, nothing in our opinion today prohibits a district court from combining a preliminary hearing with a probation violation hearing, provided the district court makes the proper probable cause findings with regard to the preliminary hearing and the proper preponderance of the evidence findings concerning the probation violation hearing.
Finally, we reject the State’s argument that Lloyd’s stipulation to being bound over on the kidnapping charge was invited error. He did not stipulate to violating his probation. As previously discussed, such a stipulation was inadequate to revoke his probation and, thus, invited error is inapplicable. We also reject the State’s contention that Lloyd’s counsel’s stipulation—that the preliminary hearing standard of proof is higher than it is at a probation violation hearing and the court can find Lloyd in violation of his probation based on the difference in the standards—is invited error because “no party can properly stipulate to an incorrect application of the law.” State v. Donaldson, 35 Kan. App. 2d 540, 544, 133 P.3d 154 (2006).
We therefore vacate the district court’s probation revocation order and imposition of sentence and remand this matter for a new probation violation hearing with instructions for the district court to apply the correct burden of proof. As we have vacated the district court’s probation revocation order, Lloyd’s additional assertion that the district court erred in not granting him an intermediate sanction is moot.
Vacated and remanded. | [
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Denied.
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