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Elliott, J.:
Paul and Susan Smith appeal the trial court’s finding they failed to prove damages at trial. Defendant Ann Stephens cross-appeals the trial court’s finding that she committed fraud.
We affirm.
The Smiths purchased Stephens’ liquor business and assumed the business’ lease obligation. The Smiths later discovered the difference between what Stephens represented as gross receipts for 1993 and the actual receipts was some $108,000.
At trial, the Smiths questioned a business broker as to whether the value of the business would have been less based on actual sales figures. The witness responded he had not reevaluated the business and stated, “I couldn’t tell you exactly what my opinion would be with the less sales, other than it would be less.”
At the time of trial, the Smiths continued to operate the business and had made no attempt to sell the business. The trial court found there was clear and convincing evidence that Stephens had misrepresented her gross revenues to the Smiths in an amount in ex cess of $108,000. With respect to damages, however, the trial court found:
"Plaintiffs did not seek rescission but have continued to operate the liquor store. No evidence was presented which reflected the basis for the claim of damages in the sum of $50,000 and no evidence was offered as to the sum-expended or claimed for attorney fees.
“After hearing the clear and convincing evidence establishing fraud on the part of defendant, the court fully expected to hear evidence as to the difference in value of the liquor store business as represented and its actual value, based upon revenues reported to the state and the revenues which were falsely reported to plaintiffs by defendant and through his business broker. No such evidence or opinions were offered, although one of the plaintiffs is an accountant. ■
"The court has concluded and found from the evidence that defendant intentionally and fraudulently provided false information with regard to the gross sales of her retail liquor store and that all elements of fraud have been established, except that there is no evidence establishing that the plaintiffs suffered any injury or damages as a direct and proximate result of their reliance on the false statements of the defendant and, therefore, no judgment for actual damages can be allowed.”
An award of damages should make a party whole. See State ex rel. Stephan v. Wolfenbarger & McCulley, P.A., 236 Kan. 183, Syl. ¶ 4, 690 P.2d 380 (1984); M & W Development, Inc. v. El Paso Water Co., 6 Kan. App. 2d 735, Syl. ¶ 4, 634 P.2d 166 (1981).
The trial court properly noted the correct measure of damages would be the difference between the value of the business as represented by Stephens and the actual value of the business as purchased. That would have placed the Smiths in the position they would have occupied had the misrepresentation never been made. The Smiths failed to produce any evidence with regard to that figure and failed to seek rescission of the purchase agreement. Plaintiffs had the burden of proof to establish a reasonable basis for computation of damages. See Short v. Wise, 239 Kan. 171, Syl. ¶ 4, 718 P.2d 604 (1986).
Here, the trial court properly ruled the Smiths had failed to produce appropriate evidence of their damages.
On her cross-appeal, Stephens argues the trial court’s finding of fraud was not supported by the evidence. We disagree.
Fraudulent misrepresentation involves an untrue statement of material fact, known to be untrue, made with the intent to deceive or with reckless disregard for the truth, and upon which another party justifiably relies to his or her detriment. Albers v. Nelson, 248 Kan. 575,. 579, 809 P.2d 1194 (1991); see Slaymaker v. Westgate State Bank, 241 Kan. 525, Syl. ¶ 3, 739 P.2d 444 (1987); Timi v. Prescott State Bank, 220 Kan. 377, Syl. ¶ 5, 553 P.2d 315 (1976).
While fraud must be proved by clear and convincing evidence, it may be shown by circumstantial as well as direct proof. See Waxse v. Reserve Life Ins. Co., 248 Kan. 582, Syl. ¶ 3, 809 P.2d 533 (1991); Eckholt v. American Business Information, Inc., 873 F. Supp. 526, 531-32 (D. Kan. 1994).
In the present case, the evidence supports findings that the Smiths relied to their detriment on Stephens’ representations because they testified the gross sales figures were a primary consideration in deciding to buy the business; they testified they would not have purchased the business had they known what the actual figures were.
Further, the evidence included a 1993 income statement provided to the Smiths by Stephens indicating gross sales for that year to be some $308,000 and a copy of the 1993 liquor enforcement tax return filed by Stephens with the Kansas Department of Revenue indicating actual sales for the year to be some $199,000. And Susan Smith testified as to the difference between the receipts as shown on the statement provided by Stephens and the report filed with the State.
The trial court’s findings concerning fraud were supported by the evidence.
The appeal and cross-appeal are affirmed. | [
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Elliott, J.:
Respondent Unified School District No. 229 and its insurance carrier, the Kansas Association of School Boards, appeal an order dismissing the Workers Compensation Fund from this workers compensation case.
We affirm.
Claimant alleged she was injured in the course of her employment in September 1994. The Fund was impled pursuant to K.S.A. 44-567. This case revolves around the 1993 amendments to K.S.A. 44-567. The Fund claims the 1993 amendments limit its liability occurring after July 1, 1994, in both “but for” and “contribution” types of cases.
The problem is that the legislature only included the July 1, 1994, limiting language under 44-567(a)(l) and did not repeat it in (a)(2). We addressed the issue in Shain v. Boeing Military Airplanes, 22 Kan. App. 2d 913, 924 P.2d 1280 (1996). No petition for review was filed. The Shain court ruled the 1993 amendments limited Fund liability under both subsections of K.S.A. 44-567(a). 22 Kan. App. 2d at 917-18.
Under Shain, the Board’s ruling in the present case was correct.
Affirmed. | [
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Green, J.:
Eduardo Rodriquez-Garcia appeals from his convictions for attempted second-degree murder, aggravated burglary, attempted theft, and criminal damage to property. On appeal, Rodriquez-Garcia contends: (1) that the trial court erred in denying his motion for a mistrial based upon the prosecutor’s improper comments during closing argument challenging the credibility of the State’s main witness because of her decision to take an oath at the preliminary hearing and to affirm at trial and (2) that the trial court erred in denying his request for an instruction on aggravated assault as a lesser included offense of attempted second-degree murder. We conclude that the trial court erred in failing to grant Rodriquez-Garcia’s motion for a mistrial based on the prosecutor s improper comments. We further conclude that because aggravated assault is not a lesser included offense of attempted second-degree murder, Rodriquez-Garcia was not entitled to such an instruction. Accordingly, we affirm in part, reverse in part, and remand this case for a new trial.
Rodriquez-Garcia and his codefendant, Pedro Sanchez, were tried together. Sanchez’ former girlfriend, Viola Jackson DeFlores, was the victim and the State’s main witness. Because DeFlores was a reluctant trial witness, she appeared under a material witness bond.
At trial, DeFlores’ testimony against Rodriquez-Garcia and Sanchez was less incriminating than her earlier police statement and preliminary hearing testimony. Consequently, the State attempted to impeach DeFlores by questioning her about her prior inconsistent statement and her preliminary hearing testimony. DeFlores explained that the discrepancies in her police statement were due to her consumption of alcohol the evening of the incident and to her anger immediately after the incident. DeFlores testified that these things caused her to exaggerate.
However, in closing argument, the prosecutor presented an alternative explanation for the discrepancies in DeFlores’ testimony. The prosecutor proposed that Sanchez had persuaded DeFlores to change her story. In support of this theory, the prosecutor pointed out that DeFlores had sworn to tell the truth at the preliminary hearing but only affirmed her testimony at trial. The prosecutor theorized that DeFlores had affirmed because she knew she was not going to tell the truth at trial. When Rodriquez-Garcia objected to this argument, the trial court found that the State was within its wide latitude to comment upon and to interpret the evidence. The objection was overruled, and the prosecutor continued in the same vein. Rodriquez-Garcia moved the court for a mistrial and later moved for a new trial, but the trial court denied both motions.
First, Rodriquez-Garcia argues that the prosecutor’s argument that affirmed testimony was somehow less credible than sworn testimony was an impermissible attack upon DeFlores’ credibility, as well as a misstatement of the law which misled the jury. Rodriquez-Garcia further argues that the prosecutor’s statements contravene K.S.A. 60-418, which provides for testimony under oath or affirmation, and K.S.A. 60-430, which expressly forbids the assessment of a witness’ credibility according to religious belief. K.S.A. 60-430 provides: “Every person has a privilege to refuse to disclose his or her theological opinion or religious belief unless his or her adherence or nonadherence to such an opinion or belief is material to an issue in the action other than that of his or her credibility as a witness.” (Emphasis added.) Rodriquez-Garcia argues that the prosecutor’s comments impermissibly attacked DeFlores’ exculpatory trial testimony and prejudiced the jury such that he was denied a fair trial.
On the other hand, the State argues that its comments with regard to DeFlores’ decision to affirm at trial after taking an oath at the preliminary hearing were well within the latitude given during closing argument. The State argues that DeFlores’ testimony was clearly inconsistent, that her decision to affirm was of factual significance, and that the prosecutor’s comments were merely an interpretation of those facts for the jury. Moreover, the State argues that the trial court’s instruction to the jury that the prosecutor’s remarks in this area were not to be considered as evidence had a curative effect if the prosecutor’s remarks were improper. Alternatively, the State argues (1) that its comments did not constitute error because they were made in response to defense counsel’s inference that DeFlores had testified truthfully and had not succumbed to the State’s pressure and (2) that its comments were not so prejudicial as to amount to reversible error.
Consequently, the issue we must decide is whether Rodriquez-Garcia was denied a fair trial because of the so-called improper remarks made by the prosecutor during closing arguments. In State v. Collier, 259 Kan. 346, 354, 913 P.2d 597 (1996), our Supreme court reviewed a similar issue and set out the following standard of review:
“The analysis of the effect of a prosecutors allegedly improper remarks is a two-step process. First the appellate court determines whether the remarks were outside of the considerable latitude the prosecutor is allowed in discussing the evidence. This analysis commences with the holding that ‘[i]n criminal trials, the prosecution is given wide latitude in language and in manner or presentation of closing argument as long as it is consistent with the evidence adduced.’ State v. Duke, 256 Kan. 703, Syl. ¶ 5, 887 P.2d 110 (1994). We further held in State v. Baker, 219 Kan. 854, Syl. ¶ 9, 549 P.2d 911 (1976), that ‘[c]ounsel may appeal to the jury with all the power and persuasiveness his learning, skill and experience enable him to use.’
“The second portion of the analysis is that if the remarks are found to be improper, this court must consider whether in light of the record as a whole they are so prejudicial as to amount to reversible error. ‘Each case must be scrutinized on its particular facts to determine whether a trial error is harmless error or prejudicial error when viewed in the light of the trial record as a whole, not whether each isolated incident viewed by itself constitutes reversible error.’ State v. Whitaker, 255 Kan. 118, 134, 872 P.2d 278 (1994).
“The review which we make is governed by the following standard: ‘Improper remarks made in closing argument are grounds for reversal only when they are so gross and flagrant as to prejudice the jury against the accused and deny him or her a fair trial.’ Whitaker, 255 Kan. 118, Syl. ¶ 7. ‘In deciding whether improper remarks by the prosecution during closing argument constitute harmless error, the reviewing court must be able to find that the error had little, if any, likelihood of changing the result of the trial. Such a belief must be declared beyond a reasonable doubt.’ State v. Gibbons, 256 Kan. 951, Syl. ¶ 9, 889 P.2d 772 (1995).”
Emphasizing that DeFlores took an oath before testifying at the preliminary hearing, the prosecutor examined DeFlores as follows:
“Q. Now at the previous time that you testified, you took the oath and swore to God; true?
“A. That is correct.
“Q. And today you’re affirming?
“A. That is correct. And the reason for that—
“Q. You just need to answer my question.
“[DEFENSE COUNSEL]: Objection, your Honor. Witness should be allowed to finish the question prosecutor has asked.
“THE COURT: What was the question?
“[PROSECUTOR]: Question was, ‘And today you’re affirming, is that correct?’
“THE COURT: She answered the question and you can inquire on cross.”
At various other times, the prosecutor questioned DeFlores about her oath, which required her to swear to God, as follows:
“Q. Okay. And you recall testifying under oath when you swore to God that you opened the door with both locks and walked in?
“A. Yes.
“Q. And at the preliminary hearing, were these comments that you made after. you had sworn—
“A. Yes.
“Q. —to God under Oath?”
In telling the jury that DeFlores was attempting to assist the defendants by changing her testimony during the first phase of closing arguments, the prosecutor stated:
“We have provided to you the tools that you can use to find Defendant Sanchez guilty of all those crimes beyond a reasonable doubt. . . . It’s not really that hard, because while Ms. [DeFlores] came in here with the intent to assist these defendants for whatever reason—
“[SANCHEZ’ COUNSEL]: Judge, I will object. There has been no evidence to that effect, that she has come in here and purposely tried to assist these defendants.
“THE COURT: Your objection is noted and jury has the instruction and anything that is not supported by evidence in this matter, statements of counsel, you can disregard and find they’re not supported by the evidence. Let’s proceed.
“[PROSECUTOR]: Thank you. While Ms. Jackson came in here with the obvious intent of trying to assist these defendants in escaping the responsibility for the incidents that they were involved in on February 3rd, 1994, she did not do it. She didn’t make it. She didn’t make it.”
Next, defense counsel addressed the jury. The State argues that the following portion of defense counsel’s dosing argument opened the door to the State’s later rebuttal comments:
“[I]f the State brings a witness on and the witness says something different that the State says ought to be said under oath, then the State feels that you should just disregard what she says under oath, folks, take what she says back on February 3rd, 1994 after she had been out that night drinking, at times when there was a struggle and she was angry at her former boyfriend, take that testimony, because we don’t like what came from the witness stand. We don’t like what was said under oath. You know, we even brought her in here, we arrested her to bring her in here. We thought maybe she would say, we arrested her and put her in jail, she would say what we wanted her to say. We wanted her to say what she said back here when she wasn’t under oath. What she really wanted her to say, what the State really wanted her to say is exactly what was said then. And I have to commend Ms. Viola DeFlores for not buckling under the pressure that was placed upon her. She was arrested. She came here against her will. She was placed on the stand. She was humiliated by the District Attorney, ‘You’re lying,’ she says. Tou’re not telling us the truth.’ She is under oath. Under the penalty of going to jail. And don’t listen to that folks. That is what the DA is saying.”
We disagree with the State’s contention that the defense counsel’s closing argument opened the door for the State to make rebuttal comments comparing DeFlores’ oath testimony with her affirmation testimony. From our reading of this argument, the defense counsel was simply telling the jury that DeFlores was obligated to tell the truth whether she took an oath or affirmed. We find that defense counsel’s argument was proper because K.S.A. 54-103 states that “[a]ny person having conscientious scruples against taking an oath, may affirm with like effect.” Moreover, K.S.A. 54-105 provides that “[a]ll oaths and affirmations alike subject the party who shall falsify them to the pains and penalties of perjury.”
Comparing DeFlores’ preliminary testimony when she took an oath with her trial testimony when she affirmed, the State made the following rebuttal argument:
“[PROSECUTOR]: .... [D]efense, you know, ragged about Viola [DeFlores], of course, and I knew that they would. I was as surprised as you were on Tuesday when things came out of her mouth.
“[PROSECUTOR]: If the State of Kansas had the opportunity to spend as much time with Ms. [DeFlores] as Defendant Sanchez and the defense attorney before she came in here and testified, we might have known what she was going to try and do when she showed up Tuesday. You know, remember one thing. When Viola [DeFlores] took the stand on Tuesday, she didn’t swear to God. She didn’t swear to God. She affirmed. It’s right there. Check it out. And you know, that is important. You know, you want to know why? Prehminary hearing she swore to God that she would tell the truth. She swore to God.
“[SANCHEZ’ COUNSEL]: Judge, I will object. That is not in evidence.
“[PROSECUTOR]: That is in evidence.
“[DEFENSE COUNSEL]: Plus, that is irrelevant because taking an affirmation is the same as taking an oath.
“THE COURT: [Sanchez’ counsel] referred to swearing to God several times in his closing and there was evidence in the Court’s recollection that she did at the time of prehminary hearing take a regular oath.
“[SANCHEZ’ COUNSEL]: No, there wasn’t. There was not one — I take exception. I would ask that—
“THE COURT: Well, it’s the Court’s recollection. Her objection will be overruled. This is closing arguments. Ladies and Gentlemen, again remind you, ladies and gentlemen of the Jury, that these are closing arguments, they’re statements of counsel, they are not evidence. If there is anything that is not supported by the evidence, it should be disregarded.
“[DEFENSE COUNSEL]: Your Honor, my objection to affirmation is still sworn testimony. The fact you do not swear to God under the affirmation would infer to these jurors that there is a difference and there is no difference as to sworn testimony.
“[PROSECUTOR]: I will tell you why that is important, folks. Because when she got up here on Tuesday, for whatever reason, [taking] that affirmation instead of swearing to God was her attempt to justify making those small alterations in order to get Pedro Sanchez and Eddie Rodriquez Garcia off these charges, and we know she has some kind of motivation to do that. We know that she has been visiting the defendant in jail. We know that these two are like two peas in a pod, and she just doesn’t come in here and alter her testimony a little bit in regards to Defendant Sanchez. She did it with Defendant Rodriquez, too. But back on February 3rd of 1994 she had no reason to lie. There was no motivation here. You saw her on the videotape. Does she look drunk to you? Does she look like she saw and knew what happened. Does it look like her memoiy has been affected in any way? Does it look like the cops are there making her say anything that she doesn’t want to say. She had no motivation back then. None. She has motivation now. And it’s a motivation that none of us are privy to but these two. These two can probably tell us—
“[SANCHEZ’ COUNSEL]: Judge, I will object and that is a statement against the fact that the defendant did not testify. Ask for mistrial.
“[DEFENSE COUNSEL]: Mistrial.
[At the bench.]
“[SANCHEZ’ COUNSEL]: It is my position, [the prosecutor] made a statement with regard that reflects upon the failure of the defendants to testify in this case. She has questioned whether or not these defendants could tell us what, what Ms. Viola DeFlores would have — what they had said or what they had discussed, and it’s an impermissible statement about the failure of the defendants to testify[.] I would ask for a mistrial.
“[DEFENSE COUNSEL]: I would join. I would join.
“[PROSECUTOR]: Judge, I think it just came out wrong. I was not trying to comment on their inability to testify. I would do this to the Court. Tell the jury to disregard any comment, that they are not to take into consideration the fact they didn’t testify. My comments were not meant to that portion of it. It’s really to the mindset of Ms. [DeFlores] and Mr. Sanchez as to her motivation to come in and testify as she did on Tuesday.
“THE COURT: Both of your motion[s] for mistrial [are] under .advisement. I will advise the jury to disregard the prior statement and remind, them of the instructions that they’re not to consider any failure to testify . . . .”
The parties do not cite to, nor has our research revealed, any Kansas cases which deal specifically with the issúe.before this panel. However, Rodriquez-Garcia cites Government of Virgin Islands v. Petersen, 553 F.2d 324 (3d Cir. 1977), and United States v. Kalaydjian, 784 F.2d 53 (2d Cir. 1986), in support'of his argument that the distinction between taking an oath and affirming drawn by the State was improper and misleading. Petersen is not particularly helpful. There the court merely refused to.admit evidence of a defendant’s religious affiliation to show that he eschewed violence.
Although Kalaydjian is helpful, it is not factually similar to the instant case. In Kalaydjian, the appellants claimed that the district court erred in refusing to permit defense counsel to cross-examine a government witness regarding the witness’ reasons .'for deciding to affirm rather than to swear on the Koran. Defense counsel sought to cross-examine on this matter purportedly to cast doubt on the witness’ credibility. The trial court ruled that the requested cross-examination was precluded by Fed. R. Evid. 610, which “ "forecloses inquiry into the religious beliefs or opinions of a witness for the purpose of showing that his character for truthfulness is affected by their nature.’ Fed. R. Evid. 610 (Advisory Committee Note).” 784 F.2d 56. Appellants argued that the rule did not prohibit the requested cross-examination because Rule 610- excludes evidence of religious beliefs only, but does not foreclose a party from undermining a witness’ credibility based on the witness’ religious beliefs. Appellants argued that the rule did not prohibit challenging a witness’ credibility based on the witness’ refusal to swear on his religion’s bible. In rejecting the appellant’s distinction, the Kalaydjian court stated:
“[Appellants’ attempt to distinguish between cross-examining a witness regarding his religious beliefs, and cross-examining him regarding conduct that is significant only because of the witness’s religious beliefs. . . .
“Appellants desired to cross-examine Ahmad regarding his reasons for refusing to swear on the Koran in order to raise the following inference: if a man is religious, he will be willing to swear on his religion’s bible; but if he refuses to swear, his testimony will be untrustworthy. Appellants could not have established that inference successfully unless the district court had allowed them to inquire into the sincerity and genuineness of Ahmad’s Muslim beliefs. Indeed, unless appellants were permitted to prove to the jury that Ahmad was a devout Muslim who believed deeply in the Koran, Ahmad’s act of refusing to swear on the Koran would have been meaningless to the jury.
“. . . The court’s ruling was correct because of the possible prejudicial effect that disclosure of such information might have had on the jury. Indeed, in defining the purpose of Rule 610, the District of Columbia Circuit has stated that ‘[t]he purpose of the rule is to guard against the prejudice which may result from disclosure of a witness’s faith.’ [Citations omitted.] Moreover, extensive questioning on the collateral issue of Ahmad’s religious beliefs might have confused the jury and distracted its attention from the principal task of determining whether appellants had conspired to deal in heroin.
“. . . We see no difference between challenging a witness’s credibility by cross-examining him regarding his religious beliefs, and challenging the witness’s credibility by cross-examining him regarding an act that is meaningful only when considered in relation to the firmness of the witness’s religious beliefs. Both forms of cross-examination require inquiry into the nature of the witness’s religious beliefs. . . . Finally, we note that a witness’s right to affirm, rather than to swear, as ;provided by Fed. R Evid. 603, would be meaningless if a icitness, after exercising his right to affirm, could be cross-examined regarding the reasons underlying that decision.” (Emphasis added.) 784 F.2d at 56-57.
Although the Kalaydjian court was concerned with the propriety of cross-examination, the court’s reasoning as applied to the present case suggests that the prosecutor’s comments were improper and are indistinguishable from a direct reference to a witness’ religious beliefs. Given that K.S.A. 60-418 and K.S.A. 54-103 clearly allow either an affirmation or an oath, it was improper for the State to ask DeFlores about her use of one over the other, since it infringes upon DeFlores’ religious beliefs or the lack thereof. K.S.A. 60-430 expressly forbids the inquiry into the religious beliefs or opinions of witnesses for the purpose of showing that their credibility is either impaired or enhanced by their religious beliefs or opinions. Moreover, given that both an oath and an affirmation have equal weight in the law, the prosecutor’s remarks about DeFlores’ credibility based upon DeFlores’ affirmed testimony versus her sworn testimony were clearly improper.
Next, we must determine whether this error was harmless. Because DeFlores was the State’s key witness and the only witness to much of the incident, the jury’s determination as to which version of her testimony to believe was critical. We reject the State’s argument that the trial court’s instruction to the jury that the prosecutor’s remarks should not be considered as evidence cured the effect of the prosecutor’s improper comments. Consequently, we are unable to say beyond a reasonable doubt that the error had little, if any, likelihood of changing the result of the trial. For this reason, we reverse Rodriquez-Garcia’s convictions and remand this case for a new trial.
Next, Rodriquez-Garcia argues that the trial court erred in failing to instruct the jury on aggravated assault as a lesser included offense. “A trial court has the affirmative duty to instruct the jury on all lesser included offenses established by the evidence.” State v. Spresser, 257 Kan. 664, 672, 896 P.2d 1005 (1995).
“In determining whether a lesser crime is a lesser included offense under K.S.A. 21-3107(2)(d), a two-step analysis or two-pronged test has been adopted. The first step is to determine whether all of the statutory elements of the alleged lesser included crime are among the statutory elements required to prove the crime charged. If so, the lesser crime is a lesser included crime of the crime charged. Under the second prong of the test, even if the statutory elements of the lesser crime are not all included in the statutory elements of the crime charged, the lesser crime may still be a lesser included crime under K.S.A. 21-3107(2)(d) if the factual allegations of the charging document and the evidence required to be adduced at trial in order to prove the crime charged would also necessarily prove the lesser crime. State v. Fike, 243 Kan. 365, Syl. ¶ 1, 757 P.2d 724 (1988).” State v. Berherich, 248 Kan. 854, 857, 811 P.2d 1192 (1991).
Rodriquez-Garcia concedes that he is not entitled to an aggravated assault instruction under the first prong of Fike. However, he argues that “[u]nder the second prong of Fike, the evidence adduced at trial would necessarily prove aggravated assault as a lesser crime. As charged, the attempted murder depends upon the intentional firing of several gunshots at the reporting party. Given this complaint and charge, an aggravated assault is necessarily proven.”
As the State points out, Rodriquez-Garcia fails to distinguish between the evidence which must be presented at trial to prove attempted second-degree murder and additional facts which may make out an additional offense. The State cites State v. Dixon, 248 Kan. 776, 811 P.2d 1153 (1991), wherein our Supreme Court addressed a similar issue. In Dixon, the defendant argued that aggravated battery was a lesser included offense of attempted first-degree murder because the “information, read in the light of the facts adduced at trial, established] that [the victim] was actually shot.” 248 Kan. at 784. Thus, Dixon reasoned that the State necessarily proved the elements of aggravated batteiy in establishing the elements of attempted first-degree murder. In rejecting this argument, the Dixon court stated:
“Dixon’s argument misinterprets the second prong of the test to determine whether an offense is a lesser included offense of a particular crime charged. Under the two-part analysis set forth in [State v.] Adams[, 242 Kan. 20, 744 P.2d 833 (1987),] and Fike, a lesser crime may become a lesser included offense of a greater offense if the information actually alleges a lesser crime and the evidence which must be established to prove the crime charged also proves the lesser crime. In this case it was not necessary to prove [the victim] was actually shot to establish the elements of attempted first-degree murder. The State was required to prove only that Dixon committed an overt act towards the perpetration of first-degree murder.
“Dixon’s argument fails to distinguish between what the State may prove and what the State is required to prove. [Citation omitted.]” 248 Kan. at 784.
Similarly, in the instant case, the State was not required to prove that DeFlores was placed in apprehension of harm, an element of assault, to prove attempted second-degree murder. Therefore, aggravated assault is not a lesser included offense of attempted second-degree murder, and the trial court did not err in refusing to give the instruction.
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Green, J.:
Scott W. Guy appeals from a summaiy judgment granted in favor of the Kansas Department of Social and Rehabilitation Services (SRS). SRS sued Scott, seeking reimbursement in the amount of $17,521.04 for medical assistance furnished to his minor son, Kyle Guy. On appeal, Scott contends that the trial court erred in holding him responsible for the repayment of his son’s medical expenses. We agree. Accordingly, we reverse the judgment of the trial court.
In May 1992, Scott accidentally backed his vehicle over the foot of his 21-month old son, Kyle. Kyle along with his mother, Paula Crespi, father, and his sister, Jessica Guy, were all receiving assistance in the form of Aid to Families with Dependent Children (ADC). As a result, each of them received a medical card. Kyle’s card was presented for payment when he was treated for the injuries to his foot. The cost of Kyle’s treatment was approximately $20,793.
In November 1994, SRS sued Scott seeking a judgment against him for $17,521.04, the difference between the cost of the treatment and PIP benefits paid by Scott’s car insurance carrier. The petition claimed that Scott had a legal obligation to pay medical expenses on behalf of Kyle and that Kyle’s injuries were caused by Scott’s negligence. The petition further stated that it was filed under K.S.A. 39-719a, which allows SRS to recover medical expenses it has paid from any third party who has a legal obligation to pay such medical expenses of the recipient. In moving for judgment on the pleadings, SRS also stated that Scott’s legal obligation arose under both a common-law duty and a statutory duty under K.S.A. 39-718b. Scott, however, argued that SRS had improperly switched its cause of action from one of negligence to one based on a parent’s obligation to his or her child. Scott also argued that one of the exceptions set out in K.S.A. 39-718b exempted him from having to reimburse SRS for the assistance provided.
The trial court construed SRS’s motion as a motion for summary judgment. Emphasizing the distinctions between the terms “assis tance” under K.S.A. 39-718b and “medical assistance” under K.S.A. 39-719a, the trial court reasoned that because K.S.A. 39-719a entitled SRS to recover medical assistance paid, K.S.A. 39-718b was inapplicable. Consequently, the trial court granted summary judgment in favor of SRS.
In arguing for summary judgment, SRS maintained that K.S.A. 39-719a allowed it to seek reimbursement from Scott for medical expenses paid on behalf of Kyle. K.S.A. 39-719a provides in pertinent part:
“(a) Where medical assistance has been paid by the secretary and a third party has a legal obligation to pay such medical expenses to or on behalf of the recipient, the secretary may recover the same from the recipient or from the third party and shall be in all respects subrogated to the rights of the recipient in such cases . . . . Payment of medical assistance by the secretary shall be secondary to any other insurance coverage or third party with a legal obligation to pay such medical expenses to or on behalf of the recipient.”
On the other hand, Scott argued that he falls within one of the enumerated exceptions in K.S.A. 39-718b, which describes a parent’s liability for assistance furnished to a minor child. The relevant portion of K.S.A. 39-718b provides:
“(a) Except as provided in subsection (b), a child’s parent, parents or guardian shall be hable to repay to the secretary of social and rehabilitation services any assistance expended on the child’s behalf, regardless of the specific program under which the assistance is or has been provided. . . . The secretary shall have the power and authority to file a civil action in the name of the secretary for repayment of the assistance, regardless of the existence of any other action involving the support of the child.
“(b) With respect to an individual parent or guardian, the provisions of subsection (a) shall not apply to:
(2) assistance provided during a month in which the needs of the parent or guardian were included in the assistance provided to the child. . . .
“(e) Actions authorized herein are in addition to and not in substitution for any other remedies.” (Emphasis added.)
Standard of Review
Whether the trial court erred in construing the above statutory provisions is a question of law over which this court has unlimited review. See State v. Donlay, 253 Kan. 132, 134, 853 P.2d 680 (1993). “ ‘The several provisions of an act, in pan materia, must be construed together with a view of reconciling and bringing them into workable harmony and giving effect to the entire statute if it is reasonably possible to do so.’ ” Guardian Title Co. v. Bell, 248 Kan. 146, 151, 805 P.2d 33 (1991). Simply stated, a court should interpret a statute as a whole in order to determine its meaning. See State v. Simms, 254 Kan. 1, Syl. ¶ 7, 862 P.2d 359 (1993). Finally, “ ‘[i]t is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained.’ ” City of Wichita v. 200 South Broadway, 253 Kan. 434, 436, 855 P.2d 956 (1993).
The issue before this court presents a question of first impression. Neither party refers this court to any applicable case law, nor has our research revealed any cases interpreting the interplay between K.S.A. 39-718b and 39-719a with regard to the issue before this court. Moreover, the legislative history of these two statutes has failed to furnish this court with any insight into the legislature’s intent as to the relationship between the two statutes.
K.S.A. 39-719a(a) provides that “[1] [wjhere medical assistance has been paid by the secretary and [2] a third party has a legal obligation to pay such medical expenses to or on behalf of the recipient, the secretary may recover the same from the recipient or from the third party.” It is undisputed that the first prong of the statute was met in that SRS paid for Kyle’s medical expenses. However, the parties disagree as to the second prong of K.S.A. 39-719a; that is, whether Scott has a legal obligation to reimburse SRS for medical assistance furnished to Kyle.
Kansas has long recognized a parent’s common-law duty to support his or her children. See State ex rel. Secretary of SRS v. Castro, 235 Kan. 704, 711-12, 684 P.2d 379 (1984). In this regard, K.S.A. 39-718b(a) provides that a child’s parents are liable to repay the secretary of SRS for assistance expended upon the child’s behalf “regardless of the specific program under which the assistance is or has been provided.” However, this obligation does not apply where the “assistance [is] provided during a month in which the needs of the parent or guardian were included in the assistance provided to the child.” K.S.A. 39-718b(b)(2). Because Scott and Paula both received food stamps and medical cards for the family, the needs of Scott were included in the assistance provided to Kyle.
SRS does not argue that Scott does not fall under the exception at K.S.A. 39-718b(b)(2). However, SRS argues that because K.S.A. 39-719a is the specific statute, this statute controls over K.S.A. 39-718b. But for this rule to apply, some conflict must exist between the two statutes. In requiring that a conflict must exist between the statutes, our Supreme Court has stated: “General and special statutes should be read together and harmonized whenever possible, but to the extent a conflict between them exists, the special statute will prevail unless it appears the legislature intended to make the general statute controlling.” Kansas Racing Management, Inc. v. Kansas Racing Comm’n, 244 Kan. 343, 353, 770 P.2d 423 (1989). Yet, SRS has failed to disclose to this court any such conflict between the two statutes to make the rule applicable.
Even assuming a conflict exists between K.S.A. 39-718b and K.S.A. 39-719a, SRS’s argument still fails. Our Supreme Court has held that when an irreconcilable conflict exists between two statutes, the last enactment supersedes, repeals, or supplants the earlier by implication, since it is presumed the legislature did not intend to leave contradictory acts on the books. See State v. Ricks, 173 Kan. 660, 662, 250 P.2d 773 (1952). Here, K.S.A. 39-718b was enacted after K.S.A. 39-719a. Consequently, the legislative intent in K.S.A. 39-718b must govern.
Next, SRS argues in its brief that “[t]he plain language of this subsection [K.S.A. 39-718b(b)(2)] evidences an intent that a parent has no obligation to repay SRS for funds [ADC CASH BENEFITS] which SRS paid on the child’s behalf.” SRS further argues that “ ‘assistance provided during a month’ language refers to ADC [cash] grants only and has little or no meaning when considering a specific date of injury where medical expenses may be incurred on and/or after the date of injury.” (Emphasis added.) This conclusion, however, is directly contrary to the language of K.S.A. 39-718b, which sets out that the parent’s liability to reimburse the secretary for assistance furnished on a child’s behalf exists “regardless of the specific program under which the assistance is or has been provided.” (Emphasis added.) Because SRS offers no statutory support for its claim that 39-718b applies only to assistance provided under the ADC program, this argument also fails.
Common-Law Duty of Support
The trial court found, and SRS argued, that even if Scott does not have a statutory duty under K.S.A. 39-718b to provide for Kyle, SRS may recover based upon Scott’s common-law duty of support. However, because K.S.A. 39-718b sets out a basis of recovery and includes enumerated exceptions, it would directly contravene the legislature’s intent to make the exception inapplicable based upon the common law. Moreover, our appellate courts have stated:
“The legal principle is well established that administrative agencies are creatures of statute and their power is dependent upon authorizing statutes; therefore, any exercise of authority claimed by the agency must come from within the statutes either expressly or by clear implication. There is no general or common-law power that can be exercised by an administrative agency. Pork Motel, Corp. v. Kansas Dept. of Health & Environment, 234 Kan. 374, 378, 673 P.2d 1126 (1983); Woods v. Midwest Conveyor Co., 231 Kan. at 770; 1 Am Jur. 2d, Administrative Law § 70, p. 866.” State ex rel. Secretary of S.R.S. v. Fomby, 11 Kan. App. 2d 138, 141, 715 P.2d 1045 (1986).
See Cline v. Meis, 21 Kan. App. 2d 622, 626, 905 P.2d 1072 (1995), rev. denied 259 Kan. 927 (1996). Finally, our rules of statutory construction direct that legislative intent be “ ‘determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible.’ ” Todd v. Kelly, 251 Kan. 512, 516, 837 P.2d 381 (1992). Scott’s argument that the legislature intended to modify his common-law duty to support his minor children is consistent with the language of K.S.A. 39-718b and the applicable rules of statutory construction.
Finally, SRS argues that K.S.A. 39-718b(e) provides that actions authorized under the statute are “in addition to and not in substitution for any other remedies.” SRS argues that Scott’s common-law duty to support Kyle is the “other remedy” as contemplated by the statute. However, recovery based upon Scott’s parental status is not another remedy, but the same remedy specifically defined by the legislature as a circumstance under which the Secretary may not seek reimbursement for assistance furnished to a minor child.
Public Policy
Both parties make public policy arguments. SRS argues that it contravenes public policy not to require that a parent reimburse the State for medical care provided a minor child. Scott argues that public policy and common sense are offended by efforts to recover medical assistance provided to a family which qualifies for and continues to receive public assistance and medical coverage. Discussing public policy during the pretrial conference, the trial court found it particularly egregious that Scott might have some future means of reimbursing the State for his son’s medical expenses but be relieved of that obligation.
Nevertheless, the policy arguments are of limited value as neither party argues that K.S.A. 39-718b and K.S.A. 39-719a are ambiguous. “When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be.” Martindale v. Tenny, 250 Kan. 621, Syl. ¶ 2, 829 P.2d 561 (1992). As our Supreme Court has stated: “Where the statute is plain and unambiguous, there is no room left for a judicial construction so as to change the language employed therein.” Ayers v. Comm’rs of Trego Co., 37 Kan. 240, Syl. ¶ 2, 15 Pac. 229 (1887).
Because we are reversing this matter based upon the exemption furnished Scott under K.S.A. 39-718b(b)(2), we need not address Scott’s other arguments.
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Brazil, C.J.:
Galen J. Burrows appeals from the sentencing court’s order of incarceration, claiming abuse of discretion when the sentencing court ruled that the presumption of probation was lost because defendant committed his current offenses while under custody supervision, as an escapee, for a felony offense. We dismiss the appeal.
Burrows pled guilty to three counts of burglary, severity level 9 nonperson felonies. The district court accepted the plea and ordered a presentence investigation report.
At sentencing, the parties agreed on the criminal history of E. The court noted and the defendant confirmed that the present offenses were committed while defendant was an escapee from Oklahoma. There was an outstanding warrant for the defendant from Oklahoma and a detainer from that state. The sentencing court made a finding that the current crimes were committed while defendant was incarcerated for a felony conviction. The court indicated that the presumption of probation was lost and therefore the court could impose incarceration without it being a departure sentence.
The court sentenced defendant to 10 months’ incarceration on each count to run concurrently, but consecutive to any sentence imposed in Oklahoma. The sentencing judge said: “I’m going to exercise my option under K.S.A. 21-4603(b) and order that Mr. Burrows serve his sentence in this case.”
Burrows argues that the Kansas Sentencing Guidelines Act (KSGA) allows an appeal from a departure sentence but not a presumptive sentence, but that his was neither. He contends that since the sentencing court had the option to follow the presumptive sentence of probation or imprison him under K.S.A. 21-4603d(a), the court had unlimited discretion; therefore, the appellate court can review an appeal of his sentence based on abuse of discretion.
“Interpretation of the KSGA is a question of law whereby this court’s scope of review is unlimited.” State v. Chronister, 21 Kan. App. 2d 589, 595, 903 P.2d 1345 (1995).
The KSGA provides specific guidelines for appellate review of sentences. Under K.S.A. 1994 Supp. 21-4721(c)(l), appellate courts shall not review sentences within the presumptive sentence for the crime. That section “was adopted by the legislature to foreclose the type of appeals which had previously been lodged under the former statutory scheme alleging that the sentencing court abused its discretion.” State v. Starks, 20 Kan. App. 2d 179, Syl. ¶ 8, 885 P.2d 387 (1994). Under K.S.A. 1994 Supp. 21-4721(d), if the sentence is a departure, review is limited to whether the sentencing court’s reasons justified departure. The only remaining bases for review are if appellant claims a sentence resulted from partiality, prejudice, oppression, or corrupt motive or the sentencing court erred in assigning a criminal history score or in ranking the crime severity level. K.S.A. 1994 Supp. 21-4721(e). The KSGA does not provide for review of a claim that the sentence resulted from abuse of discretion.
K.S.A. 21-4603d(a) provides in relevant part:
“When a new felony is committed while the offender is incarcerated and serving a sentence for a felony or while the offender is on probation, assignment to a community correctional services program, parole, conditional release, or post-release supervision for a felony, a new sentence shall be imposed pursuant to the consecutive sentencing requirements of K.S.A. 21-4608, and amendments thereto, and the court may sentence the offender to imprisonment for the new conviction, even when the new crime of conviction otherwise presumes a nonprison sentence. In this event, imposition of a prison sentence for the new crime does not constitute a departure.”
“ It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained.’ ” City of Wichita v. 200 South Broadway, 253 Kan. 434, 436, 855 P.2d 956 (1993).
“ ‘[T]he legislative intention is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible.’ [Citation omitted.]” Todd v. Kelly, 251 Kan. 512, 516, 837 P.2d 381 (1992).
In other provisions of the KSGA, when the sentencing court is given the option of imposing a nonprison or prison sentence, it clearly provides that the sentence “shall not be considered a departure and shall not be subject to appeal.” K.S.A. 21-4704(f), (g), and (h). A departure sentence is a sentence “which is inconsistent with the presumptive sentence for an offender.” K.S.A. 21-4703(f).
In State v. Bost, 21 Kan. App. 2d 560, 903 P.2d 160 (1995), the court determined that there was neither a presumption of imprisonment nor of probation when defendant fell within the nondrug 5-H border box. 21 Kan. App. 2d at 568. The court went on to say:
“The bottom line is that the Kansas Legislature intended to give sentencing judges the discretion to impose incarceration or probation in border box cases and not require the court to establish substantial and compelling reasons in the form of mitigating or aggravating factors. ... As such, the imposition of incarceration or probation in a border box case is the imposition of the presumptive sentence for purposes of appeal.” 21 Kan. App. 2d at 570-71.
Following the same reasoning in Bost, we conclude that the legislature gave sentencing judges the discretion to impose incarceration or probation when a defendant’s offense falls within a nonprison sentencing grid classification and that offense was com mitted while the defendant was incarcerated for another felony offense. The imposition of either incarceration or probation in this circumstance is the imposition of the presumptive sentence. Since Burrows did not claim his sentence was a result of partiality, prejudice, oppression, or corrupt motive, this court has no jurisdiction to review his appeal. K.S.A. 1994 Supp. 21-4721(e); State v. Myers, 20 Kan. App. 2d 401, 403, 888 P.2d 866 (1995).
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Knudson, J.:
Raymond J. Rother appeals the district court’s order requiring him to pay as court costs the witness fee charged by the State’s expert to testify at trial. He does not challenge the reasonableness of the fee. We affirm.
At Rother’s probation revocation hearing, the State called an expert witness from a testing laboratory to establish that Rother’s urine test was positive for cocaine and marijuana; usage of the drugs constituted a violation of his probation.
“It is well settled in [Kansas] that upon conviction in a criminal action the defendant is liable for the costs made in both the prosecution and defense of the case.” State v. Shannon, 194 Kan. 258, 263, 398 P.2d 344, cert. denied 382 U.S. 881 (1965).
K.S.A. 22-3801(a) specifically requires the district court to charge a convicted defendant with the court costs incurred.
Thus, the issue is whether the fee charged by the State’s expert witness to testify falls within the category of court costs to be assessed.
K.S.A. 1995 Supp. 28-172a(d) states: “All other fees and expenses to be assessed as additional court costs shall be approved by the court .... Additional fees shall include, but are not limited to . . . witness fees.” This statute expressly authorizes a district court to do precisely what was done in this case.
Rother’s reliance on State v. Jones, 11 Kan. App. 2d 428, 724 P.2d 146 (1986), is misplaced. In Jones, the State attempted to recover costs incurred in apprehending five inmates after their escape from the Kansas State Penitentiary at Lansing. The Court of Appeals concluded that investigation expenses by a governmental entity are not recoverable as reparations or restitution under what is now K.S.A. 21-4610(d)(l) or K.S.A. 22-3717(k). Whether a witness fee may be included as court costs under K.S.A. 1995 Supp. 28-172a(d) is a clearly distinguishable issue from that of Jones.
We conclude that the district court’s allowance of the $479.50 expert witness fee was properly charged as court costs under the statute.
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Rulon, J.:
This is a will contest case. Claimant Richard O’Neill II appeals the district court’s interpretation of a residuary clause. The executor of the estate and the remaining residuary legatees, respondents, cross-appeal the court’s denial of attorney fees under K.S.A. 60-211 and K.S.A. 60-2007. We affirm.
The material facts of this case are essentially undisputed and are as follows:
Mary Isabel Winslow (decedent) executed a will in November 1992. The clause at issue, the residuary clause, reads:
“All the rest and residue of my estate I will, devise and bequeath, share and share alike, per stirpes and not per capita, unto the following:
“Margaret O’Neill Romagnoli;
“Hugh B. O’Neill;
“Jacqueline W. Verity.”
Mary died on November 29, 1993. Margaret Romagnoli and Jacqueline Verity survived her, but Hugh B. O’Neill did not. Hugh B. O’Neill left no spouse or children.
In the petition for final settlement of Mary’s estate, the executor claimed that because Hugh had predeceased Mary, and because Hugh had no issue surviving, his interest had lapsed. Claimant, Hugh’s nephew, challenged the final settlement, arguing that as the sole testamentary beneficiary of Hugh’s estate, he was entitled to Hugh’s share of Mary’s estate.
The district court ultimately found the will was unambiguous and the anti-lapse statute, K.S.A. 59-615, was inapplicable, and concluded Hugh’s interest in Mary’s estate had lapsed. The court further denied respondents’ motion for attorney fees.
STANDARD OF REVIEW
Our standard of review is well settled:
“The construction of a written instrument is a question of law, and the instrument may be construed and its legal effect determined by an appellate court.”
“Where a court, either trial or appellate, is called upon to determine the force and effect to be given terms of a will, the court’s first duty is to survey the instrument in its entirety and ascertain whether its language is so indefinite and uncertain as to require employment of rules of judicial construction to determine its force and effect.”
“When interpreting a will, the primary function of the court is to ascertain the testator’s intent from the four comers of the will and to carry out that intent if possible and not contrary to law or public policy.”
“Where the language of a will is clear, definite, and unambiguous, the court should not consider rules of judicial construction to determine the intent of the testator.” In re Estate of Cline, 258 Kan. 196, Syl. ¶¶ 1-4, 898 P.2d 643 (1995).
THE RESIDUARY CLAUSE
The principal issue before us is whether the district court erred in finding that Hugh’s interest in Mary’s estate had lapsed and, therefore, the property described in Mary’s residuaiy clause passed to the two named residuary legatees.
As we understand, claimant’s sole argument is that by using the term “per stirpes,” Mary communicated her intent that a bequest not lapse if a residuary beneficiary predeceased her, but should pass to the beneficiary’s heirs whether they be issue or beneficiaries under Hugh’s will.
“At common law a gift to legatee or devisee who died before the testator lapsed. This rule was based on necessity and the ambulatory character of a will. Anti-lapse statutes soon evolved to temper application of the common-law rule. However, in the absence of a statute, or other provisions in a will which showed the testator intended the gift to go to some other designated person when the beneficiary predeceased the testator, the gift lapsed. [Citation omitted.]” In re Estate of Thompson, 213 Kan. 704, 705-06, 518 P.2d 393 (1974).
K.S.A. 59-615 provides as follows:
“(a) If a devise or bequest is made to a spouse or to any relative by lineal descent or within the sixth degree, whether by blood or adoption, and such spouse or relative dies before the testator, leaving issue who survive the testator, such issue shall take the same estate which said devisee or legatee would have taken if he or she had survived, unless a different disposition is made or required by the will.
“(b) As used in this section or as used in any will executed on or after July 1, 1973, unless the provisions of such will specifically provide to the contrary, the term ‘issue’ means offspring, progeny or lineal descendants, by blood or adoption, in whatever degree.”
K.S.A. 59-615, the Kansas anti-lapse statute, becomes operative only when (1) the testator bequeaths or devises property to a beneficiary who is a member of the class designated by the statute; (2) the specified beneficiary predeceases the testator and leaves issue who survive the testator; and (3) the testator does not revoke or change his or her will as to the predeceased beneficiary. 213 Kan. at 709. Here, both parties concede the anti-lapse statute is not applicable because, while Hugh predeceased Mary and was related to Mary within the sixth degree, he had no issue.
The long-settled rule in Kansas is that
“the share of a residuary legatee who dies without issue before the death of the testator goes to the surviving residuaries, in the absence of some special provision of the will showing a different purpose. The rule that such share shall be disposed of as in the case of intestacy is rejected as being in conflict with the established policy of the court to ascertain and give effect to the actual intention of the maker of the will.” In re Estate of Sowder, 185 Kan. 74, 80, 340 P.2d 907 (1959).
The primary authority relied on by claimant is Richland Trust Co. v. Becvar, 44 Ohio St. 2d 219, 339 N.E.2d 830 (1975), where the testatrix’s will made a number of specific gifts to specific per sons and in almost every instance designated whether or not the gift would lapse if the individual predeceased her. The residuary clause divided the residue of the estate among seven individuals. Interestingly, the language of the residuary clause provided that if certain of these named individuals did not survive the testatrix, then there would be a gift over to specified beneficiaries. However, the gift over language was not uniformly provided in all the residuary bequests. The bequest in question reads; “One-seventh (Vi) to Louise Hummel, per stirpes.” The Becvar court concluded that where the testatrix wanted the gift to lapse, she said so with provisions for a gift over. Where the testatrix intended the secondary gifts to go to the issue of the primary takers, she so designated. The Becvar court further concluded tie testatrix’s intent was that if the primary taker predeceased her, and she did not designate a gift over to the primary taker’s issue or someone else, she meant for the gift to go to the heirs at law of the primary taker as determined by the statutes of descent and distribution.
Unquestionably, the Becvar decision is a variation on the general rule that our Supreme Court has adopted:
“The law regarding the devolution of a lapsed portion of a residuary estate is not uniform in this country. For an exhaustive survey of the authorities see 28 A.L.R. 1237; 139 A.L.R. 868; and 36 A.L.R. 2d 1117. The English common law rule, followed by a majority of the courts in this country in the absence of statute, is that the lapsed portion of a residuary devise or legacy does not inure to the benefit of the other residuary devisees or legatees under a residuary devise or bequest to several named persons as tenants in common, who do not take jointly or as members of a class, unless the intention of the testator to that effect clearly appears, but such lapsed portion of the residuary estate is removed from the operation of the residuary clause and becomes intestate property, passing to the heirs of the testator, or his distributees. Sowder, 185 Kan. at 77.
In Kansas, the general common-law rule was expressly rejected in favor of the rule first espoused in Corbett v. Scaggs, 111 Kan. 380, 207 Pac. 819 (1922), and later reaffirmed in Sowder, 185 Kan. at 80. Consequently, the Becvar decision has litde persuasive effect here.
The phrase “per stirpes” has been defined as:
“By roots or stocks; by representation. This term, derived from the civil law, is much used in the law of descents and distribution, and denotes that method of dividing an intestate estate where a class or group of distributees take the share which their deceased would have been entitled to, had he or she lived, taking thus by their right of representing such ancestor, and not as so many individuals. It is the antithesis of per capita (q.v.). Buxton v. Nobel, 146 Kan. 671, 73 P.2d 43, 47.” (Emphasis added.) Black’s Law Dictionary 1144 (6th ed. 1990).
The legal phrase “per stirpes” does not designate who will share in the estate, but rather, how the estate will be divided among those who do take. Varns v. Varns, 81 Ohio App. 3d 26, 29, 610 N.E.2d 440 (1991). The term refers to the manner of distribution and denotes that method of dividing an intestate estate where a class or group of distributees takes die share to which their deceased would have been entided, thus taking by their right of representing such ancestor. Wright v. Brandon, 863 S.W.2d 400, 403 (Tenn. 1993).
Here, the inclusion of the phrase “per stirpes” does not designate who should take under decedent’s residuary clause. Had Hugh left issue or lineal descendants, the anti-lapse statute would have protected such interest and distribution would be per stirpes. Had decedent named or described where Hugh’s share would go if Hugh predeceased her, then the gift would not have lapsed and distribution would be per stirpes to those individuals or their issue. However, merely including the phrase “per stirpes” does not by itself indicate that Hugh’s share should go to the person or persons named in his will. We are convinced the district court was correct in distributing the residuary of Mary’s estate to the two remaining legatees.
EXTRINSIC EVIDENCE
Claimant next argues the district court erred in finding decedent’s will was unambiguous and excluding extrinsic evidence of her intent. Claimant argues the differing language used in decedent’s will, as well as decedent’s failure to name a substitute legatee should one or more of the residuary legatees predecease her, make the will ambiguous. Claimant further argues that Mary knew Hugh had no issue and was unlikely to have any and thus meant for his share to pass to his heirs, either by his will or the laws of intestacy. Thus, he claims the court should have considered the testimony of the scrivener of the will. We disagree with claimant’s argument.
‘When the language used in a will is challenged, the first duty of a trial or appellate court is to determine whether the will is ambiguous. In re Estate of Brecklein, 6 Kan. App. 2d 1001, 1007, 637 P.2d 444 (1981). Where a will is not ambiguous, extrinsic evidence of intent is inadmissible. In re Estate of Brecklein, 6 Kan. App. 2d at 1007. The basic principles of will construction are summarized in Russell v. Estate of Russell, 216 Kan. 730, 534 P.2d 261 (1975):
“ ‘In construing a will courts must (a) arrive at the inténtion of the testator from an examination of the whole instrument, if consistent with rules of law, giving . . . every single provision thereof a practicable operative effect, (b) uphold it if possible, (c) avoid any interpretation resulting in intestacy when possible, (d) give supreme importance to the intention of the testator, and (e) when the language found in such instrument is clearly and unequivocally expressed determine the intent and purpose of the testator without resort to rules of judicial construction applicable to the interpretation of an instrument which is uncertain, indefinite and ambiguous in its terms.’ ” Syl. ¶ 1.
“When the testator’s intent is clearly and unequivocally expressed, the will must be enforced in accordance with its provisions. In re Estate of Wernet, 226 Kan. 97, Syl. ¶ 1, 596 P.2d 137 (1979). The court should not consider the rules of judicial construction to determine the testator’s intent if the language of the will is clear, definite, and unambiguous. 226 Kan. 97, Syl. ¶ 2. Further, although a will speaks at the date of death, the language of a will must be construed as of the date of its execution and in light of the then surrounding circumstances. 226 Kan. at 106.” In re Estate of Pickrell, 14 Kan. App. 2d 375, 378-79, 791 P.2d 41 (1990), aff’d 248 Kan. 247, 806 P.2d 1007 (1991).
Here, the language found in Mary’s will is relatively simple and straightforward. Paragraph V provides that decedent bequeathed to each of seven individuals various amounts of money ranging from $2,000 to $7,000. The paragraph specifically limits the gifts to those persons living at the time of decedent’s death.
The residuary clause provides:
“All the rest and residue of my estate I will, devise and bequeath, share and share alike, per stirpes and not per capita, unto the following:
“Margaret O’Neill Romagnoli;
“Hugh B. O’Neill;
“Jacqueline W. Verity.”
The intention of each clause is clear. Mary wanted the specific cash gifts to go to those named in paragraph V only in the event those persons survived her. However, the residuary beneficiaries would take, either in their own right or their issue would take per stirpes, whether any one of those named beneficiaries survived decedent. Thus, the district court was correct in excluding any extrinsic evidence as to Mary’s intent.
We do note that the court did hear the testimony of the scrivener before making a ruling on its admissibility. The scrivener specifically said he did not know at the time the will was executed whether or not Hugh had children. Thus, the scrivener could not testify if Mary intended Hugh’s share to go to whomever Hugh named in his will or to whomever was due to take by intestacy.
ATTORNEY FEES
On cross-appeal, respondents argue claimant’s arguments were frivolous and violated K.S.A. 60-211 and K.S.A. 60-2007, and respondents are entitled to be reimbursed for attorney fees for defending this action. The district court denied respondents’ claim for attorney fees.
“If the controlling facts are based upon written or documentary evidence by way of pleadings, admissions, depositions, and stipulations, the trial court has no peculiar opportunity to evaluate the credibility of witnesses. In such situation, this court on appellate review has as good an opportunity to examine and consider the evidence as did the court below and to determine de novo what the facts establish.” Giblin v. Giblin, 253 Kan. 240, Syl. ¶ 4, 854 P.2d 816 (1993).
Under the facts of this case, the only issue was the construction of Mary’s will and interpretation of certain case law. While there was testimony taken, the district court ultimately decided the will was unambiguous and did not consider the testimony. As such, this issue is a question of law subject to de novo review.
The respondents’ primary argument is that while there may be a public policy argument for allowing a person named in Hugh’s will to take as a substitute legatee, claimant did not make that argument. According to respondents, claimant’s sole claim was that current case law allows him to take Hugh’s share as a substitute legatee; they argue no case or statute supports this argument. According to respondents, claimant’s theory of the case is not warranted by existing law, and he makes no argument that there should be a modification, reversal, or extension of existing law and therefore is in violation of K.S.A. 60-211.
A review of the case law cited by claimant shows that it is not entirely unreasonable to extend such legal reasoning to reach the result advocated by claimant. However, respondents are correct in that no case specifically supports claimant’s theory of the case. ■
A similar argument for K.S.A. 60-211 sanctions was made in In re Hesston Corp., 254 Kan. 941, 870 P.2d 17 (1994), where the Hesston Corporation sought sanctions because certain preferred shareholders challenged the corporation over the price of their shares in a cash-out merger. According to Hesston, the dissenting shareholders should have dismissed their counterclaim against the corporation which alleged breach of contract and breach of fiduciary duty because they should have discovered there was no factual or legal support for their claim. Central to Hesston’s argument that sanctions should have been imposed was its claim that the shareholder claims were not warranted by existing law or a good faith argument for extension, modification, or reversal of existing law. The corporation argued the shareholders’ claims were contrary to all existing corporate law and the shareholders failed to present legal authority to support their position. In response, our Supreme Court said:
“This, of course, cannot be the test for a violation of 60-211. Issues of first impression will arise in Kansas which have not been litigated elsewhere or which have not been litigated widely. Litigants and creative advocates must not be prevented from developing new theories or presenting new causes of action in the courts of this state merely because they are untested or have not been received favorably in some other jurisdiction. Where the weight of authority is overwhelmingly unfavorable to a litigant’s position or there is controlling authority against it, there may be a question whether the claim is warranted by a good faith argument for extension, modification or reversal. Neither of those circumstances is presented here.” 254 Kan. at 990.
Under the facts here, claimant advances a theory that, as far as our research and the cases in the brief show, has not been directly addressed by any jurisdiction. Thus, the great weight of authority is not contrary to claimant’s position, it simply does not address it. As in Hesston, while claimant’s argument is without support in case law, it is not so far outside the realm of debate as to warrant sanctions under K.S.A. 60-211.
Respondents additionally contend they should have been awarded fees under K.S.A. 60-2007.
“Before attorney fees and expenses can be assessed pursuant to K.S.A. 60-2007(b), it must be shown that the claim was asserted without a reasonable basis in fact and not in good faith. The party who asserts that a pleading has no basis in fact and is not asserted in good faith has the burden of proving that assertion.” Gragg v. Rhoney, 20 Kan. App. 2d 123, Syl. ¶ 6, 884 P.2d 443 (1994), rev. denied 256 Kan. 994 (1995).
The facts in this case are not in dispute, so the first prong of the test does not apply. The respondents argue that because there is no legal authority for claimant’s position, then this action was not brought in good faith and therefore sanctions are required.
Under K.S.A. 60-2007, the decision whether to award attorney fees lies in the sound discretion of the trial court. See 20 Kan. App. 2d at 134. The district court, without elaboration, found that claimant’s claims were not so frivolous as to justify attorney fees.
Respondents present no case law specifically rejecting claimant’s theory of the case. Indeed, respondents’ only argument is that because no case has ever expressly upheld such a claim, the claim must be frivolous. From a review of the case law on this subject, we conclude the denial of attorney fees was not an abuse of discretion.
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Green, J.:
Denise Johnson appeals a trial court judgment in favor of her landlord, Sunflower Park Apartments (Sunflower), for rents owed. Johnson argues that her Section 8 status, a HUD/ Housing Authority contract with Sunflower, and federal law preclude her liability for additional rents. We agree. Accordingly, we reverse the judgment of the trial court.
The facts of this case are not in dispute. Johnson’s rent is subsidized by the Section 8 Housing Program. Under this program, Johnson is responsible for a percentage of the total rent due on her unit. The remainder is paid by a federal subsidy, in this case, the Kansas City, Kansas, Housing Authority (Housing Authority), a Public Housing Agency (PHA). Although Johnson timely paid her portion of the rent each month, the Housing Authority did not pay the subsidy for August or September 1995 because Sunflower failed to maintain the premises in accordance with federal housing quality standards. After the unit was repaired, the Housing Authority resumed the subsidy payments. However, the Housing Authority did not make subsidy back payments. On November 17, 1995, Sunflower sued Johnson for the back payments, possession of the unit, and late fees. Johnson denied that it was her obligation to make the payments. Johnson also filed a counterclaim alleging that Sunflower breached its contract in failing to maintain the unit in conformance with federal standards.
In determining that the Housing Authority had terminated its contract with Sunflower, the trial court concluded that the lease between Sunflower and Johnson had also been terminated. Consequently, the lease provisions that protected Johnson from paying more than $75 per month in rent were no longer valid. Nevertheless, the court determined that the broken appliances and poor maintenance lowered the rental value. The court denied Sunflower possession of the rental unit but granted it a judgment against Johnson in the amount of $450. The court further reduced that amount by the $150 Johnson had paid during the 2-month period. Johnson timely appeals from the $300 judgment against her.
On appeal, Johnson argues that the trial court erred in finding that the contract had been terminated. Sunflower did not file an appellate brief. Reviewing a trial court’s findings of fact with regard to a written contract, our standard of review is as follows:
" ‘Where 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.’ [Citation omitted.]” Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).
“Further, the interpretation and legal effect of written instruments are matters of law, Dutta v. St. Francis Regional Med. Center, Inc., 254 Kan. 690, 693, 867 P.2d 1057 (1994), and our standard of review is unlimited on a question of law. Gillespie v. Seymour, 250 Kan. 123, Syl. ¶ 2.” Kansas Gas & Electric Co. v. Will Investments, Inc., 261 Kan. 125, 128, 928 P.2d 73 (1996). “Regardless of the construction given a written contract by the trial court, an appellate court may construe a written contract and determine its legal ef feet.” Federal Land Bank of Wichita v. Krug, 253 Kan. 307, Syl. ¶ 2, 856 P.2d 111 (1993).
At trial, Sunflower’s theory of the case was that its lease with Johnson and its contract with the Housing Authority had been terminated. In closing argument, Sunflower asked the court to determine a fair rental value for the 2-month period and to grant a judgment in that amount. Conversely, Johnson argued that there was no evidence that the contract between Sunflower and the Housing Authority had been terminated. Johnson emphasized that she had consistently met her obligation under the lease by paying her portion of the rent. Johnson argued that the 2 months of subsidy payments had merely been abated as contemplated by the contract, the lease agreement, and federal law. In finding for Sunflower, the trial court based its ruling upon a letter from the Housing Authority to Johnson, which stated:
“The unit you are now residing in did not meet Housing Quality Standards. By Federal law we may not make rent assistance payments for a unit which fails to meet Housing Quality Standards.
“You need to come into the Section 8 Office within 10 days from the above date to complete the paperwork and pick up your certificate to find another unit.”
The trial court reasoned:
“I’m going to find that there was no contract as of the dates for August and September of 1995. I note by the language on the face of Exhibit One which is the lease dated commencing August 1994, I note that it says, ‘It shall continue until’ — and it lists several things. ‘One. A termination of the lease by the landlord under Section Seven of the lease’, and [it’s] not applicable here. ‘A termination by the lease by the tenant’, which is not applicable here. And the last one, ‘A termination of the contract by the Public Housing Association.’ While I understand the argument of the defendant is that it was apparently abated, the language of Exhibit B indicates to this court that — that they were cancelling the contract as it pertains to this unit. It says, 'You will need to pick up your paperwork and to find another unit.’ I don’t see how that can be read in any other manner.” (Emphasis added.)
The trial court’s finding that the Housing Authority terminated its contract with Sunflower is contrary to provisions contained in both the contract and the lease. First, both documents specifically contemplate abatement of payments or termination of the lease if the premises fall below federal standards. The documents empha size that written notice shall be given in either event. Second, the documents between the parties limit Sunflower to recovery of the tenant portion of the rent from Johnson. Third, the documents limit the conditions under which Sunflower may terminate the contract and require that Sunflower provide the Housing Authority with notice of legal action taken against Section 8 tenants.
Both documents set out the landlord’s obligation to maintain the premises in accordance with federal standards. The lease agreement provides:
“The Landlord shall maintain the Dwelling Unit, equipment and appliances, and common areas and facilities, to provide decent, safe and sanitary housing in accordance with housing quality standards (24 CFR Section 882.109) for the Section 8 Existing Housing Program, including the provision of all the services, maintenance and utilities set forth in this Lease.”
Similarly, the housing assistance contract provides:
“The Owner agrees to maintain and operate the Contract unit and related facilities to provide decent, safe and sanitary housing in accordance with 24 CFR Section 882.109, including the provision of all the services, maintenance and utilities as agreed to in the Lease. If the PHA determines that the Owner is not meeting this obligation, the PHA shall have the right, even if the Family continues in occupancy, to terminate or reduce housing assistance payments to the Owner, and to terminate the Contract.” (Emphasis added.)
The housing assistance contract further provides that a violation of any obligation under the contract shall constitute a breach of the contract. The contract sets out the Housing Authority’s remedies in the event of a breach as follows:
“If the PHA determines that a breach has occurred, the PHA may exercise any of its rights or remedies under the Contract. The PHA shall notify the Owner in writing of such determination, including a brief statement of the reasons for the determination. The notice by the PHA to the Owner may require the Owner to take corrective action (as verified by the PHA) by a time prescribed in the notice. The PHA’s rights and remedies under the Contract include recovery of overpayments, termination or reduction of housing assistance payments, and termination of the Contract.
“Any termination or reduction of housing assistance payments, or termination of the Contract by the PHA in accordance with this Contract, shall be effective as provided in a written notice by the PHA to the Owner.”
In conformity with the contract requirements, the Housing Authority furnished Sunflower with notice, dated June 1, 1995, that an interim inspection of Johnson’s rental unit revealed deficiencies which should be corrected so that Sunflower could continue to receive subsidy payments. The notice listed the deficiencies and instructed that repairs should be made before the July 3, 1995, reinspection date. The notice warned: “Failure to comply icith these requirements will result in cancellation of your Housing Assistance Payment.” (Emphasis added.) Handwritten notations at the top of the notice indicate that although the repairs were not completed as of September 13, 1995, the unit passed inspection on September 25,1995. Payments were resumed in October 1995. Clearly, if the housing assistance contract had been terminated by the Housing Authority on August 1,1995, as previously determined by the trial court, the Housing Authority would have had to enter into a new contract with Sunflower to resume making payments to Sunflower. Nevertheless, the record is totally void of any information as to whether a new contract was signed between Sunflower and the Housing Authority.
Both the lease agreement and the housing assistance contract specified that written notice would precede cancellation of payments or termination of the contract. Here, Sunflower’s manager, Abdul H. Asalati, testified that he received written notice that Johnson’s rental unit had fallen below federal standards and that failure to repair the unit would result in the loss of housing assistance payments. Conversely, Sunflower presented no testimony or documentary evidence of notice that the contract was being terminated. Furthermore, Johnson testified that she was never told that the housing assistance contract had been terminated.
Although Johnson was not a signatory to the housing assistance contract between Sunflower and the Housing Authority, the parties do not dispute the fact that Johnson was a third-party beneficiary of that contract. The housing assistance contract specifically names Johnson and her family as the intended beneficiaries. See Fasse v. Lower Heating & Air Conditioning, Inc., 241 Kan. 387, 389, 736 P.2d 930 (1987). In Fasse, our Supreme Court held that “[t]he third party beneficiary can enforce the contract if he is one who the contracting parties intended should receive a direct benefit from the contract.” 241 Kan. at 389.
A key provision in the housing assistance contract stated that “the termination of a Family’s housing assistance payments shall not affect the Family’s other rights under the Lease, nor shall such termination preclude the resumption of payments as a result of changes in income or rent or other relevant circumstances during the term of the Contract.” This is exactly what happened in this case. The housing assistance payments were terminated for 2 months, and the payments were resumed when Sunflower corrected the deficiencies in the premises.
This provision makes it abundantly clear that the termination of the family’s housing assistance payments by the Housing Authority would not be considered a termination of the lease. Both the lease agreement and the housing assistance contract had similar provisions in this regard, and the lease agreement stated:
“The portion of the Contract rent payable by the Family (‘tenant rent’) will be an amount determined by the PHA in accordance with HUD regulations and requirements. This amount is the maximum amount the Owner can require the Family to pay for rent of the Contract unit, including all services, maintenance and utilities to be provided by the Owner in accordance with the Lease.” (Emphasis added.)
The housing assistance contract provided:
“The portion of the Contract Rent payable by the Tenant (referred to as ‘Tenant Rent’) shall be an amount determined by the PHA in accordance with HUD regulations and requirements.. . .
“The Tenant Rent, as determined by the PHA, is the maximum amount the Landlord can require the Tenant to pay as rent for the Dwelling Unit herein leased, including all services, maintenance and utilities to be provided by the Landlord in accordance with this Lease.” (Emphasis added.)
Clearly, under the lease agreement and the housing assistance contract, Johnson’s rent payment could not exceed $75 per month. Because this condition is in both the lease and housing assistance contract and because Sunflower has failed to show that the Housing Authority terminated its contract with Sunflower on August 1, 1995, the trial court erred in requiring Johnson to pay rent in excess of $75 per month.
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Chipman, J.:
Eaton Corporation (Eaton) appeals the finding of the Workers Compensation Board that Patsy A. Tharp suffered a 73 percent permanent partial whole body work disability as a result of unrelated injuries that she suffered to both her back and arms. The only issue raised on appeal is as to whether the Administrative Law Judge (ALJ) and the Board erred in finding that Tharp had overcome the presumption of no work disability, pursuant to K.S.A. 1992 Supp. 44-510e(a), under the circumstances of this case.
Briefly, the relevant facts to this case are that between December 1990 and February 1993, Tharp suffered separate and distinct injuries to both her back and arms. Tharp was released back to work with restrictions limiting her to sedentary, nonrepetitive work. In August 1993, Tharp returned to work at a comparable wage, but in a job which required her to sit in a room by herself, waiting for someone to give her something to do. Tharp quit this job after only a month because she claimed it was humiliating for her to constantly have to ask for work and because she did not believe she was doing the company any good.
The ALJ found that the job which Eaton gave Tharp in August 1993 was “a feeble attempt for accommodation,” with which the Board agreed. The ALJ then found that Tharp had a 75 percent permanent partial general bodily disability due to the injuries to her arms and a 50 percent work disability due to the injury to her back. The Board modified the ALJ’s award and found that the combination of the injuries resulted in Tharp’s suffering a 73 percent permanent partial whole body work disability.
In Guerrero v. Dold Foods, Inc., 22 Kan. App. 2d 53, 913 P.2d 612 (1995), we set out the appropriate standard of review for appeals from orders of the Workers Compensation Board, in pertinent part:
“The 1993 workers compensation amendments limited review of all orders issued after October 1, 1993, to questions of law. K.S.A. 44-556(a). Whether the Board’s findings of fact are supported by substantial competent evidence (K.S.A. 77-621[c] [7]) is a question of law. [Citation omitted.]
“Substantial evidence” is evidence which possesses both relevance and substance, and which furnishes a substantial basis of fact from which the issues can be reasonably resolved.’ [Citation omitted.]
“This court may not reweigh the evidence presented at the agency hearing or determine the weight or credibiliiy of the witnesses’ testimony. [Citation omitted.]” 22 Kan. App. 2d at 55-56.
K.S.A. 1992 Supp. 44-510e(a), which is at issue in this case, was amended in 1993. However, because Tharp’s injuries pre-date the effective date of the change, K.S.A. 1992 Supp. 44-510e(a) is the applicable statute in this case. K.S.A. 1992 Supp. 44-510e(a) states, in relevant part: “There shall be a presumption that the employee has no work disability if the employee engages in any work for wages comparable to the average gross weekly wage that the employee was earning at the time of die injury.”
Eaton cites Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995), as a case which supports its position that the presumption of no work disability should have been applied in this case because Tharp voluntarily terminated her employment with Eaton. Eaton argues that regardless of how Tharp felt about her new job, it was nevertheless a job at a comparable wage and within her specified work restrictions.
In Foulk, the claimant, who had suffered a lower back injury, was offered a more accommodating job by her employer. The claimant turned the position down “because she felt she could not perform certain aspects of the job in light of the medical restrictions she was under.” 20 Kan. App. 2d at 280. The Board found that under the circumstances, the claimant had failed to show that she was suffering from a work disability, and we affirmed.
However, Foulk can be distinguished from the present case on its facts. In Foulk, the claimant refused to take the new position because she claimed it did not accommodate her work restrictions. In this case, Tharp did not terminate her employment because she was unable to perform the new job, but rather because she felt she had not been given a real job to perform.
A case which is more analogous to the present case is Guerrero. In Guerrero, the claimant suffered from carpal tunnel syndrome of her right arm, which restricted her ability to perform repetitive work. The claimant was then given a job which was presumably more within her work restrictions. However, because the job still required her to perform repetitive work, the claimant reported to her supervisor that the work was causing her problems. The claimant was then terminated by her employer for her refusal to work within her restrictions.
In finding for the claimant in Guerrero, we distinguished Foulk, since the claimant in Guerrero had at least attempted to perform the new job offered by her employer, as opposed to the claimant in Foulk, who had refiised to even attempt the new job. 22 Kan. App. 2d at 57. Further, we noted that the employer in Guerrero was aware that Guerrero’s new job was not really within her restrictions, indicating that such job was not really an accommodation. 22 Kan. App. 2d at 57.
In any event, the testimony of both Tharp and Langel support the ALJ’s conclusion that Eaton’s attempt at placing Tharp in an accommodating job was not sufficient to invoke the presumption of no work disability pursuant to K.S.A. 1992 Supp. 44-510e(a). For this reason, we affirm the order of the Workers Compensation Board in this case as being supported by substantial competent evidence.
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Green, J.:
This mortgage foreclosure action involves a dispute over the lien priorities between the first and second mortgage holders. George M. Parsons and Linda M. Parsons were holders of two promissory notes relating to two loans that they made to Biseayne Valley Investors Limited, L.P. (Biseayne Valley). Each promissory note was secured by a first mortgage on an apartment complex. The Mission Bank (Bank) held a blanket second mortgage on both apartment complexes. Under a modification agreement, to which the Bank gave its consent, the Parsons contended that the combined indebtedness owed to them under the two promissory notes had priority over the mortgage lien of the Bank. The trial court agreed, stating that the modification agreement allowed each apartment complex to become security for the indebtedness of the other apartment complex. On appeal, the Bank contends that the trial court erred in determining that the modification agreement gave the Parsons a lien priority over the Bank’s lien. We disagree and affirm the judgment of the trial court.
The facts of this case are not in dispute. Biseayne Valley executed a promissory note in the amount of $701,525 in favor of the Parsons. The note was secured by a mortgage on the Biseayne Apartments. In a separate transaction, Biseayne Valley executed a second promissory note in the amount of $767,000 in favor of the Parsons. This note was secured by a mortgage on the Valley View Apartments. Both transactions took place on December 27, 1983, and the Parsons recorded both mortgages on December 29, 1983.
Biscayne Valley also executed a $300,000 promissory note in favor of the Bank. This note was secured by a blanket mortgage upon both properties. Although the Bank recorded its mortgage on December 29,1983, the Bank recorded its mortgage after the Parsons had recorded their mortgages. The facts are undisputed that the Parsons held first mortgages on each property and the Bank held a blanket second mortgage on both properties.
The mortgages executed in favor of the Parsons were due and payable on December 27, 1993. In December 1993, the Parsons and Biscayne Valley began negotiating an extension on the mortgages. The parties had the properties appraised. Because the appraised value of the Biscayne Apartments was not much greater than the amount owed the Parsons, the Parsons wanted a lump sum payment of $150,000. This payment would be used to reduce the Biscayne Valley mortgage. The Parsons also wanted certain repairs to be made to both properties.
When Biscayne Valley could obtain only a $75,000 loan from the Bank, the Parsons and Biscayne Valley entered into a modification agreement which required that the $75,000 be applied to the Biscayne Valley mortgage, reducing the Parsons’ mortgage to $512,000. Essentially, the modification agreement provided that the Biscayne Valley and Valley View notes would be amortized over 15 years. The modification agreement also included a list of scheduled repairs and improvements to both properties and provided for cross-collateralization such that each mortgage secured the debt under its own note as well as the note and mortgage on the other property. As a condition of its consent to the modification agreement, the Bank required that the modification agreement prohibit the Parsons from making any further principal advances under their notes. After such language was added, the Bank executed its written consent to the modification agreement.
When the Parsons declared Biscayne Valley in default after it failed to make monthly payments, the Parsons contended that the cross-collateralization provision of the modification agreement allowed them to look to both properties for the monies owed them. In essence, they argued that they had first lien to the full extent of the debt on both properties. To the contrary, the Bank argued that the cross-collateralization provision merely gave the Parsons a third hen for any deficiency that they might incur in foreclosing one of their mortgages.
After a bench trial, the court agreed with the Parsons, finding that theirs was the only plausible construction of the contract. The trial court found that the modification agreement was unambiguous and that the Parsons could reach both properties for the total amount owed to them under each mortgage. In the alternative, the trial court found that even if the modification agreement was ambiguous, the parties intended that the Parsons be able to reach both properties for the total amount owed them.
In agreeing that the modification agreement is unambiguous, the Bank argues that the trial court erred in concluding that die Bank’s consent to the cross-collateralization clause evidenced consent to a first lien on both properties to the full extent of the entire debt owed the Parsons. The Bank further argues that the trial court erred in its alternative finding that, if the contract is ambiguous, the parties intended that the Parsons have a first lien to the full extent of the mortgages due on both properties.
Also agreeing that the modification agreement is unambiguous, the Parsons argue that the Bank’s actions surrounding the negotiation of the agreement indicate a clear intent to be bound by the cross-collateralization provision. The Parsons argue that the Bank’s express consent to the modification agreement, the Bank’s participation in the negotiation process, and the Bank’s insistence on a clause prohibiting further advances demonstrate the Bank’s intent or acknowledgment that the Parsons have a first lien covering the amount owed under both mortgages.
The determination of the modification agreement’s effect upon the parties’ relative lien priority involves construction of the modification agreement. Interpretation of a written contract is a matter of law over which this court has unlimited review. “Regardless of the construction of the written contract made by the trial court, on appeal a contract may be construed and its legal effect determined by the appellate court.” Patrons Mut. Ins. Ass’n v. Harmon, 240 Kan. 707, 713, 732 P.2d 741 (1987). See Simon v. National Farmers Organization, Inc., 250 Kan. 676, Syl. ¶ 3, 829 P.2d 884 (1992). If a contract is unambiguous, the court can look only to the four comers of the agreement to determine the parties’ intent, harmonizing the language therein if possible. Brown v. Lang, 234 Kan. 610, Syl. ¶¶ 1, 2, 675 P.2d 842 (1984); Wiles v. Wiles, 202 Kan. 613, 619, 452 P.2d 271 (1969); see Wood River Pipeline Co. v. Willbros Energy Services Co., 241 Kan. 580, Syl. ¶ 3, 738 P.2d 866 (1987).
Generally, the Bank argues that no individual provision in the modification agreement supports the trial court’s conclusion that the Bank intended to subordinate its lien priority. Specifically, the Bank refers to the cross-collateralization clause, paragraph l.D. of the modification agreement, which provides:
“A default in the terms and provisions of either the Biscayne N ote and Mortgage or the Valley View Note and Mortgage shall constitute a default under each Note and Mortgage. ... It is further expressly agreed that each respective Mortgage shall secure, in addition to the debt evidenced by the respective Notes, the liabilities under the other Note and Mortgage securing it, and any other liabilities of the Borrower to the Lender, direct or indirect, secured or unsecured, now due or to become due.”
The Bank argues that the cross-collateralization clause only means that each apartment complex serves as collateral for the other. The Bank contends that the cross-collateralization merely gives the Parsons a third priority position on each of the properties which was behind the Bank’s second mortgage. The Bank further argues that its consent to the modification agreement cannot be construed as evidence of an intent to subordinate its lien position. In its brief, the Bank argues that its consent to the modification agreement served to insure the Parsons that the Bank would not foreclose, since it arguably could foreclose based upon the default in the Parsons’ notes and mortgages. The Bank reasons:
“The Biscayne and Valley View Notes had matured and were not paid at maturity. .. . This would have permitted the [Parsons] to foreclose which, in turn, would have permitted the Bank to foreclose. . . . The Bank agreed to not accelerate its loan in consideration of the terms of the extension being granted by Plaintiffs.”
Although the trial court did not address the individual contract provisions, the court found that the modification agreement as a whole demonstrated the Bank’s intent to subordinate its lien priority position. The trial court stated:
“Forthe record, the Court finds that Paragraph l.D of the modification agreement is clear and unambiguous and requires no judicial interpretation for determining its meaning. The real issue in this case is determining the significance of the bank’s consent.tp the modification agreement. The Court finds that the bank’s consent is just that, an acquiescence by the bank to the terms and legal significance of the cross collateralization clause. The cross collateralization clause means that the plaintiffs’ entire debt is secured together by both pieces of property. The bank expressly consented to this clause. Therefore, to the extent that the clause alters or impairs the bank’s interest in the property, the bank has acquiesced to these terms. This is the most logical reason why the plaintiffs asked the bank to consent to the agreement in the first place. The plaintiffs didn’t need the bank’s consent unless the document in some way impaired the bank’s rights or interest in the property.” (Emphasis added.)
“ ‘A cardinal rule in the interpretation of contracts is to ascertain the intention of the parties and to give effect to that intention if it can be done consistent with legal principles.’ ” Garvey Center, Inc. v. Food Specialties, Inc., 214 Kan. 224, 229, 519 P.2d 646 (1974). The Parsons’ mortgages on the Biscayne Valley and Valley View properties, the Mission Bank mortgage, and the modification agreement should be construed together to determine the intent of the parties. See Hollenbeck v. Household Bank, 250 Kan. 747, 752, 829 P.2d 903 (1992) (“Documents which are executed at different times, but in the course of the same transaction concerning the same subject matter, will be construed together to determine the intent of the parties to the contract.”). In the instant case, the modification agreement refers to the Biscayne Valley, Valley View, and Bank mortgages. Additionally, the documents concern the same subject matter. Therefore, it is appropriate to construe all of the instruments together. Moreover,
“[wjhere the construction of a mortgage is brought in issue the primary question for determination is what was the intention of the parties. In arriving at a decision of the matter, all the circumstances attending the execution of the mortgage and the nature of the transaction are to be considered as well as the language of the instrument itself. [Citation omitted.]” Emporia State Bank & Trust Co. v. Mounkes, 214 Kan. 178, 181, 519 P.2d 618 (1974).
Review of all the documents as well as the circumstances surrounding the execution of the modification agreement supports the conclusion that the parties intended that the Parsons have a first lien with respect to the full indebtedness owed them on both mortgages.
First, the cross-collateralization clause would be meaningless given the construction proposed by the Bank. The Bank argues that the cross-collateralization clause merely gives the Parsons a third priority position behind the Bank with regard to either property. However, the Parsons would not need the Bank’s consent if the cross-collateralization clause gave the Parsons a priority position behind the Bank. Clearly, neither the Parsons nor. Biscayne Valley needed the Bank’s express consent to the modification agreement, if the modification agreement did not affect the Bank’s hen priority position. The Bank’s argument that the Parsons needed the Bank’s consent to insure that the Bank would not foreclose is inconsistent with the Bank’s action in making the $75,000 loan. It is inconceivable that the Bank would invest additional funds in the properties if they intended to foreclose. Moreover, the modification agreement does not impair the Bank’s foreclosure rights. As a result, the Bank retained its rights to foreclose upon default.
Second, the Bank predicated its consent to the modification agreement upon the inclusion of paragraph nine, which prohibits further advances of principal funds by the Parsons to Biscayne Valley. Significantly, this provision would also be meaningless under the Bank’s construction of the modification agreement. Clearly, the Bank would not want further advances of funds made if such advances would erode its position by increasing the debt of the first priority lienholder. However, if future advances would be subject to a third priority position, as the Bank argues, the Bank would have no reason to oppose such advances. The Bank’s contentions with regards to the cross-collateralization clause and the prohibition on future advances are unreasonable. “Reasonable rather than unreasonable interpretations are favored by the law.” Hollenbeck v. Household Bank, 250 Kan. at 753.
Third, the Biscayne Valley mortgage includes the following provision:
“Mortgagor shall not grant any other mortgage on the mortgaged property or any interest therein without the written consent of Mortgagee, which consent shall be in Mortgagee’s absolute discretion. Be it specifically provided, however, Mortgagor shall be permitted to grant a Second Mortgage subordinate to the Mortgage being granted to Mortgagee hereunder to Mission Bank, Mission, Kansas, or its assigns, securing a Promissory Note not to exceed the principal amount of Three Hundred Thousand Dollars ($300,000) . . . .” (Emphasis added.)
This clause expresses the Parsons’ intent to maintain a first priority position. It is unlikely that the Parsons negotiated an agreement wherein they would receive anything less. The trial court’s conclusion that the parties intended that the Parsons have a first priority lien with regard to its total indebtedness is consistent with this provision of the Biscayne Valley mortgage.
Finally, the Parsons argue that this case is analogous to First State Bank v. Hoehnke Nursery Co., 667 P.2d 1022 (Or. App. 1983). In Hoehnke, the Capital Investment Co. (Capital) and the bank extended separate mortgages to a financially floundering nursery. Capital’s mortgage was superior to the bank’s interest. When the nursery encountered financial problems, Capital and the bank entered into a participation agreement wherein they provided the nursery with additional capital. The agreement reiterated Capital’s first priority position and the bank’s second priority position. Later, the bank advanced additional funds. To secure these funds, the nursery owners executed an additional mortgage and a trust deed upon their residence. They also executed a cross-collateralization agreement providing that both the residential and nursery property acted as security for the bank’s advances and that default in either debt entitled the bank to foreclose upon either or both properties.
Upon default, Capital argued that the cross-collateralization clause merely provided the bank with a first priority position as to the individual debt for each loan. In disagreeing, the Hoehnke court emphasized that Capital was aware of the execution of the crosscollateralization agreement and found that Capital “agreed to structure the transaction in the form it finally took.” 667 P.2d at 1028. Therefore, the court concluded that the separate collateral for each advance secured the total debt owed to the bank.
The Parsons argue that this court should follow the Hoehnke court and construe the Bank’s consent to the cross-collateralization modification agreement as consent to a first priority position with regard to their total indebtedness. The Parsons emphasize that the Bank expressly consented to the modification agreement, and the cross-collateralization provision, whereas the Hoehnke court found simple knowledge of the cross-collateralization agreément sufficient to bind the bank therein. We find the Hoehnke decision persuasive. Based upon the modification agreement, the underlying documents, and Hoehnke, the trial court did not err in concluding that the parties intended that the Parsons have a first, hen on both properties to the full extent of their indebtedness under both mortgages.
Because of our holding, we need not address the Bank’s, second issue. Nevertheless, we will address this issue because we believe the trial court’s alternative reason for finding in favor of .the Parsons is also valid. In its second issue, the Bank argues that the trial court erred in making an alternative finding that the modification: agreement was ambiguous. In making this alternative finding, the trial court stated:
“As an alternative ruling, even if the modification agreement and consent thereto are not clear and unambiguous, the court finds from the evidence in this case that the parties intended that the bank’s interest in the properties would be subordinate to the plaintiffs’ interest as set forth under the cross collateralization clause. In other words, the Court finds from the evidence that it was the intent of the parties that the plaintiffs have a first lien on both properties to the full extent of all indebtedness due to the plaintiffs.”
Where a contract is ambiguous or uncertain, the parties’ intent may be determined from all the language used in the contract, the circumstances existing when the agreement was made, the object sought to be obtained, and other circumstances, if any, which tend to clarify the intention of the parties. Amortibanc Investment Co. v. Jehan, 220 Kan. 33, 43, 551 P.2d 918 (1976). Whether an ambiguity exists in a written instrument is a question of law for the court. St. Paul Surplus Lines Ins. Co. v. International Playtex, Inc., 245 Kan. 258, 271, 777 P.2d 1259 (1989).
The Bank argues that this court should not consider the testimony of the Parsons’ attorney, Robert Sherwood, because the Parsons failed to lay a proper foundation for his testimony. They argue that the trial court erred in overruling their objection as to Sherwood’s lack of personal knowledge. The admission of evidence is a matter of trial court discretion. State v. Warden, 257 Kan. 94, 115, 891 P.2d 1074 (1995). Judicial discretion is abused when no reasonable person would take the view adopted by the trial court. Fusaro v. First Family Mtg. Corp., 257 Kan. 794, 804, 897 P.2d 123 (1995).
Before the Bank’s objection, Sherwood testified extensively as to his role as the Parsons’ attorney with regard to the properties. His testimony indicated that he was intimately involved in the negotiation of the modification agreement and that he made several suggestions to the Parsons which were incorporated into the modification agreement. Consequently, it cannot be said that no reasonable person would have agreed with the trial court’s decision to admit the testimony.
The Bank specifically objected to Sherwood’s testimony that the Bank’s consent to the modification agreement meant that the Bank agreed that a deficiency on one property could be satisfied by the sale of the other property. Sherwood testified that this expectation was the reason he sought the Bank’s consent. On cross-examination, the Bank elicited testimony that Sherwood never discussed or suggested that the Bank expressly subordinate its lien position. Sherwood emphasized that he believed subordination was unnecessary in that the Parsons already had a first priority position.
Clay Cobum, Jr., Mission Bank’s executive vice president, testified on behalf of the Bank. Cobum testified that sophisticated parties would use the term subordination to indicate a proposed change in lien position. Cobum testified that the Bank agreed to advance $75,000 on its existing future advance mortgage in order to pay down the first mortgage in consideration for the first mortgagees extending their loan. Cobum emphasized that the $75,000 pay down kept the Bank in the same position because the Bank’s relative priority position remained unchanged. Cobum testified that the Bank would not have agreed to subordinate its hen priority position. In testifying that the Bank was interested in getting the first mortgage extended because it would eventually improve the Bank’s position, Cobum stated:
“[S]ince the first mortgage loans had matured, [the Bank was not] interested at that point in time in accelerating — acceleration of those mortgages. So [the Bank was] willing to, in consideration of the — of the first mortgagees extending their loans, we were willing to do all of the things that are set out in this modification, including the cross default provision.”
Cobum testified that the cross-collateralization provision merely gave “the first mortgagee a third position on each of the properties which obviously was behind our second position, so [it] did not— that did not adversely affect [the Bank].” Cobum explained that the lien priority could only be changed “if there were actually a subordination.”
Finally, Cobum’s testimony with regard to trial Exhibit X was significant in that it contrasted sharply with his earlier testimony. Exhibit X was the Bank’s numerical analysis of its position with regard to the properties at the time it entered into the modification. Cobum testified that he created the exhibit. In doing so, he totaled the appraised values for the properties for a single total value of the collateral. Beneath the total appraised value, Cobum totaled the first mortgages. Next, he listed the Bank’s second mortgage. Subtracting the total first mortgages and the Bank’s second mortgage from the appraised value, the document demonstrated that the value was sufficient to pay off both mortgages. Questioning Cobum, the Parsons emphasized that the Bank did not “separately figure the bank’s position vis-a-vis the first mortgages as to each property.” Nor did the Bank’s calculations demonstrate consideration of any part of the first mortgages as third mortgages. The document was structured as follows:
“BISCAYNE ANALYSIS
“APPRAISED VALUES
Biscayne Valley $ 650,000
Valley View 1.000.000
$1,650,000
“FIRST MORTGAGES: AMOUNT DEBT SERVICE
Biscayne Valley $ 512,000 $ 63,488
Valley View 642,000 79,608
$1,154,000 $143,096
“SECOND MORTGAGE 266,248 34,800
$1,420,248 $177,896
“LOAN TO VALUE 86%”
As Exhibit X indicates, the Parsons’ first mortgages had a very high ratio to appraised value. The ratio of the first mortgages to appraised value was approximately 70 percent. As a result, the Bank was facing a possibility that it could lose its entire investment if the Parsons would not agree to extend their loans. The exhibit and the other evidence demonstrated that the Bank hoped by the Parsons agreeing to extend their loans, the very high ratio of first mortgages to appraised value would gradually reduce over time, thus reducing the Bank’s risk of loss. Consequently, it was reasonable that the Bank would consent to the Parsons’ cross-collateralization provision in return for the Parsons agreeing to extend their loans. For these reasons, the trial court did not err in concluding that the Bank intended to give the Parsons a first lien priority position.
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Elliott, J.:
Henry Glenn Kirkland appeals the determination of his criminal history score, challenging the inclusion of a prior juvenile adjudication for burglary in his criminal history and the classification of that adjudication as a person felony.
We affirm.
Defendant pled no contest to severity level 5 aggravated battery pursuant to a plea agreement. His criminal history worksheet contained a prior person felony (juvenile) adjudication for burglary. Kirkland claims that adjudication should be classified as a nonperson felony, changing his criminal history score.
At sentencing, the victim of the burglary testified the building involved was a funeral home which was used as a business on the first floor and a residence on the second floor. The room which was burglarized was a self-contained storage room.
Defendant first contends the trial court erred in ruling that when a building is used as both a business and a residence, an unauthorized entry into the business portion constitutes a person felony.
The classification of prior burglary juvenile adjudications is governed by statute. K.S.A. 21-4711. Burglary is defined under K.S.A. 21-3715(a) as knowingly and without authority entering into a structure which is a dwelling, with intent to commit a felony. “Dwelling” is defined as a building or portion thereof used or intended for use as a residence. K.S.A. 21-3110(7).
State v. Dorsey, 13 Kan. App. 2d 286, 769 P.2d 38, rev. denied 244 Kan. 739 (1989), is a starting point for interpreting K.S.A. 21-3715. There, Dorsey burglarized a pharmacy which was located in a building housing the pharmacy, a clinic, and an apartment. We upheld the trial court’s denial of a motion to dismiss based on the allegation the pharmacy was not a structure occupied by a human.
In the present case, defendant argues there was no possibility of contact with a human because there was no access from the storage room to the residential portion of the building. But the possibility of contact derives from the fact that part of the building was used as a residence, regardless of whether the burglar had direct access to that part of the building. Contact with the victim was a possibility. See State v. Fondren, 11 Kan. App. 2d 309, 311, 721 P.2d 284, rev. denied 240 Kan. 805 (1986). The trial court’s ruling that defendant’s prior juvenile adjudication be scored as a person felony was not erroneous.
Next, defendant argues his prior juvenile adjudication could not be classified as a person felony because the charging document did not allege the burglarized structure was a dwelling. This argument is controlled by K.S.A. 21-4711(d). In this case, the State called the victim to testify regarding the nature and use of the burglarized building. The State satisfied its statutory burden.
Finally, defendant argues that scoring a prior juvenile adjudication in his criminal history violates his due process rights. The argument was considered and rejected in State v. LaMunyon, 259 Kan. 54, 911 P.2d 151 (1996).
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Prager, C.J.:
This is an action to recover damages for breach of contract brought by Bob Lisbon, d/b/a Lisbon Associates (Lisbon), against Heatcraft, Inc., d/b/a Advanced Distributor Products (Heatcraft). Heatcraft appeals from the damage award entered in favor of Lisbon after a jury trial. Heatcraft contends the trial court erred by allowing the jury’s damage award to include both Lisbon’s lost profits and his expenses. Lisbon cross-appeals from the trial court’s decision to deny it prejudgment interest on the damage award.
The essential facts in the case are not greatly in dispute and are as follows: Lisbon is a sales organization which represented manufacturers that do not have their own sales force. Pursuant to agreements with 20 different manufacturers, Lisbon sold parts and components for use in heating, refrigeration, and air conditioning. On February 1, 1992, Lisbon contracted to become Heatcraft’s exclusive sales representative for a five-state area.
The contract was for a 1-year term and automatically renewed itself each year if the parties did not affirmatively cancel the agreement. On February 1, 1993, the contract automatically renewed for another 12-month period.
Heatcraft canceled the contract on March 1, 1993, and contracted with another organization, KASCO, to sell its products. During the remainder of the 1-year period, KASCO earned $26,124.93 in commissions from the sale of Heatcraft products. Lisbon, on the other hand, was unable to replace the Heatcraft line of products, and total sales decreased as a result.
In April 1993, Lisbon filed suit against Heatcraft for breach of contract. Lisbon alleged Heatcraft breached the contract by canceling it during the 1-year term and claimed $49,999.99 in damages. The final pretrial order was orally amended by the trial court on the day of trial to provide that $26,124.93, the amount paid to KASCO, was Lisbon’s claim for damages.
At trial, Bob Lisbon testified that Lisbon employs seven salespeople, who by contract are paid commissions. For each sale of a Heatcraft product, Heatcraft pays Lisbon a commission, and Lisbon then pays 70% of that commission to the salesperson. Bob Lisbon testified that the arrangement with the salespeople remains in effect and under the terms of the agreement Lisbon is obligated to pay them 70% of any damages awarded in the present litigation. He also testified the salespeople pay their own expenses and the loss of the Heatcraft product line did not decrease their expenses.
The trial court gave the following instruction on damages:
“If you find for the plaintiff, then you should award such sum as you believe will fairly and justly compensate him for the damages you believe he sustained as a direct result of the defendant’s breach of contract.
“The plaintiff’s damages may be measured by commissions earned by KASCO for the period February 1,1993, to January 31,1994, decreased by any costs that plaintiff would have incurred on securing the sales.
The total amount of your verdict may not exceed the sum of $26,124.93, the amount of plaintiff’s claim.”
The jury found that Heatcraft breached the contract and awarded Lisbon $26,124.93 in damages. Heatcraft appeals the damage award. Lisbon filed a motion for prejudgment interest on the damage award. The trial court denied the motion, and Lisbon filed a cross-appeal challenging that ruling.
Heatcraft does not appeal on the issue of liability, but only challenges the damages awarded, contending the trial court erred as a matter of law when it allowed Lisbon to recover as damages both lost profits and out-of-pocket expenses incurred in earning those profits.
Simply stated, it is Heatcraft’s position that Lisbon is entitled to recover only its loss of profits which it would have received if Heat-craft had not breached the contract — Lisbon’s actual loss of profits would equal the full amount of the unpaid commissions owed by Heatcraft less the 70% payable to Lisbon’s salespeople and any other expenses Lisbon would have incurred. At the pretrial conference, the court agreed with Heatcraft. However, the issue arose again during the trial, and Lisbon argued that Bob Lisbon could testify as to Lisbon’s contractual obligation to its salespeople, because 70% of any damages awarded would have to be paid to the salespeople under their contract.
In support of its position, Lisbon cited Colorado Interstate Gas Co. v. Dufield, 9 Kan. App. 2d 428, 681 P.2d 25 rev. denied 235 Kan. 1041 (1984), and argued that the real party in interest rule allows Lisbon to recover for the salespeople. The trial court changed its former position, finding Colorado Interstate Gas Co. to be controlling and holding that under the real party in interest rule, Lisbon could properly recover the full amount of the commissions due, including the 70% that would be paid to the salespeople, less any expenses attributable to the securing of these sales.
The opinion in Colorado Interstate Gas Co. recognized the real party in interest rule, stating:
“The purpose of the real party in interest rule is to require that the action be brought by the person who, according to the governing substantive law, possesses the right sought to be enforced and not necessarily the person who ultimately benefits from the recovery. The purpose of the rule had been attained if the defendant is not shut out of defenses or counterclaims and will be fully protected by the judgment against further liability on the same cause of action.” 9 Kan. App. 2d 428, Syl. ¶ 6.
In the present case, because Lisbon contracted with Heatcraft, it possessed the right to recover for the breach of the contract. Lisbon is the real party in interest and K.S.A. 60-217(a) mandates the action against Heatcraft be brought in its name. The salespeople, on the other hand, did not contract with Heatcraft and, thus, did not possess a right against Heatcraft. Rather, because the salespeople had a contract with Lisbon to receive 70% of the commission payable by Heatcraft to Lisbon, they possessed a contractual right against Lisbon. In this case, Lisbon will not benefit from the entire judgment, because it is obligated to pay 70% of any recovery to the salespeople.
The real party in interest rule was applied in Ryder v. Farmland Mut Ins. Co., 248 Kan. 352, 367, 807 P.2d 109 (1991), and Winsor v. Powell, 209 Kan. 292, 297, 497 P.2d 292 (1972). In the case before us, because the salespeople were entitled to recover 70% of the commissions paid to Lisbon, the jury properly awarded that amount to Lisbon.
The trial court did not err in accepting Bob Lisbon’s testimony that Lisbon was obligated to pay 70% of any damages awarded to the salespeople. The jury’s award of the total commissions due from Heatcraft places Lisbon in the position it would have occupied if the contract had been performed. Therefore, the damage award was not improper or excessive.
Heatcraft complains the trial court erred by failing to give its requested jury instruction concerning damages. We find no error. The proposed instruction did not differ in any substantial way from the instruction given to the jury. Both instructions instructed the jury that Lisbon’s lost profit damages could not include the costs or expenses incurred in earning those profits. We find no error.
The issue as to the amount of damages Lisbon was entitled to recover was submitted to the jury, which had a full opportunity to consider the evidence presented by the parties and the arguments of counsel. We cannot say the trial court erred in accepting the jury’s award of damages. The judgment of the trial court is affirmed as to the issues raised by Heatcraft in its appeal.
We will now consider the issue raised by Lisbon in its cross-appeal that the trial court erred in not awarding prejudgment interest on the jury’s award.
K.S.A. 16-201 governs prejudgment interest, providing “[creditors shall be allowed interest at the rate of 10 percent per annum ... for any money after it becomes due; for money lent or money due on settlement of account, from the day of liquidating the account and ascertaining the balance.”
In Kilner v. State Farm Mut. Auto. Ins. Co., 252 Kan. 675, 686-87, 847 P.2d 1292 (1993), the court held that a claim becomes liquidated when both the amount due and the date on which it is due are fixed and certain, or when the same becomes definitely ascertainable through mathematical calculation.
The record in this case is clear that the amount of damages to be awarded to Lisbon were not liquidated until the jury reached its verdict. Lisbon’s petition, filed on April 30, 1993, alleged damages to be in the amount of $49,999,99. On December 3,1993, in a pretrial questionnaire, Lisbon stated that damages were $49,999.99. The same amount of damages was stated by Lisbon in a second amended questionnaire filed February 2, 1995.
On the opening day of trial, Lisbon changed the amount of claimed damages to $26,124.93, the total commissions paid by Heatcraft to KASCO. The case then proceeded to trial by jury.
Lisbon’s costs were an issue, and the trial court instructed the jury that Lisbon’s damages may be measured by the commissions earned by KASCO for the period of February 1, 1993, to January 31, 1994, decreased by any costs that Lisbon would have incurred on securing the sales. The record does not show Lisbon objected to this instruction, thus leaving it up to the jury to decide if any costs existed which would be deducted from fhe commissions paid to KASCO.
The issue of damages was not finally determined until the jury handed down its verdict on May 9, 1995. At that time, Lisbon’s damages became liquidated. We hold the trial court did not err in holding Lisbon was not entitled to prejudgment interest.
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Miller, J..
On September 16, 1993, appellant Jason M. Lucas pled guilty to two counts of indecent liberties with a child, violations of K.S.A. 1992 Supp. 21-3503. In November of that year, the trial court suspended imposition of sentence for 5 years with certain conditions imposed. Two of the conditions were that appellant was to remain in therapy and that he refrain from possessing or using either alcohol or drugs. Appellant failed to satisfy the conditions imposed and, on August 17, 1994, a hearing was held to revoke the suspension of sentence. At that hearing, the original sentence was imposed, but no record of that hearing is in the record on appeal.
Thereafter, on September 12, 1994, appellant filed a motion to modify his sentence and requested the court to schedule the matter for hearing after receipt of the evaluation and classification report from the Department of Corrections. The court scheduled the matter for hearing on January 23, 1995, at which time appellant appeared by counsel. Because of some discrepancies in information provided by appellant to the original presentence investigator in 1993 and because of comments made by the court at the time of sentencing in August 1994, appellant, through his counsel, sought to present the testimony of witnesses at this hearing. The trial court denied appellant the opportunity to present evidence, but did allow counsel to proffer what the testimony would be. The hearing was-continued until the latter part of February, at which- time the parties convened again, with appellant appearing in person and by counsel; the court heard further argument from counsel. Ultimately, the court declined the motion to modify and remanded appellant to the custody of the Department of Corrections.
Appellant complains that by denying him the opportunity to present testimony at the January hearing, the court denied him his right to allocution. We do not agree and affirm the trial court.
As support for his theory that the court erred in denying him the right of allocution, appellant cites State v. Johnson, 255 Kan. 156, 872 P.2d 247 (1994); State v Spencer, 252 Kan. 186, 843 P.2d 236 (1992); State v. Heide, 249 Kan. 723, 822 P.2d 59 (1991); and State v. Webb, 242 Kan. 519, 748 P.2d 875 (1988). All of these cases involve defendants who were claiming that the court failed to properly give the opportunity for allocution prior to the imposition of sentence.
In Kansas, the right to allocution is supplied by statute. K.S.A. 22-3422 provides a defendant the right to be heard before pronouncement of judgment, and K.S.A. 22-3424(e) requires that before the court imposes sentence, it ask the defendant if he or she would like to “make a statement on the defendant’s own behalf and to present any evidence in mitigation of punishment.” Appellant concedes that he was given adequate opportunity for allocution prior to imposition of sentence and even made a statement at that time. Thus, the cases cited by appellant offer no support for his claim of error. A defendant has no right to allocution at the hearing on a motion to modify his or her sentence.
Further, the law is clear that a criminal defendant has no right to a hearing on a motion to modify sentence and no right to be present at tihat motion. State v. Jennings, 240 Kan. 377, 379, 729 P.2d 454 (1986). A trial court must exercise its sound discretion in determining whether to grant a hearing. Since appellant had no right to have a hearing, the trial court did not err in not allowing him to present evidence at the motion hearing in this case.
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Lewis, J.;
The plaintiff appeals from a ruling by the trial court that her fraud and medical malpractice causes of action against the defendant were barred by the statute of limitations. The trial court’s ruling was accompanied by the realization of all concerned that this case required the attention of the appellate courts. The facts in this action are particularly egregious and call into question the relationship between fraud and the statute of limitations. Procedurally, the plaintiff’s lawsuit was dismissed as barred by the statute of limitations prior to a trial on the merits. Under those circumstances, all of the parties agree that we must accept the facts as presented by the plaintiff as true. Those facts are set out in the trial court’s journal entry and have been adopted by this court as true and correct for the purposes of this appeal. We hasten to point out, however, that no trial on the merits has been had. It is possible, therefore, that the actual facts as proven at trial may not be precisely as we must assume them to be at this point. Nevertheless, for the purposes of this appeal, the plaintiff’s version of the facts is assumed to be true and correct.
The plaintiff was a longtime patient of Dr. Nasreen B. Shah, M.D., hereinafter referred to as the defendant, and placed her physical well-being in the hands of that physician from 1975 to 1986. During that period of time, the defendant treated the plaintiff for various gynecological disorders.
On November 9,1983, the defendant performed a total abdominal hysterectomy and bilateral salpingo-oophorectomy on the plaintiff. Approximately 1 week after the surgery, the plaintiff was discharged from the hospital and was assured that there were no complications or potential problems which might arise as a result of the surgery.
On the day after the plaintiff was discharged from the hospital, she began to experience abdominal distress. She consulted the defendant about these symptoms, and the defendant ordered x-rays to be taken of the plaintiff’s kidneys, ureter, and bladder in an effort to explain her discomfort.
The x-rays were taken at St. Joseph Memorial Hospital and were read and interpreted by Dr. C. J. Cavanaugh, presumably a radiologist associated with that facility. Dr. Cavanaugh was of the opinion, after reading the x-rays, that they showed the presence of surgical sponges which had been left in the plaintiff’s abdomen after surgery. Dr. Cavanaugh called the defendant and reported the findings of the x-rays and, in addition, sent to the defendant a copy of a written report which also reflected those findings.
Incredibly and shamefully, the defendant fraudulently concealed from the plaintiff the findings of these x-rays. Instead of being truthful, the defendant deliberately lied to the plaintiff and told her the x-rays were negative and that there were no apparent or unusual complications from the recent abdominal surgery, and she assured the plaintiff that she did not require further treatment. At no time did the defendant reveal to the plaintiff the fact that she had left surgical sponges in the plaintiff’s abdomen after the most recent surgery.
Over the next several years, the plaintiff continued to see the defendant for gynecological check-ups. She continued to experi ence abdominal pain and discomfort. The defendant, however, continued to conceal from the plaintiff the existence of the surgical sponges left in the plaintiff’s abdomen.
The plaintiff ceased seeing the defendant as her physician in 1986. However, she consulted other physicians and continued to experience frequent pain and discomfort in her abdomen as well as intestinal, urological, and gynecological problems. Although the plaintiff brought her complaints to the attention of other physicians, no one was able to diagnose the source of her problems.
In 1993, one of the physicians attending to the plaintiff’s problems diagnosed a pelvic mass, which he felt could be causing some discomfort. On August 11, 1993, the plaintiff underwent pelvic sonograms and x-rays, which revealed the existence of retained surgical sponges.
The plaintiff contends the defendant, from and after November 18,1983, had actual knowledge of the presence of retained surgical sponges in the plaintiff’s abdomen and well knew the potential of future complications which could arise from this condition. Despite this knowledge, the plaintiff contends, the defendant fraudulently concealed the existence of this condition from the plaintiff.
The trial court found that the plaintiff was unable to discover the fact that the defendant had negligently left surgical sponges in her abdomen and that this fact was fraudulently concealed from the plaintiff, who did not discover the defendant’s fraud until August 11, 1993.
This action was filed on August 16, 1994.
The plaintiff’s legal problems are obvious. According to her factual contentions, in 1983, the defendant left surgical sponges in the plaintiff’s abdomen and knew she had done so no later than November 18, 1983. Despite such knowledge, the defendant fraudulently concealed the existence of the retained sponges from the plaintiff and lied to her about the nature of her condition. It was not until August 11, 1993, that the plaintiff knew or could have known what the defendant had done. This is a passage of nearly 10 years. All of the related statutes of limitations and statutes of repose had expired. The plaintiff was without a remedy, and the defendant was home free unless an exception exists to preserve her causes of action against the defendant. If no such exception exists, the defendant will be rewarded for her fraud in concealing from the plaintiff that surgical sponges had been left in her abdomen. Over 10 years have passed since the defendant’s act of fraudulent concealment. The trial court held that all of the plaintiff’s potential legal remedies against the defendant have been outlawed by the statute of limitations. This decision is a direct result of the defendant’s fraudulent concealment of the plaintiff’s condition. The defendant now seeks to use the statute of limitations as a shield from the consequences of her negligence and her fraud. This is an intolerable situation which we ought not ignore. We do not believe the law is powerless to correct such an injustice. We must decide whether the defendant is to be rewarded for her fraudulent conduct.
STATUTES OF LIMITATION
As we view this lawsuit, the following statutes of limitation and statutes of repose are relevant:
K.S.A. 60-513:
“(a) The following actions shall be brought within two years:
“(7) An action arising out of the rendering of or failure to render professional services by a health care provider, not arising on contract.
“(c) A cause of action arising out of the rendering of or the failure to render professional services by a health care provider shall be deemed to have accrued at the time of the occurrence of the act giving rise to the cause of action, unless the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall such an action be commenced more than four years beyond the time of the act giving rise to the cause of action.’’ (Emphasis added.)
K.S.A. 60-513:
“(a) The following actions shall be brought within two years:
(3) An action for relief on the ground of fraud, but the cause of action shall not be deemed to have accrued until the fraud is discovered.
“(b) Except as provided in subjection (c), the causes of action fisted in subsection (a) 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 the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall an action be commenced more than 10 years beyond the time of the act giving rise to the cause of action.” (Emphasis added.)
The plaintiff’s causes of action against the defendant are based on medical malpractice and fraud. It is perfectly obvious from a reading of the statutes that each cause of action must be brought within 2 years of its accrual and that the medical malpractice statute of repose is 4 years, whereas the fraud statute of repose is 10 years. It does not require great legal insight to realize that the plaintiff is dead in the water unless the fraudulent conduct on the part of the defendant either tolled or somehow extended the periods of limitations.
IS THERE A CAUSE OF ACTION FOR FRAUD?
The relevant portions of count II of the plaintiff’s petition read as follows:
“2. That defendant Shah fraudulently concealed the finding of sponges in the plaintiff’s November 18th, 1983, x-ray, breached her fiduciary duty of full disclosure and made affirmative misrepresentations to plaintiff that there were no complications or potential complications resulting from the November 9,1983 surgery, when, in fact, defendant Shah had actual knowledge of the presence of surgical sponges in the [plaintiff’s] abdomen and of the potential [of] future complications resulting from this condition.
“3. That the above referenced tortious conduct of defendant deprived plaintiff of her right to prompt medical treatment, thereby causing her prolonged and severe pain, suffering, physical disabilities, and related loss of time, income and enjoyment of fife. Further, defendant’s tortious conduct deprived plaintiff of her right to timely seek and recover legal damages for the defendant’s medical negligence causing her the loss in opportunity to utilize and invest such damages.”
We see no reason why a defendant should not be held responsible for a fraud which caused a patient to allow his or her malpractice cause of action to become barred by the statute of limitations. We further see no reason why a defendant should not be held responsible for fraudulently causing a patient not to seek prompt medical treatment for his or her condition, which results in his or her suffering needless years of prolonged, severe, and unnecessary pain and discomfort. The plaintiff’s petition alleges that the defendant’s fraud caused her those damages.
In this opinion, for obvious reasons, we will focus on the fact that the defendant fraudulently caused the plaintiff to lose her malpractice cause of action.
The law in Kansas has long permitted a party who has lost a • cause of action by virtue of the fraud of another to maintain an action for fraud against the perpetrator for the loss of a cause of action. In Clark v. Amos, 144 Kan. 115, 116, 58 P.2d 81 (1936), our Supreme Court dealt with such a cause of action. The court commented as follows:
“Touching the trial court’s ruling on defendants’ demurrer, it is the law that where a person has a cause of action against an adversary and is duped through misrepresentation of fact by the latter whereby the injured party permits the statute of limitations to bar his action, he can maintain an action for deceit against the wrongdoer under some circumstances, not on account of the original negligence but on account of the subsequent wrongdoing — the misrepresentation of fact which deceived the injured party — with the consequence that the time bar ran against the original action. (Pierson v. Holdridge, 92 Kan. 365, 140 Pac. 1032; Cramer v. Railways Co., 112 Kan. 298, 211 Pac. 118.) While there is a diversity of opinion on this subject (L. R. A. 1917F 720) the Kansas view accords with Rochester Bridge Co. v. McNeil, 188 Ind. 432, 122 N.E. 662; Urtz v. N. Y. C. & H. R. R. R. Co., 202 N. Y. 170, 95 N. E. 711, and Hobaica v. Byrne, 214 N. Y. S. 759, 761; Desmarais v. Company, 79 N. H. 195, 107 Atl. 491.” (Emphasis added.)
See Annot. 33 A.L.R.3d 1077, 1085.
The plaintiff seeks to prosecute the type of cause of action approved in Clark v. Amos. If she is not permitted to do so, injustice is the result. As our Supreme Court said in Cramer v. Railways Co., 112 Kan. 298, 304, 211 Pac. 118 (1922): “Public policy should, and we think does, prevent such an injustice.” We agree.
As we perceive it, the question here is why a physician cannot be sued for defrauding a patient out of a cause of action. In count II of the plaintiff’s cause of action, she seeks recovery not for the original negligence or malpractice by the physician but for the fraud of the physician who deceived her “with the consequence that the time bar ran against the original action.” Clark, 144 Kan. at 115. As we view it, the fraudulent concealment in this case was not malpractice, it was fraud, pure and simple. For this reason and the reasons which follow, we conclude the trial court erred in dismissing the plaintiff’s lawsuit as untimely as to the cause of action for fraud, and we reverse that decision and remand the matter for a trial on the merits.
In Umbehr v. Board of Wabaunsee County Comm’rs, 252 Kan. 30, Syl. ¶ 4, 843 P.2d 176 (1992), fraud is defined as follows: “A fraudulent act generally is comprised of anything calculated to deceive, including all acts, omissions, and concealments involving a breach of legal or equitable duty, trust, or confidence justly reposed, resulting in damage to another.” See Tetuan v. A. H. Robins Co., 241 Kan. 441, Syl. ¶ 3, 738 P.2d 1210 (1987); Goben v. Barry, 234 Kan. 721, Syl. ¶ 8, 676 P.2d 90 (1984).
In Moore v. State Bank of Burden, 240 Kan. 382, 389, 729 P.2d 1205 (1986), we find the following:
“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 innocendy silent. DuShane v. Union Nat’l Bank, 223 Kan. at 759.” (Emphasis added.)
In Albers v. Nelson, 248 Kan. 575, Syl. ¶ 5, 809 P.2d 1194 (1991), the court defined fraud as follows:
“Actionable fraud includes an untrue statement of fact, known to be-untrue by the party making it, which is made with the intent to deceive or recklessly made with disregard for the truth, where another party justifiably relies on the statement and acts to his or her injury and damage.”
See Slaymaker v. Westgate State Bank, 241 Kan. 525, Syl. ¶ 2, 739 P.2d 444 (1987).
We believe that the allegations set forth in count II of the plaintiff’s petition set forth a classic cause of action for fraud. It is beyond question that the defendant’s lies to the plaintiff were made to deceive her and conceal the defendant’s negligence. It cannot be seriously argued that the defendant did not have a legal and an equitable duty to tell the plaintiff the truth. This duty was breached. The breach of this duty by the defendant caused, the plaintiff alleges, the plaintiff to lose a valuable cause of action and suffer 10 years of needless pain and discomfort.
We think it is important to note that the defendant in this case is not alleged to either have been mistaken or negligent in her failure to disclose the truth to her patient. She is accused of deceit and lies amounting to positive and intentional wrongdoing. As pointed out above, not every concealment of the truth is actionable. However, when such concealment violates a legal or equitable duty, it becomes actionable and fraudulent.
In order to prove fraud, the following facts must be shown: (1) an untrue statement known to be untrue by the party making it and made with the intent to deceive; (2) justifiable reliance by the victim on the truth of the statement; (3) damages as a result of that reliance. See Albers, 248 Kan. at 579; Slaymaker, 241 Kan. 526.
The plaintiff’s petition sets forth sufficient allegations to state a cause of action for actual fraud against the defendant. We refuse to recognize any distinction between the fraud which separates the victim from his or her money and the fraud which deprives a victim of a cause of action for malpractice.
The defendant argues, however, that one cannot have a fraud cause of action against a physician. The premise for this argument is that when a physician defrauds a patient out of a cause of action for malpractice, it is not fraud, it is simply more malpractice. Thus, according to the defendant, the physician may hide behind his or her fraudulent conduct and enjoy the benefits of that fraud because it is not fraud, it is malpractice.
We do not concede that the law is so unjustly weighted on the side of the wrongdoer. It seems senseless for defendant to argue that the “gravamen” of the plaintiff’s cause of action is malpractice when that action, according to the defendant, has been eliminated by the lies and fraud of the defendant herself. The plaintiff seeks to recover damages caused by the fraudulent loss of her cause of action for malpractice.
The most recent decision in this area is that written by Justice Abbott in Bonin v. Vannaman, 261 Kan. 199, 929 P.2d 754 (1996). The defendant strongly urges us to conclude that Bonin controls and requires us to affirm the decision of the trial court. We do not agree, and we decline the invitation.
In Bonin, the plaintiff sued a physician for malpractice and fraud and sued her parents for negligence. The basis for the allegations of fraud was the failure of the physician to diagnose a condition known as scoliosis. There were no allegations in Bonin that the defendant had deliberately Med to the plaintiff or had fraudulently deceived the plaintiff out of improper motives. There was no element of scienter in Bonin. There were no facts indicating any motivation for the defendant to he in Bonin. There were no benefits flowing to the defendant from lying to the plaintiff in Bonin. The condition of the plaintiff was not caused by the negligence of the physician, and the disclosure of that condition would not have placed the physician in jeopardy of being sued. In short, defendant in Bonin did not he to avoid responsibility for his own fault, and did not he at all. Bonin differs significantly factually from this case and does not control.
In Bonin, as here, the issue was the statute of limitations. Eighteen years had passed from the alleged accrual of the cause of action and the filing of the petition. The trial court concluded that Bonin was actually a malpractice action, grounded in negligence, and not a cause of action for fraud. The Supreme Court agreed, and we agree with the Supreme Court in its decision in Bonin.
The Supreme Court in Bonin concluded only that Bonin’s cause of action was grounded in negligence and not in fraud. The court did not hold that a physician can never be liable for fraud. Quite the contrary, Justice Abbott carefully limited the decision when he said:
“This does not mean that a doctor can never be liable for fraud or breach of contract. Instead, this simply means thát a fraud or breach of contract cause of action can only be based upon a physician’s misconduct if that misconduct is beyond a breach of the legal duty which every doctor has the obligation to uphold. [Citation omitted.]” (Emphasis added.) 261 Kan. at 210.
The fact is, there were no allegations of actual fraud in Bonin. The plaintiff’s cause of action was grounded in negligence, and the claims of fraud were merely a lawyer’s attempt to avoid the statute of limitations. The “fraud” of the defendant in Bonin was a failure to diagnose the plaintiff’s scoliosis. The claim was clearly grounded in the defendant’s negligence in failing to diagnose.
That is not true in the instant matter. This is not a casé which involves the failure to diagnose a condition shown by. the x-ray report. This is a case where the defendant lied to the plaintiff with the intent to deprive the plaintiff of a malpractice action. The falsehoods have been successful to this date, the fraud has been complete to this date, and in our judgment, it was actionable.
Our decisions have indicated that substance prevails over form. Travis v. Bishoff, 143 Kan. 283, 285, 54 P.2d 955 (1936). What this means is that if the cause of action is really one for malpractice, just calling it a cause of action for fraud does not change its true nature. This is illustrated in Malone v. University of Kansas Medical Center, 220 Kan. 371, 374-76, 552 P.2d 885 (1976), in which a tort action was being called a contract action:
“The nature of a claim — whether it sounds in tort or contract- — is determined from the pleadings [citations omitted] and from the real nature and substance of the facts therein alleged. 1 C.J.S. Actions, § 35, p. 1076. . . .
“Certain duties and obligations are imposed upon physicians and hospitals by law. Breach of such duty by a physician is malpractice, and an action for damages for malpractice is one in tort, even though there was a contract, express or implied, for employment. [Citation omitted.] Similarly an action for damages against a hospital for negligence, i.e., for breach of duties imposed by law, sounds in tort. This is true though there may be a contract between the parties.
“In Tefft v. Wilcox, 6 Kan. 46, 61 [1870], this court held that a physician is obligated to his patient under the law to use reasonable and ordinary care and diligence in the treatment of cases he undertakes, to use his best judgment, and to exercise that reasonable degree of learning, skill, and experience which is' ordinarily possessed by other physicians in the same or similar locations. We have continued to impose those duties upon physicians. See PIK Civil 15.01 and cases there cited. A physician also has the duty to make a reasonable disclosure to the patient of pertinent facts within his knowledge relating to proposed treatment, in order that the patient may intelligently consent or refuse the treatment. [Citation omitted.]
“. . . What plaintiffs are complaining about is that the treatment provided was negligent — all of the needed treatment was not furnished, and that which was furnished was incomplete, incompetent, and unauthorized. In other words, the hospital and the physicians failed to exercise that reasonable care, skill, and diligence which the law requires of hospitals and physicians — regardless of any express contract therefor between the parties.
“Clearly the action sounds in tort, and under that theory the defendants are immune from liability. The general rule is that a plaintiff will not be permitted to characterize a tort action as one in contract in order to avoid the bar of the statute of limitations or governmental immunity. Travis v. Bishoff, 143 Kan. 283,54 P.2d 955 [1936]; Talbot v. Waterbury Hospital Corp., 20 Conn. Sup. 149, 164 A.2d 162 (1960); Billings v. Sisters of Mercy of Idaho, 86 Idaho 485, 389 P.2d 224 [1964]; Mamunes v. Williamsburg Gen. Hosp., 28 App. Div. 2d 998, 283 N.Y.S.2d 457 [1967]; and, see, Yeager v. National Cooperative Refinery Assn, [205 Kan. 504, 470 P.2d 797 (1970)].”
See Bonin, 261 Kan. at 209.
The plaintiff in count II is not complaining about negligence, incompetence, or unauthorized treatment. She is complaining about being lied to and misled by someone she trusted and by someone who was obligated to tell her the truth. It should not matter if that someone is a physician, lawyer, banker, or magazine salesman. Fraud is fraud, and we reject the notion that physicians are not answerable for it as are the other members of our society.
The obligation to tell the truth to people who depend on you to do so is not an exclusive obligation of a physician. It is an obligation shared with fiduciaries, with bankers, with lawyers, with shoe salesmen, and with myriad other members of our society. We reject the notion that because a physician has an obligation to tell his or her patients the truth that any suit against a physician for violating that duty can only be one for malpractice and not for fraud.
There is no logic and no justice in a conclusion that when a physician misleads someone, it is malpractice, but when a banker does so, it is fraud. The duty to speak honestly to those who trust you and to not engage in fraud or deception are duties shared by the medical profession with myriad members of our society. Physicians are not immune from the consequences of their fraudulent conduct.
We hold that where a patient' has a cause of action against a physician for malpractice and has been duped by the intentional and knowing lies of the physician to the extent the patient in reliance on the fraudulent misrepresentation permits the statute of limitations to bar his or her action, the patient can maintain an action for fraud against the physician, not on account of the original negligence or malpractice but on account of the fraudulent actions of the physician which deceived the patient with the consequence that the time bar ran against the original action.
STATUTE OF LIMITATIONS AS TO FRAUD
Having held that the plaintiff has set forth a valid cause of action for fraud against the defendant, the next question is whether the cause of action was timely filed.
K.S.A. 60-513(a)(3) establishes a limitation of 2 years within which to bring an action for relief on the ground of fraud. It goes on to provide that such a cause of action shall not be “deemed to have accrued until the fraud is discovered.” In this case, the cause of action was filed within 2 years of the discovery of fraud. However, 60-513(b) goes on to provide that “in no event shall an action be commenced more than 10 years beyond the time of the act giving rise to the cause of action.” The action in this case was filed more than 10 years after the fraud was perpetrated. The question is whether the statute of repose was also tolled by the defendant’s concealment of the cause of action.
It is a relatively simple manner to conclude that the running of the statute of limitations is tolled by concealment of the fraud. The statute says that it is and so do the cases. See Dalton v. Lawrence National Bank, 169 Kan. 401, Syl. ¶ 6, 219 P.2d 719 (1950). In McCoy v. Wesley Hospital & Nurse Training School, 188 Kan. 325, 331-32, 362 P.2d 841 (1961), the court said:
“The appellant contends that concealment of the decedent’s fall from bed until the 2nd day of June, 1956, tolled the running of the statute until such date, and that the action which was filed on the 6£h day of May, 1958, was therefore within the period of two years.
“In an action for relief on the ground of fraud the statute of limitations does not start to run until the plaintiff discovers the fraud, or until he learns such facts as would lead a reasonably prudent person to investigate. (Dalton v. Lawrence National Bank, 169 Kan. 401, 219 P.2d 719; and McWilliams v. Barnes, 172 Kan. 701, 242 P.2d 1063.) But the cause of action in count I is on the ground of negligence, the negligence of the hospital in permitting the decedent to fall from his bed, and not on the ground of fraud.
“Under the present law of Kansas fraud and concealment toll the running of the statute of limitations only when relief is sought on the ground of fraud. The rule applies only when the party against whom the bar of the statute is interposed is required to allege fraud in pleading his cause of action, or to prove fraud to entitle him to relief.”
It is not the 2-year statute of limitations that gives us concern but the 10-year statute of repose. This action was begun within 2 years of the discovery of the fraud but more than 10 years after the fraud was perpetrated. The effect of a statute of limitations and a statute of repose are exactly the same. Both statutes operate to extinguish a cause of action after a certain period of time has expired. However, our Supreme Court has seen fit to define and distinguish the two statutes. In Bonin, 261 Kan. 199, Syl. ¶ 2, we find the following:
“A statute of limitations extinguishes the right to prosecute an accrued cause of action after a period of time. It cuts off the remedy. It is remedial and procedural. A statute of repose limits the time during which a cause of action can arise and usually runs from an act of a defendant. It abolishes the cause of action after the passage of time even though the cause of action may not have yet accrued. It is substantive.”
The definition in Bonin was first developed in Harding v. K C. Wall Products, Inc., 250 Kan. 655, 668, 831 P.2d 958 (1992). In Bonin, Justice Abbott posits:
“[I]t is not clear that the fraudulent concealment doctrine applies to a statute of repose in the same manner that it applies to a statute of limitations. See Harding, 250 Kan. at 668. We need not decide this question because even if the fraudulent concealment doctrine does apply to statutes of repose, the doctrine only tolls the time in which a fraud action may be filed if the plaintiff’s claim for relief is validly grounded in fraud on its face.” 261 Kan. at 207.
Since the court in Bonin concluded no valid fraud action was pled, it did not reach the question proposed.
In this case, we have concluded that a valid cause of action for fraud has been pled. We also hold that the fraudulent concealment by the defendant tolled not only the statute of limitations but the statute of repose as well.
Our decision is based on common sense and logic. There is no reason grounded in logic to presume that the fraudulent concealment of a defendant will toll a statute of hmitations but not a statute of repose. If the basis of the fraudulent concealment doctrine is to deprive a defendant of the benefit of his fraud, then it must apply to a statute of repose with the same vigor it applies to a statute of Hmitations. In this case, the reason neither statute was complied with was the fraud of the defendant. It is illogical and nonsensical to say that the defendant’s fraud tolls the statute of limitations but not the 10-year statute of repose.
The State of Iowa has a malpractice statute of Hmitations which contains a statute of repose which is nearly identical to ours. The Supreme Court of Iowa in Koppes v. Pearson, 384 N.W.2d 381 (Iowa 1986), held that fraudulent concealment of a cause of action tolls its statute of Hmitations and its statute of repose. The Iowa court justified its decision by observing:
"We think it inconceivable that the Iowa legislature intended section 614.1(9) to bar malpractice actions against providers of medical care whose fraudulent concealment of the facts have themselves caused the delayed filing which the statute was designed to prevent. The legislature certainly did not intend such a harsh and unreasonable result.” 384 N.W.2d at 387.
We agree. We cannot imagine that the 10-year statute of repose was written to protect those who could conceal the fact of their fraud beyond the 10-year Hmitation of time.
We hold that the plaintiff has pled a vahd cause of action for fraud against the defendant and that the fraudulent concealment of the defendant tolled both the 2-year statute of Hmitations and the 10-year statute of repose relating to causes of action for fraud until such time as the fraud-was discovered by the plaintiff.
FRAUDULENT CONCEALMENT OR EQUITABLE ESTOPPEL?
In a majority of states that have considered the issue, the statute of limitations in a malpractice action is tolled by the fraudulent concealment of the cause of action by the physician. Annot. 70 A.L.R.3d 7. As with the statute of repose, on causes of action for fraud, we see no reason why the statute of repose in a malpractice action would not be tolled as well as the statute of limitations. In fact, the Iowa decision of Koppes, 384 N.W.2d 381, dealt with a statute of repose in a malpractice action.
One example of a fraudulent concealment case is Alford v. Summerlin, 362 So. 2d 103, 105 (Fla. Dist. App. 1978). In that case, due to the negligence of the defendant, a child died as the result of a ruptured appendix. The defendant, a physician, knew that the appendix had ruptured and so stated in his operative report. However, when asked by the child’s father, the physician lied and told the father that the appendix had not ruptured. By the time the child’s family discovered the truth, the statute of limitations had run. The Alford case is very similar factually to the instant matter. In Florida, it was held that the defendant’s fraud had tolled the statute of limitations:
“The statute of limitations is tolled when it can be shown that fraud has been perpetrated upon an injured party sufficient to place him in ignorance of his right to a cause of action or to prevent him from discovering the injury. [Citation omitted.] The fraudulent concealment of facts showing negligence will toll the statute of limitations until the fraudulent concealment can be discovered through the exercise of reasonable diligence. [Citation omitted.] To hold otherwise would be a harsh rule and prevent relief to an injured parttj who was without notice during the statutonj period of any negligent acts that might have caused injury.” (Emphasis added.) 362 So. 2d at 105.
In Lakeman v. LaFrance, 102 N.H. 300, 303, 156 A.2d 123 (1959), the New Hampshire court explained the doctrine of fraudulent concealment as follows: “if is well established that our courts will not countenance fraudulent conduct. [Citations omitted.] We refuse to presume that the Legislature intended to give a wrongdoer the advantage and benefit of his fraudulent concealment of a cause of action until the statute of limitations has run.” (Emphasis added.)
We agree with the comments above. Unfortunately, Kansas law remains governed by decisions made over 60 years ago which refuse to recognize the doctrine of fraudulent concealment in malpractice cases. The leading Kansas case on this issue is that of Graham v. Updegraph, 144 Kan. 45, 58 P.2d 475 (1936). In Syl. ¶ 1 of Graham, the Supreme Court said: “Where plaintiff seeks to recover damages from a physician on account of alleged malpractice the action is on a tort; the two-year statute oflimitations applies and is not tolled by concealment of the tort by the physician.” (Emphasis added.)
It appears that in Kansas the only tort which is not tolled by fraudulent concealment is one involving medical malpractice. For reasons which, in our judgment, defy logic, the Supreme Court has continued throughout the years to refuse to apply the doctrine of fraudulent concealment to medical malpractice actions. In McCoy v. Wesley Hospital & Nurse Training School, 188 Kan. at 331, the court said: “ ‘Our statutes do not make concealment one of the grounds for tolling the statute of limitations. Perhaps that should be done, but it is the function of the legislature and not of the courts to do it.’ ”
This is not a philosophy recognized by most courts in the United States. The doctrine of fraudulent concealment is a doctrine applied by the courts exercising their equitable powers, and those powers do not spring from the legislature. However, we conclude that the refusal to recognize fraudulent concealment as tolling a medical malpractice cause of action continues in this state. The most recent expression by our Supreme Court was in Bonin, in which Justice Abbott stated: “The doctrine may not be utilized to extend the time for Amanda to file either her malpractice claim or her invalid fraud claim.” 261 Kan. at 211.
We think, philosophically, that the law currently enforced in Kansas is wrong and ill-advised. Our research indicates that the issue has not been squarely faced for 60 years and that even in Graham, 144 Kan. 45, the pros and cons of the fraudulent concealment doctrine were not discussed.
Despite our feelings on the matter, we recognize that we are not empowered to reverse or alter prior decisions of our Supreme Court. This is particularly true where the court shows no signs of being ready to abandon its prior decisions even though we may consider those decisions to be ill-advised. While we strongly believe that the doctrine of fraudulent concealment in tolling a malpractice statute of limitations and statute of repose should be employed in this state, we are not at liberty to do so.
However, we believe that a more focused rule should be employed in this case to prevent the law from being successfully used as a vehicle for fraud. We refer to the doctrine of equitable estoppel. In Kern, by and through Kern v. St. Joseph Hosp., 102 N.M. 452, 455, 697 P.2d 135 (1985), the New Mexico court expressed sentiments with which we agree in discussing a case involving fraudulent concealment:
“The doctrine is based not upon a construction of the statute but rather upon the principle of equitable estoppel. Corbert v. Waitt, Ind. App. 445 N.E. 2d 100 (1982). The theory is premised on the notion that the one who has prevented the plaintiff from bringing suit within the statutory period should be estopped from asserting the statute of limitations as a dffense.” (Emphasis added.)
Our Supreme Court appears to be convinced that tolling of the statute of limitations is a legislative prerogative. While that may be true, it provides no obstacle to the employment of the doctrine of equitable estoppel under the circumstances shown. Equitable estoppel does not depend upon legislative authority; it is an inherent power of the courts used to punish unconscionable conduct and estop a guilty party from taking advantage of his or her fraudulent conduct. Equitable estoppel is a way of saying that the statute of limitations and the statute of repose are valid and would be absolute defenses to this action but because of your conduct as a litigant, you, and only you, will not be permitted to raise those defenses.
Our Supreme Court has indicated that the use of estoppel in cases of concealment of a cause of action is permissible. In McCoy v. Wesley Hospital & Nurse Training School, 188 Kan. at 331, the plaintiff had fallen out of bed in the hospital while he was under anesthetic. The hospital had concealed the fact of the fall from the plaintiff but the fall was discovered prior to the running of the statute of limitations. The plaintiff sought to invoke the doctrine of estoppel to prevent the defendant from using the statute of limitations as a defense. In holding that the use of estoppel was inappropriate under the circumstances, the court said:
“Where a hospital conceals from a patient the fact that he has fallen from bed while under the influence of sédation and anesthetics for approximately three and one-half months, when the fact is discovered by the patient’s physician and disclosed to the patient, the doctrine of equitable estoppel in pais is not available to interrupt the running of the statute of limitations, since the concealment ceased to operate in sufficient time to permit the filing of the action within time, and there was no affirmative inducement to further delay bringing the action.” 188 Kan. 325, Syl. ¶ 2.
The court implies that in a proper case, where the wrong was not discovered within the running of the statute of limitations, equitable estoppel would be an appropriate doctrine to be invoked on the part of the defrauded plaintiff.
The appellate courts of Kansas have long employed equitable estoppel to prevent litigants from benefitting from wrongful actions.
In Bowen v. Westerhaus, 224 Kan. 42, 45-46, 578 P.2d 1102 (1978), the court reviewed the law concerning equitable estoppel as follows:
“The plaintiffs pled that defendants were estopped to take advantage of the statute. The doctrine of equitable estoppel is based upon the principle that a person is held to a representation made or a position assumed when otherwise inequitable consequences would result to another who, having the right to do so under all the circumstances, has in good faith relied thereon. (Maurer v. J.C. Nichols Co., 207 Kan. 315, 485 P.2d 174 [1971].)
“This court has further said:
“ ‘The doctrine of equitable estoppel requires consistency of conduct, and a litigant is estopped and precluded from maintaining an attitude with reference to a transaction involved wholly inconsistent with his previous acts and business connection with such transaction.’ (Browning v. Lefevre, 191 Kan. 397, Syl. ¶ 2, 381 P.2d 524 [1963].)
“ ‘. . . One who asserts an estoppel must show some change in position in reliance on the adversary’s misleading statement. . . .’ (In re Morgan, 219 Kan. 136, 137, 546 P.2d 1394 [1976].)
“ '. . . Equitable estoppel is the effect of the voluntary conduct of a person whereby he is precluded, both at law and in equity, from asserting rights against another person relying on such conduct. A party asserting equitable estoppel must show that another party, by its acts, representations, admissions, or silence when it had a duty to speak, induced it to believe certain facts existed. It must also show it rightfully relied and acted upon such belief and would now be prejudiced if the other party were permitted to deny the existence of such facts----’ (United American State Bank & Trust Co. v. Wild West Chrysler Plymouth, Inc., 221 Kan. 523, 527, 561 P.2d 792 [1977].)”
In Rex v. Warner, 183 Kan. 763, 771-72, 332 P.2d 572 (1958), our Supreme Court stated:
“It is a legal maxim well understood that nothing can interrupt the running of the statute of limitations, and it is commonly stated without any qualification. Courts, however, have ingrafted upon such statutes an exception based upon estoppel. Generally speaking, actual fraud in the technical sense, bad faith, or an attempt to mislead or deceive is not essential to create such an estoppel; to invoke the doctrine, the debtor or defendant must have done something that amounted to an affirmative inducement to plaintiff to delay bringing the action. [Citations omitted.]
“. . . It was within plaintiff’s domain to ascertain why the defendants refused to perform and where the means of knowledge with respect to his rights or liabilities are available to him, he may not ignore the requirement of due care and at the same time invoke the doctrine of equitable estoppel. That doctrine is not available for the protection of one who has suffered loss solely by reason of his own acts or omissions. Equity aids the vigilant and not those who slumber on their rights. (30 C.J.S., Equity, § 100, p. 499.)”
This court, in Coffey v. Stephens, 3 Kan. App. 2d 596, 598, 599 P.2d 310 (1979), said:
“One general statement of the doctrine which runs throughout the cases in which it is asserted is that a defendant, who has acted in such a fashion that his conduct is sufficient to lull his adversary into a false sense of security forestalling the filing of suit until after the statute has run, will be precluded from relying on the bar of the statute. [Citations omitted.]”
In Klepper v. Stover, 193 Kan. 219, 221-22, 392 P.2d 957 (1964), the court stated:
“Generally speaking, in equity where mistake is sought to be corrected, limitation statutes do not begin to run on the cause of action until the time when the mistake is discovered or when by use of due diligence it ought to have been discovered. (34 Am. Jur., Limitation of Actions, § 174, p. 139.) This is particularly true where a mistake is the basis of the gravamen of the action (53 C. J. S., Limitations of Actions, § 91, b., p. 1067, c., p. 1069.) Mistake and fraud are closely akin to each other. To apply the doctrine of estoppel to defendants here upon the ground of the statute of Hmitations requires an element of deception upon which the plaintiff acted in good faith in rebanee thereon to his prejudice whereby he failed to commence the action within the statutory period. Whether the acts, promises, or representations of defendants lulled plaintiff into a sense of security, preventing him from filing suit before the running of the statute is a question of fact. (34 Am. Jur., Limitation of Actions, § 412, pp. 324, 325.)
“if a defendant, electing to rely on the statute of Hmitations, has previously by deception or in violation of his duty toward plaintiff, caused him to subject his claim to the statutory bar, defendant must be charged with having wrongfully obtained an advantage which the court will not allow him to hold, and this can be done by his silence when under an affirmative duty to speak. (53 C. J. S., Limitations of Actions, § 25, Estoppel, pp. 963, 964.)”
As can be noted from the cases cited above, this is far from a case of first impression. The doctrine of equitable estoppel has been frequently used to prevent a defendant from relying on the statute of hmitations as a defense where the defendant’s fraudulent or wrongful conduct has caused the plaintiff not to file suit within the period of the statute of hmitations. See Annot, 43 A.L.R.3d 429.
We conclude this is an appropriate case for application of the doctrine of equitable estoppel. We hold that the defendant in a malpractice case cannot take advantage of a defense based on the statute of hmitations or the statute of repose where the defendant’s own fraudulent concealment has resulted in the delay in discovering the defendant’s wrongful actions. Under such facts, a defendant is equitably estopped from raising the defenses of the statute of hmitations and the statute of repose. See Newton v. Hornblower, Inc., 224 Kan. 506, Syl. ¶ 7, 582 P.2d 1136 (1978).
Accordingly, in the event the plaintiff is able to prove, during a trial on the merits, that she was prevented from discovering that she had a cause of action against the defendant for her negligence in leaving surgical sponges in the plaintiff’s abdomen by the defendant’s own fraudulent conduct and misrepresentation, then, in that event, the defendant will be equitably estopped from raising the defenses of the statutes of limitations or the statutes of repose, even though those may be, in fact, absolute defenses to the plaintiff’s cause of action.
We consider our decision in this case to be one primarily based upon the facts presented. It is obvious that whether a defendant will be estopped from raising certain defenses can only be decided on a case-by-case basis. This is one of the cases in which the doctrine is appropriately applied. However, we further believe that the application of the doctrine of equitable estoppel is required in cases of this nature to prevent physicians from benefitting from their own fraudulent misrepresentation and to avoid any inference that the law would encourage and reward such behavior as is outlined in this opinion. To hold that a physician may successfully blunt a malpractice cause of action by fraudulently misrepresenting facts to a patient would be to encourage such fraudulent behavior. We do not believe that the law can or should be so manipulated, and our decision should insure that this will not happen. We hasten to add that we cannot imagine that the majority of physicians in this state would engage in the behavior illustrated in this opinion.
It is further obvious that our decision on equitable estoppel diminishes to some degree the value of the plaintiff’s cause of action for fraud. However, that is a decision the plaintiff will have to make when the time comes for a trial on the merits of her claims against the defendant.
The decision of the trial court that the plaintiff’s causes of action are barred by the statute of limitations and/or the statute of repose is reversed, and the matter is remanded for a trial on the merits consistent with this opinion.
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Marquardt, J.:
The State charged Bridget Pope with intentional second-degree murder or unintentional but reckless second-degree murder in the death of 16-year-old Tracy L. Horyna. A jury found Pope guilty of intentional second-degree murder, and the district court sentenced Pope to 141 months in prison. Pope appeals both her conviction and sentence.
Hoiyna and Mistyn Stewart attended the same high school and were close friends. Michelle Smyres, a friend of Hoiyna and Stewart, telephoned Stewart’s house and asked to speak to Horyna. Smyres told Horyna that Hilleary McEhlheny wanted to meet Horyna at McEhlheny’s aunt’s house “to talk.” McEhlheny was upset with Horyna because Horyna had kissed McEhlheny’s ex-boyfriend. Horyna indicated to Stewart that' she did not trust Mc-Ehlheny and that she was not going to the meeting.
A group of people met at Pope’s house and Pope talked about damaging Horyna’s car using a knife, bat, and crowbar. Part of the group left and went to McEhlheny’s aunt’s house to wait for Horyna. When Horyna did not show up, McEhlheny and some of her friends went looking for Hoiyna. Pope showed McEhlheny’s best friend, Kim Miller, a knife and said that she “was going to make it where Tracy wasn’t veiy pretty any more.”
Later that evening, as Horyna was driving around town with Stewart, they noticed that a car was following them. McEhlheny was driving the pursuing car, flashing the headlights and honking the horn. Horyná pulled her car off the road and parked. Mc-Ehlheny then pulled her car in front of Hoiyna’s car and stopped.
McEhlheny went back to Horyna’s car and started yelling at her through the open window. Pope and another girl, Angela Chaffin, went back to Horyna’s car and stood by McEhlheny. Stewart saw that Pope was holding a knife in her hand. Pope asked McEhlheny, “Are you done?” and then told McEhlheny to get back in the car.
As McEhlheny turned to leave, Pope reached into Horyna’s car, stabbing her in the heart. As Horyna struggled with Pope, Horyna’s car was knocked out of neutral and into drive. Pope ran back to McEhlhany’s car. Horyna then drove about a block before she lost consciousness. A forensic pathologist testified that Hoiyna died from a loss of blood due to a stab wound to the chest. The knife had gone through Horyna’s sternum into her heart.
Chaffin testified that when she, Pope, and McEhlheny returned to their car, Pope stated that she had stabbed Hoiyna in the leg and then started to laugh. April Bass, a friend of Pope, testified that later that evening Pope stated, “I cut her up real good.”
INTENT
Pope argues that intentional second-degree murder requires intent to kill and that the record does not contain sufficient evidence that Pope intended to kill Horyna.
The issue of the requisite intent for second-degree murder requires this court to interpret K.S.A. 21-3402(a). This issue raises a question of law over which this court has unlimited review. See State v. Caldwell, 21 Kan. App. 2d 466, 470, 901 P.2d 35, rev. denied 258 Kan. 859 (1995).
“The standard of review when the sufficiency of the evidence is challenged on appeal is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found defendant guilty beyond a reasonable doubt.” State v. Pratt, 255 Kan. 767, 768, 876 P.2d 1390 (1994).
“Murder in the second degree is the killing of a human being committed: (a) Intentionally; or (b) unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life.” K.S.A. 21-3402. See State v. Jones, 257 Kan. 856, 872, 896 P.2d 1077 (1995).
Prior to July 1,1993, second-degree murder was defined as “the malicious killing of a human being, committed without deliberation or premeditation and not in the perpetration or attempt to perpetrate a felony.” K.S.A. 21-3402 (Ensley 1988); State v. Shannon, 258 Kan. 425, 429, 905 P.2d 649 (1995).
In State v. Hill, 242 Kan. 68, 81-83, 744 P.2d 1228 (1987), the court held that the prior version of the second-degree murder statute required a showing that the defendant possessed the specific intent to kill a human being before the defendant could properly be convicted of second-degree murder. The Hill court also noted that there is a distinction between intentionally shooting and intentionally killing someone. 242 Kan. at 82.
The new statute has not removed the specific intent requirement for intentional second-degree murder convictions under K.S.A. 21-3402(a) (“Murder in the second degree is the killing of a human being committed . . . [intentionally.”). See Shannon, 258 Kan. at 428-29.
“Specific intent as an element of the crime charged is normally a question of fact for the finder of fact to determine and may be shown by acts, circumstances, and inferences reasonably deducible therefrom and need not be established by direct proof.” Pratt, 255 Kan. at 769.
“ ‘ “Intent is a state of mind existing at the time a person commits an offense and it may be shown by acts, circumstances and inferences deducible therefrom.” [Citations omitted.]’ A conviction of even the gravest offense may be sustained by circumstantial evidence. [Citation omitted.]” State v. Scott, 250 Kan. 350, 362, 827 P.2d 733 (1992).
Thus, while a conviction for intentional second-degree murder requires proof that the defendant intentionally killed a human being, this specific intent may be proven by the acts of the defendant and the inferences deducible from those acts. K.S.A. 21-3402(a); Shannon, 258 Kan. at 428-29; Pratt, 255 Kan. at 769.
Pope stabbed Horyna in the heart. Pope stated to the police that while she intended to stab Hoiyna, she did not intend to kill her. The jury heard testimony from the police officers regarding Pope’s statements; however, the jury could have reasonably deduced from Pope’s act of stabbing Horyna that she intended to kill her. There is sufficient evidence in the record to support a reasonable inference that Pope intentionally killed Horyna. See Pratt, 255 Kan. at 769.
Pope argues that the district court stated that the definition of intentional second-degree murder under K.S.A. 21-3402(a) does not require proof of a specific intent to kill. The district court made several statements indicating its view that intentional second-degree murder requires “that someone does an intentional act and as a result of that somebody dies.” Regardless of the district court’s statement, the district court never expressed its view of the law to the jury. The statements of the district court were made either out of the presence of the jury or after the verdict had been rendered during post-trial motions and sentencing.
The jury instructions correctly stated that to establish a charge of intentional second-degree murder, the State must prove that “the defendant intentionally killed Tracy Horyna.” See PIK Crim. 3d 56.03. The jury instructions also defined intentional as “conduct that is purposeful and willful and not accidental.” See PIK Crim. 3d 54.01-A. The district court correctly instructed the jury on the intent element of intentional second-degree murder.
Pope also argues that the district court failed to correctly answer the jury’s question regarding specific intent.
After deliberating approximately 2 hours, the jury submitted the following question to the district court:
“Does the [State] have to show intent to kill to prove the crime of murder in the second degree by an intentional killing, even for a split second[?]”
The district court gave the following answer:
“The Court will instruct you to re-read the elements the state must prove for murder in the second degree by an intentional killing. You should also re-read the elements instruction for murder in the second degree, unintentional killing. The definition of intentional is set forth in Instruction Number 11. You should re-read that instruction, and Instruction Number 12.”
K.S.A. 22-3420(3) mandates that a district court respond to a jury’s request for further information “as to any part of the law or evidence arising in the case.” The manner and extent of the response, however, rest in the sound discretion of the district court. State v. Boyd, 257 Kan. 82, 87, 891 P.2d 358 (1995).
Pope argues that by not answering the jury’s question with a “yes,” the district court failed to instruct the jury on the intent element of second-degree murder. As we have previously noted, the district court correctly instructed the jury on the intent element of second-degree murder. The district court responded to the jury’s question by instructing it to re-read the instructions. In answering the jury’s question, the district court did not abuse its discretion.
Pope argues that the response given by the district court unconstitutionally shifted the burden of proof to Pope. In making this argument, Pope challenges PIK Crim. 3d 54.01, which provides:
“Ordinarily, a person intends all of the usual consequences of (his)(her) voluntary acts. This inference may be considered by you along with all the other evidence in the case. You may accept or reject it in determining whether the State has met its burden to prove the required criminal intent of the defendant. This burden never shifts to the defendant.”
At trial, PIK Crim. 3d 54.01 was given as Instruction Number 12.
The Kansas Supreme Court has consistently upheld the constitutionality of PIK Crim. 3d 54.01. See, c.g., State v. Stone, 253 Kan. 105, 107-08, 853 P.2d 662 (1993). The challenged instruction clearly states that the burden of proof never shifts to the defendant. Pope’s argument lacks merit.
Pope argues that the unintentional second-degree murder statute, K.S.A. 21-3402(b), is unconstitutionally vague. Pope was not convicted of unintentional second-degree murder. In State v. Zimmer, 19 Kan. App. 2d 617, 618, 873 P.2d 1381 (1994), the court noted the general rule that appellate courts decide only actual controversies and decline to give opinions on moot questions or abstract propositions. This issue does not present an actual controversy that requires adjudication.
LESSER INCLUDED OFFENSES
Pope argues that the district court erred in refusing to instruct the jury on the lesser included offenses of voluntary and involuntary manslaughter.
A district court is required to instruct the jury not only as to the crime charged, but also “as to all lesser crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced.” K.S.A. 21-3107(3); State v. Bailey, 256 Kan. 872, 886, 889 P.2d 738 (1995). “An instruction on a lesser included offense is required if there is substantial evidence upon which the defendant might reasonably have been convicted of the lesser offense.” Shannon, 258 Kan. at 427. Evidence supporting the instruction of a lesser included offense may be presented by either the defendant or the State. State v. Coleman, 253 Kan. 335, 354, 856 P.2d 121 (1993). An instruction on a lesser included offense is not required if the evidence at trial excludes a theory of
When reviewing a district court’s failure to give a specific instruction, this court views the evidence in the light most favorable to the party requesting the instruction. Scott, 250 Kan. at 357.
Voluntary Manslaughter
Voluntary manslaughter includes the intentional lolling of a human being upon a sudden quarrel or in the heat of passion. K.S.A. 21-3403(a); Bailey, 256 Kan. at 886.
In Bailey, 256 Kan. at 886, the court stated:
‘“In order for a defendant charged with murder to be entitled to a jury instruction on voluntary manslaughter because he acted in the heat of passion, his emotional state of mind must exist at the time of the act and it must have arisen from circumstances constituting sufficient provocation.’
“ ‘The test of the sufficiency of the provocation is objective, not subjective. The provocation, whether it be “sudden quarrel” or some other form of provocation, must be sufficient to cause an ordinary man to lose control of his actions and his reason. In applying the objective standard for measuring the sufficiency of the provocation, the standard precludes consideration of the innate peculiarities of the individual defendant.’ State v. Guebara, 236 Kan. 791, Syl. ¶¶ 2, 3, 696 P.2d 381 (1985).”
Mere words or gestures, however insulting, do not constitute adequate provocation, but insulting words when accompanied by assault may constitute adequate provocation. Hill, 242 Kan. at 74.
During the confrontation, Horyna never left her vehicle and never threatened Pope or anyone else. In fact, the argument was between Hoiyna and McEhlheny. There is no evidence of sufficient provocation to establish voluntary manslaughter. Thus, the district court did not err in refusing to instruct the jury on voluntary manslaughter.
Involuntary Manslaughter
Involuntary manslaughter is the unintentional killing of a human being committed “recklessly.” K.S.A. 21-3404(a). Under the prior versions of the applicable statutes, involuntary manslaughter had been held to be a lesser included offense of second-degree murder. See Tran, 252 Kan. at 506.
K.S.A. 21-3201(c) defines reckless conduct as “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,’ ‘culpable negligence,’ ’wanton negligence’ and ‘wantonness’ are included within the term ‘recklessness’ as used in this code.”
“[F]or conduct to be ‘reckless,’ it must be such as to evince disregard of or indifference to consequences, under circumstances involving danger to life or safety of others, although no harm was intended.” Duckers v. Lynch, 204 Kan. 649, 653, 465 P.2d 945 (1970).
Unintentional second-degree murder requires reckless conduct “manifesting extreme indifference to the value of human life,” K.S.A. 21-3402(b), while involuntary manslaughter requires “a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of that danger,” K.S.A. 21-3201(c). It is the extreme indifference to the value of human life that distinguishes unintentional second-degree murder from involuntary manslaughter. See Model Penal Code § 210.2, comment 4 (1980). The common-law distinctions between depraved-heart murder and manslaughter are helpful in distinguishing the current statutory crimes.
Pope correctly notes that the district court based its refusal to instruct the jury on involuntary manslaughter on the lack of sufficient provocation. Because provocation is not an issue in evaluating whether the jury should be instructed on involuntary manslaughter, the district court relied on an improper ground. However, if a district court’s decision is correct, notwithstanding that the district court relied upon an improper ground, it will be upheld by this court. See State v. Wilburn, 249 Kan. 678, 686, 822 P.2d 609 (1991).
In Pope’s second version of the tragic events to the police, she stated that Hoiyna had kicked her in the face and that she then swung at Horyna, forgetting that she had a knife in her hand. Pope later contradicted this statement when she told the police that she had intentionally stabbed Horyna, but that she did not intend to kill her. Every other witness to the confrontation testified that Horyna never struck out at anyone in any way.
“Where there is no substantial evidence applicable to the lesser degrees of the offense charged, and all of the evidence taken together shows that the offense, if committed, was clearly of the higher degree, instructions relating to the lesser degrees of the offense are not necessary.” State v. Gibbons, 256 Kan. 951, 955, 889 P.2d 772 (1995).
All of the evidence taken together shows that the offense was clearly of the higher degree. Thus, the district court did not err in refusing to instruct the jury on involuntary manslaughter.
FIFTH AND SIXTH AMENDMENT RIGHTS
Pope argues that the district court erred in failing to suppress certain statements that she made to the police.
Initially, Pope’s appellate counsel candidly admits that Pope’s trial counsel failed to contemporaneously object to the admission of these statements at trial. “The erroneous admission of evidence may not be raised on appeal absent a timely objection to the evidence, so stated as to make clear the specific ground of the objection. K.S.A. 60-404.” State v. Sutton, 256 Kan. 913, 924, 889 P.2d 755 (1995). Thus, this issue is not properly before this court.
Additionally, it is clear from the record of the suppression hearing that the police properly informed Pope of her right to counsel. Pope argues that she “was not advised that she could have an attorney appointed, even during the early morning hours, to be present during the interview.” The statement of Miranda rights that was read to and initialed by Pope stated that she had the right to talk to an attorney and to have an attorney present while she was being questioned. This argument lacks merit.
MISSOURI JUVENILE ADJUDICATIONS
Pope argues that her prior Missouri juvenile adjudications should not have been used in calculating her criminal history under the Kansas Sentencing Guidelines Act (KSGA). Pope argues that the inclusion of the Missouri juvenile adjudications violates the Full Faith and Credit, Due Process, and Ex Post Facto Clauses of the United States Constitution. The due process and ex post facto arguments are controlled by State v. LaMunyon, 21 Kan. App. 2d 281, Syl. ¶¶ 1, 3, 898 P.2d 1182 (1995), aff’d 259 Kan. 54, 911 P.2d 151 (1996) (holding that juvenile adjudications may properly be used in determining criminal history score). The full faith and credit argument lacks merit.
At sentencing, both Pope and defense counsel agreed that the criminal history shown in the presentencing report was accurate. Additionally, Pope concedes that she did not object to the use of the Missouri juvenile adjudications at that time.
K.S.A. 21-4715(a) provides: “The offender’s criminal history shall be admitted in open court by the offender or determined by a preponderance of the evidence at the sentencing hearing by the sentencing judge.”
K.S.A. 2l-4721(e) provides: “In any appeal, the appellate court may review a claim that . . . the sentencing court erred in either including or excluding recognition of a prior conviction or juvenile adjudication for criminal history scoring purposes.”
This court has jurisdiction to consider this issue notwithstanding Pope’s failure to object to her criminal history at sentencing.
K.S.A. 21-4710(d) provides that certain juvenile adjudications may be included in calculating a defendant’s criminal history when determining a sentence under the KSGA. K.S.A. 21-4711(f) provides that out-of-state juvenile adjudications will be treated as juvenile adjudications in Kansas.
Pope’s due process challenge is based on the lack of the right to a jury trial for juvenile adjudications. See LaMunyon, 259 Kan. at 62 (noting that a juvenile has no constitutional right to a jury trial). The LaMunyon court rejected this argument, holding that juvenile adjudications are constitutional and could, therefore, be used in calculating a defendant’s criminal history. 259 Kan. at 65. LaMunyon controls this argument.
The LaMunyon court also held that “the KSGA does not operate retrospectively to punish the activity which occurred prior to the effective date of the KSGA and therefore does not violate the prohibition against ex post facto laws.” 259 Kan. at 67. LaMunyon controls this argument as well.
Pope’s argument that inclusion of her Missouri juvenile adjudications in her criminal history score violates the Full Faith and Credit Clause was not an issue addressed by the LaMunyon court, and the State did not respond to this argument.
“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” U.S. Const, art. IV, § 1. The general rule is that a judgment rendered by a court of one state is entitled to recognition in the courts of another state to the same extent as it has by law or usage in the courts of the state where the judgment was rendered. Hicks v. Hefner, 210 Kan. 79, 82, 499 P.2d 1147 (1972); Boyce v. Boyce, 13 Kan. App. 2d 585, 587, 776 P.2d 1204, rev. denied 245 Kan. 782 (1989).
Mo. Rev. Stat. § 211.271 (1994) provides:
“1. No adjudication by the juvenile court upon the status of a child shall be deemed a conviction nor shall the adjudication operate to impose any of the civil disabilities ordinarily resulting from conviction nor shall the child be found guilty or be deemed a criminal by reason of the adjudication.
“3. After a child is taken into custody ... all admissions, confessions, and statements by the child to the juvenile officer and juvenile court personnel and all evidence given in cases under this chapter, as well as all reports and records of the juvenile court, are not lawful or proper evidence against the child and shall not be used for any purpose whatsoever in any proceeding, civil or criminal, other than proceedings under this chapter.”
See State v. Miner, 657 S.W.2d 332, 333 (Mo. App. 1983) (holding that psychiatrist’s testimony regarding defendant’s arrest at age 14 was reversible error).
The flaw in Pope’s argument is that the district court sentenced Pope under Kansas law rather than Missouri law. Kansas law allows juvenile adjudications to be used in calculating a defendant’s criminal history. K.S.A. 21-4710(d).
The Full Faith and Credit Clause “does not require a state to apply another state’s law in violation of its own legitimate public policy.” Head v. Platte County, Mo., 242 Kan. 442, 446, 749 P.2d 6 (1988) (citing Nevada v. Hall, 440 U.S. 410, 422, 59 L. Ed. 2d 416, 99 S. Ct. 1182, reh. denied 441 U.S. 917 [1979]). Kansas has a legitimate public policy interest in considering a defendant’s juvenile offenses when sentencing that defendant for a criminal conviction. See LaMunyon, 259 Kan. at 60 (noting that the Kansas Legislature permitted consideration of juvenile adjudications in sentencing adult offenders prior to the adoption of the KSGA). The Full Faith and Credit Clause does not prevent the inclusion of Missouri juvenile adjudications in calculating Pope’s criminal history score.
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Brazil, C.J.:
Louis E. Bruce, the Warden of the Ellsworth Correctional Facility (ECF), appeals the district court’s decision to grant habeas corpus relief to petitioner Melvin White. The court held that White should receive credit against his postrelease supervision for time he spent incarcerated on another charge prior to the Kansas Parole’s Board’s (KPB) decision to revoke his post-release supervision. The court stayed execution of its judgment pending the outcome of this appeal. We reverse.
On January 7, 1994, White finished serving a 42-month guidelines sentence and was released to begin serving 24 months of postrelease supervision. While on postrelease supervision, White committed another offense and was sentenced to 12 months’ imprisonment. Because White had been in custody since January 28, 1995, the court granted him 182 days of jail time credit against his 12-month sentence. With the jail time credit, White actually began serving his sentence on January 28, 1995.
On September 27, 1995, the KPB revoked White’s postrelease supervision and ordered him to serve to the maximum release date of his postrelease supervision term.
White filed a petition for habeas corpus pursuant to K.S.A. 60-1501, asserting that although he had been incarcerated since January 28, 1995, he was entitled to credit against his postrelease supervision term through September 27, 1995, the date the KPB revoked his postrelease supervision. Following this reasoning, White determined that he had only 3 months and 10 days of post-release supervision left to serve and that he should be released by May 8, 1996.
The trial court agreed and found that White was entitled to credit against his postrelease supervision term for the time period at issue.
The issue on appeal is whether Kansas law mandates that an individual receive credit against an unrevoked term of postrelease supervision for time spent incarcerated on another charge. The issue involves interpretation of the Kansas Sentencing Guidelines Act and thus poses a question of law over which this court’s review is unlimited. See State v. Gideon, 257 Kan. 591, 597, 894 P.2d 850 (1995); State v. Donlay, 253 Kan. 132, Syl. ¶ 1, 853 P.2d 680 (1993).
Bruce argues the district court erred in crediting White’s post-release supervision term for the time White was reincarcerated until the date the KPB revoked the postrelease supervision. For that time period, White received credit against both his postrelease supervision term and his new sentence. Bruce contends that the district court’s decision violates K.S.A. 21-4608(c), which provides:
“Any person who is convicted and sentenced for a crime committed while on probation, assigned to a community correctional services program, on parole, on conditional release or on postrelease supervision for a felony shall serve the sentence consecutively to the term or terms under which the person was on probation, assigned to a community correctional services program or on parole or conditional release.” (Emphasis added.)
White acknowledges that K.S.A. 21-4608(c) requires his new sentence to be consecutive to his postrelease supervision term, but argues that the consecutive sentence provision takes effect only upon the revocation of his postrelease supervision. In support of his contention, White points to K.S.A. 1995 Supp. 75-5217(c), which addresses violations of postrelease supervision:
“If the violation does result from a conviction for a new felony or misdemeanor, upon revocation the inmate shall serve the entire remaining balance of the period of postrelease supervision even if the new conviction did not result in the imposition of a new term of imprisonment.”
Under the statute, it is only upon revocation of postrelease supervision that an inmate must serve the remainder of the post-release supervision term. White reasons that the time prior to revocation vested against his term of postrelease supervision. K.S.A. 22-3717(r) provides:
“Inmates shall be released on postrelease supervision upon the termination of the prison portion of their sentence. Time served while on postrelease supervision will vest.”
Similarly, K.S.A. 22-3722 states:
“The period served on postrelease supervision shall vest in and be subject to the provisions contained in K.S.A. 75-5217 and amendments thereto relating to an inmate who is a fugitive from or has fled from justice. The total time served shall not exceed the postrelease supervision period established at sentencing.”
White notes that under K.S.A. 22-3722 and K.S.A. 1995 Supp. 75-5217(e) only an inmate who is a fugitive or has fled from justice shall not receive credit for time served on postrelease supervision; in all other instances, the time shall vest. White applies the maxim expressio unius est exclusio alterius:
“ ‘One of the more common rules of statutory interpretation is that expressed in the Latin maxim expressio unius est exclusio alterius, i.e., the mention or inclusion of one thing implies the exclusion of another. This rule may be applied to assist in determining actual legislative intent which is not otherwise manifest, although the maxim should not be employed to override or defeat a clearly contrary legislative intention.’ ” State v. Luginbill, 223 Kan. 15, 20, 574 P.2d 140 (1977).
See In re J.E.M., 20 Kan. App. 2d 596, 600, 890 P.2d 364 (1995).
White argues that the legislature’s decision to expressly deny postrelease supervision credit for fugitives indicates that the leg islature intended postrelease supervision credit to vest in all other situations, including during incarceration for a different crime.
White’s argument rests on the assumption that he remained on postrelease supervision, in spite of his incarceration, until the KPB revoked his postrelease supervision. While Kansas courts have not addressed the precise question of whether an individual can serve an unrevoked term of postrelease supervision while incarcerated, such a proposition seems fundamentally illogical. Kansas law defines postrelease supervision as
“the release of a prisoner to the community after having served a period of imprisonment or equivalent time served in a facility where credit for time served is awarded as set forth by the court, subject to conditions imposed by the Kansas parole board and to the secretary of correction!/] supervision.” K.S.A. 21-4703(p).
Obviously, an individual who has been reincarcerated is no longer released to the community as contemplated by K.S.A. 21-4703(p).
This court has tangentially addressed this issue in two recent decisions: Phillpot v. Shelton, 19 Kan. App. 2d 654, 875 P.2d 289, rev. denied 255 Kan. 1003 (1994), and Faulkner v. State, 22 Kan. App. 2d 80, 911 P.2d 203, rev. denied 259 Kan. 927 (1996). In Phillpot, the court considered several cases where the sentencing guidelines were retroactively applied and the prisoner’s period of incarceration served on an indeterminate sentence was in excess of the period of incarceration required under the guidelines. The court held that the excess period of incarceration served by the prisoner could not be applied to satisfy the period of postrelease supervision required by the guidelines. 19 Kan. App. 2d at 664.
“A reading of the statutes indicates that, under the Kansas Sentencing Guidelines Act, a defendant is to serve a bifurcated sentence — incarceration followed by postrelease supervision. Other than the interplay of good time credit, these two parts are effectively independent from one another. The statutes indicate postrelease time is mandatory and comes after a defendant has been released from incarceration. Because appellants have served only a period of incarceration under their indeterminate sentences, they are subject to postrelease supervision upon their release from incarceration.” 19 Kan. App. 2d 654, Syl. ¶ 8.
The Phillpot court essentially held that an individual could not receive credit against a term of postrelease supervision for time spent in prison under a pre-guidelines indeterminate sentence. The basis for the decision is that under the guidelines, incarceration and postrelease supervision are independent from one another. This rationale applies equally to the instant case. Regardless of whether an inmate’s incarceration is by virtue of a pre-guidelines indeterminate sentence or a new guidelines determinate sentence, incarceration and postrelease supervision are independent concepts. The Phillpot decision supports a conclusion that an inmate cannot logically remain on postrelease supervision if that inmate is incarcerated.
In Faulkner, the court held that “time spent on parole under an indeterminate sentence may not be credited to the postrelease supervision period of a converted sentence.” 22 Kan. App. 2d at 83. The court based its decision on the fact that time spent on parole is time spent in custody, whereas time spent on postrelease supervision does not begin until after the confinement portion of a sentence has been served. 22 Kan. App. 2d at 82-83. Like Phillpot, the Faulkner decision supports a conclusion that an inmate cannot be on postrelease supervision while incarcerated. We conclude that incarceration and postrelease supervision are mutually exclusive sentencing concepts which cannot be satisfied at the same time.
Although the parties frame the issue as involving a statutory conflict between sections requiring vested postrelease supervision time and those requiring consecutive sentences, no direct statutory conflict is apparent. K.S.A. 22-3717(r) and 22-3722 mandate that time served while on postrelease supervision shall vest, while K.S.A. 1995 Supp. 75-5217(c) and K.S.A. 21-4608(c) direct that, upon revocation, a postrelease supervision term shall be served consecutive to a new sentence imposed for a crime committed during the supervision period. White seeks refuge in the rule that penal statutes must be strictly construed in favor of the accused. See State v. Sullivan, 17 Kan. App. 2d 771, 772, 844 P.2d 741 (1993). However, as the central issue is whether an inmate can serve an unrevoked term of postrelease supervision while incarcerated, the only statute requiring judicial construction is K.S.A. 21-4703(p), which defines postrelease supervision. Although it is a criminal statute, interpretation of K.S.A. 21-4703(p) must be reasonable and sen sible to effectuate legislative design and intent. See State v. Sullivan, 17 Kan. App. 2d at 772.
White stresses that because the KPB did not revoke his post-release supervision until 7 months after his reihcarceration, that time vested as credit against his postrelease supervision. The district court also cited the KPB’s delay in revoking White’s post-release supervision as an equitable factor supporting its decision to grant White credit for the time prior to revocation. On the contrary, it makes sense to us that the KPB should wait to revoke until White has been convicted of a new crime. If White had been found not guilty or the charges otherwise dismissed, we assume that the KPB would not have revoked his postrelease supervision nor raised the question of credit for time incarcerated on those new charges. However, in the present case, the fact that the KPB had not yet revoked White’s postrelease supervision does not necessarily mean that White was still serving his term of postrelease supervision.
The United States Supreme Court considered an analogous situation in Zerbst v. Kidwell, 304 U.S. 359, 82 L. Ed. 1399, 58 S. Ct. 872 (1938). In Zerbst, several inmates were paroled before completing their sentences, and while on parole they committed second offenses for which they were convicted and sentenced. The Court rejected the inmates’ contention that they began serving the remainder of their first sentences when they were incarcerated for their second offenses. The Court held:
“When respondent committed a federal crime while on parole, for which he was arrested, convicted, sentenced and imprisoned, not only was his parole violated, but service of his original sentence was interrupted and suspended. Thereafter, his imprisonment was attributable to his second sentence only, and his rights and status as to his first sentence were ‘analogous to those of an escaped convict.’ Not only had he — by his own conduct — forfeited the privileges granted him by parole, but since he was no longer in either actual or constructive custody under his first sentence, service under the second sentence can not be credited to the first without doing violence to the plain intent and purpose of the statutes providing for a parole system.” 304 U.S. at 361.
The Court further held that the inmates’ original sentences were suspended until completion of their new sentences and that the Board of Parole retained discretionary authority to revoke parole until the original sentences were completed. 304 U.S. at 362. See also Evans v. Hunter, 162 F.2d 800 (10th Cir. 1947) (following Zerbst).
Following the rationale of Zerbst, we conclude that White’s post-release supervision was interrupted and suspended by his reincarceration. Thus, although the KPB had not yet revoked his post-release supervision, White was no longer serving postrelease supervision. Therefore the time spent incarcerated did not vest as credit against his postrelease supervision term. See 22-3717(r); 22-3722.
Finally, White raises a new argument regarding his sentence. White contends that Bruce failed to calculate White’s sentence as starting on January 28, 1995, the date set by the district court. According to White, Bruce has intentionally miscalculated the date his sentence begins to effectively deny his jail time credit in contravention of K.S.A. 21-4614.
White’s contention is a mere repetition of his first argument. White bases his entire argument on Bruce’s sentence calculations and, by working backwards, deduces that Bruce has miscalculated the sentence by using a later beginning date. However, White fails to recognize that Bruce’s sentence calculations are based on the theory that White should not receive credit against his postrelease supervision for the time he was incarcerated. In his calculations, Bruce begins White’s sentence on January 28,1995, but only credits his postrelease supervision up to that date. Bruce calculates that White must serve the remainder of his postrelease supervision term upon completion of the first sentence. The disparity in sentence calculations stems from the dispute concerning White’s postrelease supervision. White’s claim of error is founded on his first argument and does not merit independent consideration.
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Knudson, J.:
Edward Ramirez is in the custody of the Secretary of Corrections at the Norton Correctional Facility. Subsequent to an altercation between Ramirez and another inmate, Ramirez was found guilty of disruptive behavior, a class II disciplinaiy violation under K.A.R. 44-12-318. Ramirez was sentenced to 30 days’ loss of privileges and 5 days’ disciplinaiy segregation. The disciplinary segregation was suspended for 120 days. After exhausting his administrative remedies, Ramirez filed a petition for writ of habeas corpus pursuant to K.S.A. 60-1501. The district court issued the writ; thereafter, at a summary hearing, the district court granted judgment in favor of Ramirez. The State has filed a timely appeal. We reverse and direct that the sanctions imposed by the agency be reinstated.
Ramirez approached Pham, a fellow inmate, and asked him if he had told correctional officers that he (Ramirez) had been involved in a previous fight. Pham responded that he did not know what Ramirez was talking about. As Ramirez started to walk away, Pham became highly agitated, threw a chair against a wall, and challenged Ramirez to a fight. Subsequently, disciplinary proceedings were instituted.
At Ramirez’ disciplinary hearing, other inmates testified that Pham lost self-control and started after Ramirez. Nonetheless, the disciplinary hearing officer found Ramirez guilty of disruptive behavior and made the following finding concerning Ramirez: “Officer’s written report [states] this inmate was involved in an incident that resulted in a disruption to the normal routine of the facility. This inmate [Pham] by his own testimony initiated the incident.”
While Ramirez’ administrative appeal was pending before the Secretary of Corrections, Pham gave the following sworn written statement: “I did not understand what was said. I got mad and started yelling at inmate Ramirez because I thought he said something else. I almost started a fight by my actions and inmate Ramirez wanted me to leave him alone.” In Ramirez’ administrative appeal, the Secretary of Corrections concluded that the evidence supported the decision of the hearing officer.
Ramirez then appealed to the district court pursuant to K.S.A. 60-1501. The district court held that there was no evidence in the record to support the findings entered by the disciplinary hearing officer; thus, the disciplinary adjudication was arbitrary and capricious.
Subsequent to the district court’s decision, Sandin v. Conner, 515 U.S. 472, 132 L. Ed. 2d 418, 115 S. Ct. 2293 (1995), was decided, followed by Kansas appellate court decisions in Amos v. Nelson, 260 Kan. 652, 923 P.2d 1014 (1996); Murphy v. Nelson, 260 Kan. 589, 921 P.2d 1225 (1996); and Davis v. Finney, 21 Kan. App. 2d 547, 902 P.2d 498 (1995). All of these cases dramatically changed the landscape of judicial review of disciplinary proceedings within prisons and are dispositive of the issue raised on appeal.
In Amos, Justice Lockett succinctly explained:
“To summarize, Kansas courts will not review an inmate’s claim that he or she was placed in either administrative or disciplinary segregation unless the Due Process Clause has been violated. The threshold test to determine a violation of due process is whether the state laws and regulations structuring the authority of prison officials contain language of an unmistakably mandatory character requiring that certain procedures must be employed and that punishment will not occur absent specified substantive predicates. If this threshold test is met, we examine whether the discipline imposed represents a significant and atypical hardship on the prisoner which was not contemplated within the realm of conditions of the original sentence. If it does not, there is no due process violation. See Davis v. Finney, 21 Kan. App. 2d at 558-59.” (Emphasis added). 260 Kan. at 666.
Amos v. Nelson is an administrative segregation case whereas Davis v. Finney is a disciplinary segregation case. These holdings lead to the inescapable conclusion that in Kansas, even if a statute or regulation mandates that punishment will not occur absent specified substantive predicates, there is no due process violation unless the resulting administrative punishment results in a significant and atypical hardship for the inmate over and above the inmate’s underlying sentence. Whether disciplinary segregation violates due process must be considered on a case-by-case basis. 21 Kan App. 2d at 559.
Although the district court did not have the opportunity to consider whether Ramirez’ loss of privileges for 30 days represented a significant and atypical hardship, under the uncontroverted facts of this case, we do not believe that remand for further hearing is necessary. We hold, as a matter of law, that 30 days’ loss of privileges does not constitute an atypical and significant hardship for purposes of a due process analysis. Cf. 260 Kan. at 602.
In reaching this decision, we are mindful that under K.A.R. 44-6-124(g)(2), good time credits shall be withheld on guilty findings of disciplinary offenses. However, there is no protected iiberty interest in good time credits not awarded. See Frazee v. Maschner, 12 Kan. App. 2d 525, 528, 750 P.2d 418, rev. denied 243 Kan. 778 (1988).
We also note that Ramirez unequivocally states that his claim is not based upon a violation of due process but rather upon the failure of the State to follow K.A.R. 44-13-409, which requires clear and convincing evidence of guilt. Ramirez argues that the district court properly decided whether the agency acted arbitrarily and capriciously. He further argues that our standard of review is limited to determining whether the district court’s decision is supported by substantial competent evidence. This approach is simply, not tenable, even before Sandin v. Conner was decided. A 60-1501 proceeding must include allegations of a constitutional dimension. If an inmate does not assert deprivation of a constitutional right, a district court should grant the State’s request for summary dismissal. Swisher v. Hamilton, 12 Kan. App. 2d 183, 184, 740 P.2d 95, rev. denied 242 Kan. 905 (1987).
Reversed and remanded with directions to reinstate the administrative judgment of the Secretary of Corrections. | [
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Knudson, J.:
Fred Dice, d/b/a Woodtek Termite and Pest Control (Woodtek), appeals from a jury verdict awarding monetary damages resulting from a negligent termite inspection of the residence of Jon and Jean McBride.
After entering into a contract to purchase a home, the McBrides hired Woodtek to inspect the property for termites. Unfortunately, Woodtek inspected the wrong residence. Later, the McBrides discovered extensive termite infestation and damage to their home. Woodtek admitted liability; at the trial, the issue was the nature and extent of the damages as a result of the negligent inspection. The jury awarded the McBrides the following itemized damages;
— Cost of repair........................................ $26,000
— Moving and storage................................... 1,108
— Lodging and increased costs of living......... 8,000
— Termite treatment..................................... 2,500
— Inconvenience and discomfort................. 10,000
TOTAL DAMAGES......................... $47,608
Woodtek first contends that the district court erred in permitting the recovery of nonpecuniary damages for inconvenience and discomfort. We agree and reverse that part of the verdict.
Woodtek further contends that there was insufficient evidence to support the balance of the award made by the jury. We do not agree and affirm the award of pecuniary damages.
Damages for Inconvenience
Whether nonpecuniary damages for inconvenience and discomfort may be recovered is a conclusion of law, and this court’s standard of review is unlimited. Cf. Horsch v. Terminix Int'l Co., 19 Kan. App. 2d 134, 136, 865 P.2d 1044, rev. denied 254 Kan. 1007 (1994) (trial court ruling that jury could include as termite damage the cost of repair and diminution of market value was conclusion of law subject to unlimited appellate review).
The general rule in Kansas for recovery of damages is well known. “[0]ne who commits a tortious act is liable for the injury and loss that are the natural and probable result of his wrongful act.” Foster v. Humberg, 180 Kan. 64, 68, 299 P.2d 46 (1956); Horsch, Kan. App. 2d at 138. The ultimate goal of damages in a tort action is to make the injured party whole again. Kansas Power & Light Co. v. Thatcher, 14 Kan. App. 2d 613, 617, 797 P.2d 162, rev. denied 247 Kan. 704 (1990).
The parties do not disagree with the above general rule but disagree as to its application in this case.
Woodtek argues that the trial court was limited to instructing the jury under PIK Civ. 2d 9.21, which states:
“When the damage is of a temporary nature and is 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
“(a) (plus a reasonable amount to compensate for loss of use of the property while repairs are being made with reasonable diligence)
“(b) (or diminution of the rental value during this time), but not to exceed its fair and reasonable market value before the injury.”
Woodtek further reasons the term “loss of use” as used in PIK Civ. 9.21 is restricted to pecuniary damages such as lodging, increased costs of meals, and other daily expenses while repairs are made. Woodtek concludes that nonpecuniary damages for inconvenience and discomfort are not allowable damages.
On the other hand, the McBrides, relying upon the rule in Foster, argue that they are entitled to recover monetary damages for all of the natural and probable consequences of Woodtek’s negligent termite inspection, including inconvenience and discomfort. Placed in context, the McBrides maintain:
“The $10,000 compensatory damages allowed by the jury was for the inconvenience and hardship the plaintiff [sic] and their family would experience in the loss of their home for a period of three months. Plaintiffs and their two daughters, ages 15 and 10 will have to remove all of the furniture and contents from their home and live out of suitcases in a motel for a considerable period of time.”
While we have a natural empathy for the McBrides under the above circumstances, we do not believe that an award for inconvenience and discomfort can be upheld.
In Anderson v. Rexroad, 180 Kan. 505, 306 P.2d 137 (1957), the plaintiffs’ house and household furnishings were totally destroyed by fire which resulted when a bulldozer struck and ruptured a natural gas pipeline. In its discussion regarding the measure of damages, the court stated:
“Generally speaking, there may be a recovery for the loss of use of property, providing the use is a lawful one and the damages are established with reasonable certainty (25 C.J.S., Damages, § 41, pp. 514,515), and, where propertyis attached to land, such as was plaintiffs’ dwelling, and it is damaged or destroyed, the owner is entitled to damages, which may not exceed the value of the property, for his loss of use or for loss of rental up to the time when, with ordinary diligence, it could have been restored, whether in fact it was restored or not. The value of its use is not the mere value of its intended use but of its present potential use whether availed of by its owner or not (15 Am. Jur., Damages, § § 129, 131, 132, pp. 537, 540, 541).” 180 Kan. at 513.
The Anderson court approved the trial court’s permitting the juiy to determine plaintiffs’ loss of use by ascertaining the monthly rental value of their residence.
Under the holding in Anderson, we conclude that the McBrides’ damages in this litigation should have been limited to pecuniary damages and that it was reversible error for the trial court to permit consideration and allowance of damages for inconvenience and discomfort during the period of repairs. The McBrides could have included in their claim for loss of use the reasonable rental value of their residence and household furnishings during the time which they were required to live elsewhere, but they chose not to do so.
Pecuniary Damages Awarded
Woodtek argues that there was insufficient evidence to support the jury verdict awarding the McBrides $8,000 for lodging and increased costs of living and $1,250 for future termite treatment.
This court’s standard of review is limited to determining whether “the evidence, with all reasonable inferences to be drawn therefrom, when considered in the light most favorable to the prevailing party, supports the verdict.” Wisker v. Hart, 244 Kan. 36, 37, 766 P.2d 168 (1988).
We have reviewed the record on appeal and carefully considered the arguments made by counsel. We conclude that there is substantial competent evidence in the record to support the jury’s verdict upon each item of pecuniary damage.
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Smith, J.:
Appellant Ralph D. Heck appeals an order of the district court granting summary judgment in favor of the defendant, Deborah J. Archer. We affirm in part, reverse in part, and remand for trial on the remaining issues.
This interlocutory appeal involves payable-on-death (POD) accounts owned by Ralph H. Heck, now deceased. Heck had four children, Ralph D. Heck, Christopher Heck, Brad Heck, and Deborah J. Archer. Ralph brought an action in equity seeking a division of these POD accounts among all of the children. Deborah was named as beneficiary by Heck on all of the accounts and resists Ralph’s claim for relief.
Ralph brought an action in the district court seeking to impose a constructive trust for the benefit of all the children on his father’s POD accounts. Ralph based his prayer for equitable relief upon three theories; undue influence; fraud, actual or constructive; and equitable estoppel. The district court found no genuine issues of material fact and granted summary judgment in favor of Deborah as a matter of law. The court concluded there was insufficient evidence Heck intended his sons to have any portion of the POD accounts. The court found there was no evidence that Heck had been of unsound mind at the time he established the accounts and no evidence that Deborah exerted any undue influence over Heck. Finally, the court held there was insufficient evidence to establish any collateral agreement between Deborah and her father that she would distribute the POD accounts among tire children upon her father’s death. The district court found that even if Heck had told his sons that Deborah would divide the accounts among all of the children, those statements were not sufficient to create a constructive trust.
Ralph’s petition named Deborah and the financial institutions where the POD accounts were deposited as defendants. Deborah counterclaimed against Ralph and filed a third-party action against Chris. After the financial institutions interpled and deposited their remaining funds with the district court, they were dismissed from the action. Since the counterclaim is still pending, Ralph’s appeal is pursuant to K.S.A. 60-254(b) and is timely.
Ralph’s sole issue on appeal is whether the district court erred in granting summary judgment in favor of Deborah. This issue must be addressed separately as to each claim for relief.
The applicable standard of review is well known:
“Summary judgmen proper if 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 summary judgment as a matter of law. K.S.A. 60~256(c). If reasonable minds could differ as to the conclusions drawn from the facts, summary judgment must be denied. [Citations omitted.] When a summary judgment is challenged on appeal, this court must read the record in the light most favorable to the party defending against the motion. [Citation omitted.] Once the moving party has properly supported the motion for summary judgment, the nonmoving party must come forward with specific facts showing a genuine issue for trial. [Citation omitted.]” Moorhouse v. City of Wichita, 259 Kan. 570, 575-76, 913 P.2d 172 (1996).
A review of the record in the light most favorable to Ralph would establish the following facts:
Heck lived near Ralph in St. Louis, Missouri, until late 1988. He then moved to Olathe, Kansas, near Deborah. Heck lived with Deborah for nearly 2 years. He then lived on his own outside of Deborah’s residence until his final hospitalization in early 1993.
Heck opened several bank accounts in Kansas and Missouri with funds exceeding $300,000. He was the sole owner of the accounts but they were to be “payable on death” to Deborah. There were no other significant assets in Heck’s estate.
It appears one account may have been opened in August 1991. This was nearly a year after Heck moved out of Deborah’s home. There is no evidence as to when the other accounts were established.
Heck died intestate in Olathe, Kansas, on February 12, 1993. Ralph, Christopher, Brad, and Deborah were his sole surviving heirs. Prior to his death, Heck had been hospitalized with a serious illness and Deborah had been appointed his guardian. Shortly after the guardianship was established, Heck died. Ralph challenged Deborah’s actions as guardian, which were the subject of a prior appeal to this court. See In re Guardianship and Conservatorship of Heck, 22 Kan. App. 2d 135, 913 P.2d 213 (1996).
In the months following his death, Deborah treated the funds in the POD account's as her own.
Ralph maintains it was error to grant summary judgment because there is a genuine issue of material fact as to whether Deborah was named as the only beneficiary on the POD accounts as a result of undue influence or an agreement she made with Heck that she would, upon his death, divide the funds among all four siblings. Ralph suggests deposition testimony creates this genuine material issue.
In his deposition, Chris testified Heck told him approximately one and one-half months before his death, “I want to do what’s right, and your sister will make sure everything is divided even amongst kids . . . Debbie is going to take care of everything.”
Following Chris’ visit with his father, Chris asked his sister Deborah about the statement made by their father that “[h]e is dying and that his estate is going to be divided amongst the children.” In response, Chris testified that Deborah acknowledged, ‘Tes, that’s what he wants.”
Chris further testified that on a separate occasion, Deborah told him she knew Heck wanted the estate divided “amongst the kids” and that is what she would do if something happened to him.
Brad testified in his deposition that just prior to Heck’s death, Deborah told him that their father arranged with her to have all of his property and the monies in his various accounts, divided equally among the four children, but that Deborah was to subtract monies Heck had loaned Ralph and Chris.
Brad also testified that in the late evening following Heck’s funeral, Deborah spoke by telephone with Brad and Chris. During the conversation, Deborah said that she would give Chris his share when she felt he was ready to handle it, but she did not feel he was ready yet. Brad also stated that Deborah told Chris that she would split the property with Chris, but that the other brothers, Ralph and Brad, should not get anything.
Other portions of the discovery record establish that Deborah knew where Heck’s various bank accounts were, drove him to the bank at times, and had a key to Heck’s safety deposit box for 2 years prior to his death.
“A POD account is a contract whereby funds are deposited in a financial institution for the benefit of another and payable upon the death of the depositor to the named beneficiary. The depositor retains direct control over the account.” McCarty v. State Bank of Fredonia, 14 Kan. App. 2d 552, 557, 795 P.2d 940 (1990). POD accounts are very similar to Totten trusts in that they have the same effect. They are distinguishable only on the basis that POD accounts are based on contract rather than trust principles. In re Estate of Morton, 241 Kan. 698, Syl. ¶ 8, 769 P.2d 616 (1987).
Undue influence
The first issue for this court to consider is whether the district court’s order granting the defendant summary judgment on plaintiff’s claim of undue influence was proper.
POD accounts are statutorily authorized by K.S.A. 9-1215, K.S.A. 17-2263, and K.S.A. 17-5828. These statutes provide for POD accounts at banks, credit unions, and savings and loan institutions, respectively. All three statutes contain the following provision: “Transfers pursuant to this section shall not be considered testamentary or be invalidated due to nonconformity with the provisions of chapter 59 of the Kansas Statutes Annotated.”
Plaintiff argues that despite this statutory language, a POD account is a will substitute and as such, the equitable common-law principles applicable to will contests apply. In support of this position, he relies on In re Estate of Waitkevich, 25 Ill. App. 3d 513, 323 N.E.2d 545 (1975).
The guiding principles applicable to a claim of undue influence contesting contracts, inter vivos gifts, and wills are nearly identical. All share certain rules applicable to this action whether the POD accounts are considered “will substitutes,” contracts, or a gift.
To establish undue influence sufficient to avoid a testamentary act, the party challenging the act must show “such coercion, compulsion and restraint as to destroy the testator’s free agency, and by overcoming his power of resistance, obliges or causes him to adopt the will of another rather than exercise his own.” In re Estate of Brodbeck, 22 Kan. App. 2d 229, 242, 915 P.2d 145 (1996) (quoting In re Estate of Hall, 165 Kan. 465, 470, 195 P.2d 612 [1948]). For undue influence to vitiate a contract or inter vivos transfer, it must be proved that at or about the execution of the contract or transfer, there was an influence bearing upon the will of the contracting party or grantor so potent as to destroy his or her free agency and to substitute the will of another. Hotchkiss, Administrator v. Werth, 207 Kan. 132, 141, 483 P.2d 1053 (1971); Cersovsky v. Cersovsky, 201 Kan. 463, 467, 441 P.2d 829 (1968).
Undue influence, in order to overcome a testamentary act, “must directly affect the testamentary act itself.” In re Estate of Bennett, 19 Kan. App. 2d 154, 163, 865 P.2d 1062 (1993), rev. denied 254 Kan. 1007 (1994). Similarly, it must directly affect the execution of a contract. 201 Kan. at 467.
Undue influence is a species of fraud. Fraud is never presumed but must be shown by clear, satisfactory, and convincing evidence. In re Estate of Bennett, 19 Kan. App. 2d 154, Syl. ¶ 2. See also In re Adoption of Irons, 235 Kan. 540, 684 P.2d 332 (1984) (action to set aside consent to adoption); Curtis v. Freden, 224 Kan. 646, 652, 585 P.2d 993 (1978) (action to set aside deed); Nelson, Administrator v. Dague, 194 Kan. 195, 196, 398 P.2d 268 (1965) (action to set aside inter vivos transfer).
The existence of a confidential or fiduciary relationship would have the same effect irrespective of whether the POD accounts are considered “will substitutes” or contracts.
“A presumption of undue influence is not raised and the burden of proof shifted by the mere fact that the beneficiary of a will occupied a confidential or fiduciary relationship with the testator or testatrix. Such a presumption is raised and the burden of proof shifted, however, when, in addition to the confidential relationship, there exists suspicious circumstances.” Bennett, 19 Kan. App. 2d 154, Syl. ¶ 4.
See In re Adoption of Irons, 235 Kan. 540, Syl. ¶ 4; In re Estate of Brown, 230 Kan. 726, 732, 640 P.2d 1250 (1982).
A confidential or fiduciary relationship refers to “ ‘any relationship of blood, business, friendship, or association in which one of the parties reposes special trust and confidence in the other who is in a position to have and exercise influence over the first party.’ ” Bennett, 19 Kan. App. 2d at 167.
There is no judicial laundry list or exact definition of what constitutes suspicious circumstances. A determination of suspicious circumstances must be made on a case-by-case basis. 19 Kan. App. 2d 154, Syl. ¶ 5.
Ralph argues there is a genuine issue of material fact as to whether a confidential relationship existed between Deborah and their father. If a confidential relationship did exist in conjunction with suspicious circumstances, the burden to prove a lack of undue influence would have shifted to Deborah, making summary judgment against Ralph improper. The district court did not make a specific determination of whether such a relationship existed. Instead, it appears the court simply found no suspicious circumstances suggesting Deborah exercised any undue influence at the time the accounts were established.
The record establishes that Deborah knew where Heck’s various bank accounts were, that she drove her father to the bank at times to transact business, and that she had a key to his safely deposit box 2 years prior to his death. There was no evidence that she convinced her father to establish the POD accounts or to name her as sole beneficiary. Other than driving him to the bank, there was no evidence that Deborah even accompanied her father into the bank. There was no evidence Deborah accessed her father’s safety deposit box any time prior to his death. The record is void of any evidence that Deborah suggested that Heck establish the accounts in the manner that he did. In fact, the record is completely silent as to the date all but one of the accounts was established. This account was established nearly a year after Heck moved out of Deborah’s home. The mere relationship of parent and child does not raise a presumption of a confidential relationship. Curtis v. Freden, 224 Kan. at 651.
In Brodbeck, this court noted that a party’s ability and opportunity to exercise undue influence over a testator, by itself, is not sufficient to overcome a properly supported motion for summary judgment. The court held that “ ‘[p]ower, opportunity, and purpose to exercise undue influence, or possibility, conjecture, surmise and suspicion that undue influence had induced a will, alone cannot authorize the inference that such influence has in fact been exercised. . . .’ [Citation omitted.]” 22 Kan. App. 2d at 241.
Even reading the record in the light most favorable to Ralph, the facts do not establish a confidential relationship or suspicious circumstances. There is no evidence Deborah substituted her will for that of Heck’s or that anything that Deborah did directly affected the creation of the POD accounts when they were established.
The district court’s order, to the extent it granted summary judgment on Ralph’s undue influence claim, is affirmed.
Constructive trust
Ralph’s second claim for equitable relief is based on the theory of constructive trust. He asserts that Deborah, either by actual or constructive fraud, led her father to establish and/or maintain her as the beneficiary on the POD accounts with the representation that she would divide the funds among the siblings. Ralph maintains that this fraud results in a constructive trust for the benefit of all four heirs, which Deborah is equitably estopped from denying.
The district court placed considerable significance on the fact there was no writing evidencing Heck’s intent to divide the POD accounts among the siblings, or any direct evidence of the existence of such an agreement between him and Deborah. In its discussion of the law as applied to the facts, the trial court stated:
“The statute of frauds can only be set aside in transactions where its enforcement will permit the perpetration of that which it was intended to prevent. There is no serious disagreement among the authorities upon this subject. Any confusion between the authorities arises not so much upon the legal rule as to when a trust arises, but rather upon whether or not the facts of the given case justify this equitable intervention. Gemmel, 76 Kan. at 586.
“The written contracts, between the decedent and the various Banks, naming the defendant as the third party beneficiary, is evidence of the Decedent’s intent at the time of their creation. Winsor, 209 Kan. at 302. There is no other written document which would establish that the decedent intended to treat his children alike.. . .
“The above referenced cases resolve for the court the principle that statements alone, made by the defendant and the decedent, are not sufficient to impose the equitable remedy of a constructive trust. The Kansas court in Clester v. Clester, 90 Kan. 638 [135 Pac. 996 (1914)] provides further support for this contention.”
The logical extension of this analysis is that without a writing evidencing intent of the decedent/testator or direct evidence of the fraud, there can be no equitable relief in the form of a constructive trust.
Clester was an action by the children of a first marriage seeking to impose a constructive trust on real estate titled in the name of their father s second wife. A portion of the real estate was purchased with an inheritance their mother received prior to her death. At the time their father died, the real estate was titled in the name of their father’s second wife. In discussing the evidence, the Supreme Court stated:
“[T]here was some evidence that subsequent to the conveyances she made statements and admissions to the effect that she held the title in trust; that she stated at one time that she knew that the money with which the land was purchased came from the first wife; again that she said it was her intention sometime to pay to the appellants their mother’s share. There was evidence that after the conveyances John Clester continued to exercise the same control and management of the lands as before; and a witness testified to having heard him say that he intended to fix matters so that appellants would get the land. . . .
“The weakness in appellants’ claim is the absence of any testimony to show an agreement at the time the conveyances were made by which Ida M. Clester was to hold the land in trust for the husband. Had there been testimony that such was the agreement, the case might be said to fall within the provisions of section 8 of the act relating to trusts and powers (Gen. Stat. 1909, § 9701), and even though the agreement had been oral it would he within the province of equity to raise a trust to prevent a failure of justice (Rayl v. Rayl, 58 Kan. 585, 589, 50 Pac. 501, and cases cited in the opinion). But there was no testimony showing any promise or agreement or understanding at the time the conveyances were made that she should hold in trust for him.” (Emphasis supplied.) 90 Kan. at 640-41.
The Clester court placed great emphasis on the fact that there was substantial evidence indicating that the conveyance of the real estate was a gift, that the transfer was an absolute conveyance of real estate between husband and wife, and that there was no evidence whatsoever as to what the father’s intention was and nothing from which a fair inference could be drawn that he intended to convey the property to his wife to be held in trust for the benefit of others. 90 Kan. at 642-43.
The Clester analysis of the evidence of proof necessary to establish a constructive trust was visited in Hile v. DeVries, 17 Kan. App. 2d 373, 836 P.2d 1219 (1992). In that case, the appellant relied on the language in Clester that states a constructive trust cannot be imposed absent fraud. 17 Kan. App. 2d at 374. In Hile, this court pointed out a seemingly inconsistent rule also cited in Clester-. “But Clester also states that a constructive trust will arise wherever the circumstances under which the property was acquired make it inequitable that it should be retained by the person who holds the legal title.’ ” 17 Kan. App. 2d at 374 (quoting Clester, 90 Kan. at 642). The apparent inconsistency between these two equitable principles was reconciled in the recent case of Kampschroeder v. Kampschroeder, 20 Kan. App. 2d 361, 364, 887 P.2d 1152 (1995). After reiterating the general requirement that fraud is necessary to justify imposition of a constructive trust, the Kampschroeder court discussed in detail the essential elements:
“An essential element of proving a constructive trust is a showing of fraud. However, there are two types of fraud, actual and constructive.
'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. . . .’ [Citation omitted.]
“Absent actual fraud, there are two additional elements which are required to be proven. First, there must be a confidential relationship. Secondly, the confidence reposed must be betrayed, or a duty imposed by the relationship must be breached. [Citation omitted.]” 20 Kan. App. 2d at 364-65.
Although we have concluded there can be no confidential/fiduciaiy relationship existing between Deborah and Heck in the context of a claim of undue influence, such a relationship in the context of constructive fraud is determined by a different standard.
In the context of its own facts, Kampschroeder discussed the standards of proof necessary to show a confidential relationship and proof of a fraudulently induced agreement sufficient to establish a constructive trust.
“The element of a confidential relationship is shown by the evidence. Under the trial court’s construction of the facts, Robert and Norma entered into an agreement in which each relied on the survivor to see that the assets were properly distributed. Robert placed trust and confidence in Norma to see that Errol Joe received the proper distribution of assets, and it would be inequitable to permit her to disregard the terms of that agreement.” 20 Kan. App. 2d at 366.
For the purposes of imposing a constructive trust, a confidential relationship can be based on an agreement between the owner of properly and another who will distribute the owner s property in a specified manner upon the owner’s death. This agreement can be established by circumstantial evidence. Evidence from the owner as to his or her understanding of the agreement and independent evidence from the recipient of the property that such an agreement exists are considered direct proof of the agreement:
“Norma and Shenyl suggest that there was no direct evidence of an agreement between Robert and Norma. However, we note that in the recorded conversation between Norma and Errol Joe’s wife, Norma acknowledges the existence of some understanding between her and Robert and indicates that in order to carry out that understanding, she must separate Robert’s assets from her own. We consider this to be direct evidence of the existence of the agreement. Indeed, circumstantial evidence may be used to prove the existence of an agreement. Staab v. Staab, 160 Kan. 417, 419,163 P.2d 418 (1945).” 20 Kan. App. 2d at 365-66.
Even though fraud must be proved by clear and convincing evidence, a party resisting a motion for summary judgment need not present that quantum of proof in resisting the motion. Gorham State Bank v. Sellens, 244 Kan. 688, 691, 722 P.2d 793 (1989); Credit Union of Amer. v. Myers, 234 Kan. 773, Syl. ¶ 7, 676 P.2d 99 (1984).
In viewing the evidence in the light most favorable to Ralph, the record reflects evidence of Heck’s desire to divide his estate between Deborah, Ralph, Brad, and Chris. There is evidence that Heck believed Deborah would follow his directives. Further, there is evidence that Deborah understood Heck’s intention and that she intended to comply therewith. Whether this is sufficient evidence to establish that Deborah led Heck to establish or maintain her as the beneficiary on the POD accounts with the representation that she would distribute those accounts in a specified manner is a genuine issue of material fact. Whether Deborah’s knowledge of her father’s desire and belief that she would divide the accounts and her subsequent failure to speak amounts to constructive fraud by omission or silence is also a genuine issue of material fact. The granting of summary judgment as to Ralph’s claim of constructive trust was improper. The case is therefore reversed and remanded to the district court for trial on Ralph’s equitable claim of constructive trust.
We affirm the district court as to summary judgment on the claim of undue influence and reverse and remand to the trial court for further proceedings consistent with this opinion as to summary judgment on the claim of constructive trust.
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PlERRON, J.:
Michael G. Nance appeals from an order of the Workers Compensation Board (Board) denying his request for review and modification pursuant to K.S.A. 44-528 and finding he failed to prove by a preponderance of the evidence that his worsened condition was related to his industrial injury of April 20,1990. We reverse.
The parties do not dispute that Nance was injured while working within the course and scope of his employment with Harvey County on April 20,1990. Northwestern National Insurance Group is Harvey County’s insurer.
Harvey County paid Nance compensation for temporary total disability and medical treatment/benefits. On February 14, 1994, the administrative law judge (ALJ) found that Nance sustained a 9% permanent partial general bodily disability as a result of his injuries. Nance requested a review by the Board. On July 28,1994, the Board found Nance had sustained only a 3.5% permanent partial impairment to the body as a whole on a functional basis.
Nance appealed to this court, arguing only against the constitutionality of the Board. Pursuant to Sedlak v. Dick, 256 Kan. 779, 887 P.2d 1119 (1995), we sustained Nance’s appeal, vacated the Board’s decision, and remanded the case to the newly constituted Board for a rehearing. Nance v. Harvey County, unpublished opinion No. 72,462, filed September 22, 1995. On November 9, 1995, the Board adopted its previous decision that Nance sustained a 3.5% permanent partial functional impairment.
During the pendency of his first appeal, Nance filed a motion for post-award medical treatment on July 21, 1994. The ALJ granted Nance’s motion, and he received treatment from Dr. Anthony G.A. Pollock.
On January 27, 1995, Nance filed a motion for review and modification, alleging that his functional impairment and work disability had increased since the original award. Nance submitted the testimony of Dr. Pollock and Jerry Hardin for supporting evidence. Pollock testified concerning Nance’s functional impairment. Hardin testified concerning Nance’s loss of ability to perform work in the open labor market and ability to earn comparable wages. Harvey County did not submit any evidence. The ALJ issued an award increasing Nance’s permanent partial general bodily disability to 50%, finding: “The only evidence offered on the issues herein is that offered by claimant. The opinions of Dr. Anthony G. A. Pollock and of Mr. Jerry D. Hardin are found to be reasonable, are not improbable, are not contradicted and therefore are adopted as fact.”
Harvey County filed for review before the Board. The Board reversed the award, concluding that Nance failed to prove by a preponderance of credible evidence that his worsened condition was related to the injury he suffered on April 20,1990, and denied his request for review and modification.
Nance argues the Board committed reversible error when it concluded he failed to prove by a preponderance of the evidence that his worsened condition was related to this injury on April 20,1990.
The 1993 workers compensation amendments limited review of all orders issued after October 1,1993, to questions of law. K.S.A. 44-556(a). Whether the Board’s findings of fact are supported by substantial competent evidence (K.S.A. 77-621[c][7]) is a question of law. See Guerrero v. Dold Foods, Inc., 22 Kan. App. 2d 53, Syl. ¶ 1, 913 P.2d 612 (1995).
K.S.A. 44-556 provides that workers compensation appeals are subject to the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. The relevant scope of review is set forth in K.S.A. 77-621(c)(7):
“(c) The court shall grant relief only if it determines any one or more of the following:
(7) The agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act.”
In a workers compensation appeal, substantial evidence is “evidence possessing something of substance and relevant consequence and carrying with it fitness to induce conviction that the award is proper, or furnishing substantial basis of fact from which the issue tendered can be reasonably resolved.” Angleton v. Starkan, Inc., 250 Kan. 711, Syl. ¶ 3,828 P.2d 933 (1992). Additionally, this court may not reweigh the evidence presented at the agency hearing or determine the weight or credibility' of the witnesses’ testimony. See City of Wichita v. Employment Security Bd., 13 Kan. App. 2d 729, 733, 779 P.2d 41 (1989).
“In a workers compensation case, if evidence is presented that is uncontradicted, and not improbable, unreasonable, or shown to be untrustworthy, the finder of fact cannot disregard this evidence. Uncontradicted evidence should generally be regarded as conclusive. Demars v. Rickel Manufacturing Corporation, 223 Kan. 374, 380, 573 P.2d 1036 (1978).” Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 285, 887 P.2d 140 (1994).
Harvey County argues our standard of review is based upon a review of a negative finding. It indicates the Board found Nance had failed to sustain his burden of proof, namely, demonstrating by a preponderance of the evidence that his worsened condition was related to his workers compensation injury. As a result; Harvey County contends our standard of review is as follows:
“ ‘The effect of a negative finding by a trial court is that the party upon whom the burden of proof is cast did not sustain the requisite burden. Absent arbitrary disregard of undisputed evidence or some extrinsic consideration such as bids, passion or prejudice the finding of the trial judge [now the Workers Compensation Board] cannot be disturbed. An appellate court cannot nullify a trial judge’s disbelief of evidence nor can it determine the persuasiveness of evidence which the trial judge may have believed.’ [Citation omitted.]” Mohr v. State Bank of Stanley, 244 Kan. 555, 567-68, 770 P.2d 466 (1989).
K.S.A. 44-528 permits modification of awards in order to conform to changed conditions. This statute was intended to permit modification of awards when the condition of an injured employee either improves or worsens after the original hearing and award. See Brandt v. Kansas Workers Compensation Fund, 19 Kan. App. 2d 1098, Syl. ¶ 2, 880 P.2d 796, rev. denied 256 Kan. 994 (1994). A modification for changed conditions cannot be made without comparing a claimant’s condition at the time of the award with the condition at the time the modification is sought. Gile v. Associated Co., 223 Kan. 739, 741, 576 P.2d 663 (1978). K.S.A. 1996 Supp. 44-501(a) provides that a claimant shall have the burden to prove the right to an award of compensation and to prove the various conditions on which that right depends.
In overruling Nance’s award from the ALJ, the Board stated:
“The only medical evidence dealing with claimant’s increased symptomatology comes from Dr. Anthony Pollock. Dr. Pollock, a board-certified orthopedic surgeon, had the opportunity to examine and treat claimant both for the 1990 injury and for the 1994 condition. While he noted the MRIs performed on claimant in October,. 1994 showed a definite increase in the-disc herniation at L5-S1, Dr. Pollock had significant difficulty attributing this progressive condition to claimant’s 1990 injury. He was asked specifically the cause of this increased condition and testified at various places in the transcript that the condition was caused by progressive degenerative disc disease, or possibly from the natural aging process; in another place he testified that he did not know what the cause was but he felt it may be the natural aging process; and finally he testified that he was. not sure if it was caused by the injury or the natural aging process. The Appeals Board finds Dr. Pollock cannot relate claimant’s worsened condition to the 1990 work-related injury.”
We note there appears to be no evidence in the record that Dr. Pollock treated Nance in 1990. It was Dr. Poole who treated Nance in 1990. Pollock first saw Nance on June 22, 1994.
Nance argues the only testimony presented on this issue was that of Dr. Pollock, which supported his position. Nance contends Dr. Pollock testified that: (1) there was no evidence that Nance had any injury to, or aggravation of, his lower back after April 20, ■1990; (2) Nance’s lower back condition, i.e. herniation of his L5-S1 disc and accompanying degenerative disc disease, had significantly worsened since Dr. Poole saw Nance in 1990; (3) Nance experienced the same problems now that he had had after his injury except the condition was worse; and (4) the herniated disc and condition of Nance’s lower back were expected to deteriorate and that was most likely what had occurred. Nance argues this testimony was not shown to be unreliable or unreasonable and, therefore, the Board was required to adopt it since it was uncontroverted.
Harvey County responds that Dr. Pollock’s testimony was insufficient to sustain Nance’s burden of proof. It argues the Board did not arbitrarily disregard undisputed evidence and therefore the decision should be affirmed based on the Board’s negative finding. When Dr. Pollock saw Nance on June 22, 1994, over 4 years had elapsed since Nance’s injury in 1990 and over 1 year since Nance had started work at Ritchie Building. At Ritchie, Nance performed general cleanup and labor, including bending, squatting, stooping, repetitive motions with a broom, and picking up trash.
Harvey County cites other evidence as well. Dr. Pollock testified that the objective signs of Nance’s increased injury were not impressive. Dr. Pollock said that during the examination, Nance’s major complaint was constant lower back pain, but he was able to stand up quickly from a chair with relatively little discomfort and could move from a lying position to the sitting position with his legs straight in front of him. Nance had no weaknesses that Dr. Pollock could demonstrate and Nance’s reflexes did not suggest any nerve root pressure. Dr. Pollock also testified that Nance’s subjective complaints were inconsistent with the MRI finding in that Nance complained of right leg and right side pain, but the MRI indicated that 99% of the time the pain should be on the left side.
Harvey County strongly emphasizes Dr. Pollock’s testimony that he was unable to state with absolute certainty what caused the changes or symptoms. Dr. Pollock agreed that Nance’s back problem could have resulted from an injury, the natural aging process, or a combination of those things. Harvey County also points out that Dr. Pollock gave Nance a 7% permanent partial impairment rating, the same rating given by Dr. Schlachter in Nance’s original award.
In its brief, Harvey County repeats all the Board’s findings that the record was replete with evidence of Nance’s misrepresentation, lack of effort, and several doctors’ testimony that Nance was “working the system.” In its original award, the Board found:
“The Appeals Board finds that claimant’s attitude, potential misrepresentation and apparent lack of effort creates an unreliable record from which to assess the claimant’s abilities in either performing work in the open market or earning comparable wages. The opinion of two qualified treating physicians that claimant was intentionally attempting to mislead them, coupled with the security testimony provided by Barbara Steil of Silver Hawk Investigators and claimant’s attempted manipulation when tested on the Cybex machine, creates a record so clouded as to make it impossible to assess what, if any, work disability may or may not exist in this matter.”
It is undisputed that Nance’s condition has worsened. Dr. Pollock testified that a comparison of the 1990 MRI and the 1994 MRI showed Nance’s condition had significantly worsened. The Board did not arbitrarily disregard this evidence, but rather specifically noted that a comparison of the MRIs “showed a definite increase in disc herniation.” The Board hung its hat on the fact that Dr. Pollock had significant difficulty attributing the progressive condition to Nance’s 1990 injury. As a result, Harvey County argues the lack of causation is clearly supported by Dr. Pollock’s testimony.
Nance maintains the Board erred in finding he had not proved that the worsening of his lower back condition was the natural and probable consequence of his injury of April 20, 1990. In Adamson v. Davis Moore Datsun, Inc., 19 Kan. App. 2d 301, Syl. ¶ 6, 868 P.2d 546 (1994), the court stated:
“When a primary injury under the Workers Compensation Act is shown to have arisen out of the course of employment every natural consequence that flows from the injury, including a new and distinct injury, is compensable if it is a direct and natural result of the primary injury.”
Under the direct and natural consequence rule, Nance cites several Kansas cases where the courts have held that an award for permanent partial general bodily disability was proper where the evidence supported the trial court’s finding that the injury to the claimant’s leg caused not only disability of the leg but also a disability of the back which was a direct and natural consequence of the physical damage to the leg. See Reese v. Gas Engineering & Construction Co., 219 Kan. 536, Syl. ¶ 4, 548 P.2d 746 (1976); Chinn v. Gay & Taylor, Inc., 219 Kan. 196, Syl. ¶ 5, 547 P.2d 751 (1976); Bergemann v. North Central Foundry, Inc., 215 Kan. 685, 687, 527 P.2d 1044 (1974); see also Berger v. Hahner, Foreman & Cale, Inc., 211 Kan. 541, 506 P.2d 1175 (1973) (recovery for traumatic neurosis traceable to eye injury). But see Stockman v. Goodyear Tire & Rubber Co., 211 Kan. 260, Syl. ¶ 1, 505 P.2d 697 (1973) (no recovery where facts disclose a new and-separate accidental injury caused the increased disability).
Nance cites several cases interpreting the natural and probable consequence rule, the majority of which are factually distinguishable because they concern a second or subsequent injury.
In Mendota Twp. High Sch. v. Indus. Comm'n, 243 Ill. App. 3d 834, 612 N.E.2d 77 (1993), the court stated the general principle that the fact that other incidents, whether work related or not, may have aggravated a compensable condition are irrelevant as long as they do not constitute intervening causes. See Intermountain Health v. Bd. of Review, 839 P.2d 841, 847 (Utah App. 1992); Blackwell v. Bostitch Div. of Textron, 591 A.2d 384 (R.I. 1991) (subsequent injury or aggravation is compensable so long as it is clear that the real operative factor is the progression of the compensable injury); Home Ins. Co. v. Logan, 255 Ark. 1036, 1038, 505 S.W.2d 25 (1974) (aggravations of original disability from everyday activities such as walking, tying a shoe, or turning over in bed are compensable in absence of an independent intervening cause).
Of importance, Nance cites International Taper Co. v. Tuber-ville, 302 Ark. 22, 786 S.W.2d 830 (1990). In Tuberoille, the claimant injured his back in 1969 and again in 1970. A physician found the claimant had an anatomical impairment at 25% to the body as a whole. In 1972, the Arkansas Workers’ Compensation Commission (AWCC) awarded the claimant permanent partial disability benefits of 55%. In 1984, the claimant’s physician increased the anatomical impairment to 40% as a whole, and the claimant requested an increase in the disability award. The AWCC concluded that the claimant’s increased or changed physical condition was caused by the natural course of aging. The claimant’s physician testified that the claimant’s condition was a progression of the preexisting condition. The physician also testified the claimant’s condition resulted from a “gradual process of aging”, “the aging process,” or “Mother Nature — you know, aging.” 302 Ark. at 25-27. The AWCC stated:
“ ‘The real issue in this case is the cause of the claimant’s subsequent problems. If the problems were caused as a natural probable result of the original injury then the claimant has established a causal connection between his change in physical condition and the original injury. However, if the subsequent problems are caused by the natural process of aging, then they are not compensable. In order for a worker’s disability to be compensable there must be a causal connection between the accident and a risk which is reasonably incident to the employment. Gerber Products v. McDonald, 15 Ark. App. 226, 691 S.W.2d 879 (1985). The process of aging is not a risk reasonably incident to employment; rather, it is an inevitable part of each individual’s life. Therefore, physical problems caused by the natural process of aging are not compensable under the workers’ compensation law of this state. To hold otherwise would literally open the door for any claimant who has ever received an award of workers’ compensation benefits to reopen his case and receive additional benefits based simply upon the process of aging.’ ” 302 Ark. at 27-28.
The Arkansas Court of Appeals reversed the AWCC’s decision, stating that the physician’s testimony
“ ‘clearly expresses his opinion that the appellant’s worsened condition resulted from the natural process of aging acting upon the appellant’s prior, compensable injurtj. Unless the testimony is read wholly out of context, no other conclusion is possible. We hold that fair-minded persons with these facts before them could not conclude that the appellant’s worsened condition was attributable entirely to the natural process of aging, and that the Commission’s finding to that effect is not supported by substantial evidence. [Emphasis in original.]’ ” 302 Ark. at 28.
The Arkansas Supreme Court in Tuberville agreed with the Court of Appeals that the AWCC erred in interpreting the only evidence before it as showing that claimant’s increased impairment was due solely to the aging process. The court stated the Court of Appeals reviewed the testimony and correctly held that fair-minded persons could not read it and conclude anything but that it was the industrial injury combined with the aging process which caused the expenses for which compensation was being sought. The court found the only evidence showed clearly that the claim was predicated upon a showing that the increased disability was a natural consequence flowing from the previous injuries. As a side note, the Tuberville court disagreed with the AWCC’s opening the flood gates argument. 302 Ark. at 28-29.
The dissent in Tuberville would have upheld the decision of the AWCC. The dissent determined that based on the evidence, fair-minded persons could have reached the conclusions arrived at by the AWCC. The dissent criticized the majority for focusing on the employer’s failure to inquire of the claimant’s physician whether the aging process would have produced the claimant’s condition absent the previous injury and resulting surgery. Rather, the dissent switched blame to the claimant for failing to clearly ascertain the cause of the change in his physical condition. 302 Ark. at 30-33, (Holt, C.J., dissenting).
Applying Tuberville, Nance contends the review and modification process would be rendered meaningless if a claimant was required to prove that the natural aging process did not cause or contribute to the deterioration of a compensable injury or condition. He states that even if the natural aging process has played some part in his worsened condition, it would still be covered under the natural and probable consequence rule.
This case can be reduced to simple terms. First, it is undisputed that Nance’s compensable injury has worsened. In obtaining his original award, Dr. Pimer diagnosed Nance on April 24, 1990, as having a cervical strain/sprain and a lumbar strain/sprain with degenerative disc disease at L5-S1, confirmed by x-ray. This diagnosis was later verified by Dr. Poole’s MRI in May 1990, and Dr. Marsh’s MRI in August 1990. In 1994, Dr. Pollock performed an MRI which showed Nance’s degenerative disc disease had significantly worsened.
Second, there was no evidence submitted by Harvey County that Nance’s increased degenerative disc disease resulted from an independent/intervening cause or injury. 1 Larson, The Law of Workmen’s Compensation § 13.11(a), p. 3-609 (1996), provides a relevant example of where an initial medical condition itself progresses into complications more serious than the original injury— die added complications obviously being compensable.
“Moreover, once the work-connected character of any injury, such as a back injury, has been established, the subsequent progression of that condition remains compensable so long as the worsening is not shown to have been produced by an independent nonindustrial cause.”
In Jackson v. Stevens Well Service, 208 Kan. 637, 493 P.2d 264 (1972), the claimant suffered an injury to his hands resulting in an amputation of the first and second fingers of the right hand, a partial amputation of his right thumb, and an amputation of the first finger of his left hand. A few months after the accident the claimant developed bicipital tendinitis in the right shoulder. Although there was medical testimony that the shoulder injury was related to the accident, the trial court found the shoulder injury was temporary in nature and resulted from the injury to the hands. On appeal from a denial of compensation beyond the scheduled injury, the Jackson court reversed and directed an award be entered for temporary total disability. The court then set forth the natural and probable consequence rule cited above in Adamson, 19 Kan. App. 2d 301, Syl. ¶ 6.
In Stockman v. Goodyear Tire & Rubber Co., 211 Kan. at 262-63, the court reviewed the record to determine if it disclosed sufficient competent evidence on which the trial court could base a finding that the claimant suffered a new injury rather than a con tinuation of the first injury. In that case the claimant injured his back at work. One day after being released to return to work, the claimant reinjured his back at home. The court found the second injury was a new injury despite the fact that the same body part was injured only one day after claimant was considered well enough to return to work.
Of relevance here, the Stockman court limited the Jackson decision to a situation that is applicable to the case at bar:
“The rule in Jackson is limited to the results of one accidental injury. The rule was not intended to apply to a new and separate accidental injury such as occurred in the instant case. The rule in Jackson would apply to a situation where a claimant’s disability gradually increased from a primary accidental injury, but not when the increased disability resulted from a new and separate accident.” 211 Kan. at 263.
In the instant case there was undisputed testimony that the primary injury had worsened, quite likely through the normal aging process and the passage of time. The worsening of a claimant’s compensable injury, absent any intervening or secondaiy injury, is a natural consequence that flows from the injury. It is a direct and natural result of a primary injuiy. Since Nance’s worsening back condition is merely a continuation of his original injury, causation is not an issue.
Dr. Pollock’s wavering provides nothing more than testimony that he does not know what caused Nance’s condition to worsen. The record does not indicate there is substantial evidence to support the Board’s decision. Under a negative finding standard of review, the Board may have recognized the evidence that Nance’s condition had worsened, but incorrectly disregarded the fact that there was no evidence of an intervening or secondary cause. This evidence is sufficient to entitle Nance to workers compensation benefits for his increased injury.
We reverse the Board’s decision and reinstate the ALJ’s award of July 19, 1995.
Reversed. | [
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Brazil, J.:
Max Hundley appeals the district court’s denial of his petition for writ of habeas corpus pursuant to K.S.A. 60-1501. We affirm.
Hundley, an inmate at the Lansing Correctional Facility, attempted to obtain minimum custody by exception, a reduced custody classification, in November 1994. The program management committee denied the request, noting “How do we justify this with the central monitor sheet for planning a violent escape 3 yrs. ago?” The basis for this denial was a report in which a corrections supervisor reported information from an inmate informant that Hundley was involved in an escape plan.
Hundley filed a grievance on December 27, 1994, claiming that any information in his file stating that he was involved in an escape plot was erroneous and needed to be removed from his file. Hundley also requested that the prison authorities reconsider the custody by exception decision without considering the erroneous in formation concerning the escape plot, or, in the alternative, to let him see the statement so he could make specific challenges to the accuracy of the report. The prison authorities responded by taking no action.
On February 27, 1995, Hundley filed a petition for relief pursuant to K.S.A. 60-1501. On August 7, 1995, the district court denied Hundley access to the report but remanded the grievance to the Department of Corrections (DOC) to address die issue of whether the report was in fact erroneous. On August 21, 1995, Hundley received a memorandum that concluded there was no reason to disbelieve the information of the planned escape and, therefore, no action would be taken. On August 25,1995, Hundley appealed the warden’s decision to the Secretary of Corrections pursuant to regulations regarding inmate grievances. The Secretary of Corrections responded on August 31, 1995, upholding the warden’s position. Hundley now appeals to this court.
This case involves the interpretation of the Kansas Criminal History Record Information Act, K.S.A. 22-4701 et seq.
Interpretation of a statute is a question of law, and an appellate court has unlimited review. State v. Donlay, 253 Kan. 132, 133-34, 853 P.2d 680 (1993).
Statutory interpretation by an administrative agency responsible for enforcing a statute, however, is entitled to judicial deference.
“This deference is sometimes called the doctrine of operative construction. Further, if there is a rational basis for the agency’s interpretation, it should be upheld on judicial review. If, however, the reviewing court finds that the administrative body’s interpretation is erroneous as a matter of law, the court should take corrective steps. The determination of an administrative body as to questions of law is not conclusive and, while persuasive, is not binding on the courts.” State Dept. of SRS v. Public Employee Relations Board, 249 Kan. 163, 166, 815 P.2d 66 (1991).
K.S.A. 22-4709(a) provides: “Subject to the provisions of this act and rules and regulations adopted pursuant thereto, any person may inspect and challenge criminal history record information maintained by a criminal justice agency concerning themselves.”
The DOC is a “criminal justice agency” as that term is defined by K.S.A. 22-4701(c)(l). K.S.A. 22-4701(b) defines “criminal his tory record information” as “data initiated or collected by a criminal justice agency on a person pertaining to a reportable event.” (Emphasis added.) K.S.A. 22-4705 lists reportable events and includes “an escape from confinement” under subsection (a)(9).
Since there was no escape, there was no “reportable event” and, thus, no criminal history record. Without such a reportable event to “pertain” to, a plot to escape cannot be criminal history record information. “Pertain” is defined by Webster’s Ninth New Collegiate Dictionary 878 (1991) as “to belong as a part, member, accessory or product” or “to belong as an attribute, feature, or function.”
K.S.A. 22-4705(e) states:
“Nothing in this section shall prevent a criminal justice agency from maintaining more detailed information than is required to be reported to the central repository. However, the dissemination of that criminal history record information is governed by the provisions of this act.”
K.S.A. 22-4705(e) was not intended to expand the definition of criminal history record information provided in the definitional section of the Act, K.S.A. 22-4701(b). Hundley’s reliance upon K.S.A. 22-4705(e) as justifying release of the information is misplaced. K.S.A. 22-4705 speaks to “dissemination.” Disseminate is defined by K.S.A. 22-4701(f) as to transmit criminal history record information in any oral or written form. K.S.A. 22-4709(a), however, only provides petitioner a right to “inspect and challenge” criminal history record information. K.A.R. 10-12-2 permits “dissemination” of nonconviction data to only three classes: “(a) other criminal justice agencies; (b) those authorized by court order or subpoena; and (c) federal agencies for such investigative purposes as authorized by law or presidential executive order.” This excludes Hundley. While information more detailed than the simple reportable events would apparently be included with criminal history record information when it is disseminated, this is a separate phenomenon from the inmate’s right to inspect and challenge his or her own criminal history record information provided in K.S.A. 22-4709(a).
The district court’s decision is affirmed simply based upon the language of the Act. A plot to escape is not a reportable event, and there was no actual escape for the plot to pertain to. The information, therefore, is not criminal history record information, and Hundley does not have a right to inspect and/or challenge it.
Hundley argues that the court should follow Paine v. Baker, 595 F.2d 197 (4th Cir. 1979), which found that an inmate has a limited due process right to have erroneous information expunged from his or her record. Kansas has not addressed this question.
The Paine court held that a claim of constitutional magnitude is raised where a prisoner alleges: (1) that the information is in his or her file; (2) that the information is false; and (3) that it is relied on, or likely to be relied on, to a constitutionally significant degree. In the instant case, there is no dispute on items 1 and 2. Paine ruled that requirement 3 has two dimensions. First, the error must be relied on for actions that raise due process concerns either directly or collaterally. Second, the alleged error must be a significant factor relied on in the decision-making process.
Hundley argues that the report itself or denial of minimum custody by exception “could have the collateral effect of a negative consideration” by the Parole Board.
Warden David R. McKune, appellee, acknowledges the “inherent appeal of the idea of such a right” but denies that Hundley satisfies the requirements of Paine. While the Paine court ruled that denial of parole did raise due process concerns, this dealt with the statutes of North Carolina. 595 F.2d at 202. Kansas has ruled that inmates do not have a liberty interest in the granting of parole. Gilmore v. Kansas Parole Board, 243 Kan. 173, 180, 756 P.2d 410, cert. denied 488 U.S. 930 (1988) (parole is a privilege and not a fundamental right). North Carolina’s parole scheme may create a liberty interest, but this is irrelevant to our consideration. See Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 60 L. Ed. 2d 668, 99 S. Ct. 2100 (1979) (parole statutes may create liberty interest depending upon language of statute). The Parole Board’s negative consideration of allegedly false information that is not criminal history record information does not raise constitutional concerns.
Neither does an inmate’s custody classification raise due process concerns. In Davis v. Finney, 21 Kan. App. 2d 547, 902 P.2d 498 (1995), this court ruled that it would not review an inmate’s claim that he or she was placed in either administrative or disciplinary segregation in violation of due process of law unless the statutes and regulations giving authority to prison officials contain mandatory language requiring that certain procedures must be employed or punishment will not occur unless specified predicates occur. Due process interests are generally limited “to freedom from restraint which imposes an atypical or significant hardship on the inmate in relation to the ordinary incidents of prison life.” Davis, 21 Kan. App. 2d at 558 (citing Sandin v. Conner, 515 U.S. 472, 484, 132 L. Ed. 2d 418, 115 S. Ct. 2293 [1995]). If an inmate can be placed in administrative segregation without raising due process concerns, denial of minimum custody by exception certainly does not.
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The opinion of the court was delivered by
Luckert, J.:
After considering Marlin Williams’ appeal from a jury conviction for aggravated trafficking in violation of K.S.A. 21-3447(a)(2), the Court of Appeals, in State v. Williams, 46 Kan. App. 2d 36, 257 P.3d 849 (2011), upheld the constitutionality of K.S.A. 21-3447(a)(2), concluding the provision is not overbroad. Also, because Williams’ conduct clearly fell within the terms of K.S.A. 21-3447(a)(2), the Court of Appeals determined that Williams lacked standing to raise an argument that the provision is unconstitutionally vague. The Court of Appeals also rejected Williams’ other arguments in which he claimed: The charged offense of aggravated trafficking is identical to the offense of promoting prostitution, promoting prostitution is a more specific offense than aggravated traf ficking, the prosecutor committed misconduct, and the district court should have submitted the question of his criminal history to a jury.
On review, we agree with the Court of Appeals, although we occasionally depart from its reasoning, and affirm Williams’ conviction and sentence.
Facts and Procedural Background
On May 4, 2007, a Dallas, Texas, police detective was patrolling an area known for prostitution activity when he observed a young girl walking along the street. A Ford Explorer, which the detective recognized as the vehicle of a known prostitute, pulled up near the young girl, but die young girl kept walking when she spotted the clearly marked patrol car. The girl’s youthful appearance and behavior aroused the detective’s suspicions, causing him to follow her to a gas station where he stopped her and asked for her name and birth date. She offered a birth date that seemed obviously false to the detective, so he continued to talk to her. She eventually told him her real name—L.M.—and her date of birth date—October 10,1991. Upon learning L.M.’s true identity and that she was only 15 years of age, the detective investigated further and discovered L.M. had been reported as a runaway from Wichita, Kansas. L.M. was transported to Dallas police headquarters for an interview. In the interview, L.M. explained she met a pimp in Wichita named “Pressure” in late April or early May. Pressure recruited her to join his prostitution ring and then drove her from Wichita to Dallas so she could work for him. L.M. gave detectives permission to examine the phone she had with her; the detectives found a phone number with a Wichita area code labeled ‘Treasure.”
L.M. was returned to Wichita. Once there, she learned that Pressure’s real name was Marlin Williams. She reported this to law enforcement officers in Wichita.
After an investigation, the State filed charges against Williams alleging that “on or between the 1st day of April, 2007 and the 5th day of May 2007” Williams unlawfully recruited, harbored, transported, provided, or obtained by any means L.M., a child under 18 years of age, knowing L.M., with or without force, threat or coercion, would be used to engage in sexual gratification of the defendant or another in violation of K.S.A. 21-3447(a)(2).
At trial, L.M. provided details about her first contact with Williams; her first encounter was at a party, and the second was when Williams drove to the place she was living. During this second meeting, Williams, who was accompanied by a female prostitute, recruited L.M. to join in his prostitution ring.
L.M. explained that several weeks before she met Williams she had run away from the Wichita Childrens Home. By the time L.M. met Williams, her living situation was rocky. She was living with a woman who had been unable to pay her rent or utility bills for several months; the water had been shut off, and they were losing electricity that week. “We never really ate much, and if we did, we always went to Save-A-Lot and stole stuff.” Consequently, when Williams asked her to work as a prostitute, she agreed because she “didn’t have no choice; it was just the first choice that came up.” She admitted, “I knew what I was getting myself into.”
After L.M. agreed to go with Williams and they drove away in his car, he asked if she wanted to immediately travel to Texas. She agreed but asked to call the woman with whom she had been living and to get her clothes and belongings. Williams refused, fearing she would change her mind. He promised to buy her clothes and whatever she needed once they got to Dallas, although L.M. testified that he never did. He also laid down some rules, telling L.M. that “he didn’t like his girls—which is the word he used; let’s make that clear, girls—to look at any other man. He wanted them to look down and don’t speak unless you’re spoken to unless I say you can respond.”
Before leaving Wichita, Williams stopped at a house. The female prostitute—whom L.M. estimated to be about 20 years of age— and L.M. stayed in the car, and L.M. asked the woman what prostituting was like, whether Williams would buy her condoms, and what he would do if she looked at anyone. Williams then took L.M. and the woman to an apartment where he told L.M. to undress so he could look at her. After the inspection, Williams drove to another location and picked up a man he called “Casper” and then to a hotel where the woman was staying so she could get her be longings. Before they left Wichita, Williams told L.M. she should not be working the streets because she “is far too pretty for that” and once he had enough money she would be working in a club. Williams also told L.M., “My ho’s make money.”
The woman and Casper accompanied Williams and L.M. to Dallas. Once they got to a hotel, Williams told L.M. to perform oral sex on him. When during the trial L.M. was asked why she obeyed, L.M. responded, “That’s just what you have to do. And I believe he said that to[o], like, . . . You got to do what I say.” Soon after Williams’ demand and within hours of arriving in Dallas, Williams told L.M. the minimum amount she should charge for various sex acts and the minimum she had to make before she returned to the hotel. He then gave her a beeper phone and sent her out to walk the streets.
L.M. testified she and Williams stayed in three hotels over the next several days. After the first day, L.M. worked 10 to 12 hours a day, starting at die times Williams directed. According to L.M., she made about $1,000 per day and she gave all of that money to Williams, except for a relatively small amount of cash she had on her when she was taken into custody by the police. Williams would periodically check on her, asldng her where she was and how much she had made. Every few hours she would return to the hotel to give Williams the money she had been paid and to shower. She only ate when Williams would bring her food; she denied ever using the money she made to buy food or drink.
Managers of two Dallas hotels also testified at trial. One manager testified Williams stayed at his hotel on April 29, 2007, in a one-person room. The other indicated Williams checked into a four-person room and stayed May 3 and 4, 2007.
At trial, Williams testified in his own defense. He told the jury that he stayed at the first hotel on April 29, 2007, with a woman he met in Dallas. He denied going to Dallas with L.M., but he did admit to seeing her as he was leaving his hotel. According to Williams, they simply made eye contact and gestured toward each other. Williams indicated he then returned to Kansas and, on May 3, 2007, drove back to Dallas with his girlfriend, their son, and his girlfriend’s niece for the purpose of shopping for clothes. Williams testified that he again saw L.M., this time at the second hotel’s swimming pool. She walked up and said, “I know you from somewhere.” After some small talk, they realized diey were both from Wichita and the conversation continued from there. L.-M. asked him to get her some liquor, and he took her to the liquor, store. While driving to the liquor store she asked for his phone number, and he gave it to her. He also gave her his nickname “Pressure.” He testified that L.M. told him she was 19 or 20 years old.
The jury found Williams guilty of aggravated trafficking under K.S.A. 21-3447(a)(2). The district court imposed a downward du-rational departure sentence of 246 months’ imprisonment.
Williams timely appealed his conviction to the Court of Appeals. As noted, that court rejected Williams’ claims and affirmed his conviction and sentence. Williams, 46 Kan. App. 2d at 38, 56. Williams filed a petition for review, asserting the same arguments he brought before the Court of Appeals.
In those issues, which we have reordered and consolidated for purposes of our discussion, Williams asserts: (1) The aggravated trafficking statute is unconstitutionally overbroad because it prohibits constitutionally protected activities such as speech, association, and travel and is unconstitutionally vague because it does not define the terms “used” or “sexual gratification”; (2) tire charged offense of aggravated trafficking is identical to the offense of promoting prostitution, and Williams should have received tire shorter sentence for promoting prostitution under the identical offense sentencing doctrine; (3) the district court erred in entering a conviction for aggravated trafficking when the evidence supported die more specific offense of promoting prostitution; (4) the prosecutor committed misconduct during closing arguments by improperly commenting on the credibility of L. M. and Williams and by shifting the burden of proof to Williams; and (5) the district court erred in increasing his sentence based on prior convictions not proven to a jury.
This court granted Williams’ petition for review under K.S.A. 20-3018(b) and has jurisdiction under K.S.A. 60-2101(b).
Constitutionality of K.S.A. 21-3447(a)(2)
In Williams first two issues on appeal, he contends that the subsection of the aggravated trafficking statute he was convicted under, K.S.A. 21-3447(a)(2), is unconstitutionally overbroad and vague. K.S.A. 21-3447(a)(2) defines the offense of aggravated trafficking as
“recruiting, harboring, transporting, providing or obtaining, by any means, a person under 18 years of age knowing that the person, with or without force, fraud, threat or coercion, will be used to engage in forced labor, involuntary servitude or sexual gratification of the defendant or another.”
Referring to those provisions, Williams argues K.S.A. 21-3447(a)(2) is unconstitutionally overbroad because it infringes on constitutionally protected rights of “speech (recruiting), travel (transporting), or association (providing, obtaining) with a minor knowing that the minor ‘will be used to engage in’ tire sexual gratification of the defendant or another.” As he did before the district court and Court of Appeals, Williams further argues that the statute does not prohibit sexual activity but instead prohibits “thoughts, ones that are sexual in nature, by the defendant or another resulting from the defendant’s actions involving a minor.”
To illustrate the potential constitutional infringements that could arise from enforcement of these provisions, Williams offers several hypothetical examples. First, he suggests the statute infringes on the United States Constitution’s First Amendment speech protection by prohibiting “a person from requesting a ‘date’ with a minor (recruiting) when the person making the request knows that they will be sexually gratified by the experience.” Second, he asserts that even flirting with a minor (recruiting) would be criminal. Additionally, he presents the scenario of a father driving (transporting) his child to the high school prom knowing the child will engage in sexually gratifying activities. Finally, he suggests the statute constitutes an unwarranted and intolerable intrusion into the marital relationship by preventing lawfully married minors from traveling for their honeymoon. These examples, according to Williams, illustrate that K.S.A. 21-3447(a)(2) is overbroad because it criminalizes constitutionally protected activities and is vague because it leaves a person of common intelligence to guess whether the minor was “used” or whether these activities can lead to “sexual gratification.” See State v. Wilson, 267 Kan. 550, 556, 987 P.2d 1060 (1999) (explaining “ ⅛ vague statute leaves persons of common intelligence to guess at its meaning, an overbroad statute makes conduct punishable which under some circumstances is constitutionally protected’ ”).
1. Does Williams Have StandingP
Before addressing the substance ofWilliams’ arguments, we first consider tire question of whether Williams has standing to argue K.S.A. 21-3447(a)(2) is unconstitutional. This question arises because Williams concedes the conduct L.M. attributed to him clearly falls within the terms of the statute; further, he does not argue that conduct is constitutionally protected. Nevertheless, he suggests other conceivable factual scenarios might impact hypothetical defendants and argues those scenarios illustrate the statute is vague and overbroad.
The State argues Williams lacks standing to assert tire statute is vague, but it does not object to Williams’ standing to argue the statute is overbroad. Some general discussion of standing is necessary to explain the reason for the State’s differentiated response to Williams’ arguments and tire basis for our conclusion that Williams does indeed lack standing to argue tire statute is unconstitutionally vague but has standing to pursue his arguments regarding the statute’s overbreadth.
Generally, “if there is no constitutional defect in the application of the statute to a litigant, [the litigant] does not have standing to argue that it would be unconstitutional if applied to third parties in hypothetical situations.” Ulster County Court v. Allen, 442 U.S. 140, 155, 99 S. Ct. 2213, 60 L. Ed. 2d 777 (1979); see State v. Thompson, 221 Kan. 165, 172, 558 P.2d 1079 (1976) (holding that “unconstitutional governmental action can only be challenged by a person directly affected and such a challenge cannot be made by invoking the rights of others”). This general rule suggests that Williams lacks standing.
The general rule does not apply, however, when a litigant brings an overbreadth challenge that seeks to protect First Amendment rights, even those of third parties. Instead, an exception has been recognized “because the mere existence of the statute could cause a person not before the Court to refrain from engaging in constitutionally protected speech or expression.” City of Wichita v. Wallace, 246 Kan. 253, 267, 788 P.2d 270 (1990) (citing Young v. American Mini Theatres, 427 U.S. 50, 60, 96 S. Ct. 2440, 49 L. Ed. 2d 310, reh. denied 429 U.S. 873 [1976], and Broadrick v. Oklahoma, 413 U.S. 601, 611-14, 93 S. Ct. 2908, 37 L. Ed. 2d 830 [1973]).
Consequently, Williams does have standing to assert on behalf of third parties that K.S.A. 21-3447(a)(2) is overbroad. The exception does not extend to arguments of vagueness, however. Instead, a party asserting vagueness “cannot challenge the constitutionality of the statute on the grounds that the statute may conceivably be applied unconstitutionally in circumstances other than those before the court.” Tolen v. State, 285 Kan. 672, Syl. ¶ 2, 176 P.3d 170 (2008); see Hearn v. City of Overland Park, 244 Kan. 638, 639, 772 P.2d 758, cert. denied 493 U.S. 976 (1989) (one to whom statute clearly applies may not successfully challenge it for vagueness). This means that Williams does not have standing to argue K.S.A. 21-3447(a)(2) is vague, and we will not reach a holding regarding his vagueness arguments. Nevertheless, we will briefly discuss one aspect of that argument—the failure to define “used”—because it overlaps with the consideration of whether the statute is overbroad.
We turn to a discussion of whether the statute is overbroad.
2. KS.A. 21-3447(a)(2) Is Not Overbroad
Williams’ argument that K.S.A. 21-3447(a)(2) is overbroad requires us to interpret the statute and presents a question of law, which is subject to unlimited review. State v. Whitesell, 270 Kan. 259, 268, 13 P.3d 887 (2000). The fundamental rule we follow in interpreting a statute is that die intent of die legislature governs. “To divine legislative intent, courts begin by examining and interpreting the language 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.” State v. Brown, 295 Kan. 181, Syl. ¶ 5, 284 P.3d 977 (2012).
The separation of powers doctrine requires a court to presume the statute is constitutional. State ex rel. Morrison v. Sebelius, 285 Kan. 875, 883, 179 P.3d 366 (2008). Williams, as the party attacking the statute, has the burden to overcome that presumption. To do so, he must do more than imagine a conceivable activity that would be constitutionally protected but would run afoul of the aggravated trafficking statute because “[ajlmost every law is potentially applicable to constitutionally protected acts” and would be unconstitutional if any hypothetical, unconstitutional application was all that had to be established. Whitesell, 270 Kan. 259, Syl. ¶ 6. Therefore, a more rigorous standard applies. Where conduct and not merely speech is involved, the United States Supreme Court requires that “the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Broadrick, 413 U.S. at 615. This court has divided this burden into a two-part test. The party attacking the constitutionality of a statute on the basis of overbreadth must establish “(1) the protected activity is a significant part of the law’s target, and (2) there exists no satisfactory method of severing that law’s constitutional from its unconstitutional applications.” Whitesell, 270 Kan. 259, Syl. ¶ 6.
Applying the two-part test, the district court, after hearing Williams’ arguments, concluded that Williams had failed to establish his proffered hypothetical situations were a significant part of the law’s target. The Court of Appeals agreed, citing Wilson, 267 Kan. 550, as instructive. See Williams, 46 Kan. App. 2d at 42. In his petition for review, Williams does not attempt to distinguish Wilson.
In Wilson, the defendants were convicted of endangering a child under K.S.A. 21-3608(a), which prohibits “intentionally and unreasonably causing or permitting a child under the age of 18 years to be placed in a situation in which the child’s life, body or health may be injured or endangered.” On appeal, the defendants argued the statute was unconstitutionally vague because it criminalized parental decisions to allow children to engage in lawful but potentially injurious activities, such as football, and overbroad because it “ ‘regulates and inhibits the manner or mode in which ideas are expressed.’ ” 267 Kan. at 558.
The Wilson court rejected the defendants’ arguments by declaring that “courts will not give strained meanings to legislative language through a process of imaginative hypothesizing; a common-sense interpretation of the statute is the guiding principle.” 267 Kan. at 557. Further, the court noted that statutes like the child endangerment statute, which are designed to protect children; “are necessarily drawn with broad language because they are designed to cover a broad range of conduct and circumstances.” 267 Kan. at 557 (citing State v. Fisher, 230 Kan. 192, 198, 631 P.2d 239 [1981]). But a commonsense reading of the statute indicates it prohibits “ ‘unreasonably’ permitting a child to be placed in dangerous circumstances,” which would “foreclose prosecution for such parental acts as permitting a child to play football” or using constitutionally protected means of expressing ideas. 267 Kan. at 558.
Likewise, K.S.A. 21-3447(a)(2)—the aggravated trafficking provision—covers a broad range of conduct and circumstances in order to protect minors from criminal trafficking. See Minutes, Sen. Judiciary Comm., February 16, 2005 (2005 Judiciaiy Minutes); L. 2005, ch. 200, secs. 2-3. Further, like the child endangerment statute, the aggravated trafficking statute has limiting words. Of particular import in light of Williams’ arguments is the word “used.” Although Williams argues the word is vague, in part because the statute does not define which of the word’s multiple meanings applies, we conclude the word’s context makes its meaning clear, and its meaning limits the scope of K.S.A. 21-3447(a)(2). Specifically, the phrase “used to engage in forced labor, involuntaiy servitude or sexual gratification” indicates the statute is limited to situations where a minor has been exploited. See Webster’s II New College Dictionaiy 1215 (1999) (defining “use” as including “[t]o put to some purpose” and “[t]o exploit for one’s own advantage or gain”).
To the extent there is any question of this interpretation, the legislative history of K.S.A. 21-3446, defining the elements of trafficking, and K.S.A. 21-3447, defining the elements of aggravated trafficking, provides guidance. See Brown, 295 Kan. 181, Syl. ¶ 5 (if statute is ambiguous, courts may consult any revealing legislative histoiy or background considerations that speak to legislative purpose). Both statutes were enacted in 2005 via S.B. 151; L. 2005, ch. 200, secs. 2-3.
Several proponents testified before the Senate Judiciary Committee and urged the bill’s adoption. A representative of the Attorney General’s office explained that S.B. 151 as it was originally proposed “deals with taking people against their will for forced labor and involuntary servitude or for sexual exploitation.” 2005 Judiciary Minutes. At the same hearing, however, the Kansas Coalition Against Sexual and Domestic Violence requested an amendment to define aggravated trafficking to include situations in which a child under the age of 18 was the victim, regardless of whether there was evidence of force, fraud, threats, or coercion. 2005 Judiciary Minutes.
This proposal was consistent with the approach adopted in federal statutes regarding human trafficking offenses. This point was made in testimony presented by Kansas’ current Secretary of State, Kris Kobach, who at the time was a law school professor. He summarized tire federal statutes regarding sex trafficking, including those imposing criminal penalties for “sex trafficking of children or by force, fraud or coercion.” (Emphasis added.) 2005 Judiciary Minutes, attach. 10, p. 3 (citing the Trafficking Victims Protection Act of 2000); see 18 U.S.C. § 1591 (2012) (as amended). Another proponent, who represented the Concerned Women for America of Kansas (Concerned Women), noted trafficking can occur even if there is no force, fraud, or coercion; it can be tire result of “ ‘the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation,’ ” including sexual exploitation. 2005 Judiciary Minutes, attach. 8, p. 7 (quoting Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children—Annex II to the United Nations Convention Against Transnational Organized Crime, G.A. Res. 55/25, U.N. Doc. A/RES/55/25 [January 8, 2001] [ratified by the United States]); see Velez v. Sanchez, 693 F.3d 308, 323 (2d Cir. 2012) (quoting and discussing the protocol).
The Concerned Women’s written testimony also discussed the connection between prostitution and trafficking as well as the vulnerability of women and children, particularly those living in poverty, “runaway girls and others in vulnerable situations [who] are in danger of getting lured into the trap of pimps and johns.” 2005 Judiciary Minutes, attach. 8, p. 4. Likewise, a representative of the United States Department of State also mentioned the plight of “teenage girls .. . who have been trafficked into commercial sexual exploitation . . . [and] forced to service unthinkable numbers of men day after day.” 2005 Judiciary Minutes, attach. 13, p. 2. These two proponents also emphasized that trafficking is not just an international problem but one affecting Kansas, and they referred to a then-recent incident involving a 20-year-old man and his father who “lured” several 13- to-16-year-old girls from a Wichita high school with promises of “ ‘day trips.’ ” The girls were then held in various hotels, given drugs and provocative clothes, and forced to work as prostitutes at truck stops in Oklahoma. 2005 Judiciary Minutes, attach. 8, p. 1; attach. 13, p. 2.
After hearing this testimony, the Senate Judiciary Committee and, later the entire legislature, adopted the proposed amendment regarding minors, which was codified at K.S.A. 21-3447(a)(2), and the remainder of S.B. 151. See L. 2005, ch. 200, secs. 2-3. The history suggests the legislature viewed the trafficking of minors, who are especially vulnerable because of age, to be a serious felony—at least a severity level 1 person felony and potentially an off-grid felony if the offender is 18 years of age or older and the victim is less than 14 years of age—even if force, fraud, threat, or coercion is not used. See K.S.A. 21-3447(b). Further, the overall history indicates the statutory aim was to prevent forced labor, involuntary servitude, or sexual exploitation, which the legislature clearly understood to include prostitution. 2005 Judiciary Minutes.
Considering this history and the wording of K.S.A. 21-3447(a)(2) in the context of Williams’ argument, we conclude the clear target of the provision is a situation in which a minor’s vulnerability is exploited through an abuse of power—i.e., where the minor is “used.” Commonsense indicates minors are not exploited or used when they date, flirt, go to their high school prom, or travel with their spouse. As the district court and Court of Appeals aptly determined, Williams’ hypothetical scenarios do not represent a significant part of K.S.A. 21-3447(a)(2)’s target.
Accordingly, we hold that aggravated trafficking as defined in K.S.A. 21-3447(a)(2) is not unconstitutionally overbroad.
Aggravated Trafficking Is Not The Same As, Promoting Prostitution
In two related issues, Williams seeks to have his criminal activity treated as the criminal offense of promoting prostitution, defined in K.S.A. 21-3513, rather than aggravated trafficking. In one argument, he seeks application of Kansas’ identical offense doctrine and suggests that instead of being sentenced for the offense of aggravated trafficking under K.S.A. 21-3447(a)(2), a severity level 1 person felony, he should have been sentenced for the offense of promoting prostitution under K.S.A. 21-3513(a), which is a severity 6 person felony if the victim is under the age of 16. K.S.A. 21-3513(b)(3). In the other issue, Williams argues promoting prostitution is the more specific crime and, therefore, the one with which he should have been charged.
In making these arguments, Williams points to two portions of the statute defining the offense of promoting prostitution, K.S.A. 21-3513, specifically: “(a)(4) inducing another to become a prostitute” and “(a)(7) procuring transportation for, paying for die transportation of, or transporting a person widiin this state with the intention of assisting or promoting that person’s engaging in prostitution.” Because the aggravated trafficking statute prohibits, among other things, recruiting, transporting, or obtaining a person knowing the person will be used for sexual gratification, Williams argues that portions of die aggravated trafficking and promoting prostitution statutes overlap. He contends tiiat “the term, Tor hire,’ in the promoting prostitution statute encompasses the meaning, ‘obtain the use of,’ which is analogous to the ‘used to engage in’ from the aggravated trafficking statute.” He further notes both statutes involve stimulation of sexual desires. See K.S.A. 21-3512 (defining “prostitution” as [a] performing or [b] offering or agreeing to perform for hire or for an exchange of value any of the following acts: [1] sexual intercourse; [2] sodomy; or [3] manual or other bodily contact stimulation of the genitals of any person with the intent to arouse or gratify the sexual desires of the offender or another).
The State responds that while the provisions overlap, they do not contain identical elements. Under promoting prostitution, the State would have been required to prove that the defendant intended for L.M. to engage in prostitution, which is not required under aggravated trafficking. Thus, the statutes address different conduct, and one is not the more specific version of the other.
We next address Williams’ contention that the identical offense sentencing doctrine applies.
1. Identical Offense Sentencing Doctrine
This issue was first raised prior to Williams’ sentencing when he filed a motion arguing the district court should apply the identical offense sentencing doctrine and sentence him to the lesser penalty of promoting prostitution. The district court recognized that the two offenses have some similarities but found there are substantial differences in the elements that must be proven for each offense and overruled Williams’ motion. The Court of Appeals agreed, noting that promoting prostitution required proof of prostitution and prohibited transporting a person within the state, while aggravated trafficking does not. Further, aggravated trafficking requires proof of the victim’s age, while promoting prostitution does not. State v. Williams, 46 Kan. App. 2d 36, 49-51, 257 P.3d 849 (2011).
On review of these holdings, the question of whether the district court and Court of Appeals erred in failing to apply the identical offense doctrine presents a question of law over which we exercise de novo review. State v. Sandberg, 290 Kan. 980, 984, 235 P.3d 476 (2010). That review requires a determination of whether the offenses are identical because the principle behind the identical offense sentencing doctrine is: “ ‘ “Where two criminal offenses have identical elements but are classified differently for purposes of imposing a penalty, a defendant convicted of either crime may be sentenced only under the lesser penalty provision.” ’ State v. Cooper, 285 Kan. 964, 966-67, 179 P.3d 439 (2008) (quoting State v. Nunn, 244 Kan. 207, 229, 768 P.2d 268 [1989]).” State v. Sellings, 294 Kan. 149, 151, 273 P.3d 739 (2012); State v. Robinson, 293 Kan. 1002, 1037, 270 P.3d 1183 (2012).
This court has recognized three types of situations where offenses may have identical provisions:
“(1) where one offense is a lesser included offense of the other; (2) where some provisions in two statutes overlap, the overlapping provisions apply to the charged crime, and the overlapping provisions are identical except for the penalty provisions; and (3) where all provisions in two statutes are identical except for the penalty provisions. The identical offense sentencing doctrine applies to the second and third situations. State v. Campbell, 279 Kan. 1, 14-15, 106 P.3d 1129 (2005) (quoting 4 LaFave, Israel & King, Criminal Procedure § 13.7[a], pp. 95-99 [2d ed. 1999]).” Snellings, 294 Kan. at 152.
Williams argues this case falls within the second category—overlapping statutes—-and the Court of Appeals agreed. Williams, 46 Kan. App. 2d at 50. “When two statutes contain overlapping provisions, this court must examine the facts in order to determine the area of overlap. Once it is determined which provisions of a statute apply, the only question is whether the overlapping provisions contain identical elements. That determination is made from the statute.” Cooper, 285 Kan. at 967. But, as the Court of Appeals noted, “the test is not whether the facts would support an alternative charge but whether the applicable elements of the charged offense are identical to the elements of an offense imposing a lesser penalty, i.e., what facts the State is required to prove to obtain a conviction.” Williams, 46 Kan. App. 2d at 50 (citing Cooper, 285 Kan. at 967).
As that principle applies in this case, while the fact that L.M. engaged in prostitution in Dallas was one circumstance used to prove the “sexual gratification” element of aggravated trafficking, that factual overlap is not determinative of whether the offenses of aggravated trafficking and promoting prostitution are identical. Rather, “the facts of the case are only relevant to determine which provisions of a statute apply—a preliminary step—not as a final step of examining the record to determine what evidence was used to prove the overlapping elements.” Snellings, 294 Kan. at 166. The final step, whether the overlapping provisions contain identical elements, is a determination that is made from the statute. Snellings, 294 Kan. at 166; Cooper, 285 Kan. at 967.
As the State argues and the Court of Appeals concluded, the offense of promoting prostitution requires proof that the defendant induced or transported a person with the intent that the person engage in prostitution, i.e., for the purpose of having the person perform sexual intercourse, sodomy, or any other bodily contact with the intent to arouse or gratify the sexual desires of another “for hire” or “where there is an exchange of value.” K.S.A. 21-3513(a)(4); K.S.A. 21-3513(a)(7); K.S.A. 21-3512. In contrast, the offense of aggravated trafficking only requires proof that the defendant recruited or transported “knowing that the person . . . will be used to engage in . . . sexual gratification of the defendant or another”; the offense does not require proof that the defendant intended the person to perform sexual acts in exchange for something of value. K.S.A. 21-3447(a)(2).
For example, in this case Williams arguably could have been charged with aggravated trafficking based on his act of transporting L.M. to Texas for die purpose of having her perform sexual acts with him. The evidence established he told her to orally stimulate him as soon as they arrived in Dallas, and there is no indication L.M. participated because she agreed to an exchange for value. Rather, the evidence was that she felt compelled to do as Williams instructed. Thus, there was evidence Williams induced and transported L.M. with the intent to use her for his own sexual gratification, and the State did not have to prove that Williams’ intended for L.M. to engage in prostitution in order to convict him of aggravated trafficking.
The Court of Appeals continued its analysis after holding that the aggravated trafficking provision did not require proof of promoting prostitution by contrasting the two statutes based on whether there was a requirement of travel within the state and proof of the victim’s age. The Court of Appeals’ analysis on these additional points raises several questions. For example, although the Court of Appeals correctly observed the promoting prostitution statute does not include an age requirement in defining the offense, it did not discuss the age element of the sentencing en hancement provisions. The question remains whether promoting prostitution is an identical offense to aggravated trafficking if the State uses age—including a victim of L.M.’s age—-as an aggravating sentencing factor for someone convicted of promoting prostitution. See K.S.A. 21-3513(b) (using victim’s age to define several severity levels for promoting prostitution sentence); K.S.A. 21-4643(a)(1)(E) (promoting prostitution if prostitute is less than 14 years of age is Jessica’s Law off-grid felony offense); see also State v. Reyna, 290 Kan. 666, 675-77, 234 P.3d 761 (2010) (aggravating factor of age is an element of the crime if the State seeks to convict the defendant of the more serious offense for purposes of sentencing).
We need not burden this opinion with an extended discussion answering this and the other questions that arise from the Court of Appeals’ analysis, however, because we have already found that one element of the offense of promoting prostitution is not an element of aggravated trafficking. Thus, the Court of Appeals’ ultimate conclusion that promoting prostitution and aggravated trafficking are not identical offenses is correct, and it does not matter if there are additional differences.
In conclusion, the offenses of aggravated trafficking and promoting prostitution are not identical and tire district court properly sentenced Williams for aggravated trafficking under K.S.A. 21-3447(a)(2), a severity level 1 person felony.
2. Promoting Prostitution is Not the More Specific Offense
In the alternative, Williams argues that because his conduct was prohibited by both statutes, he could only be convicted of promoting prostitution because it is a more specific offense than aggravated trafficking.
Before addressing the merits of this argument, a preliminary question arises regarding whether Williams preserved this issue for appeal. In his brief before the Court of Appeals, Williams acknowledged that he did not specifically argue the “general/specific offense doctrine” to the district court, but he argued that the issue “may be raised for the first time on appeal because it involves only a question of law and is finally determinative of the case. State v. Shopteese, 283 Kan. 331, 339, 153 P.3d 1208 (2007).” The State responded by citing State v. Gibbens, 253 Kan. 384, 387, 855 P.2d 937 (1993), in which this court held that the issue of a general-specific statute was not properly before the court because it had not been raised in the district court.
In considering the parties’ arguments, the Court of Appeals concluded that Williams’ case is distinguishable from Gibbens because Gibbens “involved an appeal that was solely related to the sentence imposed following the defendant’s plea and he had never previously challenged his convictions at any point.” Williams, 46 Kan. App. 2d at 51. We agree.
In Gibbens, the defendant pleaded nolo contendere to two counts of rape, and, prior to his appeal, he never sought to withdraw his pleas or present any type of challenge to his convictions. By entering the pleas, Gibbens waived any defect in the charging of the offenses or his convictions. See State v. Phinney, 280 Kan. 394, 398, 122 P.3d 356 (2005) (noting that K.S.A. 22-3602[a] does not authorize an appeal of a conviction based upon a plea, but, “[f]ollowing a plea, a defendant may . . . challenge the sentence imposed”). Consequently, when Gibbens argued for the first time on appeal that he should have been charged with the specific statute of aggravated incest instead of rape because the two victims were his stepdaughters, this court held that “no appeal was taken from any matter relating to the convictions themselves.” Gibbens, 253 Kan. at 387. In contrast, Williams did nothing to waive his right to appeal his conviction.
Nevertheless, issues not raised below are generally precluded on appeal. State v. Prine, 297 Kan. 460, 468, 303 P.3d 662 (2013). Yet, as the Court of Appeals acknowledged, there are several exceptions to this general rule, including “when the newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case.” State v. Herbel, 296 Kan. 1101, 1116, 299 P.3d 292 (2013). In this case, the Court of Appeals accepted that because Williams’ theory involved only a question of law and could be potentially determinative of the case, the theory was properly before the court for review. Williams, 46 Kan. App. 2d at 51. Again, we agree and next address the substance of the argument.
The rule on which Williams relies—that a general statute should yield to a specific statute covering the same criminal conduct—“is merely a rule of interpretation which is used to determine which statute the legislature intended to be applied in a particular case.” State v. Helms, 242 Kan. 511, 514, 748 P.2d 425 (1988); see State v. Cott, 288 Kan. 643, 645, 206 P.3d 514 (2009); State v. Williams, 250 Kan. 730, 733, 829 P.2d 892 (1992). The issue of whether the rule applies is “a question of law, and an appellate court’s standard of review of a lower court’s statutory interpretation is unlimited.” Cott, 288 Kan. at 645. Ultimately, because tire rule is merely a means of determining legislative intent, it “must yield where there is a clear indication that the legislature did not intend for one statute to be the exclusive mechanism for punishing a given activity.” Helms, 242 Kan. at 514; see Cott, 288 Kan. 643, Syl. ¶ 2.
Looking at the elements of the offenses of aggravated trafficking and promoting prostitution, the Court of Appeals panel in this case applied these principles and concluded that “promoting prostitution might be considered a more specific crime than aggravated trafficking in some cases,” but not in this case. Williams, 46 Kan. App. 2d at 55. In reaching this conclusion, the panel, in part, engaged in an alternative means analysis. If we were to follow the same line of reasoning, the alternative means discussion would require a different analysis in light of decisions of this court filed after the panel’s decision. See, e.g., State v. Brown, 295 Kan. 181, Syl. ¶¶ 7-11, 284 P.3d 977 (2012) (adopting analytical structure for determining if statute provided alternative means of committing an offense). We need not sort out all of these arguments and developments, however, because we conclude there is a more straightforward answer: The legislative intent was not to have promoting prostitution control over aggravated trafficking.
As the court in Cott noted, when interpreting a statute an appellate court’s first task is to “ ‘ascertain the legislature’s intent through the statutoiy language it employs.’ ” Cott, 288 Kan. at 647 (quoting State v. Stallings, 284 Kan. 741, 742, 163 P.3d 1232 [2007]). But, as occurred when this court in Cott compared the aggravated endangerment of a child statute—K.S.A. 2005 Supp. 21-3608a(a)(l)—with driving under the influence with a child if a child under the age of 14 years was in the car at the time of the offense—K.S.A. 2005 Supp. 8-1567(h)—“we do not so easily ascertain the legislative intent to allow or disallow both charges in tire language of the Kansas statutes.” 288 Kan. at 647. The Cott court also noted that the legislative history was not instructive. 288 Kan. at 647.
In this case, however, the legislative history does provide information regarding legislative intent. As we have discussed, there was repeated testimony during the legislative hearings in which proponents emphasized the need to criminalize trafficking where the victims were used for prostitution. See Minutes, Sen. Judiciary Comm., February 16, 2006 (2005 Judiciary Minutes). Further, the legislature was advised there would be overlap between aggravated trafficking and other criminal offenses but were told the comprehensive aggravated trafficking provision was needed. Then-Professor Kobach, in listing various reasons the Kansas Legislature should adopt state legislation even though there was a federal trafficking statute, indicated that “cases may arise in which human trafficking offenses are part of a larger set of crimes. Prosecution of the defendants for tírese state crimes, along with the trafficking crimes, in a single state jurisdiction may offer the best prosecution strategy.” 2005 Judiciary Minutes, attach. 10, p. 6. The United States Department of State representative also indicated a trafficking crime can involve other offenses; he specifically mentioned lad-napping and prostitution. But he urged passage of legislation criminalizing trafficking because “[cjurrent state statutes do not always cover the range of activities traffickers engage in” and “[sjtate laws specific to human trafficking help ensure there are no legal gaps in our efforts to confront trafficking at home.” He further indicated that the trafficking legislation covers a wide range of activities where other state offenses only cover portions of the illegal conduct. 2005 Judiciary Minutes, attach. 13, p. 4. While the testimony of these conferees does not necessarily indicate legislative intent, the legislature’s action of following the conferees recommenda tions, including amendments, is indicative of the intent to cover a wide range of activities.
This case is illustrative. Although the State’s evidence may have been sufficient to sustain a charge against Williams for promoting prostitution, his conduct went beyond tire behaviors targeted by that provision and more clearly fall within the scope of conduct the legislature intended to criminalize through the aggravated trafficking statute. As we have noted, Williams himself engaged in sexual activity with L.M. and did so in a manner that left L.M. feeling she had no choice but to comply with his request. Only charging promoting prostitution would not have covered all aspects of Williams’ criminal intent when he recruited and transported L.M.
Additionally, L.M.’s testimony indicated Williams used L.M.’s vulnerability to lure her and to use her to his advantage—-the type of exploitation the legislature determined warranted a harsher punishment. Williams exploited L.M.’s vulnerability as a minor by removing her to a different state where her contacts and resources would be limited and largely controlled by him. Moreover, he strictly controlled her behavior, her access, and her comings and goings. For example, he told her she could not call the woman with whom she lived, and he directed her to look down and only speak when she was given permission or when someone spoke directly to her. He frequently checked on her while she worked the streets and essentially forced her into servicing many men each day.
The level of control exerted by Williams, at least according to L.M.’s testimony, is illustrated by a statement defense counsel made in closing arguments. Defense counsel was pointing out reasons L.M. should not be believed, including the contradictory inferences that could be drawn from her testimony. While suggesting that aspects of L.M.’s testimony indicated Williams did not exert the level of control over L.M. that she at other times suggested, defense counsel summarized the inferences favorable to the State’s position, which were that Williams “was the only person that has contact with this girl who can’t get anything to drink by herself, who can’t eat by herself, who apparently has to shower when she asks his permission, who apparently, can only go in or out when [Williams] lets her, and she doesn’t have any clothes, and she can’t do anything without [Williams].” While defense counsel is correct that the jurors could have rejected these inferences that suggest L.M. was being used or exploited, the jurors could accept her testimony and infer that she was “used” by Williams in a manner the legislature determined should be punished as aggravated trafficking and in ways that are broader than those circumstances defined as promoting prostitution. See 2005 Judiciary Minutes.
Further, the analysis adopted by This court in Helms, 242 Kan. 511, is persuasive in light of die legislative history regarding S.B. 151, i.e., K.S.A. 21-3447. In Helms, this court held the offense of indecent liberties widi a child is not a more specific offense of rape when the victim is a minor. The court reasoned that allowing an individual who rapes a minor to receive a shorter sentence than someone who rapes an adult would provide less protection to child victims than adult victims. This view, the court concluded, “flies in the face of logic and reason. It requires an assumption tiiat the legislature intended to afford less protection to the most vulnerable segment of our society.” 242 Kan. at 515. Likewise, it flies in the face of logic to assume the legislature intended to afford less protection to those minors trafficked for prostitution than those trafficked for otiier forms of sexual exploitation, especially given a legislative record replete with testimony about traffickers luring young girls into prostitution rings.
Thus, although our reasons vary from those of the Court of Appeals, we hold tiiat promoting prostitution is not a more specific crime under the facts of this case.
Prosecutorial Misconduct
In Williams’ next issue on appeal, he contends the prosecutor committed misconduct. Williams focuses on two comments: (1) a portion of the State’s closing argument in which the prosecutor discussed the credibility of L.M. and Williams and (2) a portion of the State’s rebuttal argument in which the prosecutor told die jurors tiiat the defense had the same subpoena power as the State.
Appellate review of allegations of prosecutorial misconduct, including misconduct occurring during closing arguments, which need not be preserved by a contemporaneous objection, requires a two-step process. First, the appellate court determines whether there was misconduct, i.e., whether the prosecutors comments were outside the wide latitude allowed in discussing tire evidence. Second, if misconduct is found, the appellate court determines whether those comments compel reversal, i.e., whether the statements prejudiced the juiy against the defendant and denied the defendant a fair trial. State v. Bridges, 297 Kan. 989, 1012, 306 P.3d 244 (2013) (citing State v. Marshall, 294 Kan. 850, 856, 281 P.3d 1112 [2012]); State v. Tosh, 278 Kan. 83, Syl. ¶ 1, 91 P.3d 1204 (2004).
1. Comments on L.M.’s Credibility
Applying the first step of this analysis, Williams initially focuses on a statement made during the State’s closing argument: The prosecutor emphasized that it was the jurors’ duty to evaluate the credibility of the witnesses, including the weight and credit that should be given to the vastly different versions of events testified to by L.M. and Williams, stating:
“I wasn’t playing [L.M.’s interview] for you to elicit sympathy. You know, you have a juiy instruction that you should not use sympathy in your deliberations. The evidentiary value of that is it corroborates what it is that really happened to her. You know, just in the scheme of things, she does not minimize her own immoral acts of what happened in this case. Doesn’t that actually lend credibility to what it is that she’s telling you?
“What about his credibility? . . .
“His credibility. He can’t come up with the simplest details to fend the basis of the story—his job, his hair, his name, his whereabouts. You go off on reasonable doubt.
“Ladies and gentlemen, in every criminal case, the burden of proof is beyond a reasonable doubt. In order to find tire defendant guilty, you must find the elements of the offenses beyond a reasonable doubt. You may still have a doubt and convict, as long as it’s not a reasonable one. So weight and credit and context. Yes, she has had a horrible life. Doesn’t that make her even more credible, then?” (Emphasis added to challenged statements.)
Williams argues these comments were outside the wide latitude allowed the prosecutor because the comments were the prosecutor’s personal beliefs as to the reliability or credibility of L.M.’s testimony and the lack of Williams’ credibility. The State responds that these comments were not the prosecutor s personal opinion but rather reasonable inferences that the evidence supported L.M.’s credibility. The Court of Appeals agreed with the State. Williams, 46 Kan. App. 2d at 47-48 (quoting State v. Scaife, 286 Kan. 614, Syl. ¶ 5, 186 P.3d 755 [2008]). The parties’ respective arguments point to different ends of the spectrum of our cases regarding a prosecutor’s comments on witness credibility.
Williams points to the end representing a prosecutor’s impermissible expression of his or her opinion about a witness’ credibility. These cases apply the rule that a prosecutor is not allowed to offer a personal opinion on credibility because such a comment is “unsworn, unchecked testimony, not commentary on the evidence of the case.” State v. Pabst, 268 Kan. 501, 510, 996 P.2d 321 (2000) (credibility was crucial to the defendant’s case and the prosecutor’s repeated comments that defendant was a liar were the prosecutor’s personal opinion and outside the wide latitude); see Kansas Rules of Professional Conduct (KRPC) 3.4(e) (2013 Kan. Ct. R. Annot. 601) (“A lawyer shall not:... [e] in trial,... state a personal opinion as to . . . the credibility of a witness. . . .”); KRPC 3.8 (2013 Kan. Ct. R. Annot. 614) (special duties of a prosecutor).
Specifically, Williams relies on State v. Brinklow, 288 Kan. 39, 200 P.3d 1225 (2009), to support his contention that the prosecutor’s statements were her personal opinions. In Brinklow, the prosecutor made comments such as “I think that [a witness’] testimony was reliable. It was credible and as I’ll show you more.” 288 Kan. at 50. Applying Pabst, 268 Kan. 501, this court found that it was improper for the prosecutor to tell the jury that he thought a witness is reliable and credible. 288 Kan. at 50.
Pointing to the other end of the spectrum, the State relies on cases recognizing that a prosecutor has “ ‘freedom ... to craft an argument that includes reasonable inferences based on the evidence,’ ” and, “ ‘when a case turns on which of two conflicting stories is true, certain testimony is not believable.’ ” State v. King, 288 Kan. 333, 352, 204 P.3d 585 (2009) (prosecutor’s argument that witness did not have “ ‘motive’ ” to be untruthful was a fair argument based on the evidence; prosecutor may comment on “witness’ motivations to be untruthful” [quoting State v. Davis, 275 Kan. 107, 121, 61 P.3d 701 (2003)]); see State v. Armstrong, 299 Kan. 405, 429, 324 P.3d 1052 (2014) (statement about defendant’s “denial, half-truths, truths, other stories” was fair comment on evidence because defendant gave six inconsistent versions of the crime); State v. Todd, 299 Kan. 263, 285, 323 P.3d 829 (2014) (not misconduct to state that witness was not credible because statement was made in context of arguing witness was biased because of familial relationship to defendant and had criminal record of crimes of dishonesty); State v. McReynolds, 288 Kan. 318, 325-26, 202 P.3d 658 (2009) (“When a defendant has told one story during interrogation and a completely different stoiy at trial, it would be difficult for a prosecutor to comment on the evidence without suggesting that untruths existed,” and a prosecutor may “properly offer!] the jury an explanation of what it should look for in assessing witness credibility.’ ”).
In contrast, the prosecutor in this case never stated, “I think” or “she’s credible.” The prosecutor started her discussion about credibility by telling the jurors they “get to evaluate the credibility of witnesses in the case.” The prosecutor continued by drawing the jurors’ attention to specific evidence, the consistency of L.M.’s statements and testimony, and the evidence that corroborated L.M.’s version of events. The prosecutor also discussed evidence that discredited Williams’ testimony. Following the discussion of the evidence, the prosecutor asked the jurors some rhetorical questions: Did the evidence make L.M. credible? Or did it make Williams credible?
This presentation was consistent with our holdings that “a prosecutor may explain the legitimate factors which a jury may consider in assessing witness credibility and may argue why the factors present in the current case should lead to a compelling inference of truthfulness.” Scaife, 286 Kan. 614, Syl. ¶ 5; see, e.g., State v. Huerta-Alvarez, 291 Kan. 247, 262, 243 P.3d 326 (2010) (prosecutor’s remarks in closing regarding victim’s credibility the case “were generally in the nature of reviewing what [the witness] said, asking the jury to assess the credibility of her statements, and querying the jury why she would not have made up a more convenient story if in fact she had fabricated the stoiy at all”).
Placed in context, the prosecutor s statements directed the jury to the evidence that boosted or degraded the credibility of L.M. and Williams and were not the prosecutor’s personal opinion about the witnesses’ veracity. Thus, the statements were not outside the wide latitude allowed a prosecutor in discussing evidence and were not misconduct.
2. Improperly Shifting the Burden of Proof
Next, Williams objects to a statement the prosecutor made at the start of the State’s rebuttal arguments. To place the prosecutor’s comments and the parties’ arguments in context, we must first recognize a statement made by defense counsel during closing arguments. Defense counsel pointed out that L.M. testified she and Williams had contact with other people who could have corroborated L.M.’s testimony. After pointing out that none of these potential witnesses had testified, defense counsel asked, “[W]hy isn’t there more? Wouldn’t diere be more if it really happened like [L.M.] said?” Defense counsel then concluded by saying, “That’s all the State needed, and they couldn’t produce it. They couldn’t find one witness, even though [L.M.] has told them names that may not even exist.”
In apparent response, the prosecutor started her rebuttal argument by stating:
“Where are all these witnesses? He says that if the State had these witnesses with these funky names, they would have brought them in here to testify for you. Guess what, ladies and gentlemen. The defense has subpoena power identical—■
“[Defense Counsel]: The burden is shifting, Your Honor.
“THE COURT: Overruled.
“[Prosecutor]: The defense has subpoena power identical to the State.” (Emphasis added to challenged statements.)
The Court of Appeals panel determined the challenged statements were not misconduct because the prosecutor was “clearly responding to defense counsel.” The panel noted: “ ‘No prejudicial error occurs where the questionable statements by a prosecuting attorney are provoked and made in response to prior arguments or statements by defense counsel.’ ” State v. Williams, 46 Kan. App. 2d 36, 48, 257 P.3d 849 (2011) (quoting McReynolds, 288 Kan. at 325).
Until recently, two inconsistent lines of cases existed in Kansas caselaw regarding whether a prosecutor s statement is misconduct when the statement is made in response to defense counsel’s argument. In State v. Manning, 270 Kan. 674, 701, 19 P.3d 84 (2001), for example, this court held that “[ajlthough the prosecution may present evidence in an area that is normally forbidden after a defendant has opened the door, the "open door’ rule does not apply to misconduct of counsel.” On the other hand, without distinguishing Manning or similar cases, this court has often held that “no prejudicial error occurs—including prosecutorial misconduct— where the questionable statements are provoked and made in response to prior arguments or statements by defense counsel.” State v. Murray, 285 Kan. 503, 517, 174 P.3d 407 (2008), overruled by Marshall, 294 Kan. 850; State v. McKinney, 272 Kan. 331, 347, 33 P.3d 234 (2001), overruled on other grounds by State v. Davis, 283 Kan. 569, 158 P.3d 317 (2006); see McReynolds, 288 Kan. at 325 (citing Murray, 285 Kan. at 517). It is this line of cases on which the Court of Appeals relied in this case. Williams, 46 Kan. App. 2d at 48.
After the Court of Appeals’ decision in this case, in Marshall, 294 Kan. 850, we discussed the two disparate lines of cases and reaffirmed the holding in Manning, stating drat “a prosecutor commits misconduct by making an improper argument, even if the improper argument is made in response to arguments or statements by defense counsel. The open-the-door rule does not insulate a prosecutor from a finding of misconduct.” 294 Kan. at 860. Instead, a “prosecutor’s improper comment or argument can be prejudicial, even if the misconduct was extemporaneous and made under the stress of rebutting arguments made by defense counsel. The extemporaneous, rebuttal nature of a prosecutor’s argument is merely a factor to be considered by an appellate court.” 294 Kan. at 861.
Thus, we do not end our discussion as did the Court of Appeals—i.e., by simply noting that the comments were made in response to defense counsel’s statement. Rather, although we con sider that context, we must consider whether the prosecutor s statements were an improper attempt to shift the burden of proof. In other words, was there misconduct?
In that regard, Kansas caselaw establishes that it is “ ‘ “improper for the prosecutor to attempt to shift the burden of proof to the defendant or to misstate the legal standard of the burden of proof.” ’ ” State v. Peppers, 294 Kan. 377, 397, 276 P.3d 148 (2012) (quoting State v. Duong, 292 Kan. 824, 832, 257 P.3d 309 [2011]); State v. Stone, 291 Kan. 13, 18, 237 P.3d 1229 (2010); see Tosh, 278 Kan. at 89-92. Nevertheless, “ ‘considerable latitude [is] granted to prosecutors to comment on the weakness’ ” of the defense. Stone, 291 Kan. at 18 (quoting State v. Burden, 30 Kan. App. 2d 690, 703, 46 P.3d 570 [2002], rev'd on other grounds 275 Kan. 934, 69 P.3d 1120 [2003]); McKinney, 272 Kan. at 346 (where the jury has been properly instructed the prosecution has the burden of proof, a prosecutor may argue inferences based on the balance or lack of evidence).
In applying these principles, several decisions of this court have dealt with comments regarding a party’s subpoena power and have drawn a line indicating a prosecutor cannot suggest a defendant must disprove the State’s case. For instance, in a case Williams cites, Tosh, 278 Kan. 83, this court held that the prosecutor improperly attempted to shift the burden by rhetorically asking, “ ‘ “[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. Yet, if a defendant asks the jury to draw an inference that the State’s evidence is not credible because the State did not call a witness to corroborate other evidence, we have held that the State can refute tire inference by informing the jury that the defense has the power to subpoena witnesses, including those who would be favorable to the defense. See, e.g., State v. Naputi, 293 Kan. 55, 63-64, 260 P.3d 86 (2011).
In Naputi, the defense argued that the jury could “assume that the therapist would not have helped the State’s case because the State did not call him as a witness. The implication, then, is that the witness would have been beneficial to the defense.” 293 Kan. at 64. In response, tire prosecutor stated, “ Where is the therapist to talk about this case. . . . The defense has subpoena power just like the State does. If they wanted to get the therapist in here to discount the quality of those feelings, they were welcome to do so and did not' ” 293 Kan. at 63. The Naputi court determined that it was “within the wide latitude given to prosecutors to respond to that purported inference by pointing out that if the therapist would have been helpful to the defense, the defense could have subpoenaed him. Such a comment, refuting a purported inference, is not an impermissible shifting of die burden of proof.” 293 Kan. at 64; see, e.g., State v. Verge, 272 Kan. 501, 512-14, 34 P.3d 449 (2001) (prosecutor’s comment on witness’ availability and defense’s subpoena power not impermissible burden shifting but reasonable response to defense argument that faulted State for failing to call witness); see also State v. Baker, 249 Kan. 431, 446-49, 819 P.2d 1173 (1991); State v. Hanks, 236 Kan. 524, Syl. ¶ 7, 694 P.2d 407 (1985); State v. Robinson, 219 Kan. 218, 221, 547 P.2d 335 (1976).
Likewise, more generally, this court has held a prosecutor does not shift the burden of proof by pointing out a lack of evidence to support a defense or to corroborate a defendant’s argument regarding holes in the State’s case. See, e.g., State v. Wilson, 295 Kan. 605, 623-25, 289 P.3d 1082 (2012) (holding prosecutor’s arguments that defendant had no explanation for his DNA found near crime scene did not improperly shift burden of proof; radier, it was comment on efficacy of defense and pointed jurors to lack of evidence supporting defendant’s version of events); State v. Cosby, 293 Kan. 121, 135-37, 262 P.3d 285 (2011) (finding prosecutor’s statements asking jury if it had heard any evidence that suggested witness’ testimony was wrong did not improperly shift burden of proof because prosecutor was only commenting generally on defendant’s failure to rebut witness’ testimony and not commenting on defendant’s failure to testify); Duong, 292 Kan. at 832-33 (holding prosecutor’s arguments questioning defendant’s failure to present evidence of misidentification did not improperly shift burden of proof because prosecutor did not call upon defense to disprove crime’s occurrence 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 over come’ ” were within considerable latitude granted to prosecutors to comment on weaknesses of defenses).
In this case, the prosecutor’s statements did not call upon the defense to disprove the occurrence of the crime. See Tosh, 278 Kan. at 92. Rather, the prosecutor responded to defense counsel’s argument by recounting evidence regarding steps law enforcement officers took to verily the identity of the people L.M. talked about, most of whom she knew only by their nicknames or first names. Accordingly, the prosecutor’s comments were not outside tire wide latitude allowed in discussing evidence.
Apprendi/Ivory
Finally, Williams contends the district court’s use of his prior convictions in his criminal history score to enhance his sentence without requiring the criminal history to be included in the complaint and proven to a jury beyond a reasonable doubt violated his constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Williams acknowledges that this court has previously rejected this argument. See State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002). Williams has not presented a new or persuasive argument compelling us to overturn this precedent.
The judgment of the Court of Appeals affirming the district court is affirmed. The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Per Curiam:
After the State charged James L. Simpson with aggravated indecent liberties with a child and aggravated child endangerment, Simpson requested a psychiatric evaluation of the complaining child witness. Although the district court ordered the evaluation, the child’s mother refused to give the necessary consent, so Simpson filed a motion in limine seeking to suppress the child’s testimony and statements. The district court granted Simpson’s motion, and the State filed an interlocutory appeal. After analyzing potential legal justifications for suppression and concluding none supported the district court’s ruling, the Couit of Appeals panel reversed the district court’s suppression order. State v. Simpson, No. 105,182, 2011 WL 4563106 (Kan. App. 2011) (unpublished opinion). We granted Simpson’s petition for review.
Because we conclude the State’s narrow argument to the Court of Appeals fails, we reverse the Court of Appeals’ decision, affirm the district court’s ruling, and remand for further proceedings.
Factual Background
Our resolution of this case requires only a brief factual recitation. The State charged 43-year-old James Simpson with aggravated indecent liberties with a child and child endangerment after 13-year-old K.S. told law enforcement Simpson touched her chest and vagina with his hand. Law enforcement also was given a note from K.S. to Simpson wherein K.S. wrote: “I’m mad at you but I stell Love you can stell do it with me” and “ps I (drawn heart) U baby boy.”
Following a preliminary hearing at which K.S. testified, Simpson filed a motion seeking a psychiatric evaluation of K.S. Citing State v. Gregg, 226 Kan. 481, 602 P.2d 85 (1979), Simpson argued the State’s case hinged on K.S.’s credibility and because K.S. had “conveyed several extremely .divergent accounts” of the contacts between her and Simpson, a psychiatric evaluation was appropriate. Simpson also suggested that K.S. suffered from a “mental disease or defect” based on K.S.’s intelligence quotient (IQ), which was in the .1 percentile for her age group. Finally, Simpson contended K.S. had a motive to lie “based upon her sister’s conduct in a pending Douglas County case against her father.”
The State urged the district court to reject Simpson’s request for a Gregg evaluation, asserting K.S.’s low IQ demonstrated neither an inability to tell the truth nor a “mental instability.” The State also argued that K.S. had consistently described Simpson’s conduct and that an eyewitness corroborated Simpson’s inappropriate conduct with K.S.
Ultimately, the district court granted Simpson’s motion and ordered K.S. to submit to a psychiatric evaluation. In support, the court cited K.S.’s age and low cognitive abilities.
Approximately 1 month later, the parties informed the district court that G.I.S., K.S.’s mother, refused to consent to K.S.’s evaluation, believing it was not in K.S.’s best interest. Protracted proceedings followed, during which the district court considered but declined to decide whether it could order G.I.S. to consent to K.S.’s evaluation. At one point, the court warned the State that if G.I.S. maintained her refusal to consent, the court would suppress K.S.’s testimony and any discussion of her statements. The State protested, asserting that suppression was not an appropriate remedy because K.S. was a competent witness.
Eventually, approximately 3 months after the district court granted Simpson’s motion for a psychological evaluation, Simpson filed a motion in limine seeking to suppress K.S.’s statements and testimony based on her failure to undergo a Gregg evaluation. In support, Simpson cited K.S.A. 60-408, which gives the district court discretion to determine a witness’ qualifications to testify, and briefly mentioned a case discussing the Confrontation Clause.
The district court granted Simpson’s motion in limine. The State then filed an interlocutory appeal, asserting the district court erred in granting the motion in limine because K.S. was a competent witness and qualified to testify.
In an unpublished decision, the Court of Appeals reversed the district court’s decision suppressing K.S.’s statements and testimony, and in doing so the panel considered and rejected several possible justifications for the decision. Initially, the panel determined the rules of evidence did not permit the suppression because an individual is qualified to be a witness as long as he or she is capable of expression and can understand the duty to tell the truth, i.e., the person is competent. Because the district court did not find K.S. incompetent, the panel rejected this rationale. Simpson, 2011 WL 4563106, at *5-6. The panel further declined to find that the district court suppressed K.S.’s testimony as a sanction, concluding sanctions were inappropriate because no party had violated a court order. 2011 WL 4563106, at *7. Next, the panel concluded the district court’s decision could not be upheld as a ruling on a limine motion because suppression based on a motion in limine is appropriate only when the evidence is inadmissible, and the panel found no legal basis for finding K.S.’s statements and testimony inadmissible. 2011 WL 4563106, at *10-11. Finally, the panel rejected Simpson’s constitutional arguments, finding Simpson failed to demonstrate that his fundamental right to present his theory of defense would be implicated if he were forced to proceed to trial without the Gregg evaluation. 2011 WL 4563106, at *11-12. Finding no basis upon which to affirm the district court’s de- cisión, the panel reversed the suppression ruling and remanded for further proceedings.
We granted Simpson’s petition for review, obtaining jurisdiction under K.S.A. 60-2101(b).
Analysis
The State’s interlocutory appeal presented the Court of Appeals with “[t]he narrow issue” of whether the trial court abused its discretion “when it deemed the witness to be incompetent and suppressed the testimony of that witness” even though “the Defendant introduced no evidence that tended to establish one of the two alternative standards for witness incompetency pursuant to K.S.A. 60-417.” Despite the singular issue framed by the State, the Court of Appeals considered multiple alternative bases for the trial court’s ruling, ultimately rejecting them all.
But unlike the panel, we choose to confine our review to the narrow issue framed by the State. And while that issue may be intriguing, it does not fit either the facts of this case or the ruling of tire district court.
More specifically, the record does not support the State’s contention that the district court based its ruling solely on a determination that K.S. was incompetent to testify. While the State repeatedly urged the district court to conduct a hearing to determine K.S.’s competency, the court failed to focus on any particular concern in its orders related to the motion to compel or during any of the proceedings generated by the motion. For instance, in the journal entry formalizing the court’s limine order, tire district court indicated it based its ruling on “the previous rulings and Orders of the court” and “the non party [sic], natural mother’s, failure to consent to the evaluation of the alleged victim and consequential failure to comply with the previously ordered evaluation/examination.” This language seems to suggest, as Simpson contends, that the court suppressed K.S.’s testimony as a sanction for her mother’s refusal to comply with the evaluation order.
Further, at an earlier hearing on a motion to compel, the district court intimated a due process concern, opining that the defendant should “have the opportunity to have access to [the evaluation re- suits] for whatever legitimate use they may be as a matter [of] law in his defense.” Thus, while the basis for the district court’s ruling is less than clear, it is clear that the court’s concerns about the victim’s competency were not the sole reason for the court’s decision to suppress K.S.’s testimony.
The State, as the appellant in this case, bears the burden of compiling a record sufficient to support its arguments. See Nold v. Binyon, 272 Kan. 87, 96, 31 P.3d 274 (2001). If the district court’s findings were inadequate for an appellate court to review the State’s argument on appeal, the State must shoulder part of the blame and suffer the consequences. Cf. State v. Seward, 289 Kan. 715, 720, 217 P.3d 443 (2009) (district court and appellant share responsibility for inadequate findings; a litigant who fails to object to inadequate Rule 165 findings is foreclosed from making appellate argument that depends on what is missing).
Although ultimately unsuccessful, we will respect the State’s strategic decision to narrowly frame its issue. Because the State asked the Court of Appeals only to review whether the district court abused its discretion in making a competency determination, we must find the record and the district court’s rulings inadequate to answer this question.
Accordingly, we reverse the Court of Appeals, affirm the district court’s decision, and remand for further proceedings.
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The opinion of the court was delivered by
Luckert, J.:
Scott Michael Mosher appeals his sentences, arguing the sentencing judge abused his discretion by not following the parties’ recommendation that his sentences for felony murder and conspiracy to commit first-degree murder be served concurrently. We reject his argument. It has long been understood that a sentencing judge is not bound by the parties’ sentencing recommendations and has discretion to order sentences to be served consecutively. On appeal, this exercise of discretion will not be overturned if reasonable people could agree with the sentencing judge’s decision. Under this standard and the facts of this case, Mosher’s appeal is without merit, and we affirm.
Facts and Procedural Background
Mosher’s sentences were imposed after he accepted a plea agreement offered by tire State. In the plea agreement, the State agreed to dismiss an unrelated case, to dismiss some counts in a second unrelated case, and to recommend the court impose concurrent sentences for the two convictions in this case.
At the plea hearing, the State offered a factual basis for the plea, indicating Mosher discussed with his mother and two other individuals a plan to murder his mother’s husband, Jerry Eberhardt. Mosher obtained a gun and, on the evening, of the murder, rode over to the Eberhardt home with two of his conspirators. He met his mother in the garage where he confirmed she. wanted to proceed with the plan. Mosher and another man entered tire home, while the other conspirator remained in the car. In an apparent effort to cover the noise of people moving around in the house, Mosher s mother turned the water on in a bathroom near the bedroom in which Eberhardt was located. Mosher and the other man tiren walked down a hallway, entered the bedroom, and Mosher shot Eberhardt in the head.
Mosher did not challenge the State’s factual statement and entered a guilty plea. The court accepted the State’s proffered facts as the basis for accepting Mosher’s plea.
Mosher was sentenced at a separate hearing. Consistent with the plea agreement, both defense counsel and the State requested concurrent sentences. The judge decided not to follow the plea agreement and ordered the sentences to be consecutively served, imposing life imprisonment without the possibility of parole for 20 years for the felony-murder conviction and 117 months’ imprisonment for the conspiracy conviction.
Mosher timely appeals his sentences. This court’s jurisdiction is under K.S.A. 22-3601(b)(l) (maximum sentence of life imprisonment imposed).
Analysis
“[I]n Kansas both parties to a plea agreement assume the risk the sentencing court will impose a sentence different than the sentence recommended as part of the plea agreement because sentence recommendations made pursuant to a plea bargain are not binding on the trial court. [Citation omitted.]’’ State v. Boley, 279 Kan. 989, 996, 113 P.3d 248 (2005). Further, as Mosher recognizes, “ ‘[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. Ross, 295 Kan. 1126, 1138, 289 P.3d 76 (2012) (quoting State v. Jamison, 269 Kan. 564, 576, 7 P.3d 1204 [2000]). In fact, this principle of a judge’s discretion is so entrenched that the legislature determined a defendant can not raise die issue of whether imposing consecutive sentences is an abuse of discretion if the sentence is imposed under the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq. See K.S.A. 21-4721(c)(l). Moshers convictions, however, do not fall under the KSGA because this is a mhlticonviction case in which one is an off-grid felony. See Ross, 295 Kan. at 1137-38. Thus, he can appeal the consecutive nature of his sentences. But to prevail he must establish that the sentencing judge abused his discretion.
Judicial discretion can be abused in three ways: (1) if no reasonable person would have taken the view adopted by the trial court; (2) if the judicial action is based on an error of law; or (3) if the judicial action is based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).
Mosher does not claim the sentencing judge’s decision was based on an error of law or fact; rather, he challenges whether die action was so unreasonable no other person would have taken the judge’s approach. In doing so, Mosher argues the judge’s decision to order consecutive sentences was arbitraiy, fanciful, or unreasonable because (1) Mosher took responsibility for his actions and entered guilty pleas, (2) he “spared everyone the pain and expense of going through a jury trial,” and (3) he must complete rehabilitation requirements before becoming eligible for parole. At the sentencing hearing, defense counsel advanced these same arguments to support Mosher’s request for concurrent sentences.
The sentencing judge weighed the arguments that were presented to him and noted he had presided over the preliminary hearing and various motions. He stated:
“I’ve heard a variety of tilings of what went on with Mr. Mosher’s life, what went wrong, with what may have gone right with it, what the family relationships were, may have been, the debate that centered around that.
“This particular Case could have been stopped at oh, so many stages. I remember hearing testimony at different times, as well as factual basis presented about a first attempt to get a gun and how somebody reneged on that deal, and [Mosher] had to go out and get his own gun. This event could have stopped. This event could have stopped at whatever meeting and discussions he had with his mother the day of the offense. Later, on the night of the offense and the planning and how to get this done, this could have stopped in the hallway outside die door of the bedroom. This could have stopped oh, so many times, and not only is the conspiracy in itself an offense, but the way in which Mr. Eberhardt was killed, senseless, needless, with all the volatility that may have been going on in that family relationship, some of which I know, some of which I don’t know, all [Mo-sher] had to do was stay away. There were lots of resources . . . , none of which was taken advantage of.”
These comments reflect that the sentencing judge took into consideration the amount of planning and effort that went into this violent murder and how it could have been prevented. Neither Mosher s acceptance of responsibility, the nature of rehabilitation programs that would be completed before Mosher could be paroled, the savings that would result from Mosher s decision to plead rather than exercise his right to a jury trial, nor any combination of these considerations offset the compelling reasons stated by the judge for imposing consecutive sentences. See State v. Baker, 297 Kan. 482, 484-85, 301 P.3d 706 (2013) (following Ross, 295 Kan. 1126, and finding district court did not abuse its discretion by imposing consecutive sentences).
Based on the facts of this case, a reasonable person could agree with the sentencing judge’s conclusion that consecutive sentences were appropriate.
Affirmed.
Beier, J., not participating. | [
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The opinion of the court was delivered by
Nuss, C.J.:
Rusty Sievers contends the district court and Court of Appeals both erred in refusing to dismiss the charges against him for violation of his statutory right to a speedy criminal trial.
Finding no violation, we affirm.
Facts and Procedural History
The State charged Sievers with a variety of offenses stemming from police attempts to approach him while his SUV was stopped at an intersection.
Sievers entered his first appearance, and the district court set an appearance bond, which was “conditioned upon the appearance of defendant before [the] Court when ordered.” Ultimately Sievers posted bond and the court held a preliminaiy hearing, concluding probable cause existed to believe he committed the crimes charged. At Sievers’ June 13 arraignment, the court set a pretrial hearing for August 22 and a jury trial for September 30.
Sievers failed to attend the August 22 pretrial hearing. There his attorney advised she had not spoken with him since his June 13 arraignment. And a court services officer advised Sievers had stopped reporting to her. On August 26, the State filed its bond forfeiture motion and the court issued a bench warrant for Sievers’ arrest.
On September 9, Sievers’ counsel moved to withdraw her representation or, in the alternative, to continue the September 30 trial. On September 12, she advised she had been unable to contact him and noted the impossibility of preparing for the upcoming trial without him. The court deferred ruling until either Sievers was arrested or September 26, the date of the next hearing.
On September 25, Sievers surrendered to law enforcement, and the next day his bond was formally revoked. His counsel withdrew her motion but again requested the September 30 jury trial be continued. The court granted a continuance and reset the pretrial hearing for October 10.
At the October 10 hearing, Sievers’ counsel successfully withdrew due to a previously undiscovered conflict of interest, and the court appointed new counsel. Because that counsel needed time to prepare, the court again rescheduled but no formal continuance was requested or granted. Ultimately, the court reset the jury trial for January 27, 2009.
A week before trial, defense counsel moved to dismiss based upon violation of Sievers’ statutory right to a speedy trial. In de nying the motion, the court emphasized most of the delay had been caused by Sievers3 absconding and his counsel’s requests for trial continuances.
On January 27, the trial began. The jury convicted Sievers of fleeing or attempting to elude a law enforcement officer by driving recklessly, driving with a suspended license, reckless driving, leaving the scene of an accident, and failing to report an accident. But it acquitted him of felony aggravated assault on a law enforcement officer.
Sievers appealed, and the Court of Appeals reversed his reckless driving conviction as multiplicitous. But it rejected his claim of a speedy trial violation. See State v. Sievers, No. 102,471, 2010 WL 4977153 (Kan. App. 2010) (unpublished opinion).
We granted Sievers’ petition for review to address his argument that the four remaining convictions should be reversed because both lower courts improperly rejected his speedy trial argument. Our jurisdiction is proper under K.S.A. 60-2101(b).
Analysis
Issue: The State did not violate Sievers’ statutory right to a speedy trial.
Standard of review and general principles governing statutory speedy trial issues
Whether the State violated a defendant’s statutory right to a speedy trial is a question of law subject to de novo review. State v. Thomas, 291 Kan. 676, 692, 246 P.3d 678 (2011) (citing State v. Mitchell, 285 Kan. 1070, 1080, 179 P.3d 394 [2008]). To the extent Sievers’ appeal requires interpretation of K.S.A. 22-3402, this court exercises unlimited review. State v. Berreth, 294 Kan. 98, 109, 273 P.3d 752 (2012).
The speedy trial clock is triggered at arraignment. See Thomas, 291 Kan. at 692, 694 (days between arraignment and next event were assessed against the State); State v. Vaughn, 288 Kan. 140, 146, 200 P.3d 446 (2009) (same). And the State alone is responsible for bringing the accused to trial within the statutory time limitation. State v. Breedlove, 295 Kan. 481, 486, 286 P.3d 1123 (2012). The accused has no obligation to take affirmative action to protect his or her statutory speedy trial right. 295 Kan. at 486; Vaughn, 288 Kan. at 144.
Discussion
During the pretrial proceedings in this case, the statute creating a person’s right to a speedy trial read in relevant part:
“(2) If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within 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 bé ordered by the court....
“(4) After any trial date has been set within the time limitation prescribed by subsection . . . (2), if the defendant fails to appear for the trial or any pretrial hearing, and a bench warrant is ordered, the trial shall be rescheduled within 90 days after the defendant has been surrendered on such warrant. However, if the defendant was subject to the 180-day deadline prescribed by subsection (2) and more tiran 90 days of the original time limitation remain, then the original time limitation remains in effect.” K.S.A. 22-3402 (Torrence 2007).
Because Sievers was released on an appearance bond, the State initially had 180 days from arraignment to bring him to trial per K.S.A. 22-3402(2) or else suffer his release from liability for his charges. The State concedes, and we agree, that the first 70 days between Sievers’ June 13 arraignment and his failure to appear at the August 22 pretrial hearing are attributable to the State. So as of August 22, the State had 110 days remaining to bring him to trial. But the parties disagree on which of them is to be charged for the 35 days from August 22 through September 25, a decision which is determinative of the speedy trial issue.
Sievers argues that his failure to attend the August 22 hearing did not stop the 180-day speedy trial clock from, running against the State. Rather, the State’s clock stopped only when there was actual delay: when the district court officially granted defense counsel’s continuance on September 26. So he argues that when he surrendered on September 25, only 76 days remained. Given his failure to appear and tire issuance of a bench warrant, Sievers concedes K.S.A. 22-3402(4) seems to apply, and under that subsection and these circumstances the State had only 90 days re maining to bring him to trial. See K.S.A. 22-3402(4) (after defendant has been surrendered on the bench warrant, “the trial shall be rescheduled within 90 days”)- And he contends the State’s failure to do so—by December 25—requires he be discharged from all liability for all charges.
The State responds that, as a practical matter, the trial was delayed by Sievers’ failure to attend the August 22 hearing and to communicate with his attorney, which made it impossible for counsel to prepare for trial. It reasons that its clock stopped then and did not resume until September 25 when he had surrendered on the warrant. Accordingly, it calculates 110 days remained from that date forward, which meant it still had that amount of time in which to bring Sievers to trial. See K.S.A. 22-3402(4) (if “more than 90 days of the original time limitation remain, then the original time limitation remains in effect”).
The best and only safe rule for ascertaining the intention of the makers of any written law is to abide by the language they have used. See Gannon v. State, 298 Kan. 1107, 1142, 319 P.3d 1196 (2014) (citing Wright v. Noell, 16 Kan. 601, 607, 1876 WL 1081 [1876]). Neither K.S.A. 22-3402(2) nor (4) explicitly states the initial speedy trial clock is tolled for determining whether 90 days of the original time limitation should remain after a defendant fails to appear at a pretrial hearing. But subsection (2) does provide:
“If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within 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. . . (Emphasis added.) K.S.A. 22-3402(2).
We have interpreted this language to mean that a delay on the application or fault of the defendant does stop the speedy trial clock from running against the State. See, e.g., City of Dodge City v. Downing, 251 Kan. 561, 563, 894 P.2d 206 (1995) (reasonable time to process defendant’s motion to suppress is charged to defendant); State v. Prewett, 246 Kan. 39, 42, 785 P.2d 956 (1990) (same for time to process and conduct defendant’s requested competency evaluation).
We considered facts similar to the instant case in State v. Welch, 212 Kan. 180, 184, 509 P.2d 1125 (1973). There the defendant was released on pretrial bond. When he failed to appear at trial, the district court issued an alias warrant, t.e., a bench warrant, for his arrest. He was arrested 79 days later. Welch alleged his statutory right to a speedy trial was violated because 257 days elapsed between his arraignment and eventual trial, including the 79 days between his failure to appear at trial and his arrest.
Consistent with the language of K.S.A. 22-3402(2), this court concluded that the ultimate test for whether the speedy trial clock stopped running against the State was whether the 79 days were a result of Welch’s application or fault. The court determined that it was his fault, held die speedy trial clock stopped running against the State for that time, and attributed the disputed 79 days to him.
Here, on August 22 Sievers’ counsel notified the court that he had failed to keep in touch with her since the June 13 arraignment. As of drat date, the court and the State could not have known whether Sievers would be apprehended in time for his counsel’s trial preparation and for die trial itself. And counsel’s September efforts to withdraw her representation or to continue the jury trial because she had been unable to contact him made clear it was virtually impossible for her to prepare his defense on multiple charges, a fact Sievers does not dispute. Indeed, he did not surface until September 25 when he surrendered under the warrant to law enforcement.
We readily conclude die proceedings were delayed as “a result of the . . . fault of the defendant.” See K.S.A. 22-3402(2). So the 35 days from the August 22 pretrial hearing tiirough Sievers’ September 25 surrender are properly charged to him, not the State.
Accordingly, we agree with the State that, as of September 25, 110 days remained to bring Sievers to trial. Additionally, his counsel requested a 14-day continuance from September 26 to October 10, which is not chargeable to the State. See Vaughn, 288 Kan. at 144 (defense continuances toll the statutory speedy trial clock). So before the State would violate his statutory speedy trial rights it had to bring him to trial within 110 days after October 10: January 28. Because trial began on January 27, no violation occurred. See State v. Bierman, 248 Kan. 80, 89, 805 P.2d 25 (1991) (defendant is brought to trial for speedy trial purposes when the jury panel is sworn for voir dire examination).
Judgment of the Court of Appeals affirming the district court on the issue subject to our review is affirmed. Judgment of the district court on that issue is affirmed. | [
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The opinion of the court was delivered by
Rosen, J.:
Shawn Alderson, who is serving a life sentence for first-degree murder, appeals from the summary denial of his motion for release from a restitution order.
The underlying facts of Alderson’s convictions are set out in State v. Alderson, 260 Kan. 445, 922 P.2d 435 (1996). He was convicted of one count of felony murder and one count of aggravated battery. This court affirmed the convictions, vacated the upward durational departure sentence, and remanded. The new sentence, which was imposed on October 30, 1996, and which was the same upward departure sentence of life imprisonment with a consecutive sentence of 86 months for aggravated batteiy, was affirmed by this court in State v. Alderson, 266 Kan. 603, 972 P.2d 1112 (1999).
The issue of restitution was not addressed in the previous two appeals. The sentencing court ordered Alderson to pay restitution to various individuals and entities, including a hospital, insurance companies, and the Kansas Crime Victims Compensation Board, totaling $119,899.86. This amount was based on the calculations made at the original sentencing hearing. It appears that no restitution has ever been collected from Alderson.
On September 20, 2009, Municipal Services Bureau, a private corporation, sent Alderson a notice that he had “outstanding court fine(s)” and that he had to pay $150,903.74 “immediately.” The notice stated that “the Kansas Attorney General has authorized Municipal Services Bureau ... to contact you regarding the outstanding court fine(s).” Alderson filed a pro se motion in district court requesting release from the restitution order based on dormancy, which the district court summarily denied. Alderson took a timely appeal to this court.
The district court ruled that Alderson’s restitution was not yet due and the dormancy petition was premature. Whether Alderson is currently subject to the court’s restitution order is a question of law, and questions of law are subject to unlimited review. See, e.g., State v. Trotter, 296 Kan. 898, 902, 295 P.3d 1039 (2013).
The application of the dormancy statute, K.S.A. 2013 Supp. 60-2403, to crime restitution orders issued under K.S.A. 22-3424(d) (Furse 1995) and K.S.A. 1996 Supp. 60-4301 et seq. is an issue of first impression before this court.
In denying Alderson’s motion, the district court accepted the State’s argument that restitution cannot be enforced against a defendant while the defendant is incarcerated. This argument is based on older cases. See, e.g., State v. DeHerrera, 251 Kan. 143, 155, 834 P.2d 918 (1992) (defendant may not be ordered to pay restitution while incarcerated even if defendant is able to pay); State v. Bowers, 239 Kan. 417, 428, 721 P.2d 268 (1986); State v. McNaught, 238 Kan. 567, 589, 713 P.2d 457 (1986). More recent opinions of our Court of Appeals have also relied on that older line of cases. See, e.g., State v. Robards, 31 Kan. App. 2d 1138, 78 P.3d 825 (2003), rev. denied 277 Kan. 927 (2004). These decisions were grounded in the language of earlier versions of K.S.A. 21-4603(2), which did not include restitution as an item that could be combined with other parts of a sentence.
Subsequent changes in the statutory scheme, however, have provided that a sentencing court could require a convicted person to both serve a sentence of imprisonment and pay restitution. In Puckett v. Bruce, 276 Kan. 59, 61-62, 73 P.3d 736 (2003), this court upheld a district court order permitting the Department of Corrections to collect restitution from the defendant’s prison account while the defendant was incarcerated. The court distinguished Puckett’s arguments, noting that they were based on K.S.A. 2002 Supp. 21-4603 (now K.S.A. 2013 Supp. 21-6702), which applied to crimes committed prior to July 1, 1993, and which, unlike K.S.A. 2002 Supp. 21-4603d, forbade a court to order restitution and a simultaneous term of incarceration. The new statutory scheme allows restitution in addition to other sentencing terms. See K.S.A. 2013 Supp. 21-6604(b)(l). Given that some inmates may have substantial assets when they are sentenced, or may acquire assets, as through inheritance, it is sensible that in tiróse situations victims should not have to wait an indefinite period of time to receive compensation.
The journal entry of sentencing set a total restitution amount of $119,899.86 and added the comment: “The Court finds that restitution is owed in this case, as set out below, and advises tire Secretary of Corrections’ Board of Pardon and Parole that defendant’s release from incarceration should be made contingent upon defendant making restitution.” This language was ambiguous. It is not clear whether the court intended that Alderson be subject to die restitution order during the time of his incarceration or that tiie order of restitution become effective only upon his conditional release from confinement.
K.S.A. 2002 Supp. 21-4603d(b)—the predecessor statute to K.S.A. 2013 Supp. 21-6604(b)—gave the district court the discretion to order at sentencing the withholding of a certain amount as restitution from an inmate’s entire monthly prison account. Puckett, 276 Kan. at 63. This was not done in the present case. If the district court intended that Alderson be subject to the collection of restitution while he is incarcerated, it was required to declare that intention unambiguously. See Bowers, 239 Kan. at 428. The restitution amount therefore did not become due at the time of sentencing or while Alderson is incarcerated.
If it was an enforceable order, then the order would necessarily become effective should Alderson ever be paroled. This is also not a legally viable option. It is well established that a sentencing court does not have the authority to impose parole conditions. It is the role of the Kansas Prisoner Review Board, not the courts, to set conditions of parole. See State v. Clark, 298 Kan. 843, Syl. ¶ 3, 317 P.3d 776 (2014); State v. Waggoner, 297 Kan. 94, 100, 298 P.3d 333 (2013); State v. Mason, 294 Kan. 675, 677, 279 P.3d 707 (2012).
We conclude that the district court did not enter an enforceable restitution judgment when it sentenced Alderson. It instead provided an advisory calculation of damages for the benefit of the Kansas Prisoner Review Board. There being no judgment of restitution, the judgment could not become dormant. The notice that Municipal Services Bureau sent Alderson erroneously asserted that he was in default on a judgment, even if the notice was commissioned on behalf of the district court. Equitable principles, such as quasi-estoppel, cannot be used to convert a legal criminal sentence into an illegal sentence.
When it denied Alderson’s dormancy claim, the district court relied on Robards, 31 Kan. App. 2d 1138, and ruled that the statutory period to enforce the judgment would begin when he is released from prison. Because of statutory changes, Robarás no longer accurately describes the law in this state. The district court was correct, however, in rejecting Alderson’s petition seeking a declaration of dormancy. Because there is no pending judgment ordering Alderson to pay restitution, the district court had no jurisdiction to release an obligation on his part.
When the district court enters a judgment that is correct in its result but is based on incorrect reasoning, this court will affirm. See State v. Hall, 297 Kan. 709, 715, 304 P.3d 677 (2013); Schoenholz v. Hinzman, 295 Kan. 786, 797, 289 P.3d 1155 (2012).
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The opinion of the court was delivered by
BILES, J.:
Francis Smith directly appeals his convictions of four sex offenses. The charges stem from an incident during which Smith touched two girls, who were 13 and 15 years old, while photographing them in provocative poses wearing two-piece, bikini-style bathing suits. Smith orchestrated the photo session and had the teenage girls touch each other for some of the photographs. He was convicted of two counts of aggravated indecent liberties with a child and two counts of indecent liberties with a child. A majority of the court affirms his convictions, but we remand on a sentencing issue.
Smith raises seven issues: (1) whether the trial court erroneously admitted prior crimes evidence to prove motive and intent; (2) whether the trial court erroneously admitted photographs of the covers of pornographic magazines and videos taken from his house; (3) whether the trial court’s jury instruction on burden of proof was clearly erroneous; (4) whether the sentencing court erroneously used a prior conviction for multiple sentencing purposes; (5) whether the sentencing court exceeded its authority by entering orders prohibiting contact with the victims; (6) whether the sen tencing court erroneously ordered lifetime electronic monitoring; and (7) whether tire sentencing court erroneously imposed lifetime postrelease supervision for tire off-grid offenses.
Factual and Procedural Overview
Smith was charged with and convicted of two counts of aggravated indecent liberties with a child against the 13-year-old victim (H.D.) and two counts of indecent liberties with a child against tire 15-year-old victim (M.M.) based on events occurring on May 20, 2008. That day, H.D. and M.M. slapped school and went to Smith’s house. Smith had become a family friend after meeting H.D.’s father through work. H.D. and her two older brothers frequently watched movies and played video games at Smith’s house.
There is conflicting evidence whether the incident was planned, but Smith took multiple Polaroid photographs of H.D. and M.M. in their bikini swimsuits, which were later shown to H.D.’s father, leading to a police investigation. Twenty-four photographs were admitted into evidence at trial, although some are duplicates. It is necessary to describe the photos to understand their content and context to the issues discussed.
A few photos are of H.D. and M.M. from the waist up in bikini tops. In the remaining photos, H.D. and M.M. had removed their pants and are wearing bikini bottoms. The photos include images of H.D. and M.M. standing with their legs spread apart; sitting or standing with their arms or legs intertwined while pressing their lips together or open-mouthed touching tongues; and some show H.D. and M.M. positioned with their heads towards a wall while their legs are spread open towards the camera. In one photo, H.D. and M.M. are on their hands and knees with their legs spread open towards the camera, their heads turned towards each other with lips pressed together.
A detective interviewed H.D. and M.M. These interviews were recorded and played for the juiy. In her'interview, M.M. said Smith had already bought H.D. the bikini she wore in the photographs and that “Smith told [H.D.] whenever he bought it that he wanted pictures and [H.D.] said Ok.” When asked whether there was anything Smith did or said that the detective should know about, M.M. said H.D. wanted to wash her hair before taking the pictures and Smith suggested H.D. shower. When asked what M.M. thought he meant, M.M. said Smith was not going to leave “[b]ut once we said that we were just going to wash our hair he said ok I’m going to go to Walgreens.” M.M. also said Smith told them to act like they were kissing and told them “that we were hot a lot.” She explained she and H.D. were “iffy” about the pictures in which Smith had both girls face the wall so their heads were positioned away from the camera because “he is old and we are young.”
When asked if anything happened besides picture taking, M.M. said Smith would adjust their bikini bottoms as they were lying on the floor, which she said “would gross us out” and “it is nasty.” When asked whether Smith’s hands touched their bottoms, M.M. said “yes and usually whenever [Smith] would be fixing [H.D.J’s he would pull it up or whatever and tiren he would tap her and he’d go back and take a picture.”
M.M. also said that after Smith adjusted their swimsuit bottoms for the picture with them on their hands and knees and their bottoms towards the camera, Smith went back to take the picture and said, “[Y]eah, [H.D.] knows I like young girls.” M.M. told the detective Smith later took them to Walmart after giving them $50 each. On the way, Smith asked the girls if their boyfriends would like the pictures more if they were topless and offered them $200 to take pictures with their tops off next time.
In her police interview, H.D. said Smith had suggested taking the photographs to submit to some people in California who could get her and M.M. modeling jobs and that Smith paid each girl $50 after taking die photographs. H.D. denied Smith touched the girls during the photo session but amended this statement later at trial and admitted he had touched them. H.D. said Smith had told her “many times,” including “a couple days ago,” tiiat he is “interested in young girls.”
After interviewing H.D. and M.M, law enforcement officers went to Smith’s residence. Smith admitted taking pictures of the girls from dieir waist up but denied taking the other pictures. He said a lady he did not know, possibly M.M.’s aunt, took the other photographs. Smith acknowledged he paid the girls $50 but denied the money was for the photographs. He admitted possessing a set of the photographs but said he had disposed of those photographs.
Smith consented to a search of his residence, during which officers discovered and photographed several DVDs and magazines depicting young females in sexual positions and containing titles such as “Barely Legal,” “Teenage Nymphos,” “Teach the Young, Malee them Cum,” “Just 18,” “Just Popped,” “Cherry Pop,” “Ripe,” and “Wild Cherries.” The search also uncovered a DVD entitled “Luxurious,” which allegedly depicted a “she-male.” As Smith was being arrested and handcuffed after the search, he said he would not have engaged in any improper action with the gills because he was gay and liked “he-shes” or females with male genitalia.
At trial, M.M. testified that Smith began taking the photos in his living room while she and H.D. were wearing bikini tops and jeans. Smith then proposed they act like they were kissing and suggested they take more pictures in an empty bedroom. She said Smith decided how the girls should pose and instructed them to spread their legs apart. And when describing how Smith touched the girls, M.M. testified that at various times Smith “took his finger (indiscernible) [H.D.j’s bottoms and pulled 'em out”; spread their legs further apart; and spread their legs apart while holding their knees. Discussing the photos in which the two teenagers were touching, M.M. described how Smith instructed at different times that she place her leg over H.D.’s, that the girls touch their lips together to look like they were kissing, or that the girls press their arms together. M.M. testified she was not sexually aroused by the photos and that it bothered her when Smith touched her because it was “awkward.”
H.D. testified it was Smith’s idea to take the pictures and that they had discussed it beforehand. She also contradicted her earlier statement that Smith did not touch her and M.M while he took tire photographs. She testified Smith adjusted their swimsuit bottoms and repositioned their legs. When the prosecutor asked, “When you say he adjusted your bottoms, what part of your swimsuit did he adjust?” H.D. responded, “Around the crotch area.” H.D. said she believed Smith was sexually aroused when the pho tographs were taken because of the way he had H.D. and M.M. position themselves. She said Smith told them not to tell anybody about the photographs; but if anyone asked, they were to say M.M.’s aunt took the photographs.
H.D. further testified that Smith told her on several occasions he loved her and was attracted to young girls. She said Smith on an earlier occasion tried to give her a purple vibrator while she and Smith were alone at his house. She testified Smith said he did not “know if [H.D.] would appreciate [the vibrator] or not or if [H.D.] would accept it, but it’s worth it.” H.D. said she did not accept the vibrator. One of her brothers later discovered a purple vibrator in Smith’s house. Smith also gave H.D. two pair of thong underwear, which she accepted. She testified Smith gave her the underwear shortly after her 13th birthday, explaining that Smith said he “figured since [H.D. was] getting older [she] would probably be getting into things like that.” Her brothers later discovered the underwear and threw them away.
H.D.’s sister and brother testified about Smith’s relationship with H.D. The sister testified H.D. said she liked going to Smith’s house because “he would give her kind of odd jobs, you know, do the dishes for $20 or ... he would just give her money a lot.” H.D. testified that Smith would pay her for “[djoing small chores, like dishes or just picking up.” Smith would also pay H.D.’s brothers money, but H.D. described this as “[n]ot a lot, to do some outside work once in a while.” One of H.D.’s brothers described Smith as “always kind of flirty after a while” and said Smith “started to get a little bit too friendly” before he gave H.D. the two thongs.
Smith testified that he took the photographs to give to the girls, who were not going to see each other over the summer. He denied being sexually aroused while taking the photographs.
Prior to trial, Smith moved for an order in limine prohibiting admission of any evidence relating to the pornography discovered at his house, arguing its prejudicial effect outweighed any probative value. The State argued the pornographic magazines and videos were relevant to prove Smith’s sexual desires, which was an essential element of the crimes charged. Specifically, the State wanted the evidence to prove Smith was attracted to young girls to con tradict his assertion that he was gay. The district court denied the motion.
At trial, photographs of the covers of magazine and DVDs were admitted in conjunction with a detective’s testimony about why he took each photograph of this material. In the testimony, the detective referenced each publication’s title and generally stated the “woman on the front cover is underdeveloped.”
The State filed a pretrial motion to admit Smith’s 1993 convictions for aggravated indecent liberties with a child, aggravated criminal sodomy, and rape. The State argued these prior crimes were relevant under K.S.A. 60-455 to show motive and intent. At the hearing on the motion, the State added an argument that the court should follow the newly amended statute, K.S.A. 2009 Supp. 60-455(d). Smith argued that statute was still subject to K.S.A. 60-445 constraint in which the value of the prior convictions evidence was substantially outweighed by the risk of prejudice. In ruling the prior convictions evidence was admissible, the trial court found the prior convictions both relevant and probative of intent and motive.
The State’s theory for the first aggravated indecent liberties charge was that Smith “solicited [H.D.] to engage in fondling or touching of the person of another in a lewd manner, with intent to arouse or satisfy the sexual desires of [H.D.], the defendant or another.” Its theoiy for the second was that Smith “fondled or touched the person of [H.D.], in a lewd manner, with intent to arouse or satisfy the sexual desires of either [H.D.], or the defendant or both.” Similarly, the State’s theory for the first indecent liberties charge was that Smith “solicited [M.M.] to engage in lewd fondling or touching of the person of another with the intent to arouse or to satisfy the sexual desires of [M.M.], the defendant or another.” And the State’s theory for the second was that Smith “fondled or touched the person of [M.M.], in a lewd manner, with intent to arouse or satisfy the sexual desires of either [M.M.], or the defendant or both.” The jury convicted Smith on all four charges.
The district court imposed a hard 40 life sentence for each aggravated indecent liberties with a child conviction and ordered they be served consecutively, i.e., Smith would not be parole eligible for 80 years. The other two grid-box sentences for indecent liberties with a child were imposed to run concurrent to each other and to the hard 40 sentences.
Smith timely appealed directly to this court. We have jurisdiction under K.S.A. 22-3601(b)(l) (maximum sentence of life imprisonment imposed for off-grid crime; appeal docketed prior to July 1, 2011).
Prior Crimes Evidence
Smith begins by challenging the district court’s admission into evidence of his 1993 crimes. He argues this prior crimes evidence was not relevant to establish motive and that, to the extent it was relevant to show his intent, the convictions’ remoteness rendered them more prejudicial than probative. The State counters that the evidence was properly admitted under K.S.A. 2009 Supp. 60-455(d); the evidence was also admissible to prove the relevant material issues of motive and intent; and any error in admitting the prior crimes evidence was harmless.
Standard of Review
Appellate review of a trial court’s decision to admit evidence is a two-step process. First, the appellate court determines whether the evidence is relevant. State v. Phillips, 295 Kan. 929, 947, 287 P.3d 245 (2012). Evidence is relevant if it has a “tendency in reason to prove any material fact.” K.S.A. 60-401(b). “Relevance is established by a material or logical connection between the asserted facts and tire inference or result they are intended to establish.” Phillips, 295 Kan. 929, Syl. ¶ 7. Relevant evidence is both: (1) material, i.e., the fact has a legitimate and effective bearing on the decision of the case and is in dispute; and (2) probative, i.e., has “ ‘any tendency in reason to prove’ ” the fact. State v. Boleyn, 297 Kan. 610, 622, 303 P.3d 680 (2013) (quoting State v. Reid, 286 Kan. 494, 505, 186 P.3d 713 [2008]). Materiality is reviewed de novo, while probativity is reviewed for abuse of discretion. 297 Kan. at 622.
If the evidence is relevant, the court next applies tire statutory provisions governing admission or exclusion of evidence. Phillips, 295 Kan. at 947. “These rules are applied either as a matter of law or in the exercise of the district court’s discretion, depending on the rule in question.” State v. Hughes, 286 Kan. 1010, 1020, 191 P.3d 268 (2008). Whether the probative value of otherwise relevant evidence outweighs its potential for undue prejudice is reviewed for abuse of discretion. See Phillips, 295 Kan. at 949; State v. Wilson, 295 Kan. 605, 621, 289 P.3d 1082 (2012).
A district court abuses its discretion when: (1) no reasonable person would take the view adopted by the judge; (2) a ruling is based on an error of law; or (3) substantial competent evidence does not support a finding of fact on which the exercise of discretion is based. State v. Huddleston, 298 Kan. 941, 960, 318 P.3d 140 (2014). But “[w]hen the adequacy of the legal basis of a district judge’s decision on admission or exclusion of evidence is questioned, we review the decision de novo.” State v. Gunby, 282 Kan. 39, 47-48,144 P.3d 647 (2006).
Analysis
Smith begins his argument by contending “evidence of prior bad acts cannot be admitted just to show that a defendant has a propensity to commit crimes, but rather, the prior bad acts must be probative of some other material fact at issue.” We are compelled to point out that in sex crime cases K.S.A. 2009 Supp. 60-455(d) permits admission of evidence of a defendant’s prior sexual misconduct for any relevant and probative matter, including proving the defendant’s propensity to engage in the charged conduct. See State v. Bowen, 299 Kan. 339, Syl. ¶ 7, 323 P.3d 853 (2014); State v. Remmert, 298 Kan. 621, 627-28, 316 P.3d 154 (2014) (citing State v. Prine, 297 Kan. 460, Syl. ¶ 3, 303 P.3d 662 [2013] [Prine II]); State v. Spear, 297 Kan. 780, 789, 304 P.3d 1246 (2013); Prine II, 297 Kan. at 476. Nonetheless, because the trial court admitted the evidence for the specific purpose of proving Smith’s intent, we begin by analyzing its ruling on that basis. See Prine II, 297 Kan. at 479-80 (concluding district court erred in admitting prior sex crime evidence to prove intent, absence of mistake or accident, or plan).
The evidence was relevant. Each crime charged required the State to prove Smith acted with the specific intent to arouse or satisfy his own, H.D.’s, or M.M.’s sexual desires. The charges were based upon his lewd touching of H.D. and M.M. during the photography session and his directions during the photography session that they lewdly touch each other.
Smith offered an innocent explanation for his conduct during the photography session. Accordingly, Smith’s intent was a disputed, material fact at issue in the trial. See State v. Boggs, 287 Kan. 298, 314, 197 P.3d 441 (2008) (intent underlying act critical to determining its character when act susceptible to both an innocent interpretation and a criminal one; defendant’s proffer of innocent explanation puts intent in dispute). But cf. State v. Prine, 287 Kan. 713, 727, 200 P.3d 1 (2009) (Prine I) (intent not a disputed fact in child molestation case when charged acts were criminal in themselves; if crimes occurred as victim described them, criminal intent would be indisputable). The prior convictions for sex crimes involving a child had a tendency in reason to prove Smith committed the acts here with the specific intent to arouse or satisfy his own, H.D.’s, or M.M.’s sexual desires. That Smith sexually abused a child “in the past, given today’s jurors’ common understanding of the psychology of those who commit such crimes, actually ‘shed[sj some light’ on the existence of intent in this case.” Prine I, 287 Kan. at 726.
Smith also argues the remoteness of the 15-year-old convictions render them more unduly prejudicial than probative. But the remoteness of a prior conviction generally affects the evidence’s weight rather than its admissibility. State v. Cross, 216 Kan. 511, Syl. ¶ 7, 532 P.2d 1357 (1975). This court has stated plainly that “[rjemoteness in time, standing alone, is insufficient to establish reversible error in the admission of a prior conviction.” State v. Carter, 220 Kan. 16, 20-21, 551 P.2d 821 (1976); see also State v. Breazeale, 238 Kan. 714, 723, 714 P.2d 1356 (remoteness of 10-year-old convictions affected weight of prior crimes evidence rather than its admissibility), cert. denied 479 U.S. 846 (1986).
We hold the trial court did not abuse its discretion in finding the scales tipped in favor of the probative value of this prior crimes evidence. We decline to find error in admitting the evidence to prove Smith’s intent. Accordingly, we need not address Smith’s claim that it was error to admit the evidence to prove motive because error in that regard, if any, would have been harmless given its admissibility to prove intent. See Prine II, 297 Kan. at 480-81 (error admitting prior sex crime evidence to prove intent harmless when evidence would have been admissible for another purpose— demonstrating propensity under K.S.A. 2009 Supp. 60-455[d]).
Admissibility of Pornographic Photographs
While searching Smith’s house, the officers discovered DVDs and magazines in a closet. The officers photographed the covers of the magazines and DVDs, and the State presented those photographs at trial. Smith argues the photographs of the covers should have been excluded.
Standard of Review
As noted above, we review the district court’s decision to admit evidence in two steps: (1) review of whether the evidence was relevant, assessing materiality de novo and probativity under an abuse of discretion standard; and (2) review of the application of the statutory rules governing admission or exclusion of evidence. See Phillips, 295 Kan. at 947. Because it is essential to resolving the claim here, we reiterate that a trial court may exclude relevant evidence upon finding its probative value is outweighed by its potential for producing undue prejudice. See K.S.A. 60-445; State v. Leitner, 272 Kan. 398, 415, 34 P.3d 42 (2001). That determination is reviewed for an abuse of discretion. See Phillips, 295 Kan. at 947; Wilson, 295 Kan. at 621.
Admissibility Analysis
Before trial, Smith filed a motion in limine to exclude the police photographs of pornographic material found in the residential search, arguing their probative value was outweighed by their prejudicial effect. At a hearing on the motion, Smith noted law enforcement officers found the actual material out of plain sight in a bedroom closet; the material had not been shown to the girls or discussed with them; there was no evidence die girls had seen the material; and the girls’ bikini-clad poses in Smith’s photographs did not replicate or appear to be patterned after poses depicted on the magazine covers. Smith argued the photographs were irrelevant to the charges against him and would be extremely prejudicial because the jury might be so offended that it would convict him of the charged crimes just to punish him for possessing pornography.
The State responded that the pornography was relevant because the State had “to prove why these pictures [of H.D. and M.M.] were taken.” Specifically, the prosecutor said she would be trying to convince the jury that the pictures “were taken by Mr. Smith for the intent to arouse his sexual desires, or the child’s sexual desires.” The prosecutor then pointed out that “in the course of the investigation Mr. Smith claimed he was gay” and that “he/she’s or women with penises, is what aroused him.” Therefore, the prosecutor argued the jury should know what sexual material Smith had in his home to decide whether “those photographs [of the girls] were taken to appeal to his sexual desires.” The prosecutor argued that if the situation were reversed and the pornography uncovered in Smith’s house had all been “homosexual magazines,” Smith would be arguing the gay pornography proved he had no heterosexual desire for the girls.
The district court agreed the State needed “to show this intent to arouse” and, upon the showing at the limine hearing, found the evidence’s probative value outweighed its potential prejudicial effect. But the court cautioned that the evidence might develop differently at trial, which might prompt a different ruling at that time.
Smith renewed his objection at trial, stating:
“[T]here’s comments that the Detective’s [sic] made in his report about that the individuals were—they’re illegal or they’re underage or they’re minors, or maldn’ any type of conclusion of the photographs, because there’s several of 'em on the covers of the magazines or the DVD’s that simply appear to be younger women with small breasts. I mean, unless he was present when those photographs were taken, he can’t make a determination whether they’re underage or whether the items are illegal or not.”
In response, the State argued the photos were relevant to show intent because Smith repeatedly claimed he was gay and did not like girls. The district court again ruled die evidence was admissible, while granting defense counsel a standing objection.
The fallacy in the relevancy argument as framed by tire State derives from the prosecutor’s fundamental misstatement about what the State had to prove to tire jury under what it characterizes in its brief as the unique circumstances of this case. The prosecutor’s declaration that the State had “to prove why these pictures were taken” certainly advanced the State’s argument on the pornography’s relevance, but it did not comport with the manner in which the State was alleging Smith committed the offenses with which he was charged.
The charging document set forth two ways by which Smith allegedly took aggravated indecent liberties with the girls, both of which involved fondling or touching. The prosecution theory on two counts was that when Smith arranged the girls’ poses, he touched them in a lewd manner with the intent to sexually arouse himself or the girls. The intent to arouse related to Smith’s purpose in touching the girls. The second prosecution theory, applicable to the two counts of indecent liberties, was that when Smith told the girls to strike provocative poses, he solicited the girls to fondle or touch each other in a lewd manner with the intent to sexually arouse himself or the girls. Again, the intent to arouse related to Smith’s purpose in directing the girls to touch each other.
Consequently, the act of photographing the girls was not the actus reus of any of the charged offenses. Rather, all charges emanated from the acts of arranging the poses. Likewise, the mens rea of the charged offenses required the specific intent to arouse or satisfy sexual desires be related to the alleged acts of fondling, touching, or soliciting fondling or touching. Therefore, contrary to the prosecutor’s argument for admitting the pornography, the State did not have to prove the reason Smith took the photographs was to arouse or satisfy his and/or die girls’ sexual desires. Indeed, Smith could have committed the charged crimes without having any film in his camera. In short, Smith’s motive or purpose for taking photographs was immaterial.
Accordingly, even if Smith’s possession of pornography depicting young, underdeveloped women had some tendency in reason to prove Smith’s motive for taking the photographs, that fact was not material and, therefore, not relevant. In addition, the State mis-characterizes the pornography evidence as being nongraphic and similar to the pictures taken by Smith. This is not simply true. Some of the pornographic material admitted into evidence shows genital penetration, while the photos taken of H.D. and M.M. do not. Also, the pornography evidence includes magazine cover pages with the provocative written titles of the articles inside.
In sum, the disputed material facts were: (1) whether Smith touched the girls in a lewd manner with the intent to arouse or satisfy his or the girl’s sexual desires; and (2) whether Smith solicited the girls to touch each other in a lewd manner with the intent to arouse or satisfy his or the girl’s sexual desires. The State failed to connect the relevancy dots between Smith’s possession of the pornography admitted into evidence and the allegations it was seeking to prove.
Likewise, the State’s alternate rationale for admitting the pornography—refuting Smith’s declaration that he is gay and did not like girls—is not compelling. Recently, in Boleyn, 297 Kan. at 621-27, we addressed whether the trial court erred in admitting homosexual pornography found in the defendant’s home for the purpose of impeaching defendant’s declaration that he was not gay. We first noted that “evidence of homosexuality is generally irrelevant and, thus, inadmissible at a trial involving the sexual molestation of a child.” 297 Kan. at 624.
“ ‘It is no more reasonable to assume that a preference for same gender adult sexual partners establishes a proclivity for sexual gratification with same gender children than it is to assume that preference for opposite gender adult sexual partners establishes a proclivity for sexual gratification with opposite gender children.’ State v. Blomquist, 39 Kan. App. 2d 101, Syl. ¶ 2, 178 P.3d 42 (2008).” 297 Kan. at 624.
We then discussed that an exception to that general proposition can exist when the State is offering evidence of the defendant’s alleged homosexuality to show the defendant lied under oath when the defendant testified he or she was not gay. 297 Kan. at 624. “But we [held] that evidence [the defendant] merely [possessed] homosexual pornography would not be probative to rebutting or im peaching [the defendant’s] claim of not being gay.” 297 Kan. at 626. We found the defendant’s possession of homosexual pornography to be particularly irrelevant in Boleyn because the defendant also possessed heterosexual pornography. More fundamentally, we cautioned against inferring too much about a person’s actual sexual practices from the pornography he or she possesses, quoting Weinberg, Williams, Kleiner & Irizarry, Pornography, Normalization, and Empowerment, 39 Arch, of Sex. Behav. 1389, 1391 (2012):
“ “We believe it is unassailable that the central function of pornography is the creation or enhancement of sexual fantasy and/or arousal. That is, it presents bodies, behaviors, and situations in a way that is intended to sexually inspire or excite the viewer, regardless of whether such bodies, behaviors, and situations would be available or even desirable for the viewer to experience in real life.’ ” (Emphasis added.) Boleyn, 297 Kan. at 627.
In short, Boleyn held that homosexual pornography discovered in the defendant’s home along with heterosexual pornography was irrelevant and, thus, inadmissible to prove the defendant lied about being heterosexual, i.e., about not being gay. 297 Kan. at 626-27. In Smith’s case, the State seeks a different result for essentially the same proposition'—that heterosexual pornography found in Smith’s home was relevant to prove Smith lied about being gay, i.e., about not being heterosexual.
The State’s argument is logically inconsistent with our holding in Boleyn. If possession of homosexual pornography is not relevant to prove a person’s sexual practices, then possession of heterosexual pornography is likewise not relevant for that purpose. The district court erred in permitting the admission of the pornographic photographs.
Harmless Error Analysis
Having held it was error to admit the evidence, we must determine next whether the error was harmless under the statutory, nonconstitutional harmless error rule set out in K.S.A. 60-261. See 297 Kan. at 627. Under K.S.A. 60-261, this inquiry “requires us to determine whether there is a reasonable probability that the error affected the outcome of the trial in light of the entire record.” 297 Kan. at 627. The burden of demonstrating harmlessness under K.S.A. 60-261 is on the party benefiting from the error. State v. McCullough, 293 Kan. 970, Syl. ¶ 9, 270 P.3d 1142 (2012).
Notably, the State did little to single out the photographs of the magazine and DVD covers during its case. The prosecutor mentioned the magazines were found in Smith’s home but were not seen by the victims. The prosecutor said only, “You can look at the covers and compare them to the photographs taken of the girls. You decide.” Later, the prosecutor referenced tire photographs again and said, “He claimed he was gay, but he had pornographic magazines in his house with titles like Top my Cherry.’ ”
The only disputed issue in this case was whether the acts were done for the purpose of arousing or satisfying Smith’s sexual desires. The evidence in that regard was substantial. It included evidence of Smith’s prior sexual advances towards H.D.: her testimony Smith told her he loved her and was attracted to young girls; a detective’s testimony H.D. told him Smith said he “would not make her do anything against her will”; evidence Smith purchased thong underwear and a vibrator for H.D.; and H.D.’s brother testifying that Smith “started to get a little bit too friendly” with H.D. and he was “always land of flirty after a while.”
It also included the bulk of the evidence, which centered on what occurred while Smith was taking the photographs. We start with the content of the Polaroids themselves, which are strong evidence of Smith’s intent when touching or having the girls touch each other during the picture taking session. And the pictures are of H.D. and M.M. in bikini-style swimsuits, with the girls striking increasingly sexually provocative poses as the session progressed. The jury also watched M.M.’s interview with police in which she described how Smith positioned the girls and encouraged them to “simulate” kissing by touching their lips and tongues together. M.M. also related how Smith spread their legs further apart, touched their bottoms when adjusting their swimsuits, and tap H.D.’s bottom before going back and taking the picture.
Even more damaging was M.M.’s testimony regarding one pose in which Smith positioned the girls on their hands and knees, with their legs spread apart towards the camera, and after adjusting their bikini bottoms for this pose, Smith went back to the camera and said, “[Y]eah, [H.D.] knows I like young girls.” Similarly, H.D. testified that Smith adjusted their swimsuits “[ajround the crotch area” and said she believed Smith was sexually aroused when taking the pictures because of the way he had the girls pose. Additional evidence included both H.D. and M.M. testifying that Smith told them not to tell anyone about the photographs, and M.M. testifying how Smith offered to pay them $200 to take topless pictures next time.
In addition, the jury heard and saw evidence of Smith’s prior crimes—four 1993 convictions that occurred in one case consisting of two aggravated indecent liberties with a child convictions, one aggravated criminal sodomy conviction, and one rape conviction. Two of these—the aggravated indecent liberties with a child convictions—were for the same or similar crimes with which Smith was charged in this case (aggravated indecent liberties with a child and indecent liberties with a child). And this evidence had to have negatively impacted Smith’s credibility, which was at issue because he claimed his actions during the photography session were innocent.
Taken together, the juiy had more than enough evidence to find that Smith intended to arouse or satisfy his own, H.D.’s, or M.M.’s (or some combination of the three) sexual desires while touching H.D. and M.M. and directing them to touch each other during the photo session. In light of the entire trial record, we conclude there is no reasonable probability the photographs of the pornographic magazine and DVD covers affected the trial’s outcome. See State v. Ward, 292 Kan. 541, 569-70, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).
We hold the error in admitting photographs of the magazine and DVD covers was harmless.
Reasonable Doubt instruction
At trial, the jury was given the following reasonable doubt instruction:
“The State has the burden to prove the defendant guilty. The defendant is not required to prove he is not guilty. You must presume that the defendant is not guilty until you are convinced from the evidence that he is guilty.
“The test you must use in determining whether the defendant is guilty or not guilty is this:
“If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty; or
“If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant guilty.” (Emphasis added.)
Smith claims two errors within this instruction require reversal. He argues the use of the word “until” in the first paragraph was error, and he argues the last two paragraphs erroneously employed tire word “any.” As summarized below, this court previously declined to hold either of the claimed defects amounted to reversible error, and we follow that precedent again in this case.
Standard 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).
With regard to the first step, reviewability, Smith did not object to the jury instruction on either ground. But if after the first step, an appellate court determines the issue has not been properly preserved, relief may still be granted if the giving or failure to give an instruction was clearly erroneous. K.S.A. 22-3414(3).
“To determine whether an instruction or a failure to give an instruction was clearly erroneous, the reviewing court must first determine whether there was any error at all. To malee that determination, the appellate court must consider whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record.”
“If the reviewing court determines that the district court erred in giving or failing to give a challenged instruction, then the clearly erroneous analysis moves to a reversibility inquiry, wherein the court assesses whether it is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. The party claiming a clearly erroneous instruction maintains tire burden to establish the degree of prejudice necessary for reversal.” State v. Williams, 295 Kan. 506, Syl. ¶¶ 4-5, 286 P.3d 195 (2012).
A. XJse of the word “until” does not create reversible error
Smith claims the following language in the reasonable doubt instruction is erroneous: “You must presume that the defendant is not guilty until you are convinced from the evidence that he is guilty.”
This same instructional language was issued in State v. Wilkerson, 278 Kan. 147, 158, 91 P.3d 1181 (2004). In that case, Wilkerson objected to the instruction at trial. On appeal, the court held the instruction “ would have been improved by the substitution of the word ‘unless’ for the word ‘until.’ ” 278 Kan. at 158. But the court also held the error did not require reversal because “[t]he whole of the instructions given in this case, when read together, accurately stated the law. The jury could not reasonably have been misled by them, and thus the instructions did not constitute reversible error . . . .” 278 Kan. at 158. This court has continued to adhere to that rule. See State v. Cofield, 288 Kan. 367, 377-78, 203 P.3d 1261 (2009); State v. Anderson, 287 Kan. 325, 342-43, 197 P.3d 409 (2008); State v. Davis, 284 Kan. 728, 739, 163 P.3d 1224 (2007) (finding no clear error in this “oft-made, always rejected” issue).
Smith does not argue the instructions as a whole did not accurately state the law, and he raises no new arguments as to why the error is clearly erroneous. He appears to urge die court to find clear error as punishment for trial courts’ repeated use of die instruction despite the caselaw to the contrary. This is not die standard for clear error and does not serve as a basis for reversal. Smith presents no compelling reason to depart from tiiis court’s precedent. The use of the word “until” was not clear error.
B. The “any” and “any” language is not erroneous
Smith also takes issue with the following language in the reasonable doubt instruction:
“The test you must use in determining whether the defendant is guilty or not guilty is this:
“If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty; or
“If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant guilty.” (Emphasis added.)
The same “any” and “any” language was challenged in State v. Herbel, 296 Kan. 1101, 1120, 1124, 299 P.3d 292 (2013), which held the instruction was legally appropriate, although not preferred. See State v. Smyser, 297 Kan. 199, Syl. ¶ 7, 299 P.3d 309 (2013) (same).
Smith argues that this language is error by analogy to another reasonable doubt instruction. In Miller v. State, 298 Kan. 921, 923-930, 318 P.3d 155 (2014), this court held a district court errs by instructing the jury:
“If you have a reasonable doubt as to the truth of each of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant guilty.” (Emphasis added.)
This court held the use of the word “each” in the first sentence of this reasonable doubt instruction effectively told the juiy it may acquit the defendant only if it had a reasonable doubt as to all of the elements the State was required to prove—rather than acquitting if it had a reasonable doubt as to any single element. 298 Kan. 921, Syl. ¶ 6. To support his claim that the instruction was clearly erroneous, Smith relies on language in the Court of Appeals’ decision in Miller v. State, No. 103,915, 2012 WL 401601 (Kan. App. 2012) (unpublished opinion), aff'd 298 Kan. 921, 318 P.3d 155 (2014), that was critical of the “any” and “any” reasonable doubt instruction.
But this argument was raised and rejected in Herbel and Smyser. In both cases, we held that using the words “each” and “any” in the incorrect order in a reasonable doubt instruction was sufficiently different than the “any” and “any” instruction to preclude an analytical comparison. Smyser, 297 Kan. at 205-06; Herbel, 296 Kan. at 1122. Consistent with Herbel and Smyser, we hold the reasonable doubt instruction issued at Smith’s trial was legally appropriate and not clearly erroneous.
Criminal History Score
Smith argues his 272-month sentence imposed for Count III, indecent liberties with a child, is illegal because a prior conviction that had already been considered was used to enhance his criminal history score, in violation of K.S.A. 21-4710(d)(ll). He seeks remand for resentencing. The State concedes the error but disagrees that remand is the appropriate remedy. The State argues the error is harmless because the sentence runs concurrent to the 80-year-to-life aggregate sentence imposed for his aggravated indecent liberties with a child convictions in Counts I and II. Smith does not address the State’s harmless error analysis.
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 the statutory provision, either in character or the term of the punishment authorized, or a sentence which is ambiguous with regard to the time and manner in which it is to be served.’ [Citation omitted.]” State v. LaBelle, 290 Kan. 529, 532, 231 P.3d 1065 (2010).
Error Analysis
Smith alleges his sentence violates K.S.A. 21-4710(d)(ll), which states:
“Prior convictions of any crime shall not be counted in determining the criminal history category if they enhance the severity level or applicable penalties, elevate the classification from misdemeanor to felony, or are elements of the present crime of conviction. Except as otherwise provided, all other prior convictions will be considered and scored.”
Some additional facts are necessary to appreciate the issue. As stated earlier, Smith had four prior sex offense convictions: two for aggravated indecent liberties with a child; one for aggravated criminal sodomy; and one for rape. Each prior conviction was classified as a person felony for criminal history purposes. In this case, Smith’s two aggravated indecent liberties with a child convictions are Jessica’s Law offenses under K.S.A. 21-4643(a)(l)(C). Gener ally, those convictions carry life sentences with mandatory minimum prison terms of not less than 25 years. K.S.A. 21-4643(a)(l).
But Smith was sentenced under K.S.A. 21-4643(b)(l) to life imprisonment with a mandatory minimum of 40 years for each aggravated indecent liberties conviction because he had previously been convicted of a crime listed in K.S.A. 21-4643(a)(l). The district court did not specify which prior convictions were used to impose the hard 40 sentences. See LaBelle, 290 Kan. at 538 (“[Cjourts are not required to specify at sentencing how particular convictions or adjudications are used. . . . [But] we hold that the preferred judicial practice is to put on the record the specific use for each conviction or adjudication . . . .”).
The district court also ordered the hard 40 sentences to run consecutively, resulting in a mandatory minimum of 80 years’ imprisonment. Smith is not contesting the district court’s authority to enter tire hard 40 sentences on Counts I and II. But he argues the process used to arrive at the sentences is relevant to his sentencing challenge on Count III because using two prior convictions to impose them precluded the court from using those priors again when calculating Smith’s criminal history score on Count III. Smith is correct. Imposing the hard 40 sentences left only two prior convictions available for calculating the sentence for Count III.
One of Smith’s remaining prior convictions was used to qualify him as a persistent sex offender, requiring the district court to double his gridblock sentences on both indecent liberties with a child convictions under K.S.A. 21-4704(j). Using that prior conviction to classify Smith as a persistent sex offender precluded using it to calculate Smith’s criminal history score. See State v. Moore, 274 Kan. 639, 651, 55 P.3d 903 (2002) (district court erred in failing to remove prior conviction from criminal history after using it to classify defendant as a persistent sex offender). So Smith had only one prior adult person felony conviction available for use in calculating his criminal history score when sentencing him for the indecent liberties with a child conviction in Count III.
But Smith received an “A” criminal history classification, meaning Smith’s criminal history included three or more adult convictions for person felonies. See K.S.A. 21-4709. This resulted in the 272-month sentence Smith now challenges. The State concedes that this was error, and we agree.
The only remaining question is the appropriate remedy, if any. The State argues the error was harmless because Smith’s sentence on Count III runs concurrent to his 80-year minimum aggregate life sentence for the aggravated indecent liberties with a child convictions. In other words, as a practical matter, Smith will be serving those sentences long after he completes the concurrent sentence for indecent liberties with a child imposed under Count III.
Prejudice Analysis
The State argues remand is not required based on State v. Riley, 259 Kan. 774, 778, 915 P.2d 774 (1996). There, the defendant was convicted of three offenses and the sentences were ordered to run concurrently. The court held that the district court properly calculated the defendant’s sentence for the primary crime, which in that case was the conviction for which die longest sentence was imposed. But it improperly computed the sentences for the other two crimes, so the court concluded remand for resentencing was unnecessary because the defendant was not prejudiced by the error. 259 Kan. at 780.
The prejudice requirement announced in Riley that precluded remand has been followed in multiple conviction cases for erroneous nonbase sentences that run concurrent to controlling base sentences for primary offenses. See, e.g., State v. Bolin, 266 Kan. 18, 25, 968 P.2d 1104 (1998) (declining to remand defendant’s multiple conviction cases for resentencing when sentences for non-base crimes were erroneous but sentences for primary crimes were both controlling and correctly calculated). But these cases do not specifically address whether a defendant is required to show prejudice by specifically addressing whether an illegal sentence claim is subject to a harmless error analysis.
“An ‘illegal sentence’ is: (1) a sentence imposed by a court without jurisdiction; (2) a sentence that does not conform to the applicable statutory provision, either in character or the term of authorized punishment; or (3) a sentence that is ambiguous with respect to the time and manner in which it is to be served.” State v. Taylor, 299 Kan. 5, 8, 319 P.3d 1256 (2014). This court has held that a violation of K.S.A. 21-4710(d)(ll) renders a sentence illegal. See LaBelle, 290 Kan. at 534. Illegal sentences, or sentences imposed without the trial court’s jurisdiction, are void. See State v. McCarley, 287 Kan. 167, 175, 195 P.3d 230 (2008). Finally, appellate courts have a clear duty to set aside void sentences and impose valid ones. See Chambers v. State, 199 Kan. 483, 485, 430 P.2d 241 (1967).
We hold that remand for resentencing on Count III is required even though it will not affect the time Smith ultimately serves.
No-Contact Order
At sentencing, the trial court ordered that Smith not have contact with the victims or the victims’ families. On appeal, Smith argues the trial court lacked authority to impose a no-contact order, and the State concedes it was improper. We agree. See State v. Bowen, 299 Kan. 339, 359, 323 P.3d 853 (2014); State v. Plotner, 290 Kan. 774, 781, 235 P.3d 417 (2010); State v. Post, 279 Kan. 664, 665-69, 112 P.3d 116 (2005). In those cases, the appropriate remedy was to vacate the no-contact order but leave the remainder of the sentence intact. See Bowen, 323 P.3d at 867. Because the no-contact order was illegal, we must vacate that portion of Smith’s sentence.
Lifetime Electronic Monitoring Sentence
It is unclear from the sentencing hearing transcript whether the trial court ordered lifetime electronic monitoring at that hearing. It appears the issue was raised by the State, but the transcript recites that the trial court’s response was inaudible. The parties agree that lifetime electronic monitoring was ordered at sentencing; so we accept their joint representations.
The State correctly concedes that lifetime electronic monitoring was improper under State v. Jolly, 291 Kan. 842, 848, 249 P.3d 421 (2011). In Jolly, this court held K.S.A. 22-3717(u) “plainly states that the parole board shall order electronic monitoring as a condition of parole.” 291 Kan. at 848. We likewise hold it was improper for the trial court to sentence Smith to lifetime electronic monitoring, and we vacate that portion of his sentence.
Lifetime Postrelease Supervision Sentence
In his last sentencing challenge, Smith argues the district court erred by sentencing him to lifetime postrelease supervision instead of parole. The sentencing transcript simply states the court “will order a post-release provision of life” without discussing to which counts the postrelease order was attached. And the sentencing journal entry lists lifetime postrelease supervision for all four crimes of conviction. This is pertinent because only two of those sentences—the aggravated indecent liberties convictions in Counts I and II—carried indeterminate life sentences. The two convictions for indecent liberties with a child in Counts III and IV are grid offenses. The State concedes the district court erred by imposing lifetime postrelease supervision without distinguishing between tire aggravated indecent liberties with a child and indecent liberties with a child sentences.
Both parties are correct that lifetime postrelease supervision cannot be imposed in conjunction with an indeterminate life sentence. In State v. Harsh, 293 Kan. 585, 265 P.3d 1161 (2011), this court held that there is a distinction between lifetime parole and lifetime postrelease supervision. And an inmate sentenced to life imprisonment for crimes occurring after July 1, 2006, under Jessica’s Law, K.S.A. 21-4643, is parole eligible after serving the mandatory minimum sentence. 293 Kan. at 589-90 (citing K.S.A. 2006 Supp. 22-3717[b][5] and [u]). For Counts I and II, Smith was similarly sentenced to life imprisonment for two Jessica’s Law offenses. The district court erred by imposing lifetime postrelease supervision for these counts, and we vacate that portion of Smith’s sentence.
As we held in Harsh, parole is separate and distinct from the sentence and will be granted, if at all, by the Kansas Prisoner Review Board (successor to the Kansas Parole Board). The proper remedy is simply to vacate the lifetime postrelease supervision imposed on Counts I and II. See 293 Kan. at 590. | [
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Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Kevin E. Dellett, of Overland Park, an attorney admitted to the practice of law in Kansas in 1995.
On September 20, 2012, the office of the Disciplinaiy Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent filed an answer and also eventually filed a plan of probation. On Februaiy 11, 2013, the deputy disciplinary administrator and respondent agreed to a lengthy, written stipulation which the hearing panel accepted at the April 10,2013, hearing on the formal complaint.
Based upon this stipulation, the hearing panel determined respondent violated KRPC 1.1 (2013 Kan. Ct. R. Annot. 446) (competence); 1.3 (2013 Kan. Ct. R. Annot. 464) (diligence); 1.4(a) (2013 Kan. Ct. R. Annot. 484) (communication); 1.5(a) (2013 Kan. Ct. R. Annot. 503) (fees); 1.16(d) (2013 Kan. Ct. R. Annot. 569) (termination of representation); and 8.4(d) (2013 Kan. Ct. R. An-not. 655) (engaging in conduct prejudicial to administration of justice).
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 and Conclusions of Law
“11. On Februaiy 11, 2013, Ms. Knoll, the respondent, and his counsel entered into a written stipulation. The parties presented the stipulation to the hearing panel. The hearing panel accepts the stipulation of the parties. The stipulation provides, as follows:
‘COMES NOW Kimberly L. Knoll, Deputy Disciplinary Administrator, pursuant to the Supreme Court Rules Relating to Discipline of Attorneys and Respondent, Kevin Dellett, by and through counsel, Trey Pettlon and agree to the following stipulation of facts:
T. Kevin E. Dellett is an attorney at law, Kansas Attorney Registration No.16764. His last registration address with the Cleric of the Appellate Courts of Kansas is [], Overland Park, Kansas 66213. The Respondent was admitted to the practice of law in Kansas on April 28, 1995.
‘2. On April 22, 2008, the Office of the Disciplinary Administrator received a complaint from [C.H.N.] regarding Respondent. Case number DA 10,498.
‘3. Respondent filed a response to the Complaint on May 19, 2008.
‘4. In the response, Respondent admitted that he failed to respond to several requests for updates.
‘5. In the response, Respondent admitted he did not move the case along as quickly as the client would have liked.
‘6. The Respondent agreed to participate in the Attorney Diversion Program. Respondent entered tire Program on September 29, 2010.
‘7. As part of the agreement, the Respondent stipulated to the following:
‘DA 10,498
a. Respondent was retained by DiscountCoffee.com to represent it in an action filed against it in the District Court in Johnson County, Kansas.
b. Respondent received a $5,000 retainer on July 24, 2007.
c. Respondent filed a general denial and then on August 23, 2007, he filed an Answer and Counterclaim.
d. The client requested updates on the status of the case on September 28, 2007, October 3, 2007, October 4, 2007, October 8, 2007, and October 15, 2007.
e. Respondent emails client on October 18,2007, and informs client that Respondent would be seeking an extension of time to file answers.
f. Client requests an update on November 26, 2007, December 26, 2007, January 10, 2008, and another time in January 2008.
g. Respondent admits to client he has not been communicating with the client via email sent Februaiy 12, 2008.
L Client terminates Respondent on February 13, 2008.
‘8. On November 20,2008, the Office of the Disciplinary Administrator received a complaint from [M.V.] regarding Respondent. Case number DA 10,669.
‘9. Respondent filed a response to the Complaint on February 5, 2009.
TO. In tlie response, Respondent noted he communicated often with complainant.
Tl. Respondent met with the incarcerated client [, J.P.,] twice.
T2. In the response, Respondent admitted he did not directly inform his client that die client’s jury trial was continued once.
T3. In the response, Respondent admitted he did not direcdy inform the client that he had requested another continuance of die trial. He did notify a third party that was involved with the client.
T4. The court denied the request. Respondent does not recall informing complainant of his plan to request reconsideration of the denial of the continuance.
T5. Respondent’s cell phone records indicate he attempted to reach complainant on July 24 and July 25. The trial was scheduled for August.
T6. Respondent was terminated on July 25.
T7. Respondent agreed to participate in the Attorney Diversion Program. Respondent entered the Program on September 29, 2010.
T8. As part of the agreement, Respondent stipulated to the following:
‘DA 10,669
a. Respondent was retained to represent [J.P.] who was charged with aggravated indecent liberties with a child. The retainer was paid by the Complainant, [M.V.], [J.P.J’s wife.
b. Respondent agreed to represent [J.P.] for $15,000 for a preliminary hearing, plea negotiations, plea and sentencing. If a trial was required, the fee would be $5,000 more.
c. The fee agreement provides: “. . . upon signing of this contract such fees are non-refundable.”
d. On July 25, 2008, Respondent was terminated from representing [J.P.]. At the time of the discharge, [J.P.] had waived his preliminary hearing. There had been no píea and no work performed as to sentencing. An accounting was requested. Respondent refused to return any of the retainer, citing the “non-refundable” clause in the fee agreement.
e. Respondent did not normally keep time records on criminal defense cases.
T9. In his response, Respondent admitted he deposited all funds into his operating account.
‘20. On November 18, 2009, the Office of the Disciplinary Administrator received a complaint from [attorney] Mark Rohrbaugh regarding Respondent. Case number DA 10, [956],
‘21. Respondent filed a response to the Complaint on January 12,2010.
‘22. In his response, Respondent admitted to violating KRPC 1.3 and KRPC 1.4.
‘23. Respondent agreed to participate in tire Attorney Diversion Program. Respondent entered into the Diversion Program on September 29, 2010.
‘24. In the Agreement, Respondent stipulated to the following:
‘DA 10,956
a. Respondent was retained by [A.S.] to represent her in a domestic case.
b. Respondent entered his appearance in 2006. Between December 2006 and the fall of 2008, a Third-Party Petition for Separate Maintenance was filed and a parenting plan was negotiated.
c. Respondent requested additional time to file an answer to the original proceeding.
d. Respondent was granted extra time but did not file an answer.
e. In October 2008, [A.S.j’s husband filed a Third-Party Petition for divorce. Respondent admits receiving the Petition.
f. In December 2008, a Motion for Default Judgment was filed in the divorce action. Respondent admits receiving the Motion.
g. Respondent admits he failed to respond to the motion, failed to notify the client of the hearing and failed to appear at the hearing.
h. Respondent admits being contacted by the court about the missed hearing. Respondent failed to take any action to correct the situation.
i. Default judgment was entered. Respondent failed to notify his client after receiving the decree of divorce. The client learned from her then ex-husband that they were divorced.
j. [A.S.] retained new counsel who filed a motion to set aside the divorce.
k. The court found grounds to reaffirm the divorce but set aside all other rulings.
‘25. The Agreement also provides: The Disciplinary Administrator and tire Respondent agree that the Respondent violated KRPC 1.1, 1.3, 1.4, 1.5,1.16 and 8.4(d)[.]
‘26. As part of the diversion agreement, Respondent agreed to the following:
a. Prior to June 25, 2011, Respondent was to complete fourteen hours of CLE, including four hours designated as ethics hours. Proof of compliance was to be in the form of a CLE transcript.
b. Within one week of receiving a document pertaining to a client, the Respondent was to send a copy to the client. Respondent was to malee every effort to return phone calls within two business days. Respondent was to make every effort to respond to written correspondence within one week.
c. Respondent was to meet all court deadlines.
d. Respondent was to work with KALAP.
e. The Respondent was required to remove any reference to a nonrefundable fee and to follow the Kansas Rules of Professional Conduct as they relate to fees and retainers. The Respondent was to use a fee agreement that clearly stated the payment terms and when Respondent was to commence work on the case. The Respondent was to provide a sample fee agreement to the practice supervisor, John Gerstle.
f. Respondent was to resolve the fee dispute with Complainant [V] through the Johnson County Bar Association Fee Dispute Committee.
g. Respondent was to review all of his cases every 60 days and crosscheck with court dockets to make sure he was meeting deadlines. He was to reconcile his calendar on a daily basis.
h. Respondent was to meet with and provide John Gerstle access to his files.
‘27. Respondent did submit the fee dispute to the Johnson County Bar Association.
‘28. Mediation was never conducted, instead, it was agreed that Respondent would return $10,000.00 from the $15,000.00 retainer Respondent had asserted was non-refundable.
‘29. Respondent paid $2,000.00 to [V] on October 6, 2011.
‘30. Respondent made the final $8,000.00 restitution payment on October 27, 2011.
‘31. Respondent is working with KALAP.
‘32. Respondent completed the required CLE hours on June 30,2011. The Agreement required the hours to be completed by June 25, 2011.
‘33. Respondent and Gerstle did meet frequently.
‘DA 11,445
‘34. On October 13, 2011, the Office of the Disciplinary Administrator received a complaint from [M.M.] regarding the Respondent. Case number DA 11,445.
‘35. [M.M.] is deaf. She sought out Respondent’s assistance because she believed that the Olathe Club for the Deaf defamed, bullied, slandered and libeled her. The acts against hex started in 2008. The Olathe Club for the Deaf is a domestic corporation.
‘36. [M.M.] caused a binder of papers to be delivered to Respondent on December 30,2009. She had previously personally met with Respondent to discuss the matter.
‘37. Respondent, through counsel, responded to the complaint on December 4, 2011. Respondent acknowledged that he did not respond to every email. Respondent reports he did not respond if he did not have new information.
‘38. Respondent admitted he did not file suit or send a demand letter as promptly as the client would have liked. Some of the delay is attributable to the client not promptly providing material; the voluminous amount of material provided that needed to be reviewed to determine and research the legal claims that were possible; and some is attributable to Respondent and client travelling.
‘39. Respondent believed client to be a good person who was wronged. Respondent also came to realize that the case was not going to result in any significant monetary recovery, and, in fact, the expenses might exceed any recovery.
‘40. Respondent researched several theories. It became clear that [M.M.] was going to have difficulty proving damages.
‘41. Respondent filed suit on behalf of [M.M.] against the Olathe Club of the Deaf on October 28, 2011.
‘42. In the December 4, 2011, letter, counsel reports that Respondent and [M.M.] had worked out their difficulties and Respondent agreed to continue to represent her pro bono. Although she offered to pay a fee on more than one occasion, he knew she could not afford to pay an hourly fee.
‘43. On October 21, 2011, Respondent told Complainant he was still working on her case. He filed suit a few days later, on October 28, 2011.
‘44. On January 12, 2012, the Judge wrote a bench note stating: “Serve or Dismiss/to Be Served by 03/23/12.”
‘45. On January 27,2012, a Motion for Extension of Time to accomplish service was filed. An Order Granting an Extension of time was entered on January 27, 2012.
‘46. Respondent did not provide [M.M.] with a copy of the Motion and Order for Extension of Time to accomplish service.
‘47. The investigator met with [M.M.] on March 2, 2012. It was during this meeting [M.M.] learned the case was in danger of being dismissed due to the lack of service. After the meeting with the investigator, [M.M.] emailed die investigator regarding the service issue.
‘48. On March 23, 2012, a Request and Service Instruction Form Summons and Petition to the Olathe Club of the Deaf was issued.
‘49. Respondent served an individual named Leonard Hall on March 23, 2012. Mr. Hall is the attorney for the Olathe Club of the Deaf; he is not die registered agent. Mr. Hall agreed to accept service.
‘50. The Olathe Club of the Deaf filed a “Memorandum” on April 12, 2012, contending that the suit was not timely filed and Respondent did not properly obtain service because he served the Club’s lawyer, not the registered agent.
‘51. All [M.M.] wanted was an apology from the Club. On August 20, 2012, the Respondent obtained a written letter of apology from the Club.
‘52. On August 21, 2012, Respondent presented die Court with a joint motion for dismissal and order.
‘53. The court dismissed the action with prejudice.
‘DA 11,521
‘54. On Januaiy 30, 2012, the Office of the Disciplinary Administrator received a complaint from [C.C.L.] regarding the Respondent.
‘55. Respondent filed a response February 22, 2012.
‘56. Complainant met with Respondent on Januaiy 6, 2012.
‘57. Complainant retained Respondent on January 10, 2012, to represent him in a criminal case in which Complainant had been charged with domestic violence.
‘58. Complainant paid Respondent $4010.00 on January 10, 2012. Respondent reduced his fee from the original quote. The ten dollars was to pay the District Attorney fee for police reports.
‘59. The retainer was not deposited in either of Respondent’s attorney trust accounts. It was deposited in his operating account pursuant to the Commitment Agreement.
‘60. Complainant called Respondent’s office on January 11, 2012, and requested a return call.
‘61. Respondent e-mailed a “Retainer Agreement” to Complainant on Januaiy 12, 2012. Complainant never executed the agreement.
‘62. Complainant called Respondent’s cell phone on January 12, 2012, and there was no answer.
‘63. On Januaiy 12, 2012, Respondent contacted the assigned prosecutor to determine the State’s position on modification of the No Contact Order, in the event [C.C.L.’s wife] wanted the No Contact Order modified. Respondent was advised that the State was opposed to a modification. Respondent was advised that [C.C.L.j’s wife had submitted paperwork requesting a modification to no violent contact and that the State had forwarded that request on to the judge. Respondent contacted the judge and was told the judge had modified the no contact order to allow phone and electronic communication.
‘64. Respondent advised the client and his wife of the modification.
‘65. Respondent told Complainant that he would review the police reports on January 17, 2012. He did not review the reports until Januaiy 18, 2012, because he did not receive the discovery from the District Attorney’s Office until Januaiy 18, 2012. His assistant redacted them on Januaiy 19, 2012.
‘66. On January 18, 2012, Complainant called Respondent’s office in the morning and requested a return call. He then called Respondent’s cell phone two times in the afternoon. There was no answer.
‘67. Respondent reports his phone log indicated complainant tried calling twice on Januaiy 19, 2012.
‘68. Respondent admits to missing Complainant’s calls. Respondent had his assistant call Complainant back on Januaiy 19, 2012, to set up a meeting to review the police reports on the next day, Januaiy 20, 2012.
‘69. On January 20, 2012, Complainant and Respondent met for approximately an hour. Respondent provided tire redacted police reports to Complainant. Respondent agreed to contact die prosecution on Monday, January 23, 2012, to discuss further modification of the No Contact Order.
‘70. Early on January 23, 2012, Complainant called Respondent and told him he was considering terminating Respondent’s representation.
‘71. Respondent set up a meeting for that afternoon.
‘72. Complainant met widi Respondent and voiced concern diat Respondent did not have time to properly represent him.
‘73. Complainant asked for half of his retainer to be returned and to modify die unsigned retainer agreement so diat those funds would be paid at the end of the representation. Respondent spent 1.75 hours widi Complainant.
‘74. Respondent refused to refund any money and did not agree to any modification of the retainer agreement. Respondent indicated he was eager to continue to represent Complainant. Complainant agreed to continue die representation.
‘75. Respondent believed that Complainant left die meeting satisfied that Respondent did have die time to represent him and understood the strategy to be employed. Respondent continued to work on the case.
‘76. Respondent reports diat he had no contact with Complainant on January 24, 2012, or January 25, 2012.
‘77. On January 26, 2012, Respondent called Complainant. Complainant said he was driving and would call Respondent back. Complainant emailed Respondent and terminated his services. Complainant asked for a refund of $3,500 based on his calculation that Respondent had spent 2 hours working on Complainant’s case. Complainant demanded that payment be made widiin 7 days or he would file a disciplinary complaint.
‘78. Complainant filed the complaint on January 30, 2012, three days before the deadline he set.
‘79. Respondent filed a Motion to Withdraw on February 1, 2012.
‘80. Respondent emailed a billing statement for $1,382.50, representing 5.75 hours, to [Complainant] at 8:47 p.m. on February 1, 2012. Respondent proposed to refund $2,700.00.
‘81. Complainant suggested Respondent was owed for 3.1 hours and requested a refund of $3,165.00.
‘82. Respondent agreed in a subsequent email that his fee should be reduced to $1,132.50 because he inadvertently charged for tire original consultation. Respondent intended a half hour of the initial consultation to be free. Accordingly, Respondent offered to refund $2,877.50.
‘83. Respondent then offered to reduce his fee to $1,000.00, as a compromise, in order to resolve the fee dispute without having to submit the matter to the Johnson County Fee Dispute Committee. On February 3, 2012, Respondent provided a $3,000.00 refund check to Complainant.
‘84. The unexecuted retainer agreement provided, in material part:
“Initial retainer: At or before the signing of this agreement, you agree to pay a flat fee of $4,000.00, representing a “Commitment Fee” intended to commit the Firm to represent you and not as a fee to be earned by future services. You agree that the Commitment Fee is earned in full when tendered and will be deposited in the general operating account and will not be held “in trust” for you. You acknowledge that the Commitment Fee represents a sum that you are paying to ensure tire Firm’s availability to represent you in this matter. You further acknowledge that the Commitment Fee represents a sum that you agree the Firms’ services and efforts are worth irrespective of the actual total amount of time devoted to the representation.
Costs of Delay: If resolution of the case is delayed or complicated as a result of your actions, (for example, if you fail to appear as ordered, cancel appointments, or fail to provide information or documents necessary for your representation) you agree to pay additional attorney fees based on my hourly rate of $350.00/hr. At such point, the Firm charges for attorney services in intervals of one-tenth of an hour, or 6-minute intervals rounded up to the nearest one-tenth. For example, a six minute telephone call is billed as .1 hour; a seven minute telephone call is billed as .2 hour.
"USE OF OUTSIDE COUNSEL Occasionally, it maybe necessary for outside counsel to appear in your case due to unavoidable scheduling conflicts such as hearing in different courts at the same time. You agree to allow the Firm, at its discretion, to retain outside counsel to appear in your case if and when such a scheduling conflict occurs. We agree that the Firm will pay any fee for any services of such outside counsel and that you are not responsible for any fee owed to any such outside counsel.
“ATTORNEY CASE-LOAD You understand that the Firm’s attorneys have a significant case load, and that yours is not our only case. You understand that the Firm’s attorneys must determine in their sole discretion when work is to be performed on your case. Additionally, we strive to return phone calls by the end of the next business day, but many times this may not be possible due to a number of factors, such as hearings, depositions, meetings etc.”
The above stated acts by the Respondent, Kevin Dellett violate Kansas Rules of Professional Conduct 1.1, 1.3, 1.4, 1.5, 1.16, and 8.4(d).’
“12. Based upon the parties’ stipulation, the hearing panel concludes as a matter of law that the respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 1.5, KRPC 1.16, and KRPC 8.4(d), as detailed below.
“KRPC 1.1
“13. Lawyers must provide competent representation to their clients. KRPC 1.1 provides tire requirement in this regard:
‘A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.’
The respondent failed to provide competent representation to A.S. The respondent failed to inform his client that a motion was filed, failed to respond to the motion, failed to appear in court, and, after default judgment was entered, failed to inform his client that default judgment had been entered. As such, the hearing panel concludes that the respondent failed to provide competent representation to A.S. by failing to utilize the thoroughness and preparation reasonably necessary for the representation, in violation of KRPC 1.1.
“KRPC 1.3
“14. KRPC 1.3 provides: ‘A lawyer shall act with reasonable diligence and promptness in representing a client.’ In this case, the respondent failed to provide diligent representation to C.H.N., A.S., and M.M. With regard to C.H.N., the respondent failed to move her case along quicldy. The respondent failed to respond to a motion filed in A.S.’s litigation. Finally, the respondent failed to timely file suit or send a demand letter on behalf of M.M. Accordingly, the hearing panel concludes that the respondent repeatedly violated KRPC 1.3.
“KRPC 1.4
“15. Lawyers must provide adequate communication to [their] clients. Specifically, KRPC 1.4(a) provides as follows: ‘[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.’ The respondent failed to provide adequate communication to C.H.N., J.P., A.S., and M.M.
“16. The respondent failed to respond to several requests for updates from C.H.N. Regarding J.P., the respondent failed to inform J.P. that the scheduled jury trial was continued. Additionally, the respondent failed to inform J.P. that the respondent had requested an additional continuance of the jury trial. The respondent failed to notify A.S. that a hearing has been scheduled. Additionally, the respondent failed to inform A.S. that the court entered default judgment in her case. Finally, with regard to M.M., the respondent failed to provide M.M. with a copy of a motion filed in the litigation.
“17. Thus, the hearing panel concludes that the respondent repeatedly violated ICRPC 1.4(a).
“KRPC 1.5
“18. ‘A lawyer’s fee shall be reasonable.’ KRPC 1.5(a). Nonrefundable fees are per se unreasonable. The respondent charged J.P. a nonrefundable fee. Ad ditionally, the respondent included a provision in C.C.L.’s engagement contract that the fee was earned in full when the fee was paid. Such a provision is tantamount to charging a nonrefundable fee. The hearing panel concludes, as a result, that the respondent twice violated KRPC 1.5(a) by charging a nonrefundable fee.
"KRPC 1.16
“19. ‘Upon termination of representation, a lawyer shall take steps to tire extent reasonably practicable to protect a client’s interests.’ KRPC 1.16(d). This provision requires lawyers to refund[] any advance payment of fee drat has not been earned.’ The respondent charged J.P. a fee and tiren refused to refund the unearned portion of the fee upon termination of the representation. Because the respondent refused to refund an unearned fee, the hearing panel concludes that the respondent violated KRPC 1.16(d).
“KRPC 8.4(d)
“20. ‘It is professional misconduct for a lawyer to . . . engage in conduct drat is prejudicial to the administration of justice.’ KRPC 8.4(d). In this case, tíre respondent engaged in conduct that prejudiced the administration of justice when he failed to appeal- in court on behalf of A.S. As such, the hearing panel concludes that the respondent violated KRPC 8.4(d).
“American Bar Association Standards for Imposing Lawyer Sanctions
“21. In making tiris recommendation for discipline, the hearing panel considered the factors outlined by tire 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 tire existence of aggravating or mitigating factors.
“22. Duty Violated. The respondent violated his duty to his clients to provide competent and diligent representation. The respondent also violated his duty to his clients to provide adequate communication. Further, the respondent violated his duty to his clients to charge a reasonable fee. Additionally, the respondent violated his duty to his client to properly terminate representation. Finally, the respondent violated his duty to the legal system to refrain from interfering with the administration of justice.
“23. Mental State. The respondent knowingly violated his duties.
“24. Injury. As a result of the respondent’s misconduct, the respondent caused actual injury to his client and the legal system.
“Aggravating and Mitigating Factors
“25. Aggravating circumstances are any considerations or factors that may justify an increase in tire degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found the following aggravating factors present:
“26. Prior Disciplinary Offenses. With regard to C.H.N., J.P., and A.S., the respondent was placed on diversion for the misconduct. The respondent failed to comply with the terms and conditions of diversion and, as a result, the disciplinary administrator revoked the respondent’s diversion.
“27. Dishonest or Selfish Motive. The respondent engaged in selfish conduct when he charged nonrefundable fees. As such, the hearing panel concludes that that misconduct was motivated by selfishness.
“28. A Pattern of Misconduct. The respondent engaged in a pattern of misconduct by repeatedly violating KRPC 1.3 and KRPC 1.4. As such, the hearing panel concludes that the respondent engaged in a pattern of misconduct.
“29. Multiple Offenses. The respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 1.5, KRPC 1.16, and KRPC 8.4(d). Because the respondent violated six different rules, the hearing panel concludes that the respondent committed multiple offenses.
“30. Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the respondent to the practice of law in the State of Kansas in 1995. At the time of the misconduct, the respondent had been practicing law for more than 10 years.
“31. 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 circumstances present:
“32. Personal or Emotional Problems if Such Misfortunes Have Contributed to Violation of the Kansas Rules of Professional Conduct. The respondent testified that he suffers from attention deficit disorder and depression. The hearing panel concludes that the respondent’s mental health issues may have contributed to the respondent’s violations.
“33. The Present and Past Attitude of the Attorney as Shown by the Attorney's Cooperation During the Hearing and the Attorneifs Full and Free Acknowledgment of the Transgressions. In the stipulation and during the formal hearing, the respondent fully and freely acknowledged the misconduct.
“34. 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 presented letters which establish the respondent’s previous good character and reputation in his community.
“35. Remorse. At the hearing on the formal complaint, the respondent expressed genuine remorse for having engaged in the misconduct.
“36. In addition to the above-cited factors, the hearing panel has thoroughly examined and considered the following Standards:
‘4.42 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.
‘6.22 Suspension is appropriate when a lawyer knowingly violates a court order or rule, and there is injury or potential injury to a client or a party, or interference or potential interference with a legal proceeding.
‘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
“37. At tire hearing on the formal complaint, the deputy disciplinary administrator and the respondent recommended that the respondent’s probation plan be adopted and that tire respondent be allowed to continue to practice law subject to tire supervision detailed by the respondent’s probation plan.
“38. A hearing panel may recommend probation only in certain circumstances.
‘The Hearing Panel shall not recommend that the Respondent be placed on probation unless:
(i) the respondent develops a workable, substantial, and detailed plan of probation and provides a copy of the proposed plan of probation to tire Disciplinary Administrator and each member of the Hearing Panel at least fourteen days prior to the hearing on the Formal Complaint;
(ii) tire Respondent puts the proposed plan of probation into effect prior to the hearing on tire Formal Complaint by complying with each of the terms and conditions of the probation plan;
(iii) the misconduct can be corrected by probation; and
(iv) placing the Respondent on probation is in the best interests of the legal profession and the citizens of the State of Kansas.’
Kan. Sup. Ct. R. 211(g)(3).
“39. After careful consideration, the hearing panel concludes that, pursuant to Kan. Sup. Ct. R. 211(g)(3), it is proper to recommend probation in this case. The respondent developed a workable, substantial, and detailed plan of probation and timely provided a copy of the proposed plan of probation to the disciplinary administrator and each member of the hearing panel. The Respondent put the proposed plan of probation into effect prior to the hearing on the formal complaint by complying with each of the terms and conditions of the probation plan. The misconduct can be corrected by probation. Finally, placing tire respondent on probation is in the best interests of the legal profession and the citizens of the State of Kansas.
“40. The hearing panel recommends that the respondent be suspended from the practice of law for a period of two years. The hearing panel further recommends that the court suspend the imposition of the suspension and place the respondent on probation, according to the terms and conditions detailed below:
“41. Duration of Probation. The respondent will remain on probation for 24 months from tire date of the Supreme Court’s opinion.
“42. Limitation of Practice. The respondent will limit his practice to criminal, traffic, and collection cases. The respondent will not practice in any other areas of law. The respondent will change all advertisements, including his website to reflect the practice limitations within 30 days of the date of this report.
“43. Superoision. Frank Gilman will supervise the respondent’s practice. As the respondent’s practice supervisor, Mr. Gilman will be afforded all immunities granted by Kan. Sup. Ct. R. 223.
⅛. The respondent will allow the practice supervisor access to his client files, calendar, and trust account records.
‘b. The respondent will comply with any requests made by the practice supervisor.
‘c. The respondent will meet with the practice supervisor every two weeks. During the regular meetings, the respondent and the practice supervisor will (1) discuss open cases, including cases which present any difficulties, (2) review the respondent’s calendar for the upcoming two weeks for deadlines, court appearances, etc., and (3) review the respondent’s trust account records.
‘d. If, after 12 months, the practice supervisor concludes that meeting eveiy two weeks is not necessary, the practice supervisor may meet with the respondent on a monthly basis for the remaining probation period.
⅛. The practice supervisor will provide written monthly reports to the disciplinary administrator. The monthly reports will detail the respondent’s compliance with each of the terms and conditions of probation.
‘f. If the practice supervisor discovers that the respondent violated the Kansas Rules of Professional Conduct or any term or condition of probation, the practice supervisor will immediately report the violation to the disciplinary administrator.’
“44. Law Office Organization. The respondent will establish and utilize a diary and docketing system which includes a mechanism by which approaching court deadlines and statutes of limitations are noted. The respondent will review each of his cases at least every two weeks to determine what action needs to be taken. The respondent will update his calendar on a daily basis. The respondent will reconcile his calendar with his assistant’s calendar on a daily basis. The respondent will reconcile his calendar with the Johnson County District Court’s calendar on a weeldy basis.
“45. Audits. The practice supervisor will conduct audits of the respondent’s flies every six months, beginning September 1, 2013, and continuing throughout the time the respondent remains on probation. The practice supervisor will make a report of each audit. In conducting the audits, the practice supervisor will review each of the respondent’s open case files. In the report of the audit, the practice supervisor will determine if deadlines were met, if the respondent maintained adequate communication, and if there were any irregularities in the cases. Addi tionally, the practice supervisor will note any matters which amount to a violation of the Kansas Rules of Professional Conduct or the Rules Relating to the Discipline of Attorneys. In the audit report, the practice supervisor will also provide the respondent with a list of changes to incorporate in his practice to improve the respondent’s practice. The practice supervisor will provide a copy of the audit report to the respondent and the disciplinary administrator.
“46. Fee Agreements. The respondent will enter into written fee agreements with all clients. The respondent will enter into written hourly fee agreements with all clients except clients with minor traffic ticket cases. For minor traffic ticket cases, the respondent will enter into a written fixed fee agreement. The respondent will provide a sample form written hourly fee agreement and a sample form written fixed fee agreement to the practice supervisor and the disciplinary administrator within 30 days of the date of this report. All unearned fees are fully refundable.
“47. Court Deadlines. The respondent will meet all deadlines set by the courts or statutes. The respondent will appear in court for all hearings scheduled on cases in which he is counsel of record.
“48. Billing Statements. The respondent will provide each client, other than clients with minor traffic ticket cases, with a monthly billing statement that details the services performed, the date which each service was performed, the time spent for each service, and the amount to be charged for each service. The respondent will provide a sample form of a billing statement to the practice supervisor and the disciplinary administrator within 30 days of the date of this report.
“49. Communication. The respondent will return all telephone calls from current clients within two business dates of receipt, unless the respondent is in jury trial. If the respondent is in a jury trial and unable to timely return telephone calls, tire respondent will ensure that all clients are made aware of the respondent’s jury trial schedule with a recorded voicemail message. The respondent will return all telephone calls received while in jury trial within two days following the conclusion of the jury trial. The respondent will respond to all written correspondence from current clients within one week.
“50. KALAP Monitoring. Throughout the period of probation, the respondent will continue to be monitored through KALAP. The respondent will comply with all terms and conditions contained in the monitoring agreement. The respondent will keep his KALAP monitor informed of his treatment plan and the names of the treatment providers.
“51. Psychological Evaluation. The respondent will undergo a thorough psychological evaluation by a forensic psychologist within 60 days following the release of this report. The respondent will provide a copy of the psychological report to the practice supervisor, the KALAP monitor, the disciplinary administrator, and the respondent’s treatment professionals. The respondent will comply with all recommendations made by the forensic psychologist in the psychological evaluation.
“52. Treatment. The respondent will continue to comply with the treatment plan established by his treatment professionals by participating in counseling and by taking prescribed medications. The respondent will not discontinue his participation in counseling or discontinue taking his medication unless the treatment providers determine that counseling or medication is no longer warranted. A treatment provider will provide the practice supervisor, the disciplinary administrator, and the KALAP monitor with quarterly updates. The quarterly updates will include the respondent’s compliance with the treatment plan, the respondent’s progress in treatment, and the respondent’s prognosis. The respondent will execute releases necessary to allow his practice supervisor, the disciplinary administrator, and tire respondent’s KALAP monitor to discuss his treatment with the treatment providers.
“53. Cooperation. The respondent will attend any scheduled meetings with the disciplinary administrator. The respondent will provide information as requested by the disciplinary administrator.
“54. Additional Violations. The respondent will comply with the Kansas Rules of Professional Conduct and the Rules Relating to the Discipline of Attorneys. If the respondent violates tire Kansas Rules of Professional Conduct, the Rules Relating to tire Discipline of Attorneys, or any term or condition of probation, during tire period of probation, the respondent will immediately report the violation to the disciplinary administrator.
“55. Termination of Probation. The respondent will remain on probation, even after 24 months’ time, until the Supreme Court releases the respondent from probation.
‘56. Costs are assessed against the respondent in an amount to be certified by the Office of tire 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 the attorney has violated the KRPC, and, if so, 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) (2013 Kan. Ct. R. Annot. 356). Clear and convincing evidence is “ ‘evidence that causes the factfinder to believe that “tire 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]).
The respondent received adequate notice of the formal complaint, to which he filed an answer; he filed no exceptions to the hearing panel’s final hearing report. With no exceptions before us, we deem the panel’s findings of fact admitted. See Supreme Court Rule 212(c) and (d) (2013 Kan. Ct. R. Annot. 375).
The evidence before the hearing panel establishes by clear and convincing evidence the charged misconduct in violation of KRPC 1.1 (2013 Kan. Ct. R. Annot. 446) (competence); 1.3 (2013 Kan. Ct. R. Annot. 464) (diligence); 1.4(a) (2013 Kan. Ct. R. Annot. 484) (communication); 1.5(a) (2013 Kan. Ct. R. Annot. 503) (fees); 1.16(d) (2013 Kan. Ct. R. Annot. 569) (termination of representation); and 8.4(d) (2013 Kan. Ct. R. Annot. 655) (engaging in conduct prejudicial to administration of justice). Further, this evidence supports the panel’s conclusions of law. We therefore adopt the panel’s findings and conclusions.
The only remaining issue before us is the appropriate discipline for respondent’s violations. The hearing panel recommended respondent be suspended from the practice of law for 2 years, that the imposition of the suspension be suspended, and that respondent be placed on probation with the terms and conditions detailed above. The panel’s recommendation is advisory only and does not prevent us from imposing a different sanction. See Supreme Court Rule 212(f). At the hearing before this court, at which the respondent appeared, the office of the Disciplinary Administrator urged us to adopt the probation plan recommended by the panel.
We have considered respondent’s violations, the aggravating and mitigating circumstances, the relevant ABA Standards, and respondent’s detailed probation plan, as well as his demeanor and presentation before this tribunal. We conclude it is in the interest of the citizens of Kansas and the legal profession to suspend respondent for 2 years but to suspend that suspension as long as respondent adheres to the probation plan detailed in the final hearing report with one change. We modify the probation plan to the extent it placed respondent on probation until released by this court and instead direct respondent be placed on probation for a 2-year term.
Conclusion and Discipline
It Is Therefore Ordered that Kevin E. Dellett be suspended from the practice of law in the state of Kansas, in accordance with Supreme Court Rule 203(a)(2) (2013 Kan. Ct. R. Annot. 300), for 2 years effective as of tire date of this opinion. The imposition of this suspension from the practice of law shall be suspended, and respondent shall be placed on probation according to the terms discussed in paragraphs 42-54 and 56 of the panel’s hearing report.
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
Nuss, C.J.:
Damon Vontress contends the district court and Court of Appeals both erred in denying his motion for habeas relief as untimely under K.S.A. 60-1507(1). While admitting his motion was untimely filed after the 1-year limit in K.S.A. 60-1507(f)(l), Vontress argues the summaiy denial of his motion caused “a manifest injustice” which entitled him to an extension of the time limit under K.S.A. 60-1507(f)(2). Both lower courts rejected this argument with varying rationales. We granted review to clarify the manifest injustice standard in K.S.A. 60-1507(f)(2).
We conclude a prisoner s failure to provide the reasons for the delay does not automatically exclude the late-filed motion. Rather, manifest injustice must be determined based on the totality of the circumstances in each case. But because there was no manifest injustice established under the totality of the circumstances here, we affirm the denial of Vontress’ motion.
Facts and Procedural Background
A jury convicted Vontress of first-degree murder, aggravated robbery, aggravated battery, and criminal possession of a firearm. The district court imposed a mandatory 40-year prison sentence for the murder conviction and consecutive sentences of 78 months, 41 months, and 8 months for the remaining counts. On direct appeal, we concluded that the convictions for aggravated robbery and aggravated battery were multiplicitous and reversed the conviction for the latter. We otherwise affirmed. See State v. Vontress, 266 Kan. 248, 257, 970 P.2d 42 (1998).
Ten years after this court’s decision, Vontress filed the present motion for habeas relief under K.S.A. 60-1507, asserting Kansas law on premeditation is unconstitutional. The State responded Vontress’ motion was untimely and therefore barred by K.S.A. 60-1507(f). The district court conducted a nonevidentiary hearing at which it denied the motion. Its journal entry provides in relevant part:
“2. In the instant motion, movant asserts Kansas law is unconstitutional. He specifically contends, ‘Kansas Law on Premeditation is itself unconstitutional’ and he cites various cases dating back to 1887.
“3. Movant is not entitled to relief because his motion is untimely. [Citation omitted.] The motion is untimely because his direct appeal was final in 1998 and he fails to show that manifest injustice justifies review of his motion. [Citation omitted.] Notably, the basis of his attack is caselaw dating from 1887 and he has not provided any indication or suggestion that justifies him waiting ten years to attack Kansas law.
“6. The motions, files and records conclusively show the movant is not entitled to the relief requested.”
The Court of Appeals affirmed the district court’s denial solely because Vontress failed to allege “any circumstances [that] prevented] him from [timely] filing his motion.” Vontress v. State, 45 Kan. App. 2d 430, 433, 249 P.3d 452 (2011). Because Vontress failed to justify the untimeliness of his motion, the panel majority concluded that he had failed to show manifest injustice under K.S.A. 60-1507(f)(2) allowing him to proceed. Consequently, the panel did not consider whether the underlying merits of Vontress’ motion—Kansas law on premeditation is unconstitutional which invalidated his murder conviction—demonstrated a manifest injustice sufficient to extend the 1-year time limitation of K.S.A. 60-1507(f)(1).
Judge Leben’s concurring opinion argued the majority’s interpretation of manifest injustice in K.S.A. 60-1507(f)(2) is too narrow. He concluded his colleagues erred in refusing to consider the merits of Vontress’ argument because a motion’s merits could establish manifest injustice in some circumstances, e.g., an inmate showing actual innocence. But Judge Leben concurred in the majority’s result because Vontress “presented neither a reason for his delayed filing nor a potentially valid claim.” 45 Kan. App. 2d at 433. We granted Vontress’ petition for review, obtaining jurisdiction under K.S.A. 60-2101(b).
Analysis
Issue: The Court of Appeals panel majority incorrectly interpreted the manifest injustice standard set out in K.S.A. 60-1507(f)(2).
K.S.A. 60-1507(a) authorizes certain prisoners to file a motion attacking their sentence. It states in part: “A prisoner . . . 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.” (Emphasis added.) The time limitation imposed by subsection (f) provides:
“Time limitations. (1) Any action under this sectionmustbebroughtioithinone 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 inanifest injustice.” (Emphasis added.)
Because Vontress’ convictions were final before the effective date of K.S.A. 60-1507(f)(1), he had until June 30, 2004, to timely file a motion. See Tolen v. State, 285 Kan. 672, 674, 176 P.3d 170 (2008). Vontress did not file his motion until November 10, 2008, more than 4 years after the deadline.
In attacking the panel majority’s opinion, Vontress argues that K.S.A. 60-1507(f)(2) does not require a movant to explain the reasons for filing an untimely motion. Rather, he contends that because there are no other avenues through which he may pursue his constitutional claims, justice demands that he be heard regard less of the time limitation. Accordingly, the court’s manifest injustice inquiry requires consideration of the merits of the motion.
The State responds that the manifest injustice inquiry is limited to the reasons for delay. In support, it cites federal caselaw requiring habeas petitioners under 28 U.S.C. § 2255 (2012) to show extraordinary circumstances caused the delay to qualify for equitable tolling of the statute’s 1-year limit.
At oral argument before this court, we asked counsel whether the general timeliness rule for civil actions in K.S.A. 2013 Supp. 60-206(b)(l)(B) applies to untimely 60-1507 motions. Specifically, we questioned whether a habeas movant must comply with both 60-1507(f) and 60-206(b)(l)(B). Both counsel were uncertain how the two provisions interact. But the State later filed a letter of additional authority under Supreme Court Rule 6.09(b) (2013 Kan. Ct. R. Annot. 50) contending that 60-206(b)(l)(B) does not apply to 60-1507 motions.
Standard of review
This case requires us to interpret K.S.A. 60-1507(f). Statutoiy interpretation is a question of law, and this court’s review is unlimited. State v. Holt, 298 Kan. 469, 474, 313 P.3d 826 (2013). Accordingly, we are not bound by the lower courts’ interpretation. State v. Hopkins, 295 Kan. 579, 581, 285 P.3d 1021 (2012). When interpreting statutes, we are mindful that
“ ‘ “[t]he fundamental rule to which all other rules are subordinate is that the intent of tire 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 tire statute language not readily found there.” Zimmerman v. Board of Wabaunsee County Comm'rs, 289 Kan. 926, Syl. ¶ 3, 218 P.3d 400 (2009).’ [Citation omitted.]” Holt, 298 Kan. at 474.
Stated another way, die best and only safe rule for ascertaining the intention of the makers of any written law is to abide by the language they have used. See Gannon v. State, 298 Kan. 1107, 1142, 319 P.3d 1196 (2014) (citing Wright v. Noell, 16 Kan. 601, 607, 1876 WL 1081 [1876]). And when legislative intent cannot be readily understood from the plain language of the statute, this court may employ other methods of statutory construction. 298 Kan. at 474.
Discussion
KS.A. 60-1507'(f) alone controls whether a 60-1507 motion is timely.
Before beginning our interpretation of the manifest injustice standard of K.S.A. 60-1507(f), we consider whether K.S.A. 2013 Supp. 60-206(b)(l)(B) has any bearing on untimely 60-1507 motions. Generally, we do not consider issues raised for the first time at oral argument. But we have authority to address any we have raised there on our own. Tolen, 285 Kan. at 675.
An action filed under K.S.A. 60-1507 is a separate civil action that is generally governed by the Kansas Rules of Civil Procedure, K.S.A. 60-201 et seq. See State v. Berreth, 294 Kan. 98, 111, 273 P.3d 752 (2012); Supreme Court Rule 183(a)(1) (2013 Kan. Ct. R. Annot. 278). And K.S.A. 2013 Supp. 60-206(b)(l)(B) sets forth the general timeliness rule for civil actions, providing in part:
“(b) Extending time. (1) In general. When an act may or must be done within a specified time, the court may, for good cause, extend the time:
(B) on motion made after the time has expired if tire party failed to act because of excusable neglect.” (Emphasis added.)
Our Rule 183 governs the particular procedure for K.S.A. 60-1507 motions and provides in relevant part: “The procedure on a motion under K.S.A. 60-1507 is governed by the rules of civil procedure, K.S.A. 60-201 et seq., to the extent the rules are applicable.” (Emphasis added.) Supreme Court Rule 183(a)(2) (2013 Kan. Ct. R. Annot. 278). So despite the general rule that K.S.A. 60-1507 motions are governed by tire Kansas Rules of Civil Procedure, the plain language of Rule 183 provides that those rules will not always control.
Consequently, we have recognized that some provisions in the rules of civil procedure do not apply to 60-1507 motions. See, e.g., State v. Mitchell, 297 Kan. 118, Syl. ¶ 1, 298 P.3d 349 (2013) (criminal defendant could not rely on K.S.A. 2012 Supp. 60-260(b)—a statute authorizing relief from a final judgment or order in a civil action—to mount collateral attack on convictions and sentence); Pabst v. State, 287 Kan. 1, 22-24, 192 P.3d 630 (2008) (liberal rules in K.S.A. 60-215[a] for amending pleadings do not apply to K.S.A. 60-1507 motions). So the general timeliness rule of K.S.A. 2013 Supp. 60-206 does not necessarily apply to 60-1507 motions.
Also relevant to our analysis is our longstanding rule that a specific statute controls over a general one when the relevant provisions overlap. See State v. Turner, 293 Kan. 1085, 1088, 272 P.3d 19 (2012) (citing State v. Chavez, 292 Kan. 464, 466, 254 P.3d 539 [2011]). As we explained in Turner:
“ ‘ “It is a cardinal rule of law that statutes complete in themselves, relating to a specific thing, take precedence over general statutes or over other statutes which deal only incidentally with the same question, or which might be construed to relate to it. Where there is a conflict between a statute dealing generally with a subject, and another dealing specifically with a certain phase of it, the specific legislation controls in a proper case. [Citations omitted.]” ’ ” 293 Kan. at 1088 (quoting Cochran v. Kansas Dept. of Agriculture, 291 Kan. 898, 907, 249 P.3d 434 [2011]).
The statutes, K.S.A. 60-1507(f) and K.S.A. 2013 Supp. 60-206(b), overlap as they both provide rules for when a court may consider an untimely motion. Under the plain language of K.S.A. 60-1507(f), it applies only to untimely habeas motions. See K.S.A. 60-1507(f) (2) (“The time limitation herein may be extended by the court only to prevent a manifest injustice.”) (Emphasis added.); K.S.A. 60-1507(a) (motions to be filed “pursuant to the time limitations imposed by subsection [f]”). On the other hand, K.S.A. 2013 Supp. 60-206(b) is general, providing rules for any “act [that] may or must be done within a specified time.”
Accordingly, we conclude the general rule in K.S.A. 2013 Supp. 60-206(b) does not apply in the habeas context. We read K.S.A. 60-1507(f) as the legislature’s complete expression of the relevant timeliness requirements for 60-1507 motions. So the 1-year time limitation and the exception for manifest injustice found in K.S.A. 60-1507(f) are the only relevant timeliness rules applicable to 60-1507 motions.
But before turning to whether Vontress has sufficiently demonstrated manifest injustice to overcome the otherwise untimely filing of his 60-1507 motion, we must first determine what is required for such a showing.
Manifest injustice must be determined under the totality of the circumstances.
We have said that manifest injustice in the habeas context means “obviously unfair” ’ ” or “ ‘ “shocking to the conscience.” ’ ” Holt, 298 Kan. at 480 (quoting State v. Kelly, 291 Kan. 868, 873, 248 P.3d 1282 [2011] [quoting Ludlow v. State, 37 Kan. App. 2d 676, 686, 157 P.3d 631 (2007)]). The parties agree. But they disagree about what a court may consider in determining manifest injustice for extending the 1-year time limitation. Vontress argues that the standard contemplates the merits of a 60-1507 motion, while the State contends drat it is limited to the reasons for delay.
Kansas appellate courts have been inconsistent in interpreting the language from K.S.A. 60-1507(f)(2): extend the time limit “only to prevent a manifest injustice.” Like the Court of Appeals panel majority in this case, most panels have focused on the reason for delay. See, e.g., Toney v. State, 39 Kan. App. 2d 944, 947, 187 P.3d 122, rev. denied 287 Kan. 769 (2008); Hines v. State, No. 109,054, 2013 WL 5925969, at *3 (Kan. App. 2013) (unpublished opinion); Reich v. State, No. 106,191, 2012 WL 3135899, at *3 (Kan. App. 2012) (unpublished opinion), rev. denied 297 Kan. 1247 (2013). The panel majority relied upon Toney for its holding.
The panel in Toney concluded that a prisoner claiming manifest injustice must show “circumstances that prevented him from asserting his claim before the 1-year time limitation . . . expired.” (Emphasis added.) 39 Kan. App. 2d at 947. This approach is consistent with the one advocated by the State. But it conflicts with caselaw from this court interpreting manifest injustice in terms of both the reasons for delay and the merits of the claim. See Pabst, 287 Kan. at 26 (rejecting a claim of manifest injustice both because the movant “failed to explain the delay” in filing an amended motion under 60-1507 and on the merits of his claim).
The State urges us to rely upon caselaw interpreting federal ha-beas statutes because “K.S.A. 60-1507 follows the language of [28 U.S.C. § 2255], and the body of law developed thereunder should be given great weight in construing K.S.A. 60-1507.” Easterwood v. State, 273 Kan. 361, 371, 44 P.3d 1209, cert. denied 537 U.S. 951 (2002). But Easterwood predates the 2003 amendment to K.S.A. 60-1507 which added die 1-year time limitation. And 28 U.S.C. § 2255 does not contain the “manifest injustice” exception of K.S.A. 60-1507(f)(2). See 28 U.S.C. § 2255(f) (2012) (“A 1-year period of limitation shall apply to a motion under this section.”); see also 28 U.S.C. § 2244(d)(1) (2012) (“A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.”).
Instead of extending the habeas petitioners’ time to file to prevent a manifest injustice, federal courts sometimes permit equitable tolling of file 1-year time limitation to allow petitions that are otherwise untimely. Holland v. Florida, 560 U.S. 631, 644-45, 130 S. Ct. 2549, 177 L. Ed. 2d 130 (2010); Miller v. Marr, 141 F.3d 976, 978 (10th Cir.), cert. denied 525 U.S. 891 (1998). A prisoner seeking equitable tolling in federal court “ ‘bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way.’ [Citation omitted.]” Sigala v. Bravo, 656 F.3d 1125, 1128 (10th Cir. 2011).
In its brief, the State implies that a showing of extraordinary circumstances for equitable tolling is limited to pleading facts or reasons explaining why a movant failed to bring a claim within the 1-year time limitation. And it is true that federal courts generally examine the reasons why the prisoner failed to timely file a habeas petition in determining whether extraordinary circumstances exist. See, e.g., Yang v. Archuleta, 525 F.3d 925, 927 (10th Cir. 2008) (lack of English language proficiency); Fleming v. Evans, 481 F.3d 1249, 1255 (10th Cir. 2007) (attorney negligence).
But despite the typical emphasis on the reasons a federal habeas petition was filed beyond the time limits, in some circumstances a court may equitably toll the limits based on the merits of a petitioner’s claim. See, e.g., Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000). There, the Tenth Circuit reasoned that “[e]quitable tolling would be appropriate, for example, when a prisoner is actually innocent, [citation omitted], when an adversary’s conduct— or other uncontrollable circumstances—prevents a prisoner from timely filing, or when a prisoner actively pursues judicial remedies but files a defective pleading during the statutory period, [citation omitted].” 232 F.3d at 808. And after oral argument in the instant case, the United States Supreme Court recognized that actual innocence, if proved, is grounds for an equitable exception to the time limitation in 28 U.S.C. § 2244(d) even where the prisoner does not satisfy the standard for equitable tolling. See McQuiggin v. Perkins, 569 U.S. _, 133 S. Ct. 1924, 1931-32, 185 L. Ed. 2d 1019 (2013).
The federal approach is more similar to the one advocated by Judge Leben in his concurring opinion than tire limited approach the State urges us to adopt. In concluding that the majority’s holding too narrowly defined manifest injustice, he wrote: “If a person can show actual innocence, for example, I would not leave him or her in prison even if that person failed for unexplained reasons to meet the 1-year time limit.” Vontress, 45 Kan. App. 2d at 433. We agree that a prisoner under these circumstances would suffer a manifest injustice to extend the time limit regardless of the reasons, if any, for the delay in filing the 60-1507 motion.
Accordingly, courts conducting a manifest injustice inquiry under K.S.A. 60-1507(f)(2) should consider a number of factors as a part of the totality of the circumstances analysis. This nonexhaus-tive list includes whether (1) the movant provides persuasive reasons or circumstances that prevented him or her from filing the 60-1507 motion within the 1-year time limitation; (2) the merits of the movant’s claim raise substantial issues of law or fact deserving of the district court’s consideration; and (3) the movant sets forth a colorable claim of actual innocence, i.e., factual, not legal, innocence.
All of the factors considered under tire totality of the circumstances need not be given equal weight, and no single factor is dispositive. See State v. Thompson, 284 Kan. 763, 803-04, 166 P.3d 1015 (2007) (“Consistent with a consideration of the totality of circumstances, no one factor can be legally dispositive.”); see also State v. Murphy, 296 Kan. 490, 493, 293 P.3d 703 (2013) (determining whether a police encounter is voluntary); State v. Sharp, 289 Kan. 72, 81, 210 P.3d 590 (2009) (determining whether confession is voluntary).
So a movant’s failure to address other reasons why imposition of the 1-year time limitation is a manifest injustice is not necessarily fatal to the movant’s claim. But because the burden is on the mov-ant in a 60-1507 action, failing to plead excuses for the filing delay may result in a greater risk that the movant’s claim will be dismissed as untimely. See Holt, 298 Kan. at 480 (citing Kelly, 291 Kan. at 873 [movant has burden to show manifest injustice]).
With the standard thus clarified, we now turn to whether Von-tress has shown manifest injustice under a totality of the circumstances for extending the 1-year time limitation.
Vontress’ motion is time-barred because he has failed to show an extension of the 1-year time limitation in K.S.A. 60-1507(f)(2) is necessary to prevent a manifest injustice under the totality of the circumstances.
The district court arguably made a totality of the circumstances determination in rejecting Vontress’ manifest injustice argument. It held: “Notably, the basis of his attack is caselaw dating from 1887 and he has not provided any indication or suggestion that justifies him waiting ten years to attack Kansas law.” (Emphasis added.) And it further held: “The motions, files and records conclusively show the movant is not entitled to relief.” But the panel majority interpreted the standard in K.S.A. 60-1507(f)(2) too narrowly and made dispositive Vontress’ failure to show reasons for the delay. Both approaches require a fuller exposition.
Vontress alleges in his motion that Kansas law on premeditation violates the United States Constitution’s Fourteenth Amendment guarantees of equal protection and substantive due process. He also argues that the legislature’s failure to define, and this court’s act of defining, the element of premeditation violates the separation of powers doctrine.
Vontress asserts that his motion qualifies for an extension of time under K.S.A. 60-1507(f)(2) because the merits of his claims satisfy the manifest injustice requirement. He emphasizes that a 60-1507 motion is the only avenue by which his constitutional claims may be considered, and manifest injustice necessarily occurs when the merits of a movant’s time-barred claim will never be considered by a court. All of tire lower courts’ judges correctly found he provided no justification or reason for his failure to file a timely 60-1507 motion. Nor does he present any additional issues or arguments that might factor into our analysis. So the merits necessarily form the primary basis of our inquiiy in this case. See Holt, 298 Kan. at 480 (movant has burden to show manifest injustice).
While the merits are relevant under the totality of the circumstances inquiiy, we reject die notion that simply time barring their consideration establishes manifest injustice per se. As the Court of Appeals correctly observed in Toney, accepting this argument would “render the 1-year time limitation under K.S.A. 60-1507(f)(1) essentially meaningless.” 39 Kan. App. 2d at 947. The time limitation in subsection (f)(1) necessarily prevents the consideration of the merits in some circumstances, i.e., when there is no manifest injustice. To hold otherwise would effectively make meaningless the statute’s time limit. See Gannon v. State, 298 Kan. at 1146 (quoting Hawley v. Kansas Dept. of Agriculture, 281 Kan. 603, 631, 132 P.3d 870 [2006] [“ ‘There is a presumption that the legislature does not intend to enact useless or meaningless legislation.’ ”]).
Here, the merits of Vontress’ claims do not warrant an extension of the time limit to prevent manifest injustice. He does not raise a colorable claim of actual innocence, nor does he raise any other factual issues. Instead, he raises two purely legal arguments without explaining how they apply to the facts of his case. And these legal arguments alone are insufficient to constitute a manifest injustice.
This court has previously rejected a claim similar to Vontress’ that the first-degree murder statute is unconstitutionally vague. See State v. Brown, 280 Kan. 898, 899-900, 127 P.3d 257 (2006). And as Judge Leben noted in his concurrence, the Court of Appeals also rejected arguments that were essentially identical to Vontress’ in Washington v. State, No. 100,657, 2009 WL 3082582 (Kan. App. 2009) (unpublished opinion), rev. denied 290 Kan. 1105 (2010). The Washington panel first held that the separation of powers doctrine inherent in the Kansas Constitution did not prevent the court from interpreting the meaning of premeditation. 2009 WL 3082582, at *3 (defining “premeditation” is an exercise of judicial power to interpret a statute, not the legislative function of creating new law). It also held the movant did not have standing to challenge Kansas premeditation law on equal protection or substantive due process grounds because he had failed to show the law as applied to him was unconstitutional. 2009 WL 3082582, at *5 (citing Board of Sumner County Comm'rs v. Bremby, 286 Kan. 745, 761, 189 P.3d 494 [2008] [standing requires causal connection between injury and challenged conduct]).
Because Vontress has failed to provide any additional facts or circumstances that would distinguish his situation, we cannot conclude his claims are meritorious. So we conclude that he has failed to meet his burden of showing manifest injustice under the totality of the circumstances to extend the 1-year time limitation. We affirm the district court to the extent it applied this test in conducting its analysis and affirm the panel’s majority opinion as reaching the right result for a different reason. See State v. May, 293 Kan. 858, 869-70, 269 P.3d 1260 (2012) (trial court’s reason for ruling immaterial if correct for any reason). Consequently, Vontress’ motion is time-barred because it was filed after expiration of the 1-year time limitation in K.S.A. 60-1507(f)(l).
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed. | [
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The opinión of the court was delivered by
Luckert, J.:
In a proceeding under the Eminent Domain Procedure Act, K.S.A. 2013 Supp. 26-501 et seq., it is well established that an owner of the subject property may testily as to his or her opinion regarding the property’s fair market value. Nevertheless, in Manhattan Ice & Cold Storage v. City of Manhattan, 294 Kan. 60, 74-76, 274 P.3d 609 (2012), and Mooney v. City of Overland Park, 283. Kan. 617, 619-20, 153 P.3d 1252 (2007), among other cases, this, court recognized limits to the scope of a property owner’s opinion testimony. Specifically, a property owner must base his or her opinion on matters that are relevant to the juiy’s determination of fair market value. And if the property owner is basing his or her opinion on the cost appraisal method, a foundation must be laid establishing the owner has the requisite expertise to perform the appraisal. In this case, the trial judge allowed a property owner, who did not have appraisal expertise, to express a valuation opinion but appropriately applied our caselaw and excluded testimony that was not relevant to the jury’s determination and was beyond the owner’s expertise. Consequently, we affirm.
Facts and Procedural Background
The property at issue in this eminent domain proceeding is a 36.2-acre, unimproved tract of land in Anderson County. Property owners Donald and Susan Diebolt purchased the property for $250,000 in 2006 for the purpose of adding a Garnett location to their lumberyard business, but no improvements had been made to the property before Unified School District No. 365 initiated the condemnation.
After the school district filed its petition, the trial judge appointed three appraisers pursuant to K.S.A. 2013 Supp. 26-504, who valued the property at $278,800. The Diebolts appealed the appraisers’ award and requested a jury trial.
Pretrial
During pretrial discovery, the school district deposed Donald Diebolt. Susan Diebolt was not deposed, nor did she testily at trial. In Diebolt’s deposition, he opined that the subject property had a value of “a little under 432 thousand.” Diebolt explained that he believed the fair market value of a tract of land is “what you have got in the land,” and consequently he calculated the fair market value by totaling “[t]he purchase price plus the costs in the property” minus farm income over the 4.58 years he had owned the property. Diebolt provided a written itemization of those costs, which was marked as Deposition Exhibit 1. These costs included the purchase price, closing costs, loan processing fees, appraisal fees, interest, property taxes, attorney fees, insurance, a topographical site plan and survey, a market site analysis, building plans, and environmental fees. To tire sum of these expenses, Diebolt added a 5 percent return on his investment. This sum was offset by farm income of $4,500 that had been received over the period of ownership. Diebolt’s total accounting and valuation was $431,501.59. Diebolt also testified he did not have any knowledge or background in valuing real estate or the Uniform Standards of Professional Appraisal Practice.
Following Diebolt’s deposition, citing Manhattan Ice, the school district filed a motion in limine in which it sought exclusion of:
“(a) Any testimony by Donald Diebolt as an expert witness in any capacity as to the fair market value of tire property that is at issue in this case; and
“(b) Any testimony at all by Plaintiffs’ sole witness, Donald Diebolt, as to how he arrived at his opinion of value with respect to the property that is the subject of this action.”
At the pretrial hearing on the motion in limine, the trial judge ruled from the bench. Relying on Manhattan Ice as a guide, the judge first explained the scope of testimony he would allow, stating that Diebolt could testify to “whatever value he believes the property is worth.” In addition, he could tell the jury the amount he and his wife paid to purchase the property, the reasons they bought the property, and the reasons they had surveys and a site analysis performed and site plans developed. The judge also delineated evidence he would not allow: “[H]e’s not going to be able to admit this Deposition Exhibit Number 1 or something similar to it at trial as some type of a cost analysis that he’s done on his own to come up with valuation of the property. Several of the items that are included in there wouldn’t be included in a cost analysis by any expert.” In summarizing his ruling, the judge indicated the motion was being denied in part because he would allow Diebolt to testify as to one item on Deposition Exhibit 1—the amount the Diebolts had paid for the property. All of the other entries on Deposition Exhibit 1 were excluded.
Subsequently, a written order in limine was filed, which differed somewhat from the judge’s oral rulings. In itemizing the testimony that would be allowed without further foundation, the order did not vaiy from the bench ruling, stating that Diebolt could testify “as to the purchase price of the property in question, when it was acquired, the purpose for which it was acquired, and their plans for the use of the property.” The order then addressed Deposition Exhibit 1 and, in doing so, did not absolutely exclude the various costs. Instead, the judge allowed the admission of evidence regarding the topographical site plan, survey, market site analysis, and building plan if those who performed the work testified “concerning the work that was done by them and the value of this work.” The order also explained: “[T]he evidence excluded by this ruling is not material or relevant to a determination of the value of the property.” But the order made no mention of Manhattan Ice.
Trial
At trial, Donald Diebolt was tire property owners’ only witness. He testified that he paid $250,000 for tire subject property. He explained the tract of land was larger than necessary for his plans and more expensive than some other property on the market but, in his opinion, the property was worth the extra expense because it was a good location to build a Garnett facility for his business. A traffic count, market site analysis, environmental study, topographical surveys, conceptual building plans, and estimates of the cost of building a lumberyard on the site were completed, and those confirmed his belief regarding the property’s fair market value. Nevertheless, he had not acted on his plans to build because an economic downturn hit soon after he bought the property. Diebolt opined that the value of the subject property at the time of the trial was $432,000. He stated that he arrived at this value by calculating the “[cjost flow to recreate what I’ve spent years doing.”
The school district presented testimony from a real estate appraiser who valued the subject property as between $188,400 to $249,000, using the comparable sales method. The witness testified that the highest and best use of the property was public use or use as commercial property for development. He further testified that he did not know of any property in the state that had an 18 percent annual appreciation in value such as the increase Diebolt was suggesting had occurred during the time the Diebolts owned the subject property.
The jury returned a verdict of $249,000. The Diebolts timely filed this appeal, over which this court has jurisdiction pursuant to K.S.A. 2013 Supp. 26-504 (direct appeal to supreme court of any final order under the Eminent Domain Procedure Act).
Issue Preserved
As a preliminary matter, the school district argues the Diebolts failed to make a proffer of the evidence they wished to have admitted and therefore failed to preserve the issue because they did not satisfy K.S.A. 60-405, which states:
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless it appears of record that the proponent of the evidence either made known the substance of the evidence in a form and by a method approved by the judge, or indicated the substance of the expected evidence by questions indicating the desired answers.”
Compliance with K.S.A. 60-405 serves a two-fold purpose: It assures that (1) tire trial judge is advised of the substance of the evidence and the nature of the parties’ arguments and (2) an adequate record is made for appellate review. See National Bank of Andover v. Kansas Bankers Surety Co., 290 Kan. 247, 275, 225 P.3d 707 (2010) (proffer preserves issue for appeal and provides adequate record for appellate review); State v. Deal, 271 Kan. 483, 490, 23 P.3d 840 (2001) (purpose of making a proffer is to allow trial judge to make evidentiary decision based on substance of testimony), overruled on other grounds by State v. Davis, 283 Kan. 569, 158 P.3d 317 (2006).
The school district is correct that the Diebolts did not make a formal proffer at trial. Nevertheless, “[a] formal offer of proof in question and answer form is not required if an adequate record is made in a manner that discloses the evidence sought to be introduced.” State v. Evans, 275 Kan. 95, 99, 62 P.3d 220 (2003). Past cases have recognized that such things as answers to discovery, arguments on a motion in limine, or in-court dialogue can fully set out the expected evidence and satisfy the requirements of K.S.A. 60-405. See, e.g., Manhattan Ice, 294 Kan. at 71 (interrogatory answers setting out substance of witnesses’ testimony sufficient); State v. Mays, 254 Kan. 479, 486, 866 P.2d 1037 (1994) (sidebar conferences and statement of defendant made trial court sufficiently aware of information to be elicited and reasons why information was important to defense); McGraw v. Sanders Co. Plumbing & Heating, Inc., 233 Kan. 766, 770, 667 P.2d 289 (1983) (argument on motion in limine and in-court dialogue fully set out appellant’s position).
At the pretrial hearing in this case, the trial judge was provided a copy of Deposition Exhibit 1 and Diebolt’s deposition testimony. The Diebolts’ counsel discussed the contents of Deposition Exhibit 1, the market site analysis, site plan, and surveys conducted of the property and explained why those documents should be admitted. Further, die trial transcript reveals that the judge referred back to Deposition Exhibit 1, the deposition, and the parties’ pretrial arguments when ruling on objections during Diebolt’s testimony. The transcript also reveals that die judge was aware of the nature of die proof because he described the substance of the evidence when making his rulings during the trial. For example, during a sidebar conference after the school district objected to a question posed by the Diebolts’ counsel, the judge indicated that Diebolt could testify that studies had been performed and the studies told him “that diis would be a good place for a lumberyard.” But the judge specified that Diebolt could only testify to his personal opin ion; he could not testify to the opinions of others that were included in the reports. This ruling reiterated the pretrial ruling that representatives of the entities preparing the reports, would have to testify and lay the necessary foundation before a report or its cost could be admitted into evidence.
On appeal, the record includes die trial transcript, the motion in limine, and its attachments—the transcript of Diebolt’s deposition and Deposition Exhibit 1. We also have the benefit of the judge’s rulings, including the order that was very specific in listing those items in Deposition Exhibit 1 that could not be admitted into evidence and those that could be admitted if a foundation was laid.
We conclude the Diebolts made a record that was sufficient for the trial judge and the parties to fully understand the substance of the evidence at issue and to inform us of the details of the evidence that Diebolt would have liked to have admitted—the amounts of money he had spent over the years—in order to substantiate his opinion of the fair market value of his property.
Evidence Properly Excluded
Finding the issue preserved, we turn to an analysis of the question presented by the Diebolts, which they summarize in their brief by stating that “the order in limine issued by the trial court was unduly and improperly broad in scope and that its application resulted in the exclusion of relevant and material evidence that could have been utilized to effectively demonstrate [the Diebolts’] basis for their claims of property value to the jury.”
Relevant Principles of Law and Standards of Review
The framing of this issue focuses us on the pretrial ruling on the motion in limine. In considering the merits of a motion in limine, a trial judge, just like an appellate court, applies a two-step analysis. One step focuses on whether a ruling should be made before trial; the Diebolts do not question this step of the analysis. The other step focuses on whether the evidence in question was admissible. This step, in turn, requires a four-step analysis in which the trial judge should (1) determine the evidence’s relevance; (2) determine which rules of evidence or other principles apply; (3) apply those rules and principles; and (4) weigh the probative value of the evidence against any prejudicial effect. On appeal, the standard of review for each step of the trial judge’s analysis varies. See State v. Shadden, 290 Kan. 803, 816-19, 235 P.3d 436 (2010) (stating two factors for motion in limine analysis and four-step evidentiary analysis and discussing standards of review).
The Diebolts’ argument relates to only the first step of the evi-dentiary analysis—whether the evidence was relevant. Specifically, they contend the trial judge erred in ruling that the costs incurred by the Diebolts as an incident of their ownership of the land were not relevant.
Any consideration of relevancy begins with K.S.A. 60-401(b), which defines relevant evidence as “evidence having any tendency in reason to prove any material fact.” We have determined that this definition encompasses requirements that the evidence be both material and probative. “Evidence is material when the fact it supports is in dispute or in issue in the case and is probative when it has a logical tendency to prove a material fact.” State v. Lowrance, 298 Kan. 274, 289, 312 P.3d 328 (2013). An appellate court reviews a trial judge’s ruling regarding the materiality of evidence by applying a de novo standard and a ruling regarding the probative nature of the evidence under an abuse of discretion standard. Shadden, 290 Kan. at 817.
The school district’s reply arguments raise questions under the second and third steps of the evidentiary analysis—determining which rales of evidence or other principles applied to the determination of whether the specific evidence was admissible and the application of those rules. See Shadden, 290 Kan. at 817. The school district relies on rales and caselaw regarding opinion testimony and argues that under application of those rales Diebolt was not qualified as an expert witness as necessary before he could offer his opinion that the various costs he had incurred were a component of fair market value.
K.S.A. 60-456 defines the criteria for lay and expert opinion testimony. The application of K.S.A. 60-456 is reviewed for an abuse of discretion. Manhattan Ice, 294 Kan. at 70 (citing Pullen v. West, 278 Kan. 183, 210-11, 92 P.3d 584 [2004]).
An abuse of discretion can occur in various ways. See State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012) (abuse of discretion can occur [1] if no reasonable person would have taken the view adopted by the trial court; [2] if the judicial action is based on an error of law; or [3] if the judicial action is based on an error of fact). When the issue is whether the trial judge properly viewed the probative nature of evidence or whether the trial judge erred in the application of K.S.A. 60-456, “[discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court.” Pullen, 278 Kan. at 210-11.
Property Owners Opinion Testimony
Turning to the Diebolts’ argument that die trial judge erred in excluding relevant evidence, we first examine materiality. To determine if evidence is material—that is, whether the evidence supports a matter that is in dispute or in issue in the case—it is necessary to examine the nature of the case and the elements that must be established for the plaintiff or petitioner to meet the burden of proof. This is easily determined in an eminent domain action because the only question for the jury is the measure of compensation that should be justly awarded an owner who is being deprived of his or her property. Manhattan Ice, 294 Kan. at 68; K.S.A. 2013 Supp. 26-508(a) (“The only issue to be determined [in the appeal] shall be the compensation required by K.S.A. 26-513.”); see U.S. Const. Amend. 5 (“private property [shall not] be taken for public use, without just compensation”).
K.S.A. 26-513(b) defines “the measure of compensation” when, as in this case, an entire tract of property is being taken as “the fair market value of the property or interest at the time of the taking.” K.S.A. 26-5l3(e) defines “fair market value” as
“the amount in terms of money that a well informed buyer is justified in paying and a well informed seller is justified in accepting for property in an open and competitive market, assuming that the parties are acting without undue compulsion. The fair market value shall be determined by use of tire comparable sales, cost or capitalization of income appraisal methods or any combination of such methods.”
In light of this provision, the issue of relevancy is whether the evidence relates to fair market value viewed through the lens of an arms-length transaction. Mooney, 283 Kan. at 619-20.
In general, as recognized in a long line of cases, a property owner’s opinion as to the fair market value is deemed relevant to this determination. Manhattan Ice, 294 Kan. at 75; Mooney, 283 Kan. at 619; City of Wichita v. Sealpak Co., 279 Kan. 799, 802, 112 P.3d 125 (2005); City of Wichita v. Chapman, 214 Kan. 575, 580, 521 P.2d 589 (1974); Urban Renewal Agency v. Tate, 196 Kan. 654, 657, 414 P.2d 28 (1966); Taylor v. State Highway Commission, 182 Kan. 397, Syl. 6, 320 P.2d 832 (1958),; Randle v. Kansas Turnpike Authority, 181 Kan. 416, 420, 312 P.2d 235 (1957). The Diebolts rely on this principle as their primary authority and essentially argue that under this principle a property owner may testify to any matter that the property owner believes supports his or her opinion.
In response, the school district does not dispute the principle that a property owner’s opinion of value is relevant, but it does dispute that the owner can testify to any matter that supports the owner’s opinion, even a matter that is not an appropriate consideration. As to the relevance of an owner’s opinion, the school district aptly points out that Diebolt was allowed to state his opinion of the property’s fair market value. In fact, Diebolt not only stated his opinion, he explained that the value reflected a “[c]ost flow to recreate what I’ve spent years doing.” He also explained his plan to build a lumberyard and the reasons the property was favorable for that purpose. He further itemized the various studies, analyses, surveys, and plans that confirmed “that this would be a good location to build a lumber yard.” Under the trial judge’s ruling, tire Diebolts could have presented evidence regarding the substance of these studies if a foundation was laid by those who had performed the studies. On appeal before us, the Diebolts do not argue that the trial judge erred in requiring this foundation, nor do they suggest how they were prevented from laying tire foundation and presenting this evidence. They have thus waived any such arguments. See State v. Holman, 295 Kan. 116, 125, 284 P.3d 251 (2012) (issue not briefed is deemed waived and abandoned).
The school district further argues that the exclusion of the costs was not erroneous because Diebolt’s method of valuation was inconsistent with K.S.A. 26-513(e) and a property owner should not be allowed to testify to matters that are not relevant to the valuation methods that can be considered by the jury. Our past cases support the school district’s argument. For example, in Mooney v. City of Overland Park, 283 Kan. 617, 619-20, 153 P.3d 1252 (2007), this court held that a trial judge did not err in excluding a property owner’s testimony regarding the prior sale of a small, unimproved tract of the subject property. Even though the owner asserted the sale was comparable and therefore relevant, this court affirmed the trial judge’s ruling because there was no logical connection between the prior sale of unimproved land and the current value of the improved land. See Miller v. Glacier Development Co., 284 Kan. 476, 486-93, 161 P.3d 730 (2007) (disallowing property owner’s testimony regarding prior sale or purchase price of subject property because that prior value was not sufficiently related in time and circumstance to be relevant to the question of fair market value at the time of taking). Thus, while a comparable sale would be a material fact and an appropriate factor for the jury’s consideration under K.S.A. 60-513(e), the evidence in those cases was not probative of a comparable sale.
Likewise, an owner’s testimony can be excluded when it is based on factors that are unrelated to a recognized appraisal method. As one court has stated, while “[a]n owner of property may testify as to its value (without qualification as an expert), upon the assumption that he is particularly familiar with it,” if the owner “has obviously determined [value] upon the application of an improper formula, his opinion fails to meet the test and, therefore, has no probative value.” State v. Larson, 54 Wash. 2d 86, 88, 338 P.2d 135 (1959); see DURA v. Hayutin, 40 Colo. App. 559, 563, 583 P.2d 296 (1978) (as general rule an owner may state opinion of the reasonable market value of his or her own property without having to be qualified as an expert witness but “an owner’s opinion is not admissible where it is based upon improper considerations”); see generally 5 Nichols on Eminent Domain § 23.03 (3d ed. 2013) (admissibility of the owner s opinion).
As these authorities indicate, tire Diebolts’ suggestion that a property owner should be allowed to testily as to any matter that impacts his or her opinion is overly broad. A trial judge may determine that specific factors are either not material or not probative and therefore irrelevant.
Applying this concept in this case leads to the next question of whether the various factors relied on by Diebolt were relevant. By attempting to testify as to the various costs he incurred, it appears Diebolt’s opinion was based on his own cost appraisal. A short discussion of the cost appraisal method, one of three accepted methods of valuation recognized in K.S.A. 26-513(e), is necessaiy to evaluate the question of whether these various costs were relevant. We begin with the general proposition that “[ejvery element which affects value and which would influence a prudent purchaser should be considered” in an eminent domain proceeding. 4 Nichols on Eminent Domain § 12.01, p. 12-4 (3d ed. 2013). But not all costs incurred by a property owner affect the fair market value of the property. It is commonly recognized that the fair market value of vacant or unimproved property, such as the property at issue in this case, does not usually appreciate by the amount the seller has paid in loan fees, interest, property taxes, and other similar costs, and a prudent buyer would not be willing to reimburse the property owner for any and all expenses tire property owner has incurred during his or her ownership of the property. In other words, “[mjarket value. . . is not equivalent to the amount expended for tire property by the owner.” 4 Nichols on Eminent Domain § 12B.11[1], p. 12B-70; see Appraisal Institute, The Appraisal of Real Estate, pp. 21-28 (13th ed. 2008) (distinguishing between “cost” and “value” and “market value,” “investment value,” “fair value,” and “use value”).
Instead, the cost appraisal method typically applies to land that is improved—not in a vacant state—and “allows for consideration of reproduction cost or replacement cost minus depreciation” of any improvements. 5 Nichols on Eminent Domain § 20.01, p 20- 1 to 20-2; see Manhattan Ice & Cold Storage v. City of Manhattan, 294 Kan. 60, 76, 274 P.3d 609 (2012). Generally, the cost appraisal method involves a three-step process. The first step applies to the land. Under this step, “the land is valued as if vacant and thus available to be valued at its highest and best use. This is generally accommodated by using comparable sales data.” 5 Nichols on Eminent Domain § 20.03[3], p. 20-9; see Mooney, 283 Kan. at 622 (explaining cost appraisal method). Then, the reproduction or replacement cost of the structures or improvements is calculated and added to the land value. And finally, depreciation is deducted. 5 Nichols on Eminent Domain § 20.03[3], p. 20-9. In computing reproduction or replacement costs of improvements, some of the costs Diebolt itemized might, in certain situations, be included in the computation of reproduction or replacement costs. See 5 Nichols on Eminent Domain § 20.03[3], p. 20-10 (reproduction or replacement costs may include builder’s overhead and profit and indirect costs such as professional fees, financing, interest, insurance, and taxes). But the treatise authors advise that “[a]n appraisal journal should be consulted for an in-depth coverage of these methods [for computing costs].” 5 Nichols on Eminent Domain § 20.03[3], p. 20-10.
As this discussion indicates, the valuation of land, even under the cost appraisal method, is not typically influenced by the owner’s costs but is based on comparable sales, which is much like the standard for property values in the neighborhood—the basis for which we have said there is a foundation for an owner’s lay opinion. And the Diebolts do not cite any authority suggesting an owners’ cost approach is viable in this case where the land is unimproved. Failure to support a point with pertinent authority or show why it is sound despite a lack of supporting authority or in the face of contrary authority is akin to failing to brief the issue. State v. Tague, 296 Kan. 993, 1001, 298 P.3d 273 (2013). As we have noted, an issue not briefed by the appellant is deemed waived and abandoned. Holman, 295 Kan. at 125. We conclude after our de novo review that many of the factors Diebolt relied on were not material to the jury determination of the property’s fair market value.
Further, to the extent any of these considerations would be relevant under the cost appraisal method, this court’s holding in Manhattan Ice, 294 Kan. at 76, prevents a lay property owner from testifying to an appraisal method for which he or she has not been established as an expert. In an effort to avoid the application of Manhattan Ice, the Diebolts attempt to distinguish it.
In Manhattan Ice, the corporate property owner’s president was allowed to testify “to his own opinion of fair market value and, thus, just compensation: $15 million, with $10 million for improvements on the tracts and $5 million for the land.” 294 Kan. at 76. The valuation of the improvements was based on a calculation of replacement value, a form of the cost appraisal method. But the trial judge would not allow the president to testify regarding various components of the replacement cost appraisal because the president was not qualified as an expert and because he was attempting to introduce hearsay evidence by testifying to the contents of reports from experts who had performed a replacement cost appraisal. This court affirmed that ruling. 294 Kan. at 76.
In doing so, this court cited to a previous case, City of Wichita v. May’s Company, Inc., 212 Kan. 153, 155, 510 P.2d 184 (1973), in which this court explained:
“The foundation [for a landowner’s testimony regarding the value of his or her land] should consist of knowledge developed from a buying and selling of real estate or an acquaintanceship and familiarity with land values in the neighborhood. The qualification of a landowner to testify as to the value of his land is not dependent on a showing of a knowledgeable background. It is based on the presumption the landowner has acquired knowledge by virtue of his ownership. Lack of knowledge is subject to exposure by tire condemning authority. Regardless of what is disclosed, it does not affect the competency of the landowner to testify, but only the weight to be given to the testimony.”
This foundation, premised on a property owner’s familiarity with his or her own property and values in the neighborhood, is consistent with the definition of fair market value—the price a well-informed buyer is willing to pay and a well-informed seller is willing to accept. See K.S.A. 26-513(e). This foundation does not extend to the cost appraisal method, however. Instead, the property owner’s president in Manhattan Ice “was not qualified, as a lay landowner, to assemble the components of and calculate replacement cost, i.e., the cost to replace existing improvements on the land minus depreciation plus the value of the land evidenced thru comparable sales.” Manhattan Ice, 294 Kan. at 76; see 5 Nichols on Eminent Domain § 20.03[3], p. 20-10 (recognizing need to examine technical journals to determine costs to be included when applying cost appraisal method). “Nor [can] the jury, unguided by expert testimony or similarly established or recognized authority.” Manhattan Ice, 294 Kan. at 76.
The school district argues the same holding applies in this case. In response, the Diebolts argue that this case is unlike Manhattan Ice because Diebolt has personal knowledge of all the items on Deposition Exhibit 1 and he was not relying on hearsay to support his opinion of value. To this extent, this case is distinct from Manhattan Ice. Unlike tire property owner in that case, Diebolt was not trying to bootstrap an expert’s valuation through his own testimony, and he had personal knowledge of the costs he had incurred while owning the property. But these distinctions do not impact the holding in Manhattan Ice that a property owner is not qualified to assemble the components of a cost analysis. Nor does it address the trial judge’s statement in this case that many of the items listed in Deposition Exhibit 1 would not be relevant to a cost analysis even if performed by an expert. Given Diebolt’s admission that he did not have appraisal expertise, reasonable people would agree with the trial judge that Diebolt was not qualified to perform a cost appraisal and, therefore, the judge did not abuse his discretion in excluding the evidence.
In summary, the trial judge did not err under either the rationale fisted in the judge’s order—relevancy—or the one mentioned at the pretrial hearing—the holding in Manhattan Ice requiring a property owner to have expertise in the c.ost appraisal method before testifying to the owner’s own cost-basis calculation of value.
Affirmed.
Moritz, J., not participating.
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The opinion of the court was delivered by
Nuss, C.J.:
Rex Reiss contends the district court and Court of Appeals both erred in refusing to suppress evidence from a traffic stop that led to his conviction for driving under the influence of alcohol. Reiss asserts he was unlawfully seized, tainting tire evidence and requiring its suppression.
We agree. Evidence was obtained after a seizure unsupported by reasonable suspicion. So we exclude the tainted evidence, reverse Reiss’ conviction that relied upon it, and remand to the district court for further proceedings.
Facts and Procedural History
At about 1 a.m. Augusta Police Officer Ricky Ritter observed a blue pickup truck traveling without its headlights on. Traveling directly behind was a red pickup truck driven by Reiss, with a van following Reiss.
Ritter pulled his squad car behind the three vehicles and activated his emergency lights, intending to stop only the blue truck. The driver of the van pulled over, and Ritter passed it. The driver of the blue pickup and Reiss then pulled over simultaneously. Rit-ter stopped behind Reiss’ truck because of insufficient room behind the blue pickup. He testified that even with sufficient space, he would not have parked in front of Reiss because that location would have required turning his back to an unknown driver.
As Ritter pulled over, he called his dispatcher to announce the stop. During that call and immediately after the vehicles stopped, Reiss left his truck cab and approached Ritter s squad car. Ritter described Reiss’ action as “charging me.” With a raised voice, Reiss repeatedly demanded that Ritter explain why he had been pulled over. Ritter then requested backup, exited his squad car, and directed Reiss to stand back. He also told Reiss to get back in his truck. Reiss’ behavior worried Ritter because it was unusual for someone to exit a vehicle and approach a squad car during a traffic stop.
Reiss ignored Ritter’s direction and continued to demand an explanation for what he did wrong. After Ritter repeated his direction, Reiss eventually complied.
At the suppression hearing, Ritter testified about this roadside exchange with Reiss as follows:
“Q. [Attorney for tire State:] Okay. Did ultimately you meet him up close face-to-face?
“A. [Ritter:] I—he finally started backing towards his vehicle as I was walking toward him. And he got back into his truck before I walked up face-to-face with him.
“Q. [Attorney for tire State:] Okay. Did you have any conversation with him at that point?
“A. [Ritter:] Yes, I did.
“Q. [Attorney for the State:] What conversation did you have? Tell us about that.
“A. [Ritter:] I asked him. why he had gotten out of his vehicle. And he told me that he just didn’t really know tohat he did. I said that’s ok. I asked him for his driver’s license and proof of insurance to identify who he was. I was talking to him, I could tell that he was—he was having trouble pronouncing his words. He was slurring and kind of mumbling. Hard to understand. And his eyes were bloodshot and land of had a watery look to them. They were also droopy. I asked him if he had been drinking. And he said that he had, but not very much.” (Emphasis added.)
Ritter then clarified the event sequence of this interaction:
“Q. [Attorney for die State:] Okay. Now you mentioned that you asked him for his license and registration—Mr. Reiss?
“A. [Ritter:] Yes.
“Q. [Attorney for the State:] Why did you ask him for those things?
“A. [Ritter:] To identify who he was. He stopped his vehicle in front of me. And got out and ran back towards me. So I—I wanted to know who I was dealing with.
“Q. [Attorney for tire State:] At the time you asked him for his license and registration, had you noticed anything about his demeanor, the slurring words and so forth?
“A. [Ritter:] No. Not before then.” (Emphasis added.)
As Ritter talked to Reiss, Sergeant Chris Scheuber arrived to provide backup. Ritter told Scheuber he believed Reiss was driving under the influence of alcohol (DUI). Ritter decided to investigate Reiss for DUI after observing his behavior and appearance during their exchange at tire truck. But first Ritter approached the blue pickup truck while Scheuber watched Reiss. Ritter did not return Reiss’ driver’s license and other documentation until after he dealt with the occupants of the blue truck.
After Ritter finished with that truck, he returned his attention to Reiss. Ritter asked him to take a field sobriety test. After Reiss failed the test, Ritter arrested him for DUI. The State formally charged Reiss with felony DUI in violation of K.S.A. 2007 Supp. 8-1567.
Reiss filed a pretrial motion to suppress the DUI evidence. The district court denied the motion, noting the unique circumstances of the case and the potential for danger to Ritter. The court ruled Ritter’s initial direction for Reiss to return to the truck was not a seizure.
The court further concluded Ritter acted lawfully to establish Reiss’ identity. Because Ritter developed reasonable suspicion to investigate Reiss for DUI during this exchange, the court held that the later investigation, i.e., his further questioning and the field sobriety test, was lawful.
After a jury convicted Reiss of DUI, the court sentenced him to 6 months in jail and imposed a fine of $2,500. A Court of Appeals panel ultimately rejected Reiss’ appeal. It first disagreed with the district court, concluding Reiss was seized without reasonable suspicion the moment he complied with Ritter’s “order” to return to his truck. State v. Reiss, 45 Kan. App. 2d 85, 88, 244 P.3d 693 (2010).
The panel noted, however, public and officer safety concerns can justify a brief detention without reasonable suspicion. The panel analogized situations where the United States Supreme Court has held that the Fourth Amendment permits brief, suspi-cionless detentions.
Specifically, the panel noted that passengers in an automobile during a traffic stop and occupants of a residence being lawfully searched may both be briefly detained in the interest of officer safety without any suspicion of their criminal wrongdoing. So the panel held Ritter acted reasonably to protect himself and officer safety concerns outweighed Reiss’ liberty interest. 45 Kan. App. 2d at 88-91. The panel further held that Ritter’s “asking for identification in this circumstance was itself only a minimal intrusion.” 45 Kan. App. 2d at 92. Accordingly, tire panel affirmed the district court’s denial of evidence suppression, albeit for somewhat different reasons.
We granted Reiss’ petition for review, accepting jurisdiction under K.S.A. 60-2101(b). More facts will be added as necessary to the analysis.
Analysis
Issue: The district court erred by denying Reiss’ motion to suppress evidence because Ritter eventually seized Reiss without reasonable suspicion.
Reiss does not dispute the propriety of the initial stop. He instead contends he was seized because Ritter’s ordering him to return to his truck qualified as a show of authority to which he submitted. Reiss further contends that because he was detained without reasonable suspicion of any criminal activity at any time, the seizure was unlawful. And all evidence later obtained therefore must be excluded as fruit of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963); State v. McGinnis, 290 Kan. 547, 233 P.3d 246 (2010).
The State responds that during the traffic stop, Reiss displayed unusual behavior which justified Ritter s decision to direct him back to his truck for officer safety purposes. It denies Ritter s order converted this part of the encounter into an investigative detention.
The State concedes Ritter seized Reiss for an investigative detention when questioning him at his truck and asking for his driver s license and registration or proof of insurance. But the State argues this detention was constitutionally permissible because it was then supported by reasonable suspicion. It points to his physical appearance, slurred speech, and behavior as evidence. The State specifically concludes the district court properly denied Reiss’ motion to suppress because Ritter did not subject him to an investigative detention until after Ritter correctly determined there was reasonable suspicion Reiss was driving under the influence of alcohol.
Standard of Review
Our standard of review for general motions to suppress evidence is well known:
" ' "When reviewing a motion to suppress evidence, 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. [Citation omitted.] The State bears tire burden to demonstrate that a challenged search or seizure was lawful.” ’ [Citations omitted.]” McGinnis, 290 Kan. at 551.
We do not weigh conflicting evidence, pass on the credibility of witnesses, or redetermine questions of fact. We also accept as true all inferences to be drawn from the evidence which support or tend to support the findings of the district court. State v. Walker, 292 Kan. 1, 16, 251 P.3d 618 (2011) (citing U.S.D. No. 233 v. Kansas Ass’n of American Educators, 275 Kan. 313, 320, 64 P.3d 372 [2003]).
Discussion
The Fourth Amendment to the United States Constitution and Section 15 of the Kansas Constitution Bill of Rights assure each person the right to be secure in his or her person against unreasonable seizures. See State v. Thompson, 284 Kan. 763, 772, 166 P.3d 1015 (2007). We have construed these two provisions to protect the same guarantees. State v. Moralez, 297 Kan. 397, 404, 300 P.3d 1090 (2013). To enforce the constitutional provisions, we must first determine whether a seizure occurred.
We determine whether a seizure has occurred by classifying the nature of the encounter between police and citizen. We recognize four types of encounters: consensual encounters, which are not seizures; investigative detentions, commonly known as Terry stops; public safety stops; and arrests. Thompson, 284 Kan. at 772 (citing State v. Parker, 282 Kan. 584, 588-89, 147 P.3d 115 [2006]); see K.S.A. 22-2402; Terry v. Ohio, 392 U.S. 1, 18, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
Once we have determined a seizure occurred, we must then determine whether the seizure was reasonable. Because the Fourth Amendment only forbids “unreasonable” seizures, reasonableness is the touchstone for analysis of whether a seizure is constitutionally permissible. State v. Spagnola, 295 Kan. 1098, 1105, 289 P.3d 68 (2012) (citing Ohio v. Robinette, 519 U.S. 33, 39, 117 S. Ct. 417, 136 L. Ed. 2d 347 [1996]). And the reasonableness of a seizure is generally determined by balancing “the public interest and the individual’s right to personal security free from arbitrary interference by law enforcement officers.” Thompson, 284 Kan. at 772 (citing United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S. Ct. 2574, 45 L. Ed. 2d 607 [1975]).
Reiss was seized when he complied with Ritters order and returned to his truck, but it was reasonable because of concern for officer safety.
We set forth several considerations for determining the existence of a seizure in McGinnis, 290 Kan. at 552:
“The United States Supreme Court has developed a ‘totality of the circumstances’ test to determine if there is a seizure, or instead a consensual encounter. See State v. Thompson, 284 Kan. 763, 775, 166 P.3d 1015 (2007). ‘[U]nder the test, law enforcement interaction with a person is consensual, not a seizure if, under the totality of the circumstances, the law enforcement officer’s conduct conveys to a reasonable person that he or she was free to refuse the requests or otherwise end the encounter.’ 284 Kan. at 775. Stated another way, ‘ “[s]o long as a reasonable person would feel free to ‘disregard the police and go about his business,’ [citation omitted], the encounter is consensual and no reasonable suspicion is required.” ’ State v. Reason, 263 Kan. 405, 410, 951 P.2d 538 (1997) (quoting Florida v. Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382, 115 L. Ed. 2d 389 [1991]). Consequently, in Reason we held that only if ‘ “ ‘the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a “seizure” has occurred.’ ” ’ 263 Kan. at 410-11.”
The standard of appellate review for this specific subset of suppression determinations—the trial court’s decision of whether the encounter is consensual or a seizure—is quite similar to the standard for general suppression of evidence:
“Appellate review of the trial court’s determination of whether a reasonable person would feel free to refuse the officer’s requests or otherwise terminate the encounter consists of two parts: (1) tire factual underpinnings are reviewed under a substantial competent evidence standard and (2) the ultimate legal conclusion drawn from those facts, i.e., whedrer a reasonable person would feel free to refuse die requests or to odrerwise terminate the encounter, is reviewed under a de novo standard.” Thompson, 284 Kan. at 776 (citing State v. Moore, 283 Kan. 344, 352, 154 P.3d 1 [2007]).
In applying this “totality of circumstances” test, we have identified a nonexhaustive list of factors to consider:
“In Thompson, we set forth a nonexclusive list of factors that frequentiy occur in this type of encounter to aid in our consideration of the totality of the circumstances. Those factors tirattendto establish a voluntary encounter include: ‘knowledge of the right to refuse, a clear communication that die driver is free to terminate die encounter or refuse to answer questions, return of die driver’s license and other documents, and a physical disengagement before further questioning.’ 284 Kan. at 811. Factors diat tend to establish a continued detention include:
‘the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person, the use of aggressive language or tone of voice indicating diat compliance with an officer’s request is compulsory, die prolonged retention of a person’s personal effects such as identification, a request to accompany die officer somewhere, interaction in a nonpublic place, absence of other members of die public, or the display of emergency lights. [Citations omitted.]’ Thompson, 284 Kan. at 811.” State v. Murphy, 296 Kan. 490, 492-93, 293 P.3d 703 (2013).
We have cautioned that no particular factor is itself determinative in the seizure analysis:
“There is no rigid application of these factors; instead, we analyze the facts of each case independently. We have held that ‘[i]n applying the totality of the circumstances test in a Fourth Amendment context, no one factor is legally determinative, dispositive, or paramount. The outcome does not turn on the presence or absence of a single controlling or infallible touchstone and requires careful scrutiny of all the surrounding circumstances.’ Thompson, 284 Kan. 763, Syl. ¶ 20. On the other hand, ‘we do not expect courts to merely count the number of factors weighing on one side of the determination or the other. In the totality of the circumstances, a factor may be more indicative of a coercive atmosphere in one case than in another. [Citations omitted.]’ 284 Kan. at 804.” McGinnis, 290 Kan. at 553.
Reiss argues that a reasonable person would not have felt free to leave under the totality of the circumstances facing him. As mentioned, he primarily argues that Ritter s direction was a command, i.e., a show of authority with which he complied. Indeed, although the State contends that this was not a seizure because Ritter acted reasonably, it essentially conceded at oral argument that a reasonable person in Reiss’ position would not have believed Ritter’s direction was merely a request or suggestion.
We agree with the panel drat, under the standard articulated above, Reiss was seized the moment he complied with Ritter’s direction. Under the totality of the circumstances, a reasonable person would not have felt free to refuse Ritter’s direction to return to the truck or felt free to otherwise terminate the encounter, i.e., drive away. See McGinnis, 290 Kan. at 555.
Several factors support this legal conclusion. See Thompson, 284 Kan. at 776. As the panel noted, Reiss returned to his truck because of Ritter’s forceful command to do so. Ritter repeatedly testified that he was “yelling” when he directed that Reiss return to the truck such that Ritter considered his words an “order.” See 284 Kan. at 811 (use of aggressive tone of voice indicating compliance with officer’s request is compulsory). And a reasonable person in Reiss’ position would have interpreted Ritter’s yelled direction as mandatory. One panel of the Court of Appeals has previously held an officer’s similar order was itself sufficient to qualify as a seizure. See State v. Gross, 39 Kan. App. 2d 788, 798-99, 184 P.3d 978 (2008) (Driver “Stroot had been detained when he was ordered to the back of the patrol car after attempting to walk away from his car and the patrol car.”).
In addition, Ritter s squad car with activated emergency lights was parked directly behind Reiss’ truck. See Thompson, 284 Kan. at 811 (display of emergency lights is a factor). At the time of Ritter’s command, Reiss clearly was under the impression he was the subject of Ritter’s traffic stop, i.e., demanding “why was I pulled over?” Although Reiss’ subjective—and mistaken—impression is not dispositive, we conclude that a reasonable person in his position would have drawn the same conclusion. When a driver sees a squad car behind with activated emergency lights, pulls to the side of the road, and the squad car then pulls directly behind, a reasonable driver would conclude he or she is the subject of a traffic stop. And we have consistently held that a traffic stop is an investigatory detention, not a voluntary encounter. See, e.g., 284 Kan. at 773.
Because we conclude that Reiss was seized, we must now consider whether that seizure was reasonable. See Spagnola, 295 Kan. at 1105. Although we conclude there was no reasonable suspicion of criminal wrongdoing, we agree with the district court and panel that the seizure was reasonable because of officer safety concerns.
Although Reiss was not the intended target of Ritter’s traffic stop, the circumstances of this encounter were so similar to a traffic stop that we find cases analyzing seizures in that context instructive. As noted, we balance Ritter’s legitimate concern for his personal safety against Reiss’ right to be free from arbitrary interference by law enforcement. See Thompson, 284 Kan. at 772 (citing Brignoni-Ponce, 422 U.S. at 878).
The United States Supreme Court has described police officer safety as a “weighty interest,” particularly during traffic stops. Robinette, 519 U.S. at 413. “[Tjraffic stops are ‘especially fraught with danger to police officers.’ ” Arizona v. Johnson, 555 U.S. 323, 330, 129 S. Ct. 781, 172 L. Ed. 2d 694 (2009) (quoting Michigan v. Long, 463 U.S. 1032, 1047, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 [1983]).
The Court has concluded this safety interest justifies warrantless searches and seizures that appear unlawful in other contexts. See, e.g., Brendlin v. California, 551 U.S. 249, 255-56, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007) (recognizing that an occupant of a vehicle is lawfully seized without reasonable suspicion during a traffic stop); Maryland v. Wilson, 519 U.S. 408, 414-15, 117 S. Ct. 882, 137 L. Ed. 2d 41 (1997) (holding an officer may order an occupant out of a lawfully stopped automobile absent reasonable suspicion that the occupant is involved in criminal activity).
The panel correctly observed that some lower courts have concluded an officer may require a passenger who has exited a vehicle to reenter it based on the officer’s need to control the traffic stop scene to keep it safe for officers and the public. 45 Kan. App. 2d at 89 (citing, inter alia, United States v. Sanders, 510 F.3d 788, 789-91 [8th Cir. 2007]; United States v. Williams, 419 F.3d 1029, 1031-34 [9th Cir. 2005]). We independently observe per the United States Supreme Court: “ ‘ “The risk of harm to both the police and the occupants [of a stopped vehicle] is minimized . . . if the officers routinely exercise unquestioned command of the situation. [Citations omitted.]” ’ ” (Brackets in original.) Arizona v. Johnson, 555 U.S. at 330.
In addition, an officer’s order that a person either exit or remain in a vehicle is a small intrusion on individual liberty. In Wilson, the Supreme Court reasoned that a vehicle occupant had only a slight liberty interest in not being directed out of the car by police because, “as a practical matter, the passengers [were] already stopped by virtue of the stop of the vehicle.” 519 U.S. at 413-14. The Court further concluded that such orders only caused a “minimal” liberty interest intrusion because they merely changed the location of the detention. 519 U.S. at 414-15.
Ritter had a weighty interest in preserving his safety. He essentially made an unassisted traffic stop at 1 a.m. where three drivers pulled over. At least one of the vehicles—Reiss’-—contained multiple occupants.
Moreover, Ritter immediately observed Reiss exit his truck and charge the squad car, an act the officer characterized as unusual and therefore worrisome. In other words, this encounter was beyond the ordinary traffic stop which is already “ ‘especially fraught with danger to police officers.’ ” See Arizona v. Johnson, 555 U.S. at 330. So Ritter called for backup. And he repeatedly ordered Reiss to get back in his truck. Ritter’s orders were natural and appropriate responses helping him maintain command of the scene under rapidly developing circumstances. See 555 U.S. at 330.
In addition to Ritter’s weighty interest in officer safety, Reiss’ liberty interest to remain outside his truck was small, if present at all. And the intrusion on his liberty was “minimal.” See Wilson, 519 U.S. at 415. Ritter’s order and Reiss’ compliance merely reinstated the conditions existing before Reiss’ rash decision to exit his truck. See Sanders, 510 F.3d at 791.
Ritter’s command was an eminently reasonable measure to preserve officer safety. So his initial seizure of Reiss was permissible under the Fourth Amendment.
Ritter performed an investigative detention without reasonable suspicion when requesting Reiss’ driver’s license and vehicle registration:
The detention for Ritter’s safety was ongoing when he initially approached the reseated Reiss. Reiss had obeyed Ritter’s command to return to his truck, and a reasonable person would remain there until further directed by the officer.
So Ritter was justified in his initial exchange with the seated Reiss. Ritter testified that “I asked him why he had gotten out of his vehicle. And he told me that he just didn’t really know what he did. I said that’s ok.”
In short, Ritter had quickly resolved his safety concerns that justified Reiss’ initial detention. The State did not provide evidence to suggest otherwise—except that Ritter had been unwilling to turn his back on Reiss’ truck, a concern easily resolved by advising Reiss he was now free to go. See McGinnis, 290 Kan. at 552 (State has burden to demonstrate a challenged seizure was lawful). But then Ritter changed the thrust of the officer-citizen encounter: “I asked him for his driver’s license and proof of insurance to identify who he was.”
And it was only after this request for documentation that Ritter noticed anything askew:
“I was talking to him, I could tell that he was—he was having trouble pronouncing his words. He was slurring and kind of mumbling. Hard to understand. And his eyes were bloodshot and kind of had a watery look to them. They were also droopy. I asked him if he had been drinking. And he said that he had, but not very much.”
The event sequence—a request for documentation, followed by notice of DUI indicators, then purported reasonable suspicion to justify the field sobriety test—was confirmed in Ritter s later testimony:
“Q. [Attorney for the State:] At the time you asked him for his license and registration, had you noticed anything about his demeanor, the slurring words and so forth?
“A. [Ritter:] No. Not before then.” (Emphasis added.)
In sum, once Ritter’s safety concerns ended and he requested Reiss’ driver’s license and registration or insurance proof, he was beginning to perform an investigative detention. To be constitutionally permissible, such a detention required reasonable suspicion. See State v. Thomas, 291 Kan. 676, 687, 246 P.3d 678 (2011) (“Investigatory detentions are generally permitted under the Fourth Amendment to the United States Constitution and K.S.A. 22-2402 if can objective officer would have a reasonable and artic-ulable suspicion that the detainee committed, is about to commit, or is committing a crime.’ ”).
Although the State argues Ritter possessed reasonable suspicion, its citations to the record reveal he admitted the factors supporting his suspicion did not appear until after he had requested Reiss’ documentation. That is too late. The State provides no authority to suggest a valid detention for officer safety can become a legitimate investigatory detention under these particular circumstances involving this sequence of events. But see Walker, 292 Kan. at 15-16 (constitutionally permissible boundaries of reasonable suspicion detention not exceeded by taking pedestrian defendant’s ID and using it to run a computer records check).
So while we agree with the panel that Ritter was “properly concerned about his safety,” we disagree that then “asking for identification in this circumstance was itself only a minimal intrusion. [Citations omitted.]” 45 Kan. App. 2d at 92. Ritter simply was not warranted in asking for this documentation once his justifiable concern for his safety had disappeared.
All evidence of criminal wrongdoing obtained after Reiss’ unlawful seizure was therefore tainted. See McGinnis, 290 Kan. at 551. Accordingly, the district court and Court of Appeals erred in denying Reiss’ motion to suppress. Because the evidence indicating that Reiss was driving under the influence of alcohol was tainted and should have been suppressed, we must reverse his conviction for that offense.
Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed and remanded. | [
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BEIER, J.;
Claimant David Williams petitioned this court for review of the Court of Appeals decision reversing his Workers Compensation Board award. Because the evidence on whether Williams was at work or leaving work at the time of his injuiy was not amenable to only one factual finding, the Court of Appeals erred by deciding it as a matter of law. We therefore reverse the Court of Appeals and hold that substantial competent evidence supported the Board’s factual finding in Williams’ favor.
Williams worked the dayshift for respondent Petromark Drilling, LLC, an oil drilling company, at drill sites approximately 60 miles from his home. Ordinarily, on days that Williams worked, he would travel to Great Bend and meet his supervisor, Kennedi Roach. Roach would then drive Williams and other members of the crew in Roach’s personal vehicle to and from the drill sites. Petromark reimbursed Roach mileage but did not pay Williams and the other crew members for their travel time or a per diem. If Roach was unavailable to provide transportation, the crew members would be reimbursed mileage for driving their personal vehicles to the drill sites.
On the day of Williams’ injury, instead of getting a ride after work with Roach, he rode with Chris LaMaster, who had worked the night shift and dien stayed on for the day shift to fill in the short-handed crew. When Williams informed Roach that he was going to ride with LaMaster, Roach said that would be fine. Roach did not direct LaMaster or Williams on the route they should take home.
Before leaving the drill site, Williams noticed two low tires on LaMaster’s car, and the pair filled them. When a rear tire nevertheless started to lose air and began to vibrate and make noise along the way, LaMaster pulled over and used a cigarette lighter-powered pump to add air to it. LaMaster was in a huriy, so he stopped filling the tire after 10 minutes. The tire was about half-inflated. Two miles farther along, the tire blew out and die car rolled several times. Williams was ejected and injured.
Williams would later testify before the administrative law judge (ALJ) that he rode with LaMaster for his own convenience because the trip would have been shorter, and his wife would not have had to drive to Great Bend to pick him up.
The ALJ entered a decision in favor of Petromark, concluding that Williams’ injuries were not compensable because they did not arise out of and in the course of his employment:
“At the time of the accident giving rise to [Williams’] injuries, he had left work for the day and was on his way home, as a passenger in a co-worker’s vehicle. He was not being paid or performing any services or duties for his employer. His accident did not occur ‘in the course of his employment. [Williams’] duties on the drilling rig did not include driving. [Williams’] injuries did not ‘arise out of his employment with Respondent.
“Even though [Williams] was an oilfield worker, travel was no more intrinsic to his employment than any other commuter on the highway. At the time of his accident, [Williams] was not traveling between well sites, and he was not performing any services for his employer or advancing his employer’s interests. He was simply on his way home at the end of the work day.”
The Board reversed the ALJ’s decision and entered an award in favor of Williams. In a 3-2 split decision, the Board decided that Williams’ injury did arise out of and in the course of his employment:
“[Williams’] job as an oil drilling crew member required that he travel from drill site to drill site. He was not paid wages when traveling from his home to whatever site the crew was working on, nor was he reimbursed for his mileage expense if he drove his own vehicle. Nevertheless, the very nature of tire work necessitated travel to ever-changing locations. Travel was inherent to tire job. When travel is inherent to or an integral part of the job, the going and coming rule does not apply. As such, [Williams’] accident, which occurred while [Williams] was in a vehicle travelling from the drill site to his home, arose out of the nature, conditions, obligations and incidents of his employment widr respondent.”
After Petromark appealed to the Court of Appeals, the Court of Appeals reversed the Board. The Court of Appeals held that Williams’ claim was barred by the “going and coming” rule of K.S.A. 2010 Supp. 44-508(f).
“Petromark did not hire a new crew at every drill site. Williams, a crew member, had no permanent work site. Instead, he was required to travel to ever-changing drill sites. Roach, the driller, was paid mileage for driving his crew members to and from the drill site. Whether they drove themselves or rode with Roach, crew members like Williams and LaMaster were not paid for their travel to and from the drill site.
“The key to resolution of this case is whether Williams’ travel, at dre time of his accidental injury, was furthering Petromark’s interests. There was a mutually beneficial transportation arrangement between Williams (free ride to and from die drill site) and Petromark (did not have to pay for crew’s food or lodging or find a new crew at every drill site). But Williams chose to ride from the drill site with LaMaster instead of Roach. Roach’s travel was definitely inherent to his employment because it furthered Petromark’s interests. The same cannot be said of Williams’ travel at the tíme of his accidental injury. He was on a personal mission to get home sooner. The proximate cause of Williams’ injury was La-Master’s rather than Petromark’s negligence.
“The Board misapplied the law to die facts of this case.” Williams v. Petromark Drilling, 49 Kan. App. 2d 24, 32, 303 P.3d 719 (2013).
Generally the issue of whether an employee’s accident arose out of and in the course of employment is a question of fact. Douglas v. Ad Astra Information Systems, 296 Kan. 552, 559, 293 P.3d 723 (2013). A reviewing court’s responsibility is to examine the record as a whole to determine whether the Board’s factual determinations are supported by substantial evidence. K.S.A. 2013 Supp. 77-621(c)(7). This analysis requires the court to (1) review evidence both supporting and contradicting the agency’s findings; (2) examine the presiding officer’s credibility determinations, if any; and (3) review the agency’s explanation as to why the evidence supports its findings. K.S.A. 2013 Supp. 77-621(d); Redd o. Kansas Truck Center, 291 Kan. 176, 182, 239 P.3d 66 (2010). The court does not reweigh the evidence or engage in de novo review. K.S.A. 2013 Supp. 77-621(d).
Although the Court of Appeals correctly observed that the facts in this case were undisputed, it erred when it treated those established facts as supportive of only one finding as a matter of law, i.e., that Williams was ineligible for recoveiy under the going and coming rule of K.S.A. 2010 Supp. 44-508(f). If there was substantial competent evidence to support the Board’s finding that the tire blowout occurred while Williams was in the course and scope of his employment, i.e., during travel intrinsic to his duties for Petro-mark, tiren the Court of Appeals’ limited role required it to affirm the Board. See K.S.A. 2013 Supp. 77-621(c)(7), (d); cf. Scott v. Hughes, 294 Kan. 403, 412, 275 P.3d 890 (2012).
We see such substantial competent evidence in the record on appeal. As the Board explained in its order, Williams’ job as an oil drilling crew member required that he travel to ever-changing remote drill sites. Roach testified at his deposition that Williams would not be employed if he was unwilling to travel to those sites. Petromark provided an elective travel option to its employees. The Court of Appeals crossed a line from evaluating this evidence in light of the record as a whole to test whether it supported the Board’s factfinding into ruling as a matter of law on evidence that was, although undisputed, conflicting under the governing statute.
Conclusion
The decision of the Court of Appeals is reversed, and the Board’s award is affirmed.
Moritz, J., not participating. | [
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The opinion of the court was delivered by
Moritz, J.:
Virgil Bradford appeals the district court’s denial of his motion to correct an illegal sentence in which he asserted his convictions were multiplicitous. We affirm that denial based on well-established caselaw that precludes raising a multiplicity challenge in a motion to correct an illegal sentence.
Factual and Procedural Background
In 1997, Virgil Bradford and Robert Verge broke into an occupied home to steal keys to a vehicle after their car became stuck in mud. During the subsequent altercation, the home’s residents were beaten with a blunt object and repeatedly stabbed before receiving fatal gunshot wounds to tire head. A jury convicted Bradford of capital murder, aggravated robbery, aggravated burglary, and two counts of felony theft for his part in the altercation. See State v. Bradford, 272 Kan. 523, 524-27, 34 P.3d 434 (2001) (reciting additional factual details).
This court affirmed Bradford’s convictions but remanded for re-sentencing based on tire district court’s grant of upward durational departures for Bradford’s convictions other than the capital murder conviction because this court in State v. Gould, 271 Kan. 394, Syl. ¶ 3, 23 P.3d 801 (2001), had held the Kansas upward durational departure scheme unconstitutional. Bradford, 272 Kan. at 542. On remand, the district court sentenced Bradford to life with a mandatory minimum term of 40 years for his capital murder conviction and a total of 238 months on his remaining convictions, to run consecutive to his capital murder sentence.
In May 2012, Bradford filed a pro se motion to correct an illegal sentence asserting his convictions were multiplicitous. At a hearing before the district court, at which Bradford was represented by counsel, the State argued the district court need not consider Bradford’s motion because he could not raise a multiplicity claim in a motion to correct an illegal sentence. Nevertheless, the district court considered the motion’s merits and determined Bradford’s convictions were not multiplicitous.
Bradford timely appeals, and this court has jurisdiction pursuant to K.S.A. 2013 Supp. 22-3601(b)(3).
Analysis
Bradford’s sole argument on appeal is that his sentence are illegal because the underlying convictions are multiplicitous.
K.S.A. 22-3504 governs motions to correct illegal sentences. An illegal sentence is one that (1) is imposed by a court without jurisdiction, (2) does not conform to the statutory provision, either in character or the term of punishment imposed, or (3) is ambiguous with regard to the time and manner in which it is to be served. State v. Sims, 294 Kan. 821, 825, 280 P.3d 780 (2012) (noting that only this “narrow category of issues” may be raised in motion to correct illegal sentence). A motion to correct an illegal sentence cannot serve as the means to reverse a conviction. 294 Kan. at 825.
Bradford concedes this court has held multiplicity challenges cannot be raised in a motion to correct an illegal sentence. See Sims, 294 Kan. at 826 (refusing to consider multiplicity challenge raised in motion to correct illegal sentence); State v. Edwards, 281 Kan. 1334, 1338-39, 135 P.3d 1251 (2006) (same). In spite of this concession, Bradford offers no rationale to support his request that we reconsider our precedent. See Rhoten v. Dickson, 290 Kan. 92, 112, 223 P.3d 786 (2010) (stating that this court adheres to its own precedent unless it is “ ‘ “clearly convinced that the rule was originally erroneous or is no longer sound because of changing conditions and that more good than harm will come by departing from precedent” ’ ”). Given Bradford’s concession, we see no basis to reconsider Sims and Edwards.
Consistent with Sims and Edwards, we conclude the issue raised in Bradford’s motion is not a sentencing matter but rather is a collateral attack on his convictions, and it is an improper issue when raised in a motion to correct an illegal sentence. Accordingly, we affirm the district court’s denial of Bradford’s motion to correct an illegal sentence, although we do so not on the merits—as did the district court—but because of the inappropriateness of the remedy.
Affirmed. | [
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The opinion of the court was delivered by
Biles, J.:
Jimmy Murdock argues the district court erroneously calculated his criminal history score during a sentencing proceeding by treating two prior out-of-state convictions from 1984 and 1990 as person crimes instead of nonperson crimes. The issue is rare because these prior out-of-state offenses were committed before enactment of the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq., and the KSGA does not expressly provide how such offenses should be classified. We conclude these convictions should be treated as nonperson offenses. Accordingly, we reverse and remand for resentencing with directions to classify the two prior out-of-state convictions as nonperson offenses.
Factual and Procedural Background
Murdock pleaded guilty to two counts of aggravated robbery and one count of robbery for crimes occurring in December 2008. To calculate his sentence, the district court found Murdock had two Illinois robbery convictions from 1984 and 1990 and a 1996 Kansas robbery conviction. It classified all three prior convictions as person offenses, which gave Murdock three or more adult convictions for person felonies. This treatment placed him in criminal history category A under K.S.A. 21-4709. Murdock was sentenced to 233 months’ imprisonment for the first aggravated robbery conviction and concurrent 36-month sentences for the remaining two convictions. He would have fallen within criminal history category C if the two out-of-state convictions had been designated as nonperson offenses, resulting in a lesser sentence. See K.S.A. 21-4709; K.S.A. 21-4704.
Murdock timely appealed his sentences to the Court of Appeals, arguing the two out-of-state convictions were wrongly classified as person offenses. The Court of Appeals affirmed the district court in State v. Murdock, No. 104,533, 2011 WL 4031550, at *3 (Kan. App. 2011) (unpublished opinion). Murdock petitioned for this court’s review, which was granted under K.S.A. 20-3018(b), with this court obtaining jurisdiction under K.S.A. 60-2101(b).
Analysis
The issue is whether the district court improperly scored Mur-dock’s criminal history because it classified his two Illinois robbeiy convictions as person offenses. Murdock argues both crimes should have been scored as nonperson offenses under K.S.A. 21-4710(d)(8). In the alternative, he contends this court should determine the legislature intended to designate pre-1993 convictions as nonperson offenses.
Standard of Review
This case turns on the interpretation of several sentencing statutes. Statutory interpretation is a question of law subject to unlimited appellate review. State v. Guder, 293 Kan. 763, 765, 267 P.3d 763 (2012). If a statute is plain and unambiguous, appellate courts do not speculate about legislative intent or resort to canons of construction or legislative history. State v. Coman, 294 Kan. 84, 92, 273 P.3d 701 (2012).
Classifying pre-KSGA convictions
In scoring criminal history under the KSGA, distinctions are made between person and nonperson crimes. Compare K.S.A. 21-3427 (aggravated robbery is a person offense) with K.S.A. 21-3701 (theft is a nonperson offense). Generally speaking, person crimes are weighted more heavily than nonperson crimes. See K.S.A. 21-4709.
K.S.A. 21-4711(e) governs the classification of out-of-state crimes/convictions. It states in pertinent part:
“The state of Kansas shall classify the [prior out-of-state] crime as person or nonperson. In designating a crime as person or nonperson comparable offenses shall be referred to. If the state of Kansas does not have a comparable offense, the out-of-state conviction shall be classified as a nonperson crime.” K.S.A. 21-4711(e).
The KSGA does not define comparable offense, but this court has previously held a comparable offense is determined by comparing the elements of the crimes, stating that “the offenses need only be comparable, not identical.” State v. Vandervort, 276 Kan. 164, 179, 72 P.3d 925 (2003).
Murdock does not dispute that his out-of-state robbery convictions are comparable to the Kansas crime of robbery, and a review of the elements of those crimes supports this admission. Compare Ill. Comp. Stat. ch. 270 5/18-l(a) (2003) with K.S.A. 21-3426. But one must also identify the correct version of our Kansas statute to malee this comparison, which is where Murdock’s dispute draws its focus.
Kansas did not begin categorizing crimes as person or nonperson offenses until 1993 when the KSGA was adopted. See L. 1992, ch. 239, sec. 1 (KSGA effective July 1, 1993). When Murdock was convicted of the Illinois robberies (which were felony offenses) in 1984 and 1990, Kansas simply defined robbery as a “class C felony.” K.S.A. 21-3426 (Ensley 1981). The record does not disclose the dates when the out-of-state offenses were committed, but K.S.A. 21-3426 (Ensley 1981) was not amended from the prior enactment in 1969 until 1992. See K.S.A. 21-3426 (historical notes). Therefore, it is obvious the same penalty provision was in effect at the time Murdock committed his out-of-state offenses. In December 2008, when Murdock committed the current crimes of conviction, Kansas defined robbery as a “severity level 5, person felony.” K.S.A. 21-3426.
Murdock argues the comparable offense to his Illinois robbery convictions is K.S.A. 21-3426 (Ensley 1981)—the statute in effect when the Illinois crimes were committed. He notes K.S.A. 21-4710(d)(8), which pertains to scoring unclassified crimes, states: “Unless otherwise provided by law, unclassified felonies and misdemeanors, shall be considered and scored as nonperson crimes for the purpose of determining criminal history.” This statute, he reasons, requires his Illinois convictions to be treated as nonperson offenses based’on this court’s holding in State v. Williams, 291 Kan. 554, Syl. ¶ 4, 244 P.3d 667 (2010), that the comparable Kansas offenses must be determined as of the date the defendant committed the out-of-state crimes.
In the Williams case, Williams had pleaded guilty to two counts of identity theft for crimes occurring in 2005 and 2006. Her criminal history was scored based on five State of Washington convictions for identity theft that she had committed between December 2001 and September 2002. At the time Williams committed those out-of-state crimes, Kansas classified identity theft—the comparable offense—as a person offense, but it had reclassified that crime as a nonperson offense by the time Williams committed and was sentenced for her Kansas crimes. The parties disputed whether the comparable offense should be determined as of the date of her Kansas sentencing, when she committed the Kansas offenses, or when Williams committed the prior Washington offenses.
The Williams court held that in the absence of a statutory directive a comparable offense should be determined as of the date the prior crime was committed. This outcome, the court reasoned, was “consistent with our fundamental rule of sentencing for a current in-state crime: sentencing in accordance with the penalty provisions in effect at the time the crime was committed.” 291 Kan. at 560. The court further held that fixing the penalty parameters for an offense “ ‘as of the date of the commission of the offense is fair, logical and easy to apply.’ ” 291 Kan. at 560 (quoting Vandervort, 276 Kan. at 180).
Since then, the Court of Appeals has followed Williams when the prior out-of-state offense was committed after the Kansas sentencing guidelines were adopted in 1993. See, e.g., State v. McKinney, No. 102,906, 2010 WL 5185779, at *1 (Kan. App. 2010) (unpublished opinion) (scoring a 2002 Oklahoma conviction based on the designation for the comparable Kansas offense at the time the Oklahoma offense was committed). But the Court of Appeals, including the Murdock panel, has adopted a different rule when the prior out-of-state crimes were committed before Kansas adopted the person/nonperson offense designation in 1993.
The Murdock panel held that pre-1993 offenses should be designated based on the current guidelines offenses, reasoning: “Kansas courts have routinely classified pre-1993 offenses as either person or nonperson for criminal history purposes by comparing the offenses to current guidelines offenses.“ (Emphasis added.) Murdock, 2011 WL 4031550, at *2; see State v. Mitchell, No. 104,833, 2012 WL 1649831, at *7 (Kan. App. 2012) (unpublished opinion), petition for rev. filed June 4, 2012; State v. Mims, No. 103,044, 2011 WL 4563068, at *5 (Kan. App. 2011) (unpublished opinion).
Notably, this reference to “current guidelines offenses” is ambiguous. For example, how is the panel’s rule applied in cases like Williams when the legislature modified the classification after the KSGA was adopted? Seemingly, the rule would conflict with this court’s controlling law as stated in Williams. In addition, the view followed by the Court of Appeals in diese cases is troubling because it originated in a series of Court of Appeals cases that predate this court’s Williams decision. See, e.g., State v. Henderson, No. 100,371, 2009 WL 2948657, at *3 (Kan. App. 2009) (unpublished opinion), rev. denied 290 Kan. 1099 (2010); State v. Boster, No. 101,009, 2009 WL 3738490, at *4 (Kan. App. 2009) (unpublished opinion), rev. denied 290 Kan. 1096 (2010). The Murdock panel did not address Williams in its analysis despite citing it as holding “comparable Kansas offenses are determined by the date the defendant committed tire prior out-of-state offenses” while summarizing Murdock’s claims. Murdock, 2011 WL 4031550, at *1 (citing Williams, 291 Kan. at 560-62).
The panel did cite Farris v. McKune, 259 Kan. 181, 185-86, 911 P.2d 177 (1996), as sufficiently analogous to support its holding. Murdock, 2011 WL 4031550, at *2. But Farris is not applicable because it addresses the Department of Corrections’ conversion of three offenders’ preguidelines sentences to the sentencing guidelines, which was controlled by K.S.A. 21-4724(c)(l). The Farris court held that “ ‘[i]n converting a sentence, the legislature intended that the Department of Corrections use records available to it to determine what the defendant did when the crime was committed and convert that crime to an analogous crime existing after July 1, 1993.’ ” 259 Kan. at 195 (quoting State v. Fierro, 257 Kan. 639, 650, 895 P.2d 186 [1995]). The KSGA lacks- a similar provision for persons who were not imprisoned at the time the KSGA was enacted.
In the absence of a statutory directive, we are left with our decision in Williams that the comparable Kansas offense should be determined as of the date the out-of-state offenses were committed. Even though the State seeks a different rule in this appeal, we must emphasize we adopted the current rule at the State’s urging in Williams. See 291 Kan. at 559 (State argued this court should score the Washington offenses according to their Kansas equivalents when the Washington offenses were committed).
Our analysis in Williams is indistinguishable from the analysis applicable to the circumstances presented here, and the same policy considerations continue to apply. Using the date a prior out-of-state crime was committed to calculate a defendant’s criminal history score is “consistent with our fundamental rule of sentencing for a current in-state crime: sentencing in accordance with the penalty provisions in effect at the time the crime was committed.” 291 Kan, at 560. Moreover, fixing the penalty parameters as of the date the crime was committed is fair, logical, and easy to apply. 291 Kan. at 560. Applying that rule, robbery as defined in K.S.A. 21-3426 (Ensley 1981) is die comparable Kansas offense. The penalty. provision of that pre-1993 statute classifies 'robbery as a class C felony, and it does not designate the offense as person or nonperson.
Finally, since the statute does not specify whether it is a person or nonperson offense, Murdock argues it must be scored as a nonperson offense under K.S.A. 21-4710(d)(8), which provides that “unclassified felonies and misdemeanors, shall be considered and are scored as nonperson offenses for die purposes of determining criminal history.” The plain language of the statute seems to apply in this circumstance, altiiough the legislature refers to person or nonperson offenses as “designations,” not “classifications,” in K.S.A. 21-4711(e), (g). Notably, neither of these terms is defined in K.S.A. 21-4703.
Murdock’s view is misplaced. And although there may be other twists placed on the statute, it is likely K.S.A. 21-4710(d)(8) was adopted to address the scoring of a very limited number of current criminal statutes tiiat do not categorize the crimes as person or nonperson offenses. See, e.g., K.S.A. 21-4213 (unlawful failure to report a wound is a “class C misdemeanor”); K.S.A. 21-4218 (unauthorized possession of a firearm on the grounds of or within certain state buildings is a “class A misdemeanor”); K.S.A. 21-4312 (unlawful disposition of animals is a “class C misdemeanor”); K.S.A. 21-4409 (knowingly employing an alien is a “class C misde meanor”). And we believe it unlikely the legislature intended that K.S.A. 21-4710(d)(8) govern all pre-1993 convictions.
There is no statutory mechanism either through K.S.A. 21-4710(d)(8) or another KSGA provision allowing us to draw a distinction between the current guidelines sentencing statutes and the pre-1993 criminal statutes. We hold that Murdock’s two prior out-of-state convictions must be scored as nonperson offenses under K.S.A. 21-4710(d)(8) following our controlling Williams precedent. We recognize this rule results in the classification of all out-of-state pre-1993 crimes as nonperson felonies—an outcome the State characterizes as unreasonable. But the solution to the State’s complaint sits with the legislature.
As noted above, the legislature enacted K.S.A. 21-4724(c)(l), instructing the Department of Corrections to recalculate certain inmates’ criminal histoiy classifications “as if the [prior] crime[s] were committed on or after July 1, 1993.” The legislature can amend the KSGA to address this issue as well if it deems an amendment appropriate.
We overrule all Court of Appeals decisions applying the rule recited by the Court of Appeals panel in this case. We reverse the Court of Appeals and the district court and remand for resentenc-ing with directions to classify die prior out-of-state convictions as nonperson offenses. | [
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The opinion of the court was delivered by
Moritz, J.:
In State v. Astorga, 295 Kan. 339, 284 P.3d 279 (2012), this court affirmed Matthew Astorga’s jury conviction of first-degree premeditated murder and his sentence of life in prison with no possibility of parole for 50 years (hard 50). In that decision, we relied on well-established caseiaw to reject Astorga’s argument that Kansas’ hard 50 sentencing scheme was 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), because it does not require a jury to find beyond a reasonable doubt the facts necessary to support an increased mandatory minimum sentence of 50 years. See Astorga, 295 Kan. at 354 (citing State v. McCaslin, 291 Kan. 697, 729-30, 245 P.3d 1030 [2011], and State v. Conley, 270 Kan. 18, 35-36, 11 P.3d 1147 [2000], cert. denied 532 U.S. 932 [2001]). Astorga filed a petition for writ of certiorari to the United States Supreme Court.
In Alleyne v. United States, 570 U.S. _, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), the Supreme Court overruled the caselaw upon which this court indirectly based its decision in Astorga. Following Alleyne, the Supreme Court granted Astorga’s petition for writ of certiorari, vacated our judgment in Astorga, and remanded the case for reconsideration in light of Alleyne. Astorga v. Kansas, 570 U.S. _, 133 S. Ct. 2877, 186 L. Ed. 2d 902 (2013).
On remand, we affirm Astorga’s first-degree murder conviction and dismiss his challenge to the imposition of aggravated presumptive sentences for two related plea convictions for the same reasons stated in our prior decision. See Astorga, 295 Kan. at 344-51, 354. But we reconsider those portions of our prior decision affirming Astorga’s hard 50 sentence and, consistent with our recent decision in State v. Soto, 299 Kan. 102, 322 P.3d 334 (2014), we conclude the district court violated Astorga’s right to a jury trial as provided in the Sixth Amendment to the United States Constitution when it imposed the hard 50 sentence. Consequently, we vacate his hard 50 sentence and remand for resentencing.
Factual and Procedural Background
Following Astorga’s conviction of first-degree premeditated murder, die State sought a hard 50 sentence, alleging Astorga knowingly or purposely tolled or created a great risk of death to more than one person (risk of death aggravator). See K.S.A. 21-4636(b). The evidence presented at trial established that Astorga drove to the home of Ruben Rodriguez and then shot and killed Rodriguez as Rodriguez stood in the doorway. Rodriguez’ girlfriend and her toddler were standing near Rodriguez when he was shot, and more than one bullet passed through the interior walls of the house. Citing this evidence, the district court found Astorga risked the lives of more than one person when he shot Rodriguez.
Additionally, the district court found Astorga previously had been convicted of a felony in which he inflicted great bodily harm, disfigurement, dismemberment, or death on another (prior conviction aggravator). See K.S.A. 21-4636(a). To support this finding, the district court relied on a certified copy of a journal entry received from the New Mexico Department of Corrections and submitted by the State at sentencing, reflecting Astorga previously had been convicted of second-degree murder.
Astorga urged the district court to consider two nonstatutory mitigating factors: (1) Astorga’s testimony that Rodriguez had committed prior acts of violence toward Astorga, and (2) Astorga’s testimony that he acted in self-defense when he shot Rodriguez. The district court imposed a hard 50 sentence but made no on-the-record findings as to whether it found any mitigating circumstances or whether it determined any mitigating circumstances outweighed the two aggravating circumstances found to exist.
Astorga challenged his hard 50 sentence on direct appeal, claiming the district court erred in finding the risk of death aggravator, both as a matter of law and under the facts of the case, and in weighing the aggravating and mitigating circumstances. Noting that Astorga failed to challenge the court’s finding on the prior conviction aggravator and that a hard 50 sentence could be imposed upon finding one or more aggravating circumstances, this court declined to consider whether the district court erred in finding the risk of death aggravator. Astorga, 295 Kan. at 352. We further determined the district court did not abuse its discretion in weighing the aggravating and mitigating circumstances. 295 Kan. at 353. Finally, as discussed, based on prior caselaw we rejected Astorga’s challenge to the constitutionality of the hard 50 sentencing scheme. 295 Kan. at 354.
Discussion
The statutory procedure used to impose Astorga’s hard SO sentence is unconstitutional.
This court recently considered the constitutionality of Kansas’ hard 50 sentencing scheme in light of Alleyne and decided that issue in Astorga’s favor, effectively overruling the caselaw we relied upon in Astorga. Soto, 299 Kan. at 124. In Soto, we held that Kansas’ former statutory procedure for imposing a hard 50 sentence, as provided in K.S.A. 21-4635, violated the Sixth Amendment to the United States Constitution as interpreted in Alleyne because it permitted a judge to find by a preponderance of the evidence the existence of one or more aggravating factors necessary to impose an increased mandatory minimum sentence, rather than requiring a jury to find the existence of the aggravating factors beyond a reasonable doubt. 299 Kan. at 103-04, 124.
While our decision in Soto resolved most of the parties’ arguments, we briefly consider two arguments made by tire State on remand that are specific to the facts of this case. Specifically, the State contends: (1) no Alleyne error occurred here because As-torga’s sentence rests in part on a prior conviction, and (2) alternatively, if an Alleyne error occurred, it was harmless. Ultimately, we reject both arguments and conclude that, because the district court’s imposition of a hard 50 sentence violated Astorga’s Sixth Amendment right to a jury trial, we must vacate his hard 50 sentence and remand for resentencing.
We need not decide whether the prior conviction aggravating circumstance ofKSA. 21-4636(a) falls within the Almendarez-Torres exception to the ApprendHAlleyne rule.
Relying on Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998), the State contends that even after Alleyne, a jury was not required to find the fact of As-torga’s prior conviction for second-degree murder beyond a reasonable doubt. And because Astorga’s prior conviction constituted one of the two aggravating circumstances found by the district court as supporting imposition of the hard 50 sentence, the State contends the district court properly applied the hard 50 sentencing scheme in this case. See K.S.A. 21-4636(a) (“The defendant was previously convicted of a felony in which the defendant inflicted great bodily harm, disfigurement, dismemberment or death on another.”).
In Almendarez-Torres, the United States Supreme Court concluded that die Constitution does not require the prosecution to submit the fact of a prior conviction to a jury and prove that fact beyond a reasonable doubt. Almendarez-Torres, 523 U.S. at 226-27; see also Apprendi, 530 U.S. at 489-90 (declining to overrule Almendarez-Torres, “treating] the case as a narrow exception to the general rale” of Apprendi). Significantly, the Court noted “the sentencing factor at issue here—recidivism—is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.” Almendarez-Torres, 523 U.S. at 243. The Court further held: “[T]o hold that the Constitution requires that recidivism be deemed an ‘element’ of petitioner’s offense would mark an abrupt departure from a longstanding tradition of treating recidivism as ‘go[ing] to the punishment only.’ [Citation omitted.]” 523 U.S. at 244.
Because the prior conviction exception to Apprendi was not at issue in Alleyne, the Supreme Court in Alleyne declined to revisit its decision in Almendarez-Torrez. See Alleyne, 133 S. Ct. at 2160 n.1. Nevertheless, Astorga contends the Almendarez-Torres exception does not apply to the prior conviction aggravator defined in K.S.A. 21-4636(a), because that statutory language requires a factual finding as to whether the defendant personally “inflicted great bodily harm, disfigurement, dismemberment or death on another.” Astorga contends the journal entry of his prior conviction for second-degree murder did not indicate whether he personally inflicted the harm that resulted in the victim’s death. Therefore, he suggests some additional factfinding was necessary, placing this factor within the purview of Alleyne.
Under the facts of this case, we need not consider the continued viability of the Almendarez-Torres exception or whether K.S.A. 21-4636(a)’s prior conviction aggravator falls within that exception. Here, even if the district court could find the existence of the prior conviction aggravator, under our rationale in Soto the court erred in finding the other aggravating factor, i.e., the risk of death ag-gravator, by a preponderance of the evidence. See Soto, 299 Kan. at 124 (holding statutory procedure for imposing hard 50 sentence unconstitutional “because it permits a judge to find by a preponderance of the evidence the existence of one or more aggravating factors necessary to impose an increased mandatory minimum sentence, rather than requiring a jury to find the existence of the aggravating factors beyond a reasonable doubt”); see also State v. Hilt, 299 Kan. 176, 203, 322 P.3d 367 (2014) (applying Soto to conclude that judge’s finding of four aggravating circumstances by preponderance-of-the-evidence standard constituted Alleyne error).
If we applied a modified harmless error test, the hard 50/Alleyne error in this case would not he harmless.
Alternatively, the State argues if an Alleyne error occurred it was harmless. Astorga disagrees, arguing hard 50/Alleyne errors are not amenable to review for harmless error.
In Soto, we considered but declined to decide whether hard 50/ Alleyne errors may be subject to a modified harmless error review. Soto, 299 Kan. at 124-28. We concluded that if we were to consider harmless error, we would apply a modified, more stringent harmless error analysis that required us to determine beyond a reasonable doubt that (1) uncontroverted and overwhelming evidence supported each aggravating circumstance such that the jury would have found the existence of each aggravating circumstance beyond a reasonable doubt, and (2) no rational jury would have determined that mitigating circumstances outweighed the aggravating circumstance. Soto, 299 Kan. at 126-27. We pointed out that only rarely would an error meet this exacting test, and we deferred any decision regarding application of this test in the hard 50/Alleyne context until that rare case presents itself. Soto, 299 Kan. at 127-28; see also Hilt, 299 Kan. at 205 (assuming without deciding that harmlessness applies but concluding case did not present “one of the rare instances when a hard 50 Alleyne error can be declared harmless”)-
Like Soto and Hilt, this is not that rare case. Here, the district court found two aggravating circumstances under K.S.A. 21-4636(a) and (b), respectively: (1) Astorga previously had been convicted of a felony in which he inflicted great bodily harm, disfigurement, dismemberment, or death on another, namely, second-degree murder, and (2) Astorga knowingly or purposely created a great risk of death to more tiran one person. Further, Astorga urged the district court to consider two nonstatutoiy mitigating circumstances: (1) the victim, Rodriguez, had committed prior acts of violence toward Astorga, i.e., stabbing Astorga and participating in a drive-by shooting of Astorga’s home, and (2) As- torga testified he acted in self-defense in shooting Rodriguez. Even if we assume uncontroverted and overwhelming evidence supported both aggravating circumstances such that the jury would have found their existence beyond a reasonable doubt, we simply do not know whether a jury of Astorga’s peers would have found the two mitigating circumstances asserted by Astorga. Nor could we conclude beyond a reasonable doubt that no rational jury would have determined that any mitigating circumstances, if found, outweighed the aggravating circumstances. See Soto, 299 Kan. at 127.
To summarize, we decline to decide whether a hard 50/Alleyne error may be subject to harmless error review because this case, like Soto, does not present the rare circumstances in which such an error could be held harmless. Accordingly, we vacate Astorga’s hard 50 sentence and remand for resentencing.
We decline to issue an advisory opinion as to the appropriate course of action on remand.
Because this case must be remanded for resentencing, we now turn to the parties’ arguments regarding the procedure to be applied on remand. Astorga argues Alleyne requires the district court to impose a hard 25 sentence on remand because that is the only sentence supported by the jury’s verdict. But the State points out that after Alleyne, the Kansas Legislature amended Kansas’ hard 50 sentencing scheme and included express provisions for retroactive application in cases pending on appeal. See L. 2013, ch. 1, sec. 1 (Special Session); K.S.A. 2013 Supp. 21-6620. Consequently, the State contends the district court must resentence Astorga under the amended hard 50 statute. Astorga responds that retroactive application of the amended hard 50 scheme would violate the Ex Post Facto Clause of the United States Constitution.
As in Soto, we decline to issue an advisory opinion on these issues. See Soto, 299 Kan. at 128-29 (noting issues related to application of amended hard 50 statute are not ripe unless and until tire State seeks application of statute on remand). Instead, we hold only that because Astorga’s sentence was imposed in violation of his Sixth Amendment right to a jury trial, his sentence must be vacated and the case remanded for resentencing. Our decision does not prevent the parties from presenting their respective arguments regarding application of the amended hard 50 scheme to the district court at resentencing.
The evidence was sufficient to support the risk of death aggravator.
Should tire district court conclude that the retroactive provisions of K.S.A. 2013 Supp. 21-6620 apply on remand, section (e) of that statute suggests the State would be precluded from pursuing a hard 50 sentence if we were to vacate Astorga’s sentence for lack of sufficient evidence to support tire aggravating circumstances. While we decline to decide at this juncture whether Astorga could be resentenced under the amended statute, we find it necessary to address Astorga’s claim that tire evidence was insufficient to support the risk of death aggravator.
Before doing so, we note that Alleyne also impacts our standard of reviewing tire sufficiency of evidence in the hard 50 context. In the past, we have considered whether, after review of all the evidence, viewed in a light most favorable to the prosecution, a rational factfinder could have found the existence of a hard 50 aggravating circumstance by a preponderance of the evidence. See, e.g., State v. McCaslin, 291 Kan. 697, 727, 245 P.3d 1030 (2011). However, in light of Alleyne’s requirement that aggravating factors be found by a jury beyond a reasonable doubt, we will apply the higher standard in considering the sufficiency of evidence to support such factors. See Alleyne, 133 S. Ct. at 2162-63; see also Soto, 299 Kan. at 129 (restating applicable standard for sufficiency challenge in light of Alleyne).
The district court found Astorga “ ‘knowingly or purposely killed or created a great risk of death to more than one person.’ ” Astorga, 295 Kan. at 352; see K.S.A. 21-4636(b). The district court also found Astorga previously was convicted of a felony in which he inflicted death on another, namely, second-degree murder. See K.S.A. 21-4636(a). In his direct appeal, Astorga challenged the sufficiency of the evidence to support the risk of death aggravator, but he did not challenge the sufficiency of evidence to support the prior conviction aggravator. At oral argument, Astorga conceded he did not dispute the existence of his prior conviction at sentenc ing or in his direct appeal. Accordingly, we consider only the sufficiency of evidence to support the risk of death aggravator.
We have explained that K.S.A. 21-4636(b) requires “ ‘a direct relationship between creating the great risk of death to another and the homicide. The risk need not be contemporaneous with the homicide, but it must occur in the course of committing the charged murder.’ ” State v. Brown, 272 Kan. 809, 818, 37 P.3d 31 (2001) (quoting State v. Spain, 263 Kan. 708, 718, 953 P.2d 1004 [1998]). However, “[i]t is not necessary that the defendant caused another person life-threatening injuries; it is necessary only that the defendant knowingly created a great risk of death to more than one person.” State v. Vontress, 266 Kan. 248, 258, 970 P.2d 42 (1998), disapproved on other grounds by State v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006); see also State v. Lopez, 271 Kan. 119, 139-40, 22 P.3d 1040 (2001) (rejecting defendant’s attempt to transform term “risk” from “creation of a possibility of an occurrence to causation of an occurrence”).
The evidence presented at trial established that Astorga shot Rodriguez as Rodriguez stood in the doorway of his home. As Rodriguez was shot, Rodriguez’ girlfriend stood behind and to the side of Rodriguez while her toddler stood directly behind her. The evidence further demonstrated that the .40 caliber bullet from As-torga’s gun fatally wounded Rodriguez before passing through interior walls of the house and exiting through a back window.
Viewing this evidence in the light most favorable to the prosecution, we conclude a rational factfinder could have found beyond a reasonable doubt that Astorga created a great risk of death to more than one person when he shot Rodriguez. See, e.g., State v. Kirtdoll, 281 Kan. 1138, 1152-53, 136 P.3d 417 (2006) (affirming risk of death aggravator finding when defendant fired gun in crowded nightclub); Lopez, 271 Kan. at 139-40 (affirming risk of death aggravator-finding when defendant repeatedly fired gun inside moving vehicle and killed driver, thus creating great risk of death for passenger).
Because we find sufficient evidence to support the risk of death aggravator under K.S.A. 21-4636(b), we vacate Astorga’s hard 50 sentence for the sole reason that it was imposed using a statutoiy procedure that violated his Sixth Amendment right to a jury trial.
In conclusion, in accord with the judgment of the United States Supreme Court we affirm in part, dismiss in part, vacate in part, and remand for resentencing. | [
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The opinion of the court was delivered by
Luckert, J.:
Drake Andrew Kettler, Jr., appeals his convictions for the premeditated first-degree murder of James Earl Dyer, Jr.; conspiracy to commit first-degree murder; and criminal possession of a firearm. Kettler raises four issues: (1) The State’s exercise of peremptory challenges to strike African-Americans from the jury panel violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986); (2) there was insufficient evidence of premeditation on the part of Kettler to support his conviction for premeditated first-degree murder; (3) there was insufficient evidence of an agreement between Kettler and his codefendants to support his conviction for conspiracy to commit first-degree murder; and (4) the prosecutor committed misconduct during closing argument by misstating the legal definition of “premeditation” and thereby deprived Kettler of a fair trial.
While we agree with Kettler that the prosecutor misstated the legal definition of premeditation, we conclude this misstatement did not deprive Kettler of a fair trial. We do not find merit in any of his other arguments, and we affirm.
Facts and Procedural Background
Dyer died from gunshot wounds he suffered on August 10, 2007, in Topeka. Kettler and three other individuals—Corley A. Williams; Kelvin Phillips, Jr.; and Antonio Armstrong—were charged with and convicted of crimes related to the death. All four defendants appealed, and their individual appeals were argued the same day. For these related opinions, see State v. Williams, 299 Kan. 509, 324 P.3d 1078 (2014); State v. Phillips, 299 Kan. 479, 325 P.3d 1095 (2014); and State v. Armstrong, 299 Kan. 405, 324 P.3d 1052 (2014).
The appeals of Williams, Kettler, and Phillips, who were tried jointly, raise many of the same issues. Consequently, our opinions in these cases are largely repetitive. We have followed this format for the ease of reading only one opinion; the reader will not need to refer to multiple opinions. For the benefit of anyone who wishes to read all three opinions, we offer as a guide that Williams asserted die most issues. Kettler and Phillips repeated some of diose issues, making either identical or substantially similar arguments. Phillips does, however, present an issue not raised by Kettler or Williams— his first issue, which relates to die procedure for declaring a mistrial. Also, although Williams, Kettler, and Phillips all raise issues regarding the sufficiency of die evidence and the prosecutor’s misstatement of the definition of “premeditation” during the closing argument, there is some variance in the analysis because of each individual’s role in the shooting of Dyer. The decision in Armstrong’s appeal does not have the same level of overlap, and some factual details differ because of the variance in the evidence in his separate trial.
Procedural History
The charges against the four defendants were not identical. Ket-tler, like Phillips and Williams, was charged with premeditated first-degree murder, in violation of K.S.A. 21-3401(a); conspiracy to commit first-degree murder, in violation of K.S.A. 21-3302 and K.S.A. 21-3401; and criminal possession of a firearm, in violation of K.S.A. 21-4204(a)(4)(A). Armstrong was also charged with premeditated first-degree murder and criminal possession of a firearm.
Armstrong’s case took a different procedural track when, before any of the defendants’ preliminary hearings, he decided to cooperate with die State in exchange for a favorable plea agreement. Initially, in Armstrong’s first contact with investigating law enforcement officers, he denied any knowledge of or involveihent in the shooting. Later, in his attempt to obtain the plea agreement, he gave a sworn deposition-style statement to the district attorney in which he incriminated himself and implicated the three other defendants in the premeditated killing of Dyer. Based on this statement and as part of Armstrong’s plea arrangement, the State called Armstrong as a witness at a joint preliminary hearing related to the charges against Williams, Kettler, and Phillips. Armstrong reiterated the truthfulness of his sworn statement and testified that he had joined with Williams, Kettler, and Phillips in a plan to find and shoot Dyer.
Before Williams, Kettler, and Phillips were brought to trial, Armstrong changed his mind about cooperating with the State and recanted his statements and testimony, even though he lost his plea deal. In a notarized affidavit drafted by Armstrong, he stated that his former defense counsel coerced him into making his prior statements impheating his friends.
Subsequently, Armstrong’s case was joined with the cases ofWil-liams, Kettler, and Phillips for the purposes of a juiy trial. The resulting joint trial ended with a hung jury. After the first trial, the trial court severed Armstrong’s case from the others, and his second trial took place before the three other codefendants again went to trial. Armstrong testified at his second trial, providing yet another version of how Dyer was shot. Armstrong was convicted of premeditated first-degree murder and criminal possession of a firearm, the only charges brought against him.
The State then called Armstrong to testify at the joint second trial of Williams, Kettler, and Phillips. Armstrong testified that both his sworn statement and his preliminaiy hearing testimony against the other defendants were untrue. Armstrong explained that he had incriminated his friends because he was led to believe that “my homeboys, my brothers, was testifying on me, which I found out later was a lie.” He also told the jury that he had just reiterated a story the prosecutor had fed him. Armstrong’s explanation was refuted by Armstrong’s attorney, who testified that Armstrong was not told what to say in his sworn statement.
Although Armstrong was called as a witness for the State at the trial of Williams, Kettler, and Phillips, he was declared a hostile witness. During his testimony, Armstrong wore a mask to prevent him from spitting on the law enforcement officers who transported him to the courtroom or on those in the courtroom. He often cursed, and he usually either refused to answer questions or was evasive and claimed he could not remember details. Eventually, on redirect examination, Armstrong became so belligerent and uncooperative with the prosecutor that he was removed from the courtroom.
As this history suggests, the jury was presented with multiple versions of the events that led to Dyer’s death. In addition to Armstrong’s various renditions of what happened, both Williams and Phillips testified at their second trial and offered slightly different versions of events. Plus, approximately a month before the second joint trial, Phillips proffered tire substance of his trial testimony in order to obtain some pretrial evidentiary rulings; tire jury would learn that some details included in the proffer differed from Phillips’ trial testimony. Kettler chose not to testify. The jury also heard the testimony of several individuals who witnessed some portion of the events, investigated the crimes, or had information about the relationship of Dyer and the defendants. Because Kettler attacks the sufficiency of the evidence against him, we will discuss the evidence in some detail.
Dyers Conflict with the Defendants
Through the testimony of several witnesses—including Williams and Phillips—and Armstrong’s sworn statement, the jury learned of a dispute between Williams and Dyer that occurred several weeks before Dyer’s death. During this altercation, an argument escalated and ended with Dyer and his friend, Ryland Patton, robbing Williams at gunpoint. Patton testified that after the robbery, Williams issued a challenge by telephoning and saying, “It’s on.” Patton’s testimony was countered by Williams, who told the jury he had decided just to stay away from Dyer and Patton. He denied that Dyer’s death had anything to do with the prior encounter.
In turn, Williams’ testimony was contradicted by Armstrong’s sworn statement and the preliminary hearing testimony of Armstrong. According to that version of events, Williams told Armstrong and Kettler about the robbery immediately after it happened. The three men decided they would be on the lookout for Dyer and his friends. When Armstrong was asked whether there were any plans made to search for Dyer, Armstrong replied, “No. Just—just when we—when we saw him, shoot him.” Armstrong was asked if that agreement would apply “to any of the three of you?” He answered, “Any of us ... . I’m not going to he, I wanted to do it because not too—not too long after that, just a couple of days after that . . . somebody shot... [a friend’s house] and grazed me on my arm.” Armstrong believed Dyer and Patton were the shooters.
Phillips did not participate in these discussions because he was in jail. Nevertheless, according to Armstrong, Kettler informed Phillips of the plan by speaking to Phillips in “code” during a telephone conversation. As it turned out, Phillips was released from jail the same day as Dyer was shot. According to Armstrong, Phillips joined in the plan to find and shoot Dyer. Armstrong stated that when they found Dyer, they wanted to “[b]low his head off.”
Phillips Spots Dyer; Other Defendants Join Him
Within hours of Phillips’ release from jail, he spotted Dyer and Dyer’s girlfriend, Teri Johnson, outside a liquor store and an adjoining smoke shop. Johnson testified that she and Dyer had walked to the liquor store where they ran into some people they knew, Rhonda Shaw and Leonard Mun. Johnson asked Shaw for a ride, and Shaw agreed. While Shaw shopped, Johnson walked from the liquor store toward Shaw’s car. At that point, Phillips ap- preached Johnson and asked if she was “straight,” meaning did she need to buy any drugs. Johnson told him she did not. As Johnson got into the car, where Mun and Dyer were already sitting, Phillips told her to take his phone number and to call if she needed something.
Phillips testified that, after talking to Johnson in front of the liquor store, he talked to Shaw and asked her whether she wanted to purchase some drugs. Shaw indicated she had some money at her house, so she would buy drugs if Phillips stopped by. Phillips told Shaw he would be there within 5 to 10 minutes.
According to Phillips, after Shaw’s vehicle pulled away, Phillips called Kettler, and Kettler and Armstrong met him in the alley behind the liquor store and smoke shop. They ran down the alley because Phillips was in a hurry to get to Shaw’s house so that another drug dealer would not beat him to the sale. Ketder then called Williams to ask for a ride to Shaw’s house.
Williams also testified that Kettler called him and asked Williams to give Kettler, Phillips, and Armstrong a ride to Shaw’s house. According to Williams, he had been with Kettler and Armstrong earlier in the day. He explained that he had picked up Kettler, Armstrong, and another friend and they drove around for about 30 minutes. Then, Kettler and Williams installed a CD player in Williams’ car, while the others were “sitting around talking.” Later, the group went dieir separate ways until Williams picked up the others to take them to Shaw’s house. He explained that he was told the men wanted to go to Shaw’s house because she owed Kettler some money and Phillips was going to sell her drugs.
According to Armstrong’s sworn statement, Kettler and Williams had picked him up earlier in the day and the three were still together when Phillips called. Like Williams, Armstrong stated that Kettler and Williams had installed a CD player in Williams’ car, but Armstrong also indicated that while doing so they had hidden a gun behind the CD player. Armstrong explained, “Like where the CD player is in Oldsmobile Delta’s [sic] you can take that whole part out, tire whole vent part out and you can fit a nice size gun in there.” Armstrong described the hidden gun as a “9 mm Ruger.” There was evidence at the trial suggesting that this gun was later used to shoot Dyer.
Once Williams and Kettler finished installing the CD player, according to Armstrong, the three men began driving around. Phillips called Kettler, and Kettler then told the others that Dyer “is at the smoke shop. Get there. And then [Kettler] opened the vent and pulled a gun out of the vent.” Williams drove directly to the alley behind die store, which Armstrong said was merely 30 seconds or so away from where they were. Once they were near the store, Armstrong and Kettler jumped out of the car and started running down the alley. Phillips ran toward them and told them Dyer was on his way to Shaw’s house. They turned and ran back toward Williams’ car.
The timing of Armstrong’s version of events meshes with Johnson’s account. She saw Phillips and three or four other people running down the alley behind the liquor store as Shaw drove away.
Events at Shaw's House, According to Johnson and Mun
Once Shaw, Mun, Dyer, and Johnson arrived at Shaw’s house, they carried beer inside and began hanging out. About 5 to 10 minutes after they sat down, Shaw’s home phone rang. Shaw answered the phone and simply said, “Yeah, yeah,” and then passed the phone to Mun. According to Mun, there was nobody on the other end, so he hung up. Other evidence suggested that either Phillips or Kettler used Phillips’ cell phone to call Shaw to verify whether Dyer was at her house. Mun indicated that shortly after the phone call, Shaw asked Dyer if he was J.D., to which Dyer answered, “Yes.”
Within a couple minutes of the phone call, there was a knock at Shaw’s front door. Mun walked up to the door and asked, ‘Who is it?” The person on the other side responded, and Mun told the others it was “Little Man,” which was Kettler’s nickname. When Dyer heard “Little Man,” he jumped up and left the room.
Mun looked out the window and did not initially see anyone. When he opened the door, Mun heard someone coming around the side of the house, asking why he had not answered more quickly. As the man approached Shaw’s front door, Mun recog nized him as Kettler. Phillips and Armstrong came toward the front door from the side of the house, and the three men ran into the house. Phillips approached Johnson and asked something like, “[W]here’s he at, Bitch?” apparently meaning Dyer. Johnson acted like she did not know who Phillips was looking for because she “didn’t want [Phillips] to do nothing to [Dyer].” Phillips then turned around and walked out the front door.
Seconds later, Phillips returned to the house. According to Johnson, Kettler and Armstrong were with him, and all three men had guns when they walked past her and moved toward the back of the house. Johnson immediately ran out of the house to get help.
Mun, who remained outside the front door, did not see guns when the group, which, according to him now included Williams, walked into the house the second time. Mun testified that he heard “tussling” and “wrestling” sounds coming from inside Shaw’s house. Pie stepped inside and saw one of the men pick up a drinking glass and glass ashtrays and throw them into the bedroom. Then Mun heard the “pop, pop, pop” sound of gunshots and watched tire four men run out of tire house. When Mun looked into the bedroom, he saw Dyer lying on the floor, unresponsive.
Meanwhile, Johnson ran to a neighbor’s house and knocked on the door. When the neighbor responded, Johnson asked her to call law enforcement. Johnson then heard gunshots, so she ran back to Shaw’s house. As she approached, Johnson saw the same men run out of Shaw’s house, jump into a brown car, and drive away. This car was later identified as Williams’ car.
Johnson went inside Shaw’s house and found Dyer lying on tire bedroom floor, bleeding and unresponsive. Dyer had been struck by two bullets, one of which entered through his arm and pierced his heart. In addition to the bullet wounds, Dyer suffered head wounds and a bite mark on his left shoulder. An expert opined that Phillips was the probable biter.
The jury did not hear Shaw’s versions of events because she had passed away before the first trial, and, as we have noted, Kettler chose not to testify. But, just as Williams, Phillips, and Armstrong provided different versions of what happened before the men got to Shaw’s house, they provided very different accounts of what occurred once they arrived.
Williams’ Version
According to Williams, he drove over to Shaw’s house with Ket-tler, Phillips, and Armstrong because Shaw owed Kettler money and because Phillips said “he needed to take care of some business over there,” meaning a drug deal. When they pulled up at Shaw’s house, Williams dropped off the other men. He then drove past the house before turning around and coming back to park. Williams said he was parked about a minute when Kettler came out the front door and got into Williams’ car. Then Williams heard gunshots coming from inside Shaw’s house. Seconds later, Williams saw Phillips and Armstrong running out of the house. When they got into the car, Williams noticed “a few blood spots” on Phillips’ shirt. Williams asked, “What’s going on?” but they just told him to “drive off.” So Williams drove over to the home of Latoya Austin, Armstrong’s girlfriend.
Williams testified that he did not see a gun, but when they went inside Austin’s house he heard Austin tell Armstrong to “get that out of here,” referring to the gun Armstrong was then holding. Williams saw Armstrong leave the house for a couple minutes, presumably to get rid of the gun. Then Armstrong started talking about what had happened at Shaw’s house and indicated that Phillips shot Dyer. Phillips and Armstrong talked about “tussling over the gun” with Dyer. They told Williams that Dyer tried to get the gun from Phillips and Dyer had hopped on Phillips’ back.
Phillips’ Version
Phillips’ testimony was consistent with Williams’, at least in many respects. According to Phillips, his “whole intention was to go over there [Shaw’s house] to bust a serve,” which he explained meant to complete a drug sale. Phillips denied having any discussion before arriving at Shaw’s house about settling a score with Dyer. In fact, according to Phillips, he did not know about Dyer’s robbery of Williams until after Dyer’s death. On the way to Shaw’s house, Phillips called Shaw to make sure she and Mun were there. Phillips testified that he did not see any guns and did not know whether Williams had hidden a gun in the dashboard of the car.
Phillips said Kettler went up to Shaw’s house first, knocked on the door, and announced that it was “Little Man.” Mun, who answered tire door, mentioned that Dyer had run out the back. Phillips indicated he was not sure why Mun told them about Dyer. Armstrong then went around the side of tire house, and Phillips and Kettler went inside. After Phillips completed his drug sale, Armstrong entered the house and began asking where Dyer was because he had not found Dyer behind the house. Next, Armstrong ran through the house, toward the back rooms, and Johnson stood up and ran out the front door. Phillips testified that he tried to get Armstrong to leave, but then he heard “some tussling” and saw Dyer and Armstrong wrestling over a gun. Phillips did not know who brought the gun to Shaw’s house, but he assumed it was Armstrong; he specifically denied carrying a gun into Shaw’s house himself.
Phillips told the jury that he was not going to let Dyer hurt his friend, so he tried to break up the fight. When his initial efforts did not work, Phillips started hitting Dyer “in his face area.” These efforts did not stop Dyer, so Phillips grabbed an ashtray out of the living room and hit Dyer over the head several times. Phillips also bit Dyer. During this time, according to Phillips, Kettler also tried to break up the fight. At some point, Kettler yelled, “ ‘Come on, let’s get out of here. We didn’t come over here for this.” Kettler then ran toward the front of the house, and Phillips assumed Ket-tler left.
As the struggle continued, Dyer dropped the gun. Phillips picked it up, but in the process the gun went off. Phillips ran into the bedroom, and Dyer jumped on his back. This caused Phillips to stumble and “[t]wo shots went off.” Phillips broke lose from Dyer, and as Dyer “was falling, I let like two more shots go.” Phillips testified that the gun was still in his hand when he got into Williams’ car and he threw it on the back seat. When asked whether it was his intention to shoot Dyer, Phillips testified, “No, it wasn’t. I had no reason to. I don’t believe I would have had a reason. That’s not my style.”
Armstrong’s Versions
Armstrong’s sworn statement included some of the same details. There were significant differences, however, including his explanation of why the four went to Shaw’s house, which was to “[b]low Dyer’s head off.” He also stated that he had initially carried the gun that had been removed from the dash of Williams’ car, but, after the men could not find Dyer in Shaw’s backyard, Phillips grabbed the gun from Armstrong and entered the house. Armstrong, Kettler, and Williams followed. The fight initially involved Kettler, Phillips, and Dyer, while Williams stood nearby. During the struggle, Kettler had Dyer briefly subdued, but then Dyer got loose and jumped on Phillips’ back. At that point, Armstrong started hitting Dyer’s head with a glass ashtray and Dyer fell. After Dyer hit the floor, Phillips “backed up and I [Armstrong] started backing up just to make sure that, you know,. . . wasn’t no chance I would get hit by the bullets because I already knew what was about to happen at that split second and that’s when [Phillips] just started shooting.” Phillips “was shooting to kill, but it was like he was kind of shooting land of wild . . . like he was just trying to hit him everywhere.” After the shots were fired, Phillips ran out of the house. Armstrong followed him and saw Kettler in the kitchen doorway with a knife. Armstrong stated that after the struggle moved from the bathroom to the bedroom, Kettler went to the kitchen. “I guess before he got the knife, [Phillips] shot [Dyer].”
A transcript of Armstrong’s testimony from his own, separate trial was also admitted into evidence at the trial of Williams, Ket-tler, and Phillips. This version of events put yet another spin on the facts. Armstrong indicated that he, Williams, Kettler, and Phillips went to Shaw’s house to collect money that Shaw owed to Kettler. After all four men went into the house and Shaw paid Kettler, they heard the sound of a curtain being snatched back and saw Dyer “[come] out [of] the bathroom with a black gun in one hand and a silver gun in the other.” Dyer said, “[Y]ou-all drop out,” meaning everyone give him their “property.” Phillips was able to hit Dyer “so hard that one gun flew out of his hand and hit the wall so hard that the clip fell out of it.” Kettler and Phillips “lunged after tire other gun.” After wrestling around and after Armstrong hit Dyer on the head with an ashtray, Phillips tried to run away, but Dyer ran after Phillips and “grabbed him by the back of his neck.” So Armstrong grabbed Dyer and hit him again three times, causing Dyer to drop to the floor. That is when Phillips “came out of nowhere” and “started shooting” at Dyer. Phillips, Kettler, and Armstrong ran out of the house.
On Armstrong’s way out of the house, he saw Williams leaning down to pick up the first gun that Dyer had dropped. He did not see what happened to the gun after that. Williams followed Armstrong out of the house, and the four friends drove away in Williams’ car. According to Armstrong, they did not plan to kill Dyer: “We did not go over there intending to kill him. We didn’t have a gun to go over there to kill him with. He got shot with his own gun.”
Other Evidence
In other evidence, jurors heard from some of Shaw’s neighbors who described a car that matched the description of Williams’ car as being near Shaw’s house at the time of the shooting. One couple was following Williams’ car through the neighborhood. They reported seeing three men get out of the car and approach Shaw’s house; one of the men walked to the door and the others ran around the side of the house, which made the couple suspicious. Meanwhile, the driver pulled forward, turned around, and parked. The description of the driver they provided was consistent with Williams’ appearance. After the shooting, another neighbor saw “three or four” men run out of Shaw’s house and get into a parked car.
The jurors also heard the testimony of Renee Stewart, who testified that Williams and Kettler came to her house the night Dyer was shot. Based on things that were said, Stewart concluded Williams had shot someone. She reported that he seemed very nervous, and he wiped down a 9 mm pistol and some ammunition and asked her to hide the gun. She later sold the gun for drugs. She also indicated that several days before the shooting she had given Kettler and Williams a ride and Kettler had left a box of 9 mm ammunition in the glove box. Law enforcement officers testified they found the ammunition as described by Stewart; a few bullets were missing from the box and the ammunition matched the type and brand of the fired bullets recovered from Dyer’s body and Shaw’s house.
After weighing all the evidence, the jury convicted Kettler of premeditated first-degree murder, conspiracy to commit first-degree murder, and criminal possession of a firearm. Kettler filed a timely appeal, over which this court has jurisdiction under K.S.A. 22-3601(b)(l) (off-grid crime; maximum sentence of life imprisonment imposed).
Batson Challenges
Kettler, an African-American, contends that the State’s exercise of peremptory challenges to strike African-Americans from the jury panel violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution as analyzed in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). He focuses on two prospective jurors, L.S. and R.N., although he notes that at the end of the juiy selection process no African-Americans remained on the jury. Kettler contends that the State’s proffered reasons for striking prospective jurors such as L.S. and R.N. were pretextual, demonstrating purposeful discrimination, which entitles him to a new trial.
Standards ofBeview
In Batson, the United States Supreme Court held that the Equal Protection Clause applies to the State’s privilege to strike prospective jurors through peremptory challenges. When a Batson challenge is asserted, a three-step analysis applies; each step is governed by its own standard of review. State v. Hill, 290 Kan. 339, 358, 228 P.3d 1027 (2010); State v. Pham, 281 Kan. 1227, 1237, 136 P.3d 919 (2006).
First, the party challenging the strike must make a prima facie showing that the other party exercised a peremptoiy challenge on the basis of race. Appellate courts utilize plenary or unlimited review over this step. Hill, 290 Kan. at 358.
Second, if a prima facie case is established, the burden shifts to tire party exercising die strike to articulate a race-neutral reason for striking the prospective juror. This reason must be facially valid, but it does not need to be persuasive or plausible. The reason offered will be deemed race-neutral unless a discriminatoiy intent is inherent in the explanation. The opponent of the strike continues to bear the burden of persuasion. 290 Kan. at 358.
Third, the trial court must determine whether the objecting party has carried the burden of proving purposeful discrimination. This step hinges on credibility determinations. “[Ujsually there is limited evidence on tire issue, and the best evidence is often the demeanor of the party exercising the challenge. As such, it falls within the trial court’s province to decide, and that decision is reviewed under an abuse of discretion standard. [Citations omitted.]” State v. McCullough, 293 Kan. 970, 992, 270 P.3d 1142 (2012).
Striking of Prospective Jurors and the Trial Court’s Rulings
During the jury selection process, Kettler’s codefendant Williams raised a Batson challenge to the State’s decision to strike L.S. and R.N. Although Kettler did not specifically bring separate Batson challenges when the State removed L.S. and R.N., his defense counsel did join with the renewal of Williams’ challenges once the jury was chosen and there were no African-Americans left on the jury. Kettler’s defense counsel recognized that the defendants had struck two minority prospective jurors from the venire panel but argued that the State’s striking of more minority prospective jurors showed a “pattern” of eliminating prospective jurors based on race. Again, despite this characterization of a “pattern” of discrimination during voir dire, Kettler only focuses on two panel members in his appellate brief. Perhaps this is because another minority panel member, R.H., was struck by the State, but Kettler’s counsel voiced agreement with the propriety of that strike, even after Williams’ counsel objected. Thus, Kettler had essentially agreed to the striking of three minority panel members—two by the defense and one by the State. Consequently, the State was not responsible for striking all minorities.
Like Kettler, we focus solely on L.S. and R.N. With regard to them, the parties do not dispute that the defense established a prima facie case that they were struck based on race. After Williams challenged those strikes, the trial court gave die State the opportunity to respond.
As to L.S., the State explained it was striking L.S. because she was employed as a kitchen supervisor at a correctional facility during the time that one of the witnesses for the prosecution, Stewart, was incarcerated at that facility. The State opined it was possible that L.S. had contact with Stewart and other witnesses and would recognize them when they testified, even though L.S. had not recognized their names.
Williams’ defense counsel responded to the State’s explanation by arguing that other potential jurors (presumably non-African-Americans) remained on the jury panel despite having had “law enforcement contact with corrections’ personnel.” But the State then pointed out that L.S. was the only potential juror who worked at this particular correctional facility at the same time that a witness in the case was incarcerated there. The trial court found that the defendant failed to carry the burden of proving purposeful discrimination.
As for prospective juror R.N., the race-neutral reason provided by the State was that R.N. indicated on his jury questionnaire that he had pending unpaid traffic tickets; thus, the State argued that R.N. “had some adverse contact with law enforcement.” The prosecution further noted that it was trying to eliminate younger individuals lacking in “life experience and/or combination of formal education” and R.N. fit this description. Williams’ defense counsel responded, in part, that the existence of “unpaid traffic tickets . . . does not necessarily imply any significant law enforcement contact, [it] implies more inability to pay.”
After listening to all the arguments, the trial judge denied the Batson challenge regarding R.N., concluding, “I don’t believe that the defendant has made or met his burden to show purposeful discrimination based on the fact . . . the State is contending.” In addition, the trial judge—when summarizing the rulings regarding all of the challenges, including the additional challenge to R.H. made by Williams but not joined by Kettler—found “there were race-neutral reasons that those individuals were struck and there was no purposeful discrimination against any of those individuals.”
State Proffered Nondiscriminatory Rulings for Strikes
In attacking the trial court’s ruling on appeal, Kettler maintains that the decision to strike L.S. and R.N. shows purposeful discrimination because L.S. and R.N. exhibited “similar characteristics” to some non-African-American individuals who ultimately served on the jury. This court has stated that the State’s failure to strike a white juror with similar characteristics as a stricken minority prospective juror is circumstantial, although not conclusive, evidence of purposeful discrimination. State v. Trotter, 280 Kan. 800, 818, 127 P.3d 972 (2006). Conversely, evidence that the State struck minority and nonminority panel members for the same reason can be evidence that a defendant has failed to cany his or her burden of demonstrating purposeful discrimination. See Miller-El v. Dretke, 545 U.S. 231, 241, 125 S. Ct. 2317, 162 L. Ed. 2d 196 (2005); State v. Angelo, 287 Kan. 262, 274, 197 P.3d 337 (2008).
Consistent with these authorities, the State pointed out to tire trial court that it had struck nonminority panel members for the same reasons it struck R.N.—youthfulness, lack of experience, and potentially negative experiences with law enforcement. In response to this statement, Williams’ counsel acknowledged that the defendants had also exercised peremptory challenges to strike other youthful pi'ospective jurors. This concession was sufficient to establish youthfulness and lack of experience as a nondiscriminatory reason for the strike—a reason used by both the State and the defense—even if it could be disputed that R.N. had negative experiences with law enforcement. The additional reason of the traffic tickets does not negate the other nondiscriminatory reasons offered by the State.
Further, even though Kettler contended before the trial court and now on appeal that there were venire members who had similar characteristics that remained on the jury, neither Williams’ nor Kettler’s counsel made a record adequate for us to rule in Kettler’s favor. Kettler did not identify those jurors he felt had similar char acteristics. Hence, from the trial record itself, we are unable to analyze Kettler s argument.
Similarly, on appeal, Kettler does not direct this court to any pages in the record supporting his “similar characteristics” assertion. See McCullough, 293 Kan. at 999 (appellant’s burden to designate a record affirmatively showing error). Appellate courts “will not independently search the record and guess which specific facts [appellant] believes support his general allegations.” State v. Bryant, 285 Kan. 970, 977, 179 P.3d 1122 (2008); see Rule 6.02(a)(4) (2013 Kan. Ct. R. Annot. 39) (“The court may presume that a factual statement made without a reference to volume and page number has no support in the record on appeal.”). Recause we are unable to determine if there is factual support for Kettler’s position, his arguments regarding the State’s decision to strike R.N. fails.
As to die reason given by the State for striking L.S.-—that she might know one of the State’s witnesses'—other courts have recognized that this is a nondiscriminatory reason for exercising a peremptory strike. See, e.g.. United States v. McKay, 431 F.3d 1085, 1092 (8th Cir. 2005), cert. denied 547 U.S. 1174 (2006). We agree; in fact, potential knowledge of a witness is a frequent reason for striking prospective jurors.
In summary, although the elimination of all African-Americans from the jury is very troubling, we note that Kettler’s defense counsel recognized that the defense had struck two other minority prospective jurors from the venire panel. This means that Kettler has not established that the State purposefully sought to eliminate all minority members of the panel; we simply do not know whether the State would have exercised peremptory challenges to remove the two minority prospective jurors who were removed by the defense. Further, based on the race-neutral reasons articulated by the State for its strikes, we conclude that the trial court did not abuse its discretion in concluding that Kettler failed in his ultimate burden to prove purposeful discrimination during the jury selection process.
Sufficiency of the Evidence
Kettler argues that there was insufficient evidence to support his convictions for premeditated first-degree murder and conspiracy to commit first-degree murder. With regard to Kettler s murder conviction, he contends the State failed to prove the element of premeditation. As for conspiracy, Kettler argues the State failed to prove that he entered into an agreement with his codefendants to kill Dyer.
The standard of review that applies when sufficiency of the evidence is challenged in a criminal case is well known. After reviewing all the evidence in a light most favorable to the prosecution, the appellate court must be convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence, resolve evidentiary conflicts, or malee witness credibility determinations. State v. Lowrance, 298 Kan. 274, 296, 312 P.3d 328 (2013).
Premeditated First-Degree Murder
We first apply this standard to Kettler s argument that his conviction for premeditated first-degree murder must be reversed because there was insufficient evidence of premeditation. As Kettler correctly notes, the State proceeded against him on an aiding and abetting theory. To establish guilt on the basis of aiding and abetting, the State had to show that Kettler knowingly associated with the unlawful venture and participated in such a way as to indicate that he was facilitating the success of the venture. See K.S.A. 21-3205(1); State v. Green, 280 Kan. 758, 761, 127 P.3d 241, cert. denied 549 U.S. 913 (2006). As such, even though Kettler did not personally fire the gun that ldlled Dyer, the State was required to prove Kettler s intentional participation in the venture, premeditated first-degree murder, which obviously includes the element of premeditation.
Premeditation means to have thought the matter over beforehand and does not necessarily mean an act is planned, contrived, or schemed beforehand; rather, premeditation indicates a time of reflection or deliberation. State v. Qualls, 297 Kan. 61, Syl. ¶ 2, 298 P.3d 311 (2013); State v. Holmes, 278 Kan. 603, 632, 102 P.3d 406 (2004); see PIK Crim. 3d 56.04(b). Further, it is not necessary that there be direct evidence of either intent or premeditation. Instead, premeditation, deliberation, and intent may be inferred from the established circumstances of a case, provided the inferences are reasonable. State v. Scaife, 286 Kan. 614, 617, 186 P.3d 755 (2008). In other words, “[i]ntent. .. may be shown by circumstantial evidence, and a person is presumed to intend all the natural consequences of his acts. [Citation omitted.]” State v. Childers, 222 Kan. 32, 37, 563 P.2d 999 (1977).
In considering circumstantial evidence, Kansas caselaw identifies factors to consider in determining whether tire evidence gives rise to an inference of premeditation that include: “(1) the nature of the weapon used; (2) lack of provocation; (3) the defendant’s conduct before and after the lulling; (4) threats and declarations of the defendant before and during the occurrence; and (5) the dealing of lethal blows after the deceased was felled and rendered helpless. [Citation omitted.]” Scaife, 286 Kan. at 617-18; see State v. Marks, 297 Kan. 131, 140, 298 P.3d 1102 (2013). But the analysis of what inferences can be reasonably drawn is not driven by the number of factors present in a particular case because in some cases one factor alone may be compelling evidence of premeditation. See State v. Cook, 286 Kan. 1098, 1102, 191 P.3d 294 (2008); State v. Morton, 277 Kan. 575, 582-83, 86 P.3d 535 (2004) (evidence to support second and third factors sufficient in finding premeditation). Use of a deadly weapon by itself, however, is insufficient to establish premeditation. State v. Cosby, 293 Kan. 121, 134, 262 P.3d 285 (2011).
Evidence Was Sufficient
A review of the record shows evidence—both direct and circumstantial—of premeditation. Certainly the strongest evidence of premeditation came from Armstrong’s sworn statement, which establishes an agreement between Williams, Kettler, Armstrong, and, later, Phillips to kill Dyer in retribution for his robbing Williams at gunpoint. But there was other evidence of premeditation as well.
Focusing on the first factor traditionally considered as evidence of premeditation—the nature of the murder weapon—Johnson testified the men entered the house with guns. Armstrong explained that a gun had been hidden, removed from its hiding place before the men got to the liquor store, and then taken with them— specifically, by Phillips—into Shaw’s house. Even in Phillips’ version of events, he assumed the murder weapon had been brought into the house by Armstrong. Moreover, during the struggle over the gun, there was evidence that Kettler went to Shaw’s kitchen to retrieve a knife—an alternative, but deadly, weapon.
As for the second factor regarding lack of provocation, there was no evidence that Dyer did anything on the day of his death to entice Williams, Kettler, Phillips, and Armstrong to enter the house. Under any version of events other than Armstrong’s testimony at his own trial, the aggressors were Armstrong, Kettler, and/or Phillips, either individually or together, and Williams aided and abetted their efforts.
Patton provided evidence of tire third and fourth factor—the defendants’ prior conduct and prior threats and declarations of the defendants before and/or during the occurrence. Patton testified that Williams had issued a challenge to him and Dyer. As to Kettler in particular, there was evidence that he was the one who communicated with Phillips about the plan. Then, on entering Shaw’s house, Phillips got in Johnson’s face “talkin’ about, ‘Bitch, where is he?’ ” Johnson apparently viewed this as a threat because she pretended not to know who Phillips was referring to because she “didn’t want [Phillips] to do nothing to [Dyer].” Turning to Ket-tler’s conduct after the shooting, Stewart testified about Williams and Kettler coming to her house the night of the shooting, bringing a 9 mm gun that she believed belonged to Williams, wiping down the gun and ammunition, and asking her to hide it.
Finally, the fifth factor—the dealing of lethal blows after the deceased was felled and rendered helpless—also weighs toward a finding of premeditation. In Armstrong’s sworn statement, he indicated he had repeatedly hit Dyer in tire head with a glass ashtray, causing Dyer to fall, and then Phillips fired several shots into Dyer as he was lying on the bedroom floor. Armstrong stated that Phillips was “shooting to kill.” Forensic evidence confirmed that shots were fired into the floor.
Kettler ignores these factors and the circumstantial and direct evidence against him. Instead, he points to evidence supporting the defense theoiy that the only reason he and the others went to Shaw’s house was to collect money from Shaw and sell her some drugs. He also emphasizes Phillips’ testimony, where he said: “When [Kettler] seen me get the gun off the ground, he started yelling, ‘Come on, let’s get out of here. We didn’t come over here for this. This shit is stupid. Let’s get out of here.’ ” But these statements by Kettler do not necessarily negate the existence of a premeditated agreement to ldll Dyer. They could indicate that Kettler did not expect Dyer to struggle and put them at risk.
More significantly, however, the juiy heard this evidence supporting Kettler’s defense theory, but tire jury also heard evidence incriminating Kettler—evidence from which a rational factfinder could conclude that the killing of Dyer was intentional and premeditated. In fact, Kettler basically admits that there was evidence of premeditation (as well as the elements of conspiracy which will be discussed later), but he complains about the weight the jury gave to that evidence. He contends in his appellate brief that “[t]he only evidence supporting premeditation, as well as conspiracy and aiding and abetting, came from Armstrong.” More specifically, Kettler contends Armstrong’s statements were not credible. He notes that Armstrong had provided varied accounts of what happened on the date of the incident; Armstrong had recanted his accusatory statements against Kettler and the others; and Armstrong displayed uncooperative and belligerent behavior during his testimony at Kettler’s trial.
Kettler’s argument is not without some factual support; he is correct that there was evidence that could have justified a different verdict than that reached by the juiy. Nevertheless, his argument does not have any legal support because to reach the result he requests, this court would have to make our own determination of credibility and reweigh the evidence, and these are not tasks an appellate court performs when conducting a sufficiency review. Instead, an appellate court considers all evidence—even if there is conflicting evidence or reasons to question its credibility—and does so in the light most favorable to the State. See State v. Raskie, 293 Kan. 906, 920, 269 P.3d 1268 (2012). Factfinders—-in this case the jurors, not appellate judges—make credibility determinations. Thus, Armstrong’s incriminating and accusatory statements are part of our consideration.
Further, the more incriminating versions of events relayed by Armstrong are consistent with other direct and circumstantial evidence, including the testimony of Patton, Johnson, and Mun; the observations of several of Shaw’s neighbors; and much of the evidence gathered in the investigation, including videos from cameras at the liquor store, phone records, and the nature and location of Dyer’s wounds. See Scaife, 286 Kan. 614, Syl. ¶ 3 (“[A] factfinder is permitted to reasonably infer the existence of a material fact from circumstantial evidence, even though the evidence does not exclude every other reasonable conclusion or inference.”). During the State’s closing argument, tire prosecutor spent considerable time detailing the discrepancies between the physical evidence and the defendants’ various versions of how tire fight played out.
Thus, the evidence from Armstrong’s sworn statement is not so incredible that it must be disregarded. See State v. Brinklow, 288 Kan. 39, 53-54, 200 P.3d 1225 (2009) (identifying State v. Matlock, 233 Kan. 1, 4, 660 P.2d 945 [1983], as “perhaps the only case of its land in this state where the Supreme Court directly weighed the evidence and assessed the credibility of the prosecutrix,” calling Matlock “aberrant,” and concluding in the case before it “inconsistencies in the evidence did not render [the victim’s] testimony... so incredible or improbable as to defy belief’); accord State v. Plunkett, 261 Kan. 1024, 1033, 934 P.2d 113 (1997).
In summary, various versions of events were presented to the jury through-an assortment of witnesses and other evidence. In this mix of testimony, there was sufficient evidence when viewed in the light most favorable to the State that a rational factfinder could have found beyond a reasonable doubt that Kettler and the others premeditated the killing of Dyer.
Conspiracy to Commit First-Degree Murder
Kettler next contends that the State provided insufficient evidence that he entered into an agreement to commit a murder to support the conspiracy charge. An agreement is an element of conspiracy, and the jury was instructed that it had to find drat Kettler agreed with others to commit the crime of premeditated first-degree murder. See PIK Crim. 3d 55.03 (conspiracy).
In order to meet the sufficiency of the evidence standard, there must be evidence supporting each element of a crime, such as the agreement element of the conspiracy charge. See K.S.A. 21-3302(a); State v. Northcutt, 290 Kan. 224, 231, 224 P.3d 564 (2010); State v. Webber, 260 Kan. 263, 288, 918 P.2d 609 (1996), cert. denied 519 U.S. 1090 (1997). The existence of an agreement does not need to be proved directly, however. “[I]t is enough if the parties tacitly come to an understanding in regard to the unlawful purpose, and this may be inferred from sufficiently significant circumstances. [Citation omitted.]” State v. Swafford, 257 Kan. 1023, 1040, 897 P.2d 1027 (1995); see State v. Sharp, 289 Kan. 72, 104-05, 210 P.3d 590 (2009); State v. Davis, 284 Kan. 728, 737-38, 163 P.3d 1224 (2007).
Applying these principles, we conclude the record includes evidence of an agreement between Williams, Kettler, Phillips, and Armstrong to shoot and kill Dyer. Armstrong had stated that he had several discussions with Kettler and Williams “about getting” Dyer. It was agreed that “if you see [Dyer], shoot him.” Armstrong also stated that although nobody explicitly said, “[W]e got to go kill” Dyer, “[W]e all knew what the goal was when we went over there ... to kill James Dyer.” Additionally, he said that Phillips joined in this agreement. The State aptly argues that the jury could have inferred through Armstrong’s statements, the fact Phillips alerted the others to Dyer’s whereabouts, and the speed with which the defendants acted once Phillips called them about spotting Dyer, that the foursome had an agreement to kill Dyer.
Kettler does not dispute that Armstrong’s statements—his sworn statement and Armstrong’s preliminary hearing testimony—offered proof of an agreement. Instead, Kettler again argues that other evidence supported his defense theory.
Once again, Kettler attacks the credibility of Armstrong’s incriminating and accusatoiy statements because of Armstrong’s various versions of events and because Armstrong later recanted his sworn statement. It was the jury, however, that had tire duty to weigh the evidence and determine the credibility of the witnesses. It was not bound to accept any one witness’ version of the facts; and having convicted Kettler, the jury is presumed to have believed the State’s evidence and to have drawn from it all reasonable inferences favorable to the State. See State v. Aikens, 261 Kan. 346, 392, 932 P.2d 408 (1997), rev'd, on other grounds by State v. Warrior, 294 Kan. 484, 277 P.3d 111 (2012); see also State v. Moody, 223 Kan. 699, 704-05, 576 P.2d 637 (evidence, which stood or fell on whether jury believed coconspirator who was primaiy witness against defendant, was sufficient to support defendant’s conviction of conspiracy to commit aggravated burglary and aggravated rob-beiy), cert. denied 439 U.S. 894 (1978). Further, this court does not reevaluate credibility a jury has already determined. See State v. Peppers, 294 Kan. 377, 401, 276 P.3d 148 (2012); Raskie, 293 Kan. at 920; State v. Ward, 292 Kan. 541, Syl. ¶ 12, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). It is not the function of this court to reweigh evidence, resolve evidentiaiy conflicts, or make witness credibility determinations. Lowrance, 298 Kan. at 296.
The evidence, when viewed in the light most favorable to the prosecution, was sufficient for a rational factfinder to find Kettler guilty of conspiracy to commit first-degree murder.
Prosecutorial Misconduct
Next, Kettler contends the prosecutor committed misconduct during closing argument by misstating the legal definition of “premeditation” and thereby deprived him of a fair trial. A misstatement of the law during a prosecutor’s closing argument can deny a defendant a fair trial when “the facts are such that the juiy could have been confused or misled by the statement.” State v. Phillips, 295 Kan. 929, Syl. ¶ 5, 287 P.3d 245 (2012).
Standard of Review
To determine whether a prosecutor committed reversible misconduct, we first decide if the challenged comment exceeded die wide latitude of language and manner afforded the prosecutor when discussing the evidence. If the comment was outside these bounds, we next decide if the comment constitutes reversible error, which requires a finding that the comment was so prejudicial as to deny the defendant a fair trial. State v. Bridges, 297 Kan. 989, 1012, 306 P.3d 244 (2013); State v. Tosh, 278 Kan. 83, 85, 91 P.3d 1204 (20114).
In analyzing the second step of whether the defendant was denied a fair trial, we consider three factors: “(1) whether the misconduct was gross and flagrant; (2) whether it was motivated by prosecutorial ill will; and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors.” No one factor is controlling. Bridges, 297 Kan. at 1012; Tosh, 278 Kan. at 93.
Before the third factor can ever override the first two factors, an appellate court must be able to say that the State can meet the harmlessness tests of both K.S.A. 60-261 and Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386 U.S. 987 (1967). Bridges, 297 Kan. at 1012 (citing Tosh, 278 Kan. at 97). In Chapman, the United States Supreme Court directed that a constitutional error can be deemed harmless only if “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 the trial in light of the entire record, i.e., where there is no reasonable possibility that the error contributed to the verdict.” Ward, 292 Kan. 541, Syl. ¶ 6. If the error does not violate the United States Constitution, the harmless error analysis is defined in K.S.A. 60-261, and the test is whether “there is a reasonable probability that the error did or will affect the outcome of the trial in light of the entire record.” 292 Kan. 541, Syl. ¶ 6.
Even though we have applied this dual harmless error standard, we also have observed that as a practical matter the result of the harmless error evaluation depends on the outcome of the constitutional standard. “[Bjoth tire constitutional and nonconstitutional error clearly arise from the very same acts and omissions,” and the constitutional standard is more rigorous. Thus, the State necessarily meets the lower statutory standard under K.S.A. 60-261 if it meets the higher constitutional standard. See Bridges, 297 Kan. at 1015 (citing State v. Herbel, 296 Kan. 1101, 1111, 299 P.3d 292 [2013]).
Alleged Misconduct
Here, the alleged prosecutorial misconduct occurred when the prosecutor was describing the elements of premeditated first-degree murder and stated:
“There are basically three elements to that offense that the State needs to prove to you. First, that tire tolling of James Dyer, Jr. was done intentionally, that means purposeful, wilfully, but not by accident. And we’ll get into each one of these and how the evidence applies to these, but I guess in summary, James Dyer did not die by accident. He was intentionally murdered by these individuals. The second ... is that it was done with premeditation. What that means is .. . that they thought it over before they went in and did it. That's what premeditation is. There’s even an instruction about what does that mean, thought it over, you could think it over, just a half second before you actually fired the fatal shot, that’s true, but that’s for you to decide whether or not they thought it over before they actually committed the act.
“Again, I would suggest that the evidence does support the fact that these three, along with Mr. Armstrong, clearly drought over what drey were about to do before they went to Rhonda Shaw’s house. This was no happenstance. This was no accident. This is sometíring drese four individuals drought about as they made their way over to Rhonda Shaw’s house. It’s the reason they went there, was to get James Dyer.” (Emphasis added.)
Misstatement of Lato
Kettler, in an identical argument to the one advanced by code-fendants Williams and Phillips, contends that the prosecutor’s “half second” description of premeditation is analogous to stating premeditation can be instantaneous—language this court disapproved in State v. Holmes, 272 Kan. 491, 33 P.3d 856 (2001). Kettler makes a persuasive point.
In Holmes, the victim was shot and killed in a struggle over a gun. The defendant was convicted of premeditated first-degree murder, although there was no evidence of premeditation before the struggle began. During closing argument, the prosecutor stated that “ ‘premeditation can occur in an instant. That’s the law in the State of Kansas.’ ” 272 Kan. at 497. Then, in rebuttal the prosecutor stated that “ ‘premeditation can take a second. ... It can happen in a second.’ ” 272 Kan. at 497. This court determined that the prosecutor’s statements constituted a deliberate misstatement of the law, noting the prosecutor had been cautioned in the jury in structions conference before argument began to avoid such comments. Cumulatively, tire lack of evidence of premeditation before the struggle began and the deliberate nature of the comments convinced this court that the prosecutor’s misconduct created reversible error. 272 Kan. at 499-500.
Consistent with Holmes, this court has repeatedly warned prosecutors about going outside of the approved language in PIK Crim. 3d 56.04(b) and making comments that are analogous to stating premeditation can occur in the same instant as the act that results in a death. See, e.g., State v. Hall, 292 Kan. 841, 850-52, 257 P.3d 272 (2011) (prosecutor’s statement during closing argument that defendant could have formed premeditation after the pull of the first trigger, “because remember, he pulls four times,” improperly stated the law and essentially suggested that premeditation could have been formed instantaneously); State v. Cosby, 285 Kan. 230, 248, 169 P.3d 1128 (2007) (“We have consistently found reversible misconduct when a prosecutor states or implies that premeditation can be instantaneous.”); State v. Morton, 277 Kan. 575, 585, 86 P.3d 535 (2004) (reversible error for prosecutor to imply premeditation can be instantaneous, based on closing argument that “ ‘[o]ne squeeze of a trigger is all it takes’ ”); State v. Pabst, 273 Kan. 658, 662, 44 P.3d 1230 (“A discussion of PIK Crim. 3d 56.04[b] in closing argument should avoid any temptation to use a synonym to convey the suggestion of ‘an instant’ without using the actual phrase.”), cert. denied 537 U.S. 959 (2002); State v. Moncla, 262 Kan. 58, 70-73, 936 P.2d 727 (1997) (adding phrase “ ‘it may arise in an instant’ ” to pattern instruction on premeditation was inappropriate; use of such language tended to diminish importance of the element of premeditation).
The State suggests that while the prosecutor’s “half second” reference was inartful, the prosecutor was merely trying to convey that the jury could find the decision to kill Dyer occurred in half a second, and it was the jury’s duty to determine if that constituted “thinking it over beforehand.” This argument is not persuasive. The prosecutor’s statement informed the jury that the “beforehand” period could be a half second. Further, the descriptive term “half second” is obviously a shorter period of time than the “ ‘in a sec ond’ ” phrase disapproved in Holmes and is not significantly different than saying “ ‘in an instant’ ” or in a “ ‘squeeze of a trigger,’ ” as disapproved in several cases. As in those cases, Kettler’s jury could have taken the prosecutor’s choice of words as suggesting that premeditation can be instantaneous with the homicidal act. As such, we conclude the prosecutor misstated the law.
Not Reversible Error
With prosecutorial misconduct established, it is necessary to determine whether tire error requires reversal under the second analytical step. As we have discussed, this requires a harmlessness inquiry using three factors. See Bridges, 297 Kan. at 1012.
In assessing the first of these factors of whether gross and flagrant conduct occurred, a misstatement of the law can be considered gross and flagrant, especially if the statement is contraiy to a longstanding rule of law. See State v. Kemble, 291 Kan. 109, 121-25, 238 P.3d 251 (2010) (factors determining gross and flagrant conduct include repeated comments, emphasis on improper point, planned or calculated statements, violation of a well-established rule, and violation of a rule designed to protect a constitutional right); accord State v. Brown, 295 Kan. 181, 214, 284 P.3d 977 (2012). Given our past advice that prosecutors should be especially careful in discussing the meaning of the term “premeditation,” we conclude the misconduct was gross and flagrant.
Nevertheless, we do not find evidence of ill will. A prosecutor’s ill will is often “ ‘reflected through deliberate and repeated misconduct.’ [Citation omitted.]” State v. Inkelaar, 293 Kan. 414, 430, 264 P.3d 81 (2011). These circumstances do not exist in this case. The misstatement was isolated and surrounded by correct statements of law. As shown in the portion of the transcript quoted above, both before and after the reference to the “half second,” the prosecutor mentioned correctly that premeditation means “thought it over” beforehand. The prosecutor argued that the evidence showed that Kettler and the others thought over the killing of Dyer before they arrived at Shaw’s house. Given the context of the statement, we conclude the prosecutor was not motivated by ill will.
Turning to the third factor, whether the evidence against the defendant was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of the jurors, we conclude there is no reasonable possibility the misstatement affected the verdict. The State’s theory of premeditation was that Williams, Kettler, Phillips, and Armstrong went into Shaw’s house with the intent to kill Dyer. In fact, immediately upon making the misstatement, the prosecutor said that Kettler and the others went to Shaw’s house “to get” Dyer and they thought about getting him on their way from the liquor store to the house. This theme was repeated and emphasized throughout the closing argument. As we have discussed, there was considerable evidence to support this theory, which distinguishes this case from Holmes, 272 Kan. at 499-500, where this court reversed a defendant’s conviction because of a similar statement. Further, the State did not discuss or emphasize any version of the facts that would suggest any of the defendants premeditated the murder in an instant or a half second.
In addition, the trial court properly instructed the jury on the definition of premeditation and instructed the jury that arguments of counsel were not evidence. Specifically, the trial court gave PIK Crim. 3d 56.04(b) (premeditation) in conjunction with the instruction on first-degree murder prior to the parties’ closing arguments. See State v. Jamison, 269 Kan. 564, 573, 7 P.3d 1204 (2000) (“Consistent with our past decisions, we conclude that the definition of premeditation’ in PIK Crim. 3d 56.04[b] adequately conveys the concept that ‘premeditation’ means something more than the instantaneous, intentional act of taking another’s life.”). The trial court also gave PIK Crim. 3d 54.05 (responsibility for crimes of another), which informed the jury, in part, that “[a] person who, either before or- during it commission, intentionally aids or abets another to commit a crime with intent to promote or assist in its commission is criminally responsible for the crime committed.” See K.S.A. 21-3205(1) (discussed previously). Because the evidence suggested that Kettler was not the one who fired the shots at Dyer, the application of this instruction to the facts meant that the jury had to find that the premeditation occurred before Ket-tler’s conspirators began the fight.
Because we presume the juiy followed the court’s instructions, the court’s guidance served to mitigate any potential harm caused by the prosecutor’s statements. See State v. Huddleston, 298 Kan. 941, 956, 318 P.3d 140 (2014) (“Although these instructions do not give the prosecutor a free pass on misconduct, they are appropriate considerations when evaluating whether a jury was misled.”); State v. Hebert, 277 Kan. 61, 85, 82 P.3d 470 (2004) (prosecutor’s improper comment regarding premeditation was not reversible error when there was no evidence that prosecutor deliberately misstated the law, jury was given proper PIK instruction on premeditation, and jury was told that arguments of counsel were not evidence); State v. Doyle, 272 Kan. 1157, 1165-66, 38 P.3d 650 (2002) (no indication prosecutor purposefully misstated the law and evidence of premeditation was strong); Jamison, 269 Kan. at 572-73 (prosecutor’s misstatement on the law on premeditation was not reversible error when the jury was properly instructed on the law).
In light of the jury instructions, the facts of the case, and the theme of the prosecutor’s argument that tire premeditation had occurred before Kettler and the others arrived at Shaw’s house, we conclude the jury would not have been confused or misled by the prosecutor’s misstatement. The State has demonstrated beyond a reasonable doubt that the prosecutor’s misstatement did not affect the outcome of the trial and does not require reversal.
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The opinion of the court was delivered by
JOHNSON, J.:
Kevin L. Brown sought revenge against Otis Bol-den for perceived sexual transgressions against his girlfriend, Ja-lessa Bonner, and her friend, Kiara Williams. After enlisting the help of his cousin, Quartez Brown (hereafter Quartez), the two men proceeded to Bolden’s apartment, accompanied by Bonner and Williams, where the Brown cousins entered the apartment, assaulted Ashley Green with a firearm, and fatally shot Bolden. All four participants were prosecuted. Bonner entered into a plea agreement, while the other three were convicted at separate jury trials. In this case, Brown was convicted of felony murder, aggravated burglary, and aggravated assault.
Quartez, Williams, and Brown all appealed their convictions, and the oral arguments in their cases were conducted on the same day, albeit the three appeals do not raise any common issues. Some of Brown’s issues on appeal are not easily grasped, so we take the liberty of beginning by simply reciting his stated issues on appeal from his appellate brief:
“A. The district court never gained jurisdiction to convict Mr. Brown of felony murder nor aggravated burglary because he was not bound over for aggravated assault against Otis Bolden as the underlying intent element of aggravated burglary.
“B. Mr. Brown was charged with all crimes as an aider/abettor, when there was no evidence to support the alternative means of being the principal or an aider and abettor.
“C. Aiding and abetting the commission of a criminal act is a separate and distinct crime from acting as the principal in the commission of a criminal act.
“D. The instructions given to the jury regarding the felony murder charge and the underlying felony were flawed, deficient and ineffective.
“E. Mr. Brown’s convictions for felony murder and burglary are invalid due to the State’s failure to amend the Information and for the district court’s unwarranted narrowing of the charges in the jury instructions.”
Factual and Procedural Overview
Hours before Bolden was shot, he and his friend, Reader Watley, had driven Bonner, Williams, and their friend, Rika Evans, to a club in Wichita. After the club closed, Bolden and Watley took the three women to Bolden’s apartment. At the apartment, Bonner formed the belief that Bolden had participated in her gang rape some 2 years prior, and she asked to leave. Bolden and Watley proceeded to drive the three women to Bonner’s home, although Williams would return to the apartment to spend the night with Bolden, Watley, and Green, who was picked up on the return trip.
The next morning, Brown went to the women’s home, and Williams returned from Bolden’s apartment. At some point, Bonner told Brown that she believed Bolden had been one of her rapists and she shared that the night before Bolden had belittled Brown. Also, Williams allegedly reported that Bolden and Watley had sexually assaulted her during the previous evening by touching her inappropriately. Angered by that information, Brown called Quar-tez, who came to the women’s house, where they planned their revenge against Bolden. There were varying statements about the planned action, such as beating Bolden, robbing him, or just talking to him.
Bonner, Williams, Brown, and Quartez left in an automobile, en route to Bolden’s apartment. The Brown cousins had never been to Bolden’s apartment, so Bonner and Williams helped direct them there. On the way, the cousins stopped at a house to obtain two guns in the event that Bolden was armed or another man was present in the apartment.
Upon arriving at the apartment, Bonner and Williams remained in the car, while the Browns entered the unlocked apartment with their guns drawn. They first encountered Green, who was walking from tire bedroom into the kitchen. At gunpoint, they ordered Green to the ground and demanded the location of Bolden. The two men proceeded to the bedroom indicated by Green and found Bolden in his bed. Although Bolden was shot multiple times, he managed to jump through his bedroom window and run down the sidewalk before collapsing. Police were summoned by witnesses who discovered Bolden on the sidewalk. He died shortly after arriving at the hospital.
Green fled the apartment and returned home, where she contacted the police and informed them that Williams and Watley had been at the apartment the previous evening. Information gleaned from Watley’s interview led police to Brown, Bonner, and Williams, who all eventually confessed to being part of the incident that led to Bolden’s death.
Brown, Quartez, Bonner, and Williams were all originally charged with the felony murder of Bolden and the aggravated assault of Green. With respect to the felony-murder charge, Brown’s complaint alleged that Brown ldlled Bolden “while in the commission of, attempt to commit, or flight from, an inherently dangerous felony, to wit: Aggravated Burglary, Aggravated Assault, Aggravated Battery or Aggravated Robbery.” The preliminary hearings for Brown, Bonner, and Williams were conducted together, and, at the conclusion, the prosecutor requested two additional counts: one alternative count of first-degree premeditated murder and one count of aggravated burglaiy. With regard to the aggravated burglary charge, the prosecutor stated: “Aggravated burglary is when they went in the house and they committed the aggravated assaults or an aggravated battery, or murder for that matter, as the underlying felony when they entered that residence.”
Prior to the district court’s binding over of Brown, his trial counsel requested to be informed of which felonies were incorporated into the felony-murder charge and indicated a belief that, if there was to be more than one underlying felony, they should be charged. The district court responded that the felony-murder charge was supported by evidence of aggravated burglary, aggravated assault, and aggravated battery. The district court explained that the aggravated burglary charge was based on the evidence that “they entered the apartment expecting it to be occupied by at least Otis Bolden and [it] happened to be occupied by Ashley Green.” The judge concluded, with respect to Brown, that
“the evidence would support probable cause for premeditated, first degree murder as an alternative to Count I. Ashley Green said both of the black males entered the apartment, pointed guns at her and told her to get on the floor, so aggravated assault, there is probable cause to believe he committed that offense, as well as the aggravated burglary, as found. There is probable cause and I will bind him over for an arraignment on the Amended Information.”
Consequently, an information was filed against Brown containing the added charges of first-degree premeditated murder, in the alternative to felony murder, as well as aggravated burglary. For the felony-murder count, the information stated, in relevant part, that Brown
“did dren and there unlawfully kill a human being, to wit: Otis L. Bolden Jr. ... , while in the commission of, attempt to commit, or flight from, an inherently dangerous felony, to wit: Aggravated Burglary, Aggravated Battery and/or Aggravated Assault as defined in K.S.A. 21-3436 and amendments thereto, by inflicting injuries from which said Otis L. Bolden Jr. . . . did die on April 26, 2010.”
For the aggravated burglary count, the information alleged, in relevant part, that Brown
“did then and there unlawfully, intentionally, knowingly and without authority, enter into or remain within a structure ... in which there were human beings, to-wit: Ashley R. Green and Otis L. Bolden Jr., with the intent to commit a felony, to-wit: Aggravated Battery, Aggravated Assault and/or Murder in the First Degree, therein.”
Brown had a separate jury trial, at which his defense to the felony murder was that he only shot at Bolden because he believed Bol-den was reaching for a gun on a nearby nightstand or dresser. The juiy instruction on the elements of felony murder required that the jury find, inter alia, that the killing of Bolden was done while in the commission of an aggravated burglary. Then, the aggravated burglary instruction required the jury to find that Brown entered the apartment with the intent to commit an aggravated assault. In turn, the elements instruction for aggravated assault involved the claim that Brown used a deadly weapon to intentionally place Bol-den in reasonable apprehension of immediate bodily harm.
The jury found Brown guilty of felony murder, aggravated burglary, and aggravated assault, and the district court imposed prison terms for the crimes on December 9, 2011, prompting a notice of appeal that same day. However, restitution was left open at the time of sentencing, and a final order of restitution was not filed until May 18, 2012, with the journal entry of judgment being filed on May 23, 2012.
Premature Notice of Appeal
As a preliminary matter, the State’s brief questioned whether this court has jurisdiction to entertain Brown’s appeal. It noted that, generally, an appellate court’s jurisdiction is limited to final judgments; Brown’s sentencing was not final when the notice of appeal was filed because of the pending determination on the amount of restitution; and, based upon State v. Hannebohn, 48 Kan. App. 2d 921, Syl. ¶ 3, 301 P.3d 340 (2013), tire premature notice of appeal deprived this court of jurisdiction to hear the appeal. But the State has acknowledged through a Supreme Court Rule 6.09 (2013 Kan. Ct. R. Annot. 50) letter that Hannebohn s holding was abrogated by State v. Hall, 298 Kan. 978, Syl. ¶ 4, 319 P.3d 506 (2014), where this court held:
“In a criminal matter, a notice of appeal that seeks review of a conviction and a sentencing yet to be completed lies dormant until the final judgment including the complete sentence is pronounced from the bench, at which point the notice of appeal becomes effective to endow the appellate court with subject matter jurisdiction.”
Accordingly, we will proceed to consider tire merits of this appeal.
Jurisdiction to Convict on Felony Murder and Aggravated Burglary
Brown states his first issue as a question of the district court’s jurisdiction to convict him of felony murder and aggravated burglary.
Standard of Review
“[T]he determination of jurisdiction involve[s] questions of law over which this court’s scope of review is unlimited.” State v. Burnett, 297 Kan. 447, 451, 301 P.3d 698 (2013). More specifically, the question of the sufficiency of an information to confer jurisdiction is a question of law over which this court has unlimited review. State v. Hooker, 271 Kan. 52, 60, 21 P.3d 964 (2001).
Analysis
Brown’s arguments on this issue present a moving target, beginning with an initial challenge to the sufficiency of the charging document before transitioning to a complaint about the insufficiency of the evidence and the lack of findings by the judge at the preliminary hearing. Moreover, as the State points out, Brown is raising this combination issue for the first time on appeal. We will do our best to break down the issue into tractable pieces.
Sufficiency of the Charging Document
Brown begins by pointing to State v. Belcher, 269 Kan. 2, 8, 4 P.3d 1137 (2000), for the proposition that a district court lacks jurisdiction to convict a defendant of a crime that is not specifically stated in the information or is not a lesser included offense of a charged crime, regardless of the evidence presented at trial. We agree with that proposition.
The complaint or information is the “jurisdictional instrument.” State v. Hawkins, 285 Kan. 842, 848, 176 P.3d 174 (2008). If a crime is not specifically stated in the information or is not a lesser included offense of the charged crime, the district court does not have jurisdiction to convict a defendant of the crime, regardless of the evidence presented. State v. Johnson, 283 Kan. 649, 652, 156 P.3d 596 (2007). “A judgment for an offense where the court is without jurisdiction to decide tire issue is void.” 283 Kan. at 652.
The complaint or information “must contain ‘a plain and concise written statement of the essential facts constituting the crime charged.’ K.S.A. 22-3201(b),” and the charging document is generally sufficient when it is “ ‘drawn in the language of tire statute.’ ” State v. Rojas-Marceleno, 295 Kan. 525, 533-34, 285 P.3d 361 (2012). Moreover, an “information is sufficient if it clearly informs tire defendant of the precise offense of which he or she is accused so that the accused may prepare a defense and so that a judgment thereon will safeguard the accused from a subsequent prosecution for the same offense.” State v. Hall, 246 Kan. 728, 754, 793 P.2d 737 (1990), oven-uled in part on other grounds Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003). In other words, an information or complaint is sufficient to invest the trial court with jurisdiction over a charged crime if it alleges all of the elements of the offense, if it sufficiently apprises the defendant of the facts against which he or she must defend, and if it is specific enough to safeguard the defendant against a subsequent prosecution for the same offense.
Here, die amended information charged Brown with felony murder, stating that he killed Bolden “while in the commission of, attempt to commit, or flight from, an inherently dangerous felony,” followed by the listing of alternative underlying felonies, i.e., aggravated burglary, aggravated battery, and/or aggravated assault. In turn, the amended information’s charge of aggravated burglary stated that Brown unlawfully, intentionally, knowingly, and without authority entered into or remained within a structure in which there were human beings, Ashley Green and Otis Bolden, with the intent to commit a felony—aggravated battery, aggravated assault, and/or murder in the first degree. Both charges in the amended information are drawn in the language of the respective statutes defining the crimes. See K.S.A. 21-3401(b) (felonymurder); K.S.A. 21-3716 (aggravated burglaiy). Moreover, the information adequately notifies Brown of what he was accused of doing, so that he could not be prosecuted again for the same felony murder and aggravated burglary. ■'
Brown’s suggestion that the information had to specifically identify Bolden as the victim of the aggravated assault in order to support the aggravated burglary charge to in turn support the felony-murder charge is without merit. The State merely needed to prove that Brown entered into the apartment with the intent to commit an inherently dangerous felony; it did not have to convict him of the underlying felony. Cf. Hall, 246 Kan. at 749 (defendant need not be charged with or convicted of underlying felony to be convicted of felony murder). In short, the amended information was sufficient to invest the district court with jurisdiction to prosecute Brown for felony murder and aggravated burglary.
Challenges to the Preliminary Hearing
Brown attempts to argue that the information was defective based upon what transpired at the preliminaiy hearing. Specifically, he contends that the State failed to present evidence at the preliminary hearing that Brown intended to commit an aggravated assault against Bolden. Further, he argues that the district court did not bind over Brown for felony murder and aggravated burglary based upon the specific theory that the underlying felony to support tire burglary was the aggravated assault against Bolden. For support in the record, he points to the district court’s statement that the only aggravated assault charge involved Green. Brown’s argument that shortcomings at the preliminary hearing prevented the district court from acquiring jurisdiction overtire criminal prosecution fails on multiple levels, both factual and legal.
First, Brown provides no authority to support the concept that a facially valid charging document can be rendered jurisdictionally defective because of latent defects in the preliminary hearing proceedings. See State v. Tague, 296 Kan. 993, 1001, 298 P.3d 273 (2013) (failure to support a point with pertinent authority akin to failing to brief issue). To tire contrary, “the sufficiency of a preliminary examination may be challenged only by a motion to dismiss or grant appropriate relief filed in the district court. State v. Lashley, 233 Kan. 620, 624, 664 P.2d 1358 (1983). Failure to challenge in this manner amounts to waiver.” State v. Butler, 257 Kan. 1043, 1059-60, 897 P.2d 1007 (1995); see also State v. Jones, 290 Kan. 373, 381, 228 P.3d 394 (2010) (“As a general principle, after an accused has gone to trial and has been found guilty beyond a reasonable doubt, any error at the preliminary hearing stage is considered harmless unless it appears that the error caused prejudice at trial.”)- Obviously, if defects or shortcomings in tire preliminary hearing proceedings can be waived, then they cannot be considered jurisdictional errors; subject matter jurisdiction cannot be conferred upon a district court by consent, waiver, or estoppel. See Associated Wholesale Grocers, Inc. v. Americold Corporation, 293 Kan. 633, 639, 270 P.3d 1074 (2011), cert. denied 133 S. Ct. 158 (2012).
Next, we note that Brown did not challenge the preliminary hearing proceedings with a motion to dismiss or another appropriate motion in the district court. On appeal, he does not allege that any preliminary hearing error caused him prejudice at trial, and the record would not support such an allegation. Accordingly, Brown has waived his challenge to the preliminary hearing.
Nevertheless, we pause to note that Brown appears to believe the preliminary hearing must produce evidence of guilt beyond a reasonable doubt. But to the contrary, the preliminary hearing is “the method utilized in Kansas to satisfy the Fourth Amendment right of a person to be free from extended pretrial restraint of liberty without a judicial determination of probable cause to support the detention or restriction on liberty.” Jones, 290 Kan. at 379. The statute governing preliminary hearings, K.S.A. 22-2902(3), provides: “If from the evidence it appears that a felony has been committed and there is probable cause to believe that a felony has been committed by the defendant, the magistrate shall order the defendant bound over to the district judge having jurisdiction to try the case.” See State v. Berg, 270 Kan. 237, 238, 13 P.3d 914 (2000). “ Tn order to prove probable cause, there must be evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused’s guilt.’ ” State v. Huser, 265 Kan. 228, 230, 959 P.2d 908 (1998) (quoting State v. Bockert, 257 Kan. 488, 492, 893 P.2d 832 [1995]). Even if the evidence is weak, if some evidence tends to disclose the charged offense was committed by the defendant, the case should go to a juiy. Berg, 270 Kan. at 238.
Here, the record contained sufficient evidence from which the court could reasonably infer that there was probable cause to believe that Brown did enter the apartment with an intent to threaten Bolden with bodily harm. Indeed, even though there was evidence to bind over Brown on the aggravated assault of Green based upon what happened after the entry into the apartment, it was obvious that Brown’s intent when entering the apartment was to scare, beat, rob, or kill Bolden, not Green.
In sum, Brown is not entitled to relief on his jurisdictional challenge because the information charging felony murder and aggravated burglary was not defective, Brown failed to timely challenge the sufficiency of the preliminary hearing, there were no infirmities in the preliminary hearing proceedings, and the evidence at the preliminary hearing was sufficient to establish probable cause that Brown entered Bolden’s apartment with the intent to commit an aggravated assault upon Bolden.
Alternative Means
Brown makes two alternative means arguments based upon the allegations that he committed the charged crimes either as the principal or as an aider and abettor. First, he contends that being an aider and abettor for a crime is an alternative means of committing the crime, separate and distinct from committing the crime as a principal. Second, he contends that the aiding and abetting statute, K.S.A. 21-3205, provides six alternative means by which a person can aid and abet another to commit the crime. We recently rejected the first argument in State v. Betancourt, 299 Kan. 131, Syl. ¶ 1, 322 P.3d 353 (2014). The second argument is not an actual issue in this case.
Standard of Review
“Issues of statutory interpretation and construction, including issues of whether a statute creates alternative means, raise questions of law reviewable de novo on appeal.” State v. Brown, 295 Kan. 181, Syl. ¶ 6, 284 P.3d 977 (2012).
Analysis
In Betancourt, this court considered whether aiding and abetting was an alternative means, specifically deciding “whether the aiding and abetting statute adds distinct, material elements to the crime of first-degree murder, or whether it’s a factual circumstance that would prove the crime.” 299 Kan. at 137. The court concluded that the aiding and abetting statute does not add distinct material elements to the definition of a charged crime and therefore does not create alternative means of committing that crime. 299 Kan. at 139-41; see State v. Soto, 299 Kan. 102, Syl. ¶ 2, 322 P.3d 334 (2014).
Brown provides no new argument or authority to persuade us to reconsider our reasoning in Betancourt. The cases upon which Brown relies, State v. Cato-Perry, 48 Kan. App. 2d 92, 284 P.3d 363 (2012), and State v. Boyd, 46 Kan. App. 2d 945, Syl. ¶ 5, 268 P.3d 1210 (2011), were both overruled by Betancourt. Accordingly, Brown’s first alternative means argument fails.
Brown’s second argument relies upon the statutory language of K.S.A. 21-3205: “(1) A person is criminally responsible for a crime committed by another if such person intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime.” Pie contends that “aid, abets, advises, hires, counsels or procures” are six alternative means by which one can aid and abet.
While Brown presents an interesting theoretical question, it is not germane to this case. The jury in this case was instructed as follows:
“A person who, either before or during its commission, intentionally aids another to commit a crime with intent to promote or assist in its commission is criminally responsible for the crime committed regardless of the extent of the defendant’s participation, if any, in the actual commission of the crime.” (Emphasis added.)
In State v. Wright, 290 Kan. 194, 201, 224 P.3d 1159 (2010), we said that “Timley required sufficiency of evidence to support each alternative means upon which a jury is instmcted, in order to protect a criminal defendant’s right to a unanimous jury verdict.” (Emphasis added.) See also Brown, 295 Kan. at 194 (focus of alternative means rule is on jury instructions). Because the jury was instructed on only one of the statutory “means” by which a person can aid and abet, jury unanimity was guaranteed, and there was no sufficiency of the evidence question presented.
Aiding and Abetting as a Separate Crime
Brown argues that aiding and abetting is a separate and distinct crime because it contains a separate element to be proved, i.e., the specific intent to aid and abet. Accordingly, he claims that instructing the jury on aiding and abetting was tantamount to charging him with a crime that was not contained in the information upon which he was tried. Brown also argues that the State’s evidence only established that he acted as a principal; there was no evidence that he aided and abetted another to commit the crimes.
Standard of Review
Our resolution of the question of whether aiding and abetting is a distinct crime presents a question of law, subject to de novo review. Cf. State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011).
Analysis
Brown acknowledges this court’s long-standing precedent holding that aiding and abetting is not a distinct crime and therefore it need not be charged separately. See State v. Robinson, 293 Kan. 1002, 1038, 270 P.3d 1183 (2012); State v. Amos, 271 Kan. 565, Syl. ¶ 2, 23 P.3d 883 (2001); State v. Green, 254 Kan. 669, 686, 867 P.2d 366 (1994); State v. Pennington, 254 Kan. 757, Syl. ¶ 4, 869 P.2d 624 (1994); State v. Goering, 225 Kan. 755, 758, 594 P.2d 194 (1979); State v. Smolin, 221 Kan. 149, 152, 557 P.2d 1241 (1976). Brown argues that this line of cases is wrong because aiding and abetting requires proof of a separate element. But this argument has been raised and rejected before.
Just recently, in Betancourt, the defendant argued that “the elements contained in the aiding and abetting statute add material elements to the definition of the crime,” making the elements of the two theories of guilt different. 299 Kan. at 138. In rejecting the argument, Betancourt opined:
“The more accurate approach is to consider the language of the aiding and abetting statute to be an assignment of criminal responsibility, rather than the creation of a distinct element of a crime. K.S.A. 21-3205 makes a person equally liable for crimes of others if there is a concerted effort to carry out the crime. It does not, for instance, establish two different crimes, one consisting of shooting a victim and the other consisting of handing a gun to someone for the purpose of shooting a victim. Similarly, it does not establish two different crimes for committing a murder, one committed by firing a gun and the other by driving the getaway car. Instead, the legislative intent, as expressed in die language of the aiding and abetting statute, is to make each individual who engages in a concerted action to cany out a crime equally culpable.” 299 Kan. at 139.
The court concluded: “[A]s this court has previously decided, aiding and abetting does not constitute a separate crime in this state. It does not have to be charged separately prior to trial.” 299 Kan. at 140.
Brown proffers nothing new that would persuade us to depart from our well-established precedent.
Felony-Murder Jury Instruction
Brown points out that the felony-murder instruction directed the juxy to determine whether Bolden was killed during the commission of aggravated burglary. In turn, the aggravated burglary instruction asked the jury to find that Brown “knowingly entered a building” without authority, omitting tire “remain within” language that was used in the information, so the jury was not instructed that the aggravated burglary was a continuing offense. Therefore, Brown argues, the felony-murder instruction was clearly erroneous because it failed to instruct the jury to malee the factual finding as to whether the underlying felony of aggravated burglary had been abandoned or completed prior to the killing. He contends that tire jury could have found that his entry into the apartment completed the aggravated burglary crime, so the shooting of Bolden was not effected during the commission of the aggravated burglary.
Standard of Review
Brown raises this issue as an erroneous jury instruction claim. Fie suggests that the trial court should have, sua sponte, deviated from the pattern instructions and given the jury a modified felony-murder instruction that clarified, in some unspecified manner, that the jury could make the determination of whether the underlying felony had been abandoned or completed when the shooting occurred.
Brown did not object to the felony-murder instruction that was given at trial, triggering the clear-error rule. See K.S.A. 22-3414(3); State v. Dobbs, 297 Kan. 1225, 1237, 308 P.3d 1258 (2013). In determining whether an instruction is clearly erroneous, the court first determines whether the instruction was erroneous, which is a question of law subject to de novo review. Betancourt, 299 Kan. at 135. If die court determines the instruction was erroneous, then it must determine whether reversal is required because it is firmly convinced the jury would have reached a different result without the error. Reversibility is subject to unlimited review and is based on the complete record. The defendant must establish clear error under K.S.A. 22-3414(3). Dobbs, 297 Kan. at 1237.
Analysis
Brown’s counsel acknowledges that in State v. Bailey, 292 Kan. 449, 455-56, 255 P.3d 19 (2011), he made virtually the same argument that he propounds here, to no avail. Bailey held that the pattern instruction on felony murder “properly instructs the jury and fairly states the law” on the issue of “[wjhether an underlying felony has been completed prior to the commission of a felony murder.” 292 Kan. at 455-56.
Brown’s attempt to distinguish Bailey on the basis that it was an alternative means case is likewise unavailing. The question that Bailey answered in the affirmative was whether the pattern instruction properly informed the jury that “felony murder is committed only when the murder occurs during the commission of the underlying felonies.” 292 Kan. at 457. We continue to find that the pattern instruction for felony murder adequately advises the juiy about the temporal relationship between the killing and the underlying felony.
Brown was free to argue to the jury, consistent with the pattern felony-murder instruction that was given, that he had completed his aggravated burglary when he shot Bolden and, therefore, the murder was not effected during the commission of the inherently dangerous felony. Accordingly, the instruction was not erroneous, much less clearly erroneous.
Narrowing Charges in Jury Instructions Without Amending Information
Finally, Brown presents another inscrutable issue based upon the variance between the crime elements instructions and the information with respect to the felony-murder and aggravated burglary charges. The information’s charge of felony murder contained three alternative means for committing the underlying felony: aggravated burglary, aggravated battery, and/or aggravated assault. The jury instruction on the elements of felony murder only listed the underlying felony of aggravated burglary. The information’s charge of aggravated burglary contained three alternative means for committing the underlying felony: aggravated battery, aggravated assault, and/or murder in the first degree. The jury instruction on the elements of aggravated burglary limited the underlying felony to the aggravated assault of Bolden. Brown claims that it was error to narrow die crime elements in the jury instructions without first amending the information.
Standard of Review
For a standard of review, Brown recites the harmless error reversibility test of whether the error affected the outcome of the trial. Although Brown’s argument on this issue blends a discussion of instructions, charging document amendments, and alternative means, we discern that his overarching complaint is that the crime elements jury instructions were erroneous for failing to match the information. Given that Brown did not object to the jury instructions, the clearly erroneous standard of review is used once again.
Analysis
Brown bases his complaint on some loose language in our cases stating that “[t]he general rule [is] that instructions should be confined to issues made by the pleadings and should not be broader or narrower tiran tire information.” (Emphasis added.) State v. Booker, 197 Kan. 13, 15, 415 P.2d 411 (1966); see State v. Trautloff, 289 Kan. 793, 802, 217 P.3d 15 (2009); State v. Hemby, 264 Kan. 542, 548, 957 P.2d 428 (1998); State v. Turbeville, 235 Kan. 993, 997, 686 P.2d 138 (1984). Booker cites to 23A C.J.S., Criminal Law § 1311, p. 759 as support for tire “general rule” that instructions should not be broader or narrower than the “issues” contained in the pleadings. 197 Kan. at 15.
But that general proposition cannot mean that tire jury must always be instructed on all alternative means contained in the charging document. Not only would it confuse the jury to be instructed on a means for which there was no trial evidence, it would violate the super sufficiency rule from Wright, which requires sufficient evidence “to support each alternative means upon which a jury is instructed.” 290 Kan. at 201. Reversal for insufficient evidence in an alternative means case is avoided by the district court when it only instructs the jury on the means for which there was evidence presented at the trial. Indeed, we have encouraged trial judges to perform that gatekeeping function of matching the jury instructions to tire evidence presented at trial. Cf. State v. Grissom, 251 Kan. 851, 892, 840 P.2d 1142 (1992) (where evidence insufficient to support alternative legal dieory of liability, court should remove that theory from jury’s consideration).
Accordingly, the narrowed jury instructions on the elements of felony murder and aggravated burglary were not erroneous. That determination obviates the need for us to find that the jury would not have reached a different result with all of the alternative means in die crime elements instructions, no matter how obvious such a conclusion might seem.
Brown’s alleged requirement that an amendment to the information must be a condition precedent to the trial court’s giving a jury instruction listing less than all of the alternative means contained in the information would place form over substance. The purpose of an information is twofold: to inform the defendant of the nature of the accusation against him or her and to provide the district court with jurisdiction. See State v. Jones, 290 Kan. 373, 383-84, 228 P.3d 394 (2010); State v. Johnson, 283 Kan. 649, 652, 156 P.3d 596 (2007). One cannot intuit an obvious prejudice where a defendant has been informed that he or she must be prepared to defend against three alternative means at trial and then, after die conclusion of the trial the accusation is reduced to only one means for jury deliberation. The State did not add any new charges or present any new facts that would serve to surprise Brown. Cf. State v. Wade, 284 Kan. 527, 541-42, 161 P.3d 704 (2007) (“[Wjhere a jury is instructed to convict a defendant in a manner or upon a theory which was not identified in the charging document, an analysis of whether the defendant had sufficient notice to pass due process muster is in order.”).
Brown appears to argue that it was prejudicial to eliminate the error of unsupported alternative means because he could have used that error to seek reversal of his convictions. But it would be coun-terintuitive to say that a defendant is prejudiced by the court’s taking action to make his or her trial more fair. We decline to do so here.
In conclusion, Brown has failed to show any grounds for the reversal of his convictions and, consequently, we affirm the jury’s verdicts.
Affirmed.
Moritz, J., not participating.
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The opinion of the court was delivered by
Nuss, C.J.;
Cheron T. Johnson appeals the district court’s summary denial of his motion for postconviction DNA testing under K.S.A. 21-2512. But Johnson does not deny his involvement in the crimes for which he was convicted. So test results could not produce exculpatory evidence required as a precondition for testing authorization under the statute. We therefore affirm the denial.
Facts and Procedural History
In 2000, Johnson and his codefendant Anthony Payne had armed themselves with steak knives and gone to Taurus Hampton’s home, purportedly to play video games. Johnson and Payne eventually stabbed Hampton more than 30 times in his chest and throat. Plampton died at the scene.
Johnson and Payne stole several PlayStation CDs, approximately $4,000 worth of crack cocaine, and an unspecified amount of cash from Hampton s home. Payne confessed, telling detectives both he and Johnson stabbed Hampton and took the items.
On a recovered PlayStation CD, police found a fingerprint matching Johnson s and a blood spot matching Hampton’s blood type. Bloody clothing and boots were identified by witnesses as belonging to Johnson. DNA analysis revealed the blood on Johnson’s boots matched Hampton’s DNA. And the pattern on the soles of Johnson’s boots matched a boot print found in blood at the crime scene.
Johnson pled nolo contendere to first-degree premeditated murder and aggravated robbery. The district court sentenced him to a hard-25 life sentence for the murder and a concurrent term of 71 months for the aggravated robbery.
Eleven years after the crimes to which Johnson pled nolo con-tendere, he filed a pro se motion for postconviction DNA testing under K.S.A. 21-2512. In support of his motion, Johnson alleged:
“1. Defendant states that there is a knife which was collected and tagged as evidence and presented as the murder weapon in this case.
“2. Defendant states that DNA would prove the victim’s blood and other DNA evidence is on the same knife.
“3. The evidence on the knife is exculpatory evidence and can exonerate defendant of guilt for the crime he has been convicted for.
“4. Defendant states that in the interest of justice the State must be ordered to provide the knife and submit it for DNA testing.” (Emphasis added.)
The State opposed Johnson’s motion. It argued postconviction DNA testing could not produce noncumulative, exculpatory evidence to exonerate Johnson because his identity had never been an issue. At the hearing on Johnson’s motion, the district court declined to grant an evidentiary hearing or appoint counsel to represent Johnson. It then summarily denied the motion, and Johnson appealed. We have jurisdiction under K.S.A. 2013 Supp. 22-3601(b)(3) (life sentence imposed). See Makthepharak v. State, 298 Kan. 573, 574, 314 P.3d 876 (2013) (jurisdiction over appeal of postconviction motion lies with court that had jurisdiction to hear original appeal); State v. Denney, 278 Kan. 643, 643, 101 P.3d 1257 (2004) (proper jurisdiction over motion for postconviction DNA testing where sentence of life imprisonment imposed).
More facts will be added as necessary to the analysis.
Analysis
Issue: The district court did not err by summarily denying John-sons motion for postconviction DNA testing.
Johnson argues that the district court erred by summarily denying his motion for postconviction DNA testing because the record did not conclusively demonstrate testing could not produce noncumulative, exculpatory evidence. More specifically, he contends “testing could have revealed that a third party was present during the incident, possibly lessening [his] culpability and impacting his sentence.”
The State first responds that we should not consider Johnson’s argument about an unidentified third party because he raises it for die first time on appeal. If we do consider the argument, the State contends he is not entitled to postconviction DNA testing. Even if evidence of a third party’s DNA were discovered, it would not exculpate Johnson because he has never disputed his own involvement in the crimes.
Standard of review
The summary denial of a motion for DNA testing presents a question of law over which we exercise unlimited review. State v. Lackey, 295 Kan. 816, 819, 286 P.3d 859 (2012) (citing Wimbley v. State, 292 Kan. 796, 810, 257 P.3d 328 [2011]). Further, it requires interpretation of K.S.A. 21-2512, and statutory interpretation is also a question of law allowing our unlimited review. 295 Kan. at 819-20 (citing State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 [2010]).
Discussion
As a threshold matter, we must determine whether Johnson’s arguments have been properly preserved for our review. As a general rule, a party may not raise a new legal theoiy for the first time on appeal. Trotter v. State, 288 Kan. 112, 124, 200 P.3d 1236 (2010). But if a party’s arguments to the district court were suffi ciently broad to encompass his or her appellate arguments, we will consider them. See State v. Levy, 292 Kan. 379, 383-85, 253 P.3d 341 (2011). In making this determination, we liberally construe Johnson’s pro se motion to give effect to the substance of his arguments. See Bruner v. State, 277 Kan. 603, 605, 88 P.3d 214 (2004) (liberally construing pro se request for DNA testing).
The State correctly notes Johnson failed to specifically address its preservation issue on appeal. But we conclude his arguments to the district court were broad enough to encompass his appellate arguments. Although his language is somewhat ambiguous, we read his assertion “the victim’s blood and other DNA evidence is on the same knife” to include an argument that third-party DNA evidence would be discovered by postconviction testing. Accordingly, we conclude that Johnson’s arguments are properly before us. So we now turn to their merits.
Postconviction DNA testing is governed, by K.S.A. 21-2512, which provides in relevant part:
“(a) Notwithstanding any other provision of law, a person in state custody, at any time after conviction for murder in the first degree as defined by K.S.A. 21-3401, [prior to its repeal] . . . may petition the court that entered the judgment for forensic DNA testing (deoxyribonucleic acid testing) of any biological material Ürat:
(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.
“(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 ivrongfully convicted or sentenced." (Emphasis added.)
Johnson focuses on subsection (c). He argues the district court erred by concluding “[t]he DNA testing requested by defendant is not likely to prove he did not commit the crime. The evidence would produce cumulative evidence that would not be exculpatory.” (Emphasis added.)
We start our analysis by acknowledging evidence is exculpatory when it simply “ ‘ “tends to disprove a fact in issue which is material to guilt or punishment.” ’ ” Lackey, 295 Kan. at 823 (quoting State v. Aikins, 261 Kan. 346, 382, 932 P.2d 408 [1997] [defining exculpatory in the context of required disclosures under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)], disapproved on other grounds State v. Warrior, 294 Kan. 484, 277 P.3d 1111 [2012]). We have similarly emphasized that evidence need not be exonerating to be exculpatory but must only “ ‘tend[] to establish a criminal defendant’s innocence.’ ” (Emphasis added.) 295 Kan. at 823 (quoting Black’s Law Dictionary 637 [9th ed. 2009]). And we have “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.” 295 Kan. at 823 (citing Bruner, 277 Kan. at 606).
In continuing our analysis, we bear in mind that “DNA testing is intended to confirm or dispute the identity of individuals involved in or at the scene of a purported crime.” State v. Smith, 34 Kan. App. 2d 368, 373, 119 P.3d 679 (2005), rev. denied 280 Kan. 990. So DNA evidence may be exculpatory if it tends to establish innocence based on an individual’s identity.
But Johnson has not challenged die State’s physical or DNA evidence linking him to the crime scene. Nor does he claim the State misidentified him or wrongfully alleged he committed the crimes. Instead, he merely makes a conclusory assertion that noncumulative, exculpatory evidence is on the knife in the form of DNA from an unidentified third party.
We acknowledge Johnson is not required to make specific assertions about how the DNA testing would produce noncumulative, exculpatory evidence. See Bruner, 277 Kan. at 606. But any DNA evidence from the knife would not “ ‘ “tend[] to disprove a fact in issue” ’ ” because Johnson’s presence and involvement in the crimes has never been in issue. Lackey, 295 Kan. at 823 (quoting Aikins, 261 Kan. at 382). So any third-party DNA evidence found there would not exculpate Johnson from his undisputed guilt. As the Court of Appeals stated in Smith:
“Here, the fact that Smith engaged in intercourse and oral sodomy with the victim in this case has never been in dispute. We fail to comprehend any possibility that DNA testing could assist in supporting a defense of consensual conduct or otherwise exculpate Smith. Accordingly, the district court did not err in its determination that testing should be denied.” 34 Kan. App. 2d at 373-74.
We also reject Johnson’s argument that evidence on the knife of a third party’s DNA would be grounds to reduce his sentence. See K.S.A. 21-2512(c) (contemplating DNA evidence exculpatory as to petitioner’s sentence). We have held only in rare circumstances that coperpetrators are relevant to determining a particular defendant’s sentence. See, e.g., State v. Bailey, 251 Kan. 527, 531, 834 P.2d 1353 (1992) (district court abused its sentencing discretion by refusing to consider sentence of codefendant convicted of identical crimes but sentenced to 15 fewer years’ imprisonment). We have instead emphasized that an individual’s personal culpability is the paramount factor in his or her sentence regardless of any codefendants’ culpability in the crimes charged. See State v. Davis, 256 Kan. 1, 34-35, 883 P.2d 735 (1994).
When the 2001 court imposed Johnson’s current sentence, it was aware Johnson committed these crimes with Payne. And it based the sentence on Johnson’s personal culpability. Johnson makes no specific argument for how evidence of yet another perpetrator would justify reducing his sentence other than the unsupported claim it would possibly lessen his culpability and impact his sentence. But our independent review of the record reveals no indication the district court failed to properly consider Johnson’s culpability and impose an appropriate sentence. Consequently, we conclude new DNA evidence demonstrating the presence of an unidentified third party at the crime scene would not justify reducing Johnson’s sentence.
Because DNA testing could not produce exculpatory evidence impacting Johnson’s conviction or sentence, we conclude the district court properly denied his motion. See K.S.A. 21-2512(c).
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The opinion of the court was delivered by
Beier, J.:
Defendant Edward D. Laurel appeals from his convictions and sentences for first-degree murder and criminal discharge of a firearm at an occupied building. He challenges the district court judge’s denial of his motion for new trial and his sentence to life without parole for 25 years rather than 20 years.
Factual and Procedural Background
Teresa Anima heard a loud noise outside of her Wichita house shortly before 6 a.m. on June 20, 2010, and woke her husband, Jose. Teresa and Jose saw two men looking into the windows of a house direcdy across the street from theirs—one wearing a white jersey and the other wearing a red jersey. Seconds later, the two men started shooting at the front door of the house across the street. Bullets struck and killed a 13-year-old boy inside.
The Animas’ daughter dialed 911, and responding officers were informed drat one of the shooters was a Hispanic male wearing a white jersey. Minutes later, a patrol vehicle passed a green Jeep with a driver matching that description. The patrol vehicle turned and began to follow the Jeep. When the Jeep voluntarily pulled over to the side of the road, dre officer inside the patrol vehicle turned on its overhead lights. The officer then directed the occupants to get out of the Jeep. The driver, Eli Betancourt, was the first to emerge, followed by his brother, Alejandro, and then by Gregory Patton. During a field lineup, witnesses identified Eh as one of the shooters. Neither Alejandro nor Patton was wearing a red jersey, and officers did not find a red jersey in the Jeep. The officers also found no guns were in die Jeep.
After officers took Eli, Alejandro, and Patton into custody, the three were separated and interviewed. Detective Thomas Fatidn interviewed Patton. For more tiian 2 hours, Patton told the detective that he had been asleep in the Jeep and denied any involvement in the shooting. When an officer entered the interview room and told Patton tiiat he was going to be charged with first-degree murder, Fatidn would eventually testify, “[Patton’s] demeanor changed. He talked different. He broke down a little bit. And he began to change his story.”
Patton then confessed that he had been at a party with Eh, where many of the attendees were gang members. Patton was drinking and became intoxicated, and, near dawn, he fell asleep in the Jeep. When he awoke, he saw Eli, Alejandro, and a “dude in [a] red shirt” talking outside the Jeep in front of a white house. The three then got into the Jeep witii Patton, at which point he saw that the man wearing the red shirt had a gun. The four drove to the victim’s house, and, while Patton and Alejandro waited in the Jeep, the two otiiers got out and fired into the home. Alejandro then drove the Jeep to pick up the two shooters. The four returned to the white house where they had been earlier and dropped off the man in the red shirt.
Patton said he did not know the individual in the red shirt, but he had seen him talking witii Eh at the party. When presented witii a photo array, Patton identified Laurel as the man in the red shirt.
At Laurel’s trial on charges of first-degree murder and criminal discharge of a firearm at an occupied building, Patton’s testimony tracked his statements during his police interview. He also said that Eli had told him at the party about a plan to retaliate against someone who had fought with another brother of Eli. Patton testified that he did not know when Laurel entered the Jeep that the foursome was setting out to retaliate. It was not until the group drove past the house and Laurel pointed it out that Patton realized they were going to “run up to the house and shoot it.” Patton also testified that the group went past the house in the Jeep two more times before stopping to let Eli and Laurel get out. The 13-year-old murder victim was not the intended target.
Patton confirmed before Laurel’s juiy that he had secured a favorable plea agreement in exchange for his testimony against Eli, Alejandro, and Laurel. Patton pleaded guilty to second-degree murder, and the State joined his request for a dispositional departure to probation. On cross-examination, Laurel’s counsel repeatedly emphasized that Patton’s plea agreement would allow him to avoid a life sentence and receive probation.
The jury was presented with three options to convict Laurel on the first-degree murder charge.
“Theory 1(a) We, the jury, unanimously find the defendant guilty of murder in the first degree on the theory of premeditated murder.
“Theory 1(b) We, tire juiy, unanimously find the defendant guilty of murder in the first degree on the theory of felony-murder.
“Theory 1(c) We, the jury, unable to agree under Theory 1(a) or 1(b), do unanimously find the defendant guilty of murder in the first degree on the combined theories of premeditated murder and felony murder.”
The jury chose Theory 1(c) on the first-degree murder. It also convicted Laurel on the criminal discharge count.
Laurel filed a motion for new trial, arguing that he had become aware of new evidence. He had received an in-house, inmate-to-inmate letter or “kite” from Sean Windsor, which said Patton “lied in order to get his plea.” Specifically, the late said: “I was gonna tell you . . . that I was in pod 5 with Greg Pattons rat ass & you coulda called me as a witness that he told me you wasn’t there but had to lie to get a plea.” The district judge held an evidentiaiy hearing on the motion.
At the hearing, Windsor testified that he and Patton had been housed together in the Sedgwick County Detention Facility. His first of two conversations with Patton occurred when Patton approached and confided in him about his case. Patton apparently had overheard Windsor talking, and it had sounded like Windsor “knew a little bit about the legal system.” Windsor testified that Patton had told him that he was drunk on the night of the shooting and did not remember anything that had happened. According to Windsor, Patton also said that “the ldd Eddie that’s charged, my codefendant, he wasn’t with us, didn’t have nothing to do with nothing.”
During a second conversation, Windsor said, Patton told him about being offered a plea deal in exchange for his testimony against his codefendants. Windsor asked Patton how he could testify against anyone if he did not remember what had happened, and Patton replied: “[F]or probation, I will lie.”
Cross-examination of Windsor focused on his habits as a “jailhouse lawyer.” The prosecutor inquired about several handwritten motions Windsor had drafted for other inmates, and Windsor admitted that he had offered to file a motion on behalf of Laurel based on ineffective assistance of counsel as a “stall tactic.” He also admitted that he had written a motion for Alejandro and that the two were friends.
The prosecutor also inquired about a letter, apparently in Windsor’s handwriting, in which Windsor had instructed one of his cod-efendants on how to testify during Windsor’s trial. The letter told the codefendant to say that an individual had pointed a gun at her, and it included a drawing of a gun with the instruction: “Tell the cop it looked like this gun.” Windsor denied wilting the letter.
The prosecutor then asked Windsor about his 31 convictions for crimes of dishonesty. The convictions included felony and misdemeanor thefts, burglary, forgery, unlawful use of an identification card, obstruction of legal process, unlawful use of a financial card, and identity theft.
In response to further cross-examination questions, Windsor admitted that he had not informed anyone other than Laurel or Alejandro about his conversation with Patton, tie also admitted that he had refused to talk with a detective who was investigating Patton s alleged statements.
Against the recommendation of his attorney, Eli also testified at the motion hearing. Although he had told investigators that Laurel was involved in the shooting, and he had testified consistently with that statement at his own trial, he changed his story at the motion hearing. He testified that Laurel was not present on the night of the shooting.
Patton also testified at the motion hearing and denied knowing Windsor.
After hearing counsels’ arguments, the district judge first addressed Windsor’s testimony: “[I]f I w[ere] to assess, and I’ll assess, the credibility of Mr. Windsor on a scale of 1 to 10, 1 being the lowest, 10 being the highest, I would judge Mr. Windsor’s credibility to be zero. It doesn’t even reach to 1. He has no credibility.”
The judge then turned to Eli’s testimony, saying: “[Bjased on his own admission!,] I, again on a scale of 1 to 10, 1 being the lowest, 10 being the highest, Mr. Eli Betancourt has zero credibility.” The district judge reasoned that Eli had perjured himself, either at his own trial or in the motion hearing, and his mutually exclusive accounts of Laurel’s involvement in the shooting made him unbelievable.
Finally, the judge said: “[0]f the three witnesses who testified, [Patton’s] testimony is believable, whereas the other two are not.” Given his credibility assessments, the district judge denied the motion for new trial.
At the sentencing that followed, the prosecutor and defense counsel agreed that the juiy’s selection of a combined theory for the first-degree murder conviction required imposition of a felony-murder sentence rather than a premeditated murder sentence, which meant the possibility of Laurel’s parole in 20 years rather than 25 years. But the district judge said: “[W]hen you intermix or blend the elements of the crime of first-degree, premeditated murder and felony murder, you do not lose the element of premedi tation[.] Rather you combine all the elements together as one combined element of those crimes.” The district judge concluded that “[t]hese combined elements” allowed a sentence of life imprisonment with no possibility of parole for 25 years. Finally, he said that the sentence “no doubt . . . ultimately will invite an appeal,” but he could not “in good conscience]” sentence Laurel, one of the shooters, to a life sentence with a 20 year minimum, while Alejandro, who had stayed in the Jeep during the shooting, had received a life sentence with a 25-year minimum. The judge gave Laurel a consecutive sentence of 13 months’ imprisonment for the criminal discharge of a firearm conviction.
Laurel’s notice of appeal read: “Notice is hereby given by the Defendant, Edward Laurel,... of Mr. Alvarez’s intention to appeal the motions, conviction, judgment, sentence, and all adverse judgments, rulings and findings of fault entered by the District Court in the above case to the Court of Appeals of the State of Kansas.”
Discussion
Notice of appeal
Before reaching the merits of Laurel’s arguments on appeal, we address the State’s assertion that Laurel’s notice of appeal “is defective to such an extent as to cause this court to question its own jurisdiction.”
Statutory interpretation and the determination of jurisdiction present questions of law over which this court’s scope of review is unlimited. State v. Burnett, 297 Kan. 447, 451, 301 P.3d 698 (2013).
K.S.A. 2011 Supp. 60-2103(b) provides that “[t]he notice of appeal shall specify the parties taking the appeal; shall designate the judgment or part thereof appealed from, and shall name the appellate court to which the appeal is taken.” We liberally construe K.S.A. 60-2103(b) “ ‘to assure justice in every proceeding,’ ” State v. Wilkins, 269 Kan. 256, 270, 7 P.3d 252 (2000) (quoting State v. Griffen, 241 Kan. 68, 70, 734 P.2d 1089 [1987]); but there is still a substantive minimum below which a notice cannot fall and still support jurisdiction. See, e.g., State v. Coman, 294 Kan. 84, 90, 273 P.3d 701 (2012) (notice of appeal for sentence cannot be con strued to support appeal of conviction); State v. G.W.A., 258 Kan. 703, 707, 906 P.2d 657 (1995) (State’s appeal from judgment of acquittal insufficient to confer jurisdiction over question reserved); Gates v. Goodyear, 37 Kan. App. 2d 623, 626-29, 155 P.3d 1196 (notice of appeal citing two specific district court rulings insufficient to confer jurisdiction over issues not addressed in those rulings), rev. denied 284 Kan. 945 (2007).
The State argues that Laurel’s notice of appeal is insufficient to confer jurisdiction because of three shortcomings: (1) the reference to a “Mr. Alvarez,” who was not a party in this case; (2) the naming of the wrong appellate court; and (3) a failure to include “a statu-toiy citation for the authority to directly appeal” to this court. The State does not argue that it was misled, surprised, or prejudiced by any of these relatively superficial errors.
Observing that a notice of appeal need not be overly technical or detailed, we have generally considered whether the State has been prejudiced by a defendant’s timely filed but otherwise faulty notice of appeal. See 269 Kan. at 270 (State did not show surprise, prejudice); Griffen, 241 Kan. at 70 (State not misled, surprised, prejudiced by notice of appeal).
In Wilkins, we stated:
“Given that the notice of appeal ‘should not be overly technical or detailed’; that the ‘State does not generally take any significant action when receiving a notice of appeal’; that the typographical error in this case ‘does not harm or even affect the State in any appreciable way’; that the State has not shown surprise or prejudice; that this courtis to construe K.S.A. 60-2103(b) liberally to assure justice in every proceeding; and that actions should be just, speedy, and inexpensively determined, we hold that the ‘judgment of sentence’ language found in Wilkins’ notice of appeal sufficiently conferred jurisdiction on tire Court of Appeals to determine the substantive issues raised . . . .” 269 Kan. at 270.
The State cites our recent State v. Berreth, 294 Kan. 98, 273 P.3d 752 (2012), opinion and argues that we now apply a more exacting analysis to an appellant’s notice of appeal. In Berreth, we held that the State could not change the sole statutory jurisdictional basis it had asserted in its notice of appeal. 294 Kan. at 112. The Berreth opinion, however, is distinguishable because it addressed the State’s notice of appeal rather than a defendant’s. We noted the distinction in Berreth:
“[T]he State’s statutory authority to appeal, when compared to the criminal defendant’s, is very limited. “While the State only has limited appeal rights, a criminal defendant has a nearly unlimited right of review.’ State v. Boyd, 268 Kan. 600, 605-08, 999 P.2d 265 (2000); see also State v. Walker, 260 Kan. 803, 806, 926 P.2d 218 (1996) (noting that appeals by the State in criminal cases are tightly restricted by statute).” 294 Kan. at 110.
Our opinion in Berreth did not substantially alter the quality of this court’s review of a criminal defendant’s notice of appeal.
The State first alleges insufficient notice of appeal based on a typographical error. In die body of the notice of appeal, it identified a “Mr. Alvarez” where one would expect to see “Mr. Laurel” instead. Considering the fact that the notice was properly captioned, we are unpersuaded that the State was “harm[ed] or even affected] ... in any appreciable way” by the typographical error. See Wilkins, 269 Kan. at 270 (discussing typographical error in notice of appeal).
Next, the State points out that Laurel’s notice of appeal was directed “to the Court of Appeals of the State of Kansas.” Again, the State does not argue that it was misled or disadvantaged by Laurel’s identification of the incorrect appellate court. See Alliance Mutual Casualty Co. v. Boston Insurance Co., 196 Kan. 323, 326-27, 411 P.2d 616 (1966) (absence of “ ‘to the Supreme Court’ ” in notice of appeal not ground for dismissal; irregularity disregarded unless appellee misled). There was never any confusion as to which court would hear Laurel’s appeal. See K.S.A. 2011 Supp. 22-3601(b)(3) (“Any appeal permitted to be taken from a district court’s final judgment in a criminal case shall be taken directly to the supreme court in . . . any case in which a maximum sentence of life imprisonment has been imposed.”).
Finally, the State points to die notice’s failure to cite the statutory basis for Laurel’s appeal. See Supreme Court Rule 2.01 (2011 Kan. Ct. R. Annot. 9) (form of noticé should state ground on which direct appeal permitted). Again, the State does not identify how it was prejudiced by this omission, and we will not hold that it poses a jurisdictional obstacle.
Motion for new trial
This court reviews a district court’s decision on a motion for new trial based on newly discovered evidence for abuse of discretion. State v. Backus, 295 Kan. 1003, 1011, 287 P.3d 894 (2012); State v. Rojas-Marceleno, 295 Kan. 525, Syl. ¶ 11, 285 P.3d 361 (2012). Judicial action constitutes an abuse of discretion if the action (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. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). Laurel bears the burden of demonstrating an abuse of discretion. See State v. Hulett, 293 Kan. 312, 319, 263 P.3d 153 (2011).
A court considers two factors when determining whether a new trial is warranted on the basis of newly discovered evidence; (1) whether the new 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. Backus, 295 Kan. at 1011; Rojas-Marceleno, 295 Kan. at 540.
The first fact was not truly in issue at the hearing on Laurel’s motion; the district judge treated the evidence from Windsor and Eli as newly discovered. But materiality and the likelihood that the new evidence could change the result on retrial was in issue.
In Rojas-Marceleno, we explained:
“In determining whether newly proffered evidence is material, tire district court must assess the credibility of the newly proffered evidence. [Citations omitted.] Ordinarily, a new trial is not warranted when the newly proffered evidence merely tends to impeach or discredit the testimony of a witness. [Citations omitted.] [And], even when die evidence tends to impeach die testimony of a witness, the presence or absence of corroborating evidence is another factor to consider in determining whether die newly discovered evidence is of such materiality diat it is likely to produce a different result upon retrial. [Citations omitted.]” 295 Kan. at 540.
In this case, the district judge made specific findings that Windsor and Eli entirely lacked credibility. These findings were supported by Windsor’s lengthy record of convictions for crimes of dishonesty and Eli’s prior contradictory sworn testimony. We do not reassess a district judge’s determination of credibility at a motion for new trial hearing. 295 Kan. at 542-43. Zero credibility means zero materiality and zero chance that the outcome of a retrial would be different.
Moreover, we observe that Patton’s credibility had already been challenged during Laurel’s trial, including vigorous questioning about his drunkenness, the lapse of time between his initial denials and confession, his reaction to being told that he would be prosecuted for first-degree murder, his favorable plea agreement, and his review of discovery material from the prosecution in order to “fill in a lot of the details.” Despite these questions, Laurel’s jury obviously found Patton to be credible, another finding that we do not revisit on appeal. See State v. Qualls, 297 Kan. 61, Syl. ¶ 1, 298 P.3d 311 (2013) (appellate courts do not make witness credibility determinations).
The district judge did not abuse his discretion when he denied Laurel’s motion for new trial.
Sentencing error
The determination of whether a sentence is illegal raises a question of law over which this court has unlimited review. State v. LaBelle, 290 Kan. 529, 532, 231 P.3d 1065 (2010).
“An illegal sentence is a sentence imposed by a court without jurisdiction, a sentence which does not conform to tire statutory provision, either in character or the term of the punishment authorized, or a sentence which is ambiguous with regard to the time and manner in which it is to be served.” 290 Kan. 529, Syl. ¶ 1.
Laurel argues that the district judge erred in sentencing him to the mandatory minimum imprisonment term for premeditated murder rather than the mandatory imprisonment term consistent for felony murder. Although both crimes contemplate a term of life imprisonment, a defendant sentenced for felony murder is parole-eligible after 20 years while a defendant sentenced for premeditated murder is parole-eligible after 25 years. See K.S.A. 22-3717(b)(1) and (2).
Laurel is correct. “ "Where the sentencing court cannot ascertain whether the juiy unanimously convicted the defendant of both pre meditated murder and felony murder, the sentencing court has no authority for sentencing the defendant for premeditated murder.' ” State v. Kesselring, 279 Kan. 671, 684, 112 P.3d 175 (2005) (quoting State v. Vontress, 266 Kan. 248, 264, 970 P.2d 42 [1998], disapproved of on other grounds hy State v. Schoonover, 281 Kan. 453, 133 P.3d 48 [2006]); see State v. Hoge, 276 Kan. 801, 804, 80 P.3d 52 (2003) (divided jury convicted defendant of first-degree murder under combined th eories of premeditated murder and felony murder without reaching agreement on the underlying theory; defendant sentenced to life imprisonment with parole eligibility after 20 years, consistent with felony-murder conviction).
In this case, the jury specifically indicated by choosing Theory 1(c) that its members could not agree on a single theory of culpability on the first-degree murder charge. There were not 12 votes in favor of conviction for premeditated murder. The district judge thus was not permitted to sentence Laurel for that crime, regardless of any sentence imposed by that judge or any other judge on the three other participants in the crime. Laurel’s first-degree murder sentence must be vacated and the case remanded for resent-encing.
Conclusion
The district judge did not abuse his discretion when he denied Laurel’s motion for new trial, but the district judge was without authority to sentence Laurel to life imprisonment with no possibility of parole for 25 years for the first-degree murder conviction. Laurel’s convictions for first-degree murder and criminal discharge of a firearm at an occupied building are affirmed. His sentence for first-degree murder is vacated, and the case is remanded for re-sentencing.
Convictions affirmed, sentences affirmed in part and vacated in part, and case remanded.
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The opinion of the court was delivered by
Beier, J.:
Defendant Loviss Todd appeals his jury convictions and sentence on charges of felony murder, aggravated robbery, aggravated battery, and aggravated assault. Todd raises seven issues: (1) failure to provide a cautionary jury instruction on accomplice testimony; (2) error in the jury instruction on reasonable doubt; (3) failure to instruct the jury on second-degree murder as a lesser included instruction of felony murder; (4) error in tire eyewitness identification jury instruction; (5) prosecutorial misconduct; (6) cumulative trial error; and (7) inclusion of lifetime post-release supervision as part of his life sentence. We affirm Todd’s convictions and vacate the lifetime postrelease supervision portion of his life sentence.
Factual and Procedural Background
Todd’s convictions arose out of events at the Kansas City home of murder victim Vincent Green. Todd and Ayreone Alexander and two others arrived at Green’s home on the morning of December 8, 2008, with the apparent purpose of settling an earlier drug dispute with Keith McFarlane, another occupant of the home. By the time Todd and Alexander and their two companions left the home, Green had been fatally shot multiple times; McFarlane also had been shot and wounded; 4 pounds of marijuana had been taken from a parked car; and McFarlane’s car had been driven away.
At Todd’s trial, tire State called two eyewitnesses: Warren Jones, who had been a guest at the home, and McFarlane. Alexander, who agreed to cooperate with tire State in exchange for reduced charges against her, also testified.
According to Jones, he was watching television and playing video games in the living room of the home when McFarlane received a phone call from someone interested in looking at a used car McFarlane had for sale. McFarlane told Green to answer the door; Todd and Alexander entered; and Todd joined Jones in the living room, where he sat with him on the couch. McFarlane then went outside to get something from his car. At that moment, Todd “stood up and pulled a pistol and told me to get on the ground.” Todd pointed the gun at Green and ordered him onto tire ground as well. Jones complied. Green did not. Instead, Green walked to the back of the house and said, “[B]ro, what are you doing?” Jones then heard three gunshots followed by a male voice saying, “[G]rab the keys to the car.” After a period of time, Jones got up and saw Green’s lifeless body lying face down in the kitchen. McFarlane also had been shot.
McFarlane told a similar story during his trial testimony. He said that he had spoken to Alexander several days before the shooting about a car he had for sale. Alexander stopped by the morning of the shooting and told him she was getting money together for the car. Twenty minutes later, Alexander called and said she wanted to see the car s interior. When she arrived, Todd was with her. McFarlane said he had never seen Todd before. Seconds after McFarlane went outside to check on the car, a man who had been seated in a vehicle parked outside rushed McFarlane and “pulled [a] pistol out on me, grabbed me at the back of my shirt, turned me towards the house[,] and he started walking me back toward the house.” McFarlane then heard a gunshot from inside tire home, and the man who had been in the vehicle pushed McFarlane into the home and shot him. With wounds in his arm and chest, McFarlane ran into the home’s basement. While he paced and bled, McFarlane heard a male voice upstairs scream, “[G]et the keys, get the keys.” Eventually, McFarlane went upstairs, where he saw Green lying on the floor, face down. McFarlane also saw Jones, and the pair started to look for their phones. McFarlane then used Jones’ phone to dial 911.
On cross-examination, defense counsel questioned McFarlane about his failure to identify Todd at the preliminary hearing as the person who had arrived with Alexander. At the preliminaiy hearing, McFarlane had said Todd was the person who marched him back inside and shot him. McFarlane testified at trial that he had been mistaken at the preliminaiy hearing.
Alexander initially faced the same charges as Todd. But she entered into a plea agreement with the State, which required her to testify against Todd and plead guilty to only aggravated robbery and conspiracy to commit aggravated robbery. According to Alexander’s version of events, the encounter at Green’s home had little to do with a used car and had everything to do with a drug dispute.
Alexander testified that she had purchased marijuana from McFarlane “several times” in the 2 months leading up to the shooting. Three days before the shooting, she brought Todd to Green’s home to buy marijuana from McFarlane. Later, Todd complained to Alexander that he had been shorted by 28 grams on the sale. Todd called Alexander several times to complain; eventually Alexander stopped answering his calls.
On the morning of the shooting, Alexander testified, she went to Green’s house twice. The first time she paid McFarlane for marijuana he had sold to her the day before. And she told Me- Farlane that Todd had been complaining about being cheated. McFarlane told her to bring Todd over and “they’d get it straightened out.”
Alexander said she then went to a Kansas City, Missouri, gas station, where she met with Todd; his cousin, Lukie Todd; and Terry Allen. Alexander got out of the car she had been in and joined the three men in their car. Allen was in the driver’s seat, and Todd and Lukie were in the backseat “smoking marijuana and snorting cocaine.” All three men were armed with handguns, and they were talking about getting Todd’s money back from McFarlane. Alexander told them that McFarlane had invited Todd over to Green’s home.
The foursome then traveled to Green’s home. Alexander called McFarlane and told him that she and Todd were on their way. On arrival, Alexander and Todd went into the home while the two others waited in the car. Green answered the door, and Jones and McFarlane were inside. When McFarlane went outside to get something out of his trunk, Alexander watched him through window blinds. She saw Lukie approach McFarlane with a gun, grab him, and direct him back inside the home. As McFarlane and Lukie entered the door, Todd pulled out his gun and told everyone to get on the ground. Alexander said that both Jones and Green got on the ground, but Green “kept moving and he got back up and he was telling [Todd] he didn’t have anything to do with it and he ran to the kitchen.” Green “had his hands up saying he didn’t have anything to do with it.” As Green made his way to the kitchen, Todd shot him in the back and Lukie shot him in the front. At that point, McFarlane “broke loose” and Lukie shot him as well. McFarlane then ran out of Alexander’s sight. During the gunfire, Alexander said, she stood by “in shock.”
After the shooting stopped, Todd went outside, but then came back in to get McFarlane’s keys. When the keys were found, Todd drove away in McFarlane’s car. Lukie took a package containing 4 pounds of marijuana from a car parked in the yard, and then he and Allen and Alexander left in the car in which they had arrived.
Todd relied on an alibi defense at trial. Two of his aunts and a cousin testified on his behalf. One aunt testified that Todd and Lukie were both at her home until 7:15 a.m. on the morning of the shooting. Another aunt, who lived across from the gas station where Alexander said she had met with Todd on the morning of the shooting, testified that she did not see Alexander, Todd, or Lukie that morning. She conceded on cross-examination that she did not “sit in the window eveiy minute of the day.”
Todd’s cousin, Tylise Horton, testified that Todd and Lukie were with her on the morning of the shooting until they drove her to school at 11 a.m. She said they picked her up again at 12:20 p.m. Defense counsel relied on this testimony to argue that Todd did not have enough time between 11 and 12:20 to have committed the crimes at Green’s home. On cross-examination, tire prosecutor questioned Horton on why she had made no previous statement to the police about Todd’s whereabouts on the morning of the shooting. The prosecutor also asked Horton if she had ever been on probation and, if so, for what offense. Horton asked the district court judge, “Do I have to answer that?” When the district judge said, “Go ahead,” Horton said she had been on probation for “stealing.” On redirect, defense counsel asked Horton if she would He to protect Todd. She said she would not. On recross, the prosecutor asked her, “You wouldn’t lie, but you would steal?” Horton replied, “Actually, I wasn’t stealing. I was an accessory.”
At the jury instructions conference, Todd’s counsel did not object to or request any jury instructions other than those proposed by the district judge.
During the first part of his closing argument, the prosecutor addressed the evidence in support of Todd’s alibi:
“If Tylise Horton s testimony failed, then all the alibi defense failed. You can find from the evidence that her testimony did fail. You can determine to give her testimony no weight at all. . . . [T]he other two alibi witnesses were nice people, but their testimony just simply did not cover the timeframe during which the events happened. If—they would have corroborated Tylise, perhaps, if Tylise’s testimony had not failed.
“You can find that she lacks credibility from her bias, from the fact that she has established that she will deceive others. Theft is a crime of deception. She did not want to tell you about it. Remember, she asked the judge if she had to tell you. She would have preferred to deceive you about her own criminal history. And then she dotted the [i] when she told you that she was an accessory, that she had helped another person commit a crime of deception.
“She was trying to help Loviss Todd, she was not credible and you can discount her testimony completely and find this defendant guilty of felony murder, aggravated robbery, aggravated batteryf,] and aggravated assault.”
In die rebuttal portion of his closing, the prosecutor returned to the subject of Horton’s testimony:
“If [Horton] is coming here to provide compelling evidence from—about a relative of hers that she feels deeply for, and it’s a relevant question, where is other corroboration about that?
“Much like what the State showed you in terms of corroboration from its witnesses. ... [W]e talked about how she must have known these things for two, two and a half years and didn’t go banging on every door possible to tell the authorities, hey, you have the wrong guy.
“So you can find that she lacks credibility.”
Accomplice Witness Instruction
Todd’s first claim of error is that the district judge should have given a cautionary instruction on testimony from accomplice witnesses. The instruction, PIK Grim. 3rd 52.18, reads: “An accomplice witness is one who testifies that [she] was involved in the commission of the crime with which the defendant is charged. You should consider with caution the testimony of an accomplice.”
As mentioned above, Todd did not seek this instruction at trial. This means we will not reverse because of its absence unless the omission qualifies as clearly erroneous.
“K.S.A. 22-3414(3) creates a procedural hurdle for a party that fails to object to or request a jury instruction:
“ ‘K.S.A. 22-3414(3) establishes a preservation rule for instruction claims on appeal. It provides that no party may assign as error a district court’s giving or failure to give a particular jury instruction, including a lesser included crime instruction, unless: (a) that party objects before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds for objection; or (b) the instruction or the failure to give the instruction is clearly erroneous. If an instruction is clearly erroneous, appellate review is not predicated upon an objection in the district court.’ [State v. Williams,] 295 Kan. 506, Syl. ¶ 3[, 286 P.3d 195 (2012)].
“The determination of whether an instruction is clearly erroneous employs a two-step process. First, ‘the reviewing court must. . . determine whether there was any error at all. To make that determination, the appellate court must consider whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record.’ 295 Kan. 506, Syl. ¶ 4. If error is found, then we proceed to the second step of assessing whether we are firmly ‘convinced that tire jury would have reached a different verdict had the instruction error not occurred.’ ” State v. Cruz, 297 Kan. 1048, 1066-67, 307 P.3d 199 (2013).
A defendant who fails to request an omitted instruction bears the burden of establishing clear error under K.S.A. 22-3414. State v. William, 295 Kan. 506, 516, 286 P.3d 195 (2012).
Under this rubric, our first task is to determine whether the accomplice witness cautionary instruction was legally and factually appropriate.
Such an instruction is legally appropriate when an accomplice witness testifies, provided the accomplice is not also a codefendant in the trial. See State v. Llamas, 298 Kan. 246, 262-63, 311 P.3d 399 (2013) (requested accomplice testimony cautionary instruction legally appropriate); State v. Tapia, 295 Kan. 978, 996, 287 P.3d 879 (2012) (unrequested accomplice testimony instruction legally appropriate); but see State v. Crume, 271 Kan. 87, 93, 22 P.3d 1057 (2001) (accomplice instruction never an absolute necessity, subject to judge’s discretion; may properly refuse to give instruction when defendant’s guilt is plain) (quoting State v. DePriest, 258 Kan. 596, 606, 907 P.2d 868 [1995] [quoting United States v. Becker, 62 F.2d 1007, 1009 (2d Cir. 1933)]). Regardless of whether the accomplice witness’ testimony is corroborated, we have held that it is the better practice for a trial judge to give such an instruction. See Tapia, 295 Kan. at 996 (quoting State v. Moore, 229 Kan. 73, 80, 622 P.2d 631 [1981]; citing PIK Crim. 3d 52.18, Notes on Use).
Factual appropriateness in a particular case turns on tire status of the witness at issue. “[T]echnically the term ‘accomplice witness’ applies only when one who has been involved in the commission of a crime is called to testify against another during the course of a trial.” State v. Simmons, 282 Kan. 728, 737, 148 P.3d 525 (2006). Mere presence during the planning or commission of a crime does not make one an accomplice. Llamas, 298 Kan. at 263 (citing, discussing cases). In order to be an accomplice witness within the meaning of PIK Crim. 3rd 52.18, “ ‘the witness must have been involved in the commission of the crime with which the defendant is charged.’ ” Llamas, 298 Kan. at 264 (quoting State v. Davis, 283 Kan. 569, 580, 158 P.3d 317 [2006]; citing, discussing cases).
Here, the State does not contest that Alexander qualified as an accomplice witness at Todd’s trial. She was not a codefendant in his trial. Yet she had been convicted of aggravated robbery and conspiracy to commit aggravated robbery based on her participation in Todd’s alleged crimes. We hold that the district judge’s failure to give the accomplice witness cautionary instruction in these circumstances was error.
The State argues that Todd invited the error by failing to request the instruction. This argument is wholly without merit. The absence of a request for tire instruction means that Todd bears a heavier burden to obtain reversal on appeal-but not that he is entirely foreclosed from pursuing the issue. See K.S.A. 22-3414(3); Williams, 295 Kan. at 518 (although defendant “must assume at least some of the responsibility for the omitted instruction by failing to request it,” that failure alone not invited error).
We next move to the question of whether the omission of the instruction qualified as clearly erroneous and thus reversible. When we analyze
“whether the failure to give an accomplice instruction was reversible error, this court [must] examined the extent and importance of an accomplice’s testimony, as well as any corroborating testimony. Tapia, 295 Kan. at 997; State v. Simmons, 282 Kan. 728, 740, 148 P.3d 525 (2006); see State v. Moody, 223 Kan. 699, 702, 576 P.2d 637 (failure to give accomplice instruction can create trial error, particularly when die accomplice testimony is uncorroborated), cert. denied 439 U.S. 894 (1978).” Llamas, 298 Kan. at 265.
We recognize that
“ ‘no reversible error occurs due to a trial court’s failure to give a cautionary accomplice witness instruction if a witness’ testimony is corroborated by other evidence and the witness’ testimony does not provide the sole basis for a resulting conviction. [Citations omitted.] ....
“ ‘Further, a failure to provide the jury with the cautionary accomplice witness instruction ... is not error when the defendant’s guilt is plain or when the jury is cautioned about the weight to be accorded testimonial evidence in other instructions. [Citation omitted.]’ ” Tapia, 295 Kan. at 997 (quoting Simmons, 282 Kan. at 740).
Todd argues that “Alexander provided the key testimony for the State to obtain a conviction” and that the jury had to believe Alexander’s testimony in order to convict. He minimizes the value of the testimony of Jones and McFarlane; because Jones had never seen Todd before the morning of the shooting, and McFarlane made “contradictory identifications.”
We are not judges of witness credibility. See State v. Jones, 295 Kan. 1050, 1057-58, 288 P.3d 140 (2012). But, from the perspective of substance alone, the testimony of Jones and McFarlane cannot be so lightly dismissed. Although Alexander testified extensively to the circumstances surrounding the shooting and provided context for Todd’s behavior, she was far from the sole basis for Todd’s convictions. Jones also testified about Todd pulling out his gun and ordering him and Green to the floor. Jones told the jury about Green’s failure to comply and Todd shooting Green in the back. McFarlane testified that he saw Todd enter the home and then heard a gunshot. Jones and McFarlane also substantially corroborated Alexander’s testimony about Todd leaving in Mc-Farlane’s car.
We also note that the district judge provided the juiy with a general instruction on witness credibility, and that there was overwhelming evidence of Todd’s guilt. See Tapia, 295 Kan. at 998. Both of these factors would have tended to ameliorate the omission of the accomplice witness cautionaiy instruction.
We therefore hold that the district judge’s failure to instruct the jury stiff sponte on the caution it should exercise in evaluating Alexander’s accomplice witness testimony was not clearly erroneous. Todd is not entitled to reversal of his convictions on this issue.
Reasonable Doubt Instruction
Todd next claims that the district judge committed structural error when he used an older version of the PIK Crim. 3d 52.02 jury instruction on reasonable doubt. The instruction read:
“The State has the burden to prove tire defendant is guilty. The defendant is not required to prove he is not guilty. You must presume that he is not guilty unless you are convinced from the evidence that he is guilty.
“The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant guilty.” (Emphases added.)
We have repeatedly rejected the argument that this instruction requires reversal. See State v. Holt, 298 Kan. 531, 539, 314 P.3d 870 (2013); State v. Herbel, 296 Kan. 1101, 1124, 299 P.3d 292 (2013), and Todd has not persuaded us that the result or rationale of these cases was incorrect. He is not entitled to relief on this issue.
Second-Degree Murder Instruction
Todd’s third claim on appeal is that the district judge was required to instruct sua sponte on second-degree intentional murder as a lesser included offense of felony murder. Again, because this lesser included instruction was neither requested nor its omission objected to, we will not reverse on this basis unless there was clear error.
Under K.S.A. 22-3414(3), a trial court must provide lesser included offense instructions “where there is some evidence which would reasonably justify a conviction of some lesser included crime.” At the time of Todd’s trial, however, felony-murder cases were excluded from application of K.S.A. 22-3414(3) under a court-made exception to the general rule. See State v. Becker, 290 Kan. 842, 856-57, 235 P.3d 424 (2010). The exception required lesser included offense instructions in felony-murder cases only if the evidence of the underlying felony was weak, inconclusive, or conflicting. 290 Kan. at 857.
Several caselaw and statutory developments since Todd’s trial affect resolution of this claim on his appeal.
The first of these developments was our decision in State v. Berry, 292 Kan. 493, 254 P.3d 1276 (2011). Berry abandoned the court-made felony-murder exception to application of K.S.A. 22-3414(3). 292 Kan. at 513. It also stated that its holding would be applied to all cases then pending on appeal, which would have included this one. 292 Kan. at 514. Todd’s brief to this court in voked Berry to support his argument that tire district judge’s failure to instruct sua sponte on second-degree murder was clear error.
The legislature quickly responded to our Berry decision, eliminating all lesser included offenses of felony murder by statutory amendment in 2012. See K.S.A. 2013 Supp. 21-5109(b)(1); L. 2012, ch. 157, sec. 2. In this case, the State attempted to invoke this amendment to argue that our Berry decision had been legislatively overruled and that the amendment should be applied retroactively to Todd; it cited an earlier, later-substituted bill, however.
The next development came when we were called upon to interpret the 2012 amendment in the felony-murder case of State v. Wells, 297 Kan. 741, Syl. ¶ 8, 305 P.3d 568 (2013). In that case, we first examined the language of the amendment to determine whether the legislature intended it to be applied retroactively. The general rule is that statutes operate only prospectively unless there is clear legislative language to the contrary. 297 Kan. at 761 (citing State v. Martin, 270 Kan. 603, 608-09, 17 P.3d 344 [2001]; State v. Sisk, 266 Kan. 41, 44, 966 P.2d 671 [1998]). Finding no clue in the text, we evaluated whether the amendment fit an exception to the prospective-only rule for statutes that are merely procedural or remedial rather than likely to prejudice the substantive rights of the parties. Wells, 297 Kan. at 761. Concluding that the amendment was substantive, we held that it was not intended to be applied retroactively. This holding eliminated any need to determine whether retroactive application of the amendment would violate the federal Ex Post Facto Clause. We held defendant Melissa Wells could have invoked the rule of Berry to argue for the appropriateness of lesser included offense instructions on her felony-murder charge. 297 Kan. at 761-62. But, because the record on her appeal did not contain “some evidence reasonably justifying a conviction of some lesser included crime beyond a reasonable doubt,” the district court’s failure to give the instructions was not error. 297 Kan. at 762.
In 2013, the legislature continued what had become a classic interbranch conversation by passing another statutory amendment. See L. 2013, ch. 96, sec. 2. Legislators added subsections (d) and (e) to the definition of murder in the first degree in K.S.A. 2013 Supp. 21-5402. The new subsection (d) reiterated that felony murder had no lesser included offenses. The new subsection (e) stated expressly that the 2013 amendment was a procedural rule to be applied retroactively to any case currently pending.
This is where Todd’s case enters the scene. Although neither he nor the State has filed a supplemental brief or submitted a Rule 6.09 (2013 Kan. Ct. R. Annot. 50) letter to address Wells or the responsive 2013 amendment, and neither counsel addressed these two developments or potential violation of the federal Ex Post Facto Clause at oral argument, we address these developments and this issue to determine whether Todd was entitled to an instruction on second-degree murder.
Our first observation is that Wells does not answer the Ex Post Facto question. In Wells, we ruled only on the initial issue arising when an intervening statutory amendment may apply on appeal to a case tried before the amendment took effect, i.e., did the legislature intend the amendment to be applied retroactively? In the absence of guiding language from the legislature and what we deemed to be a substantive effect of the amendment abolishing lesser included offenses of felony murder, we answered the question “no.”
Now that the legislature’s 2013 amendment has expressly provided for an abolition of lesser included offenses of felony murder to be retroactively applied to cases pending on appeal, the procedural-versus-substantive analysis used in Wells to help us determine legislative intent is unnecessary. Likewise, the legislature’s designation of the 2013 amendment as procedural is as irrelevant as it would have been ineffective. See Collins v. Youngblood, 497 U.S. 37, 46, 110 S. Ct. 2715, 111 L. Ed. 2d 30 (1990) (labeling law “procedural” does not immunize it from ex post facto scrutiny; subtle ex post facto violations no more permissible than overt ones).
With these premises as our baseline, we turn to the question of whether application of the 2013 statutory amendment to reject Todd’s claim that he was entitled to a lesser included instruction on second-degree murder would violate the federal Ex Post Facto Clause.
The legislature alone has the authority to define crimes and prescribe punishments. State v. Beard, 274 Kan. 181, 185, 49 P.3d 492 (2002); State v. Reed, 248 Kan. 792, 798, 811 P.2d 1163 (1991). But this authority and its companion power to explicitly declare a statute retroactive are not unlimited; neither the statute itself nor its retroactive application may offend the federal or state Constitutions. See State v. Barnes, 278 Kan. 121, 129, 92 P.3d 578 (2004) (citing Sammons v. Simmons, 267 Kan. 155, 162, 976 P.2d 505 [1999]).
Article I, § 10, of the United States Constitution states simply that “[n]o State shall. . . pass any ... ex post facto [l]aw.” We havé no echoing or comparable provision in the Kansas Constitution. Contra Doe v. Dept. of Pub. Safety & Corr. Servs., 430 Md. 535, 551-59, 62 A.3d 123 (2013) (electing to invoke Maryland Constitution to provide broader protection than federal Ex Post Facto Clause). We therefore look to precedent interpreting the federal clause.
As we reviewed recently in State v. Prine, 297 Kan. 460, 469, 303 P.3d 662 (2013), the United States Supreme Court has said that the federal clause encompasses:
“1st. Every law that malees an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or malees it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.”’” Stogner v. California, 539 U.S. 607, 612, 123 S. Ct. 2446, 156 L. Ed. 2d 544 (2003) (quoting Calder v. Bull, 3 U.S. [3 Dall.] 386, 390-91, 1 L. Ed. 648 [1798]. .. .’”).
Laws in these categories “ ‘and similar laws . . . are manifestly unjust and oppressive.’ ” Stogner, 539 U.S. at 612 (quoting Calder, 3 U.S. [3 Dall.] at 390-91).
In our 1996 decision in State v. Myers, 260 Kan. 669, 676-77, 923 P.2d 1024 (1996), cert. denied 521 U.S. 1118 (1997), we recognized that the United States Supreme Court had rephrased its formulation of the categories of laws raising ex post facto concerns after Calder was decided. In Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S. Ct. 68, 70 L. Ed. 216 (1925), the Court said:
“ ‘[A]ny statute which punishes as a crime an act previously committed, which was innocent when done, which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex -post facto.’ The constitutional prohibition and the judicial interpretation of it rest upon the notion that laws, whatever their form, which purport to make innocent acts criminal after the event, or to aggravate an offense, are harsh and oppressive, and that the criminal quality attributable to an act, either by the legal definition of the offense or by the nature or amount of the punishment imposed for its commission, should not be altered by legislative enactment, after the fact, to the disadvantage of the accused.”
This led us to conclude:
“In Collins v. Youngblood, 497 U.S. [at 50], the Court re-adopted tire Calder categories, as rephrased in Beazell. Kring v. Missouri, 107 U.S. 221, 228-29, 27 L. Ed. 506, 2 S. Ct. 443 (1882), was overruled to the extent Kring had broadened those categories to include any change which ‘alters the situation of a party to his disadvantage.’.... Ex post facto laws are particularly objectionable because they deprive their object of all notice. See, e.g., Miller v. Florida, 482 U.S. 423, 429-30, 96 L. Ed. 2d 351, 107 S. Ct. 2446 (1987); Weaver v. Graham, 450 U.S. 24, 30, 67 L. Ed. 2d 17, 101 S. Ct. 960, 965 (1981).” Myers, 260 Kan. at 676-77.
In short, retroactively applied legislation that simply “alters the situation of a party to his disadvantage” does not, in and of itself, violate the Ex Post Facto Clause. The disadvantage, to be unconstitutional under the Clause, must fall within one of the categories recognized in Beazell.
In State v. Cook, 286 Kan. 766, 770-71 187 P.3d 1283 (2008), we set forth a comprehensive statement of the purposes served and acts prohibited by the Ex Post Facto Clause:
“The framers of the United States Constitution had three purposes in prohibiting retroactive application of laws. First, they sought to assure that legislative acts give fair warning of their effect and permit individuals to rely on those acts until they are explicitly changed. Second, they sought to restrict governmental power by restraining arbitrary and potentially vindictive legislation. Finally, they sought to uphold the separation of powers by confining the legislature to penal decisions with prospective effect and tire judiciary and executive to applications of existing penal laws. Weaver v. Graham, 450 U.S. 24, 28-29, 67 L. Ed. 2d 17, 101 S Ct. 960 (1981).
“ ‘[T]wo critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, drat is it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it. [Citations omitted.]’ Weaver, 450 U.S. at 29.
“Not only the retroactive criminalization of an act, but also the retroactive increase in the severity of punishment may violate ex post facto prohibitions. ‘The enhancement of a crime, or penalty, seems to come within the same mischief as tire creation of a crime or penalty’ after the fact. Calder v. Bull, 3. U.S. (3 Dall.) 386, 397, 1 L. Ed. 648 (1798). ‘An ex post facto law is one which renders an act punishable in a manner in which it was not punishable when it was committed.’ Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 138, 3 L. Ed. 162 (1810). ‘Critical to relief under tire Ex Post Facto Clause is . . . the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when tire crime was consummated.’ Weaver, 450 U.S at 30.”
See also Prine, 297 Kan. at 469 (quoting Anderson v. Bruce, 274 Kan. 37, 43, 50 P.3d 1 [2002] [Kansas’ two-part restatement of federal prohibition on ex post facto laws requires retroactive application, alteration of “the definition of criminal conduct or [an] increase [in] the penalty by which a crime is punishable.”]). Although we have sometimes described the requirement of alteration in definition or increase in punishment in shorthand as mere “ "disadvantage’ ” to a criminal defendant, see State v. Chamberlain, 280 Kan. 241, 247, 120 P.3d 319 (2005) (quoting Stansbury v. Hannigan, 265 Kan. 404, 412, 960 P.2d 227, cert. denied 525 U.S. 1060 [1998]), we have emphasized that the crucial ""question in evaluating an ex post facto claim is whether the [new] law changes the legal consequences of acts completed before its effective date.” Prine, 297 Kan. at 470 (citing Weaver, 450 U.S. at 31; State v. Armbrust, 274 Kan. 1089, 1093, 59 P.3d 1000 [2002]).
Here, the legislature eliminated all lesser included offenses of felony murder. In doing so, it did not “changef] any of the elements of the crime of [felony murder], or the matters which might be pleaded as an excuse or justification for the conduct underlying such a charge.” Collins, 497 U.S. at 50. It did not make a completed innocent act criminal. It did not increase the potential punishment for an act already criminal. It did not deprive Todd of a defense to the charge of felony murder. See 497 U.S. at 49-50; see also Blair v. Armontrout, 916 F.2d 1310, 1330-31 (8th Cir. 1990) (Mis souri Supreme Court decision, State v. Blair, 638 S.W.2d 739 [Mo. 1982], cert. denied 459 U.S. 1188 [1983], that first-degree murder not lesser included offense of capital murder under new statutory scheme while defendant’s case on appeal applicable without violation of Ex Post Facto Clause; neither definition of capital murder nor accompanying punishment changed between time of murder, time of trial). At all times, Todd had notice that a killing of a fellow human committed in the course of a felony could be prosecuted and punished in Kansas as a first-degree murder under a felony-murder theory. This is exactly what happened.
Under these circumstances, application of the 2013 statutory amendment abolishing lesser included offenses of felony murder to Todd’s case does not violate the federal Ex Post Facto Clause. A second-degree murder instruction would not have been legally appropriate. See State v. Plummer, 295 Kan. 156, 161, 283 P.3d 202 (2012). And the district judge’s failure to give the instruction sua sponte was not error, much less clear error.
Eyewitness Instruction
Todd’s fourth claim on appeal is that the district judge committed reversible error by instructing the juiy on eyewitness identification, using PIK Crim. 3d 52.20.
The instruction at issue, No. 15, read:
“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 limitation 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(s) 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(s) or made any inconsistent identification;
6. The degree of certainty demonstrated by the witness at the time of any identification of the accused; and
7. Whether ¿ere are any other circumstances that may have affected tire accuracy of the eyewitness identification.” (Emphasis added.)
Although Todd generally argues that this instruction employs “outdated and even scientifically unsound factors,” he principally complains about the sixth factor—the eyewitness’ degree of certainty.
In State v. Mitchell, 294 Kan. 469, 479, 275 P.3d 905 (2012), this court reaffirmed that a district judge is required to issue a cautionary instruction when “eyewitness identification is a critical part of the prosecution’s case and there is serious question about that identifications reliability.” (Emphasis added.) We also held that the instruction on the reliability of eyewitness identification should omit the degree of certainty factor. 294 Kan. at 481 (instruction places undue weight on certainty evidence). Thus the district judge erred in including the degree of certainty factor when instructing Todd’s jury on eyewitness identification. See State v. Cruz, 297 Kan. 1048, 1068, 307 P.3d 199 (2013); State v. Marshall, 294 Kan. 850, 867, 281 P.3d 1112 (2012).
Because Todd did not object at trial, he
“faces the high burden of convincing us that the inclusion of the degree of certainty factor in the eyewitness identification cautionary instruction was clearly erroneous, i.e., that we are firmly convinced that the jury would have reached a different verdict had the instruction not included the erroneous language.” Cruz, 297 Kan. at 1068 (citing Williams, 295 Kan. 506, Syl. ¶ 5).
Two initial inquiries guide our analysis of whether the erroneous eyewitness instruction affected the verdict; (1) Was the identification crucial to the State’s case? and (2) Was there an opinion of certainty stated? Cruz, 297 Kan. at 1068; Marshall, 294 Kan. at 867-68. If the answer to either of these questions is “no,” then the inclusion of the degree of certainty factor would not have actually affected the verdict and, accordingly, would not constitute clear error. See Marshall, 294 Kan. at 868 (reviewing for harmless error). If the answer to both questions is “yes,” then this court “consider[s] the impact of the jury instructions in light of the entire record and additional considerations.” 294 Kan. at 868. “At this stage, ‘[t]he appropriate appellate consideration is whether “other procedural safeguards mitigated” the deficiency hi the eyewitness instruction' ” State v. Dobbs, 297 Kan. 1225, 1238, 308 P.3d 1258 (2013) (quoting Marshall, 294 Kan. at 868).
Here, the instruction was not necessary for the jury to give due consideration to Alexander’s identification of Todd because she knew him before the commission of the crimes. See State v. Mann, 274 Kan. 670, Syl. ¶ 2, 56 P.3d 212 (2002) (“Where the witness personally knows the individual being identified, the cautionary eyewitness identification instruction is not necessary and the accuracy of the identification can be sufficiently challenged through cross-examination.”). Jones and McFarlane were in a different position. The erroneous instruction, at least in theory, could have had some bearing on the jury’s consideration of their identifications. Those identifications were at least corroborating of Alexander’s testimony, if not crucial.
The problem for Todd is that, even if we assume that Jones’ and McFarlane’s identifications of him qualify as crucial, there was no testimony about either man’s degree of certainty. Jones and McFarlane were not asked; they did not volunteer. The mere facts that Jones expressed no equivocation when challenged or that McFarlane said his earlier identification was mistaken were not enough to have made the eyewitness cautionaiy instruction, although erroneous, reversible.
Prosecutorial Misconduct
Todd next alleges that prosecutorial misconduct denied him a fair trial.
The two-step process an appellate court uses when reviewing claims of prosecutorial misconduct was recently stated in State v. Lowrance, 298 Kan. 274, 282-83, 312 P.3d 328 (2013):
“An appellate court first determines whether the comments were outside the wide latitude that a prosecutor is allowed in discussing the evidence. If the comments are found to be improper and therefore misconduct, the court next determines whether the comments prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Marshall, 294 Kan. 850, 856, 281 P.3d 1112 (2012); State v. Tosh, 278 Kan. 83, 85, 91 P.3d 1204 (2004). In this step of tire process, we consider three factors: First, was tire misconduct gross and flagrant? Second, was the misconduct motivated by ill will? Third, was the evidence of such a direct and overwhelming nature that the misconduct would likely have had little weight in the mind of a juror? None of these three factors is individually controlling. Marshall, 294 Kan. at 857; State v. Raskie, 293 Kan. 906, 914, 269 P.3d 1268 (2012).
“In assessing this third factor, this court requires that any prosecutorial misconduct error meet tire ‘dual standard’ of both constitutional harmlessness and statutory harinlessness to uphold a conviction. See Tosh, 278 Kan. at 97 (Before third factor can ever override first two factors, an appellate court must be able to say that the harmlessness tests of both K.S.A. 60-261 and Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386 U.S. 987 [1967], have been met.).
“Under both standards, tire party benefiting from the error—here, the State—• bears the burden of demonstrating harmlessness. State v. Bridges, 297 Kan. 989, [1013,] 306 P.3d 244, 260 (2013); State v. Herbel, 296 Kan. 1101, 1110, 299 P.3d 292 (2013). That burden is more rigorous when tire error is of constitutional magnitude. See Herbel, 296 Kan. at 1110. In other words, if tire State has met the higher Chapman constitutional harmless error standard it necessarily has met the lower standard under K.S.A. 60-261. Hence, we need conduct our analysis only under the Chapman harmless error standard, under which
“ ‘the error may be declared harmless where the party benefitting from tire error proves beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of tire entire record, i.e., where there is no reasonable possibility that the error contributed to the verdict.” State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).
See State v. Ochs, 297 Kan. 1094, [1100,] 306 P.3d 294, 299 (2013) (citing Herbel, 296 Kan. at 1110-11.)”
Todd takes issue with three comments the prosecutor made about Horton during closing argument. First, Todd argues that that the prosecutor impermissibly expressed a personal opinion on Horton’s credibility when he stated “[S]he was not credible” and “[s]he would have preferred to deceive you about her own criminal history.” Next, Todd contends that the comment about Horton’s preference for deception was intended to inflame the passions and prejudices of the jurors. Finally, Todd claims that tire prosecutor shifted the burden of proof during the rebuttal portion of closing argument by mentioning Horton’s failure to come forward earlier with her support for Todd’s alibi.
The State responds that the “prosecutor’s approach was to usher the jury through its task” and that, understood in context, he did not express a personal opinion on credibility. The State also argues that the prosecutor’s statements in the rebuttal portion of closing were proper responses to argument made by Todd’s counsel.
A prosecutor may not express personal opinions about the credibility or reliability of a witness. State v. Duong, 292 Kan. 824, 830, 257 P.3d 309 (2011). But a prosecutor may offer “the jury an explanation of what it should look for in assessing witness credibility.’ ” State v. McReynolds, 288 Kan. 318, 326, 202 P.3d 658 (2009) (quoting State v. Scaife, 286 Kan. 614, 624, 186 P.3d 755 [2008]). “There is a distinction between such proper argument and its improper twin, argument on the prosecutor’s personal belief or opinion about a witness’ credibility. See State v. Finley, 273 Kan. 237, 245-46, 42 P.3d 723 (2002).” State v. Chanthaseng, 293 Kan. 140, 148, 261 P.3d 889 (2011). A prosecutor does not commit misconduct when arguing witness credibility based on reasonable inferences from the evidence presented at trial. Marshall, 294 Kan. at 863. Moreover, “Kansas courts have consistently held that ‘[e]xposing bias or motive for testifying is a proper subject for cross-examination,’ and, ‘by extension, the prosecutor is free to argue this point to the jury if the evidence has established the facts.’ ” State v. Wells, 297 Kan. 741, 752, 305 P.3d 568 (2013) (quoting State v. Jones, 273 Kan. 756, 783, 47 P.3d 783 [2002]).
Recently, in State v. Akins, 298 Kan. 592, 315 P.3d 868 (2014), this court addressed an allegation of prosecutorial misconduct based on a prosecutor’s comments on the credibility of witnesses. This court outlined the statements that defendant Michael Alans, Jr., alleged were impermissible:
“In her opening statement, the prosecutor introduced the complainants by saying:
“ ‘[M] is the oldest, [E] is the next, boy. They’ve grown so much over the course of the year since this case came to light.
" ‘Jennifer is mild. She is polished. She is articulate. She’s well put together. She manages these kids with a calm competence that is amazing.’
“Alans asserts that these prosecutorial comments showed her inappropriate personal attachment to the complainants. He argues that the prosecutor then improperly vouched for their credibility during closing arguments:
“ ‘Each of these girls with their own take on it, with their own point of view, so no embellishment. Yes, they are credible. They are not tainted or they have not been poisoned by the suggestibility that the expert is trying to get you to buy.
“ ‘[J] is a motor mouth, vomit of information of how many times he was pinching her nipples and where and when and by description, demonstration and by noise. Yes, that’s credible. Such detail.’ (Emphasis added.)
“Finally, Akins argues that during closing arguments the prosecutor also improperly expressed her personal opinion that his testimony was false.
“ ‘The defense said it didn’t happen at all. Do you buy that? View die volume of sexual contact and the physical evidence diat you have here. Was it just accidental? Was he just messing around... and diis is all just a strange misunderstanding? Not a chance on these facts. His denials. I never touched those lads in a sexual way. His statements I never touched those kids in a sexual way are not credible.’ ” 298 Kan. at 606-07.
In response to Akins’ challenge, the State argued that the prosecutor merely offered the jury an explanation of what it should look for in assessing credibility. The State further argued that the prosecutor’s comments were properly accompanied by a discussion of the evidence, and the prosecutor simply pointed out permissible inferences the jury could make from the evidence. This court rejected the State’s arguments. 298 Kan. at 607.
In holding that the statements constituted prosecutorial misconduct, this court looked at the statements in context and concluded that tire prosecutor “directly, and improperly, expressed her personal opinion on the credibility of her own witnesses.” 298 Kan. at 607. The court explained:
“In die context of this particular closing argument, we do not consider this to be a mere contention that based on the evidence presented the jury should infer facts about the girls’ credibility. [Citation omitted.] While the prosecutor arguably malees such a contention regarding J because of ‘such detail’ that J provided, the prosecutor reiterates her opinion about this complainant’s veracity with virtually identical, troubling language: ‘Yes, that’s credible.’ [Citations omitted.]” 298 Kan. at 608.
In respect to the prosecutor s comments about Akins, this court held that the “comments essentially informed the jury that Akins could not be believed.” 298 Kan. at 608. The prosecutor “did not point out inconsistencies in [Akins’] testimony or argue that specific evidence showed his statements were unworthy of belief.” Instead, she “unabashedly opined about his veracity.” 298 Kan. at 608.
Here, Todd has carved out a portion of a single sentence that was part of a larger discussion of the factors the jury could assess when determining witness credibility. Near the end of closing argument, the prosecutor informed the jury that it could “find from the evidence” that Horton’s testimony was not credible. The prosecutor discussed Horton’s bias and criminal record, i.e., specific evidence from which he could argue permissible inferences. The prosecutor had exposed Horton’s potential for bias based on her family relationship to Todd during cross-examination, and the prosecutor properly argued that point in closing. The prosecutor then stated:
“She was trying to help Loviss Todd, she was not credible and you can discount her testimony completely . . . .” (Emphasis added.)
The excerpted statement that Todd identifies as misconduct, i.e., “she was not credible,” was a reasonable inference that the prosecutor could argue based on Horton’s family relationship with Todd, i.e., her bias, and her criminal record. Read in context, it was not misconduct.
The prosecutor’s additional statement that Horton “would have preferred to deceive you about her own criminal history” was based on Horton’s question to the judge on whether she had to explain why she had been on probation. Todd argues that Horton’s question “could at most be characterized as a reluctance to disclose [and] did not mean that she wanted to deceive the jury.” We agree that the prosecutor’s argument on this point was close to the outer limit of the wide latitude we allow in discussion of the evidence. But the inference it suggests was a permissible, if harsh, one. A jury is permitted to consider the demeanor of a witness, as well as his or her words. And a prosecutor may remind jurors about a witness’ demeanor when the prosecutor is making a closing argu ment. See Scaife, 286 Kan. at 624 (prosecutor permitted to inform jury it may consider demeanor when assessing credibility).
Todd next argues that the prosecutor s comment aboüt Hortons preference for deceit improperly distracted the juiy from its role as factfinder and inflamed jurors’ passions and prejudices. See State v. Raskie, 293 Kan. 906, Syl. ¶ 3, 269 P.3d 1268 (2012). We do not agree. The role of factfinder includes evaluation of witness credibility. And, again, jury assessment of credibility can be based on what factfinders see as well as what they hear, and the natural and logical inferences that flow from both of these sensory inputs.
Todd’s final prosecutorial misconduct argument is that the prosecutor shifted the burden of proof to the defense when he commented about die fact that Horton had not gone to the police in the 2½ years between the time Todd was charged and the start of the Todd’s trial. Tódd characterizes these statements as die prosecutor asserting that Todd failed to provide corroboration for Horton’s testimony. We see these remarks differently. They merely informed the juiy tiiat it could consider Horton’s conduct as part of its evaluation of her credibility, which is a correct statement of Kansas law. The prosecutor certainly was permitted to poke holes in die defense’s alibi theory during cross-examination, and, by extension, during closing argument. See Wells, 297 Kan. at 752. These comments by the prosecutor did not shift the burden to Todd and did not constitute misconduct.
Cumulative Error
The doctrine of cumulative error may require reversal when more than one trial error occurs and, taken together, they render the proceeding fundamentally unfair.
“Cumulative error, considered collectively, may be so great as to require reversal of a defendant’s conviction. The test is whether the totality of the circumstances substantially prejudiced the defendant and denied him or her a fair trial. No prejudicial error may be found under the cumulative error doctrine if the evidence against the defendant is overwhelming. State v. Dixon, 289 Kan. 46, 71, 209 P.3d 675 (2009).” State v. Hart, 297 Kan. 494, 513-14, 301 P.3d 1279 (2013).
The only two errors we have detected in this case are failure to give an accomplice witness cautionary instruction and inclusion of the degree of certainty factor in the eyewitness identification instruction. Neither was reversible on its own as clear error. Given the mountain of evidence against Todd and the persuasive impeachment of his alibi defense, even when the two errors are considered together under the cumulative error doctrine, they do not necessitate reversal. Todd was not entitled to a perfect trial, Cruz, 297 Kan. at 1075, and he received a fair one.
Lifetime Postrelease Supervision
Todd also challenges the portion of his life sentence ordering lifetime postrelease supervision. The State concedes that this portion of Todd’s sentence must be vacated. See Wells, 297 Kan. at 762; State v. Cash, 293 Kan. 326, Syl. ¶ 2, 263 P.3d 786 (2011) (inmate with off-grid indeterminate life sentence can leave prison only if successor to Kansas Parole Board grants parole; sentencing court has no authority to order any term of postrelease supervision in conjunction with off-grid indeterminate life sentence).
We therefore order the lifetime postrelease portion of Todd’s life sentence be vacated.
Conclusion
Todd’s convictions are affirmed. His sentence is affirmed with the exception of the provision ordering lifetime postrelease supervision, which is vacated. | [
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The opinion of the court was delivered by
Moritz, J.:
We granted the State’s petition for review of the Court of Appeals’ decision in State v. Flynn, 45 Kan. App. 2d 1113, 257 P.3d 1259 (2011). There, the panel majority reversed Ira Flynn’s rape conviction and remanded for a new trial after concluding the district court committed clear error in failing to instruct the jury pursuant to State v. Bunyard, 281 Kan. 392, 133 P.3d 14 (2006). Flynn, 45 Kan. App. 2d at 1118-19.
In Bunyard, this court held that K.S.A. 21-3502(a)(l) proscribes all nonconsensual sexual intercourse accomplished by forcé or fear. Thus, under this statute, a person may be convicted of rape if intercourse begins consensually but consent is withdrawn after penetration and the intercourse continues by force or fear. 281 Kan. at 412. Bunyard further held that in cases involving post-penetration withdrawal of consent, the defendant is entitled to a “reasonable time” in which to act after consent is withdrawn and communicated to the defendant. 281 Kan. at 413-16.
Judge Malone dissented in Flynn, distinguishing Bunyard and concluding the district court did not clearly err in failing to give the instruction. Judge Malone also encouraged this court to reconsider Bunyard’s' conclusion the defendant is entitled to a “reasonable time” in which to act after consent is withdrawn and communicated to the defendant. Flynn, 45 Kan. App. 2d at 1119-23 (Malone, J., dissenting).
Today, we disapprove Bunyard’s holding that a defendant is entitled to a reasonable time in which to act after consent is withdrawn and communicated to the defendant. But we reaffirm Bun-yard’s conclusion that K.S.A. 21-3502(a)(l)(A) proscribes all nonconsensual sexual intercourse accomplished through force or fear, including nonconsensual sexual intercourse occurring when a person communicates his or her withdrawal, of consent after penetration and the other person continues tire .intercourse through compulsion. Additionally, we reaffirm Bunyard’s conclusion that in cases concerning post-penetration withdrawal of consent, the district court must do more than instruct the jury on the statutory elements of rape as defined in K.S.A. 21-3502(a)(l).
Instead, when a defendant is charged with rape as defined in K.S.A. 21-3502(a)(l) for an offense committed before July 1, 2011, and the evidence presented at trial suggests the victim initially consented but withdrew consent after penetration, the trial court must instruct the juiy as to the elements of rape and give an additional instruction. Namely, the court must instruct the jury that tire defendant may be convicted of rape even though consent is given to the initial penetration, but only if the consent is withdrawn, the withdrawal of consent is communicated to the defendant, and the defendant continues the intercourse through compulsion.
Here, although the facts of this case warranted the additional instruction on withdrawn consent, the district court failed to give it. Because we are not firmly convinced this omission was harmless, we affirm the Court of Appeals’ decision, reverse Flynn’s rape conviction, and remand for a new trial with an appropriate instruction.
Factual and Procedural Background
On September 26, 2007, A.S. reported to friends, family, and police that Ira Flynn had raped her. The State ultimately prosecuted Flynn on six charges: one count each of kidnapping, aggravated kidnapping, and aggravated criminal sodomy and three counts of rape.
Flynns Jury Trial
The evidence presented at trial established that Flynn and A.S. had known each other for several years and attended the same schools and that A.S. and her mother worked with Flynn’s mother and sister. At trial, Flynn and A.S. testified consistently as to certain events that occurred the evening of September 25, 2007, and in the early morning hours of September 26, 2007. Namely, both Flynn and A.S. testified the two of them made plans to hang out at Jennie Townsend’s house after A.S. got off work. A.S. picked up Flynn from Shawn Howell’s house around 11:30 p.m., made a brief stop at her apartment, and then drove herself and Flynn to Townsend’s house.
A.S. and Flynn also consistently testified they stayed at Townsend’s for a few hours, drinking and playing games. Flynn had ingested OxyContin earlier in the day and at some point A.S. offered Flynn a ride home after he indicated he was not feeling well and wanted to leave. As they prepared to leave, Flynn asked to drive and A.S. let him. A.S.’s and Flynn’s testimony conflicted about events occurring after they left Townsend’s house.
A.S.’s Testimony
A.S. testified Flynn took two wrong turns after leaving Townsend’s house and, when A.S. pointed this out, Flynn responded, “‘ AVe’re going out here to go fuck.’ ” A.S. objected, telling Flynn, “ “No we’re not. No we’re not.’ ” A.S. immediately became afraid when Flynn took the first wrong turn. A.S. also testified Flynn had not previously behaved violently toward her or caused her any harm.
According to A.S., Flynn eventually stopped the car on a country road, yelled at her to get out, and forced her to remove her clothing. Flynn then forced her to engage in nonconsensual vaginal intercourse on tire hood of the car, on the ground in front of the car, and again in the backseat of the car. During the sexual intercourse on the ground, A.S.’s ‘“bottom part,” vagina, legs, arms, back, elbows and knees came in contact with the gravel road. At some point, Flynn attempted anal intercourse and told A.S. if they did not have anal intercourse she would have to provide oral sex. Flynn later placed his penis in A.S.’s mouth without her permission and forced her to perform oral sex.
A.S. testified she was overcome by fear during each act of intercourse as well as when forced to perform oral sex. She twice tried to run from Flynn, but he caught her each time. After the second time, A.S. placed her hands over her face and told Flynn she would have to quit her job. According to A.S., at this point Flynn’s ““face just completely changed,” and it appeared to her Flynn realized what he had done. Flynn then picked up A.S.’s clothing from around the car, A.S. got dressed, and Flynn helped her put on her shoes.
Flynns Testimony
Flynn testified he and A.S. left Townsend’s house, “[cjruised” the main drag in town once or twice, and briefly stopped at a convenience store because he felt sick. Flynn was ““pretty trashed,” and he believed A.S. also was intoxicated. Flynn testified A.S. began fondling his genitals so he drove out to a country road.
According to Flynn, after he parked the car, he and A.S. got out, met in front of the car, and removed each other s clothing before having sexual intercourse on the hood of the car. A.S. then got down from the hood and performed oral sex on him. Flynn testified these acts were consensual, but the intercourse was “rough.” Next, he and A.S. attempted to reengage in sexual intercourse on the hood of the car but, according to Flynn, they “went down to the ground” instead and had intercourse in front of A.S.’s car. Flynn testified A.S. was not fighting and he did not try to control her, but A.S. hit her head when they “flopped to the ground.”
Flynn testified that during the intercourse on the ground, A.S. told him, “ ‘No. Just stop. No. Not here on the ground.’ ” Flynn “slowed down” but did not immediately stop because he was not sure A.S. was serious. According to Flynn, the two continued having intercourse for “30 seconds, a minute, maybe two,” but he stopped when A.S. again said, “ ‘Stop, I’m serious.’ ” Flynn then helped A.S. gather her clothing and get dressed, and he dressed himself. Flynn denied having intercourse with A.S. in the backseat of her car and testified A.S. did not try to run from him at any point during the incident.
After the Incident
Flynn and A.S. both testified A.S. began crying as Flynn put on his shoes, and she continued crying as he drove back into town, but she would not respond when Flynn asked what was wrong. Flynn parked A.S.’s car behind Shawn Howell’s house and A.S. called her friends, Mark and Lisa Conrad, who lived nearby. A.S. then ran to the Conrads’ back gate, leaving her keys and purse in the car with Flynn.
Flynn left A.S.’s keys in the car and went inside the Howell’s home. There, he continued drinking alcohol, left three voicemail messages on A.S.’s cell phone, and called his mother and sister. Flynn told his sister A.S. was mad at him and “wigging out” and told his mother he had “ ‘fucked up’ ” and was “ ‘under the influence again.’ ” Flynn testified he had been having problems with his family because he had been drinking and using drugs and was “[m]essing up on probation.”
Mark Conrad testified A.S. called him around 3 a.m. and asked him to meet her at his back fence. Mark opened the back gate, and A.S. pushed on the fence gate as she came in. A.S. was crying and she asked Mark to close and lock the gate. Mark asked if anything was wrong, and A.S. replied, “ ‘Yeah. I just need to come in the gate to wait for him to leave.’ ” Mark testified A.S. appeared very distraught and “seemed in fear of someone.”
Lisa Conrad testified A.S. was crying and appeared nervous and “very, very, very upset.” A.S. pulled at her clothes, looked over the fence, and said, “ There’s someone still out there. Don’t talk too loud. He may still be out there.’ ” Lisa noticed scrapes on A.S.’s knees and elbows. A.S. ultimately told Lisa that Flynn raped her in the country. Lisa called A.S.’s mother, who in turn called 911. A.S.’s mother testified she did not discuss the details of the incident with A.S. because A.S. was “really upset and nervous.”
The Investigation
Captain Mike Yoder testified he spoke with A.S. at the Conrads’ home. A.S.’s statements to Yoder about the incident were consistent with her trial testimony. After A.S. described the location of the incident to Yoder, he and another officer located an area on Worden Park Road that appeared to match A.S.’s description. Yoder testified the gravel road had “scuff marks, foot prints, just disturbances in the dirt that normally are not there on a country road.” Yoder secured the area and took photographs while another officer took additional photos and videotaped the area.
Detective Frances Stevenson testified she also spoke with A.S. at the Conrads’ home. Stevenson’s conversation with A.S. was limited because A.S. was vomiting and reported having a migraine. Stevenson briefly interviewed A.S. at the sheriffs office later that afternoon, but A.S. again became ill and returned home to rest before going to the hospital for a sexual assault examination.
Kathy Gill-Hopple, a SANE/SART nurse, testified she discussed the assault with A.S. and performed a sexual assault examination. A.S. told Gill-Hopple that Flynn “drove her out to the country, pulled her out of the car on to a gravel road, and assaulted her.” A.S. also reported tiiat Flynn attempted anal sex and put his penis in her mouth. Gill-Hopple testified A.S. had “numerous areas of abrasions and some bruising.” Gill-Hopple’s photographs of these injuries were admitted at trial and depicted abrasions on A.S.’s knees, elbows, and lower backside.
Gill-Hopple characterized A.S.’s anal -and genital injuries as “more than the average patient.” With the aid of a line diagram generally depicting A.S.’s injuries and a series of slides actually depicting A.S.’s injuries, Gill-Hopple described the injuries to die jury. Gill-Hopple concluded A.S.’s genital injuries resulted from “blunt penetrating trauma,” which generally implies the use of force but also could be consistent with consensual intercourse.
Detective Stevenson testified she recorded the voicemail messages Flynn left on A.S.’s cell phone after die incident, and she played the messages for the jury. In the first message, Flynn told A.S. tiiat her keys were in the car, tiiat she should “call the cops or do what you want to do” and that he “fucked up.” In the second message, Flynn told A.S. he had already called the cops and explained what happened, he had left the keys in her car, he could not say he was “sorry,” and he would “do a couple years, or you know whatever.” In the third message, Flynn’s speech was noticeably more slurred, but he again told A.S. he had called the cops, said something unintelligible followed by “for what I did,” and stated “I’m soriy [more unintelligible words] I apologize, goodbye.”
At trial, Flynn explained that his reference in the message to “do[ing] a couple years” was based on his belief that he would serve jail time for his probation violation, not for raping A.S. Further, Flynn claimed he apologized to A.S. in the message because “[the intercourse] was a little rough,” and he believed she was mad about the intercourse on the ground. According to Flynn, until a detective interviewed him, it had not occurred to him tiiat A.S. would accuse him of rape.
Detective Jeff Hawkins testified he interviewed Flynn the afternoon of September 26, 2007. Flynn initially reported that he and A.S. had consensual intercourse twice on the hood of the car, A.S. told him she wanted to stop, he stopped, they got dressed, and A.S. started crying. After follow-up questions, Flynn told Hawkins that A.S. slid off the hood of the car at some point and “ ‘had given him head/ ” After more follow-up questions, Flynn told Hawkins that, at some point, he and A.S. “ ‘slammed’ ” to the ground and also had intercourse on the ground. Referencing the intercourse on the ground, Flynn explained to Hawkins that “tilings had gotten a little wild,” and “he kept going a little bit after [A.S.] said no and that he was inside her for two—one to two minutes after she had said no.” Flynn told Hawkins he did not attempt anal sex with A.S.
Closing Arguments, Jury Deliberations, Verdicts, and Sentencing
In closing arguments, the prosecutor and defense counsel both reminded the jury that it ultimately would decide whether the evidence was consistent with A.S.’s or Flynn’s version of events. In arguing the evidence supported A.S.’s version, the prosecutor emphasized the extent of A.S.’s injuries, the Conrads’ testimony about A.S.’s demeanor and conduct after the incident, and Flynn’s incriminating, post-incident voicemail messages. In contrast, defense counsel concentrated on Flynn’s explanations for his cell phone messages and reminded the jury that A.S.’s injuries could be consistent with consensual intercourse. Further, defense counsel emphasized Flynn’s testimony about the intercourse on the ground, saying:
“What happened was [Flynn] testified that [A.S.] said, ‘Stop.’ He wasn’t sure if she was serious, so he slowed down, and then she said, ‘No, seriously, stop,’ and he withdrew. When he was asked to stop, when he found out she—she wanted him to stop, he stopped.”
During deliberations, the jury asked to review the videotape of the crime scene, requested a read back of Detective Stevenson’s and Kathy Gill-Hopple’s testimony regarding their conversations with A.S., and inquired whether the jury instructions were numbered according to the sequence in which the events were alleged to have occurred.
Ultimately, the jury found Flynn guilty of the rape charge defined in Instruction No. 5 concerning the allegation Flynn raped A.S. on the ground in front of her car but acquitted Flynn of tire five remaining charges.
The district court imposed an aggravated presumptive sentence of 186 months’ imprisonment with a 36-month period of post-release supervision and ordered the sentence to be served consecutive to Flynn’s sentence in a prior case.
Court of Appeals’ Decision
In reversing Flynn’s conviction and sentence, the Court of Appeals majority addressed only one of Flynn’s four appeal issues— i.e., Flynn’s claim the district court violated his Sixth Amendment right to a fair trial and to present his theory of defense when the court failed to instruct the jury in accordance with State v. Bunyard, 281 Kan. 392, “that sex can cease to become consensual if the consent is withdrawn after penetration and the intercourse continues either by force or fear, however, the defendant is allowed a ‘reasonable time’ in which to act upon the withdrawal of consent.” See Flynn, 45 Kan. App. 2d at 1116-18.
Citing Flynn’s testimony that he briefly continued the intercourse after A.S. withdrew consent, the majority concluded the district court clearly erred in failing to give a Bunyard instruction. Given the jury’s verdicts acquitting Flynn on all but one of the six charges against him, the majority further concluded the instruction’s omission required reversal of Flynn’s rape conviction. The majority declined to address Flynn’s remaining claims as moot and remanded the case for a new trial. Flynn, 45 Kan. App. 2d at 1115-19.
In his dissenting opinion, Judge Malone distinguished Bunyard on its facts and concluded the district court did not clearly err in failing to give the instruction. Judge Malone also urged this court to revisit Bunyard’s conclusion that a defendant is entitled to a “reasonable time” to withdraw after consent is withdrawn. Judge Malone agreed with Justice Luckert’s statement in her dissenting opinion in Bunyard that “the court should not judicially add a defense allowing a reasonable time in which to commit rape,” and noted that such a defense was not found in the express language of the statute. Flynn, 45 Kan. App. 2d at 1119-23 (Malone, J., dissenting).
We granted tire State’s petition for review under K.S.A. 20-3018(b), obtaining jurisdiction under K.S.A. 60-2101(b).
Discussion
In its petition for review, the State advocates a two-prong position essentially mirroring the points made in Judge Malone’s dissent—i.e., the facts of this case did not warrant a Bunyard instruction and this court should revisit and disapprove Bunyard’s holding that a defendant has a “reasonable time” to withdraw when consent is withdrawn. The State reasons Bunyard’s rule is unnecessary because die rape statute already requires nonconsensual intercourse to be accomplished by force or fear. In support, the State cites Judge Johnson’s (now Justice Johnson) dissenting opinion in State v. Bunyard, 31 Kan. App. 2d 853, 75 P.3d 750 (2003), rev’d 281 Kan. 392 (2006), and Justice Luckert’s dissenting opinion in Bunyard, 281 Kan. 392.
Our decision to accept the State’s request that we revisit Bun-yard requires that we undertake statutory interpretation as well as consider our prior caselaw. We apply a de novo standard of review to these tasks. In re Care & Treatment of Miller, 289 Kan. 218, 225, 210 P.3d 625 (2009).
Court of Appeals decision in Bunyard.
Before revisiting Bunyard, we find it helpful to thoroughly discuss the rationale for both the Court of Appeals’ decision in Bunyard, 31 Kan. App. 2d 853, as well as this court’s review of that decision in Bunyard, 281 Kan. 392.
Bunyard directly appealed his rape conviction to the Court of Appeals arguing, inter alia, that the evidence was insufficient to support his conviction, and the district court failed to properly respond to a jury question about the rape charge. 31 Kan. App. 2d at 857, 860, 862, 864.
The victim in Bunyard, E.N., testified she and Bunyard were watching a movie in the backseat of Bunyard’s car, when he put his arm around her and they began kissing while Bunyard removed E.N.’s clothing. E.N. testified she was “ ‘okay’ ” with kissing Bun-yard, but she was not okay with his removal of her clothing or his touching her breasts. 31 Kan. App. 2d at 855. According to E.N., after Bunyard removed his pants, put on a condom, laid her down in the backseat, and achieved penetration, she told him to stop. But Bunyard did not stop, instead continuing the intercourse for 5 to 10 minutes. E.N. further testified she tried to move away from Bunyard after she told him to stop.
In contrast, Bunyard testified his entire encounter with E.N. was consensual and that in fact, E.N. was on top of him during intercourse. According to Bunyard, E.N. ended the intercourse by dismounting when he told her he did not plan to call her the next day and was not interested in a relationship.
In his direct appeal to the Court of Appeals, Bunyard challenged the sufficiency of the evidence, arguing the evidence showed he and E.N. had consensual intercourse until after penetration occurred, and “rape occurs at the time of penetration, or not at all.” 31 Kan. App. 2d at 857. The Bunyard panel properly noted that it faced an issue of first impression in Kansas as to whether rape can occur when a victim withdraws consent post-penetration. See 31 Kan. App. 2d at 857-58 (citing Battle v. State, 287 Md. 675, 683-84, 414 A.2d 1266 [1980] and People v. Vela, 172 Cal. App. 3d 237, 218 Cal. Rptr. 161 [1985], disapproved of by In re John Z., 29 Cal. 4th 756, 128 Cal. Rptr. 2d 783, 60 P.3d 183 [2003]). Ultimately, the panel adopted the view held by a majority of jurisdictions— i.e., when intercourse begins as consensual, it can become rape in some circumstances. See Bunyard, 31 Kan. App. 2d at 858-59 (briefly discussing In re John Z., 29 Cal. 4th 756; State v. Siering, 35 Conn. App. 173, 644 A.2d 958, cert. denied 231 Conn. 914 [1994]; and State v. Robinson, 496 A.2d 1067 [Me. 1985]). Finding the reasoning from these cases persuasive, the Bunyard panel concisely concluded:
“[S]exual intercourse performed when one participant is under force or fear is rape. It does not matter if the force or fear exists at the initiation of the act or whether it comes after consent is withdrawn. The act is rape under either circumstance. A participant in sexual intercourse may withdraw consent after penetration has occurred. The continuation of sexual intercourse after consent has been with drawn, and in the presence of force or fear, is rape.” Bunyard, 31 Kan. App. 2d at 859.
Had the panel ended with this straightforward analysis, we probably would not be revisiting this issue today. Instead, the panel chose to address Bunyard’s alternative argument that “even if rape can occur after consensual penetration, a defendant must have a reasonable time in which to act on the victim’s withdrawal of consent.” 31 Kan. App. 2d at 859. Citing In re John Z., 29 Cal. 4th 756, the Bunyard panel essentially adopted the “reasonable time” argument and applied it to the facts before it:
“The ¡John Z.] court noted that the defendant was given ‘ample time’ to withdraw, and that his failure to cease intercourse was not reasonable. 29 Cal. 4th at 763. In John Z., the victim told the defendant three times that she ‘needed to go home.’ It was estimated that the intercourse continued for 4 to 5 minutes after the victim first told the defendant she needed to go home. 29 Cal. 4th at 763.
“In the instant case, E.N. estimated that it took Bunyard approximately 5 to 10 minutes to stop the intercourse. When consent is withdrawn, continuing sexual intercourse for 5 to 10 minutes is not reasonable and constitutes rape.” Bunyard, 31 Kan. App. 2d at 859.
Unfortunately, the panel’s reliance on John Z. was misplaced as the California Supreme Court in John Z. specifically rejected the argument that “the male should be permitted a ‘reasonable amount of time’ in which to withdraw.” In re John Z., 29 Cal. 4th at 762-63. Thus, the panel’s consideration of Bunyard’s alternative theory was both unnecessary and legally unsound.
In any event, the Bunyard panel ultimately concluded the evidence was sufficient to find Bunyard guilty of rape based on its determination that (1) rape can occur when consent is withdrawn post-penetration, (2) the victim withdrew her consent post-penetration, (3) Bunyard failed to withdraw from intercourse within a reasonable time after the victim withdrew her consent, and (4) Bunyard continued the intercourse by force or fear. 31 Kan. App. 2d at 857-60.
Judge Johnson, now Justice Johnson, dissented on a severance issue and would have reversed and remanded for a new trial on that ground. 31 Kan. App. 2d at 869-72 (Johnson, J., dissenting). But he agreed with the majority’s conclusion that rape can occur if the victim withdraws consent after penetration because,
“[a]t that point, two of the rape elements are present, i.e. sexual intercourse and the lack of consent. The rape only becomes complete when the culprit effects continuation of sexual intercourse by overcoming the victim by force or fear. The evidence presented in E.N.’s case would have supported a jury’s finding of rape on the basis of forcible continuation of sexual intercourse after the withdrawal of consent.” 31 Kan. App. 2d at 872 (Johnson, J., dissenting).
This Court’s Review of the Panel’s Decision in Bunyard
After granting Bunyard’s petition for review, this court in Bun-yard reversed the Court of Appeals’ decision, reversed Bunyard’s rape convictions on grounds of prosecutorial misconduct, and remanded the case for a new trial. Bunyard, 281 Kan. at 394, 396-408.
Based on its decision to reverse and remand for a new trial, tire court addressed two additional issues: “(1) Was the evidence insufficient as a matter of law to support the conviction of rape, i.e., does the Kansas rape statute cover post penetration conduct, and (2) if rape can occur after consensual penetration, must the defendant have a reasonable time in which to act?” 281 Kan. at 410.
Addressing the first question, the Bunyard court noted that two jurisdictions had rejected the concept of post-penetration rape. 281 Kan. at 411-12 (citing cases from Maryland and North Carolina). But the court agreed with the panel’s conclusion that Kansas’ rape statute proscribes all nonconsensual intercourse accomplished by force or fear, not just the initial penetration. Thus, the court succinctly reasoned “a person may be convicted of rape if consent is withdrawn after the initial penetration but intercourse is continued by the use of force or fear.” 281 Kan. at 412-13.
In addressing the second question—whether a defendant is entitled to a reasonable time to withdraw from intercourse after the victim withdraws consent—the court pointed out that the panel relied on In re John Z., 29 Cal. 4th 756, in finding Bunyard did not withdraw within a reasonable time. Bunyard, 281 Kan. at 413-14. The Bunyard court then briefly discussed John Z. and specifically noted the defendant in that case had argued “the male should be permitted a reasonable amount of time in which to withdraw once tire female raises an objection to intercourse” because:
“ ‘ “By essence of the act of sexual intercourse, a male’s primal urge to reproduce is aroused. It is therefore unreasonable for a female and the law to expect a male to cease having sexual intercourse immediately upon her withdrawal of consent. It is only natural, fair and just that the male be given a reasonable amount of time in which to quell his primal urge Bunyard, 281 Kan. at 413 (quoting In re John Z., 29 Cal. 4th at 762).
Notably, this court in Bunyard pointed out that in impliedly adopting tire “reasonable time to withdraw argument,” the Bun-yard panel failed to consider John Z.’s “clear rejection” of the defendant’s “reasonable time” argument. Bunyard, 281 Kan. at 414. But after pointing out the panel’s misplaced reliance on John Z. and John Z.’s strong rejection of the defendant’s “primal urge” rationale for his “reasonable time to withdraw” theory, this court in Bunyard inexplicably concluded:
“In the case of consensual intercourse and withdrawn consent, we agree that the defendant should be entitled to a reasonable time in which to act after consent is withdrawn and communicated to the defendant. However, we conclude that the jury should determine whether the time between withdrawal of consent and the interruption of intercourse was reasonable. This determination must be based on the particular facts of each case, taking into account the manner in which consent was withdrawn. We believe this conclusion balances our rejection of the primal urge theory per se with our recognition of the unique facts and circumstances of each individual case.
“While the facts of this case may establish that the defendant’s continuation of intercourse by placing the victim in fear or by forcing the victim to continue for 5 to 10 minutes was well beyond a reasonable time, we reiterate that this is a jury determination and not for tire trial court or the appellate courts to decide. We, thus, conclude that the trial court had a duty to instruct the jury that post-penetration rape can occur under Kansas law and that tire defendant has a reasonable time’ to respond to the withdrawal of consent.” 281 Kan. at 414-15.
Justice Luckert concurred in the majority’s holding that the rape statute encompasses post-penetration rape but dissented from the majority’s conclusion that a defendant who is charged with rape “ ‘is entitled to a reasonable time in which to act after consent is withdrawn.’ ” 281 Kan. at 424 (Luckert, J., dissenting in part and concurring in part). Justice Luckert would have held
“that a defendant has committed rape if, after consent is withdrawn, the act of intercourse continues as the result of force or fear. This holding is consistent with the elements defined by K.S.A. 2004 Supp. 21-3502(a)(l)(A). The court should not judicially add a defense allowing a reasonable time in which to commit rape.” 281 Kan. at 424-25 (Luckert, J., dissenting in part and concurring in part).
Keeping this background in mind, we return to the instant case to consider the State’s contention that we should disapprove Bun-yard’s “reasonable time” holding.
We disapprove Bunyard s “reasonable time” holding because it is contraiy to the plain language of the rape statute and without legal suppoit.
The State does not question Bunyard’s holding that “a person may be convicted of rape if consent is withdrawn after the initial penetration but intercourse is continued by the use of force or fear.” 281 Kan. at 412. Instead, the State urges us to disapprove Bunyard’s conclusion that “the defendant should be entitled to a reasonable time in which to act after consent is withdrawn and communicated to the defendant.” 281 Kan. at 414. We agree with the State that this portion of Bunyard must be disapproved.
Simply stated, Bunyard’s conclusion that a defendant should be entitled to a “reasonable time” to discontinue intercourse with a nonconsenting partner is contrary to the plain language of the rape statute, is inconsistent with Bunyard’s own interpretation of the rape statute as encompassing the crime of post-penetration rape, and is not supported by the authorities the Bunyard panel considered or relied upon to reach its conclusion. We therefore disapprove Bunyard’s holding on this point.
But as Bunyard recognized, Kansas’ rape statute “proscribes all nonconsensual intercourse that is accomplished by force or fear, not just the initial penetration. Thus, a person may be convicted of rape if consent is withdrawn after the initial penetration but intercourse is continued by the use of force or fear.” 281 Kan. at 412. That portion of our holding in Bunyard is consistent with the plain language of K.S.A. 21-3502(a)(l)(A), and we reaffirm it today.
Our modification of Bunyard’s holding means that when a party presents evidence demonstrating the victim initially consented to sexual intercourse but later withdrew consent, the critical issue for the jury is whether the defendant continued the intercourse through compulsion despite the victim’s withdrawal of consent. It is the continuation of nonconsensual intercourse by compulsion that makes the offender’s act rape, not the offender’s failure to immediately respond to the victim’s withdrawal of consent.
We reaffirm Bunyard’s conclusion that the rape elements instruction does not adequately state the law in post-penetration rape cases arising from acts committed before July 1, 2011.
Thus, despite our disapproval of Bunyard’s “reasonable time to withdraw” language and its definition of “reasonable time,” we reaffirm its conclusion that when evidence is presented involving post-penetration withdrawal of consent, the trial court must do more tiran simply instruct the jury on the statutory elements of rape. Instead, in such cases, in addition to the rape elements instruction, the trial court must instruct the jury that rape may occur even though consent was given to tire initial penetration, but only if the consent is withdrawn, that withdrawal is communicated to the defendant, and the sexual intercourse continues when the victim is overcome by force or fear. See Bunyard, 281 Kan. at 416.
We note, however, that because the legislature amended the rape statute in 2012, our decision requiring an additional jury instruction is limited to those cases in which the rape is alleged to have occurred before July 1, 2011. In amending the rape statute, the legislature provided that effective July 1, 2011: “[I]t shall not be a defense that the offender did not know or have a reason to know that the victim did not consent to the sexual intercourse, that the victim was overcome by force or fear, or that the victim was unconscious or physically powerless.” K.S.A. 2013 Supp. 21-5503(e). Because Flynn was convicted of rape for an offense that occurred in 2007 and the controlling statute, K.S.A. 21-3502(a)(1)(A) (2007), did not contain the language now found in K.S.A. 2013 Supp. 21-5503(e), we leave for another day whether a modified Bunyard instruction would remain appropriate in cases arising under K.S.A. 2013 Supp. 21-5503(a)(l)(A) for offenses committed after July 1, 2011.
Under the facts of this case, we are not firmly convinced the district court’s failure to instruct the jury on the issue of withdrawn consent was hamless.
Finally, we must apply this modified Bunyard analysis to the facts of this case. In doing so, we first note our disagreement with the panel’s decision to review Flynn’s alleged instruction error under tire dear-error rule of K.S.A. 22-3414(3). See Flynn, 45 Kan. App. 2d at 1116-18. Instead, we conclude Flynn’s counsel sufficiently requested the instruction when he suggested the potential need for a “withdrawal instruction.” Accordingly, we will apply the analytical framework and standards of review appropriate when a trial court denies a defendant’s request for a jury instruction.
Under that framework, our first task is to determine whether the failure to give the instruction was erroneous. That determination is subject to unlimited review and requires consideration of whether the instruction was legally and factually appropriate. If error is found, our remaining task is to consider, in light of the entire record, whether the error was harmless. State v. Plummer, 295 Kan. 156, 163, 283 P.3d 202 (2012).
As we have just concluded, a modified Bunyard instruction must be given when the jury has heard evidence from any source regarding a post-penetration withdrawal of consent. Thus, a modified Bunyard instruction is unique in that if it is factually appropriate, it is necessarily legally appropriate. And, like the panel majority, we conclude the instruction was factually appropriate in this case. See Flynn, 45 Kan. App. 2d at 1117-18.
Here, A.S. testified she never consented to intercourse with Flynn. But Flynn testified A.S. initially consented but withdrew her consent after penetration. Because the jury heard evidence of both consensual intercourse and withdrawn consent, we conclude a modified Bunyard instruction was factually, and consequently, legally appropriate. See Bunyard, 281 Kan. at 416 (noting rape elements instruction is incomplete statement of law in cases involving post-penetration withdrawal of consent).
Further, we find unpersuasive the State’s citation to State v. Robinson, No. 99,443, 2009 WL 1140256 (Kan. App. 2009) (un published opinion), rev. denied 290 Kan. 1102 (2010). Although Robinson invoked Bunyard in challenging his rape conviction, Bunyard did not apply because the only question in Robinson was whether the initial penetration was consensual, not whether the victim withdrew her consent after penetration. Robinson, 2009 WL 1140256, at *1-6.
Having concluded the district court erred in failing to give a modified Bunyard instruction, our final task is to determine whether that error was harmless. Flynn argues the error violated his constitutional right to a fair jury trial and to present his theory of defense. Accordingly, we must reverse unless we “are persuaded beyond a reasonable doubt that there was no impact on the trial’s outcome, i.e., there is no reasonable possibility the error contributed to the verdict.” State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012); see also State v. Backus, 295 Kan. 1003, 1009, 287 P.3d 894 (2012) (applying “more stringent” constitutional standard in absence of argument from either party regarding appropriate harmless error standard).
In light of the conflicting evidence presented in this case; the severity and number of charges filed against Flynn based on the incident with A.S.; the jury’s acquittal of Flynn on charges of aggravated kidnapping, kidnapping, two counts of rape, and one count of aggravated criminal sodomy; and the jury’s verdict of guilt only on the rape count clearly involving the issue of withdrawn consent, we are not persuaded the error was harmless.
Accordingly, we affirm the Court of Appeals decision, reverse Flynn’s rape conviction, and remand for a new trial with a supplemental instruction based on Bunyard as modified by this opinion. | [
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The opinion of the court was delivered by
Beier, J.:
Defendant Nathaniel Kenney appeals from denial of his presentencing pro se motion to withdraw his no contest plea to one count of aggravated kidnapping and one count of aggravated robbeiy.
On appeal to the Court of Appeals, Kenney argued that the district judge had denied his right to counsel under the Sixth Amendment to the United States Constitution by hearing the motion to withdraw plea without appointing a new lawyer for him. The Court of Appeals rejected this argument, and we granted Ken-ney s petition for review.
We reverse the judgment of the district court and the decision of the Court of Appeals and remand to the district court for further proceedings.
Factual and Procedural Background
The State charged Kenney with 13 felonies based on his alleged participation in a home invasion in Kansas City.
Eleven days before trial was scheduled to start, Kenney’s court-appointed defense counsel, Jeffrey Leiker, filed a motion to withdraw. In the motion, Leiker wrote that Kenney had demanded Leiker “withdraw as his legal representation and cease all activity on his behalf.” The motion also said diat Kenney had sent Leiker “multiple written communications” expressing dissatisfaction with his representation.
At a hearing on the motion 4 days later, Kenney told the district judge that he and Leiker had “been having a conflict of interest for a while now.” Kenney then recited a litany of grievances, including allegations that Leiker failed to review discovery material adequately, failed to investigate the case, failed to file requested motions, failed to ask specific questions during the preliminary hearing, and denied Kenney the opportunity to cross-examine witnesses and put on evidence directly during the preliminary hearing. The judge told Kenney that his complaints generally dealt with matters of trial strategy subject to the discretion of counsel and denied the motion to withdraw.
On the morning trial was set to begin, at a pretrial hearing, Lei-ker orally renewed his motion to withdraw at Kenney’s request. Leiker explained that he had attempted to meet with Kenney “six to seven” times in the preceding week, but “they were fruitless meetings” because Kenney “shut down” and refused to communicate. Kenney told the district judge that Leiker had been “hostile and belligerent” at their last meeting and had concluded that meeting by telling Kenney to “go to hell.” The district judge told Kenney that it was not unusual for attorneys and defendants “to get a little bit hot about things during the course of the case” and again denied the motion.
As communication between Kenney and Leiker deteriorated in the week leading up to trial, die State’s case improved considerably. Kenney’s sons, who were codefendants, agreed to testify against their father. Although Leiker filed a motion for discovery related to the sons’ statements, it yielded nothing. Leiker’s motion for a continuance so that he could get an investigator to talk with Ken-ney’s sons was also denied.
During a recess between the pretrial hearing and the scheduled trial, Kenney decided to change his plea from not guilty to no contest. Under the terms of his plea agreement, Kenney entered his pleas to 1 count of aggravated kidnapping and 1 count of aggravated robbery in exchange for the State’s dismissal of the 11 other felony charges. The State also agreed to join Kenney s du-rational departure motion requesting 160 months’ imprisonment. Kenney otherwise faced the potential of 714 months’ imprisonment on the two counts.
The plea agreement stated that Kenney did “not waive right to appeal court’s ruling on previous motions.” And, at Kenney’s plea hearing, Leiker told the district judge that, “as part of the plea in the terms of the plea, my client is not actually waiving his right to appeal some of the Court’s rulings in the motions that have been filed and discussed here today and previously.” The judge did not correct counsel’s obvious misimpression that such a reservation was legally possible. In fact, the judge compounded counsel’s mistake.
“THE COURT: You understand that in this matter you have an absolute right to a trial by a jury?
“DEFENDANT KENNEY: Yes.
“THE COURT: And at that trial the Court would—the State would have to present evidence against you and they’d have to prove you guilty beyond a reasonable doubt, you wouldn’t have to prove anything yourself; you understand that?
“DEFENDANT KENNEY: Yes.
“THE COURT: In addition, you could call witnesses in your behalf and you could testify in your own behalf if you wanted, but you wouldn’t be required to do so; you understand that?
“DEFENDANT KENNEY: Yes.
“THE COURT: If this matter went to trial and you were convicted, do you understand you’d have a right to appeal that conviction to the Kansas Supreme Court; and if you couldn’t afford an attorney for that appeal, one would be appointed to represent you?
“DEFENDANT KENNEY: Yes.
“THE COURT: You understand that by pleading no contest here today, you’re giving up those rights I just talked about and there won’t be any trial of this matter either to the Court or to a jury?
“DEFENDANT KENNEY: Yes.”
Leiker then interjected: “I’m sorry, Judge. Just land of a housekeeping matter, as part of the plea in the terms of the plea, my client is not actually waiving his right to appeal some of the Court’s rulings in the motions that have been filed and discussed here today and previously.”
After die prosecutor summarized the State’s agreement to dismiss charges and join Kenney’s departure motion, the exchange between the judge and Kenney continued:
“THE COURT: Mr. Kenney, is that your understanding of the agreement between your attorney and the State?
“DEFENDANT KENNEY: Yes, it is.
“THE COURT: To your knowledge, is that the entire agreement, what they’ve told me?
“DEFENDANT KENNEY: What he said, I would have my appeal rights.
“THE COURT: Right. And with that included, that’s the entire agreement?
“DEFENDANT KENNEY: Yes, sir.”
Still later in the hearing, Leiker referenced the district judge’s denial of the motion to withdraw as an “issue that [Kenney] would like to reserve to appeal, among others.” After the State provided a factual basis for Kenney’s pleas, the district judge accepted them.
Before sentencing, Kenney filed his pro se motion to withdraw his pleas. In the motion, Kenney asserted that he had not understood that K.S.A. 22-3602(a) would preclude his appeal of the outcome on the motions. At a hearing on the motion to withdraw, Kenney stated that he had not realized that he would be “giving up a lot of my constitutional rights.” The district judge stated that he had gone over those rights during the plea hearing. The district judge then asked Leiker if he had anything to add to Kenney’s remarks. Leiker responded:
“Not really, Judge. I mean, if the Court recalls, I believe the Court did go through his constitutional rights with him before the plea. I went through them when we went through the plea petition. We actually identified a few issues that he wanted to appeal. That was actually pursuant to the terms of the plea agreement, that he be allowed to enter this plea and reserve a few issues for appeal, one of those, I think, being your ruling to not turn over [discoveiy] evidence. Sol think we went over his rights a little more than in a normal plea because there [were] a couple there that he was hanging onto and reserving for appeal.”
The district judge then said:
“All right. And those, I think it was pretty clear in the plea because that was, I think, one of the ways that the plea was worked out, was that [Kenney] would retain some of those rights.
“I’m going to deny the motion to withdraw the plea at this point. I believe the defendant was aware of his rights at the time. I think we went through those probably in more detail than we normally do because of the circumstances.”
Discussion
We examine district court rulings on motions to withdraw plea for abuse of discretion. State v. Ebaben, 294 Kan. 807, 811, 281 P.3d 129 (2012). Judicial action constitutes an abuse of discretion if the action (1) is arbitraiy, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). Presentence motions are evaluated on a good cause standard. See K.S.A. 22-3210(d); K.S.A. 22-3602(a).
Kenney s appellate challenge before the Court of Appeals panel focused on whether Leiker had a conflict of interest at the hearing on the motion to withdraw plea and argued that the district judge should have appointed substitute counsel. The panel labeled Ken-ney s argument “unpersuasive,” because Kenney had not explicitly cited Leiker s deficient representation as a basis for his motion to withdraw plea. State v. Kenney, No. 106,508, 2012 WL 4794647, at *3-5 (Kan. App. 2012) (unpublished opinion).
The panel was correct that, strictly speaking, the competence of Leiker s representation was not before the district judge on the motion to withdraw plea. However, we are unwilling to malee this case more complicated than it is by exalting form over substance.
The record on appeal makes it abundantly clear that neither Leiker nor the district judge understood or communicated all of the appeal rights Kenney would surrender as a matter of law by entering his no contest pleas. In fact, they misled Kenney about his continuing ability post-plea to appeal the outcomes on his mo tions. A criminal defendant’s misinformation from counsel about the applicable law during plea negotiations—-particularly when reinforced by the written plea agreement and by counsel’s and the district judge’s incorrect statements during the defendant’s plea hearing—easily constitutes good cause to withdraw no contest pleas under K.S.A. 22-3602(a).
We recognize that we have previously taken pains to distinguish between analysis of a Sixth Amendment ineffective assistance of counsel claim and analysis of the general merit of a motion to withdraw plea. See, e.g., State v. Kelly, 291 Kan. 868, 871, 248 P.3d 1282 (2011). Nevertheless, one of the factors that a district judge should always consider when a motion to withdraw plea has been filed is whether the defendant was represented by competent counsel. 291 Kan. at 871. Here, the district judge failed utterly to give due consideration to this factor. This conclusion is inescapable, because the judge failed more than once to recognize Leiker’s faulty legal advice and compounded the issue with his own incorrect statements. Failure to follow the law is an abuse of discretion, and Kenney must be allowed to withdraw his pleas to avoid prejudice to his substantial rights under K.S.A. 60-261.
Conclusion
We reverse the judgment of the district court and the decision of the Court of Appeals and remand this case to the district court for defendant Nathaniel Kenney to be permitted to withdraw his no contest pleas. He should be appointed substitute counsel before the prosecution against him continues. | [
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The opinion of the court was delivered by
Johnson, J.:
After stopping Robert Stevenson’s sport utility vehicle based upon a turn signal violation, law enforcement officers searched the vehicle because they observed a very strong odor of alcohol emanating from inside the vehicle after Stevenson, the lone occupant, had exited. The search led to tire discovery of methamphetamine and tire subsequent prosecution of Stevenson for possessing that drug, in violation of K.S.A. 2008 Supp. 65-4160. Stevenson sought to suppress the fruits of the warrantless search, but the district court held that the odor of alcohol inside the vehicle was sufficient to establish probable cause to search the vehicle for an open container of alcohol. In a split decision, a panel of the Court of Appeals affirmed that holding. State v. Stevenson, 46 Kan. App. 2d 474, 262 P.3d 689 (2011) (Buser, J., dissenting). This court accepted review of the Court of Appeals’ decision; our jurisdiction is pursuant to K.S.A. 20-3018(b) and K.S.A. 22-3602(e). Based upon the totality of circumstances in this particular case, we determine that the search was unlawful.
Factual and Procedural Overview
On December 19, 2008, at approximately 4 a.m., Detective Jon Gill and Deputy Justin Crafton were watching a house that the officers suspected of drug activity. They had previously stopped vehicles leaving the house and discovered criminal activity. When Stevenson’s vehicle left the house, the officers followed it until they observed the vehicle’s turn signal engage as it approached a stop sign at the intersection of 14th and Broadway. Detective Gill opined that the turn signal was initiated approximately 15 feet from the intersection, and Deputy Crafton estimated that the distance was 30 feet. But this court has held that a driver is absolutely liable if he or she fails to continuously signal a turn for 100 feet prior to the turn. State v. Greever, 286 Kan. 124, Syl. 8, 9, 184 P.3d 788 (2008). The officers testified that they relied on the 100 feet rule to justify stopping Stevenson’s vehicle after targeting it to investí- • gate for drug activity. See 286 Kan. at 142 (Johnson, J., dissenting) (predicting absolute liability 100 feet turn signal rule would be extensively used to legalize profiling selected targets for investigatory detentions).
Deputy Crafton approached the vehicle’s driver side, while Detective Gill approached the passenger side. Stevenson was the only occupant of the vehicle. The area of the stop was “fairly lit up” by streetlights. Deputy Crafton noticed a very strong odor of alcohol coming from the open driver’s side window and directed Stevenson to exit and proceed to the rear of his vehicle. While the deputy conducted field sobriety tests on Stevenson outside his vehicle, Detective Gill proceeded to the driver’s side and “stuck [his] head in the vehicle.” Either before or while he was inside the vehicle, the detective also noticed a very strong odor of alcohol, “as if possibly an alcohol container had spilled inside the vehicle.” The detective subsequently reiterated that, based upon his law enforcement experience, “[i]t smelled to [him] as if an alcohol container had spilled inside the vehicle. It was a very strong, very strong odor.”
The officers determined that Stevenson was not under the influence of alcohol and they permitted him to re-enter his vehicle. A records check indicated that Stevenson’s driver’s license was valid and clean and that he had no outstanding wants or warrants. Nevertheless, the officers continued the detention because they believed they had probable cause to search Stevenson’s vehicle for an open container of alcohol based solely on the odor of alcohol. Specifically, Deputy Crafton testified that he believed that the circumstance was akin to the probable cause definitively created by the odor of marijuana. The officers confirmed at the suppression hearing that they had not observed anything in plain sight that would justify the search and that they had not asked Stevenson for his consent to search his vehicle.
Crafton apparently first looked for an open container inside of the center console of the front seat, where he found two glass pipes containing a crystal-like residue that Crafton suspected was methamphetamine. Then, a digital scale was recovered from the map pouch on the back of the passenger seat. Finally, the deputy noticed a large bottle of red wine on top of the vehicle’s backseat. Crafton testified that the lid was on the half-empty bottle but that he could tell that it had been previously opened. He noticed a wet, red liquid on the floorboard right behind the driver’s seat that he thought had likely spilled from the wine bottle, albeit tire bottle was recovered from the middle of the backseat.
Based on the drug paraphernalia found inside the vehicle, Detective Gill arrested Stevenson and performed a search incident to arrest. That search produced methamphetamine from Stevenson’s wallet, for which the State charged Stevenson with possession. Stevenson sought to suppress the methamphetamine as the fruit of an unlawful vehicle search.
First, the district court upheld tire initial seizure, finding that Stevenson’s failure to signal his intended turn for the requisite 100 feet authorized the officers to effect a traffic stop. The district court then found that both officers smelled a strong odor of alcohol emanating from the interior of Stevenson’s vehicle and that the strong odor remained after Stevenson exited the vehicle. The court also noted that the officers had testified that they “believed that perhaps there was alcohol that had been spilled in the interior of the vehicle.” Relying heavily upon a Court of Appeals decision, State v. Bickerstaff, 26 Kan. App. 2d 423, 988 P.2d 285, rev. denied 268 Kan. 849 (1999), the district court ultimately opined that the strong smell of alcohol was enough, standing alone, to give the officers probable cause to search for an open container.
After his motion to suppress was denied, Stevenson waived his right to a jury trial and tried the matter to tire bench upon stipulated facts, but preserving the suppression issues for appeal. After finding Stevenson guilty, the trial court sentenced him to 12 months’ probation with an underlying prison term of 11 months.
Stevenson appealed his conviction, and a split panel of the Court of Appeals affirmed the district court’s denial of Stevenson’s mo tion to suppress. State v. Stevenson, 46 Kan. App. 2d 474, 262 P.3d 689 (2011) (Buser, J., dissenting). The majority held that “the very strong odor of alcohol emanating from inside the vehicle, where the sole occupant of the vehicle had been excluded as the source of the odor, constituted probable cause to search the vehicle for open containers of alcohol.” 46 Kan. App. 2d at 480. The dissent reasoned that, because alcohol was a legal substance, the very strong odor of alcohol “without incriminating facts or circumstances, did not justify the warrantless search of the automobile to search for open containers of alcohol.” 46 Kan. App. 2d at 481 (Buser, J., dissenting).
Stevenson sought, and we granted, review of the Court of Appeals holding that the officers had probable cause to search Stevenson’s vehicle.
Probable Cause to Search a Vehicle for Open Containers of Alcohol
To clarify, the question presented to us for review does not include any issue regarding the initial seizure of Stevenson’s vehicle for the traffic infraction. Cf. State v. Sanchez-Loredo, 294 Kan. 50, 53-54, 272 P.3d 34 (2012) (clarifying that court would not address issues not cross-appealed by defendant). Likewise, there is no question raised as to whether the search was actually conducted in such a manner that it was more likely to uncover drugs than an open alcohol container. We are only concerned with whether the evidence the officers discovered during the traffic stop—a very strong odor of alcohol emanating from the unoccupied vehicle— gave them probable cause to search the seized vehicle for evidence of another crime—transporting an open container of alcohol.
Standard of Revieio
“The standard of review for a district court’s ruling on a suppression motion is bifurcated, with factual findings reviewed for substantial competent evidence and the legal conclusions reviewed with a de novo standard. State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007). If the material facts are not disputed, ‘the question of whether to suppress evidence becomes a question of law subject to unlimited review.’ State v. Anderson, 259 Kan. 16, 18, 910 P.2d 180 (1996).” State v. Brittingliam, 296 Kan. 597, 601, 294 P.3d 263 (2013).
“The facts in this case are not in dispute.” Stevenson, 46 Kan. App. 2d at 474. Therefore, our review is unlimited.
Analysis
Both our federal and state constitutions protect against unreasonable searches and seizures. The Fourth Amendment to the United States Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Section 15 of the Kansas Constitution Bill of Rights specifically protects Kansans from unwarranted government intrusion: “The right of the people to be secure in their persons and property against unreasonable searches and seizures, shall be inviolate.”
Where a search has been conducted without first obtaining a warrant from a detached magistrate, our stalling point is that the “warrantless search by a police officer is per se unreasonable under the Fourth Amendment unless the State can fit the search within one of the recognized exceptions to the warrant requirement.” Sanchez-Loredo, 294 Kan. at 55. Here, the State relied upon the automobile exception, which is a subclass of the probable-cause-plus-exigent-circumstances exception, whereby the mobility of the vehicle provides the exigent circumstances. If a vehicle is readily mobile and probable cause exists to believe the vehicle contains contraband or evidence of a crime, the Fourth Amendment does not require a warrant for police to search the vehicle. 294 Kan. 50, Syl. 4. But the State bears the burden of proving the lawfulness of the warrantless vehicle search. State v. Ibarra, 282 Kan. 530, 533, 147 P.3d 842 (2006).
The State’s theory was that the strong odor of alcohol coming from within the vehicle provided probable cause to believe that the vehicle contained an open container of alcohol, which the officers apparently believed would be evidence of a crime. The district court recognized that this court has not established a bright-line rule for the odor of alcohol as it previously did for the odor of marijuana. In State v. MacDonald, 253 Kan. 320, 324-25, 856 P.2d 116 (1993), upon which Deputy Crafton said he relied, this court held that an officer’s detection of the odor of burned marijuana, standing alone, constituted probable cause to search a vehicle. The rationale for that definitive rule was that, in this state at that time, the smell of marijuana was always evidence of illegal activity.
But the district court was also aware of this court’s decision in Ibarra, which sits at tire other end of the probable cause spectrum. Ibarra held that the smell of ether emanating from a vehicle was insufficient to provide probable cause to search tire vehicle, even where the driver had failed to provide the detaining law enforcement officer with a legitimate explanation for possessing a product that could be used in the illegal production of methamphetamine. 282 Kan. 530, Syl. 3. Ibarra opined that “[t]he strong odor of ether emanating from a house or a vehicle is as consistent with lawful activity as it is with criminal activity,” and, accordingly, “the smell of ether alone is justification for further investigation but not for a search.” 282 Kan. at 543.
The Ibarra majority noted that the odor of alcohol was at issue in Bickerstajf and described the holding of that case as follows:
“The Court of Appeals concluded that the odor of alcohol from the person and her car and the breath test showing she had alcohol in her system coupled with her denial of drinking provided the officer with probable cause to conduct a warrantless search of the vehicle for an open container. 26 Kan. App. 2d at 424.” Ibarra, 282 Kan. at 538.
As the dissent in this case noted, even the lone dissenter in Ibarra agreed drat “ ‘[tjhere is no “standing alone” statement in Bicker-staff. The result clearly was not limited to the smell of alcohol.’ ” Stevenson, 46 Kan. App. 2d at 482 (Buser, J., dissenting) (quoting Ibarra, 282 Kan. at 558 [Larson, J., dissenting]). Nevertheless, the district court in this case interpreted Bickerstajf as permitting a warrantless search based solely upon the smell of alcohol, suggesting that any discussion of the other circumstances would be merely dicta.
But the Court of Appeals majority acknowledged that Bickerstajf had not established a bright-line rule that the odor of alcohol in a vehicle, standing alone, was sufficient to establish probable cause to search for an open container. Rather, Bickerstajf s determination of probable cause was based on the “cumulative facts” that the alcohol odor was coming from both the car and the defendant and that the defendant had denied consuming any alcohol when a breath test indicated otherwise. Stevenson, 46 Kan. App. 2d at 477. Moreover, the Court of Appeals majority noted that Ibarra had stressed that' it was the combination of'facts in Bickerstaff that had established the probable cause to search in that case. Stevenson, 46 Kan. App. 2d at 477-78. The majority then completed its discussion of Kansas cases with State v. Carson, No. 101,242, 2009 WL 1591933 ,(Kan. App. 2009) (unpublished opinion), where the panel found an officer lacked probable cause to search a vehicle despite having smelled the odor of alcohol. Carson distinguished Bickerstaff by pointing out that the officer in Carson could not determine whether there was any alcohol odor coming from the vehicle, independent of the effluvium arising from the defendant; that Carson had admitted to having a couple of drinks, whereas Bickerstaff denied drinking anything; and that the officer in. Carson testified that he had no reason to suspect any illegal activity once Carson passed the field sobriety tests. Stevenson, 46 Kan. App. 2d at 478.
Given that this court has not had an opportunity to directly address facts similar to those presented in this case, the Court of Appeals majority looked to the Idaho Court of Appeals for guidance, finding the decision in State v. Wigginton, 142 Idaho 180, 125 P.3d 536 (Ct. App. 2005), rev. denied December 23, 2005, to be persuasive. There, a police officer initiated a traffic stop on suspicion that Wigginton was driving under the influence of alcohol because he had crossed the centerline three times and applied his brakes for no apparent reason. As Wigginton pulled his vehicle over to the shoulder, the vehicle hit a rock, which flattened a tire. When the officer contacted Wigginton, he noted that Wigginton’s eyes were bloodshot and there was an overwhelming odor of alcohol coming from inside the vehicle. The passenger explained that someone had previously spilled a beer on the vehicle’s floorboard and that the odor increased when the heater was running. Both Wigginton and his passenger denied that they had been drinking alcohol. Wigginton satisfactorily performed afl field sobriety tests, leading the conducting officer to believe Wigginton was not impaired. Nevertheless, the officers informed Wigginton that diey were proceeding to search his vehicle because they believed that they had probable cause to look for an open container of alcohol based on the overwhelming odor of alcohol coming from the vehicle. Additionally, the officers had a-drug dog sniff around the vehicle prior to the search. The opinion does not indicate whether any open container of alcohol was found in the vehicle, but the officers recovered items used to manufacture methamphetamine, leading to a drug prosecution in which Wigginton challenged the lawfulness of the vehicle search.
The Idaho Court of Appeals concluded that the facts known to the officers provided probable cause to search for evidence of an open container violation, relying on the overwhelming odor of alcohol coming from the vehicle, the fact that both vehicle occupants denied drinking, and the fact that the field sobriety tests confirmed that Wigginton had not been drinking. 142 Idaho at 183. The court reasoned that if the vehicle occupants had not been drinking, the odor must have been coming from something within the vehicle. The court found that although the passenger s explanation of a spilled beer was plausible, “the trooper was not obligated to accept her assertion that the spill was not a recent occurrence.” 142 Idaho at 183. The court noted that “the fact that Wigginton had just struck a rock when pulling over on the officer’s signal suggested a possibility that alcohol could have spilled from a container during an abrupt stop.” 142 Idaho at 183. In reaching its conclusion that the stop was supported by probable cause, the Idaho Court of Appeals stated:
“We do not hold that an odor of alcohol that may be coming from occupants rather than from something else within the vehicle alone is sufficient to justify a search under the automobile exception. Here, however, the odor from the vehicle and additional information pointed to the likelihood of an open container in the vehicle. Cumulatively, these facts gave probable cause for a search.” (Emphasis added.) 142 Idaho at 183.
The Court of Appeals majority was persuaded by Wigginton to find that the officers here had sufficient information to establish the requisite probable cause to search Stevenson’s vehicle for an open container, reasoning as follows:
“Once Stevenson was removed from the car and it was determined that he was not intoxicated, the clear source of the ‘very strong’ odor of alcohol was the interior of the car. In fact, it was so strong the officers immediately associated the odor with an open container that had spilled in the vehicle, certainly a fair inference. If the alcohol was being transported legally in an unopened container, it would not have a detectable odor. It was reasonable for the 'officers to act on their suspicions, rather-than ignore evidence which signals a crime. See State v. MacDonald, 253 Kan. 320, 325, 856 P.2d 116 (1993) (odor of burning marijuana is sufficient by itself .to establish probable cause to séarch a vehicle); State v. Goff, 44 Kan. App. 2d 536, 540, 239 P.3d 467 (2010), [rev. denied 292 Kan. 967 (2011)] (odor of raw marijuana is sufficient by itself to establish probable cause to search a vehicle). ' ' ’
“Under the totality of the circumstances, we find that under the facts of this case, the very strong odor of alcohol emanating from inside the vehicle, when the sole occupant of the vehicle had been excluded as &⅜ source of the odor, constituted .probable cause to search the vehicle for open .containers of alcohol.” 46 Kan. App. 2d at 480.
The Court of Appeals dissent challenged the majority’s legal reasoning, pointing out that “no Kansas appellate court previously has held that the odor of a legal substance may provide the sole basis to justify a warrantless search of an automobile based upon probable cause to believe tire vehicle contained contraband or evidence of a crime.” (Emphasis added.) 46 Kan. App. 2d at 481 (Buser, J., dissenting). Because alcohol, like ether, is legal to possess in this State, the dissent would have applied Ibarra to require more than the strong odor of alcohol emanating from a vehicle to justify a warrantless search. 46 Kan. App. 2d at 481 (Buser, J., dissenting). Moreover, the dissent suggested that the discovery of an open container of alcohol inside the vehicle would not necessarily have established a crime, given that it is possible to legally transport an open container of alcohol, e.g., K.S.A. 2008 Supp. 8-1599 provides an exception allowing the transportation of an open container behind the last upright seat in a vehicle without a trunk. 46 Kan. App. 2d at 485 (Buser, J., dissenting).
The dissent also challenged the majority’s assertion that Wiggin-ton was factually similar to this case. Wigginton was stopped on suspicion that he was driving under the influence and, after the stop, the officer noted the corroborating fact that Wigginton’s eyes were bloodshot. In stark contrast, Detective Gill and Deputy Crafton stopped Stevenson for failing to activate his turn signal soon enough, as a pretext to investigate whether he was involved in the drug activity they suspected at the house they had staked out. Wigginton and his passenger denied drinking anything and were given the opportunity to explain the overwhelming odor of alcohol inside the vehicle. Here, the State presented absolutely no evidence to even suggest that Stevenson was asked about the origin of the alcoholic odor in his vehicle or whether he was asked if he had recently consumed alcohol. Indeed, the suppression hearing transcript reveals that the officers could not even say whether an odor of alcohol could be detected on Stevenson’s person when he was outside of the vehicle. Further, the dissent noted that the Wig-ginton court was influenced by tire inference that an open container of alcohol could have just spilled when Wigginton struck the rock that flattened his tire during the traffic stop. In contrast, the record here contains no evidence “leading to the inference that an open container had just spilled or was even inside Stevenson’s vehicle.” 46 Kan. App. 2d at 484 (Buser, J., dissenting). The dissent also challenged the logic of characterizing Stevenson’s sobriety as a factor that contributed to the totality of the circumstances that supported probable cause to search for an open container, because, in Bickerstaff, it was the driver’s intoxication that was the important factor leading to justifying tire search. Stevenson, 46 Kan. App. 2d at 486-87. In other words, tire dissent opined that the State failed to establish any circumstances, other than odor, from which the officers could reasonably infer that Stevenson was illegally transporting an open container of alcohol.
Moreover, the dissent opined that, akin to what this court said in Ibarra, the odor of alcohol only justified the “officers’ brief extension of the traffic stop to investigate whether Stevenson was in violation of K.S.A. 2008 Supp. 8-1599 and K.S.A. 2008 Supp. 8-1567 (driving under the influence of alcohol).” Stevenson, 46 Kan. App. 2d at 484-85. (Buser, J., dissenting). Yet, the officers apparently failed to conduct even a cursory investigation that surely would have disclosed the large bottle of wine lying in plain view on the backseat of the vehicle. 46 Kan. App. 2d at 486 (Buser, J., dissenting).
The dissent’s discussion of extending the traffic stop to investigate the specific crime of violating K.S.A. 2008 Supp. 8-1599 touches on a couple of points. First, the officers relied on a traffic infraction to effect their pretextual stop. See Whren v. United States, 517 U.S. 806, 812-13, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996) (driver’s violation of traffic code gives officers probable cause to stop vehicle even if pretext to investigate for drugs). Accordingly, the State had to show why the officers did not simply issue Stevenson a ticket for failing to properly signal a turn and let him go on his way. See State v. Spagnola, 295 Kan. 1098, 1104, 289 P.3d 68 (2012) (“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.”). In order to extend the length of a traffic stop for questioning beyond the initial purpose of the traffic stop, the officers must have possessed “an objectively reasonable and articulable suspicion that illegal activity has occurred” or must have obtained the driver’s consent to further questioning. 295 Kan. at 1105. Here, the State does not rely on consent, so the officers had to establish that they reasonably suspected illegal activity. After Stevenson passed the field sobriety tests, the only illegal activity that the officers could have suspected was that Stevenson had transported an open container of alcohol between the “drug house” and the intersection where he was stopped. As will be discussed below, that means more than just having alcohol in the car that is susceptible to being smelled from the outside.
Then, the officers’ acquisition of reasonable suspicion only entitled them to extend the detention in order to investigate further. In order to conduct a full-fledged search of the automobile, the quality and quantity of information acquired by the officers had to move them up the evidentiary continuum to the point where they had probable cause to believe they would find evidence of a crime in tire vehicle. We have stated it this way: “ ‘ “Probable cause” to search a vehicle can be established if die totality of the circumstances indicates there is a “fair probability” that die vehicle contains contraband or evidence [of a crime].’ ” State v. Jefferson, 297 Kan. 1151, 1159, 310 P.3d 331 (2013) (quoting Sanchez-Loredo, 294 Kan. at 55). “Contraband” is defined as “[g]oods that are unlawful to import, export, or possess.” Black’s Law Dictionary 341 (8th ed. 2004). Accordingly, it would not be enough for the officers to believe that there was a fair probability they would find alcohol in Stevenson’s vehicle. Rather, they had to reasonably believe that Stevenson had unlawfully transported any alcohol that might be found in the vehicle.
The Court of Appeals majority mentions the totality of circumstances and the facts of this case but then appears to formulate a modified bright-line rule: “the very strong odor of alcohol emanating from inside the vehicle, when the sole occupant of the vehicle had been excluded as the source of the odor, constituted probable cause to search the vehicle for open containers of alcohol.” 46 Kan. App. 2d at 480. We disagree with that statement, both as a rule of law and as applicable under the totality of circumstances in this particular case.
To determine whether there was a fair probability that evidence of the crime of transporting an open container would be found in Stevenson’s vehicle, we start by looking at the evidence required to prove the crime. The relevant portions of the only statute that Stevenson is alleged to have violated are as follows:
“(b) No person shall transport in any vehicle upon a highway or street any alcoholic beverage unless such beverage is:
(1) In the original unopened package or container, the seal of which has not been broken and from which the original cap, cork or other means of closure has not been removed;
(2)(A) in the locked rear trunk or rear compartment, or any locked outside compartment which is not accessible to any person in the vehicle while it is in motion; or
(B) if a motor vehicle is not equipped with a trunk, behind the last upright seat or in an area not normally occupied by the driver or a passenger; or
(3) in the exclusive possession of a passenger in a vehicle which is a recreational vehicle, as defined by K.S.A. 75-1212, and amendments thereto, or a bus, as defined by K.S.A. 8-1406, and amendments thereto, who is not in the driving compartment of such vehicle or who is in a portion of such vehicle from which the driver is not directly accessible.” K.S.A. 2013 Supp. 8-1599(b).
One first observes that the statute does not prohibit the possession of an open container in a vehicle. The gravamen of the offense is transporting the alcohol on a highway or street. Moreover, there are a number of exceptions to the prohibition on transporting alcohol. For instance, the officers identified Stevenson’s vehicle as a 2001 Chevrolet Blazer, which presumably does not have a trunk, which, in turn, would have allowed Stevenson to legally transport the unsealed wine bottle “behind the last upright seat or in an area not normally occupied by tire driver or a passenger.” K.S.A. 2013 Supp. 8-1599(b)(2)(B). In that event, the wine bottle would not have been contraband, there would have been no crime upon which to gather evidence, and the Court of Appeals’ rule would have permitted a government intrusion to search for evidence of a lawful activity.
Perhaps most importantly, both officers opined that the very strong smell suggested to them that alcohol had been spilled inside the vehicle. The district court noted that testimony and the Court of Appeals majority labeled it “a fair inference.” Stevenson, 46 Kan. App. 2d at 480. Yet, the State did not argue in this case that Stevenson’s transportation of the alcohol that had spilled on tire floorboard was a violation of K.S.A. 2013 Supp. 8-1599(b); the prosecutor confirmed at oral argument that the State was not contending that the spilled alcohol was illegal. See K.S.A. 2008 Supp. 41-102 (defining “alcoholic liquor” as substances “containing alcohol, spirits, wine or beer and capable of being consumed as a beverage by a human being”). If Stevenson had discarded the leaking wine bottle before being stopped or if the leaking wine bottle had been in a permissible location, the “very strong odor” of alcohol would have remained, notwithstanding there being no probability of finding contraband or evidence of a crime within the vehicle.
In Wigginton, tire Idaho Court of Appeals opined that “[pjrobable cause for a search is a flexible common-sense standard—a practical, nontechnical probability that incriminating evidence is present is all that is required.” 142 Idaho at 182. Utilizing Kansas common sense, one would intuit that it would be more probable that the very strong odor of alcohol emanating from inside a vehicle indicates a spill (as the officers inferred) rather than a previously opened bottle onto which the lid had been securely reattached. Here, for example, if the wine bottle had not leaked, it is unlikely the officers would have smelled anything through a capped glass bottle, even if the original seal had been broken. Countiy common sense would likewise lead one to believe that an intoxicated person would be more likely to have an open container in the vehicle from which he or she had been drinking than a sober person who had passed the field sobriety tests. Here, we know that Stevenson was cleared of driving under the influence, and we do not know whether he even smelled of alcohol.
Moreover, as the Court of Appeals majority recites, the existence of probable cause is to be determined from the totality of the circumstances under which the search occurred. Stevenson, 46 Kan. App. 2d at 480. “A review of the totality of the circumstances should, as the phrase implies, also include a consideration of the exculpatory factors.” Allen v. Kansas Dept. of Revenue, 292 Kan. 653, 660, 256 P.3d 845 (2011) (Johnson, J., dissenting), disapproved of by Sloop v. Kansas Dept. of Revenue, 296 Kan. 13, 290 P.3d 555 (2012); see also State v. Edgar, 296 Kan. 513, 525, 294 P.3d 251 (2013) (court must look at whole picture, including favorable results on field sobriety tests). Here, the vehicle was stopped in a well-lit area, and the detective stuck his head into the vehicle without observing any open container. That circumstance contradicts the notion that there would be a fair probability that a search of the vehicle would reveal an open container located in an impermissible part of the vehicle which was the source of the “very strong odor” of alcohol.
In short, the totality of the circumstances in this case only establishes that fire officers’ observation of a very strong odor of alcohol emanating from within the vehicle, which they suspected to be the result of spilled alcohol, provided them with reasonable suspicion to extend the traffic infraction detention to further investigate whether Stevenson was transporting an open container of alcohol in violation of K.S.A. 2013 Supp. 8-1599. The officers’ failure to acquire additional inculpatory facts relating to the crime being investigated before commencing their search-of the vehicle rendered the search unreasonable and unlawful.
The Court of Appeals decision affirming the district court is reversed; Stevenson’s conviction is reversed; and the matter is re manded to the district court for a new trial with the unlawfully seized evidence suppressed.
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The opinion of the court was delivered by
Luckert, J.:
A jury convicted Antonio Jermaine Armstrong of one count of premeditated first-degree murder and one count of criminal possession of a firearm. On appeal, Armstrong raises six issues.
In addressing those issues, we first hold that Armstrong was not denied a fair trial because of prosecutorial misconduct, although two statements made by the prosecutor during closing argument exceeded the wide latitude allowed in arguing a case to a jury. Second, we hold the trial court did not commit clear error in failing to instruct the jury on unintentional but reckless second-degree murder because we are not firmly convinced the juiy would have reached a different verdict had the instruction been given. Third, we reject Armstrong’s claims that the trial court erred by (a) giving only one instruction on voluntaiy manslaughter rather than separately instructing the jury it should consider whether Armstrong acted in the heat of passion, upon a sudden quarrel, or upon an unreasonable but honest belief that circumstances existed that justified deadly force in defense of a person or (b) defining only heat of passion and not the other options. Fourth, we hold that the trial court did not err in finding that there was no factual support for Armstrong’s motions for mistrial based on his allegations that (a) one juror had been inattentive and (b) two jurors had discussed his guilt during a court recess. Fifth, we hold the errors did not cumulatively deny Armstrong a fair trial. Finally, we hold the district court had jurisdiction to award restitution after judgment was pronounced at sentencing because the court indicated during the sentencing hearing that the proceeding would be continued for the determination of the restitution amount.
Facts and Procedural Background
The events leading to Armstrong’s convictions occurred in Topeka on August 10, 2007, when James Earl Dyer, Jr., was shot to death at the home of Rhonda Shaw. Armstrong and three other individuals—Drake Kettler, Jr.; Kelvin Phillips, Jr.; and Corley A. Williams—were charged with and convicted of crimes related to Dyer’s death. All four defendants appealed, and their individual appeals were argued the same day. For these related opinions, see State v. Kettler, 299 Kan. 448, 325 P.3d 1075 (2014); State v. Phillips, 299 Kan. 479, 325 P.3d 1095 (2014); and State v. Williams, 299 Kan. 509, 324 P.3d 1078 (2014).
In early 2009, all four codefendants were tried together, but the proceedings ended in a mistrial. Before the retrial, the court severed Armstrong’s case from those of the other three codefendants. Armstrong’s retrial occurred first, and while Armstrong’s testimony from his retrial was introduced into evidence at the later joint retrial of Armstrong’s codefendants, the jury in Armstrong’s trial did not hear the accounts of Armstrong’s codefendants. Nor did the jury hear from Shaw, who passed away before the trial. Nevertheless, the jury did hear the testimony of two individuals'—Leonard Mun and Teri Johnson—who were in Shaw’s house with Dyer on the day he was shot.
Johnson, who was Dyer’s girlfriend, testified about the events leading up to the shooting. She began by telling the jury that she and Dyer had walked to a liquor store where they ran into Shaw and Mun. Johnson visited with Shaw, and it was agreed they would all go to Shaw’s house. While Shaw shopped at the liquor store and an adjoining smoke shop, Johnson started toward Shaw’s car. Before Johnson got into the car, Phillips, whom Johnson knew, approached her and asked if she was “straight,” meaning did she need to buy any drugs. Johnson told him she did not. She then got into Shaw’s car, where Dyer and Mun were sitting. Phillips again approached her; he handed her his phone number and told her to call if she needed something.
After Shaw completed her shopping and Johnson, Dyer, Mun, and Shaw were driving away, Johnson looked behind her and saw Phillips and some other men running down the alley behind the liquor store and smoke shop. This was corroborated by surveillance camera recordings.
A short time after Shaw, Mun, Johnson, and Dyer arrived at Shaw’s house, Shaw’s home phone rang. Shaw answered the phone and said, “Yeah, yeah,” and then passed the phone to Mun. According to Mun, no one was on the line, so he hung up. After the phone call, Shaw asked Dyer if he was “J.D.,” and Dyer answered that he was.
A few minutes after the phone call, there was a knock at Shaw’s front door. Mun went to the door, but before opening it he asked, “Who is it?” After a moment, the person on the other side of the door responded, “Little Man,” which Mun recognized as Kettler’s street name. Mun told the others who was at the door, and Dyer jumped up, left the room and went to the back of the house. Mun delayed opening the door because he had heard a rumor that Dyer had robbed Kettler’s dope house and he thought there could be trouble. When Mun opened the door, he did not see anyone. Then he looked to the side of tire house and saw Armstrong, Phillips, and Kettler. The three men ran past Mun and into the house where Phillips immediately got in Johnson’s face asking, “Bitch, where is he at?” Johnson replied that she did not know what he was talking about, and Phillips and the others ran out of the house.
According to Mun, the three men went around the north side of the house and another man, Williams, approached and went around the south side of the house. Armstrong, Phillips, Kettler, and Williams returned to the front door after apparently realizing they could not get to the back of Shaw’s house because of a fence. Armstrong, Phillips, Kettler, and Williams walked past Mun, who remained outside the front door. Mun did not see a gun in anyone’s hands. Johnson, however, testified that Kettler, Phillips, and Armstrong came back into the house, all with “guns in their hands.” As the men came back into the house, Johnson got up and ran out of the house.
Mun knew that Phillips, Williams, Kettler, and Armstrong had found Dyer because he heard a lot of tussling. He stepped inside and saw one of the men run into the living room and grab a big ashtray and other objects; the man ran back toward the bedroom and threw the objects. Then, Mun heard several gunshots. Mun could not see who was shooting or who was shot. After the shots, all four men—Armstrong, Williams, Kettler, and Phillips—ran out of the house.
Meanwhile, Johnson ran to a neighbor’s house. After knocking on a door, she asked the neighbor to call 911. She then heard gunfire and ran back toward Shaw’s house. On her way, she saw the same men she had seen enter the house; the men ran out of Shaw’s house, jumped into a brown car, and drove away. Johnson found Dyer lying on the bedroom floor, unresponsive and bleeding from multiple gunshot wounds, which were caused by two separate bullets. One bullet pierced Dyer’s heart, causing his death. Dyer also had several lacerations and abrasions on his head and right hand and a bite wound. An expert opined that Phillips was the probable biter.
Five shell casings, three projectiles, and one unfired bullet were collected from the scene, and two additional projectiles were collected from Dyer’s body during the autopsy. All the shell casings, the projectiles, and the unfired bullet were 9 mm. A fire and tool mark examiner identified the five fired bullets as being fired from the same weapon.
During the investigation into the shooting, Armstrong presented numerous inconsistent versions of what happened on August 10, 2007. In Armstrong’s first two interviews with law enforcement officers, he denied knowing anything about Dyer’s death. Nevertheless, based on other information learned during the investigation, he was arrested and charged with premeditated first-degree murder, in violation of K.S.A. 21-3401(a), and criminal possession of a firearm, in violation of K.S.A. 21-4204(a)(4)(A).
After several months in jail, Armstrong requested a third interview, apparently in the hope of receiving a plea deal. During this interview, which occurred on December 28, 2007, Armstrong admitted to being present when die shooting occurred. He indicated that before the shooting he had been driving around with Williams and Kettler, and they had told him Williams had been robbed at gunpoint by Dyer and another man. While they were driving around, they received a phone call from Phillips telling them that Dyer was at a nearby liquor store and smoke shop. Williams immediately drove to the liquor store, where Phillips told them that Dyer was on his way to Shaw’s house. Armstrong asked to be dropped off at a friend’s house, but Williams drove Armstrong and the others to Shaw’s house. On the way, they decided they would beat up Dyer and that they would not use guns. Despite the no-guns-allowed agreement, Phillips apparently took a gun with him and used it to shoot Dyer. Under this version, Armstrong was not an active participant in the fight. Rather, Kettler and Phillips fought with Dyer, and Armstrong remained where he could only see some of the action and hear the gunshots. After diey left Shaw’s house, the others argued with Phillips because they agreed not to shoot Dyer.
In April 2008, as part of a plea agreement, Armstrong gave a sworn deposition-style statement to the district attorney with Armstrong’s attorney present. This statement was also admitted into evidence at Armstrong’s trial. In this statement, Armstrong’s story changed drastically. Not only did Armstrong admit to being at the scene of the shooting, he admitted that he, Williams, Kettler, and Phillips intended to kill Dyer.
More specifically, Armstrong again indicated that Williams was searching for Dyer because of the robbery, but in this statement he reported that he had been aware of the robbery for some time. Before the day of the shooting, Armstrong, Williams, and Kettler decided they would shoot Dyer if they saw him. At the time of these conversations, Phillips was in jail, but Kettler telephoned Phillips and informed him of the plan by using “code.” Armstrong indicated his willing participation in the plan and even said that he wanted to be the one to shoot Dyer because, just a couple of days after Williams had been robbed, Armstrong had been grazed by a bullet during a drive-by shooting. He believed Dyer was one of the shooters.
On the day Dyer was shot, Armstrong stated that he was driving around with Kettler and Williams when Kettler got a phone call from Phillips, who had just been released from jail. Phillips informed Kettler that Dyer was at the smoke shop. Williams quickly drove to the smoke shop. In route, Kettler opened a hiding place in the dashboard of Williams’ car and pulled out a gun, which Kettler handed to Armstrong. As soon as Williams pulled into the alley near the smoke shop, Armstrong and Kettler jumped out of the car and ran in the direction of the smoke shop. Phillips met them and told them that Dyer was on his way to Shaw’s house. The group then drove to Shaw’s house. Along the way, Ketder used Phillips’ phone to call Shaw, but Armstrong did not hear the conversation.
When Williams, Kettler, Phillips, and Armstrong arrived at Shaw’s house, Armstrong, Ketder, and Phillips got out of the vehicle and went up to the front of the house while Williams turned the vehicle around to park on the other side of the street. Armstrong still held tire gun. Williams then joined the others, and Ket-tler knocked on the front door. After a long pause, someone said, ’Who is it?” and Ketder replied, “Litde Man.” Then Mun opened the door and said, “Two of y’all come through the back and two of y’all come through the front.” Armstrong and Kettler stayed at the front of the house, while Williams and Phillips went around the back. Williams and Phillips soon returned because a fence prevented them from accessing the back door. Phillips then grabbed the gun from Armstrong, and the four men entered the house.
Phillips, who was the first one in the house, demanded, ‘Where is he at?” Johnson replied that he was not there and ran out of the house. Phillips headed to the back part of the house and into the bathroom, where he pulled back the shower curtain. Dyer jumped out and starting fighting with Phillips. Kettler, who ran past Arms trong to help Phillips, wrestled with Dyer for control of the gun Phillips had been carrying.
Armstrong joined in the fight by trying to pull Dyer off Phillips. When he was unsuccessful, Armstrong ran into the living room, grabbed an ashtray, returned to the fight, and started hitting Dyer on the top and back of his head. Phillips soon got loose, went to the bedroom, and cocked the gun. Dyer then jumped on Phillips’ back and started fighting again. Armstrong again hit Dyer in the back of the head with the ashtray, causing Dyer to fall to the floor. At that point, Phillips stepped back and started shooting. Then Phillips walked out, and Kettler, Williams, and Armstrong followed. .
After Armstrong gave this sworn statement and agreed to testify in proceedings against his codefendants, the State agreed to lower the charges against Armstrong to conspiracy to commit first-degree murder with a sentence of 12 to 15 years of imprisonment. Consistent with the plea agreement, Armstrong testified at a joint preliminary heaiing relating to the charges against Williams, Kettler, and Phillips. A transcript of this preliminary hearing testimony was also admitted at Armstrong’s trial and read into the record.
Armstrong’s testimony at the joint preliminary hearing was largely consistent with his sworn statement. Armstrong testified that he, Williams, Kettler, and Phillips wanted to find Dyer because he had robbed Williams, and, if they found Dyer, they planned to “[b]low his head off.” Armstrong again admitted that he wanted to be the one to shoot Dyer because of the drive-by shooting, and he admitted that Kettler had handed him a gun while they were on their way to the liquor store.
After this testimony and Armstrong’s own preliminary hearing, Armstrong decided not to cooperate with the State. In a notarized affidavit handwritten by Armstrong, he stated that his prior statements were not true and were the result of coercion by his former defense counsel. Accordingly, the State revoked the plea deal and reinstated the charges of premeditated first-degree murder and criminal possession of a firearm.
Armstrong did not testify at the first joint trial, which ended in a mistrial after the jury advised the trial court it could not reach a verdict. Armstrong again changed course and, at his individual retrial, decided to testily in his own defense. During his trial testimony, he indicated that his previous statements were not true. He explained that he had accused Phillips, Kettler, and Williams because he wanted to seek revenge against them after he had been led to believe they had betrayed him and were claiming he was tire shooter. He testified he read all the paperwork and law enforcement reports and made up a story that matched what was discovered during the homicide investigation. After explaining the previous statements, Armstrong proceeded to testify to “what really happened.”
Armstrong told the jury that on the day of Dyer’s shooting, Armstrong was at his girlfriend’s house when Williams and Kettler picked him up to go driving around in Williams’ vehicle. They then went to Kettler’s “baby mama’s house.” While there, Kettler received two calls on Williams’ phone. One call was from an individual named Vanessa, who wanted to purchase crack cocaine. The other call was from Shaw, who told Kettler she had some money she owed him. Kettler, Williams, and Armstrong first went to Vanessa’s, which was “right around the corner from the smoke shop.” While there, Phillips called and asked to be picked up at the smoke shop. Kettler and Armstrong walked to the smoke shop and met up with Phillips, who told them they needed to hurry up because he needed to make a run. Armstrong, Phillips, and Kettler ran back to Vanessa’s, where Williams was waiting. On the drive to Shaw’s, Kettler asked Phillips if he could use Phillips’ phone. Armstrong guessed it was so Kettler could call Shaw.
As Armstrong’s testimony continued, he indicated the four men entered Shaw’s house and Shaw started counting out the money she owed Kettler. When she finished, Johnson said, “[L]et me talk to you all.” Johnson acted like she was going to the back of the house, but she let Phillips and Kettler go in front of her. Then, out of nowhere, there was the sound of a curtain being snapped back, and Dyer came out of the bathroom with a black gun in one hand and a silver gun in the other. He said, “[Y]ou-all drop out,” meaning give him your property. “A split second later [Phillips], all in one motion, ... he had [Dyer’s] one arm which made it go into the wall, hit the wall so hard that one gun flew out of [Dyer s] hand and hit the wall so hard that the clip fell out of it.”
Kettler and Phillips lunged after the other gun, which was still in Dyer s hand, and they started to wrestle with Dyer. Armstrong tried to grab Dyer around his neck and pull him to the floor, but there was not enough room. Armstrong saw the gun and grabbed it, but all he was able to do was pull back on the top of the gun. Armstrong then went into the living room to find something to use to hit Dyer. He grabbed an ashtray and used it to hit Dyer in the face. The ashtray flew out of Armstrong’s hand, so Armstrong turned and grabbed a mug and started hitting Dyer again.
At some point, Phillips got loose and ran to the bedroom. Dyer followed and grabbed Phillips by the neck. In turn, Armstrong grabbed Dyer by the back of his shirt and hit him in the back of the head three times, causing Dyer to fall to the floor. Then, Phillips “turned around and started shooting.” Kettler came out of nowhere and shoved Phillips into the wall and said, “Let’s go.”
As they were leaving the house, Armstrong saw Williams pick up the first gun that Dyer had dropped. They got back into the car and headed to the home of Armstrong’s girlfriend. At the house, Armstrong, Kettler, and Williams argued with Phillips because he was not supposed to shoot Dyer.
The jury convicted Armstrong of premeditated first-degree murder, in violation of K.S.A. 21-3401(a), and criminal possession of a firearm, in violation of K.S.A. 21-4204(a)(4)(A). Armstrong received a controlling sentence of life imprisonment without the possibility of parole for 25 years for the premeditated first-degree murder conviction and 11 months’ imprisonment for the criminal possession of a firearm conviction.
Armstrong filed a timely appeal, over which this court has jurisdiction under K.S.A. 22-3601(b)(l) (maximum sentence of life imprisonment imposed).
Prosecutorial Misconduct
In his first issue on appeal, Armstrong claims the prosecutor violated his right to a fair trial by committing prosecutorial misconduct. Armstrong separates his argument into four segments. Three of the arguments relate to different portions of the prosecutor s closing and rebuttal arguments. As to those arguments, we hold that two of the prosecutor’s statements were outside the wide latitude allowed but did not deprive Armstrong of a fair trial. Armstrong’s fourth prosecutorial misconduct argument relates to an alleged violation of an order in limine. With regard to this claim of error, we conclude the record is not sufficient for us to determine whether there was misconduct.
General Principles and Standard of Review
Generally, a prosecutor has wide latitude in crafting arguments. Nevertheless, the arguments “must accurately reflect the evidence, accurately state the law, and cannot be "intended to inflame the passions or prejudices of the jury or to divert the jury from its duty to decide the case based on the evidence and the controlling law.’ ” State v. Raskie, 293 Kan. 906, 917, 296 P.3d 1268 (2012) (quoting State v. Tosh, 278 Kan. 83, 97, 91 P.3d 1204 [2004]).
Appellate review of allegations of prosecutorial misconduct, including misconduct occurring during closing arguments, which need not be preserved by a contemporaneous objection, requires a two-step process. First, an appellate court determines whether there was misconduct, i.e., whether the prosecutor’s comments were outside the wide latitude allowed in discussing tire evidence. Second, if misconduct is found, the appellate court determines whether those comments compel reversal, i.e., whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Bridges, 297 Kan. 989, 1012, 306 P.3d 244 (2013); Tosh, 278 Kan. at 85.
In analyzing the second step of whether the defendant was denied a fair trial, an appellate court considers three factors: “(1) whether the misconduct was gross and flagrant; (2) whether it was motivated by prosecutorial ill will; apd (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors.” No one factor is controlling. Bridges, 297 Kan. at 1012; Tosh, 278 Kan. at 93.
Before the third factor can ever override the first two factors, an appellate court must be able to say that the State can meet the harmlessness tests of both K.S.A. 60-261 and Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386 U.S. 987 (1967). Bridges, 297 Kan. at 1012 (citing Tosh, 278 Kan. at 97). In Chapman, the United States Supreme Court directed that a constitutional error can be deemed harmless only if “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 the trial in light of die entire record, i.e., where there is no reasonable possibility that the error contributed to the verdict.” State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). If the error does not violate the United States Constitution, the harmless error analysis is defined in K.S.A. 60-261, and the test is whether “there is a reasonable probability that the error did or will affect the outcome of the trial in light of the entire record.” 292 Kan. 541, Syl. ¶ 6.
Even though we have applied this dual harmless error standard, we also have observed that, as a practical matter, the result of the harmless error evaluation depends on the outcome of the constitutional standard. “[B]oth the constitutional and nonconstitutional error clearly arise from the veiy same acts and omissions,” and the constitutional standard is more rigorous. Thus, the State necessarily meets the lower statutory standard under K.S.A. 60-261 if it meets the higher constitutional standard. See Bridges, 297 Kan. at 1015 (citing State v. Herbel, 296 Kan. 1101, 1111, 299 P.3d 292 [2013]).
Turning to this case, we apply these standards to the three challenged passages from the prosecutor s closing and rebuttal arguments. Armstrong challenges: (1) A portion of the State’s closing argument in which the prosecutor told the jurors that they had already formed opinions; (2) another portion of the State’s closing argument in which the prosecutor told the jurors that Armstrong would be a “free man” and would be “out of here” if they believed his trial testimony; and (3) a portion of the State’s rebuttal argument in which the prosecutor implied that Armstrong would lie about being at the scene of the crime if there was no evidence to contradict it.
1. Statement telling the jurors they already have an opinion on Armstrong’s guilt
Turning to the first contention, during the State’s closing argument the prosecutor emphasized the trial court’s instruction that it was for the jurors to determine the weight and credit to be given to the testimony of each witness. The prosecutor continued by stating:
“You have a right to use common knowledge and experience in regard to the matter about that which a witness has testified. Again, that’s your common sense instruction. That’s the one where we tell you that just because you are selected as jurors doesn’t mean we’re asking you to suspend your common sense, forget your life experiences. You were chosen for a reason. Because all of you have different life experiences thatyou bring to the table. We want you to use those. I know all of you have common sense. I asked you-all and you said you had it, you-all said you’d use it. I’m confident if you do that, if you use your life experience, use your common sense and listen to the evidence and just decide yourself what makes sense to me, what do I believe based on what I’ve heard, because you knew nothing about the case before you walked in. But as you sit right there, you have an opinion, you don’t get to share it yet until you deliberate, but you have an opinion. Every one of you has an opinion right now.
“That opinion is based on what, the evidence that you heard and you filter through your life experience and common sense. I told you the defendant was charged with two crimes, the first one is first degree premeditated murder and that’s in Instruction No. 7. The State is required to prove to you those three elements.” (Emphasis added to challenged statements.)
According to Armstrong, telling the jurors that they each had an opinion about the case violated K.S.A. 22-3420(2), which requires the trial court to admonish the jury at every break “that it is their duty not to converse with, or allow themselves to be addressed by any other person on any subject of the trial, and that it is their duty not to form or express an opinion thereon until the case is finally submitted to them.” In this trial, the court admonished the jury in accordance with this statute at the beginning of the trial and every time the jury separated. Yet, despite the repeated direction that jurors should not form an opinion until the case was finally submitted, the prosecutor, according to Armstrong, essentially told the jury it did not have to follow those directions. The State counters by arguing that the prosecutor’s statement was “merely an acknowl-edgement that the jurors had been properly assimilating and eval uating the evidence as it was presented within the realm of their own life experience and common sense,” which is simply an- accurate statement of human psychology.
The State’s argument, however, ignores the plain language of both the trial court’s admonition to the jury and K.S..A. 22-3420(2), which broadly indicates the jurors are riot to form or express an opinion “on any subject of the trial” until the case is finally submitted to the jury. Thus, the prosecutors statements are contrary to established Kansas law and are outside the wide latitude allowed a prosecutor in closing argument. See Raskie, 293 Kan. at 917 (prosecutor commits misconduct if he or she misstates the law).
Having found that the prosecutor committed misconduct, we turn to the second step of our analysis, which consists of applying the three factors used to determine whether the prosecutor’s misstatements denied Armstrong a fair trial. First,-we must determine if the misconduct was gross and flagrant. See Bridges, 297 Kan. at 1012. Often in examining this factor, we assess whether the statement is contrary to a longstanding rule of law. See State v. Kemble, 291 Kan. 109, 121-25, 238 P.3d 251 (2010) (factors determining gross and flagrant conduct include repeated comments, emphasis on improper point, planned or calculated statements, violation of a well-established rule, and violation of a rule designed to protect a constitutional right); see also, Bridges, 297 Kan. at 1015-16 (prosecutor’s conduct was gross and flagrant because it violated the well-established rule prohibiting comments on the defendant’s credibility). Here, the prosecutor’s statement was contrary to a statute enacted in 1970, the contents of which, are reiterated many times during every jury trial. See L. 1970, ch. 129, sec. 22-3420. Consequently, we conclude the statement was gross and flagrant.
Under the second- factor, it must be determined whether the prosecutor’s statement was a result of ill will. A prosecutor’s ill will is often “ reflected through deliberate and repeated misconduct.’ ” State v. Inkelaar, 293 Kan. 414, 430, 264 P.3d 81 (2011). Here, when considered in context, the misstatement appears to be nothing more than an ill-phrased attempt to implore -the jurors to use their common sense and experience when weighing the evidence and to remind the jurors of the voir dire discussions about the importance of doing so. Further, the statement was isolated; the prosecutor did not return to the point. Given this context, we conclude the prosecutor was not motivated by ill will.
Finally, we consider whether the evidence against the defendant was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of the jurors. In arguing that the misstatement was likely to have affected the jurors’ deliberations, Armstrong quotes from State v. McLeskey, 138 Idaho 691, 694, 69 P.3d 111 (2003), in which the Idaho Supreme Court expressed its concern that “[hjaving come to a tentative opinion regarding an issue, jurors may then require the defendant to disprove that opinion, thereby shifting the burden of proof to the defendant.” As we consider this argument, it is important to place the McLeskey court’s discussion in its full context and consider that context in light of guidance from decisions of this court.
In McLeskey, the trial court told the jurors they could discuss the case among themselves during the trial, as long as all discussions occurred in the jury room with the alternates present and, “ ‘most important, you reach no final decisions on any contested questions, remembering that you’re only making temporary assessments as the case progresses.’ ” 138 Idaho at 693. The Idaho Supreme Court noted that “[tjhere are several risks inherent in permitting jurors in a criminal case to discuss the case among themselves before it is submitted to them to reach a verdict.” 138 Idaho at 694. One such concern is that “[jjurors who have announced their opinions regarding such ‘temporary assessments’ may be less likely to change their minds in the face of evidence or argument that is contrary to their expressed opinions” and, in this context, might shift the burden. 138 Idaho at 694. The Idaho court’s principal concern was with allowing jurors to express and discuss their views before the case had been submitted, which is not what the prosecutor in this case was suggesting Armstrong’s jury should do.
The concern with jurors announcing and discussing preliminary leanings was also discussed by this court in a case cited by the State, State v. Hays, 256 Kan. 48, 883 P.2d 1093 (1994). In Hays, after a midmorning recess during the State’s presentation of evidence, the court reporter provided the trial court with some questions the juiy wanted to have asked of a witness. When court reconvened, the judge relayed the jurors’ questions and asked the State to recall a witness to answer the questions. On appeal, the defendant argued the procedure was contrary to K.S.A. 22-3420(2), in part because it condoned the jurors’ obvious discussion of the evidence during the midmoming recess.
The Hays court, in discussing the risks of allowing the jurors to ask questions, agreed that one of the more troubling aspects of the procedure was “[t]he fact that the jurors discussed among themselves what questions to ask.” 256 Kan. at 60. The court continued: “While jurors clearly cannot refrain from assimilating and evaluating the evidence as it accumulates during trial, the jurors should not begin deliberating on the case until it is submitted to them.” 256 Kan. at 60.
Considering the distinction drawn by the Hays court between deliberations and the process of assimilating and evaluating evidence, the prosecutor’s statements here appear to be targeted more toward the idea of jurors evaluating evidence than urging the jurors to do or say anything that might make them less open to full consideration of both sides of the case. Further, without question, we want jurors who are thoughtfully listening and testing one witness’ testimony against the testimony of other witnesses and any physical evidence. Doing so is not contrary to K.S.A. 22-3420(2) or the jury admonition.
The Hays decision explains this by stating: “ ‘We properly expect jurors to refrain from deliberating on a case until it is submitted to them. [Citation omitted.] Deliberation in this sense, however, means articulating and exchanging views, albeit preliminary, with one’s fellow jurors. [Citation omitted.] It does not mean the absence of thought, however preliminary.’ ” 256 Kan. at 60 (quoting Spitzer v. Haims & Co., 217 Conn. 532, 545, 587 A.2d 105 [1991]); see, e.g., State v. Griffin, 262 Kan. 698, 702-03, 941 P.2d 941 (1997) (holding that jurors did not prematurely begin deliberations even though a juror was heard stating to other jurors that “ ‘the witness and participants were all old enough to remove themselves from the situation’ ” and other witnesses nodded their heads affirmatively); cf. United States v. Steele, 298 F.3d 906, 911 (9th Cir. 2002) (noting that jurors who reached a verdict on Monday morning may have come “to a resolution during a weekend when they individually pondered evidence,” which was not contrary to the deliberation process because it is unrealistic to expect the jurors not to think about the case during the trial).
In this case, the prosecutor s poor choice of words conflicted with K.S.A. 22-3420(2) and the trial court’s directions to the jurors. Nevertheless, the prosecutor, when his comments are read in context, seemed to be asking the jurors to consider their credibility assessments in light of the instructions of the court and his arguments. In fact, the prosecutor followed die misstatements with arguments about how the evidence established the elements of the charged offenses. The prosecutor obviously wanted the jurors to consider the evidence in a light favorable to the State, but the prosecutor’s continuing arguments indicate the prosecutor wanted the jurors to continue the process of filtering the evidence through the sieve of common sense and experience and to not yet reach a final decision.
In addition, as we consider the effect of the statements on the jurors, we contrast the ambiguous statements of the prosecutor •with tire clear admonition of the trial court to not form or express an opinion until the case was finally submitted to them. The jurors had repeatedly heard this admonition and, given the constant repetition, it seems unlikely the jury would have stopped listening to either counsel’s arguments, stopped considering the weight and credibility of evidence, or decided that the defense had the burden of proof or persuasion. Moreover, because we presume the jury followed the trial court’s instructions, which told the jurors the burden of proof never shifts to the defense and told them to keep an open mind until the case had been submitted, the trial court’s guidance served to mitigate any potential harm caused by tire prosecutor’s statements. See State v. Huddleston, 298 Kan. 941, 956, 318 P.3d 140 (2014) (“Although these instructions do not give the prosecutor a free pass on misconduct, they are appropriate considerations when evaluating whether a jury was misled.”); State v. Hebert, 277 Kan. 61, 85, 82 P.3d 470 (2004) (noting jury had been given proper PIK instruction and was presumed to have followed it over prosecutor’s statements); State v. Jamison, 269 Kan. 564, 572-73, 7 P.3d 1204 (2000) (prosecutor’s misstatement on the law on premeditation was not reversible error when the jury was properly instructed on the law).
More damaging to Armstrong’s cause than the prosecutor’s statements is the reality that Armstrong had presented six inconsistent versions of events and had admitted to telling lies while under oath. Also, Armstrong had admitted to studying the details of police reports and crafting his previous sworn statement and testimony to fit those details. While he asked the jury to believe that he was finally telling the truth in his trial testimony, he could not stop his past practice of trying to match the details of the evidence. For example, in Armstrong’s trial testimony about his struggle with Dyer for the gun, he told the jury all he could do was pull tire top part of the gun and, “I didn’t even know a bullet had popped out, but that explains the bullet that wasn’t shot in evidence.”
In contrast to Armstrong’s ever-changing story and transparent attempts to match the physical evidence, the jury heard other witnesses who provided evidence of a feud between Armstrong’s friends and Dyer and laid out a chronology of events that suggested Armstrong and his codefendants went to Shaw’s house, with at least one gun in hand, for the purpose of finding Dyer. While the evidence against Armstrong was not overwhelming, it was sufficiently strong to convince us that the misconduct would likely have had little weight in the mind of the jurors.
2. “If you believe the defendant, he’s a free man ’ and ‘lie’s out of here”
Armstrong’s next prosecutorial misconduct argument is based on a second portion of the prosecutor’s closing argument. While going through the elements of the charged crimes, the prosecutor stated:
“We have Antonio Armstrong right in the thick of it, right in the middle of it smashing James Dyer in the head with that ashtray, multiple times. There’s no doubt he’s an active participant. Then the question was was it done with premeditation. Again, that comes down to what do you believe? Do you believe the defendant? If you believe the defendant he’s a free man when ijou get done. There’s no issue of premeditation if you believe him, because they went over there for what, so [Kettler] could collect some money that [Shaw] owed him. . . . There’s no crime if you believe him. What he’s told you is self-defense or defense of another he’s a free man.
“The second charge is possession of a firearm. Again, i.e., the third element on that on Instruction No. 12 is that it occurred on August 10th of‘07 here in Shawnee County, again that’s a nonissue; two, that die defendant within ten years preceding this possession had been convicted of a felony. Well, he stipulated to that. He’s a convicted felon, and, one, that Antonio Armstrong knowingly had possessed the firearm. Again, if you believe him, no, he’s out of here. If you believe all die other evidence, including his earlier statements under oath, not only did he possess the firearm, he wanted to do it.” (Emphasis added to challenged statements.)
Armstrong argues that these statements were improper for two reasons. First, the jury could have believed the version of events in Armstrong’s trial testimony and still convicted him of any of the instructed lesser included offenses, including imperfect self-defense voluntary manslaughter, heat of passion voluntary manslaughter, or voluntary manslaughter. Second, these statements improperly appealed to the jury’s sense of duty to protect the community.
We first focus on Armstrong’s arguments that the prosecutor was wrong in saying that the defendant was a “free man” or “out of here” if the jury believed Armstrong’s trial testimony. In considering these arguments, there are two significant aspects of Armstrong’s trial testimony that he now ignores.
First, Armstrong testified that Phillips was the shooter and that Armstrong only touched the gun when trying to remove it from Dyer’s grip. Thus, Armstrong’s culpability for Dyer’s death depended on his aiding and abetting Phillips, and this requires that he had the intent to promote or assist in tire commission of the crime. See K.S.A. 21-3205(1) (“A person is criminally responsible for a crime committed by another if such person intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime.”); State v. Llamas, 298 Kan. 246, 254-55, 311 P.3d 399 (2013) (discussing intent element of aiding and abetting); PIK Crim. 3d 54.05 (responsibility for crimes of another) (“A person who, either before or during its commission, intentionally (aids) (abets) (hires) (counsels) (procures) another to commit a crime with intent to promote or assist in its commission is criminally responsible for the crime committed regardless of the extent of the defendant’s participation, if any, in the actual commission of the crime.”).
In some circumstances, an aider and abettor could possess that intent based, for example, on (a) his or her own unreasonable belief that it was necessary to defend someone or (b) his or her own heat of passion, but the second aspect of Armstrong’s testimony removes those and similar possibilities because Armstrong testified that Phillips was not supposed to shoot Dyer. In fact, he indicated that he, Kettler, and Williams argued with Phillips after they left Shaw’s house because Phillips had fired the gun. This testimony indicates that Armstrong did not form the intent to assist in the shooting of Dyer, either in an intentional or a reckless manner; rather, Armstrong did not believe the circumstances warranted shooting Dyer. Hence, as the prosecutor argued, if the jury fully believed Armstrong’s trial testimony, he did not intend to aid or abet the shooting of the gun, the uncontroverted cause of death.
Thus, the prosecutor’s point was correct—if the jury fully believed Armstrong, he did not aid and abet the shooting of Dyer and therefore could not be convicted of any degree of murder. Likewise, the second statement—“Again, if you believe him, no, he’s out of here,” which referred to the criminal possession of a firearm charge-—correctly reflected the result if the jury fully believed Armstrong’s testimony. Under Armstrong’s trial version of events, he never possessed a firearm; at most he touched the top of a gun and, therefore, could not be convicted of possession of a firearm. Consequently, in this respect, the statement was not misconduct.
In other portions of the closing argument, the prosecutor covered the possibility that a juror would believe some, but not all, of Armstrong’s trial testimony. In addition, the prosecutor told die jury it must consider the various lesser included offense instructions. Hence, when considered in context, the prosecutor’s statements were not an improper statement of the outcome that would result if the jury fully believed Armstrong’s trial testimony.
With regard to Armstrong’s argument that these statements were an improper appeal to tire jury’s sense of duty to protect the community, “a prosecutor crosses the line of appropriate argument when that argument is intended to inflame the jury’s passions or prejudices or when the argument diverts the jury’s attention from its duty to decide the case on the evidence and controlling law.” State v. Adams, 292 Kan. 60, 67, 253 P.3d 5 (2011); State v. Tosh, 278 Kan. 83, 90, 91 P.3d 1204 (2004). Arguing the prosecutor’s statements crossed the line, Armstrong suggests these statements are similar to those in State v. Finley, 273 Kan. 237, 244, 42 P.3d 723 (2002), in which the prosecutor remarked to die jury, “We don’t want people making meth in our communities.” This court held the comment was an improper appeal to the jury to render a verdict to protect the community. 273 Kan. at 244-45.
In contrast, the prosecutor in this case was not directing the jurors away from their duty to decide the case based on the evidence by suggesting the jurors needed to protect the community. Instead, the prosecutor directed the jurors to their duty to find the defendant not guilty if it found his trial testimony and, thus, his defense credible. Therefore, we conclude that the prosecutor’s statement was an appropriate argument based on the evidence and was not misconduct.
3. Statements implying Armstrong would lie
The final challenged statements occurred during the State’s rebuttal argument. The prosecutor stated:
“Look at the facts, look at the evidence compared to what he told you. And as you dig deep as he’s requested, you’ll see the inconsistencies with his versions. Keep in mind, his most recent version which is, I believe, the third, fourth or fifth one still isn’t consistent. Now he knows there’s certain things he can’t deny. I mean, the evidence is overwhelming he can’t deny being there. If he could, he would. We know Antonio Armstrong is all about self-preservation, we know he toill do anything and everything he can to benefit himself, including denial, half-truths, truths, other stories. Whatever it takes he will do and he will say, but look at his final version because he knows what the evidence is so he has to admit certain things, but it’s a lot like Dr. Winter’s testimony, if you remember when he does his analysis, he takes the impression and compares it to the bite and lineup known or congruent points and then as he works right to left he sees where it starts falling apart. As you dig deeper, things don’t make sense, given what he said the intended purpose was for going over.” (Emphasis added to statements.)
Armstrong argues that these statements constituted misconduct for three reasons: (1) The prosecutor violated a clear and longstanding rule that a prosecutor is to refrain from injecting his or her personal opinion on a defendant’s truthfulness; (2) the prosecutor speculated on matters outside the record; and (3) the prosecutor was acting as a witness.
As Armstrong argues, it is improper for a prosecutor to offer his or her personal opinion as to the credibility of a witness, including the defendant. See State v. Elnicki, 279 Kan. 47, 60-64, 105 P.3d 1222 (2005); State v. Davis, 275 Kan. 107, 121, 61 P.3d 701 (2003); State v. Pabst, 268 Kan. 501, 506, 996 P.2d 321 (2000). Nevertheless, a prosecutor has “ ‘freedom ... to craft an argument that includes reasonable inferences based on the evidence’ ” and “ ‘when a case turns on which version of two conflicting stories is true, [to argue] certain testimony is not believable.’ ” State v. King, 288 Kan. 333, 352, 204 P.3d 585 (2009) (quoting Davis, 275 Kan. at 121); Pabst, 268 Kan. at 507. For example, it is not improper for a prosecutor to offer “comments during closing arguments regarding the witness’ motivations to be untruthful.” King, 288 Kan. at 353; see State v. McReynolds, 288 Kan. 318, 326, 202 P.3d 658 (2009) (A prosecutor may offer “the jury an explanation of ‘what it should look for in assessing witness credibility.’ ”); State v. Scaife, 286 Kan. 614, 624, 186 P.3d 755 (2008) (same). But a prosecutor must do so by basing the comment on evidence and reasonable inferences drawn from that evidence and without stating his or her own personal opinion concerning a witness’ credibility or accusing a witness or defendant of lying. See State v. Akins, 298 Kan. 592, 606-08, 315 P.3d 868 (2014); State v. Marshall, 294 Kan. 850, 857, 281 P.3d 1112 (2012); King, 288 Kan. at 353; Elnicki, 279 Kan. at 60-62; Davis, 275 Kan. at 121; Pabst, 268 Kan. at 506-07.
For example, in Pabst, 268 Kan. at 505-10, this court concluded that the prosecutor committed misconduct by calling the defendant or defense counsel liars at least 11 times during closing argument. The prosecutor’s arguments were his personal opinion on die credibility of the defendant and the State’s witnesses, which was unsworn testimony and was clearly improper, especially when Pabst’s credibility was crucial to the case. 268 Kan. at 507. In contrast, in Finley, this court found that the prosecutor’s statement, “He’s said various things at various times, and the reason why people do that is because they can’t keep all the lies straight,” was a proper comment because evidence had been admitted establishing that the defendant had made inconsistent statements. 273 Kan. at 246. Yet, as in Pabst, when the prosecutor in Finley strayed from the evidence and stated, “And I’m sorry, but I just can’t buy this story,” the court held the prosecutor expressed her belief as to credibility and committed misconduct. Finley, 273 Kan. at 247; Pabst, 268 Kan. at 507.
Similarly, in Elnicki, 279 Kan. 58, this court acknowledged that several of the prosecutor’s statements, such as, “ ‘The defendant’s story of what happened lacks plausibility and credibility,’ ” were arguably a fair comment on the evidence of Elnicld’s first three versions of the events because each version was succeeded by yet another inconsistent version. 279 Kan at 63. However, the court concluded that the prosecutor’s comments about Elnicld’s final versions—a “fabrication,” “yam,” “final yam,” and “the yam spun here, the four-part yarn”—-were not based upon a later inconsistent statement and were unquestionably outside the wide latitude allowed in discussing tire evidence. 279 Kan. at 62-64.
Here, there was evidence that Armstrong gave five pretrial statements of events, including a sworn statement to the district attorney and sworn court testimony at the joint preliminary hearing of Williams, Kettler, and Phillips. These five statements were largely or partially inconsistent with each other and were all dramatically different from the sixth version, his trial testimony. The six versions ranged from complete denial of any knowledge regarding the shooting to admitting to willing participation in the premeditated murder of Dyer. Further, Armstrong admitted at trial to giving “a bullshit story” in his previous statements, which he admitted were crafted to match law enforcement reports. He also admitted to giving a slightly different story in his sworn statement—“I gave them somewhat, a little bit of the truth but not all the truth.” And he admitted to lying under oath at die joint preliminaiy hearing of Williams, Kettler, and Phillips. Thus, the prosecutor s statement— “denial, half-trutiis, truths, other stories”—was a fair comment on the evidence because of all the inconsistent statements and the defendant’s acknowledgement at trial that his previous statements were not true.
Likewise, the prosecutor’s statement—“Now he knows there’s certain tilings he can’t deny”—was a fair comment on the evidence. During cross-examination, the prosecutor asked Armstrong: “There were certain tilings you couldn’t deny so you had to somehow weave those into your story; is that right?” Armstrong replied, “Right, right.” See State v. Bridges, 297 Kan. 989, 1014, 306 P.3d 244 (2013) (prosecutor’s statement that the information provided by the defendant was false was fair comment on the evidence because defendant openly admitted that he had made false statements).
Similarly, the prosecutor’s comment—“Armstrong is all about self-preservation”—was another fair comment on the evidence. Throughout his entire trial testimony, Armstrong discussed how he made up the versions to get a plea deal and that he believed he would not get a plea deal if his story did not match details in the police reports. He further testified at trial that he made himself look like he was “disinvolved with the crime” so the charges would be dropped or so he would get a good plea deal.
Nevertheless, tire final challenged statement—“the evidence is overwhelming he can’t deny being there. If he could, he would”— went too far and was outside the wide latitude afforded a prosecutor. The statement was nothing more than the prosecutor’s personal opinion regarding Armstrong’s credibility and speculation regarding what Armstrong might have done if there had been less evidence about his presence at the scene. Although Armstrong had conceded he matched his pretrial statements and testimony to reports and other evidence, he claimed to be telling tire truth at this trial. Thus, this speculative comment was not tied to evidence.
Having found misconduct, we must consider the second step of the analysis and Armstrong’s claim that the statement denied him a fair trial. In discussing the first factor in the analysis of whether the misstatement was gross and flagrant, Armstrong contends that the caselaw in this area is well settled and a prosecutor, especially an experienced one such as the one in this case, should know how to walk the line drawn in our caselaw. We agree that prosecutors should be very aware of Kansas caselaw when arguing about credibility and should be extremely careful to not state a personal opinion. Because we have made this warning in many, many cases, we conclude the prosecutor’s failure to heed the warning was gross and flagrant. See Bridges, 297 Kan. at 1015-16; State v. Kemble, 291 Kan. 109, 121-25, 238 P.3d 251 (2010).
Regarding the second factor of ill will, we see no evidence of ill will. The prosecutor had been basing his comments on die evidence and only strayed one time. The point was not repeated or emphasized.
Finally, we conclude the comment was likely to have little weight in tire minds of jurors, given the evidence against Armstrong. As we have discussed, Armstrong faced an uphill battle in convincing the jury his trial testimony should be believed over the previous five versions, especially since he admitted to lying under oath. Further, his admission that there were certain things that he could not deny because of tire evidence was very similar to the comment made by the prosecutor. Consequently, we conclude the prosecutor’s comment that Armstrong would deny being at the scene of the crime if tire evidence allowed had little weight in the minds of the jury.
4. Witness violation of order in limine
In his final prosecutorial misconduct argument, Armstrong notes that two State’s witnesses violated a trial court order in limine prohibiting the parties or any witnesses from referring to Dyer as a “victim.” Armstrong does not complain that the trial court should have granted a mistrial because of these references—probably because Armstrong did not request one—but he claims that the “prosecutor’s failure to ensure that his witnesses would not refer to Dyer as a victim, amounts to misconduct.”
Armstrong’s argument fails because there is no evidence in the record on appeal regarding whether the prosecutor did or did not inform the witnesses of the order in limine, an essential point in determining whether the order was violated because of prosecu-torial misconduct—-that is, the failure of the prosecutor to fulfill the duty of instructing the witnesses about the existence and content of the order in limine—or because a witness negligently or intentionally violated the order after being fully cautioned by the prosecutor. See State v. Santos-Vega, 299 Kan. 11, 25-26, 321 P.3d 1 (2014). The burden to ensure that there is such a record rests with the defendant, a point this court made clear in State v. Crume, 271 Kan. 87, 102, 22 P.3d 1057 (2001), by stating: “Outside the presence of the jury, the defendant’s attorney should inquire if the prosecutor warned or failed to warn the witness to refrain from malting such a statement. The prosecutor must then articulate the reason for the violation.”
The inquiries specified in Crume were not made here. Instead, when the defense objected during one witness’ testimony and asked for a bench conference, the defense counsel stated: “I’m assuming the State has admonished witnesses not to use the term ‘victim.’ ” Because defense counsel made an assumption rather than malee the necessary inquiry, this court has no basis on which to make the evaluation of whether there was prosecutorial misconduct. Consequently, Armstrong’s argument was not properly preserved and fails as a result.
Failure to Instruct on Unintentional But Reckless Second-Degree Murder
Armstrong’s second argument on appeal is that the evidence supported a lesser included offense of unintentional but reckless second-degree murder and the trial court’s failure to instruct on that lesser included offense was clearly erroneous. The trial court instructed the jury on premeditated first-degree murder, intentional second-degree murder, voluntary manslaughter, and involuntary manslaughter. Armstrong did not request an instruction on reckless second-degree murder.
Standard of Review
In State v. Williams, 295 Kan. 506, 286 P.3d 195 (2012), this court discussed the analytical framework to be applied when, a claimed error relating to a jury instruction is raised for the first time on appeal. The initial considerations, as with all appellate issues, are whether the appellate court has jurisdiction and whether the issue has been preserved. The requirements for preservation are stated in K.S.A. 22-3414(3), which sets forth the requirement that the complaining party must have objected prior to jury deliberations in order to preserve appellate review of a claimed instruction error, but it includes an exception to the preservation requirement where the instruction or failure to give the instruction was “clearly erroneous.” 295 Kan. at 511. Williams sets out two steps for determining if there was clear error.
First, the reviewing court determines whether the failure to give the lesser included instruction was erroneous. To make this determination, the reviewing court “must necessarily look at whether it was legally and factually appropriate for the district court to give a lesser included offense instruction.” 295 Kan. at 521 (citing State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 [2012]).
When an appellate court considers tire legal appropriateness of an instruction, “appellate review is unlimited, as with all questions of law.” 295 Kan. at 161. More specifically, in the context of lesser included offense instructions, an appellate court asks whether the lesser crime is “legally an included offense of the charged crime.” 295 Kan. at 161.
When an appellate court considers the factual appropriateness of a lesser included offense instruction, the determination is guided by the standard in K.S.A. 22-3414(3). As this court explained in Williams:
“[T]he giving of lesser included crime instructions is not a matter of discretion with the trial judge. K.S.A. 22-3414(3) directs that ‘where there is some evidence which would reasonably justify a conviction of some lesser included crime the judge shall instruct the jury as to tire crime charged and any such lesser included crime.’ ” (Emphasis added.) 295 Kan. at 521-22.
In Plummer, this court further explained this analytical step when the claimed error involves a lesser included offense instruction and also stated the standard of review to be applied on appeal:
“[A] district court does not err in refusing to give a lesser included offense instruction on a crime which is unsupported by the evidence in that particular case. Such an inquiry is closely akin to the sufficiency of the evidence review frequently preformed by appellate courts in criminal cases where ‘ “the standard of review is whether, after review of all the evidence viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” ’ State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011) (quoting State v. Drayton, 285 Kan. 689, 710, 175 P.3d 861 [2008]).” 295 Kan. at 161-62.
If after applying these standards, it is determined that the instruction was legally and factually appropriate and, therefore, should have been given, the reviewing court must conduct the second step of the analysis. Under this step, the court reviews the entire record to make a de novo determination of whether it is firmly convinced that the jury would have reached a different verdict had the instructional error not occurred. Williams, 295 Kan. at 515-16; see State v. Trujillo, 296 Kan. 625, 631, 294 P.3d 281 (2013) (noting that past cases had frequently stated the test as whether “ The reviewing court is firmly convinced that there is a real possibility the jury would have returned a different verdict if the instruction had been given’ ” and determining that in the future the “ real possibility’ ” language should be omitted to avoid any confusion with the constitutional harmless error test set forth in State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 [2011], cert. denied 132 S. Ct. 1594 [2012]). The second step requires a review of the entire record and a de novo determination. Williams, 295 Kan. at 515-16.
Failure to Give Instruction Was Not Clearly Erroneous
Thus, in considering whether it was error to not give a lesser included offense instruction for unintentional but recldess second-degree murder, the first inquiry is whether unintentional but reckless second-degree murder is legally an included offense of the charged crime of premeditated first-degree murder. This question is easily answered. K.S.A. 21-3107(2)(a) states: “A lesser included crime is . . . [a] lesser degree of the same crime.” Second-degree murder is a lesser degree of first-degree murder and, therefore, a lesser included crime. See State v. Rodriguez, 295 Kan. 1146, 1153, 289 P.3d 85 (2012); State v. Engelhardt, 280 Kan. 113, 135, 119 P.3d 1148 (2005).
Next, we must determine if the instruction was factually appropriate, which requires consideration of how the evidence relates to the elements of the crime of unintentional second-degree murder. Those elements are defined in K.S.A. 21-3402, which states, in relevant part: “Murder in the second degree is the killing of a human being committed: (a) Intentionally; or (b) unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life.” The unambiguous language “requires the killing—the result—to be either intentional or unintentional.” State v. Deal, 293 Kan. 872, 883, 269 P.3d 1282 (2012). At the time of Armstrong’s trial and tire filing of briefs on appeal, Kansas caselaw was inconsistent with some cases holding the focus of the inquiry is on the intentional or unintentional nature of the act that caused the death and other cases holding the focus is on the existence of intent to cause death. See 293 Kan. at 882-85. In Deal, we concluded the focus must be on whether the defendant intended to cause the death. 293 Kan. at 883. That, therefore, is the focus of our analysis, although we observe that Armstrong’s arguments fail to establish clear error under either inquiry.
In arguing there was sufficient evidence to support the giving of the instruction, Armstrong suggests we need not look beyond the fact that the trial court instructed on reckless involuntary manslaughter. He suggests that if the trial court was convinced there was evidence of recklessness, there was evidence to support an instruction of unintentional but reckless second-degree murder. This argument fails to acknowledge that there are different degrees of recklessness involved in second-degree murder and involuntary manslaughter. See State v. Robinson, 261 Kan. 865, 877-78, 934 P.2d 38 (1997) (distinguishing types of recklessness necessary for second-degree murder and involuntary manslaughter). Thus, the mere fact that the trial court gave one instruction involving reckless intent does not satisfy the factual inquiry of whether a different instruction was supported by the evidence. Plus, it could be that if tire question of whether there was factual support for the instruction of reckless involuntary manslaughter was before us, we would conclude it was error to give the instruction. In other words, we cannot shortcut the analysis but must make an independent deter mination of whether an unintentional but reckless second-degree instruction was factually appropriate.
In arguing the facts, Armstrong suggests there is “plethora of evidence to support a conviction of depraved heart murder.” Specifically, he points to Armstrong’s trial testimony that he went to Shaw’s house with his friends for the purpose of collecting money from her and without any intention of shooting Dyer. Further, he suggests the evidence that Armstrong hit Dyer over the head with an ashtray and Phillips shot Dyer to keep Dyer from shooting them shows that Armstrong and his codefendants exhibited extreme indifference to the value of human life. As Armstrong suggests, at least in theory, the jury could have chosen to convict him of unintentional but reckless second-degree murder without having the verdict subject to reversal for insufficient evidence. This means the instruction was factually supported.
Because the unintentional second-degree murder instruction was factually and legally supported, it was error for the district judge not to give it. See K.S.A. 22-3414(3) (judge shall give instruction on lesser included crime when some evidence would reasonably justify conviction).
Nevertheless, our determination that the omission of this instruction was erroneous does not answer the question of whether the failure to give the unrequested instruction was clearly erroneous. Armstrong bears the burden of firmly convincing us that the jury would have convicted him of unintentional but reckless second-degree murder rather than premeditated first-degree murder had the error not occurred. Williams, 295 Kan. at 516 (citing Ward, 292 Kan. 541, Syl. ¶ 8). He does not succeed in carrying that burden.
First, we note that Armstrong’s arguments blur any distinctions between, on the one hand, his role in aiding and abetting Phillips and the necessary intent he must have possessed and, on the other hand, the role and intent of Phillips as the shooter. As we have noted, to be liable as an aider and abettor, Armstrong must have had the intent to aid or abet Phillips in committing the conduct constituting the crime. See K.S.A. 21-3205(1). If he acted with such intent, he could “also [be] liable for any other crime committed in pursuance of the intended crime if reasonably foreseeable by such person as a probable consequence of committing or attempting to commit the crime intended.” K.S.A. 21-3205(2).
Applying these concepts to the facts, Armstrong’s wide ranging versions of events, left many options available to the jury..It could have believed Armstrong had nothing to do with the shooting of Dyer, an account that would have been contrary to tire testimony of other witnesses and even the majority of Armstrong’s own statements. Alternatively, according to two versions of Armstrong’s accounts—his sworn statement and his testimony at the joint preliminary hearing for Williams, Kettler, and Phillips—Armstrong willingly participated in the events surrounding the shooting and did so with the intent of “blow[ing] [Dyer’s] head off.” According to another version-—-the one found in Armstrong’s December 28, 2007, statement, which is one of the two versions on which he asks us to focus—he was merely a bystander. Pie said nothing in this version that would suggest he aided or abetted the criminal action in any way; he was merely along for the ride. Under any of these versions, there was no suggestion that Armstrong intended to aid or abet an unintentional but reckless second-degree murder.
The other version Armstrong emphasizes is his trial testimony. In this testimony, he indicated he came to Phillips’ aid and hit Dyer with the ashtray and other objects and tried to pull Dyer off of Phillips. Although this testimony was evidence that Armstrong aided Phillips’ actions, Armstrong still asserted the shooting was unjustified. In fact, in a manner consistent with his December 28, 2007, statement, he indicated he, Kettler, and Williams argued with Phillips after they left Shaw’s house because Phillips “was not supposed to shoot him.” Thus, there was no direct evidence that Armstrong intended to aid or abet the shooting or even that Armstrong believed Phillips’ actions were justified.
Nevertheless, it was foreseeable that shots would be fired during the fight as Phillips, Armstrong, and Kettler attempted to wrest the gun away from Dyer. But, according to Armstrong, the fighting had ended with Dyer lying on the floor; Dyer no longer possessed a gun. Phillips then, according to various statements by Armstrong, either “stepped back” and started shooting or “turned around and started shooting.” An expert testified that stippling indicated the handgun was only between 18 and 36 inches away from Dyer when the shots were fired. This physical evidence regarding the close range of the shooting and the number of shots fired combined with Armstrong’s testimony that Dyer was down and that Phillips stepped back or turned around before firing demonstrates an intent to kill.
In addition, there was considerable evidence of preexisting animosity between Dyer and Armstrong, Phillips, Kettler, and Williams. This evidence would suggest that even if Dyer was the initial aggressor, Phillips, Armstrong, Kettler, and Williams would have used the opportunity to kill Dyer. See State v. Barnes, 293 Kan. 240, 264, 262 P.3d 297 (2011) (“ ‘[Ijntent may be inferred from “ ‘acts, circumstances, and inferences reasonably deducible therefrom.’ ” ’ ”).
When we consider the record as a whole, we are not firmly convinced tire jury would have reached a different verdict had the trial court instructed the jury on the lesser included offense of unintentional but reckless second-degree murder instruction.
Voluntary Manslaughter Instruction
Next, Armstrong argues tire trial court gave an improper voluntary manslaughter instruction. The instruction given at trial, Instruction No. 9, stated:
“In determining whether the defendant, Antonio Armstrong, is guilty of murder in the second degree, you should also consider the lesser offense of voluntary manslaughter. Voluntary manslaughter is an intentional killing done upon a sudden quarrel, in the heat of passion or upon an unreasonable but honest belief that circumstances existed that justified deadly force in defense of a person.
“If you decide Antonio Armstrong intentionally killed James Earl Dyer, Jr., but that it was done upon a sudden quarrel, in the heat of passion, or upon an unreasonable but honest belief that circumstances existed that justified deadly force in defense of a person, the defendant may be convicted of voluntary manslaughter only.” (Emphasis added to focus of challenge.)
This instruction was consistent with PIK Crim. 3d 56.05, alternative B, which applies when voluntary manslaughter is instructed upon as a lesser included offense rather than a charged crime. See PIK Crim. 3d 56.05, Notes on Use (“If the information charges voluntary manslaughter, use alternative A. When voluntary manslaughter is submitted to the jury as a lesser offense of the crime charged under K.S.A. 21-3107[2][a], use alternative B.”).
Armstrong argues the instruction is erroneous in two ways. First, he alleges that the voluntary manslaughter instruction given at trial consolidated what he refers to as “alternative means of committing the offense” and “glosses over the separate lesser included offenses of an intentional killing but upon a sudden quarrel, heat of passion, or imperfect self-defense.” He argues the court should have given a separate instruction for each “alternative means.” He also argues that tire court erred in defining “heat of passion” and not defining “sudden quarrel” or “unreasonable but honest belief.”
Because Armstrong did not object to Instruction No. 9 under K.S.A. 22-3414(3), we must apply the clearly erroneous standard of review set forth in Williams, 295 Kan. at 515-16, which we previously discussed. One aspect of the analysis—whether the instruction was factually appropriate—is not disputed by the parties; they agree the substance of the instruction should have been given. Their arguments focus more on the form of tire instruction and the legal appropriateness of breaking the instruction into three separate instructions.
As we have noted, the instruction was consistent with the pattern instruction, which uses the language about which Armstrong complains in both alternatives A and B. This court has repeatedly approved PIK Crim. 3d 56.05, although it has not addressed the specific contention raised by Armstrong. See, e.g., State v. Miller, 293 Kan. 46, Syl. ¶ 3, 259 P.3d 701 (2011); State v. Bell, 280 Kan. 358, 365-66, 121 P.3d 972 (2005); State v. Graham, 275 Kan. 831, 836-40, 69 P.3d 563 (2003). This court, however, has commented on Armstrong’s suggestion that the trial court should modify a pattern instruction. On numerous occasions, this court has strongly urged trial courts to instruct the jury by using Kansas’ pattern instructions as written, modifying them only “[i]f die particular facts in a given case require modification of the applicable pattern instruction or the addition of some instruction not included in PIK.” State v. Appleby, 289 Kan. 1017, Syl. ¶ 20, 221 P.3d 525 (2009); see State v. Stevenson, 297 Kan. 49, 57, 298 P.3d 303 (2013). Here, Arms trong does not suggest any facts that would differentiate this case from past decisions where we have approved the pattern instruction.
There are several additional reasons for rejecting Armstrong’s arguments, which essentially call into question whether the voluntary manslaughter statute states alternative means for committing the crime. This court has not considered whether the statute defines alternative means of committing voluntary manslaughter, but this case is not the appropriate vehicle to take up drat issue because Armstrong was not convicted of voluntary manslaughter and he does not challenge the sufficiency of the evidence of his conviction. See State v. Brown, 295 Kan. 181, 188, 284 P.3d 977 (2012) (discussing sufficiency requirement in context of alternative means). Nevertheless, even assuming alternative means were stated in one instruction, this court has held that “[tjhere was no error in including both alternatives in one instruction to the jury” if there was sufficient evidence to convict the defendant of either alternative mean of committing the crime. State v. Timley, 255 Kan. 286, 289-90, 875 P.2d 242 (1994), overruled on other grounds by State v. Brooks, 298 Kan. 672, 317 P.3d 54 (2014).
Also, this court has repeatedly stated that the key elements of voluntary manslaughter are whether the killing was intentional and whether there was legally sufficient provocation. State v. Foster, 290 Kan. 696, 711, 233 P.3d 265 (2010); State v. Vasquez, 287 Kan. 40, 54, 194 P.3d 563 (2008). The instruction conveyed these essential points to the jury.
Hence, we do not believe it was legally necessary to break the instruction into three separate instructions. In fact, it is difficult to imagine how that could have been done because this court, along with the courts of most states, “considers sudden quarrel to be one form of heat of passion.” State v. Johnson, 290 Kan. 1038, 1048, 236 P.3d 517 (2010). Also, this court has held the instruction for “heat of passion” found in PIK Crim. 3d 56.04 (homicide definitions), which was the definition used in this case, is “sufficiently broad to include sudden quarrel as one form of heat of passion.” 290 Kan. at 1048. Further, the structure of the instruction does not gloss over the three options. Each is clearly stated, and we presume a jury will consider all aspects of a given instruction. See State v. Llamas, 298 Kan. 246, 261, 311 P.3d 399 (2013) (stating presumption that jury follows instructions). We, therefore, hold it was not error to give PIK Crim. 3d 56.05(B) as written.
We next turn to Armstrong’s second argument regarding whether the trial court erred in providing a definition of “heat of passion” and not providing a definition for “sudden quarrel” or “unreasonable but honest belief.” This court has held that a trial court “need not define every word or phrase in the instructions. It is only when the instructions as a whole would mislead the jury, or cause them to speculate, that additional terms should be defined.” State v. Norris, 226 Kan. 90, 95, 595 P.2d 1110 (1979). We further stated that “[a] term which is widely used and which is readily comprehensible need not have a defining instruction.” 226 Kan. at 95.
As we have indicated, under our caselaw the concept of sudden quarrel is incorporated into the definition of heat of passion; thus, a separate definition is not necessary. The other option—“upon an unreasonable but honest belief that circumstances existed that justified deadly force in defense of a person”—uses widely understood words that do not require definition.
Consequently, the trial court’s lesser included offense instruction on voluntary manslaughter was not erroneous.
Juror Misconduct
Next, Armstrong argues the trial court erred in denying his motion for mistrial after a juror was allegedly caught sleeping during testimony and two other jurors were allegedly caught discussing Armstrong’s guilt during a break. He argues that no reasonable person would agree with the trial court’s decision to deny Armstrong’s motion for a mistrial based on these instances of juror misconduct.
Both of these instances of misconduct occurred during the testimony of a fire and tool mark examiner employed by the Kansas Bureau of Investigation (KBI). The first instance occurred during the State’s direct examination of the witness. While the witness was explaining the general routine of how evidence is received and processed at the KBI, defense counsel asked to approach the bench and stated, “1⅛ sorry to interrupt you, Judge, but I thought that I observed [a female juror] falling asleep on the jury.” The judge thanked defense counsel and instructed the jury to take a stretch break.
The second instance occurred after the State finished its direct examination of the fire and tool mark examiner and the court took a short recess. Before cross-examination began, defense counsel brought to the court’s attention that Armstrong had overheard a conversation between Juror S and Juror Z in the hallway. Armstrong indicated that the topic of conversation concerned his guilt.
The court inquired of each juror separately. The court asked Juror S if he had any conversations about the case with the juror who sat next to him. Juror S denied having any conversations about the case, but he did acknowledge that he had a conversation with Juror Z regarding concrete. Then, tire court questioned Juror Z. He said that he might have had a conversation with Juror S, but it was so quick that he did not even remember what it was. When questioned directly about whether they discussed Armstrong’s guilt, both jurors denied that the conversation involved the case.
Defense counsel moved for a mistrial based on the fact that one juror was observed sleeping and two jurors were overheard discussing Armstrong’s guilt. The court denied the motion. Addressing the issue of the drowsy juror, the trial court noted tire issue was addressed in a timely manner and that the juror had been struggling but did not actually nod off. In regard to the conversation between the two jurors, the court noted that both jurors specifically denied discussing Armstrong’s guilt, inferring the judge’s finding that the jurors’ statements were credible.
Standard of Review
K.S.A. 22-3423(l)(c) permits a trial court to declare a mistrial because of “[prejudicial conduct, in or outside the courtroom, [which] malees it impossible to proceed with the trial without injustice to either the defendant or the prosecution.” Application of this statute requires the trial court to make two inquiries. First, was there a “ ‘ “fundamental failure of the proceeding” ’ [Citations omitted.]?” State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). Second, if there was such a failure, is it possible to continue the trial without an “ ‘injustice,’ ” meaning did the misconduct deprive the parties of a fair trial? 292 Kan. at 550.
Given the allegations in this case, this means the trial court had to determine (1) whether juror misconduct occurred and (2) if so, whether the misconduct substantially prejudiced Armstrong’s right to a fair trial. On appeal, an appellate court reviews the trial court’s determination of these two issues under an abuse of discretion standard. 292 Kan. at 550. An abuse of discretion can occur when the trial court makes an error of law, bases the decision on facts not supported by the evidence, or makes a decision that is arbitrary, fanciful, or unreasonable. 292 Kan. at 550. Armstrong contends tire trial court’s denial of his motion was unreasonable, meaning no reasonable person would agree with the decision. This standard of review is appropriate given the arguments. Nevertheless, because the trial court’s ruling is also based on the court’s findings of fact, we must consider whether there was substantial competent evidence to support the findings. 292 Kan. at 550.
Inattentive Juror
In this case, there is no basis to conclude the trial court erred in finding there was not a fundamental failure in tire proceeding because of juror inattentiveness. That is not to say that juror inattentiveness, if sufficiently severe, cannot serve as a basis for a mistrial. See generally, Annot., 59 A.L.R.5tlr 1, § 2[a] (generally discussing inattention of jurors from sleepiness as ground for reversal or new trial). This court has considered the possibility in several opinions and has routinely held that the purported sleeping of a juror did not warrant a new trial. See, e.g., State v. Kimmel, 202 Kan. 303, 305-06, 448 P.2d 19 (1968) (court held defendant failed to show substantial rights were prejudiced where a juror was observed with his eyes closed several times during trial but the defendant was unable to corroborate allegation that juror was asleep); State v. Jones, 187 Kan. 496, 499-500, 357 P.2d 760 (1960) (held the defendant failed to show substantial rights were prejudiced where juror was heard snoring during testimony and the court took a recess so the juror could wake up; the same juror dozed off during final arguments and defense counsel brought it to the court’s attention but did not object or move for mistrial); Dick v. Dick, 144 Kan. 183, 186, 58 P.2d 1125 (1936) (held it was not error for trial court to overrule motion for new trial, there was testimony in motion hearing that the juror was not asleep but simply relaxing and closing his eyes while listening to testimony).
The facts of this case are most similar to State v. Kirby, 272 Kan. 1170, 1196-98, 39 P.3d 1 (2002), where the inattentiveness of two jurors was brought to the attention of the trial court. In addressing the issue, the judge stated, “ ‘[I]t did appear that [the juror] may have nodded off for a moment, and I think we took that appropriate action.’ ” This court held that the trial court did not abuse its discretion in denying the defendant’s motion for a new trial because there was no statement by the juror that he did not hear testimony, the trial court kept a close eye on the juror and took a recess when it appeared that the juror was dozing off, and the length of time the juror dozed was momentary and isolated. 272 Kan. at 1197-98.
Similarly, in this case, although defense counsel stated he “thought” he saw a juror falling asleep, the judge stated, “I think she was struggling a bit, but I don’t know that I ever saw her really nod off.” Also, there was no evidence the juror did not hear testimony. Further, the trial court took immediate action, and there is nothing in the record to indicate any other incidents during the long trial. Finally, if the juror missed any testimony at all, it was testimony regarding the general procedures used by the fire and tool mark expert and was not specific to the evidence in this case. The trial court took steps to assure the juror was attentive before the expert began to testify about his' testing or conclusions regarding the evidence gathered at the scene of Dyer’s shooting.
Accordingly, the trial court did not abuse its discretion in determining that the sleeping juror did not substantially prejudice Armstrong’s rights and that there was not a fundamental failure in the proceedings warranting a mistrial.
Conversation of Two Jurors
Next, Armstrong argues that the two jurors discussing his guilt during a break was a violation of his right to a fair trial because the jurors were discussing the case before the case was submitted to them.
When such an allegation arises at trial, “it is usual practice to question the juror involved in complaints alleging misconduct.” State v. Macomber, 244 Kan. 396, 407, 769 P.2d 621, cert. denied 493 U.S. 842 (1989), overruled on other grounds by State v. Rinck, 260 Kan. 634, 923 P.2d 67 (1996). When inquiry has been made, the trial court has discretion to assess the perceived impact of an allegedly prejudicial event, and an appellate court will give a high degree of deference to the trial court’s assessment. Saucedo v. Winger, 252 Kan. 718, 731, 850 P.2d 908 (1993). That is especially true when the determination involves a determination of credibility. State v. Lowrance, 298 Kan. 274, 296, 312 P.3d 328 (2013) (“An appellate court does not reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting evidence.”).
Here, both jurors specifically stated that their conversation did not concern Armstrong’s guilt or the trial at all. After hearing Armstrong’s allegation and the jurors’ explanations, the trial court determined the conversation was unrelated to Armstrong’s case. This finding was supported by substantial competent evidence. See State v. Bird, 298 Kan. 393, 399, 312 P.3d 1265 (2013) (“Substantial competent evidence is legal and relevant evidence a reasonable person could accept to support a conclusion.”).
Accordingly, we hold the trial court did not abuse its discretion by finding there was no fundamental error to warrant a mistrial.
Cumulative Error
In his next issue, Armstrong argues the cumulative impact of the trial errors resulted in an unfair trial and his convictions must be reversed.
“In a cumulative error analysis, an appellate court aggregates all errors and, even though tiróse errors would individually be considered harmless, analyzes whether their cumulative effect is such that collectively they cannot be determined to be harmless. [Citation omitted.] In other words, was die defendant’s right to a fair trial violated because the combined errors affected the outcome of the trial?” State v. Tully, 293 Kan. 176, 205, 262 P.3d 314 (2011).
In assessing the cumulative impact of the errors in this case, we must consider two instances of prosecutorial misconduct and the trial court’s failure to give an instruction on the lesser included offense of unintentional but reckless second-degree murder. Because we have applied the constitutional harmless error standard under Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386 U.S. 987 (1967), to Armstrong’s claims of prosecutorial misconduct, that standard applies to our cumulative error analysis as well. Tully, 293 Kan. at 205 (“ ‘If any of the errors being aggregated are constitutional in nature, tire cumulative error must be harmless beyond a reasonable doubt.’ ”). Several considerations are relevant to the weighing of whether error was cumulatively harmful, including “how the district court dealt with the errors as they arose (including the efficacy, or lack of efficacy, of any remedial efforts); the nature and number of errors committed and their interrelationship, if any; and the strength of the evidence.” 293 Kan. at 205-06.
In this case, there were no remedial efforts relating to the prosecutor’s misconduct and the instructional issue arises because the trial court did not sua sponte give the instruction. Thus, the errors were not dealt with during the trial.
As to the next factor regarding the number and interrelationship of the errors, we first note that the two misstatements by the prosecutor were unrelated to each other. In fact, one could argue that the second comment—in which the prosecutor acknowledged that the jury could find Armstrong not guilty if it accepted Armstrong’s trial testimony—undercuts Armstrong’s argument that the first comment—in which the prosecutor indicated the jurors had formed opinions about the case—by illustrating that the prosecutor was not suggesting the jurors should not consider Armstrong’s defense. Likewise, neither misstatement relates to Armstrong’s claim on appeal that the trial court should have given a lesser included offense instruction on unintentional but reckless second-degree murder. We, therefore, conclude that any prejudice caused by one error did not exacerbate any prejudice caused by another.
As to the final factor—the strength of the evidence—we have already noted that the evidence against Armstrong was not overwhelming. Nevertheless, it was strong, especially in light of the credibility mountain Armstrong had to climb,-a mountain he created. As our previous discussion indicates,'we have determined beyond a reasonable doubt that the two instances of prosecutorial misconduct, when considered alone, did not affect the verdict. Likewise, the instructional error was not clearly erroneous. Because the errors do not relate to each other, we conclude the strength of the evidence was sufficient to convince us the errors did not cumulatively deprive Armstrong of a fair trial.
Restitution
Finally, Armstrong challenges tire district court’s jurisdiction to set tire amount for restitution after Armstrong’s sentence was imposed.
On June 11, 2009, tire sentencing judge ordered Armstrong to consecutive sentences of life imprisonment for premeditated first-degree murder and 11 months’ imprisonment for criminal possession of a firearm. The sentencing judge ordered restitution to remain open for 30 days. Defense counsel brought to the judge’s attention that holding restitution open for 30 days may be impractical because Williams, Kettler, and Phillips were not going to trial until August. The sentencing judge informed the parties that if longer time was needed the judge would be amenable to a continuation of the hearing. At the end of the hearing, the sentencing judge informed Armstrong that he had 10 days to appeal his convictions and sentences. Armstrong filed his notice of appeal on June 11, 2009, the same day as the sentencing hearing. On September 8,2009, the sentencing judge held a restitution hearing, with Armstrong present, at which the judge set the amount of restitution.
In arguing this procedure was erroneous, Armstrong requests that this court overturn its holding in State v. Cooper, 267 Kan. 15, 18-19, 977 P.2d 960 (1999), that a sentencing judge Iras discretion to extend the time to set a restitution amount if restitution has been ordered at sentencing. Armstrong argues restitution is part of a defendant’s sentence and the amount of restitution must be a part of that sentence; accordingly, the sentencing judge must pronounce the restitution amount at the time the sentence is imposed and before it loses jurisdiction to alter the sentence.
These arguments were recently resolved in State v. Hall, 298 Kan. 978, Syl. ¶ 2, 319 P.3d 506 (2014), where we stated: “A sentencing hearing may be continued or bifurcated so that restitution is ordered at one setting and the amount decided at a later setting. In such instances, a district judge should specifically order the continuance or bifurcation.” When continuing a sentencing hearing for the purpose of setting a restitution amount, there are “no magic words” required. Language such as “holding jurisdiction open” for some period or some other variation of that phrase coupled with a later order of an amount certain of restitution, can act as a functional continuance of the defendant’s sentencing hearing, at least in cases where the sentencing occurred before the decision in Hall was filed. See 298 Kan. at 987.
Here, both parties understood and agreed that the judge was ordering restitution to be held open for 30 days to determine the amount. In addition, everyone understood that the extension might be more than 30 days. Because, at that time, no magic words had to be used in order to continue a sentencing hearing, the language used by the sentencing judge in this case resulted in a functional continuance, preserving subject matter jurisdiction. See, e.g., 298 Kan. at 987 (judge ordered restitution to remain open for 30 days, all parties were agreed that the only issue to resolve at the second hearing was the amount of restitution; this court held that the language used by the judge acted as a functional continuance of the sentencing hearing); State v. Frierson, 298 Kan. 1005, 1 020-21, 319 P.3d 515 (2014) (judge said he was holding jurisdiction open and the parties agreed to a 30-day extension to reach agreement on the correct amount; held extension was functional continuance, preserving subject matter jurisdiction); Cooper, 267 Kan. at 16, 18-19 (judge ordered restitution “ ‘with that amount to be determined within 30 days’ ”).
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The opinion of the court was delivered by
Biles, J.:
This appeal concerns a consecutive sentence ordered after an appellate remand in a multiple-conviction case. See State v. Morningstar, 289 Kan. 488, 495, 213 P.3d 1045 (2009) (Morningstar I). The Court of Appeals dismissed the appeal because it determined it was without jurisdiction because the new sentence was within the presumptive range under the Kansas Sentencing Guidelines Act (KSGA). See State v. Morningstar, No. 103,433, 2011 WL 1878003, at *2 (Kan. App. 2011) (unpublished opinion) (Morningstar II); see also K.S.A. 21-4721(c)(1) (no direct appeal jurisdiction over presumptive sentences). We granted review to consider the panel’s jurisdictional analysis, as well as its determination that the district court acted properly.
We hold that the panel erred in dismissing the appeal because appellate jurisdiction exists to determine whether the district court had authority to impose the consecutive sentence, even if that sentence fell within the presumptive range. See State v. Warren, 297 Kan. 881, 882-85, 304 P.3d 1288 (2013) (appellate court may consider limited question whether district court properly interpreted sentencing statute). As to the merits, we affirm the district court because die KSGA permits a district court imposing a term of imprisonment upon resentencing to determine anew whether the prison term runs consecutive to a defendant’s other sentences. We also hold that a district court may designate that the sentence for the primary crime of conviction runs consecutive to the defendant’s other sentences under the KSGA’s multiple-conviction sentencing statute.
Factual and Procedural Background
Gary L. Momingstar, Jr., was convicted of one count each of rape of a child under 14, aggravated battery, abuse of a child, and child endangerment. At his sentencing hearing, the district court imposed an off-grid hard 25 life sentence for the rape conviction as required by Jessica’s Law. See K.S.A. 21-4643. The court also applied the statutory sentencing grid to impose term-of-years sentences for the remaining convictions. See K.S.A. 21-4704. In doing so, the court used Morningstar’s full criminal history score to enhance the sentence for the aggravated battery conviction, which was the highest severity level grid crime. See K.S.A. 21-4720(b)(2)-(4). The district court tiren ordered tire term-of-years sentences to ran concurrent with each other and with the off-grid hard 25 life sentence for the rape conviction. See K.S.A. 21-4608(a); K.S.A. 21-4720(b).
In Momingstar I, this court affirmed Momingstar’s convictions but vacated the off-grid rape sentence because the jury had not determined Morningstar’s age, which was necessary to impose that sentence under K.S.A. 21-4643. In other words, Momingstar’s off-grid sentence was not lawful. See 289 Kan. at 494-95. We remanded for resentencing on the rape conviction as a felony on the KSGA nondrug sentencing grid.” (Emphasis added.) 289 Kan. at 495.
On remand, the parties recognized that imposing a grid sentence for rape also implicated Morningstar’s aggravated battery sentence because the rape conviction became Morningstar’s highest severity level grid offense. See K.S.A. 21-3502(c) (rape of child under 14 a severity level 1 felony). This meant the district court was required to apply Momingstar’s full criminal history to the rape conviction, which in turn required resentencing for the aggravated battery conviction without applying a criminal history score. See K.S.A. 21-4720(b)(2), (3), (5); State v. Sims, 294 Kan. 821, 825, 280 P.3d 780 (2012) (sentence illegal when, e.g., it differs in character or term from that authorized by statute).
Given those KSGA requirements, tire district court sentenced Momingstar to 186 months’ imprisonment for rape based on tire appropriate grid box given his criminal history score. It also sentenced Momingstar to 43 months’ imprisonment for aggravated battery applying no criminal history score. It then ordered the rape sentence to run consecutive to the other sentences. As a practical matter, Momingstar is required to serve a total sentence of 229 months’ imprisonment—the sum of the rape sentence and the aggravated battery sentence (which is the longest of Morningstar’s concurrent sentences for aggravated battery, abuse of a child, and child endangerment).
Momingstar challenged whether the district court on remand could order the rape sentence to mn consecutive to his other sentences. In an unpublished opinion, the Court of Appeals held the district court did not violate the Momingstar I mandate because the original rape sentence was necessarily nullified as a consequence of our decision to vacate it. The panel reasoned this allowed the district court to start over when resentencing on that offense under the KSGA. But after engaging in this analysis and conclusion, the panel then determined that Morningstar’s sentence was not reviewable on appeal under K.S.A. 21-4721(c)(1) because it was within the presumptive sentence range. The panel held that Morn-ingstar’s new sentence was subject to K.S.A. 21-4721(c)(1) (prohibition of direct appeal jurisdiction over presumptive sentences). Morningstar II, 2011 WL 1878003, at *2.
Momingstar timely petitioned this court for review, which we granted under K.S.A. 20-3018(b), obtaining jurisdiction under K.S.A. 60-2101(b).
We must note Momingstar raised other issues in his petition for review and in a supplemental brief filed with this court that we do not reach because our review is limited to what Momingstar contends the panel wrongly decided. See Supreme Court Rule 8.03(g)(1) (2013 Kan. Ct. R. Annot. 77). At oral argument, Morn-ingstar agreed the only questions properly presented are the panel’s jurisdictional analysis and his consecutive sentence challenge.
Dismissal for Lack of Jurisdiction
We address this issue first because without subject matter juris diction, a court cannot address a case’s merits. See State v. Huerta, 291 Kan. 831, 840-41, 247 P.3d 1043 (2011) (“If subject matter jurisdiction is in question, that issue needs to be resolved first. The merits come second.”).
Kansas appellate courts have jurisdiction to “correct, modify, vacate or reverse any act, order, or judgment of a district court to assure that any such act, order or judgment is just, legal and free of abuse.” K.S.A. 60-2101(a), (b). Under the KSGA, appellate courts lack jurisdiction over presumptive sentences. K.S.A. 21-4721(c)(1). But this prohibition does not extend to appellate review of a district court’s interpretation of its sentencing authority under the KSGA. See Warren, 297 Kan. at 885 (Court of Appeals had jurisdiction, despite sentence within presumptive range, to review claim that district court erroneously believed it did not possess authority to impose downward departure).
Momingstar’s consecutive sentencing challenge concerns not merely the ultimate sentence imposed but the district court’s authority to impose it. This is not a challenge to a presumptive sentence precluded by K.S.A. 21-4721(c)(l). The panel erred when it dismissed Morningstar’s appeal for lack of jurisdiction. Accordingly, we consider tire merits of the challenge to his newly imposed consecutive sentence.
Imposition of Consecutive Sentence
Morningstar asserts three reasons why the district court could not run the rape sentence consecutive to his other sentences: (1) Morningstar I did not permit tire district court to impose consecutive sentences on remand; (2) there was no statutoiy authority for the district court to reconsider on remand its original decision to run Morningstar’s sentences concurrent with one another; and (3) the sentence for a defendant’s primary crime of conviction cannot run consecutive to a defendant’s other sentences. We disagree with each argument.
The Morningstar I mandate
Interpretation of an appellate court mandate and the determination of whether the district court complied with it on remand are both questions of law subject to de novo review. See State v. Guder, 293 Kan. 763, 765, 267 P.3d 751 (2012).
In State v. Heywood, 245 Kan. 615, 618, 783 P.2d 890 (1989), the court held in a pre-KSGA case that a mandate like the one at issue here did not prohibit a district court from changing concurrent sentences to sentences that run consecutive with one another. In that case, the convictions initially sentenced as class B felonies were remanded for resentencing as class C felonies. 245 Kan. at 618. The Heywood court held that the change from concurrent to consecutive sentences did not exceed the mandate because the sentences imposed on remand were within the district court’s statutory authority under the then-existing sentencing scheme. The court explained that in remanding the convictions for resentencing as class C felonies, it intended that tire district court be permitted to exercise that authority. 245 Kan. at 618.
Similarly, our decision in Morningstar I concerned only whether Morningstar could be sentenced off-grid for rape under Jessica’s Law due to the State’s failure to prove the defendant’s age to the jury beyond a reasonable doubt. In ordering resentencing under the grid, our mandate did not restrict the district court’s statutory sentencing authority on remand. It was intended only to permit the district court to exercise whatever authority it might have under the KSGA. We consider that question next.
Authority to modify rape sentence to ran consecutive to other sentences under the KSGA
Morningstar argues the district court lacked statutory authority to order the new rape sentence to run consecutive to his other sentences, citing language in K.S.A. 21-4720(b)(5). He does not argue the district court’s action was vindictive or violated due process or double jeopardy.
The Court of Appeals held the district court had authority to change a sentence from concurrent to consecutive upon resent-encing as long as there was no presumption of vindictiveness, citing Heywood, 245 Kan. at 618-20. Morningstar II, 2011 WL 1878003, at *2. And as discussed, the panel is correct that Heywood affirmed the district court’s authority to resentence a defendant to consec utive terms when the sentence for the same crime of conviction was remanded for resentencing.
But Heywood was decided before the KSGA’s enactment, and the Heywood court relied on the district court’s broader pre-KSGA discretion when imposing a sentence in supporting its outcome. 245 Kan. at 617-18. Subsequent decisions limiting a district court’s jurisdiction to modify a sentence under the KSGA raise questions whether Heywood remains good law when the question concerns the district court’s statutory authority.
In State v. Miller, 260 Kan. 892, 897, 926 P.2d 652 (1996), the court held the legislature intentionally eliminated a sentencing court’s authority to modify sentences by omitting provisions like the one that permitted pre-KSGA sentencing courts to modify already imposed sentences within 120 days of sentencing. 260 Kan. at 897. The court held: “ ‘When a lawful sentence has been imposed under KSGA, the sentencing court has no jurisdiction to modify that sentence except to correct ‘arithmetic or clerical errors’ pursuant to K.S.A. 21-4721(i).” (Emphasis added.) 260 Kan. at 900.
Admittedly, Miller is factually distinguishable because it did not involve modification of a sentence on remand for resentencing. But the same principle—that courts have limited jurisdiction to modify sentences—was also applied in Guder, 293 Kan. 763, which did involve resentencing of an unlawful sentence.
In Guder, which was decided after the panel issued its decision in this case, the question concerned a multiple-conviction case in which an appellate court remanded only the defendant’s primaiy crime of conviction for resentencing, while leaving intact the other convictions and sentences on those convictions. On remand, the district court modified one of the defendant’s lawful, non-vacated sentences to run consecutive to the other sentences. In a second appeal challenging the resentencing, the defendant argued the district court lacked authority to modify the previously imposed concurrent sentence when resentencing for a different conviction. On review, our court agreed with the defendant that the district court lacked authority to modify the previously imposed, non-vacated sentence. 293 Kan. at 767.
In doing so, the Guder court noted that prior to the KSGA district courts could resentence defendants on all counts in multiple-conviction cases, even if the sentence for only one count was disturbed on appeal, because the sentences collectively comprised a single, whole judgment. 293 Kan. at 765-66 (citing State v. Woodbury, 133 Kan. 1, 2, 298 P. 794 [1931], and subsequent cases). But the Guder court held that the KSGA abrogated that earlier authority, and further held that a previously imposed, lawful sentence that was not vacated on appeal could not be modified at resent-encing absent specific statutory authority to do so. 293 Kan. at 765-66. The Guder court then examined K.S.A. 21-4720(b)(5) to determine whether there was statutory authority for the district court’s action. That statute states:
“Nonbase sentences will not have criminal history scores applied, as calculated in the criminal history I column of the grid, but base sentences will have the full criminal history score assigned. In the event a conviction designated as the primary crime in a multiple conviction case is reversed on appeal, the appellate court shall remand the multiple conviction case for resentencing. Upon resentencing, if the case remains a multiple conviction case the court shall follow all of the provisions of this section concerning the sentencing of multiple conviction cases.” (Emphasis added.) K.S.A. 21-4720(b)(5).
The Guder court summarized this statute as providing that “in the event that a conviction of the primary crime is reversed on appeal, the sentencing court is to follow all of the KSGA provisions concerning sentencing in multiple conviction cases.” (Emphasis added.) 293 Kan. at 766. The court then held that because the KSGA does not provide other grounds to modify, authority to modify does not exist in a multiple-conviction case unless the conviction for the primary crime is reversed. Applying that rule, the Guder court held a district court lacks jurisdiction when resentencing in a multiple-conviction case to modify non-vacated sentences for the other crimes of conviction because only the sentence for the primary offense was vacated, the conviction itself was not reversed. 293 Kan. at 767.
But the caveat to Guder is that tire non-vacated sentences must be otherwise lawful when the case is returned to the district court on remand. See Miller, 260 Kan. at 899 (recognizing the KSGA limits a court’s powers to modify a lawful sentence). In Momings-tar’s case, the district court had to correct the aggravated battery sentence as well because it was no longer the primaiy offense after the off-grid rape sentence was vacated. In other words, Momings-tar’s criminal history score could no longer enhance the aggravated battery sentence, so absent modification on remand Momingstar’s aggravated battery sentence would have been an illegal sentence. See K.S.A. 21-4720(b)(2), (3), (5); Sims, 294 Kan. at 825 (sentence illegal when, e.g., it differs in character or term from that authorized by statute).
Guder is distinguishable because the district court here did not modify the sentences for any convictions that were not affected by our decision in Momingstar I. The district court had to make changes on remand to both Morningstar’s rape sentence and his original aggravated batteiy sentence so that the whole judgment conformed to the KSGA’s requirements. For this reason, we reject Morningstar’s argument that K.S.A. 21-4720(b)(5) prohibited the district court from addressing the concurrent or consecutive nature of the rape sentence. But the question still remains whether that aspect of the rape sentence was within the district court’s power to address when ensuring Momingstar’s sentences conformed to the KSGA. We hold that it was.
The sentence for each crime of conviction is multifaceted. In some cases, it encompasses confinement or other manners of du-rational punishment (such as probation), the place and duration of such punishments, monetary penalties (fines, fees, expenses, or restitution), and offender registration and postrelease supervision requirements. See K.S.A. 21-4603d; K.S.A. 21-4608; K.S.A. 21-4704; K.S.A. 21-4720. The panel concluded that the district court was “required to resentence Momingstar de novo, as if he had never been sentenced on the crime before.” Morningstar, 2011 WL 1878003, at *1. In so stating, the panel’s analysis seemingly implicates all aspects of a defendant’s sentence. But this would far exceed what the district court actually did and what Momingstar challenges. We are solely concerned with the district court’s decision to run the newly imposed rape sentence consecutive to Momingstar’s other sentences.
The district court was tasked with imposing a grid sentence for the rape conviction. At minimum, it needed to exercise its discretion and select the appropriate term of months from the range supplied by the applicable grid block. See K.S.A. 21-4704(e)(l). But selecting the term from the applicable grid box is not the only decision a district court must make in determining a grid sentence’s length. See K.S.A. 21-4716 (providing mechanism for departing from presumptive sentences supplied by KSGA grid); K.S.A. 21-4720(a) (providing discretion to run sentences consecutive in multiple-conviction cases).
In cases like Morningstar’s involving multiple convictions, whether a sentence runs consecutive to the defendant’s other sentence or sentences is related, if not intertwined, with the sentencing court’s discretion to choose the appropriate term of months. See K.S.A. 21-4720(a), (b) (consecutive sentences yield prison term equal to sum of the consecutive terms); see also State v. Stafford, 255 Kan. 807, 816-20, 878 P.2d 820 (1994) (upholding pre-KSGA consecutive sentences as within sentencing court’s discretion when district court considered statutory factors for determining sentences’ minimum terms in ordering sentences to run consecutively). The district court necessarily had to apply the KSGA provisions governing the terms of grid sentences to determine the sentence’s length. In doing so, the district court had to exercise its independent judgment—within the limitations imposed by the KSGA—to determine the appropriate sentence.
We hold that running the new rape sentence consecutive to the other sentences was a permissible mechanism available to the district court under the KSGA for regulating the sentence’s length. The district court properly addressed the facets of Momingstar’s vacated rape sentence that were before it on remand, which included whether the new sentence should run consecutive to the other sentences.
Authority to run sentence for primary crime of conviction consecutive to other sentences
Finally, Morningstar argues K.S.A. 21-4720 prohibited the district court from ordering the sentence for his primary crime, rape, to run consecutive to his other sentences. Interpretation of the sentencing statutes is a question of law subject to unlimited review. See Guder, 293 Kan. at 765.
Morningstar does little to develop this argument, which hinders the analysis. But essentially he contends the sentencing guidelines require the base sentence to be established first and only after that can a sentence for a nonbase crime be determined, including whether it runs consecutive to tire base sentence. We do not find this requirement in the statutes.
K.S.A. 21-4608 and K.S.A. 21-4720 both permit a district court to run two or more sentences consecutive with one another. In multiple-conviction cases, K.S.A. 21-4720 does not dictate the order in which consecutive grid sentences must be imposed or served. More precisely, the statute does not say the sentence for a primary crime cannot be run consecutive to another sentence or sentences.
In any event, it is inconsequential whether the sentence for a primary crime is consecutive to another grid sentence or whether the converse is true. All consecutive grid sentences are aggregated into a single controlling sentence. See K.S.A. 21-4720(b)(l). What matters is only whether the sentences are consecutive with one another and, therefore, aggregated; or concurrent with one another and, therefore, not aggregated. And while authorizing the district court to impose consecutive sentences, K.S.A. 21-4720 contains no express prohibition against running the sentence for a primary crime of conviction consecutive to a defendant’s other sentences. We will not read into the statute a prohibition that does not exist in its text.
We hold the district court did not err when it ordered the rape sentence to run consecutive to Morningstar’s other sentences. The net result, which is a controlling 229-month prison term, is in harmony with the statute. The Court of Appeals decision dismissing the case for lack of jurisdiction is reversed. The sentence imposed by district court is affirmed. | [
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The opinion of the court was delivered by
Moritz, J.:
Following his guilty plea, Joaquin DeAnda was convicted of first-degree premeditated murder and sentenced to life without the possibility of parole for 50 years (hard 50). In this direct appeal of his sentence, DeAnda asserts the district court erred in admitting hearsay evidence at his sentencing hearing and in imposing a period of lifetime postrelease supervision. Further, DeAnda contends the district court’s imposition of tire hard 50 sentence violated his rights under the Sixth Amendment to the United States Constitution because a judge rather than a jury found the facts necessary to increase the mandatory minimum sentence.
Following our holding in State v. Soto, 299 Kan. 102, Syl. ¶ 9, 322 P.3d 334 (2014), we conclude Kansas’ former statutory procedure for imposing a hard 50 sentence as provided in K.S.A. 21-4635 is unconstitutional. More specifically, the procedure utilized here violated the Sixth Amendment to the United States Consti tution as interpreted in Alleyne v. United States, 570 U.S. _, 133 S. Ct. 2151, 2155, 2162-63, 186 L. Ed. 2d 314 (2013), because it permitted a judge to find by a preponderance of the evidence the existence of one or more aggravating factors necessary to impose an increased mandatory minimum sentence rather than requiring a jury to find the existence of the aggravating factors beyond a reasonable doubt.
Based on this conclusion, we vacate DeAnda’s hard 50 sentence and remand for resentencing. Therefore, we do not address DeAnda’s claims of error regarding the admission of hearsay evidence at the sentencing hearing and imposition of an unauthorized lifetime postrelease supervision period. But, for purposes of remand, we consider and reject DeAnda’s claim that tire evidence was insufficient to support the aggravating circumstance.
Factual and Procedural Background
In December 2008, Garden City police discovered the body of 16-year-old J.Q. in a trash dumpster behind the home 17-year-old DeAnda shared with his mother. Following an investigation, the State charged DeAnda as a juvenile with first-degree murder, rape, and aggravated criminal sodomy. After a hearing, the district court certified DeAnda for adult prosecution and bound him over for trial on all charges.
Before trial, DeAnda entered into a plea agreement with the State, agreeing to plead guilty to one count of first-degree premeditated murder in exchange for the State’s agreement to dismiss the remaining charges with prejudice, and the State reserved the right to seek a hard 50 sentence. At the plea hearing, defense counsel provided the following factual basis for DeAnda’s guilty plea:
“[Ojn December 13th of 2008, [J.Q.] arrived at the home of Joaquin De Anda and his mother, Margie Romero. They went down to his basement bedroom, which is downstairs of the home on Fourth Street here in Garden City, Finney County, Kansas. They watched a movie and visited for a while. At some point Mr. De Anda began to choke [J.Q.]. As he was choiring her, he realized what he was doing could lead to her death, but continued to choice anyway until [J.Q.] fell unconscious, and Mr. De Anda believed she was dead.
“He then waited for [his mother and her friend], who were present in the upstairs portion of the home, to leave the home to attend some—a parade and some other festivities in town. After they left, Mr. De Anda moved [J.Q.’s] vehicle from the front of his home to another location here in Garden City, Finney County, Kansas, came back, and then after several—I’m sorry, before—when he came back, before moving her body, he then stepped on her neck to make sure that she was dead. And then proceeded to attempt to get her body up the stairs unsuccessfully, but eventually got her up the upstairs portion to the main level of the house, and then drug her out to the backyard, and then placed her body into a dumpster in the back alleyway behind the house, where her body was later discovered on or about December 16th of 2008.”
The district court accepted the plea and convicted DeAnda of first-degree premeditated murder. Before sentencing, the State filed notice of its intent to seek a hard 50 sentence, alleging DeAnda committed the murder in an especially heinous, atrocious, or cruel manner. See K.S.A. 21-4636(f).
At the sentencing hearing, the State presented evidence from several witnesses to support the alleged aggravating circumstance. Detective Mark Johnson testified he found J.Q.’s body in a dumpster located behind the DeAnda residence and that J.Q. had bruising on her face and cut marks on her neck just below her chin.
Kathy Gill-Hopple, a sexual assault nurse examiner, examined J.Q.’s body before the autopsy and found three 1-millimeter abrasions on the posterior tissue of J.Q.’s vaginal opening. Gill-Hop-ple testified these abrasions were consistent with a sliding force injuiy. Further, Gill-Hopple testified she found three contusions, or bruises, at the juncture of J.Q.’s hymen and labia minora and that diese contusions were not postmortem injuries.
Over DeAnda’s objection, the State introduced an autopsy report and evidence about the cause and manner of J.Q.’s death through the testimony of Dr. Jamie Oeberst, the Sedgwick County district coroner and chief medical examiner. Another medical examiner, Dr. Bamidele Adeagbo, had performed the autopsy and had testified at DeAnda’s preliminary hearing. But by the time of DeAnda’s sentencing, Dr. Adeagbo was no longer employed by Sedgwick County.
Dr. Oeberst testified the manner of death was homicide and the cause of death was “asphyxia associated with blunt-force injuries.” She described the blunt-force injuries as abrasions and contusions on J.Q.’s face, a contusion on the inside of the scalp on the top of J.Q.’s head evidencing a blow to the head, and a hemorrhage on the anterior aspect of J.Q.’s cervical spine, evidencing “[pjossibly a twisting motion” or “side-to-side or front-to-baclc” movement of the tissue around the spine.
According to Dr. Oeberst, some of J.Q.’s injuries, including “fingertip contusions” on her thighs, indicated a struggle preceded her death. Dr. Oeberst further testified J.Q. had multiple abrasions, scrapes, and contusions on her face, chest, abdomen, back, and extremities; postmortem incisions on her neck and arms; and postmortem bums on her back. Finally, Dr. Oeberst testified she reviewed microscopic slides of tissue samples from J.Q.’s vaginal contusions and concluded the vaginal contusions occurred “within probably a couple of hours” of J.Q.’s death but not after her death.
Kelly Edison, a psychologist formerly employed by Larned State Hospital, conducted a court-ordered mental evaluation of DeAnda and testified about DeAnda’s statements to her during that evaluation. According to Edison, DeAnda said that on the night of J.Q.’s death, he and J.Q. were cuddling, listening to music, and making out when he began choking J.Q. because he wanted to be “Nick Gonzo.” DeAnda explained to Edison that “Nick Gonzo” was not a real person but “ The person [he] aim[ed] to be.’ ” J.Q. fought back but was unable to scream because DeAnda was choking her. After choking J.Q., DeAnda placed his hands on the ceiling to brace himself and stood on J.Q.’s neck to make sure she was dead. Then, before going upstairs to eat, he placed J.Q. in the bed to look as if she was sleeping. After his mother left the house, DeAnda returned to the basement and had sex with J.Q.’s dead body.
DeAnda also told Edison he hid J.Q.’s body under the bed and then took her bag and cell phone and drove her car to the zoo. After parking J.Q.’s car at tíre zoo, DeAnda walked back to his home, dragged J.Q.’s body across the floor, and dumped it in a trash dumpster.
Testifying for the defense, Dr. Corrie May, a forensic pathologist, identified numerous errors she found in the autopsy report, including the incorrect use of anatomic and technical pathology terms; multiple diagnoses of the same wound beneath the left col larbone; and a statement that “[t]he cervical vertebrae was . . . out of alignment,” although x-rays showed the area as “normal.” Dr. May also testified the autopsy report mislabeled several cuts on the body as stab wounds and failed to indicate the medical examiner performed the autopsy over the course of 2 days.
Dr. May agreed that J.Q.’s death resulted from asphyxiation and that sharp cuts across J.Q.’s throat were inflicted postmortem. According to Dr. May, she could not determine whether a sexual assault occurred, but she agreed that if DeAnda claimed he sexually assaulted J.Q., she had “no evidence to the contrary.” Dr. May also testified she did not have all of the investigative lab reports, but she admitted that if the reports indicated the presence of DeAnda’s semen in the vaginal wall, “common sense would tell you there must have been some sexual assault.”
Dr. William Logan, a psychiatrist, testified for the defense that he reviewed DeAnda’s mental health files, examined him on three occasions, and diagnosed DeAnda with major depressive disorder and schizophrenia. Dr. Logan testified DeAnda had been hospitalized on several occasions for mental health issues, including a hospitalization for a drug overdose 1 month before the murder.
According to Dr. Logan, at tire time of sentencing DeAnda was taking several medications for depression, but Dr. Logan could not say whether DeAnda was taking any medications when he killed J.Q. However, Dr. Logan testified DeAnda was under the influence of extreme mental or emotional disturbances when he committed the crime and his capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of the law was substantially impaired.
Specifically, Dr. Logan testified that at the time of the murder, DeAnda suffered from depression and struggled “with some psychotic thoughts about something that he needed to do to achieve what he called enlightenment. . . [and was] experiencing the idea that people could read his thoughts.” Regarding DeAnda’s capacity to understand the criminality of his actions, Dr. Logan testified that although DeAnda had a diminished capacity to “[understand it from a moral standpoint, I think he understood that what he did was legally wrong.” However, Dr. Logan also clarified he was un certain DeAnda comprehended the illegality of some of his actions at the time they occurred. Finally, Dr. Logan opined: “I don’t think [DeAnda] really truly appreciated [J.Q.] as another human being when he did this. I mean, she was more of an object to effect some land of enlightenment or change.”
Ultimately, the district court found DeAnda’s conduct demonstrated beyond a reasonable doubt that DeAnda desecrated “the victim’s body in a manner indicating a particular depravity of mind either during or following the killing.” See K.S.A. 21-4636(f)(6) (providing State may demonstrate conduct that is “especially heinous, atrocious or cruel” by showing “desecration of the victim’s body in a manner indicating a particular depravity of mind, either during or following the killing”). In its written findings, the court found DeAnda attacked J.Q. without warning and J.Q. either died as a result of the initial attack or she was “rendered insensible and never regained noticeable consciousness prior to her death.” The court noted inconclusive evidence regarding whether J.Q. was alive at the time of the sexual assault but found “no evidence that [J.Q.] was in any way cognoscente [sic] of the assault and the likelihood was that she was at that time already dead.” The court further found DeAnda “made three conscious attempts” on J.Q.’s life or body to insure she was in fact dead.
In mitigation, the court found beyond a reasonable doubt that DeAnda was 17 at the time of the crime and found by a preponderance of the evidence that DeAnda committed the crime while he was under the influence of extreme mental or emotional disturbances. The court ultimately imposed a hard 50 sentence after concluding the aggravating circumstance was not outweighed by the mitigating circumstances.
Our jurisdiction over DeAnda’s direct appeal arises under K.S.A. 2013 Supp. 22-3601(b)(3) (life sentence imposed); see also State v. Hall, 292 Kan. 862, 866, 868, 257 P.3d 263 (2011) (reaffirming that this court lacks jurisdiction to consider direct appeal following guilty plea, but stating “[a] guilty plea does not surrender a defendant’s right to appeal a sentence”).
Discussion
The hard 50 sentencing scheme is unconstitutional.
When DeAnda filed his appellate brief, he argued in part that Kansas’ 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), because it does not require a jury to find the facts that increase the penalty beyond a reasonable doubt. DeAnda acknowledged that this court has consistently upheld the constitutionality of the hard 50 sentencing scheme, and the State argued we should do the same here.
But, as DeAnda’s appellate counsel declared at oral argument, the “legal landscape” changed while DeAnda’s appeal was pending. In June 2013, the United States Supreme Court held that any fact that increases a mandatory minimum sentence increases the penalty for a crime and therefore is an element that must be submitted to a jury and proved beyond a reasonable doubt. Alleyne, 133 S. Ct. at 2155, 2162-63. DeAnda filed a letter of additional authority citing Alleijne to support his position that his hard 50 sentence was unconstitutional. See Supreme Court Rule 6.09(b) (2013 Kan. Ct. R. Annot. 50).
After oral argument in this case, this court in another case held Kansas’ former statutory procedure for imposing a hard 50 sentence as provided in K.S.A. 21-4635 violated the Sixth Amendment to the United States Constitution because it permitted a judge to find by a preponderance of the evidence the existence of one or more aggravating factors necessary to impose an increased mandatory minimum sentence, rather than requiring a jury to find the existence of the aggravating factors beyond a reasonable doubt. Soto, 299 Kan. 102, Syl. ¶ 9.
Based on Soto and its application of Alleyne, we conclude the district court violated DeAnda’s Sixth Amendment right to a jury trial in imposing the hard 50 sentence using the K.S.A. 21-4635 statutory procedure.
Under the facts of this case, toe remand for resentencing.
Notably, following Alleyne and before oral argument in this case, the Kansas Legislature conducted a special session to amend Kansas’ hard 50 sentencing scheme. See L. 2013, ch. 1, sec. 1 (Special Session). The amended version of 21-6620 expressly provides for retroactive application in cases pending on appeal. K.S.A. 2013 Supp. 21-6620(c).
Although neither party briefed the issue, at oral argument the State suggested that if this court finds Kansas’ former hard 50 statute unconstitutional under Alleyne, we should remand the case for resentencing under the amended statute, K.S.A. 2013 Supp. 21-6620. DeAnda’s appellate counsel disagreed, suggesting the amended statute could not be applied retroactively.
We considered several questions related to the appropriate remedy for a hard 50/Alleyne error in Soto, and those considerations guide us here.
1. The hard S0/Alleyne error in this case could not be held harmless.
In Soto, we first considered whether hard 50/Alleyne errors can be subject to harmless error review, and we reasoned that if we were to apply a harmless error analysis, it would be a modified, stringent harmless error test. Specifically, we concluded a hard 50/ Alleyne error could be harmless only if we conclude (1) beyond a reasonable doubt that uncontroverted and overwhelming evidence supported the aggravating circumstance such that the juiy would have found the existence of the aggravating circumstance beyond a reasonable doubt, and (2) beyond a reasonable doubt that no rational jury would have determined that mitigating circumstances outweighed the aggravating circumstance. Soto, 299 Kan. at 126-27.
Ultimately, we declined in Soto to decide whether hard 50/Al-leyne errors are subject to harmless error review because Soto did not present the rare circumstance in which an error could be held harmless. Soto, 299 Kan. at 127-28.
In this case, unlike Soto, the district court did find “beyond a reasonable doubt” that DeAnda’s conduct demonstrated “[djese- cration of the victim’s body in a manner indicating a particular depravity of mind, either during or following the killing,” under K.S.A. 21-4636(f)(6). Despite this finding, this case is like Soto in that it does not present the rare circumstance in which an error could be held harmless. That is because even if the facts of this case would permit us to conclude beyond a reasonable doubt that uncontroverted and overwhelming evidence supported the aggravating circumstance found by the judge such that the jury would have found the existence of that circumstance beyond a reasonable doubt, we could not reach the same conclusion as to the second part of the test.
DeAnda presented evidence of two strong mitigating circumstances—his young age, 17, and his history of significant mental illness. While the district court ultimately found these two factors did not outweigh the aggravating circumstance, we cannot say with any degree of certainty that a jury of 12 would have reached the same conclusion. See Soto, 299 Kan. at 127 (noting defendant’s mitigation evidence precluded court from concluding no rational jury would have determined mitigating circumstances outweighed aggravating circumstance).
Thus, as in Soto, we decline to decide whether a hard 50/Alleyne error may be subject to harmless error review because this case does not present the rare instance in which such an error could be held harmless. Consequently, we vacate DeAnda’s sentence and remand for resentencing.
2. The appropriate course of action on remand remains an open question.
Soto provides additional guidance as to whether the State may seek imposition of a hard 50 sentence on remand under K.S.A. 2013 Supp. 21-6620. There, we held that issues related to application of the amended hard 50 statute will not ripen unless and until the State seeks application of the amended statute on remand, and we thus declined to issue an advisory opinion. See Soto, 299 Kan. at 128-29. If that eventuality occurs, and if die parties so choose, they are free to present arguments to the district court regarding retroactive application of the amended statute.
3. The evidence is sufficient to support the aggravating circumstance.
Finally, because we cannot predict whether the State will seek a hard 50 sentence under the amended statute on remand, we will assume as much and address DeAnda’s claim that the evidence is insufficient to support the aggravating circumstance found by the district court. See Soto, 299 Kan. at 129-30 (declining to decide whether State may seek application of K.S.A. 2013 Supp. 21-6620 on remand, but addressing defendant’s challenge to sufficiency of evidence of aggravating circumstance); see also K.S.A. 2013 Supp. 21-6620(e) (providing that if hard 50 sentence imposed under prior version of statute “is vacated for any reason other than sufficiency of the evidence as to all aggravating circumstances, resentencing shall be required under this section, as amended by this act, unless the prosecuting attorney chooses not to pursue such a sentence”).
In light of Alleyne, our task is to consider whether, after review of all the evidence in a light most favorable to the prosecution, a rational factfinder could have found the existence of the aggravating circumstance beyond a reasonable doubt. Soto, 299 Kan. at 129. Here, the district court found DeAnda committed the murder in a heinous, atrocious, or cruel manner under K.S.A. 21-4636(f)(6). That subsection specifies that conduct is “especially heinous, atrocious or cruel” if the defendant desecrated the victim’s body “in a manner indicating a particular depravity of mind, either during or following the killing.”
In his plea, DeAnda admitted that after he killed J.Q. by choking her, he hid her body in his room for an unspecified amount of time, waited for his family to leave the house, stepped on J.Q.’s neck to make sure she was dead, drug J.Q.’s body up the stairs and through his backyard, and placed it in a trash dumpster behind his house. DeAnda did not contest this evidence at the sentencing hearing, and DeAnda’s psychologist corroborated the evidence with her testimony about DeAnda’s statements during a court-ordered mental evaluation.
As DeAnda suggests in his brief, the manner in which he disposed of J.Q.’s body after the murder is insufficient, standing alone, to support a finding he committed the murder in an especially heinous, atrocious, or cruel manner under K.S.A. 21-4636(f)(6). See State v. Buehler-May, 279 Kan. 371, 388-89, 110 P.3d 425, cert. denied 546 U.S. 980 (2005) (suggesting defendant’s acts of wrapping victim’s body in a tarp, leaving it in a house for a day or two, and throwing it in a river did not necessarily demonstrate “particular depravity of mind” under K.S.A. 21-4636[f][6]).
But as the State points out, the evidence supporting the aggravating circumstance here was not limited to the manner in which DeAnda disposed of J.Q.’s body. Rather, the evidence presented at the sentencing hearing established DeAnda inflicted several postmortem injuries—specifically three incisions on J.Q.’s neck, incisions on her arms, and burns on her back. Further, DeAnda told Edison and Dr. Logan that he had sexual intercourse with J.Q.’s dead body.
DeAnda concedes in his brief that having sexual intercourse with a dead body likely constitutes “desecration” of a victim’s body. But relying on Buehler-May, 279 Kan. at 389, DeAnda argues the State is required to demonstrate he intended to desecrate J.Q.’s body “in a manner indicating a particular depravity of mind, either during or following the killing.” Further, DeAnda reasons, “[bjesides the act of sexual intercourse, he did not do anything particularly heinous or morally horrendous to the body.”
But this court in Buehler-May did not append an intent requirement to K.S.A. 21-4636(f)(6). Instead, the court held “a defendant’s actions must be heinous to a great degree to meet the threshold for this factor to apply.” 279 Kan. at 389. Even if DeAnda’s postmortem acts of stepping on J.Q.’s neck, cutting her neck in three places, and inflicting burns on her body are insufficient evidence of desecration in a manner demonstrating a particular depravity of mind, we have no hesitancy in finding that a rational factfinder could conclude beyond a reasonable doubt that De-Anda’s act of having sexual intercourse with what he believed to be J.Q.’s dead body was heinous to a great degree, demonstrating the particular depravity of mind contemplated by K.S.A. 21-4636(f)(6).
In sum, viewing the evidence in the light most favorable to the prosecution, we conclude a rational factfinder could have found beyond a reasonable doubt that DeAnda committed the murder in an especially heinous, atrocious, or cruel manner under K.S.A. 21-4636(f). Thus, we vacate DeAnda’s sentence and remand for re-sentencing for the sole reason that his sentence was imposed in violation of his Sixth Amendment right to a jury trial.
We need not fully address DeAnda’s remaining issues.
Finally, because we are vacating DeAnda’s hard 50 sentence, we necessarily vacate the unauthorized order of lifetime postrelease supervision imposed as part of his off-grid indeterminate life sentence. See State v. Cash, 293 Kan. 326, Syl. ¶ 2, 263 P.3d 786 (2011) (“[A] sentencing court has no authority to order a term of postrelease supervision in conjunction with an off-grid indeterminate life sentence.”). And our remand for a new sentencing hearing moots DeAnda’s claim that the district court erroneously admitted hearsay evidence at the sentencing hearing.
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The opinion of the court was delivered by
Rosen, J.:
Alejandro E. Betancourt, Jr., appeals from his conviction of first-degree murder and criminal discharge of a firearm at an occupied building. Finding no reversible error, we affirm.
In May 2010, Daniel Betancourt was involved in an altercation at an apartment building on West 21st Street in Wichita that resulted in his hospitalization. Luis Guerrero-Lopez was associated with the assailants, and Guerrero-Lopez was at the time romantically involved with Maribel Andrade, who lived at a residence on North Jackson Avenue with her mother and brothers. Daniel is the brother of the defendant, Alejandro.
Gregory Patton was a friend of Alejandro and Daniel’s brother, Eli Betancourt. On June 19, 2010, Patton and Eh got together and went to a birthday party at a friend’s house. Eli drove them there in his green Jeep at around 10:30 in the evening. Alejandro was already at the party when they arrived. Eli, Alejandro, and Patton all consumed alcohol at the party. At some point in time during the party, a man in a red jersey, who was later identified as Edward Laurel, was overheard saying that he knew where the individual who had been involved in the incident with Daniel lived. Alejandro, Eli, and Patton left the party together sometime shortly before sunrise. Eli was driving, and Alejandro sat in the passenger seat, with Patton sleeping part of the time in the back.
Patton woke up when they pulled up in front of a house that was unfamiliar to him. Patton saw Eli, Alejandro, Laurel, and an unfamiliar Hispanic man talking in the front yard. Eh, Alejandro, and Laurel got back in the Jeep, with Alejandro driving. Laurel and Patton sat in the back seat, while Eli sat in the front passenger seat. Laurel explained that he was going to get back at somebody. He gave directions on how to get to a house on North Jackson Avenue. Alejandro slowly drove the car by the house when they arrived, parking just out of sight of the residence. Laurel was hold ing a semiautomatic gun and explained that the plan was to run up to the house and shoot into it.
Alejandro told Eli and Laurel to run back to the car when they had finished their mission. Eli and Laurel got out of the Jeep and walked toward the house. Alejandro told Patton, “Listen for it.” They heard gunshots, and, after a few minutes, Alejandro backed the car up when Eh and Laurel failed to reappear. Alejandro saw that the two gunmen were running the wrong way, so he drove the car around the block to meet them and pick them up. Laurel said as he got in the car, “I got him,” and Alejandro drove the car away at a high speed.
Eli and Laurel fired at least 15 shots into die house, using a .22 caliber firearm and a 9 mm firearm. An examination of damage to the front doors indicated that someone had held the screen door open and had fired shots directly into the main door.
That night, 13-year-old Miguel Andrade, the younger brother of Maribel, had stayed up late watching television and had gone to sleep on the living room sofa. Around 6 in the morning, his mother heard a loud bang and then heard Miguel shouting in Spanish that he had been hit. She went into the living room, where she found Miguel lying on the floor by the front door. She initially thought someone had hit Miguel with a fist, but then he said, “They shot me.” She saw blood on him, and she called 911 and began shouting out a window to neighbors. Miguel was taken to a hospital by ambulance, where he died from multiple gunshot wounds.
Neighbors who observed the scene were able to describe what happened and give descriptions of the two gunmen. They saw two Hispanic men walk up to the house, where one of the men either knocked on the door or rang the doorbell while the other looked in through a window. The two started shooting at the door when it appeared that someone inside the house was approaching the door. A neighbor across the street had set up motion-sensitive security cameras to help safeguard construction materials on his property, and at about 6 in the morning the cameras recorded a vehicle resembling Eli’s Jeep slowly driving by the house several times before it finally parked.
After leaving the scene of the shooting, Alejandro drove back to the house where he and the others had initially met up with Laurel. Laurel took die guns and got out of die Jeep, and Eli took over driving from Alejandro. Police intercepted the Jeep soon after-wards, and several eyewitnesses identified Eli as one of the shooters.
The State filed an information charging Alejandro with one count of premeditated first-degree murder, or, in the alternative, one count of felony first-degree murder, and one count of criminal discharge of a firearm at an occupied building. A jury found Alejandro guilty of first-degree murder under both theories and guilty of criminal discharge of a firearm.
On May 13, 2011, the court sentenced Alejandro to a hard 25 life sentence for murder and a consecutive 17-month sentence for the criminal discharge of a firearm. Alejandro filed a timely appeal to this court.
Jury Instructions With Respect to Intent
In order to be guilty of aiding and abetting, “ ‘a defendant must willfully and knowingly associate himself with the unlawful venture and willfully participate in it as he would in something he wishes to bring about or to make succeed.’ ” State v. Llamas, 298 Kan. 246, 253, 311 P.3d 399 (2013) (quoting State v. Schriner, 215 Kan. 86, 92, 523 P.2d 703 [1974]). “[W]hen a person knowingly associates with an unlawful venture and participates in a way that demonstrates willful furtherance of its success, guilt as an aider and abettor is established. [Citations omitted.]” State v. Herron, 286 Kan. 959, 968, 189 P.3d 1173 (2008).
Jury Instruction 7 explained aiding and abetting:
“A person who, either before or during its commission, intentionally aids another to commit a crime with intent to promote or assist in its commission is criminally responsible for the crime committed regardless of the extent of the defendant’s participation, if any, in the actual commission of the crime.”
Juiy Instruction 8 explained premeditated murder:
“The defendant is charged with the crime of first degree murder. The defendant pleads not guilty. To establish this charge, each of tire following claims must be proved:
“1. That the defendant intentionally killed Miguel Andrade;
“2. That such killing was done with premeditation;
“3. That this act occurred on or about the 20th day of June, 2010, in Sedgwick County, Kansas.
“Intentionally means conduct that is purposeful and willful and not accidental. Intentional includes the terms ‘knowing’, ‘willful’, ‘purposeful’ and ‘on purpose.’ ”
Alejandro argues on appeal that these instructions were deficient because they did not inform the jury that a defendant who is guilty on an aiding and abetting theoiy of premeditated murder must share the principal’s premeditated intent. Alejandro did not object to the instructions on premeditated murder. This court therefore applies a clear-error rule. See State v. Dobbs, 297 Kan. 1225, 1237, 308 P.3d 1258 (2013). In determining whether an instruction was clearly erroneous, this court first determines whether the instruction was erroneous, which is a legal question subject to de novo review. If the instruction was erroneous, the court then determines whether it is firmly convinced that the jury would have reached a different verdict without the error, in which case reversal is required. Reversibility is subject to unlimited review and is based on the entire record. It is the defendant’s burden to establish clear error under K.S.A. 22-3414(3). 297 Kan. at 1237.
Alejandro refers to language contained in State v. Overstreet, 288 Kan. 1, 200 P.3d 427 (2009), where the trial court provided a dual instruction on aiding and abetting:
“ ‘A person who, either before or during its commission, intentionally aids, abets or procures another to commit a crime with the intent to promote or assist in its commission, is criminally responsible for the crime committed regardless of the extent of the person’s participation, if any, in the actual commission of the crime.
“ ‘A person who intentionally aids another to commit a crime is also responsible for any other crime committed in carrying out or attempting to carry out the intended crime, if die other crime was reasonably foreseeable.’ ” 288 Kan. at 8.
The court followed State v. Engelhardt, 280 Kan. 113, 119 P.3d 1148 (2005), and held that the two-part instruction impermissibly lowered the State’s burden of proving the element of intent because the instruction stated that the prosecution was required only to prove that the murder was a foreseeable consequence of another criminal act-—not that the murder was premeditated. Overstreet, 288 Kan. at 10-11. The court noted that in Engelhardt the conviction based on the same instruction was affirmed because of the overwhelming evidence against the defendant. 288 Kan. at 11. The Overstreet court held, however, that the foreseeability part of the instruction inaccurately stated the law and could have confused the juiy on the subject of intent. 288 Kan. at 14-15.
Alejandro pulls from Overstreet, 288 Kan. 1, the second and third syllabus paragraphs to support his argument that the instruction was incomplete:
“2. For a defendant to be convicted of a specific intent crime on an aiding and abetting theory, that defendant must have the same specific intent to commit the crime as the principal.”
“3. The specific intent required to be proved for conviction on a premeditated first-degree murder charge is premeditation. Therefore, under K.S.A. 21-3205(1), a person guilty of aiding and abetting a premeditated first-degree murder must be found, beyond a reasonable doubt, to have had die requisite premeditation to murder the victim.”
Alejandro’s case differs significantly from Overstreet and Engel-hardt in that the second part of the aiding and abetting instruction—the part negating the intent portion—was not given here. Instead, in this case the jury was given Instructions 7 and 8, which explicitly required the jury to find that Alejandro intended to aid and abet in a killing done with premeditation. See Llamas, 298 Kan. at 261 (when reviewing for error, appellate courts examine instructions as a whole, rather than any one isolated instruction, and appropriately consider the elements instruction together with the aiding and abetting instruction). Considering the entirety of the jury instructions, we conclude that the instructions as given accurately stated Kansas law and did not mislead or confuse the juiy.
Aiding and Abetting as Alternative Means
Alejandro argues on appeal that committing murder as the principal and committing murder as an aider and abettor constitute two alternative means for committing first-degree murder. Because the State presented no evidence tending to prove that Alejandro actually fired a weapon, he argues that there was insufficient evidence to support a conviction under one of the alternative means, and it is impossible to determine whether the jury was unanimous in finding him guilty only under the theory of aiding and abetting.
Whether a statute creates alternative means of committing a crime is a matter of statutory interpretation and construction and is a question of law subject to de novo review on appeal. State v. Foster, 298 Kan. 348, 353, 312 P.3d 364 (2013).
In State v. Brown, 295 Kan. 181, 194, 284 P.3d 977 (2012), we held that alternative means are legislatively determined distinct, material elements of a crime, as opposed to legislative descriptions of material elements or factual circumstances that would prove the crime. We explained:
“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 create alternative means, even if the description is included in a jury instruction. [Citation omitted.]” 295 Kan. at 194.
The present case calls for an unusual analysis of the alternative means problem. Unlike the challenge in a typical alternative means case, Betancourt does not argue that a disjunctive “or” in the language of a particular statute creates two criminal acts, both of which the State must prove. Instead, Betancourt maintains that two separate statutes, when applied together, create two criminal acts, with a concurrent burden on the State to prove both. Our inquiry is whether the aiding and abetting statute adds distinct, material elements to the crime of first-degree murder, or whether it is a factual circumstance that would prove the crime. See Brown, 295 Kan. at 193 (identifying alternative means issues more complicated than simply finding word “or”).
K.S.A. 21-3401 defines first-degree murder:
“Murder in the first degree is the killing of a human being committed:
“(a) Intentionally and with premeditation; or
“(b) in tire commission of, attempt to commit, or flight from any inherently dangerous felony.”
K.S.A. 21-3205 defines liability for crimes committed by another:
“(1) A person is criminally responsible for a crime committed by another if such person intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime.
“(2) A person liable under subsection (1) hereof is also liable for any other crime committed in pursuance of the intended crime if reasonably foreseeable by such person as a probable consequence of committing or attempting to commit tire crime intended.
“(3) A person liable under this section may be charged with and convicted of tire crime although tire person alleged to have directly committed the act constituting the crime lacked criminal or legal capacity or has not been convicted or has been acquitted or has been convicted of some other degree of the crime or of some other crime based on the same act.”
Alejandro argues that the elements contained in the aiding and abetting statute add material elements to the definition of the crime. Applying Alejandro’s rationale, the aiding and abetting statute, standing alone, would not apply to Laurel, for example, because he did not aid the others in committing the crime. Similarly, the first-degree murder statute, standing alone, would not apply to Alejandro, because he did not kill anyone. Alejandro reasons that the elements of the two theories of guilt are different, and the State failed to prove both theories.
This argument has at least two shortcomings. First, the first-degree murder statute itself does not expressly require that the defendant perform the act resulting in death. Guilt can be predicated on the “killing of a human being,” without the actual killer being specified and prosecuted. Second, Laurel did in fact aid the others in committing the crime: All four individuals in tire car participated in the killing, and each of the four aided and abetted the three others in carrying out the crime.
Requiring the State to prove which participant in a concerted-effort crime was the principal actor and which was die accessory has the potential to create insoluble problems for a jury. In the present case, for example, the evidence is overwhelming that both Eli and Laurel went to die victim’s front door and fired shots through it. It would be virtually impossible for the State to prove that one shooter, or the odier shooter, or both, ultimately killed the victim when both inflicted serious wounds. Furthermore, in order to obtain a proper conviction in a case such as this one, a special verdict might be necessary, because instructing the jury that it could only find the defendant guilty of murder under a theory of aiding and abetting could prove complex and confusing. See Brown, 295 Kan. at 196 (criticizing special verdicts); State v. McDonald, 138 Wash. 2d 680, 687, 981 P.2d 443 (1999) (rejecting alternative means analysis spares jury potentially impossible task of deciding which of two gunmen actually ldlled victim).
The more accurate approach is to consider the language of the aiding and abetting statute to be an assignment of criminal responsibility, rather than the creation of a distinct element of a crime. K.S.A. 21-3205 malees a person equally hable for crimes of others if there is a concerted effort to carry out the crime. It does not, for instance, establish two different crimes, one consisting of shooting a victim and tire other consisting of handing a gun to someone for the purpose of shooting a victim. Similarly, it does not establish two different crimes for committing a murder, one committed by firing a gun and the other by driving the getaway car. Instead, the legislative intent, as expressed in the language of the aiding and abetting statute, is to make each individual who engages in a concerted action to cany out a crime equally culpable. See Rosemond v. United States, 572 U.S. _, 134 S. Ct. 1240, 1246, 188 L. Ed. 2d 248 (2014) (under both common-law and federal statute, aiding and abetting does not have to advance every element of principal crime).
This approach avoids problems in distinguishing a principal from an accessory. For example, if two individuals enter a store and demand money from the register, and one holds open a bag and the other deposits the money into the bag, then only one crime has been committed. It is not necessary to distinguish which of the perpetrators was the thief and which was the aider and abettor to the thief. See Rosemond, 134 S. Ct. at 1246 (citing 1 Wharton, Criminal Law § 251, p. 322 [11th ed. 1912]). As this court explained in State v. Robinson, 293 Kan. 1002, 1038, 270 P.3d 1183 (2012), “[a]iding and abetting is not a separate crime in Kansas. Instead it extends criminal liability to a person other than the principal actor. [Citation omitted.]”
This analysis is also consistent with the position that this court has taken with regard to charging documents. The State is not required to charge aiding and abetting in order to pursue such a theory at trial. If at trial the jury could reasonably conclude that the defendant aided and abetted another in the commission of the crime, it is appropriate to instruct the jury on aiding and abetting. See, e.g., State v. Amos, 271 Kan. 565, 23 P.3d 883 (2001); State v. Pennington, 254 Kan. 757, 764, 869 P.2d 624 (1994); State v. Motor, 220 Kan. 99, 102, 551 P.2d 783 (1976). This is because the statutory scheme explicitly states that one who aids and abets in the commission of any offense may be charged, tried, and convicted in the same manner as if acting as a principal. 220 Kan. at 102.
We are persuaded that murder by shooting a gun and murder by facilitating the shooter are not separate means of committing a shooting crime that require alternative instructions. The legislature has not differentiated between the penalty for aiding and abetting and tire penalty for actions as a principal; as this court has previously decided, aiding and abetting does not constitute a separate crime in this state. It does not have to be charged separately prior to trial. Jurors are not required to differentiate among like-minded individuals who jointly carry out a crime, some perhaps by firing deadly shots and others perhaps by driving a getaway car.
We conclude that the jury was properly instructed on the elements of first-degree murder and that sufficient evidence supported the conviction.
Our Court of Appeals has published at least four cases on the issue, with panels taking opposing positions. See, e.g., State v. Boyd, 46 Kan. App. 2d 945, 952-53, 268 P.3d 1210 (2011), petition for rev. filed January 23, 2012 (aiding and abetting is alternative means); State v. Cato-Perry, 48 Kan. App. 2d 92, 284 P.3d 363 (2012), petition for rev. filed, September 12, 2012 (aiding and abetting is alternative means); State v. Snover, 48 Kan. App. 2d 298, 287 P.3d 943 (2012), petition for rev. filed December 10, 2012 (no alternative means; statutory language simply sets out degree of cul pability as accessory); State v. Jackson, 49 Kan. App. 2d 116, 305 P.3d 685 (2013), rev. denied 299 Kan. 1272 (2014) (no alternative means; aiding and abetting statute merely provides descriptors of how defendant person participated in crime). We note that the cases finding no alternative means conflict were decided after our ruling in Broum and relied on the analysis in Brown. To the extent that Boyd and other Court of Appeals opinions are inconsistent with our holding in the present matter, those opinions are overruled.
Voluntary Intoxication Instruction
Alejandro argues that, despite his failure to request a voluntary intoxication instruction, the trial court committed reversible error by failing to give the instruction. Because he did not object to the instructions as given or request an instruction on voluntary intoxication, this court applies the clear-error rule with the same standard of review as in the first two issues. This court first determines whether the instruction was erroneous, which is a legal question subject to de novo review. If the instruction was erroneous, the court tíren determines whether it is firmly convinced that the jury would have reached a different verdict without the error, in which case reversal is required. Reversibility is subject to unlimited review and is based on the entire record. It is the defendant’s burden to establish clear error under K.S.A. 22-3414(3). Dobbs, 297 Kan. at 1237.
A defendant is entitled to a voluntary intoxication instruction if there is evidence supporting such a defense. See State v. Moore, 287 Kan. 121, 134, 194 P.3d 18 (2008); State v. Baker, 281 Kan. 997, Syl. ¶ 2, 135 P.3d 1098 (2006). Unless the State or the defendant presents sufficient evidence showing intoxication to the extent of impairing the ability to form the requisite intent, a court is not required to instruct the jury on the defense of voluntary intoxication. State v. Gadelkarim, 247 Kan. 505, 508, 802 P.2d 507 (1990). Loss of memory or inability to remember events before or during the offense may show an inability to form intent. See State v. Minski, 252 Kan. 806, 811-12, 850 P.2d 809 (1993). Without evidence that the defendant is so impaired that he or she has lost the ability to reason, to plan, to recall, or to exercise motor skills as a result of voluntary intoxication, it is not clear error to fail to give a voluntary intoxication instruction. State v. Warren, 252 Kan. 169, 174, 843 P.2d 224 (1992).
The evidence to which Alejandro points as supporting the instruction comes from the testimony of Detective Dan Harty. Harty testified that during a custodial interview, Alejandro discussed his mental state at the time of the crime:
“And he told me that he was—he was drunk but he was conscious and alert or awake the entire time.
“He said: ‘I wasn’t sleeping, man. I was—I was—I mean I was drunk but I mean I was conscious the whole time. I just—I really honestly wasn’t thinking about none of that stuff. I was probably just drinking.’ ”
Harty also testified that Alejandro told him he had been using cocaine that night and had been drinking well into the party and was “pretty effed up.” There was thus substantial evidence that Alejandro had been consuming intoxicants, and there was some limited evidence that he was impaired. It would require expansive understanding of that evidence, however, to find within it substantive indicators that Alejandro was so intoxicated that he was unable to form a specific intent to commit the crimes.
In fact, lie evidence showed that Alejandro possessed sufficient mental function to drive the perpetrators to the scene of the crime, drive by the house several times, pull the car up to where it would not be seen from the house, direct the gunmen on their escape activities, back up to check on what was happening, observe that the shooters were running the wrong way and drive around the block to pick them up, and then drive away from the scene at a high rate of speed.
In his closing argument, defense counsel mentioned that Alejandro was “conscious” but that he was “messed up,” high,” and “drunk.” Defense counsel never argued to the jury, however, that Alejandro was so intoxicated that he was unable to form the intent to participate in a shooting. The defense argued instead that the four did not intend to engage in any gunfire but were startled when someone came to the door after they knocked. Defense counsel also argued that Alejandro was not aware that guns were going to be part of the picture when they got to the house.
Although Alejandro’s consumption of intoxicants was introduced, it was never emphasized or shown to have impaired his ability to form the intent to aid and abet a murder. It was therefore not error, let alone clear error, to omit an instruction on voluntaiy intoxication.
Jurors Statement During Voir Dire
Before the trial, the State filed a motion to admit evidence of gang membership as defined in K.S.A. 21-4226. Alejandro subsequently filed a motion in limine asking the court to exercise control over witnesses to prevent jurors from learning about possible gang associations with the homicide. The trial court denied the State’s motion and granted Alejandro’s motion in limine.
During voir dire, the following dialogue took place between the prosecutor and a prospective juror:
“[PROSECUTOR]: [K.G.], I saw you raise your hand. You have knowledge of this case?
“[PROSPECTIVE JUROR]: Uh-huh.
“[PROSECUTOR]: And how—what’s your knowledge?
“[PROSPECTIVE JUROR]: I actually volunteer at Big Brothers Big Sisters and my Little Sister, this was a family member of theirs, the child was.
“[PROSECUTOR]: Did your sister tell you anything about the case that you didn’t read in the newspaper, anything like that?
“[PROSPECTIVE JUROR]: Her mother filled me in on how the family was doing and things like that. They told me that it’s gang related, things like that. But—yeah. That’s—
“[PROSECUTOR]: Do you think you would be able to set aside your opinions on this case, the information you have, and just listen to what the actual physical evidence is?
“[PROSPECTIVE JUROR]: Yes.”
Subsequent questions were then directed to the venire on their independent knowledge of the case, with no reference made to gang associations.
Shortly afterwards, defense counsel made an oral motion for mistrial based on a violation of the earlier order and because the jury panel was allegedly tainted. The court denied the motion for three reasons: The court had not yet issued a final ruling on gang evidence; the jurors all had stated that they could base their decision on the evidence before them and not on outside sources; and a limiting instruction could be given at the conclusion of tire evidentiary presentation.
K.S.A. 22-3423(l)(c) allows a trial court to declare a mistrial if prejudicial conduct occurred within the courtroom that makes it impossible for the trial to proceed without injustice. The statute creates a two-step-process for the trial court. First, the court must determine whether there was some fundamental failure in the proceeding, and, if so, it then must determine whether it is possible to continue the trial without injustice. State v. Race, 293 Kan. 69, 80, 259 P.3d 707 (2011).
On appeal, a motion for mistrial is reviewed under an abuse of discretion standard. State v. Leaper, 291 Kan. 89, 96, 238 P.3d 266 (2010). A trial court abuses its discretion if its 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. See State v. Brown, 295 Kan. 181, 206, 284 P.3d 977 (2012).
When making the determination that error was harmless in the context of a violation of statutory evidentiary limitations, this court applies the harmless error standard of K.S.A. 60-261 and K.S.A. 60-2105 to determine whether a reasonable probability exists that the error affected the outcome of the trial in light of the record as a whole. The State, as the party benefitting from the introduction of the evidence, has the burden of persuading the court that the error was harmless. State v. Warrior, 294 Kan. 484, 513, 277 P.3d 1111 (2012).
It should be noted that this is not an instance of alleged prose-cutorial misconduct. The prosecutor’s question was open-ended and fair; the prospective juror’s comment about gang involvement was spontaneous and was not specifically solicited. The prosecutor did not dwell on that part of the answer, and the prosecutor did not argue to the jury that gang violence was a factor in the homicide.
Cases dealing with similar situations in other jurisdictions are instructive.
In United States v. Howard, 216 Fed. Appx. 463, 473 (6th Cir. 2007), a prospective juror announced during voir dire that he would not believe a certain witness “if he laid his hands on a stack of bibles” based on prior dealings with the witness. The defense immediately moved for a mistrial. The district court questioned the jurors remaining after strikes for cause and made general inquiries about their inclination to evaluate the veracity of witnesses based on the opinions voiced by other jury members. The court also cautioned the jury panel not to give any particular witness more or less credibility based on the voir dire proceedings. The Court of Appeals affirmed the district court’s decision to deny the motion for a mistrial, applying an abuse of discretion standard. The Sixth Circuit Court of Appeals noted that the jury panel indicated that it was not prejudiced by the prospective juror’s statement and the witness’ testimony was not “pivotal” to the case. 216 Fed. Appx. at 473-74.
In State v. Taito, No. CAAP-12-0000185, 2013 WL 2908670 (Hawaii App. 2013) (unpublished opinion), the court found no prejudicial error requiring a mistrial based on remarks made by a single prospective juror during voir dire. The court noted that the juror was excused from the panel and that the defendant failed to point to any evidence that the impaneled jurors were tainted by the comments or did not comply with the district court’s instructions.
In State v. Harrison, 743 So. 2d 883, 888 (La. App. 1999), two prospective jurors referred to a crime problem in the area and one juror said that he had heard that the defendant “was back in jail.” Because the prosecution did not invite the comments, no mandatory mistrial was in order, and because there was no demonstrated prejudice, no discretionary mistrial was appropriate. The court noted that mistrial is a drastic remedy lying within the sound discretion of the trial court, and it is a remedy that should be applied only if substantial prejudice would otherwise result. 743 So. 2d at 889.
In State v. Price, 104 N.M. 703, 708, 726 P.2d 857 (1986), the court held that when a juror makes a spontaneous comment in open court, the defendant has the burden of demonstrating prejudice. A juror’s comment that may be improper does not necessarily demonstrate bias by that juror and does not necessarily lead to the conclusion drat other jurors were prejudiced by the comment. 104 N.M. at 708.
In State v. Sanders, 92 Ohio St. 3d 245, 750 N.E.2d 90 (2001), a prospective juror made a comment during voir dire that the defendant reminded him of Louis Farrakhan, whom he regarded as anti-white and anti-American. Both the district court and the appellate court declined to find prejudice to the remainder of the jury panel, largely because the defense failed to ask tire court to question the other panel members about tire effect of the comment on their ability to act impartially. 92 Ohio St. 3d at 249. The court found no inherent prejudice when the prospective juror gave only personal opinions and did not speak at length on the subject. 92 Ohio St. 3d at 248.
In the present case, the juror mentioned gang involvement only in passing, and the topic was not brought up again. The defense did not ask for permission to conduct an examination of the juiy for prejudice and did not request an instruction directing the juiy to disregard unsworn statements by juiy members. Furthermore, the defense did not seek to strike the juror in question for cause. This case thus resembles those cases from other jurisdictions finding no reversible error based on prejudice to other jury members. The trial court did not abuse its discretion in denying Alejandro’s motion for a mistrial.
Cumulative Error
When a party argues that the cumulative impact of alleged errors is so great that they result in an unfair trial, this court aggregates all errors and, even if those errors individually would be considered harmless, analyzes whether their cumulative effect is so great that they collectively cannot be determined to be harmless. State v. King, 297 Kan. 955, 986, 305 P.3d 641 (2013). In undertaking such an analysis, this court reviews the entire record and exercises unlimited review. State v. Cruz, 297 Kan. 1048, 1074, 307 P.3d 199 (2013). Because we determine that no errors were committed, the cumulative error doctrine does not apply. See State v. Lowrance, 298 Kan. 274, 298, 312 P.3d 328 (2013).
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The opinion of the court was delivered by
Biles, J.:
This is an expedited appeal from a child in need of care (CINC) proceeding under the Revised Kansas Code for Care of Children (Revised Code), K.S.A. 2012 Supp. 38-2201 et seq. The lower courts reached different outcomes on the law and evidence. The threshold question—whether appellate jurisdiction exists to reach the merits of the case—presents a conflict within the caselaw as developed by the Court of Appeals. The answer has wide-ranging implications for future CINC proceedings. Because of that, we granted review even though we recognize our involvement delayed permanency for this child and the two families who have struggled within the system to provide her with an adoptive home.
We hold that the Revised Code’s appellate jurisdiction statute, K.S.A. 2012 Supp. 38-2273(a), limits what district court decisions may be appealed in a CINC proceeding. In this case, there is no appellate jurisdiction to review the post-termination decisions at issue: (1) the district court’s finding that the responsible state agency failed to make reasonable efforts or progress toward adoptive placement; and (2) its attendant orders, which were contingent under the statute upon that first finding, removing the child from state agency custody and placing her directly with her foster parents with permission to adopt. See K.S.A. 2012 Supp. 38-2264(h) (if court determines reasonable efforts or progress has not been made toward finding adoptive placement, it may make other orders regarding custody and adoption that are appropriate under the circumstances).
We reverse the decision by the Court of Appeals panel majority, which reached a contraiy holding. This appeal is dismissed for lack of appellate jurisdiction.
Factual and Procedural Background
On November 2, 2011, N.A.C. was born premature on a city street in Wichita. She weighed 4 pounds and tested positive for cocaine. The baby’s mother was behaving erratically, and the two were taken to a hospital where the mother wanted to leave with the newborn against medical advice. The infant was taken into police protective custody as authorized by K.S.A. 2012 Supp. 38-2231(b)(1) (child under 18 years of age shall be taken into custody when law enforcement or court services officer reasonably believes child will be harmed if not immediately removed from place where child has been found). Mother left tire hospital alone and has had no further contact with N.A.C.
For tire most part, we will limit our discussion about what happened next to what is relevant to the dispositive jurisdictional issue.
District Court Proceedings
On November 4, a CINC petition was filed in Sedgwick County District Court Juvenile Department, Case No. 2011-JC-430. That same day, the district court (CINC court) entered an ex parte order of protective custody under K.S.A. 2012 Supp. 38-2242, which placed N.A.C. with tire Secretary of the Department of Social and Rehabilitation Services (SRS). That agency then asked S.D. and D.D. (Foster Parents) to accept N.A.C. as their foster child. They agreed and brought the infant home from the hospital. They have cared for her ever since. Foster Parents are not N.A.C.’s blood relatives.
After a hearing on November 7, the CINC court entered an order of temporary custody under K.S.A. 2012 Supp. 38-2243 in which it determined: (1) an emergency existed threatening N.A.C.’s safety; (2) there was probable cause to believe N.A.C. was likely to sustain harm if not immediately removed from the parental home; and (3) N.A.C.’s placement with SRS should continue. Later that month, a court services officer informed an employee of Youthville, an SRS contractor, that the mother’s cousin and cousin’s husband (Maternal Cousins), who lived in another state, were interested in adopting N.A.C.
When N.A.C. was 1 month old, she was adjudicated a child in need of care under K.S.A. 2012 Supp. 38-2251. On January 5,2012, the CINC court conducted a dispositional hearing under K.S.A. 2012 Supp. 38-2253. The resulting Order of Disposition directed that N.A.C. remain in SRS custody.
On February 8, 2012, the State filed a motion to terminate parental rights. N.A.C. was 3 months old at that point. The district court orally granted this motion during an April hearing, but the journal entry was not filed until May 3 because N.A.C.’s mother informed the court she wanted to voluntarily relinquish her parental rights. On May 17, the district court held a post-termination permanency hearing under K.S.A. 2012 Supp. 38-2264. The district court accepted SRS’s permanency plan and continued N.A.C.’s temporary placement with SRS for adoption.
In the meantime, SRS had initiated efforts for Maternal Cousins to adopt N.A.C. in compliance with the Interstate Compact on Placement of Children (ICPC), K.S.A. 38-1201 et seq., which was necessary because Maternal Cousins resided in another state. An adoptive ICPC was approved on August 6. SRS and its contractor formally chose Maternal Cousins for adoptive placement at an agency meeting commonly referred to as the “best interests staffing.”
But Foster Parents also wanted to adopt N.A.C. They were granted interested party status by the CINC court under K.S.A. 2012 Supp. 38-2241(e) (permitting such status to any person with whom the child has resided, among others, if the district court finds it is in the best interests of the child). Foster Parents first pursued an internal reconsideration of the agency decision favoring adoptive placement with Maternal Cousins; but when SRS again chose Maternal Cousins, Foster Parents filed a motion with the CINC court under K.S.A. 2012 Supp. 38-2264(h) alleging in that statute’s language that “reasonable efforts or progress have not been made toward finding an adoptive placement.” This motion and its outcome are the focus of this appeal.
On November 5, the CINC court held an evidentiary hearing and granted Foster Parents’ motion. It found SRS and Youthville had failed to make reasonable efforts or progress towards N.A.C.’s adoption. The court also noted that from the outset “this case screamed termination [of parental rights],” making permanent placement the obvious outcome. The CINC court further found the delays in securing N.A.C.’s adoption by Maternal Cousins were the result of systemic problems with the agency and its contractor and that the “absolute severance” of the bonds that had formed between N.A.C. and Foster Parents, as well as their other children with whom N.A.C. had been living, would not be in N.A.C.’s best interests. The CINC court then granted Foster Parents custody of N.A.C. with permission to adopt. It also granted Maternal Cousins interested party status under K.S.A. 2012 Supp. 38-2241(e) for purposes of appeal “if they choose to explore that option.” N.A.C. had just turned 1.
After the CINC court ruling, Foster Parents initiated a separate court action to adopt N.A.C. in Sedgwick County District Court (Case No. 12 AD 366) under the Kansas Adoption and Relinquishment Act, K.S.A. 59-2111 et seq., which is part of the Kansas Probate Code. This separate court action was necessary because a district court lacks authority to enter adoption decrees under tire Revised Code. See K.S.A. 2012 Supp. 38-2270 (enumerating orders CINC court may enter if parental rights have been terminated and it appears adoption is a viable alternative).
On December 19, Maternal Cousins filed a notice of appeal in the CINC proceeding (Case No. 2011-JC-430). That notice states Maternal Cousins appeal “certain judgments entered herein on November 5, 2012, and all previous rulings, and orders on all issues.” The notice of appeal concludes the appellate record from the CINC case.
On December 21, the same district judge who conducted the CINC proceedings presided over the adoption case and approved Foster Parents’ adoption of N.A.C. Maternal Cousins did not appear in that case or pursue an appeal.
Court of Appeals Proceedings
Once the appeal from the CINC proceeding was docketed by Maternal Cousins, Foster Parents filed a motion to involuntarily dismiss it, alleging the Court of Appeals lacked jurisdiction. Foster Parents argued the November 5 order was not one of those enumerated in the Revised Code as appealable. See K.S.A. 2012 Supp. 38-2273(a) (appeal may be taken by any party or interested party from “any order of temporary custody, adjudication, disposition, finding of unfitness or termination of parental rights”)- The Court of Appeals denied this motion but ordered the parties to fully brief the pivotal jurisdictional question for fuller consideration with the merits.
In their responsive filings, Maternal Cousins argued jurisdiction existed under the Code of Civil Procedure’s general jurisdiction statute, K.S.A. 2012 Supp. 60-2102. They essentially contended the November 5 CINC court order was a final order and that CINC proceedings are civil in nature. Notably, Maternal Cousins did not address the more specific jurisdictional provision in K.S.A. 2012 Supp. 38-2273(a), which Foster Parents had identified as controlling.
For reasons not at all understandable, neither party advised the Court of Appeals in their briefs that the separate adoption proceeding had occurred months earlier and resulted in a final adoption decree. In fact, the adoption decree was not disclosed to the panel until oral arguments, at which point the panel ordered the parties to prepare additional briefing addressing whether this appeal was moot since a final adoption decree had been entered and not appealed.
After this additional briefing, a divided Court of Appeals panel reversed the CINC court. The majority held jurisdiction existed, that the case was not moot, and that the CINC court erred in finding SRS and Youthville had failed to make reasonable efforts or progress towards N.A.C.’s adoption. The panel majority then vacated the CINC court’s order granting Foster Parents legal custody, voided the adoption decree in the separate adoption proceeding (Case No. 12 AD 366), and remanded the CINC case for post-termination case management “while [SRS] proceeds with and finalizes adoption placement.” In re N.A.C., 49 Kan. App. 2d 699, 725, 316 P.3d 771 (2013). In other words, the panel majority attempted to clear a path for Maternal Cousins to adopt N.A.C. instead of Foster Parents. N.A.C. had just turned 2 years old.
Chief Judge Malone dissented. He argued the panel should have followed prior Court of Appeals caselaw holding that there was no jurisdiction to entertain an appeal from a post-termination permanency order such as the one in this case. 49 Kan. App. 2d at 725. And even if jurisdiction existed, Chief Judge Malone continued, he would hold the CINC court’s finding that SRS and its contractor had failed to malee reasonable efforts or progress toward an adoptive placement was supported by substantial competent evidence. 49 Kan. App. 2d at 728. He did not address mootness.
Foster Parents petitioned this court for review, which we granted under K.S.A. 20-3018(b). See also K.S.A. 60-2101(b) (review of Court of Appeals decisions upon timely petition for review).
We expedited our review because the child’s custody remained in suspense. See K.S.A. 2012 Supp. 38-2201(b)(4) (statutory policy that Revised Code be liberally construed to “acknowledge that the time perception of a child differs from that of an adult and to dispose of all proceedings under this code without unnecessary delay”); see also In re L.B., 42 Kan. App. 2d 837, 842, 217 P.3d 1004 (2009) (“[Cjourts must strive to decide these cases in ‘child time’ rather than ‘adult time.’ ”), rev. denied 289 Kan. 1278 (2010). Appellate review of district court decisions made under the Revised Code should respect the statutory policy stated in K. S .A. 2012 Supp. 38-2201(b)(4). See also K.S.A. 2012 Supp. 38-2273(d) (“[A]ppeals under this section shall have priority over all other cases.”).
Jurisdiction
Appellate courts have only such jurisdiction as is provided by law. Williams v. Lawton, 288 Kan. 768, 778, 207 P.3d 1027 (2009). The existence of jurisdiction is a question of law subject to unlimited appellate review. Friends of Bethany Place v. City of Topeka, 297 Kan. 1112, 1121, 307 P.3d 1255 (2013). Questions involving statutoiy interpretation are also questions of law subject to unlimited review. Nationwide Mutual Ins. Co. v. Briggs, 298 Kan. 873, 875, 317 P.3d 770 (2014).
A. Which Jurisdiction Statute AppliesP
Maternal Cousins contend K.S.A. 2012 Supp. 60-2102(a)(4) governs their appeal. It states in relevant part:
“[T]he appellate jurisdiction of the court of appeals may be invoiced by appeal as a matter of right from: ... (4) A final decision in any action, except in an action where a direct appeal to the supreme court is required by law. In any appeal or cross appeal from a final decision, any act or ruling from the beginning of the proceedings shall be reviewable.” K.S.A. 2012 Supp. 60-2102(a).
Maternal Cousins couple their reliance on K.S.A. 2012 Supp. 60-2102(a)(4) with K.S.A. 2012 Supp. 38-2201(a), which states: “Proceedings pursuant to [the Revised Code] shall be civil in nature and all proceedings, orders, judgments and decrees shall be deemed to be pursuant to the parental power of the state.” They then assume—without argument—that the orders from which they appeal are final decisions.
But as Foster Parents point out, the Revised Code contains its own jurisdictional statute, K.S.A. 2012 Supp. 38-2273(a), so Maternal Cousins’ assertion of appellate jurisdiction under K.S.A. 2012 Supp. 60-2102 defies a cardinal rule of statutory interpretation that the more specific statute governs when two statutes may be applicable. In re Tax Exemption Application of Mental Health Ass'n of the Heartland, 289 Kan. 1209, 1215, 221 P.3d 580 (2009); see also In re K.M.H., 285 Kan. 53, 82, 169 P.3d 1025 (2007) (“A specific statute controls over a general statute. [Citation omitted.] Likewise, a specific provision within a statute controls over a more general provision within the statute.”), cert. denied 555 U.S. 937 (2008); State ex rel Tomasic v. Unified Gov. of Wyandotte Co./ Kansas City, 264 Kan. 293, Syl. ¶ 9, 955 P.2d 1136 (1998) (“General and special statutes should be read together and harmonized whenever possible, but to the extent a conflict between them exists, the special statute will prevail unless it appears the legislature intended to make the general statute controlling.”).
In addition, Maternal Cousins’ claim that K.S.A. 2012 Supp. 60-2102(a)(4) controls appellate jurisdiction in CINC cases finds no support in legislative histoiy. This can be readily seen by tracking the legislature’s actions in 1982 when it enacted the Kansas Code for Care of Children, which is the Revised Code’s predecessor. When introduced, the proposed legislation contained an appellate jurisdiction provision nearly identical to the one under the then-in-force Kansas Juvenile Code. It allowed an appeal “by any interested party from any final order in any proceeding to this code.” (Emphasis added.) See K.S.A. 1980 Supp. 38-834(b); see also Kansas Judicial Council Bulletin, June 1981, p. 51.
But this language changed during the legislative process to itemize certain orders as appealable. See L. 1982, ch. 182, sec. 56 (codified at K.S.A. 1982 Supp. 38-1591). And that itemization is nearly identical to die current appellate jurisdiction statute in all but one respect—it permitted appeals from only four types of orders: adjudications, dispositions, terminations of parental rights, or orders of temporary custody. K.S.A. 38-1591(a). In 2006, when the Revised Code was enacted, a fifth category was added—findings of unfitness. L. 2006, ch. 200, sec. 68; K.S.A. 2012 Supp. 38-2273.
The current appellate jurisdiction statute, which lacks the pre-1982 “final order” language, demonstrates the legislature intended to limit appellate jurisdiction to particular categories of orders and to permit interlocutory review of them instead of requiring litigants to wait for final orders. This is consistent with the Revised Code’s expressed policy of disposing of proceedings without unnecessary delay. See K.S.A. 2012 Supp. 38-2201(b)(4); K.S.A. 2012 Supp. 38-2273(d). In other words, by limiting the type of appealable orders in CINC proceedings, the stated policy goal of reducing delay is furthered and appellate review is not deferred until a final order is entered, facilitating more immediate review.
We hold Maternal Cousins’ claim that K.S.A. 2012 Supp. 60-2102 confers appellate jurisdiction and allows an appeal from any final order in a CINC proceeding under the Revised Code lacks merit. See In re E.G., No. 98,187, 2007 WL 3085378, at *2 (Kan. App. 2007) (unpublished opinion) (K.S.A. 2006 Supp. 38-2273 governs appeals from decisions under Code for Care of Children, not K.S.A. 60-2102). The panel was correct to reject Maternal Cousins’ reliance on K.S.A. 2012 Supp. 60-2102 and to focus on whether the November 5 order was appealable under K.S.A. 2012 Supp. 38-2273(a).
We consider next whether the panel erred when it held appellate jurisdiction existed under the controlling statute.
B. Is the November 5 Order Appealable?
As mentioned, K.S.A. 2012 Supp. 38-2273(a) specifies five categories of appealable orders under the Revised Code. It states: “An appeal may be taken by any party or interested party from any order of temporary custody, adjudication, disposition, finding of unfitness or termination of parental rights.” If there is to be appellate jurisdiction in this case, the CINC court’s November 5 order must fit within one of these categories.
It is important to recall that the CINC court’s November 5 order and Foster Parents’ motion that precipitated it were authorized by K.S.A. 2012 Supp. 38-2264(h), which states:
“If die court enters an order terminating parental rights to a child, or an agency has accepted a relinquishment . . . the requirements for permanency hearings shall continue until an adoption or appointment of a permanent custodian has been accomplished. If the court determines that reasonable efforts or progress have not been made toward finding an adoptive placement or appointment of a permanent custodian or placement with a fit and willing relative, the court may rescind its prior orders and make others regarding custody and adoption that are appropriate under the circumstances. Reports of a proposed adoptive placement need not contain the identity of the proposed adoptive parents.” (Emphasis added.)
It is also important to remember that the components of the CINC court’s November 5 order consist of: (1) a factual determination that SRS and its contractor had failed to make reasonable efforts or progress toward finding an adoptive placement for N.A.C.; (2) a rescission of the CINC court’s prior order giving SRS custody of N.A.C.; and (3) an order placing N.A.C. directly with Foster Parents with permission for them to adopt. As is readily seen from K.S.A. 2012 Supp. 38-2264(h), the orders were derivative of the factual determination—they could not have been entered absent the CINC court’s prerequisite lack of “reasonable efforts or progress” determination. It is also noteworthy that K.S.A. 2012 Supp. 38-2270(a)(2) expressly gave the CINC court authority after parental rights were terminated to grant custody of the child to proposed adoptive parents with consent to the adoption of the child by the proposed adoptive parents. Such orders are not among those listed in K.S.A. 2012 Supp. 38-2273(a).
The panel majority conceded that the CINC court’s factual determination regarding the lack of reasonable efforts or progress toward adoption, standing alone, was not appealable under the statute. In re N.A.C., 49 Kan. App. 2d at 714. But it nonetheless characterized that determination combined with the attendant orders as an order of disposition, which it defined as an order “that places a child in, continues a child in, or removes a child from the legal custody of an individual or agency.” 49 Kan. App. 2d at 710, 715. It further acknowledged its definition and reasoning were unique and directly conflicted with most all prior Court of Appeals decisions that had defined “order of disposition” more narrowly under K.S.A. 2012 Supp. 38-2273(a). 49 Kan. App. 2d at 712-13.
In his dissent, Chief Judge Malone described the November 5 order as a post-termination permanency order. As such, he argued, it is not included within the appealable orders listed in the statute. 49 Kan. App. 2d at 727-28 (“Had the legislature intended to make a district court’s order entered at a post-termination permanency hearing subject to appeal, the legislature easily could have accomplished this task by adding the term permanency order’ to the list of appealable orders under K.S.A. 2012 Supp. 38-2273[a].”).
Resolution of these two views is an issue of first impression for this court. We begin by reviewing the governing statutes in the Revised Code. After that, we discuss prior Court of Appeals decisions taking an entirely different view from the panel majority. As we go, we will apply the facts of the case to the statutory provisions. In the end, we conclude the panel majority erred.
The Governing Statutes and Statutory Scheme
None of the appealable orders listed in K.S.A. 2012 Supp. 38-2273(a) are defined in tire Revised Code’s definitional statute, K.S.A. 2012 Supp. 38-2202. But each is given context by its own statutory provisions that establish deadlines, notice requirements, and required underlying findings or legal conclusions. So, while the appealable orders are not explicitly defined, the governing statutes for each give description and meaning to the terms.
Consider first the genesis of the proceeding at hand. Law enforcement took N.A.C. into protective custody based only on a law enforcement officer’s reasonable belief that she would be harmed if not immediately removed from the place where she was found. See K.S.A. 2012 Supp. 38-2231(b)(l). The Revised Code does not authorize an appeal from the officer’s action because it recognizes this on-the-spot intervention occurs because of an exigency observed by the officer without court order or supervision. But the Revised Code requires a prompt independent review of law enforcement’s action once a child is taken into protective custody because the officer must notify the district attorney of all information in the officer’s possession justifying that action “without unnecessary delay.” K.S.A. 2012 Supp. 38-2232(a).
This notification triggers the district attorney’s duty to review the facts, recommendations, and evidence to determine if a CINC petition is warranted. K.S.A. 2012 Supp. 38-2233. If the district attorney files a petition, an expedited hearing must be granted. And, upon application, the court may issue an ex parte order of protective custody but “only after the court has determined there is probable cause to believe the allegations in the application are true.” K.S.A. 2012 Supp. 38-2242(b)(l). Protective custody, however, cannot continue for more than 72 hours with certain exceptions. K.S.A. 2012 Supp. 38-2242(b)(2). This ex parte protective custody order, like law enforcement’s decision to take the child into protective custody, is designed to be short-lived.
A. Temporary Custody Orders
A temporary custody hearing “shall be held within 72 hours, excluding Saturdays, Sundays, legal holidays, and days on which the office of the clerk of the court is not accessible, following a child having been taken into protective custody.” K.S.A. 2012 Supp. 38-2243(b). This timing coincides with the statutory expiration of the ex parte protective custody order and is the first hear ing in which the parents or other statutorily recognized parties must receive notice and have an opportunity to appear. See K.S.A. 2012 Supp. 38-2243(c). And for this proceeding, oral notice is sufficient if there is not enough time to give written notice. K.S.A. 2012 Supp. 38-2243(e). In this way, the legislature recognizes that this hearing occurs so quickly in the process that the typical notice and service procedure may not be practical.
At this hearing, under the statute applicable to these proceedings, an order of temporary custody could be entered if the district court determines “there is probable cause to believe that the: (1) Child is dangerous to self or to others; (2) child is not likely to be available within the jurisdiction of the court for future proceedings; or (3) health or welfare of the child may be endangered without further care.” K.S.A. 2012 Supp. 38-2243(f). Any one of these determinations trigger the court’s authority to “place the child in the temporary custody” of certain persons including the parent, a shelter facility, or the Secretary. K.S.A. 2012 Supp. 38-2243(g)(l).
But the temporary custody order is also designed to be short-lived. It “shall remain in effect until modified or rescinded by the court or an adjudication order is entered but not exceeding 60 days, unless good cause is shown and stated on the record.” (Emphasis added.) K.S.A. 2012 Supp. 38-2243(g)(2). Temporary custody orders are the first appealable orders under K.S.A. 2012 Supp. 38-2273(a).
In N.A.C.’s case, the temporary custody order was entered on November 7, 2011, just days after N.A.C. was taken into protective custody. No other temporary custody orders were entered under K.S.A. 2012 Supp. 38-2243, and no appeal was taken from the November 7, 2011, order.
B. Order of Adjudication
Orders of adjudication are governed by K.S.A. 2012 Supp. 38-2251(b), which provides:
“(b) If the court finds that the child is a child in need of care, the court shall enter an order adjudicating the child to he a child in need of care and may proceed to enter other orders as authorized by this code.” (Emphasis added.)
This denotes that the order of adjudication under the Revised Code is the order finding the child to be a child in need of care. And once an order of adjudication is entered, the court may then enter other orders authorized by the Revised Code. Otherwise, the court must dismiss the proceeding. K.S.A. 2012 Supp. 38-2251(a) and (b). The Revised Code requires that the order of adjudication “be entered within 60 days from the date of the filing of the petition, unless good cause for a continuance is shown” or the case must be dismissed. K.S.A. 2012 Supp. 38-2251(c). This 60-daytime period coincides with the 60-day time limit on temporary custody orders. See K.S.A. 2012 Supp. 38-2243(g)(2).
In N.A.C.’s case, the CINC court held a hearing on December 1, 2011, at which it adjudicated her a child in need of care. No appeal was taken from that order.
C. Order of Disposition
There is more complexity to the statutory scheme governing dis-positional orders than the other orders discussed so far. The timing for dispositional orders is dictated by K.S.A. 2012 Supp. 38-2253(b), which states “[a]n order of disposition may be entered at the time of the adjudication if notice has been provided . . . but shall be entered within 30 daijs following adjudication, unless delayed for good cause shown.” (Emphasis added.) The substance of the dispositional hearing and attendant order are addressed by K.S.A. 2012 Supp. 38-2253, which states:
“(a) At a dispositional hearing, the court shall receive testimony and other relevant information with regard to the safety and well being of the child and may enter orders regarding:
(1) Case planning which sets forth the responsibilities and timelines necessary to achieve permanency for the child; and
(2) custody of the child.”
Under K.S.A. 2012 Supp. 38-2255(b) and (c), there are two roads that may be taken regarding custody—either the court places the child in the parent’s custody or it removes the child from parental custody. If the latter, the court must make certain findings. For example, it must find probable cause that certain conditions exist, such as “allowing the child to remain in [the] home is contrary to tiie welfare of the child.” K.S.A. 2012 Supp. 38-2255(c)(l)(B). And if the court makes the required findings and removes the child from the parentis custody, it may award custody to: (1) a child’s relative; (2) a person with whom the child has close emotional ties; (3) any other suitable person; (4) a shelter facility; (5) a youth residential facility; or (6) tire Secretaiy. This custody order “shall continue until further order of the court.” K.S.A. 2012 Supp. 38-2255(d). In addition, if the person to whom custody is awarded is not a parent, a permanency plan that conforms to the requirements of K.S.A. 2012 Supp. 38-2264 (permanency hearing: purpose, procedure, time for hearing, and authorized orders) must be prepared. K.S.A. 2012 Supp. 38-2255(e).
Once a dispositional order is entered, the court may rehear the matter on its own motion or the motion of a party or interested party. And if there is a rehearing, the court may enter any dispo-sitional order authorized by the Revised Code, except modification of a registered child support order. K.S.A. 2012 Supp. 38-2256.
In N.A.C.’s case, an order of disposition was filed on January 12, 2012, after the CINC court held N.A.C. was likely to sustain harm if not immediately removed from the home, returning home would be contraiy to her welfare, and immediate placement was in her best interests. That order also adopted the SRS-proposed permanency plan, which is not in the appellate record although a social worker testified that reintegration was pursued until parental rights were terminated. No appeal was taken from the Januaiy 12 order of disposition.
D. Finding of Unfitness and Termination of Parental Rights
Requests to terminate parental rights or to find that either or both parents are unfit can be made in the original petition or on a party’s motion. K.S.A. 2012 Supp. 38-2266. Upon receiving the petition or motion, the court “shall set the time and place for the hearing, which shall be held within 90 days.” K.S.A. 2012 Supp. 38-2267(a). The discretion to seek an order terminating parental rights dissipates, however, if the district court has entered a dis-positional order removing the child from the parentis custody under K.S.A. 2012 Supp. 38-2255(d) and it has determined reinte gration is not a viable alternative under K.S.A. 2012 Supp. 38-2255(e). Under those circumstances, “proceedings to terminate parental rights and permit placement of tire child for adoption or appointment of a permanent custodian shall be initiated unless the court finds that compelling reasons have been documented in the case plan.” K.S.A. 2012 Supp. 38-2255(f).
Once the child has been adjudicated a child in need of care, “the court may terminate parental rights . . . when the court finds by clear and convincing evidence that the parent is unfit by reason of conduct or condition which renders die parent unable to care properly for a child and the conduct or condition is unlikely to change in the foreseeable future.” K.S.A. 2012 Supp. 38-2269(a). And if termination occurs, the court may: (1) authorize adoption; (2) authorize appointment of a permanent custodian; or (3) order continued permanency planning. K.S.A. 2012 Supp. 38-2269(g)(2).
An order of unfitness or termination of parental rights also triggers a responsibility on the person or agency awarded custody of the child to submit a written permanency plan within 30 days, which includes a plan for permanent placement, measurable objectives, and time schedules. K.S.A. 2012 Supp. 38-2269(j). If the court does not terminate parental rights, the court may: (1) authorize appointment of a permanent custodian; or (2) order continued permanency planning. K.S.A. 2012 Supp. 38-2269(g)(3).
In N.A.C.’s case, the district court terminated parental rights after a hearing on April 3, 2012. No appeal was taken from that order.
Prior Caselaw Interpreting These Statutes
The vast majority of appeals under the Revised Code and its predecessor have been decided by our Court of Appeals with little review from this court. Over time, numerous Court of Appeals panels have developed caselaw consistently viewing both the Revised Code and its predecessor as creating a statutory framework of sequential steps or phases. And in that context, the caselaw has considered the appealable orders enumerated in K.S.A. 2012 Supp. 38-2273(a) as terms of art with particularized meanings.
In other words, each appealable order occurs in a sequence leading to permanent placement for the child in need of care and the terms are to be considered in context with that statutorily created setting. Recently, the Court of Appeals summarized this as follows:
“[T]lie'terms ‘order of temporary custody,’ ‘adjudication,’ and ‘disposition’ are terms of art each cariying its own meaning. [Citation omitted.] The ‘order of temporary custody’ is the first step in a sequence, wherein the court identifies the person or agency that will have temporary custody of a child determined to be in need of protection. [Citation omitted.] Such order covers the period of time until an ‘adjudication’ which is the next step in the sequence where the court determines if the child is a CINC. If the child is found not to be a CINC, the proceedings are dismissed. [Citation omitted.] If, however, the child is found to be a CINC the court enters an ‘adjudication order’ and proceeds to a ‘disposition.’ [Citation omitted.] The temporary custody order may remain in effect until disposition, or the court may modify the order of custody at adjudication.” In re A.E.S., 48 Kan. App. 2d 761, 765, 298 P.3d 386 (2013).
We agree with this approach. The terms “order of temporary custody,” “adjudication,” and “disposition” must be seen as terms of art, each with a particular meaning within the Revised Code that clearly establishes a sequence of court-supervised events all marching toward permanency. This is evidenced by the time limitations within the Revised Code for each phase’s duration, which ensure progress toward permanency is achieved; the differences at each phase in factual findings and legal conclusions; and in the options available to the district court in each phase.
Applying this framework, the first phase in a CINC proceeding is the temporary custody hearing and order governed by K.S.A. 2012 Supp. 38-2243. The second phase involves the adjudication. And the third encompasses tire disposition.
Given the time constraints and substantive findings required to enter orders of temporary custody and adjudication, we can eliminate both as appropriate descriptors for the post-termination November 5 order at issue in this appeal. The order’s prerequisite finding, that the state agency did not malee reasonable efforts or progress toward finding an adoptive placement, is not a temporary custody order or order of adjudication when viewed under the statutory framework. All parties concede this.
Equally as clear, the portion of the order regarding Foster Parents’ custody and consent to their adoption of N.A.C., which was statutorily dependent on the lack of progress finding, is not a temporary custody order or an order of adjudication. Orders of temporary custody are described and controlled by K.S.A. 2012 Supp. 38-2243. These orders may be entered only after factual findings that were not made during the November 5 hearing. See K.S.A. 2012 38-2243(f) (temporary custody order may be entered after determining probable cause exists to believe child is danger to self or others; not likely to be within court jurisdiction for future proceedings; or child’s health or welfare may be endangered). And as noted above, under the Revised Code orders of temporary custody survive only up to the adjudication, which occurred in this case 11 months before'the November 5 order.
Finally, and most certainly, the November 5 order is not a finding of unfitness or an order terminating parental rights. Again, no one disputes that.
Therefore, through this process of elimination, we are left with only orders of disposition as the last possible category of appealable orders into which the November 5 order can fall for appellate jurisdiction to exist in this case. The Court of Appeals panel was divided on that point. We address the panel’s analysis next.
The Court of Appeals Analysis Regarding Orders of Disposition
The panel majority began its jurisdictional analysis by focusing on the decisions to change custody from SRS to Foster Parents and to allow Foster Parents to pursue an independent adoption. It held these components were enough to characterize the November 5 order as an appealable order of disposition. In re N.A.C., 49 Kan. App. 2d at 710. In so holding, the panel majority acknowledged the CINC court’s factual finding under K.S.A. 2012 Supp. 38-2264(h) that the state agency failed to make reasonable efforts or progress to find an adoptive placement was not an order of disposition subject to appeal by itself. But it reasoned this nonap-pealable portion was “so interwoven” with the custody change to Foster Parents that they were “legally inseparable” for jurisdictional purposes. 49 Kan. App. 2d at 714-15.
In his dissent, Chief Judge Malone presented four arguments belying the majority’s rationale. First, he adhered to the prior Court of Appeals decisions consistently holding that an order of disposition under K.S.A. 2012 Supp. 38-2273(a) is a term of art specifically meaning the order of disposition entered at the time of or within 30 days after adjudication. 49 Kan. App. 2d at 726. Second, he noted the legislature had not modified the statute over the past several years since those decisions were announced, implying the legislature’s presumed agreement with their holdings. 49 Kan. App. 2d at 726; see also Hall v. Dillon Companies, Inc., 286 Kan. 777, 785, 189 P.3d 508 (2008) (“[Wjhen the legislature does not modify a statute in order to avoid a standing judicial construction of that statute, the legislature is presumed to agree with that judicial construction.”). Third, he objected to what he saw as an anomaly within the majority’s reasoning: that Maternal Cousins could appeal the CINC court’s finding that the state agency failed to make reasonable efforts or progress because the CINC court ultimately changed N.A.C.’s custody, but if Foster Parents had not prevailed Foster Parents would have had no appeal right because no change of custody would have occurred. Finally, Chief Judge Malone offered this observation:
“The majority’s interpretation of K.S.A. 2012 Supp. 38-2273(a) opens the door to endless appeals in cases under the [Revised] Code. I believe the legislature intended the order terminating parental rights to be the final order under tire [Revised] Code that is subject to appeal.” 49 Kan. App. 2d at 728.
Although our rationale differs in some respects, we agree with Chief Judge Malone that the reasonable efforts or progress finding and the collateral custody order and consent to adoption that followed once that finding was made are best characterized as permanency orders arising from a post-termination permanency hearing. We also agree the order terminating parental rights was the last appealable order under K.S.A. 2012 Supp. 38-2273(a).
The Court of Appeals has consistently construed “disposition” by interpreting the Revised Code in pari materia within the context of the statutory sequencing previously discussed above. See In re A.E.S., 48 Kan. App. 2d at 765 (recognizing sequence begins with order of temporary custody); In re C.E., 47 Kan. App. 2d 442, 448, 275 P.3d 67 (2012); In re D.M.M., 38 Kan. App. 2d 394, 398, 166 P.3d 431 (2007); In re S.C., 32 Kan. App. 2d 514, 518, 85 P.3d 224 (2004); In re J.W., No. 107,839, 2012 WL 5205749, at *2-3 (Kan. App. 2012) (unpublished opinion); In re C.B., No. 105,223, 2011 WL 4563104, at *2 (Kan. App. 2011) (unpublished opinion); In re H.M.P., No. 104,463, 2011 WL 2206638, at *3 (Kan. App.) (unpublished opinion), rev. denied 292 Kan. 965 (2011); In re L.M., No. 102,208, 2009 WL 5206247, at *3 (Kan. App. 2009) (unpublished opinion). And that court’s remaining cases are aligned with this sequencing concept, even though they do not exphcitly say so. See In re A.F., 38 Kan. App. 2d 742, 744, 172 P.3d 63 (2007) (describing these as terms of art but not referencing the particular sequence); In re E.W., No. 101,910, 2009 WL 5063416, at *4 (Kan. App. 2009) (unpublished opinion) (defining disposition but not ex-phcitly stating sequence); In re E.G., No. 98,187, 2007 WL 3085378, at *3 (Kan. App. 2007) (unpublished opinion) (defining disposition without referencing other provisions).
Under this sequencing, dispositional orders have been interpreted to be those concerning child custody entered after the child is adjudicated a child in need of care. In re D.M.M. 38 Kan. App. 2d at 398-99. But this dispositional phase ends once an order terminating parental rights is entered, precluding appellate review of any later orders because post-termination orders are not considered “dispositional orders.” See In re S.C., 32 Kan. App. 2d at 518 (no jurisdiction to review denial of great aunt’s post-termination motion for interested party status); In re D.M.M. 38 Kan. App. 2d at 398-400 (no jurisdiction to review post-termination reasonable efforts determination); In re A.F., 38 Kan. App. 2d at 744-46 (no jurisdiction to appeal district court’s review of SRS’s post-termination change of placement); In re E.W., 2009 WL 5063416, at *5 (no jurisdiction to appeal post-termination permanency hearing decision reversing SRS best interest staffing and giving consent to family’s adoption).
This approach remains consistent with the statutes governing dispositions and termination of parental rights. It is also consistent with the legislature’s decision to limit the appealable issues under K.S.A. 2012 Supp. 38-2273(a). Otherwise, as Chief Judge Malone observed, the panel majority’s decision could leave children exposed to an endless circle of appellate custody battles.
The panel majority rightly pointed out that die dispositional rehearing statute, K.S.A. 2012 Supp. 38-2256, does not expressly limit rehearing to motions entered before the termination of parental rights, unlike the statute governing temporary custody orders. 49 Kan. App. 2d at 711; see K.S.A. 2012 Supp. 38-2243(g)(2) (providing temporary custody orders “remain in effect until modified or rescinded by the court or an adjudication order is entered but not exceeding 60 days, unless good cause is shown.”). And for the panel majority, the fact that the Revised Code permits rehearing of a dispositional order demonstrated what it saw as a flaw with its colleagues’ prior caselaw, which held “as a matter of law that the only order of disposition subject to appeal... is that one order of disposition entered at the time of, or within 30 days after, adjudication.” In re N.A.C., 49 Kan. App. 2d at 710.
But this reasoning oversimplifies and wrongly dispenses with the prior caselaw, which does not necessarily deny an appeal of a dis-positional order issued after a rehearing. After all, the time period between a first order of disposition and a termination of parental rights may be significant, and more than one order of disposition might be required, especially if the goal is to first attempt parental reintegration. Nothing in the jurisdictional statute prevents an appeal from any dispositional orders entered after rehearing. See K.S.A. 2012 Supp. 38-2273(a). But the cutoff under the Revised Code’s structure, as Chief Judge Malone pointed out, is the order terminating parental rights. 49 Kan. App. 2d at 728.
This conclusion is further supported by the termination of parental rights statute, which limits the actions the court can take once parental rights have been terminated, i.e., the court can authorize an adoption, appoint a permanent custodian, or order continued permanency planning. K.S.A. 2012 Supp. 38-2269(g)(2). Notably absent is the authority to enter a dispositional order under K.S.A. 2012 Supp. 38-2255. This, of course, makes sense because when parental rights have been terminated, it is necessarily true that the district court is no longer doing what the disposition phase requires: weighing whether the parent should have custody and, if not, whether reintegration is possible. That ship has sailed.
This conclusion is also consistent with the legislature’s obvious intent to limit the types of appealable issues so there is timely closure in diese cases. Otherwise, it is easy to see how these cases could turn into back-and-forth campaigns of endless litigation and appeals by persons other than the child’s parents. The panel majority’s expansive definition of a “disposition” as any order that “places a child in, continues a child in, or removes a child from the legal custody of an individual or agency” clearly subverts this intent. In re N.A.C., 49 Kan. App. 2d at 710. As another Court of Appeals panel stated when deciding whether to permit a grandmother to appeal a district court’s post-termination adoptive placement order:
“We simply cannot create a new category of appeals so that appeals like this one may be heard. Nor should we. The legislature has worked hard to create a comprehensive Code for Care of Children. It has attempted to balance the protection of the rights of children, parents, and other interested parties against the need for speed sufficient to ultimately allow children to move on and live dreir lives. We respect the choice the legislature has made here . . . .” In re A.F., 38 Kan. App. 2d at 746.
Those words could not ring more true as to N.A.C. Her case has been pending on appeal longer than it was before the CINC court—despite both appellate courts’ concerted efforts to expedite it. N.A.C. had just turned 1 when the CINC court entered the order giving Foster Parents permission to adopt. As of this decision’s filing date, N.A.C. is 2 years, 8 months old.
Appellate review can come at a heavy cost for the young children caught up in CINC proceedings. See K.S.A. 2012 Supp. 38-2201(b)(4) (“[T]he time perception of a child differs from that of an adult. . . .”). Through its enactment of the Revised Code, the legislature has balanced whatever perceived value there may be in letting interested parties struggle back and forth among themselves at every stage in post-termination proceedings against the child’s recognizable need for permanency. As Chief Judge Malone observed, the legislature could have easily included permanency orders in its list of appealable orders when enacting K.S.A. 2012 Supp. 38-2273(a) if it had weighed the interests differently.
Finally, we would be remiss not to acknowledge the dissent’s concern that our holding results in a loss of appellate protection against detrimental placements by the district courts. But our district court judges who are tasked with presiding over these difficult CINC cases are well aware of the stakes. And this recognition was evident when the CINC court commented that both potential families for N.A.C. “have performed well and done what [they] were told. And each of you has just claims. My sympathies are with you for the sufferings you’re going through right now, and the fact that one of you is going to get a heartbreaking result here.”
Having concluded this court lacks jurisdiction, we do not reach the remaining issues. The Court of Appeals decision is reversed. This appeal is dismissed.
Moritz, J., not participating.
R. Scott McQuin, District Judge, assigned.
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Green, J.:
Jesus Marino was convicted of one count of aggravated battery and one count of conspiracy to commit aggravated battery. On appeal, the defendant contends that his conviction for conspiracy to commit aggravated battery should be reversed because the State failed to allege a specific overt act in the complaint. The defendant maintains that there can be no crime of conspiracy unless an overt act is alleged and proved. We agree and reverse his conspiracy conviction on this issue.
The defendant further contends that the trial court abused its discretion when it admitted a codefendant’s journal entry showing that the codefendant had pled guilty to the charge of conspiracy to commit aggravated battery. We agree but determine that this error was harmless. In addition, the defendant asserts that the trial court should have instructed the jury on misdemeanor batteiy as a lesser included offense of aggravated battery. We disagree and affirm. Finally, the defendant maintains that the trial court improperly admitted evidence of the defendant’s previous bad acts. Because the defendant failed to make a timely objection to this evidence, we affirm.
Jose Coney was working as a security officer at Latino’s Disco (the bar) in Dodge City, Kansas. At approximately midnight, Jesus Marino and Mario Marino, Jesus’ cousin, attempted to enter the bar. Coney recognized Jesus from previous incidents when Jesus had been asked to leave. Because of these previous incidents, Jesus had been banned from the bar. After recognizing Jesus, Coney told him that he could not enter the bar. Although Jesus walked away, he returned and attempted to punch Coney. Coney blocked the punch and punched Jesus in the face. Jesus fell and then left with Mario.
Coney left the bar around 2 a.m. and went to the Sundance Apartments to check on a coworker. After arriving at the apartment parking lot, Coney removed his gun belt and placed it in the trunk of his car. Coney saw a white Grand Piix pull up behind him. Mario was driving the car, and Jesus was sitting in the passenger seat. Mario and Jesus were both carrying lead pipes when they got out of the car. Coney tried to retrieve his gun belt from the closed car trunk. Coney testified that Mario and Jesus were swinging the pipes at him. Mario struck Coney on the back of his head, and Jesus hit Coney on the wrist before Coney could retrieve his gun belt from the trunk. Coney was finally able to retrieve his gun belt.
Coney then ran towards a playground area. While running, he tried to remove his gun from its holster. When Coney got his gun released from its holster, he turned around. Coney saw Jesus com ing towards him with his pipe raised. Mario then struck Coney on the back of the head. Coney fell forward and accidentally fired his gun. The bullet hit Jesus in the chest, and he fell to the ground. Mario helped Jesus up, and they ran from the scene.
The State charged Jesus with one count of aggravated battery and one count of conspiracy to commit aggravated batteiy. During Jesus’ preliminary hearing, the State called Mario as a witness. Before testifying, Mario invoked his Fifth Amendment right against self-incrimination under the United States Constitution and refused to testify.
Mario later pled guilty to one count of conspiracy to commit aggravated battery. After receiving a suspended sentence and probation, Mario was deported to Mexico. The State moved to admit Mario’s confession to the police. The trial court denied the State’s motion. The State later requested that the court take judicial notice of Mario’s criminal case file and sought admission of a redacted copy of a journal entry of Mario’s conviction for conspiracy to commit aggravated battery. The trial court took judicial notice of Mario’s criminal case and stated that it would admit the journal entry into evidence if the State laid a proper foundation.
Complaint
Jesus maintains that his conviction for conspiracy to commit aggravated battery should be reversed because the complaint was fatally defective. In State v. Shirley, 277 Kan. 659, 661, 89 P.3d 649 (2004), the court stated: “The sufficiency of a charging document to confer jurisdiction is a question of law over which an appellate court has unlimited review. [Citation omitted.] However, the test used for evaluating the sufficiency of the charging document depends on when the issue is first raised. [Citation omitted.]” If a defendant timely moves to arrest judgment in the district court, an appellate court will examine whether the charging document sets out the essential elements of tibe crime. If the charging document fails to set out the essential elements of the crime, it is fatally defective and the district court lacks jurisdiction to convict the defendant of the crime. 277 Kan. at 661-62.
In the present case, there is no dispute that the complaint contains a major flaw. In charging Jesus with conspiracy to commit aggravated battery, the complaint stated:
“That on or about the 12th day of January, 2002, the above named Defendant, within the above named County in tire State of Kansas, then and there being, did then and there contrary to the statutes of the State of Kansas unlawfully, and willfully agree with another person to commit a crime or to assist in committing a crime, to wit: Aggravated Battery, and an overt act in furtherance of the conspiracy was committed by such person or by a co-conspirator. CONSPIRACY TO COMMIT AGGRAVATED BATTERY is a severity level 6 person felony in violation of K.S.A. 21-3414 and 21-3302.”
The problem with the complaint is that it fails to set forth a specific overt act in the furtherance of the conspiracy. This type of failure was addressed in State v. Crockett, 26 Kan. App. 2d 202, 987 P.2d 1101 (1999), and State v. Sweat, 30 Kan. App. 2d 756, 48 P.3d 8, rev. denied 274 Kan. 1118 (2002).
In Crockett, the defendant was convicted of conspiracy to commit first-degree murder. The complaint alleged that the defendant and codefendant entered into an agreement to commit first-degree murder. The only overt acts alleged in the complaint were planning the time, the location, and the manner of the killing. Tlie court found that because the complaint failed to sufficiently allege an overt act, the defendant’s conviction had to be reversed. 26 Kan. App. 2d at 204-05.
In Sweat, the defendant was convicted among other crimes of conspiracy to commit first-degree murder. The charge in the complaint covering the conspiracy charge alleged the defendant agreed with another person “ ‘to commit the crime or to assist in committing the crime of Murder in the First Degree, to-wit: intentionally and with premeditation kill Lloyd Eddens, in an overt act, and further such conspiracy was committed by such person or said co-conspirator.’ ” 30 Kan. App. 2d at 759. On appeal, after discussing tire Crockett decision, the Sweat court stated:
“The flaw in the complaint in this case is even more obvious than the flaw in Crockett’s information. Sweat’s complaint does not even attempt to allege any specific overt act committed in furtherance of the conspiracy. It is not sufficient to say merely that the defendant willfully agreed with another person to commit the crime or to assist in committing the crime. Her conspiracy conviction must therefore be reversed; the district court lacked jurisdiction to try her on that charge.” 30 Kan. App. 2d at 761.
Sweat leaves no doubt that the failure to allege a specific overt act in a complaint of conspiracy is fatal to the complaint.
Nevertheless, the defendants in Crockett and Sweat both moved to arrest judgment in the district court. In the present case, Jesus neglected to move to arrest judgment in the district court. In Shirley, the court discussed State v. Hall, 246 Kan. 728, 764-65, 793 P.2d 737 (1990), overruled in fart on other grounds Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003), which set forth a new standard of review when a defendant challenges the complaint for the first time on appeal. See 277 Kan. at 661-62. Restating the Hall standard of review when the charging document is challenged for the first time on appeal, the Shirley court stated:
“[T]he defendant must show that the claimed defect (1) prejudiced the defendant’s preparation of a defense, (2) impaired the defendant’s ability to plead the conviction in any subsequent prosecution, or (3) limited the defendant’s substantial rights to a fair trial under the Sixth Amendment to the United States Constitution or Section 10 of the Kansas Constitution Bill of Rights. [Citation omitted.]” 277 Kan. at 662.
Generally, if a defendant fails to move to arrest judgment at the district court, the defendant must establish one of the Hall factors to prevail on a claim of a defective complaint on appeal.
Jesus, however, maintains that K.S.A. 21-3302(a), the statute governing conspiracy, dictates the outcome when the State fails to allege an overt act. This statute states:
“A conspiracy is an agreement with another person to commit a crime or to assist in committing a crime. No person may be convicted of a conspiracy unless an overt act in furtherance of such conspiracy is alleged and proved to have been committed by such person or by a co-conspirator.” (Emphasis added.) K.S.A. 21-3302(a).
Jesus asserts that because the State did not allege an overt act in the complaint, his conviction of conspiracy was improper. Jesus’ argument has merit. The question requires this court to interpret K.S.A. 21-3302(a). In State v. Cox, 258 Kan. 557, Syl. ¶ 7, 908 P.2d 603 (1995), the court stated:
“Interpretation of a statute is a question of law. Under tire fundamental rule of statutory construction, the intent of the legislature governs when that intent can be ascertained from the statute. When a statute is plain and unambiguous, an appellate court must give effect to the intention of the legislature, rather than determine what die law should or should not be. The general rule is diat a criminal statute must be strictly construed in favor of die accused, which simply means that words are given their ordinary meaning. Any reasonable doubt about die meaning is decided in favor of anyone subjected to the criminal statute. This rule of strict construction, however, is subordinate to the rule diat judicial interpretation must be reasonable and sensible to effect legislative design and intent.”
K.S.A. 21-3302(a) is unique in that it is the only criminal statute that requires a specific allegation of the elements of the crime. Shirley, 277 Kan. at 665. K.S.A. 21~3302(a) states that no crime of conspiracy exists unless there is an overt act alleged and proved.' This means that an overt act is an essential element of tire crime of conspiracy. Therefore, an allegation of conspiracy is fatally defective unless an overt act is charged.
This concept is demonstrated by the court’s reasoning in Shirley. Shirley, like Crockett and Sweat, is distinguishable from this case because tire defendant had moved to arrest judgment in the district court. Therefore, the court used the pre-Hall standard in reviewing the complaint. Nevertheless, Shirley is instructive.
In Shirley, the complaint stated that the defendant committed “an overt act in furtherance of the conspiracy.” 277 Kan. at 665. After the court found the complaint to be fatally defective, the court examined whether the jury instruction setting forth the elements of the conspiracy charge was proper. In setting forth the overt act requirement, the jury instruction stated: “ ‘That the defendant or any party to the agreement acted in furtherance of the agreement by an overt act.’ ” 277 Kan. at 666. In discussing whether this juiy instruction was proper, the court stated:
“K.S.A. 21-3302(a) requires diat an overt act in furtherance of die conspiracy be alleged and proved. Because die statutory language joins allegation and proof widi the conjunction ‘and,’ botii the factual allegation in the charging document and the proof of the same factual allegation are required for a conviction. Thus, to find a defendant guilty, die juiy must find diat the defendant or a coconspirator committed the overt act that was alleged in the charging document. The charging document must specify both die act and die actor.” 277 Kan. at 667.
Because the charging document alleged that the defendant had committed the overt act, the Shirley court determined that the jury instruction was improper. The instruction wrongly allowed the jury to determine that someone other than the defendant had committed the overt act. 277 Kan. at 667. The Shirley court concluded that under K.S.A. 21-3302(a), the State was required to prove, in accordance with the allegation of the complaint, that the defendant had committed an overt act; however, the jury instruction constructively amended or broadened the complaint by instructing the jury-in the disjunctive. 277 Kan. at 667.
The Shirley analysis is applicable to this case. Shirley explains that if the State is required to allege an essential element in the charging document, the essential element should not be constructively amended or broadened by a later jury instruction. A broadening of the charging document occurred in the present case.
Here, the complaint stated that an overt act was committed by either Jesus or a coconspirator. The State concedes that no overt act was alleged in the complaint. The overt acts were later furnished in a jury instruction. Thus, the trial court broadened or constructively amended the complaint by setting forth the overt acts in the juiy instruction. This allowed the jury to convict the defendant of an offense different from the offense alleged in the complaint or the indictment. The Shirley court warned that this could occur when a complaint fails to allege specific facts of an overt act in furtherance of a conspiracy. 277 Kan. at 665-67.
The State argues, however, that “despite multiple opportunities to do so, the defendant never objected to the language in question. Accordingly, this case must be analyzed under the factors set forth in State v. Hall . . . We disagree. This case primarily involves a sufficiency of the evidence question. Moreover, Jesus, in his brief, essentially challenges the sufficiency of the evidence to convict him:
“[A] defendant who has been convicted of conspiracy need not resort to the remedy of a motion to arrest judgment to challenge a complaint that failed to properly allege an overt act in furtherance of the conspiracy. Instead, that defendant may rely upon the conspiracy statute itself which, by its plain language, prohibits conviction of conspiracy unless a specific overt act is alleged.”
K.S.A. 21-3302(a) states that “[n]o person may be convicted of a conspiracy unless an overt act . . . is alleged and proved.” “ ‘When the sufficiency of evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.’ [Citation omitted.]” State v. Calvin, 279 Kan. 193, 198, 105 P.3d 710 (2005).
Here, the State failed to allege a specific overt act in the conspiracy complaint. Moreover, the State never moved to amend the complaint to allege a specific overt act. If we were to pass upon the sufficiency of the evidence based on the record, tested by the language in the complaint, the record reflects that no overt act was alleged and proved. There was a failure of proof. Simply stated, based upon the complaint, the State failed to prove that an overt act had been committed in the furtherance of the conspiracy. As a result, the Hall factors are inapplicable to this case.
We determine, given the language of K.S.A. 21-3302(a) as passed by the legislature, it was clearly the intent of the legislature that in order to obtain a conviction under K.S.A. 21-3302(a), the statute requires the State to allege in the complaint or the indictment and to prove at trial that an overt act in furtherance of the conspiracy has been committed. Because the State failed to allege and to prove an overt act, we determine that the evidence was insufficient for a rational factfinder to conclude that Jesus was guilty beyond a reasonable doubt of conspiracy to commit aggravated battery. As a result, we reverse Jesus’ conspiracy conviction.
Hall Analysis
Even if the Hall standard of review would be applied to this case, we determine that one or more of the Hall factors are satisfied. Under the Hall standard of review, a “defendant must show that the claimed defect (1) prejudiced the defendant’s preparation of a defense, (2) impaired the defendant’s ability to plead the conviction in any subsequent prosecution, or (3) limited the defendant’s substantial rights to a fair trial under tire Sixth Amendment to the United States Constitution or Section 10 of the Kansas Con stitution Bill of Rights. [Citation omitted.]” Shirley, 277 Kan. at 662.
As stated previously, the State was required to allege and to prove some overt act done in the furtherance of the conspiracy. Having previously determined that an overt act is an essential element of the crime of conspiracy, we must consider the purpose of requiring that an overt act be alleged.
It is apparent that the legislature believed that something more than a mere agreement must exist to effect a conspiracy. In stating that the overt act requirement was mandated by statute to allow conspirators to change their mind about a conspiracy agreement, the United States Supreme Court in United States v. Britton, 108 U.S. 199, 204-05, 27 L. Ed. 2d 698, 2 S. Ct. 531 (1883), stated:
“The provision of the [conspiracy] statute, that there must be an act done to effect the object of the conspiracy, merely affords a locus poenitentiae, so that before the act [is] done either one or all of the parties may abandon their design, and thus avoid the penalty prescribed by the statute.”
If conspirators are informed of the alleged act, they might say that although they did agree, they later called it off before the act was completed.
Because an overt act is an essential element of a conspiracy, a conspirator has the right to be informed of the overt act. See K.S.A. 2004 Supp. 22-3201(b). In stating the purpose of requiring a recitation of the essential facts, the Shirley court stated: “The purpose for requiring a recitation of the essential facts is to ensure that the accused is informed of the charges against him or her so that he or she may prepare a defense. [Citation omitted.]” 277 Kan. at 665. See U.S. Const. Amend. VI (A defendant has the right to be informed of the nature and cause of the accusation.). When the State fails to allege with particularity an overt act in the complaint or the indictment, a defendant might be taken by surprise and not be able to adequately defend against an essential element of the alleged crime. This lack of notice would deprive the defendant of due process of law. See Smith v. O’Grady, 312 U.S. 329, 334, 85 L. Ed. 859, 61 S. Ct. 572 (1941) (Due process requires a state defendant to be told of the nature and cause of the accusation, for without that information the fair trial demanded by due process is denied.).
Here, the trial court fashioned the overt act language to be inserted into the jury instruction stating the elements of conspiracy. The trial court placed in the jury instruction the phrase “following the victim to Sundance Apartments and attacking the victim with pipes.” No such language was mentioned in the conspiracy charge. Jesus would not have known before trial or during the taking of evidence, the specific overt act that was alleged to have been committed. The failure to allege a specific overt act in the complaint deprived Jesus of the notice to which he was entitled. Notice of the specific crime charged is one of those constitutional rights enjoyed by all defendants, whether they are in a state or a federal court. See Cole v. Arkansas, 333 U.S. 196, 201, 92 L. Ed. 644, 68 S. Ct. 514 (1948). Here, the State violated Jesus’ right to notice of the specific crime charged when it failed to allege a specific overt act in furtherance of the conspiracy in the complaint. This violation of Jesus’ right to notice of the specific crime charged contravened both the Sixth Amendment and the Fourteenth Amendment Due Process Clause to the United States Constitution.
Finally, because no overt act was ever alleged in the complaint, the State never had to prove beyond a reasonable doubt that an alleged overt act was done in the furtherance of the conspiracy. To find a defendant guilty of conspiracy, K.S.A. 21-3302(a) requires proof of the commission of the overt act alleged in the complaint or the indictment. See Shirley, 277 Kan. at 667. Because the State failed to allege an overt act in its complaint, it would be an impossibility for the State to prove an overt act for which it never alleged. Clearly, it would be improper to convict Jesus of a charge that was never proved. As a result, Jesus was denied a fair trial even under a Hall standard of review.
Mario’s Journal Entry
Next, Jesus maintains that his Sixth Amendment right to confront witnesses was violated when the district court admitted a redacted copy of a journal entry showing that Mario Marino had pled guilty to one count of conspiracy to commit aggravated bat tery. In State v. Holmes, 278 Kan. 603, 623, 102 P.3d 406 (2004), the court stated:
“ ‘The admission of evidence lies within the sound discretion of the trial court. [Citation omitted.] An appellate court’s standard of review regarding a trial court’s admission of evidence, subject to exclusionary rules, is abuse of discretion. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. One who asserts that the court abused its discretion bears the burden of showing such abuse of discretion.’ [Citations omitted.]”
Nevertheless, in Saucedo v. Winger, 252 Kan. 718, 731-32, 850 P.2d 908 (1993), the court stated:
“If a constitutional or a statutory right has been violated, the trial judge’s use of discretion is limited. Under these circumstances there is a greater need for articulation by the trial judge of the reasons for his ‘discretionary’ decision. Discretion must be exercised, not in opposition to, but in accordance with, established principles of law. It is not an arbitrary power. In its practical application in this state, judicial discretion is substantially synonymous with judicial power.”
See also State v. Garza, 26 Kan. App. 2d 426, 429, 991 P.2d 905, rev. denied 267 Kan. 891 (1999) (applying this standard in a criminal setting).
During trial, the State sought to admit a redacted copy of a journal entry of judgment in Mario’s criminal trial. The journal entry showed that Mario had pled guilty to one count of conspiracy to commit aggravated battery. The journal entry was redacted so as to remove any information regarding the sentence Mario received or the presumptive sentences for the crime. Jesus’ name was not set forth anywhere in the journal entry.
When the State requested to admit the journal entry, defense counsel objected on tire grounds of relevance and prejudice: “I mean, he’s claiming that simply because someone else decided to plead to a conspiracy it should be used against my client as a conspiracy.” The State claimed that it was offering the journal entry to show “that there was in fact another live person that was involved in these activities.” At this point, the trial court recessed and stated that it would make a ruling on the admissibility of the journal entry the following morning.
The following morning defense counsel claimed that under Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968), and State v. Purdy, 228 Kan. 264, 615 P.2d 131(1980), allowing the redacted journal entiy into evidence would unduly prejudice the defendant. After reading the decision in Purdy, the court overruled the defendant’s objection and admitted the journal entry into evidence.
Jesus asserts that the trial court violated the rule in Bruton when it overruled his objection to the admission of the journal entry. As discussed in State v. Rodriguez, 226 Kan. 558, 561, 601 P.2d 686 (1979), the court stated:
“[In Bruton,] the court held a defendant is deprived of his rights under the confrontation clause of the Sixth Amendment to the United States Constitution where the extrajudicial statement of a non-testifying codefendant inculpating the defendant is admitted and where the codefendant is not available for cross-examination, although an instruction is given limiting the use of the confession to the codefendant.”
Nevertheless, the Bruton analysis is not applicable in the present situation. The Bruton Court discussed whether a codefendant’s confession, which implicated the other codefendant, could be used at trial when the codefendants were being tried jointly. In the present case, Jesus was tried separately from Mario. Therefore, Bruton does not apply.
Lilly v. Virginia, 527 U.S. 116, 144 L. Ed. 2d 117, 119 S. Ct. 1887 (1999), discussed the Confrontation Clause in a situation where a nontestifying accomplice’s confession was admitted into evidence. In discussing this issue, the Lilly Court examined the statements by exploring whether “(1) ‘the evidence falls within a firmly rooted hearsay exception’ or (2) it contains ‘particularized guarantees of trustworthiness’ such that adversarial testing would be expected to add little, if anything, to the statements’ reliability. [Citation omitted.]” 527 U.S. at 124-25. The Lilly Court went on to find that the hearsay did not fall within a firmly rooted hearsay exception and that an accomplice’s statements which implicate a defendant are inherently unreliable. 527 U.S. at 133-34. The Lilly Court further stated that even though the confession was corroborated in part by other evidence, the declarant was read his Mir anda rights, and the declarant knew he was exposing himself to possible prosecution, without being subjected to cross-examination, this was insufficient to overcome the unreliability of an accomplice’s confession that implicated a defendant. 527 U.S. at 137-40.
In the present case, we can determine from the record that Mario pled guilty to one count of conspiracy to commit aggravated battery. Because the State failed to provide evidence showing that Mario’s confession contained particularized guarantees of trustworthiness, Lilly requires us to conclude that Mario’s confession was unreliable.
The State asserts that it sought to admit the journal entry to show “that there was in fact another live person that was involved in these activities.” Nevertheless, the journal entry does not provide any factual basis for Mario’s conviction. The only thing a person could determine by examining the journal entry was that Mario pled guilty to one count of conspiracy to commit aggravated battery. It is only when other facts are revealed that a person could determine that Jesus was idle person with whom Mario conspired. Accordingly, the State’s contention that the journal entry was only offered to prove that another person was involved is specious.
Although the journal entry had little, if any, probative value, it was highly prejudicial. From the evidence presented at trial, the jury knew that Mario and Jesus had acted together. The journal entry informed the jury that Mario had pled guilty to the conspiracy crime. The jury could have improperly relied on this information to support its guilty verdict. Accordingly, the district court erred in admitting the journal entry.
In State v. Hebert, 277 Kan. 61, 96, 82 P.3d 470 (2004), the court recognized that an error of constitutional magnitude may be harmless:
“ ‘An error of constitutional magnitude is serious and may not be held to be harmless unless the appellate court is willing to declare a belief that the error is harmless. Before an appellate court may declare such an error harmless, the court must be able to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial. Where the evidence of guilt is of such direct and overwhelming nature that it can be said that evidence erro neously admitted or excluded in violation of a constitutional or statutory right could not have affected the result of the trial, such admission or exclusion is harmless.’ [Citation omitted.]”
To determine whether a trial error is harmless or prejudicial, each case must be scrutinized and viewed in the light of the trial record as a whole, not on each isolated incident viewed by itself. State v. Abu-Fakher, 274 Kan. 584, 613, 56 P.3d 166 (2002). In the present case, Coney testified that he had a confrontation with Jesus and that Mario was present during the confrontation. Coney further testified that after he arrived at the Sundance Apartments, Jesus and Mario arrived and hit him with pipes. Even Jesus acknowledged during his direct testimony that he was with Mario on the night of the crime. Additionally, police discovered evidence that Jesus and Mario were at the scene of the crime. The evidence against Jesus was overwhelming.
Although the district court erred in admitting the journal entry of Mario’s conviction, there was little if any chance that the result of the trial would have been different if the journal entry had not been admitted. Thus, the error was harmless.
Jury Instruction
Next, Jesus maintains that the trial court erred when it refused to instruct the jury on misdemeanor battery as a lesser included offense of aggravated battery. The trial court instructed the jury on aggravated battery under K.S.A. 21-3414(a)(l)(A), a severity level 4 person felony. In order to convict Jesus, this offense required the jury to find that Jesus caused Coney great bodily harm or disfigurement. The trial court also instructed the jury on the lesser included offense of aggravated battery under K.S.A. 21-3414(a)(1)(B), a severity level 7 person felony. This instruction required the jury to find that Jesus caused bodily harm to Coney with a deadly weapon or in a manner whereby great bodily harm, disfigurement, or death could have been inflicted.
At trial, Jesus requested the trial court to instruct the jury on misdemeanor battery under K.S.A. 2004 Supp. 21-3412. The trial court heard arguments on this issue and concluded that the simple batteiy instruction should not be given. Although acknowledging that battery is a lesser included offense of aggravated battery, the trial court went on to find that under the facts of the case a misdemeanor battery instruction was not warranted. Defense counsel objected to tire failure to instruct the jury on misdemeanor battery.
. On appeal, Jesus maintains that the trial court erred in failing to instruct the jury on misdemeanor battery as a lesser included offense of aggravated battery. In State v. Mays, 277 Kan. 359, 378-79, 85 P.3d 1208 (2004), the court stated:
“When reviewing challenges to jury instructions, [an appellate] court must consider the instructions as a whole and not isolate any one instruction. ‘ “If the instructions properly and fairly state die law as applied to the facts of the case, and a jury could not reasonably have been misled by them, the instructions do not constitute reversible error even if they are in some way erroneous.’ ” [Citations omitted.]”
In State v. Young, 277 Kan. 588, 599-600, 87 P.3d 308 (2004), the court stated:
“Regarding the district court’s denial of the requested simple battery instruction, the standard of review for a claim of failing to instruct on a lesser included crime is whether the evidence, when viewed in the light most favorable to the defendant, supported the instruction. The instruction need not be given if the evidence would not have permitted a rational factfinder to find the defendant guilty beyond a reasonable doubt of the lesser included offense. [Citation omitted.] Stated another way, a criminal defendant has a right to an instruction on all lesser included offenses as long as ‘(1) the evidence, when viewed in the light most favorable to the defendant’s theory, would justify a jury verdict in accord with the defendant’s theory and (2) the evidence at trial does not exclude a theory of guilt on the lesser offense.’ [Citation omitted.]”
In the present case, Jesus was not entitled to an instruction on misdemeanor batteiy. Even when the evidence at trial is viewed in the light most favorable to Jesus, the evidence does not justify a verdict for misdemeanor battery. Jesus asserts that the jury could have found him guilty of misdemeanor battery because evidence was available that Coney only suffered bodily harm and not great bodily harm. Jesus’ argument fails. - .
■ The evidence showed that Jesus.used a pipe, which is a deadly weapon, to attack Coney. No evidence was-presented showing that Jesus did not use a pipe in the attack. The jury’s verdict indicates , that it found- that Jesus’ attack resulted in great bodily harm or disfigurement. Nevertheless, if the jury believed that Coney s injuries only resulted in bodily harm, the jury would still have had to convict Jesus of the severity level 7 aggravated battery because the bodily harm was caused by Jesus’ use of a deadly weapon. Accordingly, Jesus’ argument fails.
Previous Bad Acts
Next, Jesus maintains that the trial court erred by allowing Coney to testify that he knew Jesus because Jesus had previously attacked security at Latino’s Disco and had been asked to leave for being drunk. Jesus did not object to this statement at trial. “A party must make a timely and specific objection to the admission of evidence at trial in order to preserve the issue for appeal. [Citation omitted.]” State v. Kunellis, 276 Kan. 461, 477, 78 P.3d 776 (2003); see K.S.A. 60-404. Therefore, this issue has not been properly preserved for review.
Additionally, as stated earlier, the evidence against Jesus was overwhelming. Thus, any error in admitting this evidence was harmless. A defendant is entitled to a fair trial, not a perfect one. State v. Broyles, 272 Kan. 823, 842, 36 P.3d 259 (2001).
Reversed as to tire defendant’s conviction for conspiracy to commit aggravated battery and affirmed as to tire defendant’s conviction for aggravated battery.
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Buser, J.:
Michael Campbell appeals the district court’s denial of his K.S.A. 60-1507 motion. Campbell contends that counsel appointed for the nonevidentiary hearing was ineffective, and that the district court improperly denied him an evidentiary hearing and failed to provide findings of fact and conclusions of law as required by Supreme Court Rule 183(j) (2004 Kan. Ct. R. Annot. 221). We affirm in part, reverse in part, and remand with directions for further proceedings consistent with this opinion.
Procedural Background
In December 1997, Campbell was charged with the first-degree murder of Sharon Schmid. At trial, the State presented a case supported by circumstantial evidence, and the jury ultimately convicted Campbell of the charged offense. See State v. Campbell, 268 Kan. 529, 997 P.2d 726, cert. denied 531 U.S. 832 (2000). Campbell appealed his conviction to the Kansas Supreme Court, arguing that the trial court abused its discretion in denying his challenge to the State’s use of peremptory strikes against African-American jurors in violation of Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), that testimony by the victim’s sister violated pretrial rulings and prejudiced Campbell, and that prosecutorial misconduct adversely influenced the juiy’s verdict. The Supreme Court affirmed Campbell’s conviction.
In October 2001, Campbell filed a motion pursuant to K.S.A. 60-1507 raising numerous allegations of error. The district court appointed counsel and, in March 2002, held a nonevidentiary hearing, without Campbell’s presence, to determine the merits of the motion. At this hearing, Campbell’s court-appointed counsel stated there was no basis for further proceedings and argued that Campbell’s trial counsel was effective. The district court denied Campbell’s motion and he appeals.
Ineffective Assistance of Counsel at K.S.A. 60-1507 Hearing
Campbell claims a denial of due process because his court-appointed counsel “actively advocated against Mr. Campbell’s case” at the prehminary K.S.A. 60-1507 hearing. During the hearing, Campbell’s counsel advised the court she had thoroughly reviewed the underlying criminal case file, transcripts, appellate file, and the Kansas Supreme Court opinion affirming Campbell’s murder conviction. Additionally, she reported having spoken with Campbell’s trial attorney. Based upon this review, counsel concluded:
“Although it would not please Mr. Campbell, I would have to state to the Court that based on my review of that, my experience of almost 15 years as a criminal defense attorney and a prosecutor, I do not find any basis to proceed. I think the file and the information that’s presented to the Court speaks for itself. I think the Court would find upon reviewing all the information that I find Ms. Roe was not ineffective nor was the Appellate Defender’s Office ineffective.”
With regard to Campbell’s ineffective assistance of trial counsel claim, his K.S.A. 60-1507 counsel also argued, “I don’t think there would have been a different outcome in the matter.” Campbell’s counsel noted that Campbell was “veiy vague on the information he wants presented . . . even if they [sic] had additional information.” Campbell’s counsel praised the performance of Campbell’s trial counsel by noting that she had done “a lot of extra work on his behalf.” Counsel concluded her argument at the 60-1507 hearing by observing, “But, I — everything I see shows that she [trial counsel] was very effective, Your Honor, and prepared a wonderful record for the man.” At the conclusion of counsel’s argument, the prosecutor began his response, “Judge, I don’t know that I need to say a whole lot.”
On appeal, Campbell argues in his brief that his K.S.A. 60-1507 counsel’s ineffectiveness violated the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. During oral argument, however, Campbell’s counsel conceded that Kansas law does not recognize a constitutional right to effective K.S.A. 60-1507 counsel. We agree. Kansas law is well settled that a K.S.A. 60-1507 proceeding is a civil action for which there is no constitutional right to effective assistance of counsel. See Pennsylvania v. Finley, 481 U.S. 551, 555, 95 L. Ed. 2d 539, 107 S. Ct. 1990 (1987); Brown v. State, 278 Kan. 481, 483, 101 P.3d 1201 (2004).
Campbell’s counsel properly noted, however, that following the filing of briefs in this case, the Supreme Court determined that Kansas law providing a statutory right to counsel requires in certain circumstances that counsel be effective for indigents in K.S.A. 60-1507 proceedings. Brown, 278 Kan. at 483. In Brown, an indigent inmate filed a K.S.A. 60-1507 motion. Counsel was appointed by the court, a nonevidentiary hearing was held, and the district court denied relief. Subsequently, court-appointed counsel failed to advise Brown of this adverse ruling or his right to appeal. Over 2 years after the court’s denial of Brown’s motion, Brown learned of this adverse judgment. Motions to file an appeal out of time were then filed by Brown and his counsel. The district court denied relief, citing Robinson v. State, 13 Kan. App. 2d 244, 767 P.2d 851, rev. denied 244 Kan. 738 (1989).
In Robinson, the Court of Appeals held that a movant’s Fourteenth Amendment due process rights were not violated when an appeal from the dismissal of his K.S.A. 60-1507 motion was dismissed due to his counsel’s failure to timely file the appeal. Robinson, 13 Kan. App. 2d at 249. The rationale employed by the court was that since Robinson had no constitutional right to counsel he could not “save his untimely appeal from the dismissal of his 1507 motion by claiming ineffective assistance of counsel.” Robinson, 13 Kan. App. 2d at 249-50.
The Supreme Court in Brown, however, overruled the district court and allowed Brown’s appeal to be filed out of time. In specifically overruling Robinson and its progeny, the Supreme Court held: “When counsel is appointed by the court in post-conviction matters, the appointment should not be a useless formality.” Brown, 278 Kan. at 484. The Court found that court-appointed counsel’s 2-year delay in notifying his client of the adverse ruling and his client’s right to appeal “cannot even meet the most minimal of standards.” Brown, 278 Kan. at 484.
Our Supreme Court has never held that the statutory right enunciated in Brown is applicable to factual situations other than when court-appointed counsel waits for 2 years to notify a client of a denial of his or her K.S.A. 60-1507 motion and the right to appeal that adverse decision. The present case, however, shares important similarities with Brown that clearly suggest the appropriateness of applying the Brown precedent to the case at bar.
First, both cases involve counsel appointed under K.S.A. 2000 Supp. 22-4506(b) “to assist” indigent defendants seeking redress pursuant to K.S.A. 60-1507 after a judicial finding that the motion presents “substantial questions of law or triable issues of fact.” K.S.A. 2000 Supp. 22-4506(b). The statute’s noteworthy language that “the court shall appoint counsel” in these circumstances is not optional, but mandatory.
Second, both cases involve egregious conduct that “cannot even meet the most minimal of standards” for court-appointed counsel. Brown, 278 Kan. at 484. In Brown, counsel’s 2-year delay in advising his incarcerated client that die K.S.A. 60-1507 motion was denied and that the law provided him important appeal rights was a flagrant omission of counsel’s statutory responsibilities.
In the present case, counsel’s argument at the hearing consisted of a strong refutation of her client’s claims. In particular, with regard to Campbell’s claim that his trial counsel was ineffective, counsel advised the court that her review of the record revealed “Ms. Roe [trial counsel] was not ineffective nor was the Appellate Defender’s office ineffective.” Having disparaged the evidence regarding the performance prong of Campbell’s Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), claim, counsel proceeded to undermine the prejudice prong of her client’s claim by opining, “I don’t think there would have been a different outcome in the matter.” Campbell’s counsel praised his trial attorney and argued against an evidentiaiy hearing because Campbell “was very vague on the information he wants presented.” Campbell’s counsel left no doubt as to her opinion that Campbell’s motion was without merit: “Although it would not please Mr. Campbell, I would have to state to the Court that based on my review . . . [and] my experience of almost 15 years as a criminal defense attorney and a prosecutor, I do not find any basis to proceed.” The argument by Campbell’s counsel was detailed, forceful, and effective. Unfortunately for Mr. Campbell, his attorney’s advocacy was nothing less than a denunciation of his motion seeking habeas corpus relief.
As set forth in detail below, our review of the record reveals certain legal issues which appear to warrant an evidentiary hearing and consideration by the trial court. The failure of Campbell’s counsel to identify and argue for these legal issues may have been ineffective. We are not persuaded, however, that this particular aspect of Campbell’s counsel’s representation “cannot meet the most minimal of standards” required of counsel appointed pursuant to K.S.A. 2000 Supp. 22-4506(b). Rather, our sole concern, based upon a review of the hearing transcript, is that Campbell’s court-appointed counsel advocated against her client’s motion, which essentially mandated an adverse decision from the district court. It is this specific conduct — court-appointed counsel’s advocacy against her client’s K.S.A. 60-1507 motion — that we find “cannot even meet the most minimal of standards” of K.S.A. 2000 Supp. 22-4506(b) that counsel “assist” her indigent client. Brown, 278 Kan. at 484.
Finally, we understand the Supreme Court’s enunciation of a statutory right to effective counsel in K.S.A. 60-1507 proceedings in Brown was extended to an egregious instance of ineffectiveness of counsel that resulted in a highly prejudicial outcome. We view the ineffectiveness in Brown as highly prejudicial as it is extraordinary because, unless remedied, it foreclosed a right to appeal. Similarly, in the case before us, court-appointed counsel’s advocacy against her client’s K.S.A. 60-1507 motion seriously prejudiced Campbell’s legal position and, in essence, compelled the district court’s adverse judgment. As a result, we believe the Supreme Court precedent enunciated in Brown is applicable to Campbell’s unique factual situation.
Because we find court-appointed counsel’s advocacy against her client’s K.S.A. 60-1507 motion to be both egregiously ineffective and highly prejudicial, we find that Campbell’s statutory right to court-appointed counsel, as provided by K.S.A. 2000 Supp. 22-4506(b) and as interpreted by Brown, was violated. As set forth in the second part of this opinion, given our finding that certain issues contained in Campbell’s motion require an evidentiary hearing, upon remand the district court is directed to appoint new counsel to represent Campbell in this proceeding.
Failure to Grant K.S.A. 60-1507(b) Evidentiary Hearing
Appellant contends the district court abused its discretion by failing to grant Campbell an evidentiary hearing. In part, we agree.
K.S.A. 60-1507(b) requires a hearing “[ujnless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” Kansas Supreme Court Rule 183(h) elaborates on this statute by requiring an evidentiaiy hearing, with the presence of the prisoner, in cases where “there are substantial issues of fact as to events in which he participated.” 2004 Kan. Ct. R. Annot. 222.
In Lujan v. State, 270 Kan. 163, 170-71, 14 P.3d 424 (2000), our Supreme Court provided a roadmap with “three avenues of approach for the district court faced with a K.S.A. 60-1507 motion.” In the case of the third avenue:
“[T]he court may determine that a potentially substantial issue or issues of fact are raised in the motion, supported by the files and record, and hold a preliminary hearing after appointment of counsel to determine whether in fact the issues in the motion are substantial. In the event the court determines that the issue or issues are not substantial, the court may move to a final decision without the presence of the petitioner. If the issue or issues are substantial, involving events in which the petitioner participated, the court must proceed with a hearing involving the presence of the petitioner.” 270 Kan. at 170-71.
In the present case, the district court apparently determined that potentially substantial issues of fact were raised by the motion since he appointed counsel and held a prehminary hearing. Unfortunately, given the failure of the district court to make any findings, we are left to speculate regarding what issues the court believed were potentially substantial. At the conclusion of this hearing, however, the district court determined there were no issues of substance that required an evidentiary hearing and summarily dismissed the motion.
Notwithstanding the district court’s failure to make the requisite factual and legal findings in this matter, we have independently reviewed the record and conclude that while most of Campbell’s claims were properly dismissed, Campbell has alleged some substantial issues that require his presence at an evidentiary hearing. Broadly summarized, Campbell’s claims fall into three categories: trial errors, prosecutorial misconduct, and ineffective assistance of trial counsel.
Trial Errors
Within Campbell’s motion, the first set of alleged errors concerns rulings by the district court concerning the admission or exclusion of evidence and the denial of Campbell’s motion for a judgment of acquittal. As the record reveals only an oral motion for directed verdict at the end of tire State’s evidence and a motion for a new trial, Campbell’s 60-1507 is construed to contest the district court’s rulings with respect to these motions, rather than a motion for a judgment of acquittal. See Bruner v. State, 277 Kan. 603, 605, 88 P.3d 214 (2004) (citing State v. Andrews, 228 Kan. 368, 370, 614 P.2d 447 [1980]).
Allegations raising mere trial errors are properly raised in a direct appeal. They are not properly raised in a collateral proceeding under K.S.A. 60-1507 unless they affect constitutional rights and there is a showing of exceptional circumstances excusing the failure to appeal. See Johnson v. State, 271 Kan. 534, 535, 24 P.3d 92 (2001); Supreme Court Rule 183(c). Campbell has not alleged any exceptional circumstances which warrant consideration of any of these issues. Consequently, these claims were appropriately dismissed by the district court.
Prosecutorial Misconduct
Campbell claims the prosecuting attorney committed misconduct during voir dire, opening statement, examination of witnesses, and closing argument.
If prosecutorial misconduct rises to a level which violates a defendant’s right to a fair trial, the issue is properly raised by direct appeal, despite any lack of contemporaneous objection at trial. See State v. Mann, 274 Kan. 670, 688, 56 P.3d 212 (2002) (citing State v. Pabst, 268 Kan. 501, 504, 996 P.2d 321 [2000]). As a result, claims for relief due to prosecutorial misconduct ordinarily are considered trial errors which are not properly raised in a K.S.A. 60-1507 proceeding unless they affect constitutional rights and there are exceptional circumstances excusing the failure to appeal. Supreme Court Rule 183(c). Campbell has not demonstrated any exceptional circumstances to warrant our consideration of these claims.
The issue of prosecutorial misconduct, however, was exhaustively considered by our Supreme Court in Campbell’s direct criminal appeal. See Campbell, 268 Kan. at 538-43. Such claims may not be relitigated in a collateral proceeding. See State v. Johnson, 269 Kan. 594, 601, 7 P.3d 294 (2000) (“[W]here an appeal is taken from the sentence imposed and/or a conviction, the judgment of the reviewing court is res judicata as to all issues actually raised, and those issues that could have been presented, but were not presented, are deemed waived.”). As a result, these claims were properly dismissed by the district court.
Ineffective Assistance of Counsel
Campbell’s motion also raises multiple allegations of ineffective assistance of trial counsel. Although such claims are properly filed in a K.S.A. 60-1507 proceeding, many of Campbell’s claims are speculative or specious. Because a presumption of regularity attaches to a criminal conviction and sentence, Campbell bears the burden of proving that his conviction or sentence is defective by a preponderance of the evidence. See Wright v. State, 5 Kan. App. 2d 494, 495, 619 P.2d 155 (1980); Supreme Court Rule 183(g). Merely conclusory allegations are insufficient to require an eviden tiary hearing. See State v. Jackson, 255 Kan. 455, 463, 874 P.2d 1138 (1994).
Campbell’s speculative, ambiguous, or unsupported claims are addressed below:
(1) Campbell claims that his trial counsel neglected to preserve meritorious claims for appeal, but he fails to specify which meritorious claims were not preserved.
(2) Campbell suggests his trial counsel was ineffective due to the erroneous admission of tainted evidence, yet he does not specify which evidence was tainted.
(3) Campbell alleges his trial counsel did not object to prosecutorial misconduct, but the misconduct to which Campbell refers is too vague for consideration.
(4) Campbell claims his counsel did not object to the State’s alleged coaching of witnesses, yet his motion does not identify these witnesses or indicate the improper manner by which they were allegedly coached.
(5) Campbell argues his trial counsel did not contest the validity of the charges against him, a claim that is controverted by a cursory review of the trial transcript. Moreover, Campbell never states how the overall defense in his case was deficient.
(6) Campbell suggests that one of the State’s witnesses should have been impeached with evidence of a prior criminal record, but fails to identify the witness or advise which particular conviction is at issue.
(7) Campbell complains that his defense counsel failed to elicit the testimony of character witnesses in Campbell’s defense, but he does not identify proposed character witnesses or describe how their testimony would have aided the defense.
■ (8) Campbell claims his trial counsel failed to challenge the State’s discriminatory exercise of peremptory strikes. The record, however, clearly reveals defense counsel’s challenge to the State’s exercise of strikes on the basis of Batson v. Kentucky, 476 U.S. 79. Additionally, the Supreme Court considered this underlying issue on appeal and ruled adversely to Campbell’s argument. Campbell, 268 Kan. at 532-37.
(9) Campbell argues that his counsel failed to adequately investigate the lack of damage to Campbell’s jeep. His motion, however, does not specify what further investigation should have been conducted by defense counsel. A review of the trial transcript reveals defense counsel appropriately addressed the issue of damage to Campbell’s vehicle.
(10) Campbell objects to his counsel’s decision not to call an expert medical witness to discuss tire limited vision of two of the State’s eyewitnesses. This claim is without merit because the record demonstrates an effective cross-examination of these witnesses. One witness admitted that he required glasses to drive, but was not wearing his glasses while perceiving the events to which he testified. Defense counsel actually admitted the glasses of tire other witness into evidence so the jury could personally examine the strength of the witness’ prescription and leam first-hand how well she could see without them.
(11) Campbell contends his counsel provided inadequate representation by failing to impeach an unnamed prosecution witness with evidence that tire witness was on probation for an unspecified crime. Campbell does not allege that his counsel was even aware of this information. Without further specificity, the admissibility and value of this evidence is questionable.
(12) Campbell claims his trial counsel was ineffective for failing to take photographs of the crime scene at night to demonstrate the low visibility in the neighborhood. Campbell’s claim does not warrant an evidentiary hearing because he does not allege how such photographs would have provided a better defense tiran the crime scene photographs taken by officers on the night, of the murder.
(13) Campbell asserts that defense counsel was ineffective for failing to depose the State’s witnesses. Campbell misconstrues Kansas law. While a criminal defendant may petition the court to depose a witness, this statutory right is limited to witnesses who will likely be unavailable for trial and who possess material testimony. See K.S.A. 22-3211(1). Here, the State’s witnesses were not unavailable; they were present at trial, which precluded the legal basis for counsel taking their depositions prior to trial.
The 13 claims just discussed provided no basis for relief, did not necessitate an evidentiary hearing, and were properly dismissed in a summary manner. Campbell’s motion contains three claims, however, involving substantial issues of fact related to ineffective assistance of counsel which deserve further consideration with Campbell present at an evidentiary hearing.
(1) Campbell generally alleges his trial counsel failed to properly conduct a pretrial investigation. In this regard, we note that Campbell’s counsel at the K.S.A. 60-1507 hearing advised the district court that trial counsel billed about $2,400 for his first-degree murder defense, an amount suggesting that Campbell’s allegations of inadequate consultation and investigation are not conclusively without merit. In particular, Campbell specifically alleges that his counsel failed to have scientific or forensic testing conducted on his clothing and person. Campbell’s claim of inadequate pretrial investigation involves substantial issues of fact. An evidentiary hearing with potential testimony from Campbell and trial counsel is appropriate prior to a determination of the merits of this claim.
(2) Campbell claims his attorney failed to adequately prepare him for possible trial testimony. The decision on whether to testify is a right of a defendant after full consultation with counsel. State v. Carter, 270 Kan. 426, 439, 14 P.3d 1138 (2000). The record reflects that, against counsel’s advice, Campbell declined to testify at trial. Campbell claims that his attorney advised him that if he testified, he would have been convicted of a lesser offense. He also alleges that trial counsel’s billing records reflect spending only about 2 hours in client consultation prior to trial. The circumstances surrounding trial counsel’s advice, the preparation of Campbell for possible trial testimony, and the reasons for his refusal to testify merit an evidentiaiy hearing prior to any judicial determination of this issue.
(3) Campbell alleges his trial counsel was ineffective for failing to request telephone logs of Timothy Stovall’s residence and the Wyandotte County jail. Our review of the trial transcript reveals that Timothy Stovall and Michael Bruce testified at trial that Campbell made a collect call from the jail to Stovall’s house the day after the murder. As set forth in the Supreme Court’s opinion on direct appeal, Campbell’s statements during this call led police to the murder weapon in Stovall’s backyard. Campbell, 268 Kan. at 532. The prosecutor claimed during opening statement that Campbell had confessed during this call, but the evidence did not bear this out. 268 Kan. at 541. The Supreme Court did find the State’s reference to Campbell’s purported confession during the phone call was error and that Campbell was prejudiced. See 268 Kan. at 542. The Supreme Court, however, ultimately found this error was harmless. 268 Kan. at 542-43.
In his K.S.A. 60-1507 motion, Campbell argues that these telephone logs would have established that this incriminating telephone call never occurred. Campbell’s allegations merit an evidentiary hearing. If on remand the district court finds Campbell’s allegations are true and trial counsel’s efforts to disprove the existence or contents of this telephone call were ineffective, any resulting prejudice is obviously relevant to a Strickland analysis. See Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985) (adopting Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 [1984]).
We affirm the district court’s summary denial of Campbell’s K.S.A. 60-1507 motion as it relates to claims of trial errors and prosecutorial misconduct. We also affirm the district court’s summary denial of Campbell’s ineffective assistance of counsel claims as set forth in paragraphs (1) through (13) above. We reverse and remand for an evidentiary hearing, in the presence of Campbell, regarding three issues: Campbell’s ineffective assistance of counsel claims pertaining to (1) the alleged failure to conduct a proper pretrial investigation, (2) the failure to prepare Campbell for possible testimony at trial, and (3) the failure to obtain telephone logs regarding an alleged conversation involving Campbell that resulted in police finding the murder weapon.
Failure to Comply with Supreme Court Rule 183(j)
At the conclusion of the K.S.A. 60-1507 hearing, the court stated: “There doesn’t appear to be any issue of fact or law in controversy before this Court that would entitle the defendant to any relief under the statute. And so his claim in all respects will be denied by the Court.” The judge then directed the prosecutor to prepare a journal entry for his signature. On April 17, 2002, the signed journal entry stating the court’s findings was filed with the clerk. In relevant part it stated “[tjhat there are no justiciable issues of fact or law, and that the petition is without merit.”
Supreme Court Rule 183(j) provides that a district court issuing a judgment in K.S.A. 60-1507 proceedings “shall make findings of fact and conclusions of law on all issues presented.” 2004 Kan. Ct. R. Annot. 223. In interpreting this rule, the Supreme Court and Court of Appeals have repeatedly emphasized the importance of specific findings of fact and conclusions of law. See State v. Moncla, 269 Kan. 61, 64-65, 4 P.3d 618 (2000); Harris v. State, 31 Kan. App. 2d 237, 239, 62 P.3d 672 (2003). As another panel of this court recognized in Stewart v. State, 30 Kan. App. 2d 380, 382, 42 P.3d 205 (2002), the Supreme Court requires findings and conclusions so appellate courts may conduct a meaningful review.
In this case, the district court provided no findings of fact or conclusions of law as required by Supreme Court Rule 183(j). Our independent review of the record, with findings of fact and conclusions of law as set forth in this opinion, however, obviates the necessity for remand solely to require the district court to comply with Supreme Court Rule 183(j). Upon remand for the appointment of new counsel and holding of an evidentiary hearing in compliance with this opinion, we encourage the district court to comply with Supreme Court Rule 183(j).
The district court’s summary denial of Campbell’s K.S.A. 60-1507 motion is reversed in part and affirmed in part, in conformance with this opinion. This case is remanded for appointment of new counsel and the holding of an evidentiary hearing in Campbell’s presence. The district court’s failure to comply with Supreme Court Rule 183(j) is moot. | [
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Arnold-Burger, J.:
Tony Jay Meyer sexually assaulted his foster sister and pled no contest to two charges stemming from that assault. As part of a plea agreement, the State promised to depart to the sentencing grid and recommend mitigated consecutive sentences. Instead, the State admittedly breached the plea agreement and recommended aggravated sentences. Nonetheless, the district court sentenced Meyer to concurrent mitigated sentences. Because we are unable to say beyond a reasonable doubt that the State’s promise to recommend mitigated sentences had little, if any, influence on the defendant’s decision to enter into the plea agreement, we must vacate Meyer’s sentence and remand the case for resent-encing before a different judge with instructions that the State specifically adhere to the plea agreement.
Factual and Procedural History
After Meyer sexually assaulted his 7-year-old foster sister, the State charged him with a single count of aggravated criminal sod omy. Later, the State added a single count of aggravated indecent liberties with a child.
Ultimately, the State and Meyer entered into a plea agreement. In exchange for Meyer pleading guilty or no contest to the charges, the State agreed to stipulate to a departure to the sentencing grid and to recommend consecutive mitigated sentences from the applicable grid boxes. Meyer retained the ability to argue for a further departure, although the State reserved die right to oppose such a motion. The district court accepted Meyers pleas and convicted him of both charges.
Before sentencing, Meyer filed a motion for a further departure down to two concurrent sentences of 75 months’ imprisonment each. Meyer based his arguments largely on a psychologist’s opinion that with the proper treatment, Meyer posed no future threat to the community. The district court heard argument on the motion at sentencing, with the State—as indicated in the plea agreement—opposing the additional departure. At the end of its argument, the State summed up its position by saying, “We’re asking the Court to impose an aggravated sentence of 165 months on the aggravated criminal sodomy and a consecutive sentence of 61 months on the aggravated indecent liberties with a child.”
The district court agreed to depart to the sentencing grid but denied Meyer’s motion for a further departure. However, the district court also stated, “I do not believe that the State’s recommendation for aggravated consecutive sentences is appropriate given the totality of the circumstances we’re facing in this case.” Instead, the district court sentenced Meyer to concurrent mitigated sentences of 147 months’ and 55 months’ imprisonment.
Shortly after sentencing, Meyer timely appealed. However, his notice of appeal was specific to “the sentence imposed on March 3,2014, specifically on the issue of lifetime post release and lifetime electronic monitoring.”
Analysis
For the first time on appeal, Meyer argues that the State violated the plea agreement when it recommended the aggravated sentence rather than the mitigated one. The State admits that it recom mended the wrong number but counters that the error is a harmless one.
But as a preliminary matter, the State strenuously contends that this court lacks the ability to even hear Meyer s arguments. So we will first examine the State’s jurisdictional arguments.
Insufficient notice of appeal
The State’s first argument centers on Meyer’s notice of appeal. As previously noted, Meyer appealed “the sentence imposed on March 3, 2014, specifically on the issue of lifetime post release and lifetime electronic monitoring.” The State contends that because Meyer limited his appeal to only those two sentencing issues, this court lacks jurisdiction to consider any argument beyond that very limited scope.
A criminal defendant may appeal “from any judgment against the defendant in the district court.” K.S.A. 2014 Supp. 22-3602(a). In order to perfect this appeal, however, the defendant must file a notice of appeal. K.S.A. 2014 Supp. 60-2103(a). “It is a fundamental proposition of Kansas appellate procedure that an appellate court obtains jurisdiction over the rulings identified in the notice of appeal.” State v. Huff, 278 Kan. 214, Syl. ¶ 2, 92 P.3d 604 (2004). Although our Kansas courts liberally construe notices of appeal to assure each proceeding is just, “there is still a substantive minimum below which a notice cannot fall and still support jurisdiction.” State v. Laurel, 299 Kan. 668, 673, 325 P.3d 1154 (2014). Whether jurisdiction exists is a question of law over which this court exercises unlimited review. State v. Charles, 298 Kan. 993, 1002, 318 P.3d 997 (2014).
Several recent cases have allowed our Kansas courts the opportunity to better define and describe that substantive minimum. Broad and general language that encompasses all adverse rulings or every order in a case is “sufficiently inclusive to perfect appeals from otherwise unspecified rulings.” Gates v. Goodyear, 37 Kan. App. 2d 623, 627, 155 P.3d 1196, rev. denied 284 Kan. 945 (2007). However, when an appellant specifically names a given order or ruling, the appellate court obtains jurisdiction over that order alone. See 37 Kan. App. 2d at 628-29. For example, a notice that a defendant intends to appeal his or her sentence is insufficient to also appeal the conviction from which that sentence stems. See State v. Coman, 294 Kan. 84, 90, 273 P.3d 701 (2012).
However, a notice of appeal is also not meant to be overly technical or detailed. State v. Wilkins, 269 Kan. 256, 270, 7 P.3d 252 (2000). Typographical errors and misplaced modifiers, although faults in the notice of appeal, are insufficient to divest the court of jurisdiction. See State v. Lewis, 301 Kan. 349, 370, 344 P.3d 928 (2015) (misplaced date modifier); Laurel, 299 Kan. at 675 (wrong appellant’s name). And perhaps more importantly, our Kansas courts frequently consider whether the State is prejudiced or surprised “by a defendant’s timely filed but otherwise faulty notice of appeal.” 299 Kan. at 674.
Here, Meyer specifically appealed from his sentencing and now raises two issues that arose during that hearing: the State’s violation of the plea agreement and the district court’s decision on his departure motion. No other hearings or orders are implicated. Moreover, the State alleges no prejudice or surprise stemming from the notice of appeal. Instead, the State appears to argue that despite the rule of liberal construction, Meyer must be strictly held to those issues named in the notice. See Laurel, 299 Kan. at 673. But as noted in State v. Boyd, 268 Kan. 600, 606, 999 P.2d 265 (2000),
“The notice of appeal is not a device to, alert the parties to all possible arguments on appeal. That is the purpose and function of the docketing statements and briefs filed by tire parties. . . . Whether a party has detailed its arguments in the notice of appeal does not affect the State’s practice or its appellate strategy.”
Accordingly, we find that the notice of appeal in this case is sufficient to establish jurisdiction over Meyer’s sentencing and the two issues that arose at sentencing and that he now appeals.
Failure to raise the issue below
Next, the State argues that Meyer failed to preserve the issue concerning the plea agreement. Because Meyer never objected before the district court, the State contends that this court cannot hear the issue. Moreover, the State rejects Meyer’s argument that two of the exceptions to this preservation rule apply.
Generally, issues not raised before the trial court cannot be raised on appeal. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). But there are exceptions to this rule. Specifically, a new legal theory may be asserted for the first time on appeal if: (1) tire new theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) consideration of the theory is necessary to serve the ends of justice or to prevent denial of fundamental rights; and (3) the judgment of the trial court may be upheld despite its reliance on the wrong ground or having assigned a wrong reason for its decision. State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014). But an appellant must also explain why such an issue should be considered for the first time on appeal, lest this court deem the issue improperly briefed or waived and abandoned. See State v. Godfrey, 301 Kan. 1041, 1044, 350 P.3d 1068 (2015).
Here, Meyer clearly presents two justifications for why this court should hear the plea agreement issue despite his failure to raise it below. First, he points out that this issue involves only a question of law arising on admitted facts. Second, he argues that this issue prevents the denial of his due process rights. The State, however, claims drat neither of these exceptions apply.
There is no need to address the first exception, because the second exception clearly applies here. When the State violates a plea agreement, the defendant’s due process rights are violated. State v. Urista, 296 Kan. 576, Syl. ¶ 2, 293 P.3d 738 (2013). As such, “appellate courts may address the issue for the first time on appeal in order to serve the ends of justice or prevent a denial of fundamental rights.” State v. Chetwood, 38 Kan. App. 2d 620, Syl. ¶ 4, 170 P.3d 436 (2007), rev. denied 286 Kan. 1181 (2008). And although the State asserts in its brief that no denial of fundamental rights occurred, Urista instructs that a breach of the plea agreement violates the defendant’s rights even when the district court’s decision is unaffected by the State’s actions. 296 Kan. 576, Syl. ¶ 2. In other words, this exception applies regardless of whether the defendant suffered harm from the State’s breach. 296 Kan. 576, Syl. ¶ 2; Chetwood, 38 Kan. App. 2d 620, Syl. ¶ 4. Accordingly, we will consider the issue despite Meyer’s failure to object below.
The breach of the plea agreement
Having addressed the State’s preliminary arguments, the next question is whether the State’s breach of the plea agreement constitutes harmless error. The State concedes that it violated the agreement when it recommended the aggravated sentences rather than the mitigated ones. But the State also maintains that Meyer suffered no harm from this breach, as the district court sentenced him to mitigated (per the plea agreement) and concurrent (per his departure request) sentences.
As previously mentioned, the State’s breach of a plea agreement denies tire defendant due process even when the district court’s sentencing decision is unaffected by that breach. Urista, 296 Kan. at 594. As such, a breach will only constitute harmless error “if a court can say beyond a reasonable doubt that the State’s promise had little, if any, influence on the defendant’s decision to enter into the plea agreement.” 296 Kan. at 594-95. This harmless error rule applies both when the defendant objects to the breach and when he or she raises the issue for the first time on appeal. See 296 Kan. at 594-95 (timely objection); State v. McDonald, 29 Kan. App. 2d 6, 9-11, 26 P.3d 69 (2001) (issue raised for the first time on appeal).
The State contends that the breach is harmless because the most important part of the plea agreement was the departure to the sentencing grid. However, nothing in the record suggests that Meyer’s motivation revolved solely around that departure. It is just as likely that Meyer entered into the plea agreement for both the departure to the grid and the mitigated sentences, or even for the mitigated sentences alone. After all, Meyer moved for a further departure prior to sentencing, arguing that his circumstances justified an even shorter sentence than the one to which he and the State agreed. This motion at least suggests that Meyer wished to serve the shortest prison sentence possible, meaning that the promise of a mitigated sentence could have attracted him to the agreement as much as the promise of the departure to the grid. And even without such speculation, the State’s unsupported assertion about Meyer’s motivations is insufficient to satisfy the high burden placed upon the State in proving the error’s harmlessness.
As for the State’s contention that this court should consider the sentence Meyer ultimately received when deciding whether the error is harmless, our Kansas Supreme Court in Urista clearly articulated that the test for harmlessness concerns only the effect that the State’s promise had on the defendant’s decision to enter into the plea agreement. 296 Kan. at 594-95. This court is duty bound to follow Kansas Supreme Court precedent absent some indication that the court is departing from its previous position. State v. Ottinger, 46 Kan. App. 2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). There is no indication that our Supreme Court has abandoned or altered the harmless error test from Urista. Moreover, there is no way to know whether the State’s recommendation for aggravated sentences affected the district court’s decision to deny Meye'r’s motion for further departure. The State’s argument that Meyer’s final sentence demonstrates tire harmlessness of the breach is unpersuasive.
In short, the State breached the plea agreement and violated Meyer’s due process rights when it recommended the aggravated sentences rather than the mitigated ones. The State also failed to demonstrate beyond a reasonable doubt that Meyer’s decision to enter into the agreement was not influenced by tire promise to recommend those mitigated sentences. The error is therefore not harmless.
Despite his favorable sentence and the possibility of either a more favorable or a less favorable sentence on remand, Meyer requests that this case be remanded for resentencing before a different judge with instructions that the State specifically perform the agreement, which is tire typical remedy for a case such as this one. See Urista, 296 Kan. at 595. We agree. Accordingly, Meyer’s sentence is vacated and the case remanded for resentencing before a different judge with instructions that the State specifically adhere to the plea agreement.
Sentence vacated and case remanded with directions. | [
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Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Michael Peloquin, of Wichita, an attorney admitted to the practice of law in Kansas in 2000.
On August 26, 2013, 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 September 16, 2013. The Disciplinary Administrator and the respondent entered into a joint stipulation of facts. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on October 21, 2013, where the respondent was personally present. The hearing panel determined that respondent violated KRPC 1.3 (2013 Kan. Ct. R. Annot. 464) (diligence); 1.15 (2013 Kan. Ct. R. Annot. 553) (safekeeping property); and 5.3 (2013 Kan. Ct. R. Annot. 627) (responsibilities regarding nonlawyer assistants).
Upon conclusion of the hearing, the panel made tire following findings of fact and conclusions of law, together with its recommendation to this court:
“Findings of Fact
“Representation of S.W.
“8. In October, 2010, S.W. retained the respondent to expunge a criminal matter in Shawnee County, Kansas. The respondent and S.W. agreed to a fee of $500.00. Additionally, S.W. was to pay the $115.00 filing fee. The respondent agreed to file the expungement after the fee was paid.
“9. S.W. made payments on the fees from October 2010, to May 4, 2011. On May 4, 2011, the respondent’s legal assistant noted that the fee was ‘paid in full.’ After S.W. paid the fee, the respondent failed to file die expungement petition on behalf of S.W., as agreed.
“10. On August 23, 2011, S.W. filed a complaint with the disciplinary administrator’s office. By letter, die disciplinary administrator directed the respondent to provide a written response to the complaint filed by S.W. The respondent failed to provide a written response as directed.
“11. The disciplinary administrator sent two additional letters, again, directing the respondent to provide a written response to the complaint. The letters were returned to the disciplinary administrator and marked, ‘unable to forward.’
“12. Eventually, the attorney assigned to investigate S.W.’s complaint made contact with the respondent and the respondent provided a written response to the complaint. In his response, the respondent explained that the post office made an error in his request to have his mail forwarded.
“13. The respondent also explained that initially he filed the petition in the wrong court. And, later, when he filed the petition in the correct court, he did not provide a sufficient number of copies and die petition was returned by the court. The respondent claims that he never received the returned petition because of the post office’s error with the request to forward the mail.
“14. After the respondent received a copy of S.W.’s complaint, the respondent contacted S.W. in person. Again, S.W. aslced the respondent to file a petition for expungement. The respondent filed the petition and obtained an order of expungement.
“Representation of E.G.
“15. E.G. retained the respondent to represent her in a civil action which arose following a car accident. The respondent made a settlement offer of $2,500.00. E.G. rejected the settlement offer. E.G. terminated the respondent’s representation and hired new counsel, Tom Warner.
“16. Mr. Warmer attempted to negotiate a settlement. The insurance company informed Mr. Warner that it had already settled the matter for $15,000.00.
“17. The respondent’s office manager negotiated the settlement without the respondent’s knowledge. Additionally, unbeknownst to the respondent, the respondent’s office manager negotiated the check.
“18. The respondent filed a claim with his malpractice carrier. The insurance company denied the claim.
“19. Mr. Warner filed suit against the respondent on behalf of E.G. The respondent negotiated a settlement with Mr. Warner, with a payment plan. On September 5, 2012, the court entered an order of judgment in the amount of $20,861.30, plus interest against the respondent as a result of the settlement. Mr. Warner has filed an order in aid of execution of the judgment. At the time of the attorney disciplinary hearing, the respondent was current on the settlement payments.
“Settlements Involving Wesley Medical Centel-
lo. During the course of the investigation of E.G.’s complaint, the attorney investigating the complaint learned of additional settlements checks which the respondent’s office manager negotiated without the respondent’s knowledge.
“21. Travelers Insurance issued a check in the amount of $37,264.08, made payable to the respondent, Wesley Medical Center, and Michael Serve. Wesley Medical Center did not endorse the check, however, its endorsement that appears on the check was forged. It appears that the respondent’s office manager cashed the check without the respondent’s knowledge. The respondent reported the theft to the Overland Park Police Department.
“22. Wesley Medical Center filed suit against the respondent. On July 18, 2012, the court granted partial judgment against the respondent. On December 16, 2012, the court issued a garnishment in the amount of $21,542.53. On January 22, 2013, Mr. Serve filed a cross-claim against the respondent. Mr. Serve’s cross-claim remains pending against the respondent.
“23. At the time the respondent discovered the thefts, the respondent’s office manager removed his computer from the respondent’s office and did not return to work. The law enforcement officers assigned to investigate the thefts have been unable to locate the respondent’s former office manager.
“24. The respondent believes that there are two additional checks which the office manager negotiated without authorization. Because the officer manager took the computer, the respondent is unable to determine additional individuals victimized by the office manager’s theft.
“Conclusions of Lato
“25. Based upon the findings of fact, the hearing panel concludes as a matter of law that the respondent violated KRPC 1.3, KRPC 1.15, and KRPC 5.3, [Footnote: The disciplinary administrator also charged the respondent with violating KRPC 8.4(a). However, in the hearing panel’s opinion, concluding that the respondent violated KRPC 8.4(a) would require that the hearing panel conclude that the respondent knew what the office manager was doing. The hearing panel concludes that the respondent did not know what the officer manager was doing. If the definition of‘knowing’ also included ‘should have known,’ the hearing panel would have concluded that the respondent also violated KRPC 8.4(a). The respondent should have known what the office manager was doing. The respondent did not, however, know what die office manager was doing.] as detailed below.
“KRPC 1.3
“26. A lawyer shall act witíi reasonable diligence and promptness in representing a client. KRPC 1.3. The respondent failed to diligently and promptly represent S.W. by properly filing the expungement. Because the respondent failed to act with reasonable diligence and promptness in representing his client, the hearing panel concludes that the respondent violated KRPC 1.3.
“KRPC 1.15
“27. Lawyers must keep the property of their clients safe. See KRPC 1.15. In E.G.’s case, the respondent failed to properly safeguard his client’s property when he failed to properly supervise his office manager. Therefore, tire hearing panel concludes that the respondent violated KRPC 1.15.
“KRPC 5.3
“28. Attorneys have certain responsibilities with respect to nonlawyer employees. In that regard, KRPC 5.3(b) provides, ‘a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.’ In this case, the respondent failed to malee reasonable efforts to ensure that his office manager’s conduct was compatible with the respondent’s professional obligations.
“American Bar Association Standards for Imposing Lawyer Sanctions
“29. In making this recommendation for discipline, the hearing panel considered the factors outlined by tire 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.
“30. Duty Violated. The respondent violated his duty to his client to provide diligent representation and the respondent violated his duty to his clients to properly safeguard his clients’ property.
“31. Mental State. The respondent knowingly violated his duty to his client to provide diligent representation and the respondent negligently violated his duty to his clients to properly safeguard his clients’ property.
“32. Injury. As a result of the respondent’s misconduct, the respondent caused actual injury to his clients and third parties.
“Aggravating and Mitigating Factors
“33. 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 found the following aggravating factors present:
"34. A Pattern of Misconduct. The respondent has engaged in a pattern of misconduct by failing to supervise his office manager for an extended period of time.
“35. Multiple Offenses. The respondent committed multiple rule violations. The respondent violated ICRPC 1.3, KRPC 1.15, and KRPC 5.3.
“36. Vulnerability of Victim. S.W. and E.G. were vulnerable to the respondent’s misconduct.
“37. Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its rec ommendation for discipline, the hearing panel found the following mitigating circumstances present:
“38. Absence of a Prior Disciplinary Record. The respondent has not previously been disciplined.
“39. Absence of a Dishonest or Selfish Motive. The respondent’s misconduct does not appear to have been motivated by dishonesty or selfishness.
“40. Personal or Emotional Problems if Such Misfortunes Have Contributed to Violation of the Kansas Rides of Professional Conduct. The respondent suffers from many health problems. It is clear that the respondent’s health problems contributed to his misconduct.
“41. The Present and Past Attitude of the Attorney as Shown by His or Her Cooperation During the Hearing and His or Her Fidl and Free Acknowledgment of the Transgressions. The respondent fully cooperated with the disciplinary process. Additionally, the respondent admitted the facts that gave rise to the violations.
“42. 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 is an active and productive member of the bar. The respondent also enjoys the respect of his peers and generally possesses a good character and reputation as evidenced by several letters received by the hearing panel.
“43. Imposition of Other Penalties or Sanctions. As a result of the respondent’s office manager’s thefts, judgments have been entered against the respondent. The respondent is currently making payments toward the satisfaction of the judgments. Thus, the respondent has experienced other sanctions for his failure to properly supervise his office manager.
“44. Remorse. At the hearing on this matter, the respondent expressed genuine remorse for having engaged in the misconduct.
“45. In addition to die above-cited factors, the hearing panel has thoroughly examined and considered the following Standards:
‘4.13 Reprimand is generally appropriate when a lawyer is negligent in dealing with client property and causes injury or potential injuiy to a client.
‘4.42 Suspension is generally appropriate when:
(a) a lawyer knowingly fails to perform services for a client and causes injuiy or potential injury to a client; or
(b) a lawyer engages in a pattern of neglect and causes injury or potential injuiy td a client.
‘7.2 Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duly owed as a professional, and causes injuiy or potential injury to a client, the public, or the legal system.’
“Recommendation
“46. The disciplinary administrator recommended that the respondent’s li cense to practice law be suspended for a period of 6 months. The disciplinary administrator further recommended tiiat the respondent undergo a reinstatement hearing, pursuant to Kan. Sup. Ct. R. 219, prior to consideration of reinstatement. The respondent recommended that his proposed plan of probation be adopted and that he be allowed to continue to practice, subject to the terms and conditions set forth in his proposed probation plan.
“47. The hearing panel shall not recommend that a respondent be placed on probation unless:
‘(i) the Respondent develops a workable, substantial, and detailed plan of probation and provides a copy of the proposed plan of probation to the Disciplinary Administrator and each member of the Hearing Panel at least fourteen days prior to the hearing on the Formal Complaint;
‘(ii) the Respondent puts the proposed plan of probation into effect prior to the hearing on the Formal Complaint by complying with each of the terms and conditions of the probation plan;
‘(in) the misconduct can be corrected by probation; and ‘(iv) placing the Respondent on probation is in the best interests of the legal profession and the citizens of the State of Kansas.’
Kan. Sup. Ct. R. 211(g)(3).
“48. In this case, the respondent failed to develop a workable, substantial, and detailed plan of probation as the proposed plan does not assure restitution to all victimized clients. By respondent’s own admission, he cannot identify all who may have lost funds to the office manager’s theft and, therefore, tire hearing panel concludes that die respondent cannot make aE injured clients whole. Further, the respondent’s proposal that he be allowed to accept two new personal injury cases per mondi is unworkable. The respondent first met witíi die practice supervisor die day before the respondent’s disciplinary hearing. It is tiierefore difficult to conclude diat die respondent put die proposed plan of probation into effect prior to die hearing on the formal complaint. Consequently, die hearing panel concludes tiiat placing the respondent on probation is not in die best interests of tire legal profession and die citizens of the State of Kansas.
“49. Based upon die joint stipulation, die findings of fact, the conclusions of law, and the Standards listed above, the hearing panel unanimously recommends tiiat die respondent be suspended for a period of diree months. The hearing panel also recommends that the respondent proactively try to determine the other checks tiiat he believes the former office manager negotiated witiiout autiiorization. The hearing panel recommends that the respondent immediately and before die oral argument before die Kansas Supreme Court, undergo a complete psychological evaluation and provide a copy of the report of die evaluation to the disciplinary administrator. The puipose of the evaluation should be to determine if die respondent suffers from a mental condition that materiaEy impairs his ability to represent clients. The hearing panel further recommends that prior to consid eration of reinstatement, the respondent be required to undergo a reinstatement hearing, pursuant to Kan. Sup. Ct. R. 219. During tire reinstatement hearing, the hearing panel recommends that the respondent be required to establish that his health and memory are sufficient to engage in the active and continuous practice of law. Finally, the hearing panel recommends that if the respondent is reinstated, that he be reinstated subject to the terms and conditions set forth in the respondent’s probation plan for a period of two years. The hearing panel also recommends that the respondent be required to complete a continuing legal education program on law practice management as a condition of probation.
“50. 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 the 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) (2013 Kan. Ct. R. Annot. 356). Clear and convincing evidence is “ ‘evidence that causes the factfinder to believe that “the truth of tire 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 filed exceptions to tire hearing panel’s final hearing report. More specifically, he took exception to the panel’s finding that he violated KRPC 1.3, KRPC 1.15, and KRPC 5.3. The respondent did not take exception to hearing panel’s factual findings, however. Instead, he admitted the facts as laid out in the report, although he asked that those facts be considered in light of several mitigating circumstances.
We will, therefore, segment our discussion of the hearing panel’s factual findings and its conclusions of law. Regarding the factual findings, the respondent’s admissions and our own review of the record lead us to conclude there is substantial competent evidence to support the panel’s findings. The respondent’s approach to the panel’s conclusions of law is more complicated.
As indicated, although respondent took exception to the panel’s conclusions that he violated KRPC 1.3, 1.15, and 5.3, his brief before this court is less clear; in fact, it is confusing and contradictory. On the one hand, the respondent “admits violations of the K.R.P.C.” Further, he enumerates only one issue: “What is the appropriate discipline to be imposed against Michael Peloquin?” He then argues that mitigating facts explain his violations. For example, respondent argues his lack of diligence and promptness in his representation of S.W. resulted from him having to deal with health issues and his lack of awareness of certain court requirements. He also explains that he failed to timely respond to the three letters from the Disciplinary Administrator regarding S.W.’s complaint because the post office committed a forwarding error. On the other hand, portions of respondent’s brief can be read as arguments that he did not violate any rules.
Regardless of whether we rely on the procedural insufficiencies of respondent’s briefing or on our independent review of the record, we reach die same conclusion: The record establishes by clear and convincing evidence that the respondent violated KRPC 1.3, 1.15, and 5.3.
The record fully supports the panel’s findings of misconduct
Regarding the violation of KRPC 1.3, the record clearly establishes that the respondent failed to act with reasonable diligence and promptness in representing his client S.W. in the expungement proceeding. Respondent admits there was a delay but argues that “some delays were not unreasonable,” and the delay in filing S.W.’s action was not unreasonable in light of his “health issues, problems with the post office, and the restitution delay in obtaining the orders of expungement.” We disagree with the suggestion that the delay encountered by S.W. was reasonable. Even if we accept that respondent’s health issues and the problem with the post office reasonably explain some of the delay, neither excuse—either independently or cumulatively—justifies the lengthy delay in this case. Despite respondent’s health issues, he was responsible for acting with reasonable diligence and promptness; consequently, if his health prevented him from getting the action on file, he should have advised S.W. Instead, respondent took no action for over 7 months after S.W. had paid the requisite fee. Then respondent filed the petition in the wrong court, failed to provide a sufficient number of copies when he subsequently filed the petition in the correct court, and apparently failed to take steps to promptly follow up once he thought there was a pending action. Because of his failure to prosecute the petition, he was oblivious to the fact the court had returned the petition or to the fact that the court’s mailing had not reached him because of a glitch with the post office. Given respondent’s lack of diligence, neither the health issues nor the problems with the post office can justify the lengthy delay encountered by S.W.
With regard to KRPC 1.15 and 5.3, the facts are clear and convincing that respondent did not properly supervise his office manager, he failed to keep a master list of clients, and he failed to keep proper accounting records. These failures resulted in unauthorized settlement negotiations, delays or omissions of deposits or disbursement of funds, and misappropriation of monies. Had respondent acted with the care of a “professional fiduciaiy” (see KRPC 1.15, Comment [1] [2013 Kan. Ct. R. Annot. 556]) and provided “appropriate instruction and supervision concerning the ethical aspects” of the office manager’s employment (see KRPC 5.3, Comment [1] [2013 Kan. Ct. R. Annot. 627]), the monetary losses may have been thwarted and certainly could be more accurately accounted for so that full restitution could occur. There is clear and convincing evidence that respondent violated KRPC 1.15 and 5.3.
Suspension is an appropriate discipline
The hearing panel recommended the respondent be suspended from the practice of law for a period of 3 months. In reaching this recommendation, the panel rejected the Disciplinaiy Administrator’s recommendation for a 6-month suspension and the respondent’s request for informal censure or probation. The panel concluded the respondent failed to develop a workable, substantial, and detailed probation plan. In large part, this was because re spondent failed to identify all who might be owed restitution. Further, respondent failed to implement the plan before the disciplinary hearing, instead meeting with his practice supervisor for the first time only the day before the panel’s hearing. Finally, the panel concluded tire plan was not in the best interests of the legal profession or the citizens of the state of Kansas. The panel recommended that respondent “immediately and before tire oral arguments before the Kansas Supreme Court, undergo a complete psychological evaluation and provide a copy of the report of the evaluation to tire disciplinary administrator.” The panel also recommended that before respondent could be readmitted to the practice of law, he must undergo a reinstatement hearing under Supreme Court Rule 219 (2013 Kan. Ct. R. Annot. 407) at which he must establish that he was sufficiently healthy to engage in the active and continuous practice of law. If respondent was reinstated, the panel recommended his reinstatement should be subject to the terms and conditions of respondent’s proposed probation plan for a period of 2 years and that he be required to complete a continuing legal education program on law practice management.
At the hearing before this court, at which the respondent appeared, Deputy Disciplinary Administrator Kimberly L. Knoll recommended that the respondent be indefinitely suspended. In part, Knoll based her recommendation on the respondent’s failure to provide evidence that he had undergone the psychological evaluation suggested by the hearing panel. Respondent preferred that he had completed an evaluation, but he explained that he did not understand that he could present additional evidence after the record before the panel hearing had closed. In rebuttal, Knoll pointed to this court’s practice of receiving affidavits from a respondent under Rule 211(g)(5) (2013 Kan. Gt. R. Annot. 356), which requires a respondent to file an affidavit with the Disciplinaiy Administrator and the Clerk of the Appellate courts establishing that the respondent has complied with terms of a proposed probation plan during the time between the panel hearing and oral argument before the Supreme Court.
But a psychological evaluation was not part of respondent’s proposed probation plan, and the hearing panel did not recommend probation. Hence, although we agree that the respondent would have been well served to have filed an affidavit, we conclude that the respondent’s view that the record was closed is not unreasonable. Rule 211 is ambiguous; our rules do not make it clear that an affidavit could be filed in these circumstances.
Knoll also suggested that a 3-month period of suspension is too short a period for respondent to effectively deal with any psychological issues. It would be unfair, she argued, to give respondent a false hope of being readmitted after so short a period of time. Her argument presupposes an outcome that might differ from the recommendations of the evaluators. In addition, we note that the hearing panel did not question the respondent’s fitness to practice law.
In weighing the respondent’s conduct and the ABA Standards for Imposing Lawyer Sanctions, we adopt the hearing panel’s recommendation. See ABA Compendium of Professional Responsibility Rules and Standards (2012); In re Woodring, 289 Kan. 173, 180, 186, 210 P.3d 120 (2009) (discussing and applying ABA Standards). We agree with the hearing panel’s conclusions that respondent failed to develop a workable, substantial, and detailed probation plan; the respondent’s probation plan was not in effect at the time of the panel hearing; and it was not in the public’s best interests. We, therefore, reject respondent’s request that we place him on probation. We unanimously adopt the hearing panel’s recommendation that the respondent be suspended from the practice of law for 3 months from the date of this opinion. Respondent may then petition for reinstatement under Rule 219. If respondent seeks reinstatement in the future, he will be required to produce reasonably contemporaneous reports from physical and mental health professionals describing his compliance with any treatment recommendations and supporting his petition for reinstatement. Further, respondent’s reinstatement panel should investigate and develop recommendations for the court on whether any period of respondent’s future law practice should be supervised. In addition, in order to achieve any future reinstatement, the respondent must be in compliance with CLE requirements and should have completed one or more programs in law office management. Finally, the reinstatement panel should evaluate whether the respondent has taken all appropriate steps to identify all clients to whom restitution is owed for the misappropriation of funds. In imposing this requirement, the court recognizes the possibility that all losses may never be ascertained. Nevertheless, respondent must make a reasonable effort to determine whether there are any unreported losses. The reinstatement panel should also evaluate whether respondent has developed a plan of restitution for all identified clients.
Conclusion and Discipline
It Is Therefore Ordered that Michael Peloquin be suspended from the practice of law in the state of Kansas for a period of 3 months effective on the filing of this opinion in accordance with Supreme Court Rule 203(a)(2) (2013 Kan. Ct. R. Annot. 300).
It Is Further Ordered that the respondent shall comply with Supreme Court Rule 218 (2013 Kan. Ct. R. Annot. 406) and, in the event of his filing a petition for reinstatement, shall be subject to a reinstatement hearing under Rule 219.
It Is Further Ordered that the costs of tírese pi'oceedings be assessed to the respondent and that this opinion be published in the official Kansas Reports.
Michael J. Malone, Senior Judge, assigned. | [
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Knudson, J.:
The respondent, Kenneth R. Johnson, Inc., and its insurance carrier, General Casualty (hereinafter collectively “Johnson”), appeal from the final order of Kansas Workers Compensation Board (Board), contending the injuries of Chad D. Ridnour, claimant, did not arise out of and in the course of his employment. Respondent challenges the sufficiency of the evidence to support the Board’s findings and its construction of K.S.A. 2004 Supp. 44-508(f).
The following question is raised on appeal: (1) Does the “going and coming” rule codified in K.S.A. 2004 Supp. 44-508(f) preclude an award of benefits to the claimant? The answer is “no,” and the Board’s order is affirmed.
The Underlying Circumstances
On August 15, 2001, Ridnour was injured in a traffic accident. At the time, Johnson employed Ridnour as an operations and warehouse manager. He was responsible for supervising a five-man crew at the Kansas City warehouse. He was also responsible for setting up operations and training employees at alternative locations in Texas, North Carolina, and California. Additionally, he worked outside the warehouse originating sales.
The morning of the accident, Ridnour had arranged for his crew to begin work at the warehouse at 7 a.m., an hour earlier than usual. He arrived at the warehouse at approximately 6:45 a.m., where members of his crew were waiting for him to let them into the warehouse. When he attempted to open the doors of the warehouse he realized he had left his keys at home. Although other employees with keys to the warehouse were likely to arrive within an hour, Ridnour decided to run home and get his keys because his crew members were hourly employees and were being paid even though they could not get into the warehouse. Ridnour left the warehouse, drove to his house, and retrieved the appropriate keys. On his way back to the warehouse, he was struck by another vehicle.
The administrative law judge (ALJ) concluded the going and coming rule did not exclude Ridnour from receiving an award. The ALJ specifically found that Ridnour “was not on his way to assume the duties of his employment, rather [he] had arrived at his duty station and departed on an errand on [his employer s] behalf to secure keys to unlock the building.”
The Board agreed with the ALJ, concluding that the going and coming rule did not exclude Ridnour from an award. The Board found “[t]he sole purpose of [Ridnour s] trip was a business errand and it is conceded [Ridnour] had authority to run such errands.”
Standard Of Review
An appellate court’s review of a decision from the Board is governed by the Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq. Under K.S.A. 77-621, appellate review is explicitly limited to questions of law. Under the issues presented by appellant, our review of the Board’s decision is limited to determining whether: (1) the Board has erroneously interpreted or applied the law; (2) the Board’s actions were based on facts not supported by substantial evidence; (3) the Board’s action were otherwise unreasonable, arbitrary, or capricious. See K.S.A. 77-621(c)(4), (7), (8).
Although the interpretation of statutory provisions in the Workers Compensation Act (Act) is a question of law subject to de novo review, an appellate court will still employ the doctrine of operative construction. Under this doctrine, the Board’s interpretation of the law is entitled to judicial deference, and if there is a rational basis for the Board’s interpretation, it should be upheld upon judicial review. However, the Board’s determination on questions of law is not conclusive and, though persuasive, is not binding on the court. Moreover, the party challenging the Board’s interpretation bears the burden of proving its invalidity. Foos v. Terminix, 277 Kan. 687, 692-93, 89 P.3d 546 (2004).
Discussion
An employer is liable to pay compensation to an employee for an injury “arising out of’ and “in the course of employment.” K.S.A. 44-501(a); Kindel, 258 Kan. 272, Syl. ¶ 2. However, according to K.S.A. 2004 Supp. 44-508(f), an injury suffered by an employee while on the way to assume work duties is not an injury arising out of and in the course of employment. This is known as the “going and coming rule.” See Brobst v. Brighton Place North, 24 Kan. App. 2d 766, 773, 955 P.2d 1315 (1997).
Kansas case law has recognized several exceptions to the going and coming rule. One such exception provides that “injuries incurred while going and coming from places where work-related tasks occur can be compensable where the traveling is . . . required in order to complete some special work-related errand or special-purpose trip in die scope of the employment.” Brobst, 24 Kan. App. 2d at 774.
In the present case, the Board found Ridnour’s injuries were compensable under this exception. Specifically, the Board found that “[t]he sole purpose of [Ridnour’s] trip was a business errand and it is conceded [Ridnour] had authority to run such errands.” The Board, therefore, found his injuries arose out of and in the course of his employment.
The appellants argue the Board ignored facts relevant to Ridnour’s return to home and events that occurred before the date of the accident. The appellants draw attention to Ridnour’s love of riding his motorcycle and a recent rally he attended in Sturgis, South Dakota. The appellants noted Ridnour had requested to leave work early the day before the accident because he still had Sturgis on his mind and wanted to take a ride on his motorcycle to get his head on straight. The appellants suggest Ridnour’s com ing to work without his keys gave him a non-work-related excuse to ride his motorcycle.
This argument is not persuasive on appeal. The issue on appeal is whether there is substantial competent evidence to support the Board’s findings, not whether there exists other evidence that might have persuaded the factfinder to a contrary conclusion. Moreover, Johnson is attacking the credibility of witnesses. Under the KJRA, the appellate court does not reweigh the credibility of witnesses. Webber v. Automotive Controls Corp., 272 Kan. 700, 703, 35 P.3d 788 (2001).
Johnson further argues the Board ignored the fact Ridnour had never arrived at work before he decided to return home for his keys. Thus, under the going and coming rule, his injury is not compensable. The difficulty with Johnson’s assertion on appeal is that the Board made contrary findings based on credible competent evidence. The Board specifically found:
“[Ridnour] arrived at the work site and discovered that he had forgotten to bring the keys necessary to get into the building and begin work. It is undisputed [Ridnour] had the authority to run business errands or send his employees on such errands. Because his crew had arrived early and were being paid [Ridnour] felt it was his duty to get the keys so he could get his crew into the building to work. The only reason [Ridnour] returned home was to get tire keys to the building so he could open it for his crew that had arrived at work early that day. The sole purpose of the trip was clearly a business errand.”
In support of the argument Ridnour had never arrived at work when the accident occurred, Johnson cites Chapman v. Victory Sand & Stone Co., 197 Kan. 377, 381-82, 416 P.2d 754 (1966); Tate v. City of Junction City, 32 Kan. App. 2d 832, 841, 90 P.3d 359 (2004); and Munoz v. Stormont Vail Regional Medical Center, Workers Compensation Board docket number 234,757 (2000).
In Chapman, an employee was killed just outside the entrance of the gravel plant where he worked as a truck driver. The employee was on his way to work in his own automobile on a public road when a train struck his automobile. The employee’s estate contended that the plant was hable under the Act because the plant had dominion and control over the access road and railroad crossing where the employee was killed. The Supreme Court up held the district court’s conclusion that the employee’s injuries were not compensable under the Act, determining the employee had died on a public road over which the plant did not exercise control. The Supreme Court concluded the employee was not under his employer’s control, but still on his way to assume his duties; therefore the going and coming rule applied. 197 Kan. at 381-82.
Johnson contends Chapman applies because in Chapman the court held “an employee is not deemed to have ‘arrived’ at work merely because he enters tire proximity of the workplace.” Johnson explains: “In Chapman, the Claimant was on his way to assume the duties of his employment when he met his death, just as [Ridnour] was on his way to assume his duties here when he had the accident.”
However, the facts and issues at the center of Chapman and the present case are distinct. Although the Chapman court addressed the issue of whether the going and coming rule applied, it was not concerned with whether the special work-related errand or special-purpose trip exception applied. Instead, the court found that the claimant in Chapman was not entitled to an award because his employer did not exhibit control over him, based on his physical location. The court did not address the business errand exception in Chapman. Furthermore, as the Board noted, Ridnour was authorized to conduct business errands outside the proximity of the warehouse.
In Tate, the court upheld the Board’s decision that the employee’s injuries were not compensable under the going and coming rule. There, the court found the emergency services exception did not entitle the employee to benefits. The court also rejected the exception applicable to an injury occurring during travel that is a substantial part of the service. 32 Kan. App. 2d at 841; see Estate of Soupene v. Lignitz, 265 Kan. 217, 225, 960 P.2d 205 (1998) (finding a volunteer firefighter who has no set hours of employment, but is instead on call, assumes his duties when he receives an emergency call and begins to respond).
In Tate, the employee was a city worker who was killed in a single-car accident on his way to voluntarily work overtime for the city as a snowplow operator. The Board determined expectations and duties of emergency service workers are distinct from those of a city employee who volunteers to work overtime. As such, the Board found the emergency service exception to the going and coming rule did not apply. Furthermore, this court found there was substantial competent evidence to support the Board’s findings and “these findings were sufficient to conclude [the employee’s] death did not come within the Soupene exception.” 32 Kan. App. 2d at 841.
Johnson argues the holding in Tate is applicable because Ridnour was acting as a volunteer; he unilaterally decided to return home for the keys. Johnson’s argument overlooks tire findings of the Board and the distinguishing circumstances in Tate. In Tate, the court focused on the nature of the city employee’s employment and whether his duties as a snowplow operator fit within the emergency services exception or required an urgent response. 32 Kan. App. 2d at 839, 841. Unlike the present case, the Tate court did not address the validity of the business errand exception, which focuses on the purpose served by an employee’s errand or trip.
Finally, Munoz is inapplicable. First, Munoz is not an appellate decision. It is an unpublished decision from the Board, which has no binding effect on this court. See Taco Bell v. City of Mission, 234 Kan. 879, 892, 678 P.2d 133 (1984) (“An unpublished decision of a district court has no binding effect on this action except for its persuasive value.”). Furthermore, it is factually distinguishable because, unlike this case, the Board found the employee “was engaged in personal endeavors and was not performing duties in furtherance of respondent’s business activities.” Munoz, docket number 234,757.
Johnson next argues Ridnour could not have been on a business errand because he was not directed to return home to retrieve the keys. Johnson presented evidence that other employees would have arrived with keys to unlock the door and the company received no benefit as a result of Ridnour leaving the plant and returning home to obtain keys.
However, the Board explained why it was irrelevant whether Ridnour’s supervisor would have instructed him to retrieve the keys or wait for another worker with keys to arrive. The Board found Ridnour was operating under the assumption that he should get the workers into the warehouse as soon as possible since they were already getting paid. The Board stated: “The sole purpose of [Ridnour s] trip was a business errand and it is conceded [Ridnour] had authority to run such errands.” The Board concluded Ridnour s injuries “arose out of and in the course of his employment.” We agree. As stated in Brobst, the issue is whether the traveling is either (a) intrinsic to the profession or (b) required in order to complete some special work-related errand or special-purpose trip in the scope of employment. 24 Kan. App. 2d at 774. Here, regardless of how ill-advised the trip may have been, Ridnour returned home to retrieve the keys, get the warehouse opened, and get the men to work who were already on the clock. That such action was within the scope of his authority is supported by the Board’s findings.
Johnson next redirects his legal argument to whether the Board correctly interpreted K.S.A. 2004 Supp. 44-508(f). Johnson contends 44-508(1) requires that for a trip to constitute a business errand it must be expressly employer-directed, citing Tompkins v. Rinner Construction Co., 194 Kan. 278, 284-85, 398 P.2d 578 (1965); Repstine v. Hudson Oil Co., 155 Kan. 486, 488, 126 P.2d 225 (1942); and Woodring v. United Sash & Door Co., 152 Kan. 413, 418, 103 P.2d 837 (1940). We have considered the holdings in each of the cited cases and find no support for Johnson’s argument. Moreover, the argument ignores the Board’s findings that the sole purpose of Ridnour’s trip was a business errand and the employer’s acknowledgment he had the authority to run similar errands.
Conclusion
We hold there is substantial competent evidence to support the Board’s findings that Ridnour was on a business errand when the accident occurred and that his resulting injuries are compensable under the Act. We further hold the Board’s interpretation of K.S.A. 2004 Supp. 44-508(f) is consistent with Brobst and entitled to deference.
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Hill, J.:
In this case Patrick C. Neal punched his rape victim in the face several times. As a result, he was convicted of aggravated battery as well as rape. He now seeks to overturn the aggravated battery conviction. Because a single offense may not be divided into separate parts and the striking of the victim here occurred during a continuous series of events, we reverse Neal’s conviction for aggravated battery.
We also examine other claimed trial errors of improper rebuttal testimony, prosecutorial misconduct during closing argument, and cumulative trial error, but we reject them.
Case History
This crime was committed in Lawrence. The victim, D.G., agreed to give Neal a ride home from a bar in June 2003. On the way, they stopped at a Kwik Shop to use the restroom and get gas. When they arrived at Neal’s apartment, he asked D.G. to give him a “stand-up hug.” D.G. got out of the car and gave Neal a hug. According to D.G., Neal lifted her off of the ground and carried her into a grassy area on the side of the apartment building where it was more concealed from the street. He then pinned her on the ground and raped her. D.G. testified that during the rape, Neal choked her and punched her in the face. D.G. denied consenting to the sexual encounter and fought her assailant with all the might she could muster. After she was allowed to leave, D.G. drove to the first open place she could find — a Walgreens drugstore — and told the clerks she needed help.
Neal’s version of the events differs. He contended that they went to his apartment to “hang out with each other.” According to Neal, the sexual activity was consensual. But when D.G. bit him on the shoulder, he “lost [his] temper” and hit D.G. in the face three times and grabbed her around the neck.
A jury convicted Neal of rape and aggravated battery. He was acquitted of aggravated sodomy and aggravated kidnapping charges. The district court sentenced Neal to 267 months for rape and a concurrent 12 months for aggravated battery.
Multiplicity
Neal argues that his aggravated battery and rape convictions are multiplicitous because the force that formed the basis of his aggravated battery conviction was the same force the State used to support his rape conviction. Multiplicity is a term Kansas courts use to describe the illegal practice of prosecuting a single wrongful act as several crimes.
Our rule of review is clear. “Whether convictions are multiplicitous is a question of law subject to unlimited review. [Citation omitted.]” State v. Groves, 278 Kan. 302, 304, 95 P.3d 95 (2004). While Neal failed to raise the multiplicity issue at trial, a claim of multiplicity may be raised for the first time on appeal when necessary to serve the ends of justice and prevent a denial of fundamental rights. 278 Kan. at 303-04.
“ ‘ “Multiplicity is the charging of a single offense in several counts of a complaint or information. The reason multiplicity must be considered is that it creates the potential for multiple punishments for a single offense in violation of the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution and section 10 of the Kansas Constitution Bill of Rights.” ’ [Citation omitted.]” Groves, 278 Kan. at 304.
This means that the State may not split a single offense into separate parts where there is a single wrongful act which does not furnish the basis for more than one criminal prosecution. However, where the criminal conduct of the defendant supports convictions for more than one crime, K.S.A. 21-3102 provides statutory au thority for multiple convictions even though the criminal conduct of a defendant consists of a single transaction. State v. Mincey, 265 Kan. 257, 262, 963 P.2d 403 (1998).
“ ‘[U]nder Kansas law, crimes are multiplicitous where: (1) the crimes merge, that is, they constitute a single wrongful act, and the same evidence is required to prove both crimes; but if each offense requires proof of a fact not required in proving the other, the offenses do not merge; and (2) one offense is an included offense of the other as provided under K.S.A. 21-3107(2). As a result, the defendant’s convictions must be analyzed not only under the traditional elements test as set forth in [State v. Garnes, 229 Kan. 368, 372-73, 624 P.2d 448 (1981),] but also under the legislative test for determining whether one offense is an included offense of the other.’ [Citation omitted.]” State v. Winters, 276 Kan. 34, 42, 72 P.3d 564 (2003).
Neal maintains that because, under the State’s theoiy, the rape and aggravated battery were “one continuing unbroken act of force,” the convictions are multiplicitous.
Analysis
Whether Neal’s convictions are multiplicitous depends to a great extent on the facts. Neal testified that the entire encounter lasted 15-25 minutes. But when D.G. bit him on the shoulder, he “lost [his] temper.” Neal claimed he grabbed the back of D.G.’s necklace and pulled her down; she then slapped him. Neal “got mad” and hit her. Neal admitted that he hit D.G. in the face three times but claims that during this, D.G. began hitting him back. Neal admitted to grabbing D.G. around the neck when she bit him to calm her down and stop her from hitting him. According to Neal, the batteiy was “[f]airly quick” and then he felt bad and apologized. His attorney argued to the juiy that Neal may be guilty of batteiy, but not rape.
On the other hand, D.G. testified that Neal carried her into the grassy area on the side of the apartment building and dumped all of his weight on her body, pinning her down on the ground. Because she was screaming, Neal wrapped his right hand around her throat and squeezed so she would stop. He then pulled her pants off and ripped off her underwear. Every time Neal would take his hands off of D.G.’s neck, she would scream. According to D.G., Neal “started sticking his fingers in [her] vagina” and she started screaming so he “grew very angry that [she] was screaming” and hit her in the eye with a closed fist.
Neal again inserted his fingers into D.G.’s vagina; she screamed and tried to fight back. Neal pulled his right hand back in a clenched fist and said, “ ‘Do you want me to beat you again?’ ” He then continued raping D.G. and had his hands around her throat and slammed her head into the ground several times. D.G. testified that she lost consciousness twice because Neal was squeezing her throat so tightly. According to D.G., at one point Neal turned her over and made her get on her hands and knees. Neal then inserted something into D.G.’s vagina and anus.
D.G. testified that she distinctly remembered Neal hitting her in the face at least twice. When asked by the State what Neal was doing prior to hitting her, she said, “[H]e had his hands inside of me.” According to D.G., after a while Neal stopped attacking her. Neal then asked D.G. if she wanted to get into his car with him. D.G. told him that she had to pick up her roommate, gathered her clothes, and ran to her car. D.G. denied consenting to any sexual activity with Neal.
Because the jury convicted Neal of rape, we conclude that the jury believed D.G.’s version of the events. This court does not reweigh evidence or redetermine the credibility of witnesses. State v. Mays, 277 Kan. 359, 363, 85 P.3d 1208 (2004). Under D.G.’s version, the rape and battery appear to have been a continuous series of events.
Our Supreme Court has stated that the only remaining test for multiplicity is the common-law elements test. State v. Schuette, 273 Kan. 593, 601, 44 P.3d 459 (2002). Under the elements test, crimes are multiplicitous where all the “elements of the lesser crime are identical to some of the elements of the crime charged.” K.S.A. 2004 Supp. 21-3107(2)(b). But, in Groves, the court cautioned that the lesser included analysis under K.S.A. 21-3107 does not affect the single act of violence paradigm concerning multiplicity. 278 Kan. at 305.
In Groves, the defendant grabbed the victim’s purse in a parking lot. During the struggle, the victim was thrown to the ground, suffering a fractured sacrum. The jury convicted Groves of aggravated robbery and aggravated battery. Groves appealed, arguing his convictions were multiplicitous because they arose out of the same act of violence. Groves, 278 Kan. at 303.
The court stated: “Kansas has recognized some form of the "single act of violence’ paradigm for years. [Citation omitted.]” 278 Kan. at 307. Therefore, tire court determined that, under the specific facts of the case, dre single act of violence test applied and controlled, “especially since the pushing down and purse robbing did not just occur at "approximately tire same time and place,’ but apparently they were both virtually contained in one physical motion.” 278 Kan. at 307.
An earlier example is found in State v. Cathey, 241 Kan. 715, 741 P.2d 738 (1987), where Cathey and his brother beat and shot the victim, believing he had beaten their brother. Cathey was convicted of aggravated battery and attempted murder but appealed, arguing his convictions were multiplicitous. The court examined the case and held:
“Where there is only one victim and two acts of violence — a beating and a shooting — occurring at approximately die same time and place, the person who inflicts such injuries cannot be charged with both aggravated battery and attempted murder. To hold otherwise would be inconsistent with our reasoning in Games that when a series of violent acts occurs simultaneously, it is multiplicitous to charge both aggravated battery and attempted first-degree murder.” 241 Kan. at 719-20.
In State v. Garnes, 229 Kan. 368, 372-74, 624 P.2d 448 (1981), the court had determined an aggravated battery conviction was not multiplicitous with an attempted murder conviction because the shooting that supported the aggravated battery conviction occurred at an earlier time and place. The shooting was a separate and distinct act from the stabbing, running over, and abandoning that later occurred in a different location. However, since the stabbing, which supported the aggravated battery conviction, occurred simultaneously with the running over of the victim and abandoning her, the aggravated battery by stabbing conviction was multiplicitous with tire attempted murder conviction. 229 Kan. at 372-74.
The batteiy and rape here are similar to the beating and shooting in Cathey. Here, there was only one victim and two technical acts of violence — rape and battery — occurring at approximately the same time and place. As in Cathey and Games, the rape and battery appear to be violent acts occurring simultaneously and the perpetrator cannot be charged with and convicted of both crimes.
But we cannot stop there. Not only the sequence of events must be considered in analyzing multiplicity. In State v. Perry, 266 Kan. 224, 230, 968 P.2d 674 (1998), the defendant beat the victim into unconsciousness and then shot her. He was convicted of aggravated batteiy and attempted first-degree murder. Perry appealed, arguing that his convictions were multiplicitous because there was only one single criminal act. Our Supreme Court stated that in analyzing whether there were two distinct criminal acts, it must consider the State’s complaint, the jury instructions, and the evidence presented at trial. Because the State’s charging document did not distinguish between the beating and shooting, the jury instructions did not require the jury to distinguish between the pistol whipping and the shooting, and the evidence did not indicate distinct acts, the convictions were multiplicitous. Thus, the court reversed the aggravated battery conviction because it could not be said that the convictions did not arise out of a single wrongful act. 266 Kan. at 230.
The State argues that the victim’s testimony, medical testimony, and photographic exhibits establish that Neal went far beyond the force used to accomplish rape. Yet, the same act of violence, which could include throwing the victim to the ground, choking her, punching her, and slamming her head into the ground, has been used to prove both crimes. There was no distinction made in the charging document or jury instructions about what acts of violence constituted the force or fear to support the rape charge versus what acts constituted the great bodily harm to support the aggravated battery charge. The verdict forms provide no distinction. Likewise, the evidence presented at trial does not indicate that the convictions for rape and aggravated battery did not arise out of a single wrongful act. Therefore, when we apply the single act of violence paradigm, the facts of this case lead us to conclude that Neal’s convictions for rape and aggravated batteiy are multiplicitous.
Furthermore, an additional problem with the State’s argument that the battery went “far beyond the force used to accomplish rape” is its imprecision. How much force is necessary to rape some one? By what gauge do we measure violence? Is not each victim unique? This was a horrible crime committed with great continuous violence during its entire course; therefore, the application of single act of violence paradigm is appropriate here.
We now turn to Neal’s other claimed errors.
Rebuttal Testimony
Neal contends the admission of D.G.’s rebuttal testimony about her overbite violated his right to a fair trial, arguing that her testimony was cumulative and provided no specialized guidance for the jury.
Neal’s theory of defense was that he and D.G. had a consensual sexual encounter that escalated into battery when D.G. bit him on the shoulder. Neal also testified that D.G. playfully bit his arm while they were dancing at the bar before D.G. gave him a ride home. D.G. testified in the State’s case in chief that Neal had informed her that some girl was joking with him in the bar and bit him.on the shoulder. The defense offered into evidence two photographs taken by police officers that depict bite marks on Neal’s right shoulder and right arm. According to a detective’s report, Neal said the bite marks were from “[s]ome girl at the bar.”
Following the defense’s case presentation, the State called D.G. as a rebuttal witness to testify regarding the bite marks. Over defense objection, the court allowed D.G.’s testimony for the limited purpose of “allowing her teeth to be shown and explaining] her teeth to the jury” because the State did not have prior notice of testimony regarding the bite marks.
During rebuttal, D.G. testified that during the sixth and seventh grade, she had braces. After the braces were removed, she was supposed to wear a retainer but did not. Because of this, D.G. has “quite a pronounced overbite.” According to D.G., she had observed “something” that she had bitten in the past, and her overbite appeared very evident. D.G. testified that the bite marks in the photographs are not consistent with her bite pattern. D.G. showed her overbite to the jury.
Upon cross-examination, D.G. admitted she had not visited with any experts to determine if the particular bite marks in the pho tographs matched her bite. Her testimony was simply based on her experience.
Neal erroneously contends that rebuttal evidence must come from a new, independent source. But rebuttal evidence need not be from a different source. See State v. Synoracki, 253 Kan. 59, 65, 853 P.2d 24 (1993). Moreover, contrary to Neal’s assertion, D.G. did not specifically testify in rebuttal that she did not bite Neal. Although this assertion could be inferred from her testimony that the bite marks were inconsistent with her overbite, D.G’s testimony could not be considered cumulative because it did not restate facts provided in her original testimony.
Next, Neal contends the State’s questioning of whether D.G.’s bite pattern was consistent with the photographs was contrary to K.S.A. 60-456 and violated his right to a fair trial. According to Neal, this testimony was erroneous because “the State presented no testimony to suggest that D.G. had any sort of specialized training or knowledge of bite pattern analysis that would allow her to better compare her teeth to the exhibits.”
D.G.’s testimony both contradicted Neal’s testimony and corroborated her earlier testimony. The State is not required to anticipate defense testimony and provide anticipatory witness testimony in its case in chief. See State v. Willis, 240 Kan. 580, 583, 731 P.2d 287 (1987). A witness is not precluded from corroborating his or her prior testimony during rebuttal. See Synoracki, 253 Kan. at 65. As such, it cannot be said the trial court abused its discretion in the admission of D.G.’s rebuttal testimony. See State v. Hayes, 239 Kan. 443, 445-46, 720 P.2d 1049 (1986) (not improper for State to call witness to rebut defense witness’ testimony of trauma in forcible rape cases when case in chief limited to specific circumstances of rape case).
Primarily, Neal maintains that D.G. was an improper lay witness. Again, the admission of evidence lies within the discretion of the trial court. “If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. One who asserts that the court abused its discretion bears the burden of showing such abuse of discretion. [Citation omitted.]” State v. Jenkins, 272 Kan. 1366, 1378, 39 P.3d 47 (2002).
K.S.A. 60-456 allows lay opinions if the court finds them rationally based on the witnesses’ perceptions:
“(a) 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.”
A lay witness may testify regarding external appearances and manifest medical conditions readily apparent to anyone. Hiatt v. Groce, 215 Kan. 14, 21, 523 P.2d 320 (1974). Therefore, D.G. was competent to testify that she had an overbite as a result of not wearing a retainer. Furthermore, it was reasonable for her during rebuttal to provide her opinion regarding the comparison of the bite marks in the photographs with her own bite, which she had observed on previous occasions. There is no error here.
Misconduct During Closing
Neal claims the following statements made by the prosecutor in his closing argument amount to prosecutorial misconduct:
“When we first started this case, when we did jury selection, I asked each of you — actually as a group, all thirty-six of you at that time — do you know what a rapist looks hice. Now, Mr. Miller would have you think that [D.G.] should have known better when she was at the Kwik Shop, because by that time Patrick Neal was already putting his hands on her.
“She knew him as ‘Chris’ at that time. Chris was putting his hands on her. And she should have known better than to give this guy a ride home the rest of the way unless she was ready to have sex with him, because she could have gotten away from him at the Kwik Shop.
“But, ladies and gentlemen, you didn’t know what a rapist looked like before we started this trial. And until June 6th of 2003, [D.G.] didn’t know either. She didn’t know what awaited her in the dark comer of the parking lot of the defendant’s apartment complex.
“If she had it to do over, would she do it differendy? You can think about that ah you want. You didn’t know what a rapist looked like, but Mr. Miller would expect for [D.G.] to know at the Kwik Shop at 6th and Kasold.
“She didn’t know what a rapist looked like until June 6th of 2003. But now I submit to you, ladies and gendemen, you know a rapist—
“MR. MILLER: Objection, Judge. From what he looks like, is that what she’s saying?
“MS. WILSON: No, it’s not.
“THE COURT: All right. Clarify that, please.
“MS. WILSON: You know a person who has committed the crime of rape. The person is in this courtroom. You’ve been looking at him for two-and-a-half days. This defendant is guilty of the crime of rape, of the crime of aggravated kidnapping, the crime of aggravated criminal sodomy, and the crime of aggravated battery.”
Reversible error based on prosecutorial misconduct must show the alleged error denied the defendant his or her right to a fair trial under the Fourteenth Amendment. State v. Davis, 275 Kan. 107, 121-22, 61 P.3d 701 (2003). A two-step process is used to analyze allegations of prosecutorial misconduct. First, we must decide whether the comments were outside the wide latitude for language and manner that a prosecutor is allowed when discussing the evidence. The second step requires the court to decide whether the prosecutor’s remarks constitute plain error, i.e., whether the statements are so gross and flagrant as to prejudice the jury against the defendant and deny the defendant a fair trial, requiring reversal. Davis, 275 Kan. at 121.
Factors to consider under the second step are whether the comments show ill will by the prosecutor, whether the evidence against the defendant was so overwhelming that the prosecutor’s misconduct had little or no likelihood of having changed the result of the trial, and whether the trial court sanctioned the comment. State v. Scott, 271 Kan. 103, 115, 21 P.3d 516, cert. denied 534 U.S. 1047 (2001).
Each case is scrutinized on its own particular facts in light of the record as a whole to determine whether the misconduct is so prejudicial as to deny the defendant a fair trial. See State v. McCorkendale, 267 Kan. 263, 979 P.2d 1239 (1999).
In determining whether the first prong of the test is satisfied, this court must remember that the prosecution is given wide latitude in language and in manner of presentation as long as the argument is consistent with the evidence. Scott, 271 Kan. at 114. Where a trial court sustains an objection to a prosecutor’s comments during closing argument, grounds for assertion of error do not remain unless the remarks are so prejudicial as to be incurable. State v. Webber, 260 Kan. 263, 286-87, 918 P.2d 609 (1996), cert. denied 519 U.S. 1090 (1997). In this case, Neal’s objection was essentially sustained by the trial court. However, the court did not admonish the jury to disregard the prosecutor’s statements. See State v. Washington, 275 Kan. 644, 672, 68 P.3d 134 (2003) (instance of alleged misconduct disregarded when trial court admonished jury). Thus, this court cannot dismiss Neal’s argument of alleged misconduct; therefore, it must be determined whether the statements were so prejudicial as to be incurable.
Neal compares tire prosecutor’s comments in this case to closing arguments in State v. Scott, 271 Kan. at 113-14, and State v. McCray, 267 Kan. 339, 344-47, 979 P.2d 134 (1999). In Scott, the prosecutor stated during closing argument, “Yeah, you have about eight feet separating you from the hands of a killer right here.” 271 Kan. at 114. The court determined that calling Scott a “killer” was improper because the word is inflammatory and its use was outside the scope of evidence upon which a prosecutor is permitted to comment. Because there was also no evidence of ill will on the part of the prosecutor, the court determined the comment was not so gross and flagrant as to have denied Scott a fair trial. 271 Kan. at 115.
In McCray, among many other complained-of comments, the prosecutor stated during closing argument:
“ ‘Someone is responsible for the murder of Onzie. Somebody is, and that somebody, ladies and gentlemen, is only feet from you. That someone as you know is Damon LaShawn McCray. Look at him, ladies and gentlemen, you have to look at him. That’s what a murderer looks like, ladies and gentlemen.’ ” McCray, 267 Kan. at 347.
The court held that the prosecutor’s statements constituted error because it is improper for a prosecutor to inject his or her personal opinion of the defendant’s guilt. 267 Kan. at 347. However, as in Scott, the court found that the prosecutor’s numerous improper statements had little, if any, likelihood of having changed the result of the trial. 267 Kan. at 351.
The statement, “But now I submit to you, ladies and gentlemen, you know a rapist,” is quite comparable to the improper statements in Scott and McCray. It seems from this statement the prosecutor was insinuating that the jury knew what a rapist looked like from looking at Neal. However, unlike the prosecutor in Scott calling the defendant a “killer” and the prosecutor in McCray specifically stating that the defendant was what a “murderer look[ed] like,” the prosecutor here did not specifically call Neal a “rapist.” Rather, it seems defense counsel’s objection halted the prosecutor’s improper comments.
The prosecutor’s comment, “you know a rapist,” was outside the considerable latitude allowed in discussing the evidence, but Neal has failed to establish that the closing argument was so gross and flagrant that it denied him a fair trial. No ill will on the prosecutor’s part is evidenced by the statements. The prosecutor appears to be responding to defense counsel’s assertion that D.G. could have left Neal at the Kwik Shop if she had any reservations. The comments constitute only a few lines in a trial transcript of over 1,200 pages.
The evidence in this prosecution is horrific. The State presented 68 exhibits during a 2-day trial, which corroborated D.G.’s testimony. The officer who first reported to Walgreens testified that D.G. appeared to have suffered quite a bit of trauma and was terrified when he took her back to the apartment building. Numerous photographs were admitted showing the physical injuries D.G. suffered. D.G.’s tom and muddy jeans, underwear, and bra were admitted into evidence. Likewise, D.G.’s artificial nails that were ripped off during the struggle were admitted. An officer testified D.G.’s underwear and fingernails were found in the area outside the apartment building.
Furthermore, Lori Tilson, a sexual assault nurse examiner, testified that D.G. exhibited general swelling and redness of the labia majora and minora consistent with blunt trauma. According to Til-son, D.G. suffered potentially life-threatening injuries, which were consistent with her story. Additionally, a forensic scientist and biologist for the KBI testified that tests revealed sperm on both the rectal and vaginal swabs of D.G. DNA tests of the sperm on D.G.’s vaginal swab matched the DNA tests of Neal’s sperm.
We do not think that the comments denied Neal a fair trial.
Cumulative Error
Neal’s final issue on appeal alleges that cumulative error deprived him of a fair trial.
“Cumulative trial errors, when considered collectively, may be so great as to require reversal of the defendant’s conviction. The test is whether die totality of circumstances substantially prejudiced dre 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.” ’ [Citations omitted.]” State v. Kirby, 272 Kan. 1170, 1191-92, 39 P.3d 1 (2002).
In this case, the only error requiring reversal is the multiplicity of Neal’s convictions. D.G.’s rebuttal testimony was not improperly admitted, and the prosecutor did not commit reversible misconduct in her closing argument. Thus, there is no trial error, cumulative or otherwise, that would require reversal of Neal’s rape conviction.
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Gardner, J.:
On October 24, 2000, a jury determined Cecil Emerson was a sexually violent predator. His appointed counsel filed a timely notice of appeal but failed to file a brief, thus Emerson’s appeal was dismissed. Nearly 12 years later, the district court granted Emerson’s motion to file a direct appeal out of time. This case asks whether we have the power to hear Emerson s untimely appeal and, if so, whether the jury’s verdict finding him to be a sexually violent predator should be upheld. We answer both questions in the affirmative.
Procedural background
Emersons trial
In August of 1999, the State filed a petition seeking to commit Cecil Emerson for care and treatment as a sexually violent predator. At Emerson’s jury trial, the parties stipulated Emerson had the following prior convictions: (1) lascivious acts with a child in 1975; (2) indecent liberties with a child in 1981; and (3) sexual exploitation of a child in 1990. The 1975 and the 1981 convictions involved sexual contact with two 9-year-old girls, and the 1990 conviction involved sexual contact with a 15-year-old girl.
The State presented two witnesses: Rex Rosenberg, a master’s level psychologist, and Dr. Jose Bulatao, a psychiatrist. Both practiced at Larned State Security Hospital. Emerson’s sole witness was Dr. William Searle Logan, a psychiatrist. After hearing the testimony, the jury found that tire State had proved beyond a reasonable doubt that Emerson was a sexually violent predator.
Posttrial proceedings
Emerson’s appointed trial counsel, Michael Lehr, was also appointed to handle Emerson’s appeal. Although Lehr timely filed a notice of appeal, he failed to file any brief. Accordingly, on August 21, 2002, this court dismissed Emerson’s appeal. In 2006, Lehr voluntarily surrendered his license and was disbarred from the practice of law in Kansas. In re Lehr, 281 Kan. 842, 133 P.3d 1279 (2006).
In July 2014, Emerson filed a motion to allow an appeal out of time. The district court heard arguments regarding the Ortiz exceptions, which permit a defendant to file an out-of-time appeal. See State v. Ortiz, 230 Kan. 733, Syl. ¶ 3, 640 P.2d 1255 (1982). The district court expressed concerns over the lapse in time and wanted “to find out whether or not Mr. Emerson was aware of his appeal and whether or not Mr. Emerson just sat back and decided to do nothing.” Emerson testified that around 2003 or 2004, Lehr informed him the court was not paying for his services so he was no longer assisting Emerson with his appeal. Emerson also testified he learned in 2006 that Lehr had been disbarred. Although his testimony regarding the time frame is not clear, Emerson said when he was informed he did not have counsel he “went into a state of kind of depression” and did not believe he would ever be released. He also explained he did not want to use a jailhouse lawyer because he did not want “the Court mad at [him].” After hearing the testimony, the district court determined the third Ortiz exception applied because Emerson’s appointed attorney had failed to perfect and complete his appeal, so it granted Emerson s motion to file his appeal out of time.
I. Do we have jurisdiction to consider Emersons untimely appeal?
We first examine whether we have jurisdiction to consider Em-ersons untimely appeal.
The right to appeal is statutory and is not found in the United States or Kansas Constitutions. State v. Legero, 278 Kan. 109, 111, 91 P.3d 1216 (2004). Subject to certain exceptions, Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken within tire time limitations and in the manner prescribed by the applicable statutes. State v. Mburu, 51 Kan. App. 2d 266, 269-70, 346 P.3d 1086, rev. denied 302 Kan. 1017 (2015). Emersons appeal is brought long after the statutory time limit.
The district court relied on Ortiz, which creates equitable exceptions to the general rule that this court must dismiss an untimely notice of appeal for lack of jurisdiction. Ortiz’ limited exceptions allow a defendant to file an out-of-time appeal when the defendant: (1) was not informed of his or her right to appeal; (2) was not furnished an attorney to exercise that right; or (3) was furnished an attorney who failed to perfect and complete an appeal. 230 Kan. at 736. These three have been characterized as “ ‘narrow exceptional circumstances.’” State v. Patton, 287 Kan. 200, 206, 195 P.3d 753 (2008).
The State neither appealed nor cross-appealed the district court’s ruling that the third Ortiz exception applied. Therefore, neither party actually challenges the district court’s finding regarding Ortiz.
Nonetheless, this court has a duty to question jurisdiction on its own initiative. Subject matter jurisdiction may be raised at any time, even on appeal and even on the appellate courts own motion. Shipe v. Public Wholesale Water Supply Dist. No. 25, 289 Kan. 160, 166, 210 P.3d 105 (2009).
The source of the right to take an untimely appeal in a SVP commitment proceeding.
We first examine the source of the right to take an untimely appeal in a SVP commitment proceeding. Although the district court relied on Ortiz exceptions, those exceptions were originally developed to permit a criminal defendant a direct appeal from a conviction and sentence, in an otherwise untimely appeal. Ortiz, 230 Kan. at 735-36; Albright v. State, 292 Kan. 193, 198, 251 P.3d 52 (2011). Ours is not a criminal case.
Our research fails to reveal any published case applying the Ortiz exceptions in a civil commitment context. In a 2004 case appealing the denial of a K.S.A. 60-1507 motion, which is a civil proceeding, the Kansas Supreme Court cited Ortiz as analogous, but based its holding on a principle of fundamental fairness, finding that when counsel is appointed by the court in postconviction matters and fails to notify the client of the right to appeal, the appeal must be allowed. Brown v. State, 278 Kan. 481, 101 P.3d 1201 (2004). See Supreme Court Rule 183(a) (2014 Kan. Ct. R. Annot. 285).
In Albright, the Kansas Supreme Court disagreed that the third Ortiz exception allows an appellate court to accept jurisdiction when a 60-1507 movant’s appointed counsel failed to file an appeal. In Albright, the appellant successfully argued that where appointed counsels performance was deficient in an underlying criminal case for having failed to file a timely direct appeal, the 60-1507 movant should be allowed to file an out-of-time direct appeal. The Kansas Supreme Court first found that the source of the right to counsel is not dispositive, stating:
“Further, as analyzed in Patton and Kargus, regardless of whether [the right to counsel] is based on the constitution, statute, or both, if it is alleged that appointed counsels deficiencies resulted in the loss of the ability to pursue a procedure, the Flores-Ortega standard is to be applied.” Albright, 292 Kan. at 211.
The court emphasized the distinction between counsel’s deficiencies during the course of a proceeding and deficiencies which result in forfeiture of a proceeding:
“[Flores-Ortega] distinguishes between situations in which counsel’s performance in the course of a proceeding is alleged to be deficient and those cases in which counsels performance or failure to perform leads to forfeiture of a proceeding. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), governs the former and Flores-Ortega the latter. See Flores-Ortega, 528 U.S. at 476-86, 120 S. Ct. 1029.” Patton, 287 Kan. at 224.
But the court clarified that in the latter situation, it is not the third Ortiz exception that allows us to accept jurisdiction.
“60-1507 movants who have counsel are entitled to the effective assistance of that counsel, and if counsel’s performance was deficient for failure to file a timely appeal, as a remedy a 60-1507 movant should be allowed to file an out-of-time appeal. We do not agree, however, that it is the third Ortiz exception that allows an appellate court to accept jurisdiction.” Albright, 292 Kan. at 207.
Instead, the court concluded that the analysis of Roe v. Flores-Ortega, 528 U.S. 470, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000) should apply. The Kansas Supreme Court concluded the Court of Appeals should not have dismissed Albrights appeal. Because appointed counsels deficiencies resulted in the loss of his ability to pursue an appeal, the appropriate remedy was to exercise jurisdiction over Albrights appeal. Albright, 292 Kan. at 211-12. Similarly, in Kargus v. State, 284 Kan. 908, 928, 169 P.3d 307 (2007), the Kansas Supreme Court found relief may be appropriate under Flores-Ortega rather than under Ortiz or Strickland when appointed counsel fails to file a petition for review following a direct appeal in a criminal case.
After Albright, tire Kansas Supreme Court decided In re Care & Treatment of Ontiberos, 295 Kan. 10, 25, 287 P.3d 855 (2012), holding that persons subject to SVPA proceedings have a due process right to the appointment of counsel at trial. That right carries with it a correlative right to competent, effective counsel. Ontiberos, 295 Kan. at 25; Albright, 292 Kan. at 207. The court disapproved, however, the Court of Appeals’ rebanee on an analogy to 60-1507 cases in SVPA actions, finding in part that because SVPA proceedings are original actions and 60-1507 proceedings are collateral proceedings, the latter are “inappropriate analogs.” 295 Kan. at 22. This is sufficient to give us brief pause in applying Albright, a 60-1507 case, to this SVPA proceeding, but we befieve Albright remains analogous because it examined a persons right to a direct appeal, not to a collateral proceeding. We do tire same. And despite its recognition that SVPA proceedings, although civil in nature, possess many characteristics of a criminal proceeding, Ontiberos did nothing to disapprove Albright’s holding that Ortiz provided no basis for its appellate jurisdiction. And the courts recognition of tire similarities between SVPA proceedings and criminal proceedings predated both Ontiberos and Albright. See In re Care & Treatment of Foster, 280 Kan. 845, 127 P.3d 277 (2006). Accordingly, we do not read Ontiberos to suggest that Albright is no longer good law or that Ortiz should be appfied in this SVP case.
But regardless of whether the source of Emerson s legal right to take an untimely appeal in this case arises by analogy to Ortiz or to Albright, we are convinced Emerson has such a right, based on fundamental fairness as recognized in the cases cited above.
The Flores-Ortega standard of performance applies.
Those cases make clear that Flores-Ortega provides the substantive test Emerson must meet to be able to invoke his right to a late direct appeal. Regardless of whether Emersons right to a late appeal is based on Albright or Ortiz, “if it is alleged that appointed counsel’s deficiencies resulted in the loss of the ability to pursue a procedure, the Flores-Ortega standard is to be appfied.” Albright, 292 Kan. at 211. See Patton, 287 Kan. at 224 (“[W]e hold that the standard of performance to be appfied to measure the adequacy of appellate counsel under the third Ortiz exception is that found in Roe v. Flores-Ortega.”).
In contrast to Strickland’s prejudice requirement, which requires the movant to show a reasonable probability that the outcome of the proceeding would have been different but for counsel’s deficient performance, Flores-Ortega presumes prejudice from the forfeiture of a proceeding.
“Under Flores-Ortega, if appointed or retained counsel has failed to file or perfect a direct appeal by a criminal defendant, we will presume the existence of prejudice. This is not, however, the same as a finding of prejudice per se, requiring application of the third Ortiz exception. The defendant must still demonstrate that, but for counsel’s failure, he or she would have taken a timely direct appeal. The defendant need not show, as he or she would have had to show if we were using the Strickland standard as our benchmark, that such a timely direct appeal would have been successful.” Patton, 287 Kan. at 225.
Emerson had appointed counsel at trial and on appeal in this SVP case, so he had the right to competent, effective assistance of counsel. See Ontiberos, 295 Kan. at 25. Emerson has met his burden to demonstrate that but for counsel’s failure, he would have taken a timely direct appeal, since his appointed counsel filed both a timely notice of appeal and a docketing statement in his initial appeal. See Albright, 292 Kan. at 206; King v. State, 37 Kan. App. 2d 449, 452-53, 154 P.3d 545 (2007). We thus presume prejudice. Here, as in Albright, no presumption of reliability can be afforded a proceeding that never took place.
The remedy of pei-mitting the untimely appeal is appropriate here.
Lastly, we determine whether the remedy of permitting the filing of an untimely appeal is appropriate where Emerson’s counsel filed a timely notice of appeal and a docketing statement, but he filed no brief on appeal. Under the Flores-Ortega standard, “[i]f the movant requested that an appeal be filed and it was either not filed at all or was not timely filed, appointed counsel was ineffective and the untimely appeal should be allowed.” Albright, 292 Kan. at 211. Here, however, an appeal was timely filed.
We have not found any case applying the third Ortiz exception to an attorney’s failure to file a brief following a timely notice of appeal. Instead, our court has stated that the third Ortiz exception would not apply if an attorney filed a timely notice of appeal but failed to file a brief. City of Wichita v. Tucker, No. 110,076, 2014 WL 2590085, at *4 (Kan. App. 2014) (unpublished opinion). But that statement was a passing comment unnecessary to the decision in the case, so is dicta.
We have, however, previously applied the Flores-Ortega standard to a 60-1507 case in which an attorney failed to file a brief, resulting in a dismissal of die appeal. In King, 37 Kan. App. 2d 449, King had timely appealed from the district courts denial of his K.S.A. 60-1507 motion, but his appellate counsel had not timely filed a brief. We found it apparent King wanted to appeal his sentence because a notice of appeal and docketing statement had been filed. We concluded that due to appellate counsel’s performance, King had been denied his right to a direct appeal. Following Flores-Ortega, we presumed prejudice and permitted King to file his direct appeal out of time. 37 Kan. App. 2d at 450-53. We note that the Kansas Supreme Court has taken the same approach in an SVP case, although an unpublished one. See Noble v. Sullivan, No. 112,101, 2015 WL 5010067 (Kan. App. 2015) (unpublished opinion), rev. denied 303 Kan. 1078 (2015).
Based on the foregoing authorities, we find that Emerson’s untimely direct appeal should be heard. Emerson’s appointed appellate counsel filed a timely notice of appeal but filed no brief, resulting in dismissal of Emerson’s appeal. That deficiency resulted in the loss of Emerson s ability to pursue a procedure, rather than a mere deficiency in his attorney’s performance which could perhaps be remedied via a 60-1507 motion. Due to counsel’s failure, Emerson’s direct appeal was forfeited. The appropriate remedy for that failure is to permit the untimely appeal. Accordingly, we have jurisdiction over Emerson’s appeal.
The State has failed to preserve other issues.
We note the State’s contention that Emerson waived his right to appeal by signing certain paperwork in prison and by waiting for years after he learned his attorney was disbarred before filing the present motion. But these are arguments which the State raised to the district court in its objection to Emersons motion to appeal out of time and which the district court considered and rejected. The State failed to cross-appeal either of those issues, so they are not properly preserved on appeal. See Cooke v. Gillespie, 285 Kan. 748, Syl. ¶ 2, 176 P.3d 144 (2008) (“Before an appellee may present adverse rulings to the appellate court it must file a cross-appeal. If the appellee does not, tire rulings are not properly before the appellate court and may not be considered.”).
II. Did the district court lose jurisdiction over Emerson’s trial?
Emerson next contends the district court lost jurisdiction of his SVP case when his trial was not held within 60 days of his probable cause hearing. Although Emerson fails to provide tire date he believes tire 60 days began to run, the petition was filed on August 26, 1999, Emerson waived his probable cause hearing on September 23, 1999, and his trial was not until October 23-25, 2000. The State does not contend that Emerson was timely brought to trial. Instead, it contends that failure to comply with the applicable time limits does not defeat jurisdiction.
To decide this issue, we must interpret K.S.A. 59-29a01 et seq. Interpretation of a statute is a question of law over which appellate courts have unlimited review. Neighbor v. Westar Energy, Inc., 301 Kan. 916, 918, 349 P.3d 469 (2015). The most fundamental rule of statutory construction is that tire intent of the legislature governs if that intent can be ascertained. We first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinaiy meanings. When a statute is plain and unambiguous, an appellate court should not speculate about the legislative intent behind that clear language, and it should refrain from reading something into the statute that is not readily found in its words. Cady v. Schroll, 298 Kan. 731, 738-39, 317 P.3d 90 (2014).
At the time Emersons initial direct appeal was pending, K.S.A. 2000 Supp. 59-29a06(a) provided: ‘Within 60 days after the completion of any hearing held pursuant to K.S.A. 59-29a05 and amendments thereto, the court shall conduct a trial to determine whether the person is a sexually violent predator.” The Kansas Supreme Court interpreted this statute to mean the 60-day time limit was mandatoiy and jurisdictional. See In re Care & Treatment of Searcy, 274 Kan. 130, Syl. ¶¶ 4-5, 49 P.3d 1 (2002). Emerson urges us to apply that same interpretation now.
But in 2003, the legislature amended the statutes to expressly provide that the time limits in the SVPA were not intended to be mandatory or to otherwise affect the district courts’ subject matter jurisdiction. Effective July 1, 2014, K.S.A. 2014 Supp. 59-29a06(a) provided: “Within 60 days after the completion of any hearing held pursuant to K.S.A. 59-29a05, and amendments thereto, the court shall conduct a trial to determine whether the person is a sexually violent predator.” Effective July 1, 2014, K.S.A. 2014 Supp. 59-29a06(f) provided: “The 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 provision of K.S.A. 59-29a01 et seq., and amendments thereto.” The legislature thus expressed its clear intent that the time limits were not intended to be jurisdictional.
Based on that intent, our court held that the 60-day time limit was not mandatory, and failure to comply with it does not divest the court of jurisdiction.
“Because the 60-day time limit of K.S.A. 2002 Supp. 59-29a06 is directory and not mandatoiy, the failure to bring a candidate for sexually violent predator status to trial within 60 days of the determination of probable cause does not divest the district court of subject matter jurisdiction.” In re Care & Treatment of Hunt, 32 Kan. App. 2d 344, 345, 82 P.3d 861, rev. denied 278 Kan. 845 (2004).
Which of these statutes applies here? The Kansas Supreme Court has not reached the issue of which law applies when a late appeal is granted under Flores-Ortega. It has held, however, that when a late appeal is granted by the district court under Ortiz, the appeal is subject to the law in effect at the time the district court granted the late appeal rather than the law in effect when the defendant should have filed his or her direct appeal and during its pendency. State v. Thomas, 283 Kan. 796, 805, 156 P.3d 1261 (2007); State v. Harp, 283 Kan. 740, 748, 156 P.3d 1268 (2007). Here, a late appeal was granted by the district court under Ortiz. Although we base our jurisdiction on Flores-Ortega, we see no reason to apply a different rule regarding which law to apply. Accordingly, we apply the law in effect when Emersons late appeal was granted by the district court in July 2014. That law clearly stated that the 60-day provision was “not jurisdictional.” K.S.A. 2014 Supp. 59-29a06(f). Thus the district court was not divested of jurisdiction when it failed to meet the 60-day provision provided in K.S.A. 59-29a06.
We note that effective July 1, 2015, various amendments to 59-29a06 were made, including removal of the phrase: "The provisions of this section are not jurisdictional.” Those amendments are not relevant here. Further, the legislative intent since 2003 remains clear that the time requirements in the SVPA are intended to be directory and not mandatory. As K.S.A. 2015 Supp. 59-29a01(b) currently provides, and has provided since 2003:
“Notwitlistanding any other evidence of legislative intent, it is hereby declared that any time requirements set forth in K.S.A. 59-29a01 et seq., and amendments thereto, either as originally enacted or as amended, are intended to be directory and not mandatory and serve as guidelines for conducting proceedings under K.S.A. 59-29a01 etseq., and amendments thereto.”
Accordingly, we find that any failure to comply with the statutory 60-day provision did not divest the district court of its jurisdiction.
III. Did the district court err hy giving an improper jury instruction?
Emerson next argues that the definitions in jury instruction No. 6 were improper because they relieved the State of its burden of proof on an element. Specifically, Emerson contends the district court relieved the State of its burden to prove that pedophilia and exhibitionism were mental abnormalities by informing the jury as a matter of law that pedophilia and exhibitionism were mental abnormalities. Emerson claims this error denied him his due process right to a fair trial.
We first set forth our standard of review when addressing challenges to jury instructions:
"‘(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. Woods, 301 Kan. 852, 876, 348 P.3d 583 (2015).
Emerson agrees that he did not object on this basis to the instruction, and both parties agree, as do we, that our standard of review is thus whether the instruction was clearly erroneous. K.S.A. 22-3414(3). Giving an instruction is clearly erroneous only if we reach a firm conviction that had the trial error not occurred, there is a real possibility the jury would have returned a different verdict. State v. Williams, 295 Kan. 506, Syl. ¶¶ 4-5, 286 P.3d 195 (2012).
The jury was instructed that to find Emerson was a sexually violent predator, they had to find, among other elements, the State had proved beyond a reasonable doubt “that [Emerson] suffers from a mental abnormality or personality disorder.”
Jury instruction No. 6 provided:
“’Mental abnormality’ means a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others. Generally recognized mental abnormalities include:
“Pedophilia
“Exhibitionism
“’Volitional Capacity’ is tire capacity to exercise choice or will. In this case it would be a condition that renders the person unable to control his behavior.
“’Personality Disorder’ is defined as an enduring pattern of inner experience and behavior that deviates markedly from the expectations of the individual’s culture, is pervasive and inflexible, has an on set in adolescence or early adulthood, is stable overtime, and leads to distress or impairment. Generally recognized personality disorders include:
“Borderline Personality Disorder
“’Likely to engage in repeat acts of sexual violence’ means a person s propensity to commit acts of sexual violence is of such a degree as to pose a menace to the health and safety of others.
“’Sexually motivated’ means that one of the purposes for which the defendant committed the crime was for the purpose of the defendant’s sexual gratification.”
But Emersons counsel conceded during his closing argument to the jury that Emerson had a mental abnormality, stating:
“We’re not contesting that he does have a mental abnormality. He does, but with the treatment he’s already received, with his relapse prevention plan, he is in a position where the likelihood of him reoffending is so low, of 20 percent, that it doesn’t constitute a menace to the safety and health of others.”
We first address the effect of this concession. We recognize that sometimes a trial attorney may find it advantageous to his clients interests to concede certain elements of an offense or a claim and that making such a concession may be an acceptable tactical decision. Such is the case here. By his concession, Emersons counsel, with full awareness of the effect of his words, intentionally removed the burden the State otherwise would have had of proving that Emerson had a mental abnormality. He thus waived any objection that the jury instruction was clearly erroneous. See State v. Daniels, 2 Kan. App. 2d 603, 607, 586 P.2d 50 (1978) (A waiver is an intentional relinquishment of a known right, made with full awareness of the effect.)
Alternatively, the claim of clear error is defeated by the invited error doctrine. “Under the invited error doctrine, an appellate court will' not consider claims of error prompted or invited by the appellants before the district court.” State v. Acevedo, 49 Kan. App. 2d 655, 668-69, 315 P.3d 261 (2013), rev. denied 300 Kan. 1104 (2014). Emersons counsel invited the jury to conclude that the State had met its burden of proof with respect to the second element - that Emerson had a “mental abnormality.” Having done so, he cannot now claim error in the jury instruction’s treatment of that burden. Accordingly, Emersons argument fails under the invited error doctrine. See State v. Hatfield, No. 111,622,2015 WL 5036736, at ®1 (Kan. App. 2015) ( unpublished opinion) (applying invited error doctrine where attorney suggested restitution at an amount not supported by the evidence). The existence of invited error ends this courts inquiry “even if relief necessarily would have been afforded for the error had the complaining party not caused it.” State v. Schreiner, 46 Kan. App. 2d 778, 790-91, 264 P.3d 1033 (2011), rev. denied 296 Kan. 1135 (2013).
But even if we were to review juiy instruction No. 6 for clear error, and if we found it effectively relieved the State, as a matter of law, from having to prove that Emerson had a mental abnormality or personality disorder, we would find no clear error. The omission of an essential element of an offense from the jury instructions in a criminal case is subject to the harmless error test. State v. Daniels, 278 Kan. 53, 62, 91 P.3d 1147, cert. denied 543 U.S. 982 (2004). That same rule should apply here.
In making the determination of harmlessness, we are guided by State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012):
“[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 tire court must be persuaded that the error did not affect the outcome of the trial will vary depending on whether tire error implicates a right guaranteed by the United States Constitution. If it does, a Kansas court must be persuaded beyond a reasonable doubt that there was no impact on the trial’s outcome, i.e., there is no reasonable possibility that the error contributed to the verdict. If a right guaranteed by tire United States Constitution is not implicated, a Kansas court must be persuaded that there is no reasonable probability that the error will or did affect the outcome of the trial.”
Applying this test, we find any jury instruction error in Emerson s case to be harmless. Although juries are routinely instructed, as they were here, that “counsel’s remarks, statements and arguments . . . are not evidence,” and that they should disregard any remark that is “not supported by the evidence or tire law as given to you by the court,” a reasonable jury would take tire land of concession made by Emerson’s counsel during closing argument at face value, rather tiran dismiss it as empty bluster. Our courts do the same. See, e.g., Edgar v. State, 294 Kan. 828, 834, 283 P.3d 152 (2012) (examining whether counsel was ineffective for having made concessions during closing argument which arguably relieved the State of its burden of proof on two counts). Any reasonable jury would rely on counsel’s admission that Emerson had a mental abnormality, rather than work through a jury instruction in an attempt to figure out how to make that determination and then make it. Any failure of the jury instruction in relieving the State of its burden to prove Emerson had a mental abnormality thus did not cause this jury to find that Emerson had a mental abnormality. Instead, counsel’s concession that Emerson had a mental abnormality led them to so find. We thus are not convinced of a real possibility that the jury would have returned a different verdict had the alleged error not occurred. On the contrary, we are persuaded beyond a reasonable doubt that the definitions in the jury instruction had no impact on the trials outcome.
Nor do we find any merit to Emersons underlying assertion that the State failed to prove that his pedophilia and exhibitionism were mental abnormalities. Even if we were to ignore the concession by Emersons counsel, the record includes sufficient evidence on this issue for the jury to have found for the State. Neither Emerson’s expert nor his attorney argued Emerson did not have a mental abnormality, and Rosenberg and Dr. Bulatao both expressly based their diagnoses of pedophilia and exhibitionism on the DSM-IV, the Diagnostic and Statistical Manual of Mental Disorders (Fourth Edition), which specifically includes those mental disorders. Further, during cross-examination, Rosenberg testified, “I found enough evidence to indicate [Emerson] has a mental abnormality, and the diagnosis or diagnoses that were applied were pedophilia and exhibitionism.”
Further, Dr. Logan, Emerson s own expert, impliedly confirmed that conclusion. When asked if Emerson had a mental abnormality, he replied that the definition of that term was “so- broad that it really includes almost anything that would be within the diagnostic manual in psychiatry,” i.e., the DSM-IV. The experts’ uncontradict-ed testimony thus provides a solid basis for tire jury’s finding that the diagnoses of pedophilia and exhibitionism, which were based on the DSM-IV, were diagnoses of mental abnormalities.
Additionally, abundant evidence supports the jury’s determination-. As we more thoroughly discuss below, three expert witnesses testified as to the reports they reviewed, to the interviews they conducted, and to their ultimate findings. Two found that Emerson was likely to reoffend. After weighing the evidence, the jury determined Emerson was a sexually violent predator. Sufficient evidence supports that decision, and we find no real possibility the jury would have returned a different verdict had the jury instruction not included the challenged language. .
IV. Did the court err in admitting expert reports P
Emerson next argues tire district court erred by admitting Rosenberg and Dr. Bulatao s expert report. Emerson contemporaneously objected to the admission of the report at tire hearing. See K.S.A. 60-404; In re Thomas, 301 Kan. at 845. He claims the report should have been excluded because it was hearsay.
We do not reach that issue, however, because Emerson has failed to include the challenged report in the record on appeal. Without the report, we cannot determine what the report states or how its contents may have influenced the jury, as is necessary to establish prejudicial error. Emerson bears the burden of establishing an adequate record. A “party claiming an error occurred has the burden of designating a record that affirmatively shows prejudicial error.” In re Thomas, 301 Kan. at 845 (citing State v. McCullough, 293 Kan. 970, 999, 270 P.3d 1142 [2012]). Without such a record, an appellate court presumes the action of the district court was proper. State v. Bridges, 297 Kan. 989, 1001, 306 P.3d 244 (2013). We do so here.
V. Does sufficient evidence support the verdictP
Emerson argues the State failed to present sufficient evidence as to two elements. First, Emerson claims the State failed to prove the diagnoses addressed in the previous issue were mental abnormalities. We have resolved that issue above. Second, Emerson contends the State failed to prove Emerson was likely to commit repeat acts of sexual violence due to a mental abnormality or personality disorder.
We first set forth our standard of review.
“When presented with an issue of whether evidence was sufficient to sustain the State’s burden of proof in a sexually violent predator case, this court s standard of review asks whether, after review of all the evidence, viewed in the light most favorable to the State, we are convinced a reasonable factfinder could have found the State met its burden to demonstrate beyond a reasonable doubt that the individual in question is a sexually violent predator. See In re Care & Treatment of Colt, 289 Kan. 234, 243-44, 211 P.3d 797 (2009); In re Care & Treatment of Hay, 263 Kan. 822, 842, 953 P.2d 666 (1998); see also K.S.A. 2010 Supp. 59-29a07(a) (stating reasonable doubt burden). As an appellate court, we will not reweigh the evidence, pas's on the credibility of witnesses, or resolve conflicts in the evidence. State v. Hayden, 281 Kan. 112, 132, 130 P.3d 24 (2006); In re Care & Treatment of Ward, 35 Kan.App.2d 356, 371, 131 P.3d 540, rev. denied 282 Kan. 789 (2006).” In re Care & Treatment of Williams, 292 Kan. 96, 104, 253 P.3d 327 (2011).
Accordingly, we review the evidence in the case.
Rosenberg testified he had completed 38 sexual predator evaluations at the time of the trial. Of those 38, 25 met the statutory criteria to be classified as sexually violent predators, 10 did not, and he could not malte a determination either way as to the remaining 3 patients. He further explained a master file was prepared on each individual admitted to the state hospital. That file included information on progress, treatment plans, and mental and physical health. When reviewing the master file, Rosenberg paid the most attention to the reports from other facilities.
Rosenberg also conducted personal interviews. He interviewed Emerson three times for a total of approximately 7.25 hours, and they discussed Emerson’s sexual history. Rosenberg testified about Emersons prior treatment, saying, “One thing that sticks out in my mind that in terms of the evaluation troubled me was his continued reference to these girls as young ladies or young women. That would suggest that there’s still some conflict of distortion even after treatment.”
To diagnose Emerson, Rosenberg relied on the Fourth Edition of the Diagnostic and Statistical Manual of Mental Disorders. Based on the criteria fisted in the DSM-IV, Rosenberg diagnosed Emerson with pedophilia and exhibitionism. During cross-examination, Rosenberg said, “I found enough evidence to indicate [Emerson] has a mental abnormality, and the diagnosis or diagnoses that were applied were pedophilia and exhibitionism.” Rosenberg believed Emerson was likely to commit further predatory acts of sexual violence if released and Emerson was a menace to the health and safety of others.
Dr. Bulatao testified he relied on other professionals’ test results and evaluations when forming his own opinions. In Emerson’s case, he reviewed the Report of Clinical Evaluation from the Kansas Department of Corrections and the Clinical Services Report from the Kansas Parole Board. Additionally, Dr. Bulatao reviewed Rosenberg’s draft report, as it was his responsibility to agree or disagree with the report and to make necessaiy corrections. Dr. Bulatao read and signed the report.
Dr. Bulatao interviewed Emerson for roughly 1.25 hours. Dr. Bulatao diagnosed Emerson with pedophilia attracted to female, nonexclusive type, and exhibitionism and voyeurism. The pedophilia diagnosis was made due to Emerson’s past convictions.
According to Dr. Bulatao, Emerson never displayed any remorse for his past behavior.
Dr. Bulatao found Emerson has a “tendency to wax and wane”; he minimizes or justifies Iris crimes, has poor judgment, and has a tendency to blame others. Based on Emersons sexual history, his minimization or justification of the crimes, his poor judgment, and his tendency to blame others, Dr. Bulatao believed Emerson was likely to reoffend.
Dr. Logan, Emersons expert, testified his main diagnosis of Emerson would be a borderline personality disorder. When asked if he would make a diagnosis of pedophilia in Emerson s case, Dr. Logan said, “It looks like he certainly qualified for that diagnosis in the past. . .,” but Dr. Logan did not make a current diagnosis of pedophilia. He discussed Emersons previous attraction to young girls, but then explained Emerson was also attracted to adult women because he was married throughout that time period. According to Dr. Logan, the last case where Emerson had sexual interactions with a prepubescent child was in 1981. The point of Dr. Logan’s testimony was to show evidence that Emersons “sexual interest took a different direction.” Regarding the incident involving the 15-year-old, Dr. Logan testified, “Certainly if someone is attracted to girls who are underage but sexually mature, there are perhaps other categories you could put them” in; the sexual interaction with the 15-year-old was still a problem, but it would not be pedophilia.
When asked if Emerson’s diagnosis constitutes a volitional impairment that renders him dangerous beyond his control, Dr. Logan replied:
“[People with borderline personality disorder] can have episodes of rage. I didn’t see any evidence of that in [Emerson], but it really depends on the degree to which you have it. Certainly in his state I didn’t see any evidence in the past that at any point his behavior, particularly with the illegal sexual behavior, was anything that he couldn’t control, and in almost every case he selected certain victims .... Nothing at all that would indicate any type of volitional inability to control his behavior in those type of actions.”
Dr. Logan believed that although he had diagnosed Emerson with a borderline personality disorder, Emerson was relatively stable.
Dr. Logan determined Emerson had a 20% chance of reoffend-ing, which was around the statistical average for sex offenders who were released. Dr. Logan believed the determination of whether Emerson posed a menace to the health and safety of others was a question for a jury, but he viewed any degree of recidivism as a menace to society.
Dr. Logan concluded the most likely way Emerson would reof-fend would be to get involved in an extramarital affair or become overly involved in looking at pornography. The least likely way Emerson would recidivate would be to revert back to an attraction to prepubescent children.
Considering all of the evidence in a light most favorable to the State, we find the State provided more than sufficient evidence to prove beyond a reasonable doubt that Emerson was a sexually violent predator.
Affirmed.
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Powell, J.:
This dispute involves the efforts of the asset manager for the owner of an apartment complex to terminate the services of the property manager for that apartment complex. Curo Enterprises, LLC (Curo), the asset manager, brought an action in Johnson County District Court to remove Dunes Residential Services, Inc. (Dunes) as the property manager. The parties ultimately settled the case, but Curo appeals from the district court’s order denying its request for attorney fees pursuant to a fee-shifting provision in the management agreement between the owner of the apartment complex and Dunes. Curo argues the district court erred by finding Curo was not the owner’s agent under the terms of the management agreement and was neither a “party” nor a “prevailing party” under the fee-shifting provision. Curo argues it filed suit as the owner’s agent and, when the district court approved and incorporated the parties’ settlement agreement into an order, the district court qualified Curo as a prevailing party entitled to attorney fees.
Because we agree Curo was acting as the owner’s agent when it sought to terminate Dunes as the apartment complex property manager under the terms of the management agreement and because we find Curo qualified as both a party and a prevailing party under the fee-shifting provisions of the management agreement, we reverse the district court and remand to determine attorney fees and costs to which Curo is entitled under the management agreement as tire prevailing party.
Facts
The Lenexa, Kansas, apartment complex at issue is owned by Dunes Point West Associates, L.L.C. (DPW). Originally, three entities—one of which owns 10% and is the managing member— invested to create DPW. Later, a group of investors acquired the remaining 90% interest and serve as nonmanaging members. A separate entity, NDC Capital Partners (NDC), was appointed the asset manager to oversee the financial aspects of the apartment complex for the benefit of the nonmanaging members.
In 2006, DPW entered into a management agreement with Dunes to manage the apartment complex. Dunes was in charge of day-to-day functions such as leasing, rent collection, and property maintenance. Section 6 of the management agreement provided that either DPW or Dunes could terminate the agreement by giving the other party 30 days advance written notice, with or without cause. Section 14 of the management agreement stated: “This Agreement shall be enforceable by NDC Capital Partners on behalf of [DPW] without any action or consent necessary from the Managing Member of [DPW].” The agreement was signed by the managing member of DPW and by Dunes. Effective June 30,2012, NDC assigned its interest as the asset manager to Curo Properties, LLC, which, in turn, assigned its interest to Curo.
The dispute began on February 22, 2013, when Curo, as asset manager, notified Dunes by letter of its intent to terminate the management agreement between DPW and Dunes. Dunes responded on March 8, 2013, challenging and rejecting Cure’s right to terminate the management agreement. Curo filed suit on March 21, 2013, seeking: (1) a declaratory judgment that Dunes was no longer manager of tire properly; (2) an order compelling Dunes to step down as property manager; and (3) an order awarding Curo attorney fees and costs pursuant to a fee-shifting provision in the management agreement.
The trial was scheduled to begin September 12, 2013, but on September 7, 2013, Dunes submitted a notice of termination of the management agreement. According to the district court, Dunes’ notice claimed to terminate the management agreement without admitting liability or making concessions. Based on this notice, on September 26, 2013, the court ordered the following: (1) another property manager could enter into a management agreement to assume tire property management functions and obligations; (2) Dunes must turn over all books, records, files, keys, contracts, agreements, tenant records, financial data, and any other tangible property required to facilitate the transition of all property management duties to the new property manager; and (3) the September 12,2013, trial was moot but both Curo and Dunes reserved the right to seek an award of legal fees and costs.
On November 13, 2013, Curo filed a motion requesting attorney fees and costs as the prevailing party under Section 21 of the management agreement. Tire district court found Curo was not entitled to attorney fees and costs because it was a third-party beneficiary to the management agreement and not an agent of DPW. It further found that even if Curo was the agent, Curo did not qualify as a prevailing party. On January 28, 2014, the district court issued a final judgment dismissing Counts 1 (declaratory judgment) and 2 (specific performance) of Curo’s petition as moot and .denying Curo judgment on Count 3 (attorney fees).
Curo timely appeals.
Did the District Court Err by Finding Curo Was Not DPW’s Agent?
Section 21 of the management agreement relating to attorney fees provides:
“In the event that either party hereto brings an action or proceeding for a declaration of the rights of the parties under this Agreement or for any alleged breach of or default under this Agreement, or any other action arising out of this Agreement or tire transactions contemplated hereby, tire prevailing party in any such action shall recover from the non-preüailing party its attorneys’ fees and any court costs incurred in such action or proceeding, in addition to any other damages or relief awarded, regardless of whether such action proceeds to final judgment. The provisions of this Section 21 shall survive any termination of this Agreement.” (Emphasis added.)
The district court denied Curo’s motion for attorney fees and court costs pursuant to Section 21, finding (1) Curo did not qualify as a “party” to the agreement and (2) even if Curo was entitled to enforce the agreement, it was not the prevailing party. As to the first point, Curo argues it was DPW’s agent under the management agreement, making it a party entitled to attorney fees. Conversely, Dunes argues Curo’s actions in seeking its removal as property manager were those of a third-party beneficiary, not an agent.
The legal effect of a written instrument is a question of law. It may be construed and its legal effect determined by the appellate court regardless of the construction made by the district court. Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011). What constitutes a principal/agent relationship and whether there is competent evidence reasonably tending to prove such relationship is also a question of law. Barbara Oil Co. v. Kansas Gas Supply Corp., 250 Kan. 438, 446, 827 P.2d 24 (1992). However, resolution of conflicting evidence that might establish the existence of a principal/agent relationship is a question for the finder of fact. Barbara Oil Co., 250 Kan. at 446. Inasmuch as the parties have not produced conflicting evidence but, instead, disagree on whether the undisputed language in the management agreement established an agency relationship between Curo and DPW, we are therefore confronted with a question of law in which our review is unlimited. See Bunge Milling, Inc. v. City of Atchison, 49 Kan. App. 2d 325, 329, 310 P.3d 1064 (2013); Town Center Shopping Center v. Premier Mortgage Funding, Inc., 37 Kan. App. 2d 1, 6, 148 P.3d 565 (2006), rev. denied 283 Kan. 933 (2007).
A. Was Curo an agent under the management agreement?
While it is true the only signatories to the management agreement were DPW and Dunes, Curo claims it qualifies as a party to the agreement because Section 14 of the agreement established Curo, the assignee of NDC (the prior asset manager), as DPW’s agent. The district court rejected this argument and ruled Curo occupied the role of a third-party beneficiary rather tiran an agent. Curo concedes that if it were merely a third-party beneficiary, then it would be unable to enforce the fee-shifting section of the management agreement. See Intermountain Res., L.L.C. v. Honea, 68 Fed. Appx. 937, 938 (10th Cir. 2003) (under Colorado law, third-party beneficiaries bound by contracts but not obligated under attorney fee provisions of same contract). But see TST Truck Insurance, Ltd. v. First National Bank of Wamego, 2014 WL 1047993, at *8 (D. Kan. 2014) (unpublished opinion) (Intermountain Res. does not contain per se rule against third-party beneficiary’s recovery of contractual attorney fees).
Instead, Curo argues the district court erred by finding Curo was merely a third-parly beneficiary rather than a third-party beneficiary and DPW’s agent. Curo claims the roles of a third-party beneficiary and an agent are not mutually exclusive. Curo explains it was a third-party beneficiary under the management agreement because the management agreement incorporated DPW’s operating agreement which conferred upon the asset manager, Curo, third-party beneficiary rights such as the right to receive payment for executing its duties as asset manager. But Curo also claimed it was an agent of DPW because Section 14 of die management agreement authorized it to enforce the management agreement “on behalf of’ DPW.
It is well setded that an agency relationship may be expressed or implied.
“ ‘ “It is an express agency if the principal has delegated authority to the agent by words which expressly authorize tire agent to do a delegable act. It is an implied agency if it appears from the statements and conduct of the parties and other relevant circumstances that the intention was to clothe the agent with such an appearance of authority that when the agency was exercised it would normally and naturally lead others to rely on the person’s acts as being authorized by the principal.” ’ ” Golden Rule Ins. Co. v. Tomlinson, 300 Kan. 944, 957, 335 P.3d 1178 (2014) (quoting Professional Lens Plan, Inc. v. Polaris Leasing Corp., 238 Kan. 384, 390-91, 710 P.2d 1297 (1985).
Paragraph 14 of the management agreement expressly provides that “[t]his Agreement shall be enforceable by NDC Capital Partners on behalf of the Company without any action or consent nec-essaiy from the Managing Member of the Owner.” The parties do not dispute that Curo took the place of NDC because NDC’s rights were assigned to Curo. See Bolz v. State Farm Mut. Ins. Co., 274 Kan. 420, 428, 52 P.3d 898 (2002) (“[An] assignment passes all assignor’s title as interest to assignee and divests assignor of all right of control over subject matter[.]”). Therefore, under the clear language of the management agreement, Curo had the right to enforce the agreement “on behalf of’ DPW without requiring any action or consent from the managing member of DPW.
B. Was Curo acting as an agent token it brought the present suit?
Interestingly, Dunes does not contest Curo’s assertion that it could hold both the role of third-party beneficiary and agent. Rather, Dunes argues Curo mischaracterizes the district court’s ruling. Dunes claims the district court found Curo was acting in its role as a third-party beneficiaiy to the management agreement when it sought to terminate Dunes and subsequently filed this case. Therefore, even if Curo were DPW’s agent, it was not acting within that role when it sought to terminate Dunes. Specifically, Dunes points out that Curo brought this case in its own name rather than in DPW’s name.
Under K.S.A. 2013 Supp. 60-217(a)(l), “[a]n action must be prosecuted in tire name of the real party in interest.” Curo counters that K.S.A. 2013 Supp. 60-217(a)(l)(H) modified the common-law rule that an agent who signed a contract on behalf of the principal was not a party to the contract and could not sue for breach of the contract under its own name. K.S.A. 2013 Supp. 60-217(a)(l)(H) allows “a party with whom or in whose name a contract has been made for another’s benefit” to bring an action in its own name. Curo claims the statute allows an agent who is a party to a contract to sue on behalf of the principal in the agent’s name alone even though the agent is not technically a party to the contract. See Wolf Creek Nuclear Operating Corp. v. Framatome ANP, Inc., 416 F. Supp. 2d 1081, 1087 (D. Kan. 2006).
Unfortunately for Curo, the situation addressed by K.S.A. 2013 Supp. 60-217(a)(l)(H) is not the same as in this case. Curo did not enter into or sign the management agreement on behalf of DPW and then file suit against Dunes. Dunes entered into the agreement directly with DPW, but the terms of the agreement authorized the asset manager, now Curo, to enforce the agreement on behalf of DPW. Dunes argues that because Curo brought the suit in its own name, it was suing as a third-party beneficiary and declaring that it was the real party in interest under K.S.A. 2013 Supp. 60-217(a), rather than acting as an agent on behalf of DPW. While this might be a factor in determining whether Curo was DPW’s agent, it does not definitively show Curo was not DPW’s agent.
Moreover, K.S.A. 2013 Supp. 60-217(a) does not mandate that a suit be dismissed if the real party in interest is not joined. The purpose of the real party in interest rule is to protect a
“ ‘defendant from being repeatedly harassed by a multiplicity of suits for the same cause of action so that if a judgment be obtained it is a full, final and conclusive adjudication of the rights in controversy that may be pleaded in bar to any further suit instituted by any other party.’ ” Larson Operating Co. v. Petroleum, Inc., 32 Kan. App. 2d 460, 465, 84 P.3d 626 (2004) (quoting Torkelson v. Bank of Horton, 208 Kan. 267, 270, 491 P.2d 954 [1971]).
In this case, Curo did not hide that it was suing to enforce the management agreement on behalf of DPW. The language in Section 14 was very straightforward and unambiguous. DPW expressly authorized Curo to do a delegable act—enforce the management agreement—on its behalf. Dunes was aware of this delegation of rights. Section 15 of the management agreement even required that all notices, demands, statements, and communications required under the agreement intended for DPW be mailed to DPW and a copy sent to NDC and later Curo. Everything Dunes sent to DPW was also sent to Curo. If Curo was an agent, then DPW was not an undisclosed principal. Dunes could not have thought Curo was suing to enforce its own rights under the agreement since it had none apart from acting on behalf of DPW.
We conclude Curo acted as DPW’s agent when it sued to enforce DPW’s right to terminate the management agreement.
Did the District Court Err by Concluding Curo Was Not a Prevailing Party?
Having decided that Curo was DPW’s agent, we must now decide whether acting as DPW’s agent allowed Curo to collect attorney fees under Section 21 of the management agreement. In Kansas, a court may not award attorney fees absent statutoiy authority or an agreement by the parties. See Snider v. American Family Mut. Ins. Co., 297 Kan. 157, 162, 298 P.3d 1120 (2013). Whether a court has the authority to award attorney fees is a question of law over which appellate review is unlimited. Snider, 297 Kan. at 162.
A. Was Curo a party under Section 21 of the management agreement?
Dunes argues that the attorney fees provision of die management agreement is expressly limited to the two parties to the management agreement: Dunes and DPW, who were the only signatories. See Civix Sunrise, GC, LLC. v. Sunrise Road Maintenance Assoc., Inc., 997 So. 2d 433, 435 (Fla. App. 2008) (“any party” to agreement doesn’t include third-party beneficiaiy, only signatories); Parker v. Center for Creative Leadership, 15 P.3d 297, 299 (Colo. App. 2000) (“any party” to agreement doesn’t include third-party beneficiary). As we have previously noted, Section 21 of the management agreement provided that if either party to the agreement brought an action arising out of the agreement, then the prevailing party could recover attorney fees and costs from the non-prevailing party.
A California appellate court has addressed the meaning of contractual language allowing a prevailing party to recover attorney fees from “either, party.” In Real Property Services Corp. v. City of Pasadena, 25 Cal. App. 4th 375, 30 Cal. Rptr. 2d 536 (1994), the City of Pasadena entered into a lease agreement with BWC Development Corporation for the development and construction of a site for use as a multiscreen movie theater and parking garage. At the time the lease was signed, it was agreed that RPS would actually operate the movie theater, and the lease provisions specifically stated that the City consented to BWC’s subleasing the property to RPS. RPS was not a signatory to the lease. A dispute arose, and RPS, a nonsignatory, sued the City, a signatory, under the lease agreement. RPS lost, however, and the City sought attorney fees under the lease agreement which provided that in the event “either party” brought an action under the agreement, the prevailing party would be entitled to its attorney fees. 25 Cal. App. 4th at 377-78.
California has a reciprocity rule which forbids unilateral attorney fee provisions in contracts. West’s Ann. Cal. Civ. Code § 1717 (2009). Under this rule, “[wjhere a nonsignatoiy plaintiff sues a signatoiy defendant in an action on a contract and the signatory defendant prevails, the signatory defendant is entitled to attorney fees only if the nonsignatory plaintiff would have been entitled to its fees if the plaintiff had prevailed.” 25 Cal. App. 4th at 382. The court held that since the lease agreement provided for the award of attorney fees in an action to enforce the agreement brought by “either party,” and since the lease expressly provided for RPS to be the sublessee, RPS, as a third-party beneficiary, had the right to sue under the lease agreement and would have been entitled to attorney fees had it prevailed. Therefore, the City was entitled to its attorney fees for prevailing against RPS. See 25 Cal. App. 4th at 383-84.
While we disagree with the notion that a third-party beneficiary is included in the meaning of the words “either party,” we do agree with the California Court of Appeals that the meaning of the words “either party” is not limited to only the signatories to a contract in every context. It is the language of the contract itself which controls, and where an entity is expressly referred to in the contact, that evinces some intent to allow that entity to claim attorney fees. It is even more so where, as here, the contract gives specific authority to a third party to enforce the agreement on behalf of a signatoiy. See Cargill, Inc. v. Souza, 201 Cal. App. 4th 962, 966, 134 Cal. Rptr. 3d 39 (2011) (nonsignatory party entitled to attorney fees where it “stands in the shoes of the party to the contract”). Given that the management agreement expressly gave Curo the authority to act on behalf of DPW in terminating the management agreement, we hold that Curo, as DPW’s agent, falls within the “either party” limitation in the management agreement’s language.
B. Did Curo qualify as a prevailing party?
Because Curo, as DPW’s agent, qualifies as a “party” under Section 21, the next step in our analysis is to determine whether Curo was the prevailing party. Dunes claims Curo did not receive any judgment on the merits in its favor so it cannot qualify as a prevailing party.
In the 1980s, our court, and later the Kansas Supreme Court, adopted the definition of “prevailing party” from Black’s Law Dictionary 1069 (5th ed. 1979) as:
“ ‘The party to a suit who successfully prosecutes the action or successfully defends against it, prevailing on the main issue, even though not necessarily to the extent of his original contention. The one in whose favor the decision or verdict is rendered and judgment entered. [Citation omitted.] The party ultimately prevailing when the matter is finally set at rest.’
“ “With respect to the specific question of attorney fees, it has been stated a prevailing party is the person who has an affirmative judgment rendered in his favor at the conclusion of the entire case.’ ” Szoboszlay v. Glessner, 233 Kan. 475, 482, 664 P.2d 1327 (1983) (quoting Schuh v. Educational Reading Services of Kansas, 6 Kan. App. 2d 100, 101, 626 P.2d 1219 [1981]).
See also Black’s Law Dictionary 1298 (10th ed. 2014) (prevailing party a “party in whose favor a judgment is rendered, regardless of the amount of damages awarded”). Dunes is correct that the district court never rendered judgment in either party’s favor, although Dunes’ actions resulted in a positive outcome for Curo.
However, Section 21 of the management agreement does not require a judgment in favor of the party seeking attorney fees. The management agreement states the prevailing party is entitled to its attorney fees, “regardless of whether such action proceeds to final judgment.” Unfortunately, we have not been presented with, nor has our research discovered, a Kansas case in which the term “prevailing party” from a contractual attorney fee provision has been defined in the context of a settlement. Broadly speaking, we agree with the Utah Court of Appeals that “ when interpreting contractual “prevailing party” language, a court should employ a flexible and reasoned approach’ that allows room for common sense to guide a court’s decision.” Westmont Mirador LLC v. Shurtliff, 333 P.3d 369, 373 (Utah App. 2014). This is especially true in the context of a settlement.
The 10th Circuit Court of Appeals has provided guidance in how to determine a prevailing party in the context of a civil rights action when parties reach a settlement. In Bell v. Board of County Comm’rs of Jefferson County, 451 F.3d 1097 (10th Cir. 2006), Bell filed suit under 42 U.S.C. § 1983 (2006), challenging his termination of employment by Jefferson County, Kansas. After considerable wrangling, the parties ultimately settled the case, prompting Bell to seek attorney fees, claiming that a settlement between the County and him meant he had been the successful party in the suit. The district court denied Bell’s motion, and Bell appealed.
On appeal, the 10th Circuit ruled the district court correctly denied Bell’s motion: “[Bjecause there was no judicial involvement in approving the settlement agreement, Bell may not be considered a prevailing party.” 451 F.3d at 1101. The Bell court cited Buck-hannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Services, 532 U.S. 598, 602-04, 121 S. Ct. 1835, 149 L. Ed. 2d 855 (2001), which held that “a party is a prevailing party for the purpose of awarding attorneys’ fees under § 1988 only if he has obtained a judgment on the merits, a consent decree, or some other settlement materially altering the legal relationship of the parties.” 451 F.3d at 1102. The Bell court found:
“[I]f a court does not incorporate a private settlement into an order, does not sign or otherwise provide written approval of the settlement’s terms, and does not retain jurisdiction to enforce performance of tire obligations assumed by the settling parties, the settlement ‘does not bear any of the marks of a consent decree’ and does not confer prevailing party status on the party whose claims have been compromised. [Citations omitted.] A fee award cannot be based on an order that ‘merely recognizes the fact of the parties’ agreement and dismisses the case because there is no longer a dispute before it.’ [Citation omitted.]
“The parties’ settlement of the claim raised on Bell’s prior appeal was neither approved by this court nor implemented in a consent decree or equivalent order. The parties simply submitted a stipulation of dismissal ultimately prompting the clerk to dismiss the appeal ‘without judicial action.’ Under Buckhannon, such a private settlement is not cognizable in the fee analysis under § 1988 and conse quently would not have provided a valid legal ground for altering the initial fee award made by the district court.” 451 F.3d at 1103-04.
While Bell provides very helpful guidance on this question of determining a prevailing party in the context of a settlement, because we are bound by the terms of the management agreement which allow the award of attorney fees “regardless of whether such action proceeds to final judgment,” we must reject the notion that we are foreclosed in dais instance from determining a “prevailing party” even where the parties agree to a private settlement. See Reuille v. E.E. Brandenberger Const., Inc., 888 N.E.2d 770, 772 (Ind. 2008) (contracting parties can readily agree to fee-shifting arrangements that are more prescriptive). In fact, common sense dictates that even a cursory review of the “settlement” in this case reveals that Dunes’ voluntary and unilateral resignation as the property manager, on the eve of trial, appears to make Curo the prevailing party because Dunes’ action looks more like a capitulation or confession of judgment as it gave Curo virtually everything it was seeking in this litigation with nothing in return. Dunes’ action materially altered the legal relationship between the parties.
But setting aside the question of whether a prevailing party can be determined when the parties only enter into a private settlement, even when we utilize the Bell factors in determining a prevailing party, we conclude that Curo was the prevailing party principally because we disagree with the district court’s characterization of its September 26, 2013, order as a mere private settlement and dismissal. The district court’s order was more in the nature of a consent decree.
In this case, after Dunes chose to exercise its right to terminate the management agreement, the district court issued its September 26, 2013, order, finding:
• Dunes terminated the management agreement without admitting liability or making concessions;
• the property’s mortgage holder consented to the appointment of a new property manager;
• the parties had asked the court to issue an order to ensure an orderly transition of the property management functions and to address the remaining issues of Curo’s claim for attorney fees; and
• the order would be circulated to interested affiliates to afford them the opportunity to intervene in the litigation;
and ordering:
• A new property manager could enter into a management agreement and assume property management functions;
• Dunes would immediately turn over all books, records, files, keys, contracts, agreements, tenant records, financial data, etc, and transition all property management duties to the new property manager by October 7, 2013;
• the previously scheduled trial to address Curo’s rights to terminate Dunes as property manager was rendered moot by Dunes’ termination of the agreement, but Curo and Dunes reserved the right to seek attorney fees and costs if they chose to seek such determination from the court; and
• the order was to be served on various parties within specified timeframes.
The district court’s denial of Curo’s request for attorney fees followed similar reasoning as set out in Bell. In its denial, the court found its September 26, 2013, order outlining the parties’ settlement agreement did not represent a judgment or a judicial ruling in Curo’s favor. Instead, tire order appeared to simply represent a judicial recognition that the matter was resolved between the parties and the upcoming trial setting was no longer needed. Curo argued Dunes chose to terminate the agreement because it knew it would not prevail at trial, but the district court rejected that argument. It found Dunes specifically terminated the agreement without admitting liability or making concessions; therefore, the court could not speculate why Dunes chose to terminate the agreement.
Curo claims it was the prevailing party because it obtained exactly the relief it requested in its petition. Curo’s first count asked for a declaratory judgment stating it had the right under the management agreement to terminate the agreement on behalf of DPW. However, the September 26, 2013, order did not give such a dec laration. Curo’s second count was for specific performance, asking Dunes to resign as property manager and to deliver all books, records, bank accounts, and access to such bank accounts to Curo. The order did order Dunes to turn over all books, records, files, contracts, etc., to the new property manager, but it did not specifically order Dunes to resign or step down as asset manager. However, such an order wasn’t necessaiy since Dunes voluntarily resigned as the property manager and the order’s directives were predicated on that fact.
A consent decree usually means the parties’ agreement is subject to the court’s jurisdiction, continuing supervision, and enforcement. See Beaver v. Kingman, 246 Kan. 145, 148, 785 P.2d 998 (1990) (“ ‘A consent decree is essentially a settlement agreement subject to continued judicial policing.’ Williams v. Vukovich, 720 F.2d 909, 920 [6th Cir. 1983].”). The district court’s September 26, 2013, order did specifically order and authorize tasks which required it to maintain supervision of the transition between the property management companies, all of which were predicated on Dunes’ voluntary resignation as the property manager, and it provided continuing jurisdiction over the case despite the fact the trial date became moot. The district court’s order was more than a mere recognition of tire parties’ settlement and dismissal of the case. Therefore, in accordance with Bell, we find the September 26, 2013, order was a consent decree qualifying Curo as a prevailing party.
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The opinion of the court was delivered by
Biles, J.:
David Noyce appeals the district court’s summaiy denial of his pro se motion to correct an illegal sentence under K.S.A. 22-3504. He challenges his murder conviction as multiplicitous and for the first time on appeal argues his sentence is unconstitutional under Alleyne v. United States, 570 U.S. _, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013) (sentencing scheme permitting judge to find aggravating circumstances necessary to impose increased mandatory sentence unconstitutional). We affirm.
This court has previously held that a multiplicity issue cannot be raised in a motion to correct an illegal sentence. See State v. Sims, 294 Kan. 821, Syl. ¶ 4, 280 P.3d 780 (2012) (“A claim that two or more criminal sentences are multiplicitous . . . does not come within the narrow definition of an illegal sentence under K.S.A. 22-3504[l].”). And even if preserved, a claim that a sentence is unconstitutional is outside the scope of K.S.A. 22-3504. State v. Mitchell, 284 Kan. 374, 377, 162 P.3d 18 (2007).
Factual and Procedural Background
In February 1999, Noyce pleaded guilty to aggravated arson, premeditated first-degree murder, and capital murder after setting fire to a residence. Dalene and Clifford Noyce died as a result.
The first-degree murder conviction stems from Clifford’s death, and the capital murder conviction arises from killing both Dalene and Clifford as part of the same act or transaction. A plea was entered in exchange for the State’s promise not to seek the death penalty. The parties agreed to recommend two consecutive life sentences with mandatory minimums of 40 years’ imprisonment each (hard 40) for the murders, and a consecutive 51-month sentence for arson. The district court imposed the sentences recommended by the plea agreement.
In November 2013, Noyce filed a pro se motion under K.S.A. 22-3504 to correct an illegal sentence, arguing his first-degree murder sentence was illegal because the first-degree and capital murder convictions both punished him for the same murder (Clifford’s). In legal parlance, Noyce argued the convictions were multiplicitous. In its response, the State argued Noyce’s claim was not properly raised as a motion to correct an illegal sentence. The district court summarily dismissed the claim on a different ground, holding: “The sentence for capital murder (Ct. 3) would render moot any need to resentence [defendant] on ct. 2.”
Noyce timely appeals to this court. We have jurisdiction because Noyce received two life sentences. See K.S.A. 2014 Supp. 22-3601(b)(3) (Supreme Court jurisdiction over appeal from life sentence).
Analysis
When a district court summarily denies a motion to correct an illegal sentence, this court applies de novo review because it has the same access to the motion, records, and files. Like the district court, we must determine if these documents conclusively show the movant is not entitled to relief. State v. Trotter, 296 Kan. 898, 901-02, 295 P.3d 1039 (2013).
A defendant may challenge a criminal sentence in a motion under K.S.A. 22-3504 only if the defendant claims the sentence is illegal under any of three theories: (1) The sentence was imposed by a court lacking jurisdiction; (2) it does not conform to the stat- utoiy provision either in character or term of the punishment authorized; or (3) the sentence is ambiguous with regard to the time and manner in which it is to be served. Sims, 294 Kan. at 825; see State v. Deal, 286 Kan. 528, Syl. ¶ 1, 186 P.3d 735 (2008).
This court has previously held multiplicity cannot be raised in a motion to correct an illegal sentence. State v. Bradford, 299 Kan. 288, 289, 323 P.3d 168 (2014); Sims, 294 Kan. at 826; State v. Edwards, 281 Kan. 1334, 1338-39, 135 P.3d 1251 (2006). A multiplicity claim is an attack on the conviction, not a sentencing matter. Bradford, 299 Kan. at 290.
Similarly, Noyce’s contention that his sentence is unconstitutional under Alleyne fails. Generally, constitutional issues cannot be raised for the first time on appeal. State v. Gomez, 290 Kan. 858, 862, 235 P.3d 1203 (2010). But even if an exception to the general procedural rule permitted review, the statutory definition of an illegal sentence does not include a claim that a sentence violates a constitutional provision. Mitchell, 284 Kan. at 377.
In addition, Noyce’s challenge cannot be saved by construing it under K.S.A. 60-1507. To begin with, Noyce expressly stated in his brief that he was not arguing his motion under K.S.A. 60-1507. Secondly, the motion was filed more than 15 years after the final order in this case. See K.S.A. 60-1507(f)(2) (time limitation on K.S.A. 60-1507 motion can be extended to prevent manifest injustice); State v. Holt, 298 Kan. 469, 480, 313 P.3d 826 (2013) (movant has duty to provide specific factual foundation to support claim of manifest injustice). Noyce has not demonstrated manifest injustice to the district court in order to properly bring a 1507 motion. For these reasons, this court rejected a recent motion to convert Noyce’s pleading to a 1507 motion.
Finally, we reject Noyce’s most recent motion for remand for a hearing under State v. Van Cleave, 239 Kan. 117, 716 P.2d 580 (1986). A Van Cleave hearing arises as a matter of appellate court discretion to remand ineffective assistance of counsel allegations after sufficient showing in a direct appeal as an alternative to the remedy afforded through K.S.A. 60-1507. 239 Kan. at 120. His case is not in that procedural posture.
Although it gave an incorrect basis for its ruling, i.e., that Noyce’s capital murder conviction would render moot any resentencing, we affirm the district court’s summary dismissal of the motion to correct an illegal sentence for the reasons explained. See State v. Unruh, 263 Kan. 185, Syl. ¶ 2, 946 P.2d 1369 (1997) (“The judgment of the trial court, if correct, is to be upheld even though the court may have relied upon a wrong ground or assigned an erroneous reason for its decision.”).
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Denied.
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Denied.
Unpubhshed | [
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The opinion of the court was delivered by
Johnson, J.:
In 1987, prior to the enactment of the Kansas Sentencing Guidelines Act (KSGA), Kohler Z. Jeffries pled no contest to felony murder and one count of aggravated robbery, pled guilty to three counts of aggravated robbery, and was convicted of felony murder and multiple counts of aggravated robbery, receiving a controlling prison term of life without possibility of parole for 30 years. This appeal is from the district courts summary denial of Jeffries’ 2014 motion to correct an illegal sentence. That motion claimed that our decision in State v. Murdock, 299 Kan. 312, 319, 323 P.3d 846 (2014), overruled by State v. Keel, 302 Kan. 560, 357 P.3d 251 (2015), cert. denied 136 S. Ct. 865 (2016), mandates that Jeffries’ sentence should be converted to a guidelines sentence under the 1993 version of the KSGA. Finding that Murdock is neither controlling nor analogous, we affirm the district court.
Factual and Procedural Overview
In 1986, Jeffries and Brian Bailey committed a series of armed robberies of gasoline stations and a liquor store. During one of the robberies, a clerk was shot and killed. Neither codefendant admitted to being the shooter, but they were both charged with felony murder, in addition to the robberies. Jeffries ultimately pled guilty to three counts of aggravated robbery and pled nolo contendere to one count of aggravated robbery and first-degree felony murder. He received a life sentence for the murder and 15-to-life sentences for the robberies, some of which were to be served concurrently and some to be served consecutively. As a result, Jeffries would not be parole-eligible for 30 years.
The 1993 KSGA provided that it could be retroactively applied to some existing indeterminate sentences for less severe crimes, allowing those sentences to be converted to determinate guidelines sentences. With regard to that provision, the Kansas Department of Corrections (DOC) issued a “Notification of Findings” to Jeffries, which indicated that because at least one of his crimes was a severity level 3 (any of the aggravated robbery convictions), he was not eligible for retroactive application of the KSGA. K.S.A. 21-4724(c)(1) (Furse 1995) (KSGA not retroactively applied to sentences which, had they been committed on or after July 1, 1993, would constitute a severity level 1, 2, 3, or 4 nondrug crime). Jef-fries did not appeal this finding. K.S.A. 21-4724(c)(4) (Furse 1995) (providing process to appeal eligibility for retroactive application of KSGA).
Many years later, prompted by this courts decision in Murdock, Jeffries filed a motion to correct an illegal sentence. The motion asserted that Murdock stands for the proposition that, because there were no severity level 3 felonies before the enactment of die KSGA, his prior aggravated robbery convictions could not be classified as severity level 3 felonies to deny the retroactive application of the KSGA.
The Johnson County District Court summarily denied the motion, finding that Murdock only applied to the classification of out-of-state convictions and Jeffries was challenging the classification of his in-state aggravated robbery conviction. Jeffries appealed directiy to this court. Jurisdiction is appropriate pursuant to K.S.A. 2015 Supp. 22-3601(b)(2); State v. Pennington, 288 Kan. 599, 599, 205 P.3d 741 (2009) (jurisdiction over appeal of motion to correct illegal sentence fies with court that had jurisdiction over original appeal).
Retroactive Application of KSGA
This is Jeffries’ fourth attempt at attacking his sentence. See Jeffries v. Kansas Prisoner Review Bd., No. 111,458, 2015 WL 2342777 (Kan. App.) (unpublished opinion); Jeffries v. Roberts, No. 97,600, 2007 WL 2377303 (Kan. App.) (unpublished opinion), rev. denied 285 Kan. 1174 (2007); Jeffries v. State, No. 94,419, 2006 WL 2043031 (Kan. App.) (unpublished opinion), rev. denied 282 Kan. 790 (2006). This challenge is founded upon the 1993 KSGA provision addressing the applicability of that act to crimes committed prior to July 1, 1993, K.S.A. 21-4724 (Furse 1995), as interpreted in light of Murdock. But Murdock is not directly applicable, both because it specifically limited its holding to the classification of out-of-state convictions and because it has been overruled by Keel. Likewise, Murdock does not provide an analytical framework for Jeffries’ argument because the retroactive application provision of K.S.A. 21-4724 (Furse 1995), does not contain the same ambiguity as addressed in Murdock.
Standard of Review
This court reviews de novo a district court’s summary denial of a motion to correct an illegal sentence. State v. Trotter, 296 Kan. 898, 901, 295 P.3d 1039 (2013). Like the district court, this court must determine whether the defendants motion, records, and files conclusively show defendant is not entitled to relief. State v. Jones, 292 Kan. 910, 913, 257 P.3d 268 (2011). Whether a sentence is illegal under K.S.A. 22-3504 is a question of law subject to de novo review. Makthepharak v. State, 298 Kan. 573, 578, 314 P.3d 876 (2013). Likewise, statutory interpretation is a question of law over which appellate courts have unlimited review. State v. Eddy, 299 Kan. 29, 32, 321 P.3d 12 (2014).
Analysis
We take the liberty of beginning with the topical and textual obstacles to Jeffries’ attempted use of the Murdock rationale to force a late conversion of his pre-KSGA indeterminate sentence under K.S.A. 21-4724 (Furse 1995). Both the issue presented and the statute interpreted in Murdock were too distinct from Jeffries’ issue to malee the Murdock decision persuasive, even if that holding had not been overruled in Keel.
Murdock involved an interpretation and application of K.S.A. 21-4711(e), which governed the criminal history classification of out-of-state prior convictions as being for either a person or nonperson crime. Murdock pled guilty to committing robberies in Kansas in 2008, and the sentencing court had to classify two prior Illinois robbery convictions — one in 1984 and one in 1990 — as either person or nonperson felonies to calculate Murdock’s criminal history score.
K.S.A. 21-4711(e)’s ambiguous directive was: “In designating a crime as person or nonperson comparable offenses shall be referred to. If the state of Kansas does not have a comparable offense, the out-of-state conviction shall be classified as a nonperson crime.” Murdock pointed out that the statute did not indicate the timeframe for referring to comparable Kansas offenses. For instance, the statute did not clarify whether the sentencing court should refer to comparable Kansas offenses in effect at the time of the 1984 Illinois robbery, or the comparable offenses in effect at the time of the 2008 offenses being prosecuted. See 299 Kan. at 315-16. Based on the precedent from State v. Williams, 291 Kan. 554, Syl. ¶ 4, 244 P.3d 667 (2010), Murdock determined that the statute should be construed to make the comparison to the Kansas offense in effect at the time the prior, out-of-state crime was committed. 299 Kan. at 317. Then, because Kansas had no designated person offenses when the Illinois robberies were committed, those prior robberies were scored as nonperson felonies. 299 Kan. at 319.
In this scenario, however, we are not faced with a statutoiy ambiguity. Jeffries was convicted of and sentenced for the crimes of first-degree murder and aggravated robbery prior to the enactment of the KSGA. He does not challenge the legality of his original sentence. Rather, he contends the later-enacted KSGA should have been retroactively applied to him to convert his indeterminate sentence to a guidelines sentence, suggesting that tire failure to do so transformed his legal sentence into an illegal one.
But “[extending retroactive conversion to some offenders by the 1993 legislature was an act of grace,” and Jeffries was not automatically entitled to conversion. State v. Roseborough, 263 Kan. 378, 386, 951 P.2d 532 (1997). To the contrary K.S.A. 21-4723 (Furse 1995) made it crystal clear that the retroactive application of the KSGA was the exception rather tiran the rule when it declared: “Except as provided in K.S.A. 21-4724, the provisions of this act creating a presumptive sentencing guidelines system have no application to crimes committed prior to July 1, 1993.” Consequently, Jeffries was ineligible for conversion unless he could fit within the exception of K.S.A. 21-4724 (Furse 1995).
K.S.A. 21-4724(a) (Furse 1995) confirmed that it was the statute containing the provisions under which the KSGA sentencing grids “shall be applied for crimes committed before July 1, 1993.” Subsection (b) generally provided that tire modification of sentences imposed prior to July 1,1993, was available for persons who would have been “classified in a presumptive nonimprisonment grid block on either sentencing grid... if sentenced pursuant to the [KSGA].” K.S.A. 21-4724(b) (Furse 1995). For the nondrug offense grid, the modifiable grid blocks listed were 5-H, 5-1, or 6-G. K.S.A. 21-4724(b)(1) (Furse 1995). In other words, only sentences for crimes that would have been classified as severity level 5 or 6 if the person had been sentenced under the KSGA were eligible for conversion. If Jeffries had been “sentenced pursuant to the [KSGA],” the crime of aggravated robbery would have been classified as a severity level 3 offense. See K.S.A. 21-3427 (Furse 1995) (“Aggravated robbeiy is a severity level 3, person felony.”).
Subsection (c)(1) corroborates Jeffries’ ineligibility for conversion. While directing the DOC to prepare a sentencing guidelines report on imprisoned inmates with pre-July 1, 1993, sentences, the provision specifically excepts reporting for “those who have convictions for crimes which, if committed on or after July 1,1993, would constitute a severity level 1, 2, 3 or 4 felony on the sentencing guidelines grid for nondrug crimes.” K.S.A. 21-4724(c)(1) (Furse 1995). The obvious reason for relieving DOC of the responsibility to report on those more severe crimes is that they are never eligible for conversion. And again, there is no temporal ambiguity. The statute clearly directs that a persons pre-July 1,1993, criminal acts are compared to the law in effect on July 1,1993, to determine conversion eligibility.
Even Murdock acknowledged that the issue presented here is not analogous to the one it decided, because K.S.A. 21-4724 is not ambiguous. In dictum, Murdock specifically cited to the language of K.S.A. 21-4724(c)(l) — “'as if the [prior] crime[s] were committed on or after July 1, 1993’ ” — as a means by which the legislature could resolve the ambiguities Murdock found to exist in K.S.A. 21-4711(e). 299 Kan. at 319.
In short, Jeffries’ 1987 indeterminate sentence for felony murder and multiple counts of aggravated robbery was ineligible for conversion to a guidelines sentence under the provisions of K.S.A. 21-4724 (Furse 1995) on July 1, 1993; his sentence remains ineligible for retroactive application of the KSGA today; and, therefore, Jeffries’ 1987 sentence is not illegal. The district court reached the correct result. See State v. Overman, 301 Kan. 704, 712, 348 P.3d 516 (2015) (district court’s correct result will be upheld on appeal).
Affirmed. | [
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Malone, J.:
Juanel Delon Locke appeals the district court’s denial of his motion to withdraw his plea. Because tire district court applied the wrong standard in considering Locke’s motion, we reverse and remand for a proper determination of the motion.
The State charged Locke with aggravated burglary, aggravated intimidation of a witness, criminal threat, criminal restraint, do mestic battery, and criminal damage to property. Locke agreed to plead no contest to aggravated intimidation of a witness and criminal threat in exchange for dismissal of the other charges. The parties agreed upon a mid-box sentence, including a dispositional departure with assignment to the Community Corrections Residential Center.
At the plea hearing, the district court discussed the plea agreement with Locke and explained the rights Locke was waiving by changing his plea to no contest. Throughout the hearing, Locke indicated his reluctance to change his plea. Eventually, Locke agreed to plead no contest and the district court accepted the plea.
Prior to sentencing, Locke filed a motion “pursuant to K.S.A. 22-3210, for good cause shown,” to permit him to withdraw his plea. The district court addressed the motion at Locke’s scheduled sentencing hearing. Locke’s attorney argued that a manifest injustice had occurred concerning Locke’s plea. The district court also permitted Locke to address the court. Locke stated that he needed mental counseling; that his attorney had ignored requests to obtain a mental evaluation for Locke; that he did not want to enter the plea, but he cracked under pressure; and that he had been sick, throwing up, and losing weight at the time of the plea.
In responding to Locke’s motion, the district court acknowledged that “there is a statute that allows the court to set aside that plea if there is a manifest injustice.” The district court concluded that Locke had not “shown any reason other than [his] profession of innocence that would show why it’s unjust for [his] original plea to be upheld.” The district court denied Locke’s motion to withdraw his plea. During sentencing, the district court again commented on Locke’s request to withdraw his plea, stating, “[W]hen these decisions [plea agreements] are made, they’re binding decisions unless there is some, you know, manifest injustice.”
Pursuant to the plea agreement, the district court imposed a 27-month sentence and granted Locke a dispositional departure with placement at the Community Corrections Residential Center. Locke timely appeals.
The only issue on appeal is whether the district court erred by denying Locke’s motion to withdraw his plea. The standard of re view regarding the district court’s decision on a motion to withdraw a plea is abuse of discretion. See K.S.A. 2004 Supp. 22-3210(d). Generally, discretion is abused only when no reasonable person would take the view adopted by the district court. State v. Bey, 270 Kan. 544, 546, 17 P.3d 322 (2001). However, if a statutory right has been violated, the district court’s discretion is limited. “Discretion must be exercised, not in opposition to, but in accordance with, established principles of law. It is not an arbitrary power.” Saucedo v. Winger, 252 Kan. 718, 731, 850 P.2d 908 (1993).
Locke correctly asserts the district court applied the wrong standard in determining Locke’s motion to withdraw his plea.
“A plea of guilty or nolo contendere, for good cause shown and within the discretion of the court, may be withdrawn at any time before sentence is adjudged. To correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw die plea.” K.S.A. 2004 Supp. 22-3210(d).
Here, Locke filed his motion to withdraw his plea prior to sentencing and the district court heard the motion at sentencing. Therefore, Locke only needed to show “good cause” to withdraw his plea.
The district .court, however, denied Locke’s motion to withdraw his plea because Locke was unable to show “manifest injustice.” There is no indication in the record that the district court even considered the “good cause” standard. The burden upon the defendant to show “good cause” is less than to show “manifest injustice.” State v. Solomon, 257 Kan. 212, 219-20, 891 P.2d 407 (1995). Thus, a determination that Locke did not show manifest injustice does not preclude a showing of “good cause.” By applying the wrong standard, the district court abused its discretion in denying Locke’s motion to withdraw his plea.
The State contends that Locke invited the district court’s error by arguing “manifest injustice” in the motion to withdraw and at the hearing on the motion. “A litigant may not invite and lead a trial court into error and then complain of the trial court’s action on appeal.” State v. Boorigie, 273 Kan. 18, 27, 41 P.3d 764 (2002).
Indeed, Locke’s motion to withdraw his plea did make a reference to a manifest injustice; however, the motion also requested that Locke be permitted to withdraw his plea “pursuant to K.S.A. 22-3210, for good cause shown.” (Emphasis added.) Also, at the hearing Locke’s attorney argued that a manifest injustice had occurred concerning the plea. However, the attorney never asserted that the district court should determine the motion under the “manifest injustice” standard. We conclude that Locke did not invite the district court to commit error.
Having found that the district court erred in considering Locke’s motion to withdraw his plea, we must determine how to dispose of the case. It is not this court’s function to review the record to determine if Locke established “good cause” to withdraw his plea. This judgment must be first exercised by the district court. Locke’s brief requests that his “plea should be vacated and his case remanded for trial.” However, such a disposition is presently unwarranted. Locke is only entitled to have the district court apply the correct standard in considering his motion. Accordingly, die case is remanded for a rehearing on Locke’s motion to withdraw his plea, and the district court is directed to apply the correct standard in considering the motion.
Reversed and remanded with directions. | [
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The opinion of the court was delivered by
Beier, J.:
This is an appeal arising from defendant Jerry Sellers’ “Motion to Arrest Judgment Pursuant to K.S.A. 22-3503.” Sellers argued that the charging document in his Jessica’s Law case failed to include the essential element that he was age 18 or older at the time of the alleged crimes, and he relied on language in this court’s decision in State v. Portillo, 294 Kan. 242, 256, 274 P.3d 640 (2012), which states that “K.S.A. 22-3503 allows the trial court to arrest judgment without a motion by defendant and without the time constraints of K.S.A. 22-3502.”
The district court judge denied Sellers’ motion. Sellers appealed. The Court of Appeals dismissed the appeal, apparently relying on State v. Mitchell, 297 Kan. 118, Syl. ¶ 1, 298 P.3d 349 (2013), in which we rejected a criminal defendant’s attempt to use K.S.A. 60-260(b)(4) as a procedural vehicle for collateral attack on a conviction. 297 Kan. at 125.
We hold that appellate jurisdiction exists to consider whether K.S.A. 22-3503 may afford postconviction relief in a situation such as Sellers’, and we ultimately conclude that it does not.
Factual and Procedural Background
In 2008, a jury convicted Jerry Sellers on two counts of aggravated indecent liberties with a child. This court laid out the facts underlying Sellers’ convictions when his case was before us on direct appeal, see State v. Sellers, 292 Kan. 117, 253 P.3d 20 (2011), as modified June 22, 2011, and a lengthy recitation of those facts is unnecessary for the disposition today. Highly summarized, the 13-year-old daughter of Sellers’ girlfriend accused Sellers of touching her breast and pubic area on Thanksgiving morning 2007. 292 Kan. at 348-50.
Count 1 alleged:
“That on or about the 24th day of November, 2007, in Harvey County, Kansas, Jerry Dale Sellers Jr, then and there being present did unlawfully, feloniously and intentionally engage in lewd fondling or touching of MRC (DOB: 08/16/1994), a child under 14 years of age, by fondling her breast, with the intent to arouse or to satisfy the sexual desires of the victim, the defendant, or both, in violation of K.S.A. 21-3504(a)(3)(A), Aggravated Indecent Liberties with a Child, an off-grid person felony, penalties include imprisonment of life imprisonment with a mandatory minimum term of not less than 25 years, a fine not to exceed $300,000, and lifetime post-release supervision.”
Count 2 was identical except for the target of Sellers’ touch. Neither count alleged that Sellers was 18 or older at the time of illegal conduct, but the charging document did list Sellers’ year of birth as 1971, making him well beyond 18 years old by Thanksgiving 2007.
At sentencing, the district court judge departed from the life sentence and mandatory 25-year minimum of Jessica’s Law, instead imposing a 72-month sentence for Count 1 and a consecutive 59-month sentence for Count 2. Sellers did not file a motion to arrest judgment in the district court before pursuing his direct appeal.
On appeal, Sellers challenged his lifetime postrelease supervision, which is required as part of a Jessica’s Law sentence. See Sellers, 292 Kan. at 360. At sentencing, the district court judge had initially ordered 36 months’ postrelease supervision but, after going off the record briefly, changed the postrelease term to life. Sellers argued that lifetime postrelease was inappropriate because the State had failed to charge and prove that he was 18 years or older. He did not, however, challenge the statutory adequacy or constitutionality of the charging document to support his prosecution overall.
Our decision in Sellers’ direct appeal recognized that a defendant’s age of 18 or older was an element of the off-grid Jessica’s Law aggravated indecent liberties charges but noted that we had excused the State from charging and ensuring jury instructions on that element when evidence in the trial record “left no doubt that the omissions made no practical difference in the verdict.” Sellers, 292 Kan. at 362 (citing State v. Reyna, 290 Kan. 666, 234 P.3d 761 [2010]; State v. Colston, 290 Kan. 952, 235 P.3d 1234 [2010]). When, on the other hand, there had been no such evidence, a defendant could receive only the punishment consistent with the on-grid form of the offense. Sellers, 292 Kan. at 362. In Sellers’ case, we acknowledged, the charging document failed to allege the age element. Also, there was no express evidence of Sellers’ age admitted at trial, and jurors were not-instructed that they had to agree that Sellers was 18 or older when he committed the offenses. We nevertheless affirmed the postrelease supervision because it was required under K.S.A. 22-3717(d)(l)(G) for offenders convicted of a “sexually violent crime” committed after July 1, 2006. Aggravated indecent liberties under K.S.A. 21-3504—whether off-grid or on-grid—qualified as a sexually violent crime.
Following his direct appeal, Sellers timely filed a motion challenging his convictions under K.S.A. 60-1507. In the motion, Sellers alleged ineffective assistance of his appointed trial counsel. The district court held an evidentiary hearing on the motion at which Sellers and his trial counsel testified. The district court denied the motion, and the Court of Appeals affirmed. See Sellers v. State, No. 109,537, 2014 WL 2589785, at *3 (Kan. App. 2014) (unpublished opinion).
Five days before the evidentiary hearing on his K.S.A. 60-1507 motion, Sellers filed the motion that is the subject of this appeal. He argued that the charging document had been fatally defective and had deprived the district court of jurisdiction to convict him on either count. The district judge denied the motion, reasoning that “the Kansas Supreme Court specifically was aware of the complaint’s failure to include the 18 years or older element in this case and effectively approved this omission in [its] opinion dealing with tire issue of [lifetime postrelease supervision].” The district court concluded that this court would have “reversed for lack of jurisdiction on [its] own motion” on Sellers’ direct appeal if there had been a concern on that issue.
Sellers filed a timely appeal to the Court of Appeals. The Court of Appeals issued a show cause order, which read in part:
“A review of the brief and the record on appeal suggests that the sole issue on appeal is controlled by the Kansas Supreme Court’s ruling in State v. Mitchell, 297 Kan. 118, 298 P.3d 349 (2013), where the Court made clear that K.S.A. 60-1507 provides the exclusive remedy to collaterally attack a criminal conviction and sentence.”
The Court of Appeals ordered Sellers to show cause why his case should not be dismissed for lack of jurisdiction.
Sellers filed a response, arguing that his motion had been properly filed under K.S.A. 22-3503 and that Mitchell’s “ ‘exclusiveness of remedy’ holding has only ever been applied by the Kansas appellate courts .relating to challenges to inmates relying on K.S.A. 60-260(b), ‘Grounds for relief from a final judgment, order or proceeding’ under the civil code.”
On the same day that Sellers filed his response, the Court of Appeals dismissed the appeal without further explanation. We accepted Sellers’ petition for review.
Discussion
Jurisdiction
The only issue listed in Sellers’ petition for review is one of jurisdiction, i.e., whether the Court of Appeals erred in dismissing the appeal based on Mitchell, 297 Kan. 118, Syl. ¶ 1. Subject matter jurisdiction in the district court and appellate court raises a question of law reviewable de novo by this court. See State v. Key, 298 Kan. 315, 318, 312 P.3d 355 (2013).
As Sellers points out, Mitchell dealt with a convicted defendant’s attempt to employ K.S.A. 60-260(b)—a provision of the Kansas civil code that may be invoked by a civil litigant to obtain relief from a final judgment, order, or proceeding—as a procedural vehicle for a collateral attack on a criminal conviction. 297 Kan. at 119. Sellers asserts that Mitchell must be read narrowly, disallowing a criminal defendant’s use of K.S.A. 60-260(b) only.
We have already implicitly rejected Sellers’ narrow reading of Mitchell in State v. Kingsley, 299 Kan. 896, 326 P.3d 1083 (2014). In Kingsley, this court relied on Mitchell to hold that neither K.S.A. 60-260(b) nor K.S.A. 60-2606, a different provision discussing availability of relief in certain circumstances in civil proceedings, may be used as a platform from which to mount a collateral attack on a criminal conviction and sentence. 299 Kan. 896, Syl. ¶ 1.
But Sellers’ argument focuses worthy attention on whether any earlier statement about tire exclusivity of the K.S.A. 60-1507 process should be clarified. He points out, for example, that motions to correct illegal sentence have previously been recognized as valid means to the end of attacking a criminal sentence. See State v. Gilbert, 299 Kan. 797, 801, 326 P.3d 1060 (2014) (K.S.A. 22-3504 motion provides vehicle to correct illegal sentence); Makthepharak v. State, 298 Kan. 573, 577, 314 P.3d 876 (2013) (district court properly considered motion to correct illegal sentence filed after direct appeal).
In addition, we note that even Mitchell described a motion filed pursuant to K.S.A. 60-1507 as a “generally” exclusive remedy, thereby recognizing that exceptions to it existed. 297 Kan. at 121. Indeed, both K.S.A. 60-1507(e) (exclusiveness of remedy) and its implementing Supreme Court Rule 183(b) (2014 Kan. Ct. R. An-not. 286) explicitly contemplate the possibility that there may be circumstances when a K.S.A. 60-1507 motion is “inadequate or ineffective to test the legality” of a movant’s custody. In such circumstances, another type of challenge would be appropriate.
Given these authorities, we hold that the Court of Appeals should not have dismissed Sellers’ appeal for lack of jurisdiction, relying only on our Mitchell decision. The district court had subject matter jurisdiction over Sellers’ motion, and the Court of Appeals had appellate jurisdiction. It should have determined whether Sellers’ motion suffered from a fatal procedural or substantive flaw justifying its denial in district court.
Appropriateness of Reliance on K S.A. 22-3503
Our jurisdictional ruling above leaves open the original question on appeal to the Court of Appeals: Whether Sellers may raise a collateral challenge to the charging document in a K.S.A. 22-3503 motion filed well after his direct appeal. Although we could remand this case to the Court of Appeals for determination of this question of statutory interpretation or construction in the first instance, see State v. Hilton, 295 Kan. 845, 852, 286 P.3d 871 (2012) (reinstating appeal after dismissal, remanding to Court of Appeals for consideration of issue presented), we elect not to do so here. The underlying factual and procedural history of this case is not in dispute, and the pure question of law is as amenable to resolution before us as it would be before the Court of Appeals.
We begin by examining the language of the statute whose application Sellers seeks to avoid; that statute, K.S.A. 2013 Supp. 22-3502, reads:
“The court on motion of a defendant shall arrest judgment if the complaint, information or indictment does not charge a crime or if the court was without jurisdiction of the crime charged. The motion for arrest of judgment shall be made within 14 days after the verdict or finding of guilty, or after a plea of guilty or nolo contendere, or within such further time as the court may fix during the 14-day period.”
Sellers plainly cannot avail himself of relief under K.S.A. 2013 Supp. 22-3502 because he is years outside the time limit for filing his motion for arrest of judgment.
He has sought, instead, to bring his case under the protective umbrella of K.S.A. £2-3503, which reads: “Whenever the court becomes aware of the existence of grounds which would require that a motion for arrest of judgment be sustained, if filed, the court may arrest the judgment without motion.” Sellers argues that his motion merely made the court aware of the fatal defect in the charging document, and he emphasizes language in our recent Portillo decision, 294 Kan. at 256, noting the absence of a time limit in K.S.A. 22-3503.
Sellers also is urged upon his unconventional path by more than the mere promise of escape from the 14-day time limit in K.S.A. 2013 Supp. 22-3502. He seeks application of the standard for review of charging documents that governed in Kansas cases before this court’s decision in State v. Hall, 246 Kan. 728, 793 P.2d 737 (1990), overruled in part on other grounds by Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003). That standard has traditionally been understood to be more generous to defendants, judging omissions from a charging document strictly and declaring a conviction void as a remedy for any perceived fatal flaw, including the absence of mention of an essential element. See State v. Hurd, 298 Kan. 555, 565, 316 P.3d 696 (2013). Since the Hall decision, the pre-Hall standard for review of charging documents has been applied only when a convicted defendant has alerted a district court to the potential problem by means of a motion to arrest judgment. If, instead, a defendant does not raise the issue until the case is on direct appeal or later, the charging document is viewed less strictly and a remedy for the defense is far less likely. See State v. Inkelaar, 293 Kan. 414, 434, 264 P.3d 81 (2011).
As with the subject of jurisdiction, Sellers’ argument counsels this court’s renewed effort to achieve clarity—in this instance, on the timing of arrests of judgment under K.S.A. 22-3503.
We note first that, nearly 20 years before Portillo was decided, this court had imported the time limit set out in K.S.A. 22-3502 into K.S.A. 22-3503. See State v. Sims, 254 Kan. 1, 10, 862 P.2d 359 (1993) (time limit then 10 days after verdict).
Portillo, on the other hand, employed the lack of a time limit in the plain language of K.S.A. 22-3503 to allow relief to a defendant surprised by the State’s postconviction effort to amend a presentence investigation report to reflect a current conviction of an off-grid rape subject to Jessica’s Law rather than the current conviction of on-grid rape that had been charged and prosecuted. Portillo, 294 Kan. at 256. We recognized that the 14-day window from verdict for filing of a 22-3502 motion for arrest of judgment, as required by Hall to justify invocation of tire pre-Hall standard for review of a charging document, had already closed by the time the State sought to amend the PSI. 294 Kan. at 256. The State argued that Portillo’s challenge to the charging document, should be subject to the post-Hall analysis. We disagreed, holding that the Hall goal of timely district court review of a challenge to the adequacy of the charging document would have been met if the district judge had acted sua sponte under K.S.A. 22-3503. 294 Kan. at 256-57.
The procedural posture of this case bears no resemblance to that before us in Portillo or in Sims, each of which contemplated district judge action before the district court was divested of jurisdiction by tire docketing of a direct appeal. They also contemplated sua sponte district judge action, not action prompted by the filing of a defense motion. This is in keeping with the plain language of the statute, which specifies that the court may arrest judgment “without motion.” K.S.A. 22-3503.
Were we to interpret or construe K.S.A. 22-3503 to apply when there has been a defense motion, K.S.A. 2013 Supp. 22-3502 and its time limitation would be rendered a nullity. Such a holding would not only contradict the plain language of K.S.A. 22-3503; it also would run afoul of our usual presumption that the legislature does not enact meaningless statutes. See State v. Frierson, 298 Kan. 1005, 1012-13, 319 P.3d 515 (2014).
K.S.A. 22-3503 is not a procedural vehicle that supports a defense motion for arrest of judgment long after a direct appeal has been pursued and decided. It is meant to permit a district judge to arrest judgment sua sponte before a direct appeal is taken.
Before closing, we also note that the district court overread our holding in Sellers’ direct appeal. It was limited to the postrelease issue. See Sellers, 298 Kan. at 363. This court did not decide whether the charging document conferred subject matter jurisdic tion on the district court. The import of our decision today is that, if Sellers still wishes to challenge the adequacy of the charging document, he needs to employ a procedural mechanism other than K.S.A. 22-3503. And, substantively, he will need to deal with any legal effect of the inclusion of his birthdate, a birthdate that meant he had reached his mid-30s on Thanksgiving 2007, the day of the crimes.
Conclusion
Because the Court of Appeals erred in dismissing this appeal, it is reinstated. However, no relief is due die defendant on his motion under K.S.A. 22-3503, and the judgment of the district court is therefore affirmed. | [
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Goering, J.:
This case pertains to whether the City of Topeka (City) is required to pay relocation benefits pursuant to K.S.A. 2015 Supp. 26-518 to two former tenants of properties purchased from their landlord by the City in connection with a drainage project. The district court entered summary judgment in favor of the City, holding that tire tenants failed to present evidence to establish (1) that they were “displaced persons” entitled to relocation expenses under the statute and (2) that the City’s purchase of the land was “in advance of a condemnation action.” We find that the district court erred in granting summary judgment to the City. We therefore reverse the district court’s grant of summary judgment and remand the case to the district court for further proceedings.
Factual and Procedural Background
The facts relevant to this appeal are straightforward. The tenants, Charles Nauheim and Hal Richardson, leased business property in Topeka from the James D. Henderson Living Trust (landlord). Nauheim and Richardson had been long term tenants of the landlord. In connection with a drainage project, the City approached the landlord seeking to purchase the property leased by the tenants. Negotiations between the City and die landlord commenced.
During negotiations, the City made clear its desire that the property be vacant prior to the City’s acquisition of title. On July 31,2013, tiie City’s real estate officer, Robert Kennedy, emailed the landlord saying:
“The Deputy City Attorney is concerned that the lease will allow the tenant to stay beyond the 60-90 days and force the City to condemn their lease interest and force us to pay relocation expenses, etc. I know you are working on some kind of arrangement with them, so you may already have a resolution. But we will not be able to move forward until that lease interest is resolved.”
On August 16,2013, the City’s deputy city attorney, Mary Feigh-ny, emailed the landlord advising the landlord that the City did not want to have to exercise its eminent domain power to purchase the leasehold interest of a different tenants business should that tenant refuse to relocate. On October 24, 2013, Kennedy again emailed the landlord advising, “I suppose, if we do not close this transaction, that the City will then have to condemn to get these properties. That is not a sure tiring, as City management has been very reluctant to use condemnation [as] the City Council is not happy to see that going on.”
Jennifer Harrell was the project engineer for the City during this time frame. Kennedy negotiated the purchase of the property under her direction. According to Harrell, acquisition of the landlords property was contingent upon it being vacant at the time of closing.
Ultimately, the City was able to acquire the property from the landlord without exercising its power of eminent domain. The tenants were required to relocate. No federal funds were used to pay for any part of the drainage project.
The tenants filed suit against the City to recover, pursuant to K.S.A. 2015 Supp. 26-518, relocation expenses they incurred when the landlord cancelled their leases on the subject property. The parties filed competing motions for summary judgment. The district court entered summary judgment on behalf of the City, finding that the tenants failed to establish two key prerequisites for the recovery of relocation expenses under K.S.A. 2015 Supp. 26-518. First, the district court determined that the tenants were not “displaced persons” within the meaning of K.S.A. 2015 Supp. 26-518. Second, the district court found that the City did not acquire the subject property “through negotiations in advance of a condemnation action.” The tenants challenge both of these legal conclusions in their timely appeal.
Standard of review
The standard of review is well settled. Summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits or declarations show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” K.S.A. 2015 Supp. 60-256(c)(2).
“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 the ruling is sought. When opposing a motion for summaiy 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, we apply the same rules 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).
Where the material facts are uncontroverted, as they are in this case, our review to determine whether summary judgment is proper as a matter of law is unlimited. Stroda v. Joice Holdings, 288 Kan. 718, 720, 207 P.3d 223 (2009) (when material facts are undisputed, appellate review of the district court’s grant of summary judgment is de novo). With this standard of review in mind, we now consider the issues raised by the tenants in the order they are presented.
Analysis
Are the tenants “displaced persons” within the meaning of K. S.A. 2015 Supp. 26-518?
In their first issue on appeal, the tenants argue that the district court committed error in concluding as a matter of law that neither of them were a “displaced person” under K.S.A. 2015 Supp. 25-518. This is an issue of first impression in Kansas.
K.S.A. 2015 Supp. 26-518(a) states:
“Whenever federal funding is not involved, and real property is acquired by any condemning authority through negotiation in advance of a condemnation action or through a condemnation action, and which acquisition will result in the displacement of any person, the condemning authority shall:
“(a) Provide the displaced person, as defined in the federal uniform relocation assistance and real property acquisition policies act of 1970, fair and reasonable relocation payments and assistance to or for displaced persons.”
The term “displaced person” is defined in the Uniform Relocation Assistance and Real Property Acquisition Policies Act, 42 U.S.C. § 4601 (2012) as follows:
“(6)(A): The term ‘displaced person’ means . . .:
“(i) any person who moves from real property, or moves his personal property from real property—
(I) as a direct result of a written notice of intent to acquire or the acquisition of such real property in whole or in part for a program or project undertaken by a Federal agency or with Federal financial assistance; or
(II) on which such person is a residential tenant or conducts a small business, a farm operation, or a business defined in paragraph (7)(D), as a direct result of rehabilitation, demolition, or such other displacing activity as the lead agency may prescribe, under a program or project undertaken by a Federal agency or with Federal financial assistance in any case in which the head of the displacing agency determines that such displacement is permanent.” (Emphasis added.)
The parties agree that the relevant question here is whether, as a matter of law, the tenants are “displaced persons” in that their relo-cations were a “direct result” of the City acquiring their landlords properties at issue. As expected, the parties disagree on the answer to that question. Resolution of this issue requires the interpretation of K.S.A. 2015 Supp. 26-518, which is a question of law subject to unlimited review on appeal. O’Brien v. Leegin Creative Leather Products, Inc., 294 Kan. 318, 331, 277 P.3d 1062 (2012). The rules of statutory interpretation are well known:
“When a statute is plain and unambiguous, we must give effect to its express language, rather than determine what the law should or should not be. We will not speculate on the legislative intent and will not read the statute to add something not readily found in it. If the statute’s language is clear, there is no need to resort to statutory construction. [Citations omitted.]” Graham v. Dokter Trucking Group, 284 Kan. 547, 554, 161 P.3d 695 (2007).
The City’s position on this issue, and ultimately -tire position taken by the district court, was that the tenants were not forced to relocate from the subject property as a direct result of the acquisition of that property by the City, but rather as tire result of their dealings with the landlord. In the view of the City and the district court, the tenants’ relocation from the subject property was an indirect consequence of the City’s acquisition of the subject property. We disagree.
The uncontroverted facts in this case establish that the City’s acquisition of the subject property was contingent upon the property being vacant at the time of closing. This condition precedent for tire acquisition of the property was established by the City, not the landlord. Stated another way, the City was only a willing purchaser of the subject property if the property was vacant. There was no other reason for the landlord to force the tenants to relocate from the property other than the fact that it was a necessary prerequisite for the sale of the property to the City. To suggest that the tenants’ relocation from the subject property under such circumstances was an indirect result of the City’s acquisition of the property is to ignore entirely the reason why the landlord forced the tenants to relocate. In this myopic view, the landlord’s decision to force the tenants to relocate was independent of, or at best tangentially related to, the City’s acquisition of the property, which is contrary to tire summary judgment record. There is no evidence in the summary judgment record to suggest that the landlord’s forced relocation of the tenants was for reasons independent of the City’s acquisition of the subject property.
The district court relied on Dawson v. U. S. Dept. of Housing and Urban Development, 428 F. Supp. 328 (N.D. Ga. 1976), in support of its ruling that the tenants’ relocation was indirectly, rather than directly, the result of the City’s acquisition of the subject property. Dawson is readily distinguishable from this case. In Dawson, the plaintiff, Peggy Dawson, was a tenant in an apartment complex in Atlanta, Georgia, that was sold to a private developer. Certain areas of Atlanta had been approved for urban renewal pursuant to the Neighborhood Development Programs Act, 42 U.S.C. § 1469 et seq., but the apartment complex where the plaintiff resided was not in the included area. The'.purchaser intended to rehabilitate the building and demanded that Dawson vacate her apartment. Dawson filed suit, claiming that she was entitled to relocation benefits pursuant to the Uniform Relocation Assistance and Real Property Acquisition Policies Act.
The parties in Dawson were in agreement that a person forced to relocate as a result of the Neighborhood Development Programs Project was entitled to relocation assistance under the provisions of the Uniform Relocation Assistance and Real Property Acquisition Policies Act. The .parties were also in agreement that Dawson was not forced to relocate pursuant to that project. Nevertheless, Dawson argued that her displacement was the “direct result” of activities within the area approved for urban renewal pursuant to Neighborhood Development Programs Act. The court disagreed, holding:
“Finally, the plaintiff contends that she is entitled to assistance under the Act as her dislocation was a ‘direct result’ of urban renewal activities under the provisions of section 4637 of the Act, to wit; the Neighborhood Development Programs Act Project. Plaintiff argues that this results from the fact that the purchase of her building outside of the Neighborhood Development Programs Project Area occurred only because the owner would not sell its buildings inside the development area without also selling those it owned outside the area. The Court disagrees. Simply stated, the proximate cause of plaintiff’s displacement was the decision by the owner of her apartment building to sell to a private developer. While the decision of her landlord to sell may have been influenced by the urban renewal activities in the Neighborhood Development Programs Project Area, her dislocation was not the ‘direct result’ of those activities. Her dislocation was not a result of the urban renewal activities but came because of a decision made by her landlord.” 428 F. Supp. at 333.
In this case, the landlord sold the subject property to the City, an entity with the power of eminent domain. Further, the property at issue in Dawson was not in an area subject to urban renewal activities that would have entitled the tenant to benefits under the Uniform Relocation Assistance and Real Property Acquisition Policies Act. Here, the acquisition of the subject property by the City in this case was directly connected to the City’s drainage project. In fact, the sole purpose of the City’s acquisition of the property was for use in the drainage project.
The statutory language defining a “displaced person” is straightforward and unambiguous. A “displaced person” is any person who moves from real property as a direct result of the acquisition of such property by the City. See 42 U.S.C. § 4601(6)(A)(i)(I) (2012). Here, the City conditioned the acquisition of the subject property on the property being vacant at the time of closing. The landlord forced the tenants to vacate the subject property in order to meet this condition. The property, having been vacated by the tenants, was then acquired by the City. As such, the landlord’s decision to force the tenants to vacate the property was an event that was inseparably finked to the sale of the property to the City. The uncon-troverted facts in this case establish that the tenants’ forced relocation from the subject property was the direct result of the City’s acquisition of that property-—there was no other reason that the tenants were forced to relocate. The district courts holding to the contrary was in error. The tenants are “displaced persons” as that term is defined in Uniform Relocation Assistance and Real Property Acquisition Policies Act and are therefore “displaced persons” as that term is used in K.S.A. 2015 Supp. 26-518(a).
Did the City acquire the subject property “in advance of a condemnation action”P
Although the tenants are “displaced persons,” they are not entitled to relocation benefits pursuant to K.S.A. 2015 Supp. 26-518 unless the subject property was acquired by the City “through negotiation in advance of a condemnation action.” The district court determined that City did not acquire the subject property “through negotiation in advance of a condemnation action” and granted the City summary judgment. On this issue, the tenants advance two arguments: (1) that K.S.A. 2015 Supp. 26-518 does not require an “intent to condemn” by the City; and (2) assuming that there is an “intent to condemn” requirement, the material questions of fact preclude summary judgment. Each argument will be addressed in turn.
1. Does K.S.A. 2015 Supp. 26-518 require a condemning authority to threaten condemnation or take steps towards condemnation?
The district court ruled K.S.A. 2015 Supp. 26-518 required the tenants to establish that a condemning authority either took affirmative steps toward condemnation, or threatened to do so. In its written opinion, the district court reasoned:
“[Tenants’] argument ignores the power of a condemning authority to exercise its corporate powers and acquire property without invoicing eminent domain. A municipality may be able to exercise its eminent domain powers, but the existence of an option to condemn does not necessitate the conclusion that every real estate transaction undertaken by a municipality is ‘in advance of a condemnation action.’ See K.S.A. 12-101 (Second, Fourth).
“According to [Tenants’] suggested reading of K.S.A. [2015 Supp.] 26-518, every negotiation conducted by a condemning authority—regardless of how the acquisition is being made—would be ‘in advance of a condemnation action’ simply because the condemning authority holds that option to condemn. Put another way, under this reading, there would never be a negotiation not in advance of a condemnation action, and the condemning authority would have to pay relocation benefits for every acquisition. Such an interpretation is clearly against the legislative intent behind K.S.A. [2015 Supp.] 26-518, because the legislature added the qualified ‘through negotiation in advance of a condemnation action or through a condemnation action.’ Had the legislature intended a condemning authority to pay relocation benefits every time it acquired property, the legislature would not have included any such qualifying language.”
On appeal, the tenants attack the district court’s conclusion arguing that it belies the plain language of K.S.A. 2015 Supp. 26-518. The tenants claim that had the legislature intended to require that a condemning authority be poised to condemn, the legislature would have added that requirement to the statute. The City contends that the tenants’ interpretation of K.S.A. 2015 Supp. 26-518 creates a slippery slope on which all acquisitions by a condemning authority would be subject to K.S.A. 2015 Supp. 26-518. The City argues this interpretation ignores the qualifying language of the statute—that only acquisitions “in advance of a condemnation” are covered.
To resolve this issue, we look to the plain language of K.S.A. 2015 Supp. 26-518. Not every acquisition made by a condemning authority is covered by the statute, only those acquisitions that are done “through negotiation in advance of a condemnation action or through a condemnation action.” To interpret K.S.A. 2015 Supp. 26-518 in the fashion urged by the tenants, the phrase “in advance of a condemnation action” would be rendered mere surplusage. We presume that the legislature does not intend to enact useless legislation, and we are obligated to interpret a statute so that part of it does not become surplusage. Siruta v. Siruta, 301 Kan. 757, 763, 348 P.3d 549 (2015). We agree with the district court. In order for the tenants to establish that they are entitled to relocation benefits pursuant to K.S.A. 2015 Supp. 26-518, the tenants must prove that the City either threatened or took affirmative action towards condemnation.
2. Was there evidence in the summary judgment record that the City either threatened or took affirmative action towards condemnation P
The question then becomes whether there was evidence in the summary judgment record that the City either threatened or took affirmative action towards condemnation of the subject property. On this issue, the district court held that it was uncontroverted that the City did not intend to exercise its power of eminent domain to acquire the subject property. The district court reasoned:
“The Deputy City Attorney’s email specifically says, 1 don’t want the City to have to exercise its eminent domain power . . .’ (Emphasis added.) Kennedy’s July 31 email can be read only one way: that the City Legal department would not allow the project to reach the point where they would have to use eminent domain. His October 24 email reiterates the July 31 email, and though he says, 1 suppose, if we do not close this transaction, that the City will then have to condemn to get these properties,’ he immediately closes that off as a likely course.
“While it is argued that his statement is a threat of condemnation, such an argument must fail. A threat of condemnation is made to an unwilling seller in order to get them to sell-—that if they did not sell, then the land will be condemned. [Citation omitted.] Here, diere was a willing seller, so there is no need for a direat of condemnation. The Court finds that Kennedy’s comment is notíiing more tíian acknowledgment of the option for the Defendant City to use eminent domain, but this does not shift their negotiations to being ‘in advance of a condemnation action,’ as no threat was made. The Court further finds that reasonable minds could not differ as to the conclusion that the emails exchanged between City staff and Landlord contained no threat to exercise the Defendant City’s eminent domain powers.”
As noted above, in ruling on a summary judgment motion “[t]he 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 the ruling is sought.” Shamberg, 289 Kan. at 900. In addition, the court should resist the temptation to “pass on credibility and to balance and weigh evidence,” which are proper functions for the factfinder at trial. Mastin v. Kansas Power & Light Co., 10 Kan. App. 2d 620, 624, 706 P.2d 476 (1985). “In short, ‘[sjummary judgment should not be used to prevent the necessary examination of conflicting testimony and credibility in the crucible of a trial/” 10 Kan. App. 2d at 624. We do not think that the district court viewed the summary judgment record consistent with this standard.
The summary judgment record included an affidavit from the landlord who averred: “Through conversations with at least two representatives, the City of Topeka indicated to Affiant that if negotiations failed, the City would then have to condemn the properties.” Thus, from the landlords perspective, the email communication from the City indicated to him that the subject property would be condemned if negotiations failed. That is a reasonable interpretation given the language of the emails. In the August 16, 2013, email, the Deputy City Attorney stated: “I don’t want the city to have to exercise its eminent domain power to purchase the leasehold interest of Auto Acceptance should the latter refuse to move to its new location.” In the October 24, 2013, email, the City’s real estate officer stated: “I suppose, if we do not close this transaction, that the City will then have to condemn to get these properties.”
The district court focused its attention on the qualifying language in the email exchanges that suggested the City viewed condemnation as a less attractive method to acquire the subject property. However, we cannot conclude from this language that the City was taking the option of condemnation entirely off tire table. If that were the case, there would have been no reason for representatives of the City to mention the option of condemnation in the first place. The email communications at issue were exchanged during negotiations for the acquisition of the subject property. The City clearly intended for the landlord to be aware that it had the option of condemnation if the City was not able to acquire the subject property through negotiation. Whether that constitutes a threat of condemnation is a question of fact that is for the trier of fact. Certainly the landlord, who was on the receiving end of these communications, had the understanding that if negotiations failed the City would have to condemn the property.
We find that reasonable minds could conclude from the emails exchanged that the City intended to acquire the subject property by condemnation if it could not acquire the property through negotiation. “[Wjhere we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.” Shamberg, 289 Kan. at 900. Because genuine issues of material fact remain as to whether the City acquired the subject property through negotiations in advance of a condemnation action, the district court committed error when it granted the City summary judgment. Accordingly, we reverse the grant of summary judgment to the City and remand the case to the district court for further proceedings consistent with this opinion.
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Leben, J.:
John M. Denman Oil Company has appealed a Kansas Corporation Commission (KCC) order that Denman Oil must plug 41 abandoned oil wells. Denman Oil contends that only one party may be held legally responsible for the wells under K.S.A. 55-179 and that since another party took over the mineral lease from Denman Oil, it is no longer responsible.
But K.S.A. 55-179(b) provides that “a person who is legally responsible shall include, but is not limited to, one or more” of several parties defined in that statute. And one of those who may be held responsible is “the original operator who . . . abandoned such well.” There’s no dispute that Denman Oil was the original operator who abandoned these wells, so the KCC’s order requiring Denman Oil to plug them was proper.
Factual and Procedural Background
The trail leading to this appeal begins in August 2007, when the KCC received a complaint about abandoned oil wells, spills, and debris on the 160-acre M.A. Alexander oil-and-gas lease in Chautauqua County. When the KCC inspected the leased ground in April 2008, it found 32 abandoned wells. The KCC found another 12 abandoned wells in November 2010; those wells had been covered by tall native grasses and missed on the first inspection.
The KCC’s investigation eventually led it to order four parties— Denman Oil, Gary and Kayla Bridwell, and TSCH, LLC (a Florida limited-liability company)—to plug the wells.
Denman Oil operated the lease from at least 1939 until production ended in 1989. It did not plug the wells.
In 2008, Denman Oil assigned the lease to the Bridwells. The KCC entered into a compliance agreement with the Bridwells under which the Bridwells agreed to plug or begin production from at least two wells each month until all the wells were plugged or producing. The Bridwells returned three wells to production for a short time, but they didn’t sell any oil or plug any wells.
Unsure whether the original lease was still valid, the Bridwells obtained new leases from the mineral owners in 2009. In 2010, they assigned the new leases to TSCH.
Before TSCH took over the leases, the KCC informed TSCH that if it took the lease assignment, it would be required to plug or produce from all the wells. TSCH got KCC authorization for injection into one well, ran pipe into two or three wells, and moved two pump jacks onto the lease. But it did not produce from or plug any wells.
In June 2011, the KCC issued a show-cause order to Denman Oil, the Bridwells, and TSCH, ordering the parties to show cause why they should not be held responsible for plugging the wells and for paying the costs of investigating the matter. Denman Oil and the Bridwells participated in a hearing before the KCC on the issue; TSCH did not appear for that hearing.
Based on the hearing record, the KCC concluded that all 44 wells on the lease had been abandoned. The KCC also concluded that the abandoned wells “are causing or are likely to cause pollution of usable water or supply or loss of useable water” and that many of the wells “had rotted casing and high fluid levels.” The KCC ordered Denman Oil to plug all of the wells except for the three that the Bridwells had briefly produced from. The KCC ordered the Bridwells to plug all 44 wells and TSCH to plug 32 wells (on the understanding that TSCH had only taken assignment of those wells). The KCC ordered that these parties be jointly and severally liable for plugging the wells in common among them. The KCC rejected Denman Oil’s claim that it should not be held liable since it had transferred the leases to the Bridwells: “An assignment of the lease to [the] Bridwellfs] . . . some 19 years after production ceased on the lease does not change the fact that Denman abandoned the wells in 1989 and should have plugged them at that time.”
Denman Oil and the Bridwells (but not TSCH) appealed to the Shawnee County District Court. The district court granted partial relief to the Bridwells, ordering that they were only responsible for plugging the three wells they had produced from. The district court affirmed tire KCC’s order that Denman Oil plug the remaining 41 wells, and Denman Oil has appealed to this court. The Bridwells did not appeal, and the KCC has not appealed tire district court’s limitations of the agency’s original order to the Bridwells. On appeal, then, the only matter before us is Denman Oil’s appeal of tire KCC’s order that Denman Oil plug 41 wells.
Standards of Review on Appeal
The KCC is an administrative agency, so we review its ruling based on the standards set out in the Kansas Judicial Review Act, K.S.A. 77-601 et seq. That act provides eight bases for a court to grant relief from an agency’s action. Denman Oil contends that three of them apply: (1) that the KCC erroneously interpreted the law; (2) that the KCC’s ruling was based on facts not supported by substantial evidence; and (3) that the KCC’s action was arbitrary and capricious or otherwise unreasonable. See K.S.A. 2013 Supp. 77-621(c)(4), (7), (8). Denman Oil has the burden of showing KCC error, K.S.A. 2013 Supp. 77-621(a)(l), and we can set aside the KCC’s order if Denman Oil shows error on any of the three points.
As is usually the case in administrative appeals, evidence was gathered in the agency proceeding, and the district court did not independently hear any evidence. Accordingly, we review even evidence-based issues without any required deference to the district court’s decision. Kansas Dept. of Revenue v. Powell, 290 Kan. 564, 567, 232 P.3d 856 (2010); Muir v. Kansas Health Policy Authority, 50 Kan. App. 2d 854, 856-57, 334 P.3d 876 (2014). There are no factual disputes of significance here, so this case ultimately comes down to a question of statutoiy interpretation. We also review those issues independently, without any required deference to the district court. Golden Rule Ins. Co. v. Tomlinson, 300 Kan. 944, 954, 335 P.3d 1178 (2014).
Analysis
Kansas law has long protected the state’s water resources. Since 1907, a statute has prohibited putting sewage or chemical waste into the state’s waters. See K.S.A. 65-164; Nunn v. Chemical Waste Management, Inc., 856 F.2d 1464, 1468 (10th Cir. 1988).
Unsurprisingly, oil and gas wells present a significant potential source for water pollution. So Kansas law also has long provided that these wells must be plugged when they are abandoned. An 1891 statute required plugging wells and made the owner guilty of a misdemeanor for failing to do so. See R.S. 1923, 55-116, 55-117; State v. Foster, 106 Kan. 852, 189 P. 953 (1920). Present law provides that the failure to plug a well is a felony offense. The statute tliat does so, K.S.A. 55-156, provides that the operator “protect usable groundwater or surface water from pollution and from loss through downward drainage by plugging the well, in accordance with the rules and regulations adopted by” the KCC. The failure to comply with those regulations is a felony. K.S.A. 55-156. KCC regulations require operators to plug wells within 90 days after operations cease or file an application for temporary-abandonment authority. K.A.R. 82-3-lll(a). Denman Oil does not claim that it ever obtained temporaiy-abandonment authority.
So there’s no dispute here that the 41 wells Denman Oil had abandoned in 1989 and was ordered to plug were subject to the well-plugging statute and rule. What Denman Oil disputes is whether it may be required to plug the wells after it had turned them over to the Bridwells. Denman Oil argues that only one party may be held liable for plugging a well.
But that’s contrary to the language found in K.S.A. 55-179(b), which everyone agrees is the applicable statute. It provides a list of parties who may be legally responsible and states that the responsible parties “shall include . . . one or more” of a list of parties that include both the last operator of the lease and the original lease operator who abandoned tire well:
“For the purposes of this section, a person who is legally responsible for the proper care and control of an abandoned well shall include, but is not limited to, one or more of the following: [1] Any operator of a waterflood or other pressure maintenance program deemed to be causing pollution or loss of usable water; [2] the current or last operator of the lease upon which such well is located, irrespective of whether such operator plugged or abandoned such well; [3] the original operator who plugged or abandoned such well; and [4] any person who without authorization tampers with or removes surface equipment or downhole equipment from an abandoned well.”
Here, the first operator to abandon the wells was Denman Oil, which quit producing the wells in 1989 but didn’t plug them.
Denman Oil argues that the singular reference in K.S.A. 55-179(b) to “a person who is legally responsible” signals that only one person or entity may be responsible. But the legislature provided a list—all referenced in the singular—of parties who may be responsible: “[a]ny operator” of a pressure-maintenance program causing pollution; “the current or last operator” of the lease; “the original operator who . . . abandoned” the well; and “any person” who tampers with an abandoned well without authorization. Of those parties, the statute says that “one or more” may be responsible. In addition, the legislature has told us that “[w]ords importing the singular number . . . may be extended to several persons or things” unless doing so is “inconsistent with the manifest intent of the legislature.” K.S.A. 77-201 Third. Here, reading K.S.A. 55-179(b) to allow more than one party to be responsible is consistent with both the language of the statute and with its obvious purpose of making sure that wells are plugged by the partes responsible for them, not at state expense.
Denman Oil also notes a reference to “a particular person” (singular) in K.S.A. 55-179(c), the statutory subsection that allows the KCC to issue a show-cause order when it “has reason to believe that a particular person is legally responsible” for an abandoned and leaking well. But once again, “[w]ords importing the singular number . . . may be extended to several persons or things,” K.S.A. 77-201 Third. Doing so here makes sense based on the plain language of K.S.A. 55-179(b) that we have just discussed. See Robinson v. Jones, 119 Kan. 609, 614, 240 P. 957 (1925) (applying R.S. 1923, 77-201 and interpreting “owner” in a statute involving oil- and-gas royalties to mean “owners”). In context, K.S.A. 55-179(c) simply provides that the KCC may not issue a show-cause order until it has “reason to believe that a particular person is legally responsible” for an abandoned well; the provision does not limit the KCC’s show-cause authority so that it must choose a single party to bear responsibility when issuing the initial show-cause order.
Denman Oil also suggests that since the statute never mentions joint and several liability, only one party may be held liable. But the statute makes clear that more than one party may be held responsible. When liability is joint and several, “each liable party is individually responsible for the entire obligation,” although any party who pays may have a right of contribution or indemnification from other liable partes. Black’s Law Dictionary 1054 (10th ed. 2014); see Burlington N. & S.F.R. Co. v. United States, 556 U.S. 599, 613-19, 129 S. Ct. 1870, 173 L. Ed. 2d 812 (2009) (approving a right of contribution between parties jointly and severally liable under a federal environmental-protection statute). Following the plain meaning of K.S.A. 55-179(b), which allows more than one party to be legally responsible, furthers the purpose of getting wells plugged and preventing further pollution. The legislature clearly has adopted serious tools to get wells plugged—the potential for felony criminal prosecutions and KCC authority both to order parties to plug wells and to plug wells itself and assess the costs.
As Denman Oil points out, the statute may be ambiguous about whether multiple responsible parties are jointly and severally liable; the statute does not specifically use those terms. But the KCC’s interpretation, under which “legally responsible” parties are jointly and severally liable, is consistent with the statute’s purpose and the KCC’s authority.
This appeal does not consider whether Denman Oil may be entitled to reimbursement from either TSCH or the Bridwells. We note that the statute does not provide any authority for the KCC to apportion costs between various responsible parties. That’s understandable: determining the respective duties of these parties might well require the determination of contractual relations between the parties to lease assignments, something that is not within the KCC’s statutory jurisdiction. But the statute clearly authorizes the KCC to hold more than one party responsible, and the most sensible interpretation is that the parties would be jointly and severally liable. Interpreting the statute in this way supports the obvious statutory purpose of avoiding pollution to the waters of our state.
Two industry groups filed friend-of-the-court briefs. They agreed with another argument Denman Oil raised based on a 2008 KCC decision, Quest Cherokee, KCC Docket No. 07-CON-S155-CSHO. In Quest Cherokee, the KCC said that when a new operator took over a lease, it would generally be responsible for plugging an abandoned well from a prior lease if it physically operated the abandoned well or took responsibility for it. Denman Oil and the industry groups seek to apply Quest Cherokee here, but we do not find it controlling or persuasive in deciding Denman Oil’s case. First, Kansas courts do not defer to administrative agencies when interpreting a statute. Golden Rule Ins. Co., 335 P.3d at 1188. Second, even an administrative agency is not bound by its prior decisions in contested cases; the doctrine of stare decisis—the principle that a judicial body should follow its past ruling when the same question arises again—normally doesn’t apply to agencies. See In re Tax Appeal of Gentsler Eye Center & Clinic, 40 Kan. App. 2d 411, 419, 192 P.3d 666 (2008). So the Quest Cherokee decision is neither binding nor persuasive authority for this court. Moreover, no matter what Quest Cherokee may have held, K.S.A. 55-179(b) plainly makes it possible for multiple parties to be responsible for plugging an abandoned well—and it just as plainly makes Denman Oil a responsible party for plugging these wells.
Because Denman Oil is a responsible party under K.S.A. 55-179(b), the KCC’s ruling was not based on any legal error.
Denman Oil also argues that the KCC’s decision should be set aside either as not supported by substantial evidence or as arbitrary or unreasonable. As for substantial evidence, Denman Oil says that the evidence showed that TSCH had obtained all rights to the wells, so it should be held responsible. That’s merely another way of arguing that the statute allows only one party to be responsible, an argument we have already rejected.
As for the claim of arbitrary or unreasonable action, Denman Oil argues that it’s unreasonable to hold all of these parties jointly and severally responsible for plugging the wells. Denman Oil and the industry groups argue that the KCC should defer to the contractual arrangements between the parties and here require only that TSCH, which accepted tire final lease assignment, be responsible for plugging the wells.
But such a rule would greatly hinder the KCC’s ability to get wells plugged. If a leaseholder assigned its rights to a party financially unable to plug the wells, pollution could continue. That may well be the case here. Denman Oil notes that TSCH once committed to the KCC that it would either plug or return to production each of the abandoned wells. But TSCH not only has failed to do so, it did not participate in the KCC hearing or in this appeal either. In addition, &e record shows that TSCH’s license to operate wells had expired before the KCC held its hearing; operators must annually demonstrate financial responsibility (through performance bonds or letters of credit) to maintain the operator’s license. See K.S.A. 55-155(d).
Denman Oil has not shown any reason to set aside the KCC’s order, which was affirmed by the district court. No issues are before us regarding the orders the KCC issued to the Bridwells and TSCH. We affirm the district court’s judgment. | [
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The opinion of the court was delivered by
Johnson, J.:
A law enforcement officer participating in a saturation patrol near a Wichita bar stopped a vehicle driven by William J. Molitor and subsequently conducted a driving under the influence (DUI) investigation. After Molitor failed the horizontal gaze nystagmus (HGN) test but passed the walk-and-tum and one-leg-stand tests, the officer requested a preliminary breath test (PBT), the results of which ultimately led to Molitor s arrest and conviction for DUI.
At a subsequent suppression hearing conducted on appeal to the district court, tire court ruled that the HGN results could be admitted at that hearing to establish the officer s reasonable suspicion of DUI, even though the results were inadmissible at trial. The Court of Appeals affirmed that the HGN test could be used to establish the statutorily required reasonable suspicion of DUI that would permit a request for a PBT. City of Wichita v. Molitor, 46 Kan. App. 2d 958, 959, 268 P.3d 498 (2012). Additionally, the panel held that, even if the HGN test results were excluded, the officer had enough other evidence to form a reasonable suspicion of DUI. We granted review and reverse both the panel and the district court.
Factual and Procedural Overview
On the evening of February 28,2009, Officer Jeremy Diaz, while working with other officers on a traffic and DUI saturation patrol in Wichita, observed Molitor make a right turn at a stop sign without using the turn signal, albeit the officer noted that Molitor had made a complete stop at the sign, had turned appropriately into the correct traffic lane, and had driven straight down the street. The officer effected a vehicle stop based on tire turn signal infraction, and, according to the officer, as Molitor pulled over, his vehicle struck the curb and came to a stop with the tire hallway up the curb. Molitor claimed that he did not drive up on the curb but rather bumped into the curb because it was located on the edge of the road. The stop was not videotaped.
Diaz approached the vehicle and observed that Molitor’s eyes were watery and bloodshot and that a strong odor of alcohol was emanating from the vehicle. Diaz asked Molitor if he had been drinking, and Molitor responded that he had consumed two or three beers. Molitor’s speech was not slurred; he had no difficulty producing his driver’s license, insurance information, and vehicle registration; and he did not lose his balance while exiting his vehicle or walking thereafter. The officer continued to smell a strong odor of alcohol as Molitor exited the vehicle.
First, Officer Diaz administered the HGN test, recording that Molitor displayed six out of die six possible clues of intoxication. Next, Molitor scored one out of eight possible clues on the wallc- and-tum test and one out of four possible clues on the one-leg stand test. Both tests require two clues before the results are indicative of unlawful intoxication. Notwithstanding the passing scores on two of the standardized field sobriety tests (SFSTs), Diaz requested diat Molitor submit to a PBT. Molitor agreed to take the test and registered a breath alcohol content (BAC) of .090. After obtaining the PBT result, Diaz asked Molitor to take a trial-quality breath alcohol test, utilizing an Intoxilyzer 8000. This test was conducted about an hour after the initial stop and recorded a BAC of .091.
Molitor was charged and convicted in Wichita Municipal Court of DUI and failing to signal a turn. He appealed to the Sedgwick County District Court, and, prior to trial, moved to suppress the PBT and breath test results. Molitor argued that he had passed the only two “admissible NHTSA [National Highway Traffic Safety Administration] tests.” Therefore, he argued, the evidence did not support that the officer had the requisite reasonable suspicion to request the PBT.
At the suppression hearing, Officer Diaz testified that he had successfully completed training on administering the HGN test. Molitor’s attorney objected, claiming that Kansas caselaw holds that HGN test results are inadmissible in court for any reason. The district court overruled the objection, finding that although an HGN test result was inadmissible at trial, it could be used to support “probable cause.” At the conclusion of tire hearing, tire district court judge denied the motion to suppress, finding that under the totality of circumstances, there was reasonable suspicion to request the PBT.
Molitor filed a motion to reconsider, arguing that HGN testing is not admissible in Kansas pursuant to State v. Chastain, 265-Kan. 16, 960 P.2d 756 (1998), and State v. Witte, 251 Kan. 313, 836 P.2d 1110 (1992). The district court denied tire motion to reconsider and held that even though HGN test results were not admissible “in a court of law, it’s admissible for probable cause, it’s admissible for reasonable suspicion.” The district court also concluded that based on “all the circumstances, the driving, the breath, and the officer’s observation of tire defendant in the preliminary tests, that it was proper to request a preliminary breath test.”
Subsequently, Molitor agreed to a bench trial on stipulated facts, with the understanding that he could appeal tire denial of his motion to suppress the PBT and breath test. Based on the stipulated facts, the district court found that Molitor was guilty of DUI and failure to signal a turn. Molitor filed a timely appeal.
On appeal, Molitor argued that the district court abused its discretion by failing to follow binding Kansas Supreme Court precedent holding that evidence of PIGN testing is inadmissible for any purpose. He also asserted that the district court abused its discretion by failing to properly analyze the arresting officer’s opinion testimony pursuant to the provisions of K.S.A. 60-456. As a consequence, Molitor claimed the erroneous admission of the HGN evidence was prejudicial by depriving him of his due process right to a fair and impartial hearing on his motion to suppress.
The Court of Appeals panel first determined that no binding Kansas Supreme Court cases “directly address the issue of whether PIGN evidence may be considered prior to trial as part of the totality of die circumstances in determining if a law enforcement officer had reasonable suspicion to request a PBT.” Molitor, 46 Kan. App. 2d at 963. The panel found that while there was still considerable debate throughout other jurisdictions as to whether HGN test results could be admissible at trial, it was unable to find any authority from other jurisdictions holding that HGN test results could not be considered for the purposes of determining probable cause in a DUI case. 46 Kan. App. 2d at 965. The panel concluded that because reasonable suspicion is a less demanding standard than probable cause, “HGN test results may, under appropriate circumstances, be considered as part of the totality of the circumstances in determining whether a law enforcement officer has reasonable suspicion to request a PBT.” 46 Kan. App. 2d at 965.
Interestingly, the panel then essentially rendered its HGN discussion superfluous dictum by proceeding to find that there was “sufficient evidence in the record to support the district court’s conclusion that Officer Diaz had reasonable suspicion” to request the PBT, even without the HGN test results. 46 Kan. App. 2d at 966. Finally, the panel concluded that in light of Diaz’ testimony regarding his successful completion of HGN test training and Mol-itor’s failure to challenge Diaz’ qualifications below, the district court did not abuse its discretion in admitting the officer’s HGN testimony pursuant to K.S.A. 60-456, the provision governing the admission of opinion testimony. 46 Kan. App. 2d at 968.
Molitor filed a timely petition for review, arguing that the Court of Appeals erred in holding that HGN test results are admissible at a suppression hearing. He claims that the test for reliability set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) (Frye test) had to be met before HGN test results could be considered for any purpose, including a determination of whether reasonable suspicion existed to request a PBT. Molitor also sought review of the Court of Appeals’ determination that the requisite reasonable suspicion existed without considering the HGN test results. This court granted Molitor’s petition for review under K.S.A. 20-3018(b), obtaining jurisdiction under K.S.A. 60-2101(b).
Admissibility of Horizontal Gaze Nystagmus Test Results
The first question we address is whether evidence of the HGN test results was erroneously considered by the district court at the pretrial suppression hearing to make the determination that the arresting officer possessed reasonable suspicion to believe that Molitor had been operating a vehicle while under the influence of alcohol, which was a statutory prerequisite for the officer to request the PBT. See K.S.A. 2010 Supp. 8-1012(b) (law enforcement officer may request PBT if officer has reasonable suspicion to believe person guilty of DUI). In his petition for review, Molitor argued that both the district court and Court of Appeals violated the duty for lower courts to follow the precedent of the Kansas Supreme Court.
In a supplemental brief to this court, a subsequently appointed attorney for Molitor took the tack that it was procedural error for the district court to admit the HGN results, because K.S.A. 60-402 makes the same rules of evidence applicable to the pretrial suppression motion hearing as are applicable at the trial. Therefore, under that argument, given that the HGN results are inadmissible at trial, they must also be inadmissible at the pretrial suppression hearing as a matter of statutory procedure.
But we view the issue as more fundamental than construing whether the statutory rules of evidence permitted introduction of the HGN results at a pretrial suppression hearing. For instance, a prior panel of the Court of Appeals found that it was not an abuse of discretion for a district court to admit HGN evidence at a bench trial, notwithstanding its unreliability, because of the presumption that judges, unlike juries, would not be unduly swayed by inadmissible evidence. State v. Ruth, No. 101,209, 2009 WL 3428611, at *3 (Kan. App. 2009) (unpublished opinion). In other words, we are not so much concerned with whether the evidence was procedurally admissible at a particular hearing as we are with the overarching question of whether HGN testing is competent evidence that can be relied upon when determining the existence of reasonable suspicion to believe that a vehicle driver was driving under tire influence, regardless of whether that determination is being made at the scene, at a suppression hearing, or at trial. Cf. State v. Shadden, 290 Kan. 803, 819, 235 P.3d 436 (2010) (“In addition to considering K.S.A. 60-456, a district court must determine whether the Frye test has been met if an opinion is based on sci entific methods or procedures and is offered for admission.” [Emphasis added.]).
Accordingly, we will leave for another day any consideration of tire general question as to whether the evidentiary rules at a suppression hearing are more relaxed than those at trial and proceed to consider the Court of Appeals’ holding that HGN testing results may be considered as part of the totality of the circumstances in determining whether a law enforcement officer had the requisite reasonable suspicion to request a PBT. Molitor, 46 Kan. App. 2d at 965.
Standard of Review
The issue before us requires that we review the district court’s legal conclusions, which is a de novo exercise. See Martinez v. Milburn Enterprises, Inc., 290 Kan. 572, 579, 233 P.3d 205 (2010). Moreover, whether tire district court failed to correctly apply the Frye standard for the admissibility of scientific evidence is an abstract question of law subject to de novo review. Kuhn v. Sandoz Pharmaceuticals Corp., 270 Kan. 443, 455-56, 14 P.3d 1170 (2000). More specifically, tire question of whether HGN test results are competent evidence of unlawful intoxication is a question of law. Cf. State v. McClanahan, 212 Kan. 208, 211, 510 P.2d 153 (1973) (competency of evidence is question of law).
Analysis
As a statutory condition precedent to requesting that Molitor submit to a PBT, Officer Diaz had to possess “reasonable suspicion to believe [Molitor] has been operating or attempting to operate a vehicle while under the influence of alcohol or drugs or both alcohol and drugs.” K.S.A. 2010 Supp. 8-1012(b). In other words, to request that a driver submit to a PBT to aid in the establishment of the probable cause necessary to arrest the driver for DUI, an officer must have already acquired a reasonable suspicion that the driver was DUI. We have described reasonable suspicion and its relationship to probable cause as follows:
“ ‘Reasonable suspicion means a particularized and objective basis for suspecting the person stopped is involved in criminal activity. Something more than an unparticularized suspicion or hunch must be articulated. Reasonable suspicion can arise from information that is less reliable than that required to show probable cause. Both reasonable suspicion and probable cause are dependent upon the content of information possessed by the detaining authority and the information’s degree of reliability. Quantity and quality are considered in the totality of the circumstances—the whole picture that must be taken into account when evaluating whether there is reasonable suspicion.’ State v. Toothman, 267 Kan. 412, Syl. ¶ 5, 985 P.2d 701 (1999).” (Emphasis added.) State v. Tollman, 286 Kan. 881, 890, 190 P.3d 234 (2008).
The Court of Appeals was persuaded by cases from a number of sister states that have held HGN test results “to be properly considered as a factor in determining probable cause.” 46 Kan. App. 2d at 964. Then, “[bjecause reasonable suspicion is a less demanding standard than probable cause,” the panel made new law in this state, finding “that testimony from a law enforcement officer trained in administering HGN tests may properly be considered as part of the circumstantial evidence used prior to trial in determining whether the totality of circumstances show that a law enforcement officer had reasonable suspicion to request a PBT.” 46 Kan. App. 2d at 965. Given the binding precedent that existed in this state, the panel erred in seeking guidance elsewhere. See State v. Jones, 44 Kan. App. 2d 139, 142, 234 P.3d 31 (2010), rev. denied 292 Kan. 967 (2011) (Court of Appeals duty bound to follow Kansas Supreme Court precedent).
The Court of Appeals recognized the existence of binding Kansas precedent dealing with the use of HGN testing, specifically citing to Shadden, 290 Kan. at 821-22; Chastain, 265 Kan. at 22-23; and Witte, 251 Kan. at 322. The panel observed that in Witte, “the Kansas Supreme Court distinguished [the] HGN test[] from other field sobriety tests because it is based on scientific principles outside the scope of common knowledge.” Molitor, 46 Kan. App. 2d at 962. The panel further acknowledged that, because of that distinction, the Witte court required that the foundational requirements of Frye must be met before HGN test results can be used. But the panel appears to have narrowed the scope of Witte’s foundational requirement to only apply “before HGN test results may be admitted at trial.“ (Emphasis added.) 46 Kan. App. 2d at 962. A closer review of Witte belies the panel’s narrow construction of its holding.
When Witte was decided, a person committed the crime of DUI under K.S.A. 8-1567(a)(l) by operating or attempting to operate a vehicle with a blood or breath alcohol concentration of .10 or higher. The opinion noted that NHTSA claimed that “the HGN test is an accurate and effective field sobriety test to determine whether a drivers alcohol concentration is above .10.” 251 Kan. at 315.
Witte then discussed HGN testing and scoring, beginning with a description of nystagmus as “ ‘an involuntary rapid movement of the eyeball, which may be horizontal, vertical, rotatory, or mixed/ ” and defining HGN as “ ‘a jerking of the eyes as they gaze to the side/ ” 251 Kan. at 316. In the field, the trained officer holds an object, such as a pen or a finger, about 12 to 15 inches in front of and level with the driver’s eyes. The driver is to keep his or her head steady and use his or her eyes to follow the object as the officer moves it to the side. The first side movement is all of the way until the driver’s eyes can go no further sideways. Then the movement is repeated from the front to a point that the officer estimates is a 45-degree angle of gaze. The test is performed to both sides, i.e., the left and right eyes are tested separately.
In scoring the test, the officer looks for three possible signs of intoxication for each eye, for a total of six clues. The first intoxication sign—the angle of onset of nystagmus—is premised upon the theory that the more intoxicated a person becomes, the sooner the jerking will occur during the eye’s sideward movement. The NHTSA asserts that the expected angle of onset when the driver’s BAC is .10 is approximately 40 degrees.
The second HGN intoxication sign involves observing how distinct the nystagmus is at maximum deviation, i.e., at the point where the eye is as far to the side as possible. Presumably, this means that the officer must assess the level of jerldness at maximum deviation because the theory is that the jerking will increase in intensity as the level of intoxication increases.
The third sign is smooth pursuit, i.e., the officer assesses the smoothness with which die driver’s eye pursues the object as die officer moves it sideways. This assessment is based upon the sup position that the eyes of an intoxicated person often cannot smoothly follow a slowly moving object.
One point is assigned for each clue of intoxication, so diat failing all possible clues earns a score of 6 points. According to NHTSA, a score of 4 or more points indicates a BAC above .10.
Witte’s complaint on appeal was that the district court had erroneously denied his motion in limine to prevent the State from presenting evidence of the HGN results. He claimed that the HGN test is scientific evidence; that the State had failed to establish that such scientific evidence met the Frye test; that the officer had not properly conducted the testing; and that the HGN test is simply not scientifically reliable evidence. The Witte court declared that the questions of whether the HGN test is scientific evidence and whether it meets the Frye admissibility requirements were issues of first impression in Kansas at that time. 251 Kan. at 318.
With respect to the scientific evidence question, Witte considered and rejected the State’s argument, apparently adopted by some other jurisdictions, that the HGN test only involves the officer’s objective personal observation of the driver’s conduct, much the same as the one-leg stand test, and therefore does not require expert interpretation. Witte noted that alcohol’s effect on a person’s sense of balance is common knowledge but that the same could not be said for the principles underlying the HGN test. Accordingly, given that the HGN is based upon scientific principles that exceed common knowledge, Witte held that HGN test results are scientific evidence subject to the Frye foundation requirements. 251 Kan. at 322.
The Witte court then considered the State’s argument that it did not have to establish tire reliability of HGN evidence through expert testimony in this state because other jurisdictions had recognized HGN evidence as being reliable under tire Frye test. After reviewing decisions in other jurisdictions—principally Arizona and Louisiana—that had found HGN testing to be scientifically reliable, the Witte court turned to a discussion of the results of its own research, a significant portion of which called into question the scientific bona fides of the HGN test. Indeed, one cited commentator referred to the HGN as “voodoo science.” 251 Kan. at 326 (citing to Pangman, Horizontal Gaze Nystagmus: Voodoo Science, 2 DWI Journal 1, 3-4 [1987]).
One area of concern strikes at tire heart of the HGN theory, i.e., tire angle of nystagmus onset. Although the NHTSA maintains that observing nystagmus at the 45-degree angle correctly foretells a .10 BAC 78% of the time, other researchers dispute that 45 degrees is the appropriate angle of onset. For instance, one authority asserts that 50% to 60% of sober individuals who deviate their eyes more than 40 degrees to the side will exhibit nystagmus that is indistinguishable from alcohol gaze nystagmus. 251 Kan. at 327 (citing Pangman, 2 DWI Journal at 2 [citing Toglia, Electronystagmog-raphy: Technical Aspects and Atlas (1976)]). Accordingly, “[r]esearchers have expressed concern that the 45-degree angle used by the NHTSA will create false positive readings.” 251 Kan. at 328. Some have even criticized the NHTSA study for deliberately screening out persons at high risk for being classified as a false positive and for conducting its tests with mechanical devices that hold the person’s head steady while precisely measuring the angle of lateral deviation of the eye. Of course, in the field, the driver is merely told to hold his or her head steady and the officer estimates the point at which the eye has reached a 45-degree angle.
Another concern addressed was that “many other factors can cause nystagmus,” such as suffering from such innocuous conditions as influenza or eyestrain; or consuming such common commodities as caffeine, nicotine, or aspirin. 251 Kan. at 328. Even “[a]n individual’s circadian rhythms (biorhythms) can affect nys-tagmus readings—the body reacts differently to alcohol at different times of the day.” 251 Kan. at 328.
Perhaps most compelling was the research study done by “[a] prosecution-oriented group in California,” measuring the correlation between a police officer’s estimations of the angle of onset of nystagmus and the actual results of chemical testing of blood samples (as opposed to breath samples). 251 Kan. at 329. Quoting from Pangman, 2 DWI Journal at 3, Witte recited that “ ‘[t]he data in the study revealed that there was virtually no correlation between the actual value of blood alcohol concentration and the predicted value based upon the angle of onset of nystagmus.’ ” 251 Kan. at 329. After noting that the study group conceded that the HGN should not be used to predict a person’s blood alcohol level, Witte concluded as follows:
“If the Arizona Supreme Court had had this evidence before it, it may not have held that HGN evidence satisfies the Frye admissibility requirements. The reliability of the HGN test is not currently a settled proposition in the scientific community. This court holds that HGN evidence requires a Frye foundation for admissibility. If the Frye foundation is established to this court’s satisfaction, HGN evidence wiE be admitted in other cases without the need to satisfy tire Frye test each time. Before this court rules on whether HGN evidence satisfies the Frye admissibility requirements, a trial court first should have an opportunity to examine, weigh, and decide disputed facts to determine whether the test is sufficiently reliable to be admissible for any purpose in Kansas.” (Emphasis added.) 251 Kan. at 229-30.
Although the case involved the admission of HGN evidence at trial, the Witte opinion did not limit its holding to that scenario. To the contrary, the opinion plainly informed judges and prosecutors that the first tiling that had to happen before any court in this state could admit HGN evidence for any purpose was that the State had to present an appropriate Frye foundation to a trial court which would then be convinced to find that the HGN test was sufficiently reliable to be admissible. Notwithstanding the passage of more than two decades since Witte’s direction, the State has yet to follow the procedure outlined in Witte as being necessary to establish the reliability of the HGN test. Indeed, we are unaware of any proceeding in which the reliability of the HGN has been established under any standard. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993) (establishing alternative to Frye test utilized in federal courts); see also K.S.A. 2014 Supp. 60-456(b) (establishing criteria for admitting scientific opinion testimony).
Notwithstanding Witte’s clear directive that a trial court must first “examine, weigh, and decide disputed facts to determine whether the [HGN] test is sufficiently reliable to be admissible for any purpose in Kansas,” State v. Witte, 251 Kan. 313, 330, 836 P.3d 1110 (1992), the Court of Appeals made the curious declaration that “[i]t is important to note that tire issue presented in this case is not whether HGN testing has now reached the level of acceptance to satisfy the Frye test.” City of Wichita v. Molitor, 46 Kan. App. 2d 958, 963, 268 P.3d 498 (2012). But, of course, that is precisely the issue in this case, and any case in which the HGN test is involved, until it is proved rehable.
Granted, as suggested above, reasonable suspicion can be established with evidence that is less reliable than that which is required to establish guilt beyond a reasonable doubt or even to establish probable cause. But there is a threshold level of reliability that must be met. One must show that any proffered evidence that is ostensibly based upon scientific principles does, in fact, have some credible correlation to the matter that must be proved. For instance, consider the hypothetical scenario of an officer who testified that tire officer had undergone extensive training in the operation of a Ouija Board; that when a Ouija Board is asked if the driver being tested is DUI, the Board’s arrow will point at “yes or “no”; that random sampling has shown that the Ouija Board correctly identifies when a driver’s intoxication exceeds the legal limit 60% of the time; and that the Board’s arrow pointed at “yes” when asked if Molitor was DUI. Should a court allow the officer to base reasonable suspicion upon the Ouija Board test results? Of course not. And at this point in the state of Kansas, the HGN test has no more credibility than a Ouija Board or a Magic 8 Ball. To change that circumstance, the State needs to prove the legitimacy of the test, as Witte directed.
The panel also declared that it was not deciding the question of whether HGN evidence should be admissible to prove “a specific BAC.” But it is important to keep in mind that the officer must reasonably suspect unlawful activity and it is not unlawful to simply drink and drive. Rather, in order to request a PBT, the officer must have “reasonable suspicion to believe the person has been operating or attempting to operate a vehicle while under the influence of alcohol. . . .” (Emphasis added.) K.S.A. 2010 Supp. 8-1012(b). To be operating a vehicle under the influence of alcohol, pursuant to K.S.A. 2010 Supp. 8-1567(a)(l) or (2), the alcohol concentration in the person’s blood or breath must have reached the level of .08 or more. If, as the above-referenced California study concluded, the HGN is essentially useless in predicting a person’s blood al cohol level, then it is difficult to understand how that test can provide reasonable suspicion that a driver was driving under the influence of alcohol, as opposed to driving after two beers.
Accordingly, we hold that the district court and the Court of Appeals erred in allowing the State to rely on the scientifically unproved HGN test results to establish the requisite reasonable suspicion that permitted the officer to request that Molitor submit to a PBT pursuant to K.S.A. 2010 Supp. 8-1012(b). Such a fundamental error cannot be deemed to be harmless, unless the other evidence was sufficient to establish the requisite reasonable suspicion without considering the HGN test results, i.e., unless the panel’s opinion on the use of the HGN test results was merely judicial dictum. See Black’s Law Dictionary 549 (10th ed. 2014) (judicial dictum is opinion “that is not essential to the decision”); see also Law v. Law Company Building Assocs., 295 Kan. 551, 564, 289 P.3d 1066 (2012) (“ ‘Nobody is bound by dictum . . . .’ ”).
Harmless Error
After having determined that the HGN test results were appropriately considered as part of the totality of the circumstances that supported the finding that Officer Diaz had reasonable suspicion to believe that Molitor was operating his vehicle while under the influence of alcohol, the panel then embarked on an analysis of the hypothetical question of whether the evidence would have been sufficient to establish reasonable suspicion if the HGN test results had been excluded. If we were to agree with the panel’s use of the HGN test results as part of the totality of the circumstances affecting the reasonable suspicion analysis, we would forego consideration of the academic question of whether excluding the HGN test would change the result. But given our exclusion of the HGN testing, we must proceed to analyze the other evidence to determine whether the consideration of the HGN test results was harmless error.
Standard of Review
Whether reasonable suspicion exists is a question of law, and appellate courts review this question with a mixed standard of re view, determining whether substantial competent evidence supports the district court’s factual findings, while the legal conclusion is reviewed de novo. State v. Thomas, 291 Kan. 676, 688, 246 P.3d 678 (2011).
Analysis
Molitor argues that the district court and the Court of Appeals ignored tire evidence which indicated that he was not impaired by alcohol. The record indicates that the lower courts did mention the exculpatory evidence, but it appears that it was not fully integrated into the totality of the circumstances calculus.
The Court of Appeals listed “the factors supporting reasonable suspicion” as being “striking the curb, very strong odor of alcohol, bloodshot and watery eyes, admission to drinking beer, losing balance during instruction phase of walk-and-turn test, and putting foot down on the one-leg-stand test.” Molitor, 46 Kan. App. 2d at 967. The panel summarily dismissed the exculpatory evidence, as follows:
“We note that there is evidence in tire record that Molitor was able to speak without slurring his words, produced his identification without difficulty, and had only one clue each on tire walk-and-turn test and tire one-leg-stand test. But we do not find that these factors substantially dissipated Officer Diaz’ reasonable suspicion that Molitor had operated a vehicle under the influence of alcohol.” 46 Kan. App. 2d at 967.
After die panel filed its opinion in this case, this court decided State v. Edgar, 296 Kan. 513, 294 P.3d 251 (2013), which involved the question of die role that passing grades on field sobriety tests should play in the analysis of whether the investigating officer possessed the requisite reasonable suspicion to request a PBT. Edgar clarified that “[wjhether a law enforcement officer has the statutorily required reasonable suspicion to request a preliminary breath test is determined by examining the totality of the circumstances existing at the time of the request” and that the driver’s performance on field sobriety tests given before the PBT request is a circumstance that must be included in the totality of circumstances examination. 296 Kan. 513, Syl. ¶ 2.
Here, the panel correctly stated that the totality of the circumstances paradigm was applicable, and it appeared to grasp the essence of that test when it declared: “ ‘Quantity and quality are considered in the totality of the circumstances—the whole picture that must be taken into account when evaluating whether there is reasonable suspicion.’ See State v. Toothman, 267 Kan. 412, Syl. ¶ 5, 985 P.2d 701 (1999).” Molitor, 46 Kan. App. 2d at 966. But then, rather than looking at die whole picture to make a single, totality-of-the-circumstances reasonable suspicion determination, the panel broke the analysis into two parts. It first determined that the inculpatory factors it had identified would have justified an officer’s reasonable suspicion, and then it assessed whether the acknowledged exculpatory factors “substantially dissipated” the previously formed reasonable suspicion. 46 Kan. App. 2d at 967. But in exercising the totality of circumstances test for reasonable suspicion, an appellate court should not engage in “ ‘assessing each factor or piece of evidence in isolation. [Citations omitted.]’ ” United States v. Jones, 701 F.3d 1300, 1315 (10th Cir. 2012). The determination that reasonable suspicion existed obtains only after the interaction of all factors is assessed.
Before discussing the interaction of the factors present in this case, we pause to reiterate that, under the applicable version of the statute, Officer Diaz had to reasonably suspect that Molitor was illegally driving his vehicle while under the influence of alcohol before he could request a PBT. K.S.A. 2010 Supp. 8-1012(b). Interestingly, an earlier version of K.S.A. 8-1012 permitted a law enforcement officer to request a PBT based upon “reasonable grounds to believe that the person: (a) Has alcohol in the person’s body; . . . .” K.S.A. 8-1012 (Furse 2001). Although “reasonable grounds” was equated with probable cause (not reasonable suspicion) under the prior statute, the focus of the inquiry was not whether the driver was operating the vehicle under the influence, but rather whether the driver “had alcohol in her body.” Gross v. Kansas Dept. of Revenue, 26 Kan. App. 2d 847, 849, 994 P.2d 666, rev. denied 269 Kan. 932 (2000).
Logically, then, an officer’s subjective observations that the driver smelled of alcohol, or had bloodshot and wateiy eyes, would be more compelling evidence where tlie matter to be proved was simply that the driver had alcohol in his or her system rather than where the question is the legality of the alcohol concentration in the drivers body, i.e., whether it had reached the level of .08 or more. Likewise, the nature of the drivers admission to having drunk two or three beers is different for the two inquiries. Under the old statute, it would be compelling evidence that the driver had alcohol in his or her body, whereas, under the current statute, it would be evidence that tends to refute the notion that tire driver was operating the vehicle with an illegal level of alcohol in his or her body, i.e., it is questionable whether two or three beers would raise the alcohol concentration in the breath or blood of a normal size man to .08 or more.
Moreover, an officer s sensory perceptions, such as the strength of the alcohol odor or the condition of the driver’s eyes, are subject to an imprecise personal opinion. Moreover, that subjective assessment might be influenced by the subsequent discovery that the driver failed the PBT. Indeed, the California study on the HGN test discussed in Witte frankly reported that “ ‘the cops fudged the horizontal gaze nystagmus determination to correspond with the already known correct answer determined by the breath test result.’ ” 251 Kan. at 329 (quoting Pangman, 2 DWI Journal at 3).
In contrast, the SFSTs were developed by the NHTSA after both laboratory studies and field studies, from which clues were identified and a scoring criteria developed that would provide an objective assessment as to the probability that the driver’s alcohol concentration was at an unlawful level (.10). See Rubenzer, The Standardized Field Sobriety Tests: A Review of Scientific and Legal Issues, 32 Law & Hum. Behav. 293 (2008). For instance, the arresting officer in the Shadden case testified at trial that if a driver exhibits two clues, he or she fails the SFST, creating a 68% probability that the driver’s concentration of alcohol is .10 or more. State v. Shadden, 290 Kan. 803, 806-07, 235 P.3d 436 (2010). In other words, SFSTs are alleged to result in an objective assessment of the level of alcohol in a driver’s body, rather than just the presence of alcohol in the body.
Granted, the officer here testified that Molitor ran into or onto the curb while stopping his vehicle. Obviously, evidence of unsafe driving can suggest intoxication. But that alleged lapse of coordination must be viewed in conjunction with what followed. After stopping the vehicle, Molitor spoke without slurring his words, produced his identifying documents without difficulty, exited and proceeded from his vehicle without losing his balance, and, most importantly, passed the two admissible SFSTs. In other words, under the totality of circumstances, one could not reasonably suspect that Molitor’s balance was impaired by alcohol to the point of being legally under the influence of alcohol.
Moreover, in Pollman, this court set a low bar for the observable indicia of intoxication that can support reasonable suspicion, noting only the smell of alcohol and the driver’s admission to having drunk alcohol, in addition to the acts leading to the criminal obstruction of official duty charges. State v. Pollman, 286 Kan. 881, Syl. ¶ 7, 190 P.3d 234 (2008). But here, tire subjective observations which might suggest to Officer Diaz that Molitor was illegally intoxicated were offset by the objective indications that he was not. Indeed, if Molitor had failed the objectively scored SFSTs, one would suspect that the State would be arguing that the officer’s trained observations were corroborated by the psychomotor testing.
Curiously, the panel padded its description of the intoxication indicia by referring to the one clue on each SFST to which the officer testified. But the officer admitted that Molitor passed the tests, and we have nothing in die record which would tell us what one clue reveals about a person’s alcohol concentration level. Indeed, “[sjeveral studies suggest that cut-off scores are set too low on the psychomotor SFSTs,” and one study “found that over 50% of drivers at .00% BAC failed Walk and Turn.” Rubenzer, 32 Law & Hum. Behav. at 297. The panel should not have deviated from the criteria and scoring of the NHTSA’s standardized testing model to glean reasonable suspicion of DUI from a successful completion of the admissible SFSTs.
In short, we reverse the determinations of both the district court and the Court of Appeals that Officer Diaz possessed the requisite reasonable suspicion that Molitor was operating his vehicle while under the influence of alcohol when the officer requested that Molitor submit to a PBT.
Reversed and remanded.
Michael J. Malone, Senior Judge, assigned.
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Marquardt, J.:
Chris A. Sumner, deceased, through his surviving wife (Claimant), appeals the denial of an award by the Workers Compensation Board (Board). We reverse.
On September 30, 2002, Sumner, a truck driver for Meier s Ready Mix (Meier’s), died as a result of a one-vehicle accident. Although Sumner was driving a company truck when he died, the parties stipulated that at the time of the accident, he was engaged in a personal errand with no business purpose. An administrative law judge (ALJ) found that Sumner’s death arose out of and in the course of his employment.
The case was appealed to the Board, which made the following findings of fact:
Sumner worked for Meier’s and lived in Council Grove. Meier’s allowed Sumner to keep its truck at his residence every night. On the day of the accident, Sumner left home around 3 a.m., picked up a load and delivered it to Emporia at approximately 7 a.m. At Meier’s plant in Sugar Creek, Sumner was instructed by Eric Schneider, Meier s Ready Mix’s assistant manager, to deliver a load to Junction City. As Sumner was driving toward Junction City along 1-70, he received word that there was an emergency at his home.
Sumner told Schneider about the emergency, and Schneider gave Sumner permission to go home. It was agreed that Sumner would deliver his load to Junction City that day, if possible. Schneider testified that had Sumner exceeded the normal 12-hour workday, staying at home that night and dekvering the load the next day would have been acceptable.
The Board further found that Sumner’s accident occurred about 15 miles south of the I-70/K-177 intersection and about 13 miles north of Council Grove. In a 3-2 decision, the Board reversed the ALJ’s award.
On appeal, Claimant contends that this court has unlimited review, citing Smith v. Winfield Livestock Auction, Inc., 33 Kan App. 2d 615, 106 P.3d 94 (2005). However, Winfield clearly held that when facts are undisputed, this court has unlimited review. 33 Kan. App. 2d at 618. Claimant contests the facts arguing that Sumner was on his way home to stay when the accident occurred. An appellate court’s review of disputed facts in a workers compensation case is limited to whether the Board’s findings of fact are supported by substantial competent evidence, which is a question of law. Titterington v. Brooke Insurance, 277 Kan. 888, 894, 89 P.3d 643 (2004).
Whether there has been an accident injuiy arising out of and in the course of employment is a question of fact that will not be disturbed when there is substantial competent evidence to sustain it. Foos v. Terminix, 277 Kan. 687, Syl. ¶ 1, 89 P.3d 546 (2003). Substantial evidence in workers compensation cases is evidence that possesses something of substance from which the issue can be reasonably resolved. The appellate court reviews the evidence in the light most favorable to the prevailing party at the Board level and does not reweigh the evidence or assess- the credibility of witnesses. Neal v. Hy-Vee, Inc., 277 Kan. 1, 16-17, 81 P.3d 425 (2003).
The Workers Compensation Act, K.S.A. 44-501 etseq., provides compensation for injuries that arise out of and in the course of employment. K.S.A. 44-501(a). Injuries stemming from the going to and coming from employment are generally not compensable. K.S.A. 2004 Supp. 44-508(f). However, there is an exception to the “going and coming” rule when travel upon the public roadways is an integral or necessary part of the employment. Kindel v. Ferco Rental, Inc., 258 Kan. 272, 277, 899 P.2d 1058 (1995). Claimant’s argument seems to be that Sumner was within the scope of this exception because he was on his way home when the accident happened. Meier’s and Zurich U.S. Insurance Co. (Zurich) argue that Sumner was not within the scope of the exception because he was expected to deal with the personal emergency and then continue to Junction City later that day.
Whether an accident arises out of and in the course of employment depends on the facts peculiar to the case. Messenger v. Sage Drilling Co., 9 Kan. App. 2d 435, 437-38, 680 P.2d 556, rev. denied 235 Kan. 1042 (1984) (citing Newman v. Bennett, 212 Kan. 562, Syl. ¶ 3, 512 P.2d 497 [1973]). In Kindel, an employee who was transported to and from work in a company vehicle, died in a car accident. For a few hours after work, Kindel and several fellow employees went to a strip club. Kindel was driven home by an intoxicated employee. The court held that there was substantial competent evidence to support the conclusion that Kindel’s death occurred during the course of his employment. 258 Kan. at 284-85. The Kindel opinion seemed to focus on the fact that the deviation to the strip bar was minor and, when he died, Kindel was on his way home in a company vehicle. 258 Kan. at 284.
The Kindel court stated:
“A deviation from the employer’s work generally consists of a personal or non-business-related activity. The longer the deviation exists in time or the greater it varies from the normal business route or in purpose from the normal business objectives, the more likely that the deviation will be characterized as major. In the case of a major deviation from the business purpose, most courts will bar compensation recovery on the theory that the deviation is so substantial that the employee must be deemed to have abandoned any business purpose and consequently cannot recover for injuries received, even though he or she has ceased the deviation and is returning to the business route or purpose.” 258 Kan. at 284.
Claimant cites Foos for support. Foos was an exterminator who was assigned a vehicle for a route that included several towns. He performed some exterminations in the morning, then took a break for a “hole-in-one” contest at a sports complex. Although he planned to do some work that afternoon, the jobs were not performed. Later that evening, while on his way home, he was injured in the company vehicle. The court held that Foos had returned from a deviation and was on a direct route home on a public highway which was an activity contemplated by his employer. 277 Kan. at 692.
Claimant essentially presents two arguments. First, the Board ignored the evidence that established Sumner was on his way home to stay at the time of the accident. Second, Claimant contends that Sumner s employer s permission to go home makes the accident compensable.
Claimant contends that the Board ignored uncontradicted evidence that proves Sumner was on his way home to stay at the time of the accident. Schneider testified that he assumed the load would be delivered the following day. However, he also testified that his intent was for Sumner to deliver the load to Junction City that afternoon if there was time.
Claimant argues that the time of the accident proves Sumner was on his way home to stay. The Board concluded that there was no evidence indicating how long Sumner planned to stay in Council Grove. Generally, drivers work a 12-hour shift, and Sumner began his shift at 3 a.m. Schneider testified that he normally arranged schedules so the working day is over by 3 p.m. It takes about an hour to unload the truck. Had there been no accident, Sumner would have arrived home around 2:30 p.m. That would leave 30 minutes to drive about 45 miles to Junction City, spend an hour unloading, and then drive home. That would likely have put Sumner home well beyond his 12-hour shift, assuming his personal emergency took no time to resolve.
Although the standard of review requires this court to defer to the factual findings of the Board, this case presents a question of whether the Board’s decision is supported by substantial competent evidence. This court reviews the evidence, including circumstantial evidence, on which the Board made its decision. The conclusion that there was no evidence indicating how long Sumner planned to stay in Council Grove ignores the circumstantial evidence that indicated he was near the end of his 12-hour shift.
Meier s and Zurich argue that Sumner does not fall under the exception to the going and coming rule because he was dealing with a personal emergency at the time of the accident. They cite Messenger, 9 Kan. App. 2d at 437, which held that the travels of the employee must further the interest of the employer.
If Sumner was not on his way home to stay for the rest of the night, Messenger might apply. However, if Sumner were on his way home to stay, Messenger would not apply. As Claimant points out, going home at the end of the workday is always personal; it never directly advances an employer’s interest. Yet the Foos and Kindel courts allowed an award even though the employees were injured going home. Furthermore, evidence in the record on appeal indicates that Meier’s policy of allowing drivers to take company trucks home furthered its interests. Schneider testified that the policy saved Meier’s from unnecessary travel.
Claimant argues that the situation would be no different if Sumner had been given permission to leave work an hour early. However, Claimant cites no Kansas authority for the proposition that permission to deviate from work duties expands the scope of employment.
Commentators suggest that the scope of employment may be broadened by employer acquiescence. 1 Larson’s Workers’ Compensation Law § 17.06[2] (2005). In Murano v. Chrysler Corporation, 19 App. Div. 2d 942, 244 N.Y.S. 2d 464 (1963), the court held that the claimant was entitled to compensation for injuries that occurred during a personal errand. The claimant drove a company car to drop off mail for his employer. He had been given permission to stop by his house whenever he was out. The court concluded that the employer had acquiesced to the practice. 19 App. Div. 2d at 942.
Murano can be distinguished from this case because it dealt with a general acquiescence to an employee’s personal errands. This case involves a one-time grant of permission to deal with a personal emergency.
Sumner routinely kept the company’s truck at his home between his shifts. In this particular instance, there was no time to make the delivery to Junction City that day. His trip to his home falls within the going and coming exception. Claimant is entitled to workers compensation, and the Board’s decision is reversed.
Claimant argues that Sumner was responsible for maintaining the truck, which required him to operate a hazardous instrumentality, i.e., a fully loaded tanker. The Board rejected this argument because it lacked authority and would extend the exception to the going and coming rule.
K.S.A. 2004 Supp. 44-508(f) states:
“An employee shall not be construed as being on the way to assume tire duties of employment or having left such duties at a time when the worker is on the premises of the employer or on the only available route to or from work which is a route involving a special risk or hazard and which is a route not used by dre public except in dealings with dre employer.”
See Chapman v. Beech Aircraft Corp., 258 Kan. 653, 664, 907 P.2d 828 (1995). Sumner’s injury occurred on K-177, which was not his only route to work, it was a public highway. It is therefore unnecessary for this court to determine if a truck is a special risk or hazard.
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MALONE, J.:
The State appeals the trial court’s order dismissing the charge of aggravated battery against Robert Coppage, Jr. This case arose from a domestic violence report involving Coppage and his girlfriend, T.S. The trial court dismissed the charge prior to the completion of the State’s evidence because at trial T.S. recanted her initial allegations against Coppage.
On January 31, 2004, the police were dispatched to a residence after they received a report of a domestic disturbance. Two officers spoke to Katrina McCuiston, a neighbor, who told the police that T.S. had sent a “text message” to her cell phone which contained a plea for help. The message, which was captured in a police photograph, requested McCuiston to send the police and an ambulance to T.S.’s residence.
After speaking with McCuiston, the police proceeded to T.S.’s residence. T.S. answered the door; her face was badly swollen and her eyes were swollen shut. T.S. was barely able to speak and she walked slowly. There was blood on her shirt. T.S. informed the police that Coppage had beaten her. She told the officers that Coppage punched her in the face with his fist, kicked her with his feet, and struck her with a lamp in the bedroom. T.S. showed the officers the lamp that had been damaged as a result of the beating. T.S. indicated that Coppage was drunk when he inflicted the injuries.
T.S. directed the officers to a bedroom where they found Cop-page asleep on the bed. Coppage was awakened and immediately handcuffed and taken into custody. At the police station, Coppage gave a detailed statement in which he admitted to beating T.S.
T.S. was taken by ambulance to the hospital for treatment of her injuries which were documented with photographs. A pair of bloody jeans were found in the front room of the house. Blood was also found on the bed sheets and a pillow case in the bedroom.
The State charged Coppage with one count of aggravated battery. At a pretrial hearing, the trial court found that Coppage’s statement was freely and voluntarily given and the statement would be admissible as evidence.
A juiy trial was commenced, and the State presented evidence through McCuiston and the police officers. The photograph of McCuiston’s text message was admitted into evidence. The police officers testified about their observations at the residence and the statements made to them by T.S. The photographs of T.S.’s injuries were also admitted into evidence as well as other physical evidence collected at the scene.
T.S. then testified and recanted what she had previously told the police. She claimed that she did not know the man who had inflicted her injuries. She testified that she concocted her story to the police so that Coppage would be arrested at the scene, thereby preventing him from trying to locate and harm the real attacker. The prosecutor repeatedly impeached T.S.’s testimony with her prior inconsistent statements to the police.
After T.S. testified, the trial court excused the jury and asked the prosecutor how the State intended to prove the charge against Coppage. The prosecutor proffered the State’s remaining evidence in its case in chief, which included Coppage’s confession to the police. After hearing from the prosecutor, the trial court surmised that the State could not possibly meet its burden of proof and dismissed the charge against Coppage. The State timely appeals.
The State brings this appeal “[f]rom an order dismissing a complaint, information or indictment” under K.S.A. 2004 Supp. 22-3602(b)(1), and asks this court to reverse the trial court’s dismissal and allow the State to retry Coppage for aggravated battery. In the alternative, the State appeals pursuant to K.S.A. 2004 Supp. 22-3602(b)(3) “upon a question reserved by the prosecution.”
Jurisdiction under K.S.A. 2004 Supp. 22-3602(b)(1)
Initially, the State brings this appeal from an order dismissing a complaint, information, or indictment pursuant to K.S.A. 2004 Supp. 22-3602(b)(l) and asks this court to reverse the trial court’s dismissal and allow the State to retry Coppage for aggravated battery. Coppage argues that a second trial would violate the Double Jeopardy Clause of the United States Constitution.
“ ‘The double jeopardy clause of the Constitution of the United States protects against (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 53 L. Ed. 2d 187, 97 S. Ct. 2221 (1977). The language of .section 10 of the Bill of Rights of the Constitution of Kansas is very similar to the language contained in the Fifth Amendment of the Constitution of tire United States. Both provide in effect that no person shall be twice placed in jeopardy for tire same offense. The language of the Fifth Amendment guarantees no greater protection to an accused than does section 10 of the Bill of Rights of the Constitution of Kansas. Therefore, the three underlying protections contained in the double jeopardy clause of the Constitution of the United States are contained in section 10 of the Bill of Rights of the Kansas Constitution.’ ” State v. Beerbower, 262 Kan. 248, 251, 936 P.2d 248 (1997) (quoting State v. Freeman, 236 Kan. 274, 280-81, 689 P.2d 885 [1984]).
Kansas has codified the constitutional double jeopardy protections in K.S.A. 21-3108. K.S.A. 21-3108(l)(a) bars a subsequent prosecution if the defendant was formerly prosecuted for the same crime, based upon the same facts, if the former prosecution resulted in either a conviction or an acquittal, or a “determination that the evidence was insufficient to warrant a conviction.”
Kansas case law is clear that the State may not appeal from a judgment of acquittal. State v. G.W.A., 258 Kan. 703, 705, 906 P.2d 657 (1995). Here, the trial court did not refer to the dismissal as a judgment of acquittal. However, a trial court’s characterization does not control the classification of the action. Beerbower, 262 Kan. at 252-53. A judgment of acquittal is “ ‘a resolution, correct or not, of some or all of the factual elements of the offense charged.’ ” State v. Whorton, 225 Kan. 251, 254, 589 P.2d 610 (1979). In Whorton, the court found that jeopardy had attached against the defendant preventing retrial of the charges even though, as in the present case, the charges were dismissed before the State had completed presenting its evidence.
Jeopardy attached against Coppage when his jury was impaneled and sworn. K.S.A. 21-3108(l)(c). Because the trial court resolved factual issues in finding that the State could not meet its burden of proof, the trial court’s dismissal of the charge amounted to a judgment of acquittal. Accordingly, even if the State’s appeal is otherwise meritorious, double jeopardy bars further prosecution of Coppage for aggravated battery.
Jurisdiction under K.S.A. 2004 Supp. 22-3602(b)(3)
The State also appeals pursuant to K.S.A. 2004 Supp. 22-3602(b)(3) “upon a question reserved by the prosecution.” Whether jurisdiction exists is a question of law over which this court’s scope of review is unlimited. State v. Stough, 273 Kan. 113, 116, 41 P.3d 281 (2002).
A question reserved “presuppose[s] that the case at hand has concluded but that an answer is necessary for proper disposition of future cases which may arise.” State v. Ruff, 252 Kan. 625, 630, 847 P.2d 1258 (1993). The Kansas Supreme Court has emphasized that questions reserved are not entertained simply to demonstrate trial court errors which are adverse to the State or because a decision would be helpful precedent. See State v. Tremble, 279 Kan. 391, 393, 109 P.3d 1188 (2005); State v. Woodling, 264 Kan. 684, 687, 957 P.2d 398 (1998); City of Wichita v. Basgall, 257 Kan. 631, 633, 894 P.2d 876 (1995). Instead, cases are reviewed only “ ‘ “where the appeals involve questions of statewide interest important to the correct and uniform administration of the criminal law and the interpretation of statutes.” ’ ” Tremble, 279 Kan. at 393 (quoting Woodling, 264 Kan. at 687).
Thus, we can permit this appeal under 22-3602(b)(3) only if we deem the issue presented to be of statewide interest. A brief review of the substance of the issue is essential to determine whether we should entertain this appeal upon a question reserved by the prosecution.
Here, the trial court essentially granted a motion for judgment of acquittal even before the State completed the presentation of its evidence.
“ ‘In ruling on a motion for judgment of acquittal, if a trial judge concludes from the evidence that a reasonable mind might fairly decide a defendant is guilty beyond a reasonable doubt, the motion must be denied and tire case must go to the juiy. On appeal, the reviewing court must decide whether a rational factfinder could have found the accused guilty without a reasonable doubt. [Citations omitted.]’ ” State v. Wiggett, 273 Kan. 438, 443, 44 P.3d 381 (2002).
T.S.’s recantation of her prior statements to the police made her a “turncoat witness” for the State. In dismissing the charge against Coppage, the trial court expressed a belief that the prior inconsistent, statements of a turncoat witness cannot be used as substantive evidence to prove the elements of the crime. This is contrary to established Kansas law. See State v. Davis, 236 Kan. 538, 540-41, 694 P.2d 418 (1985); State v. Holt, 228 Kan. 16, Syl. ¶ 5, 612 P.2d 570 (1980); State v. Fisher, 222 Kan. 76, 82, 563 P.2d 1012 (1977). Had the trial court not dismissed the case, the jury would have been permitted to consider T.S.’s prior inconsistent statements to the police as substantive evidence in determining whether Cop-page was guilty of the charge. Although T.S.’s recantation provided conflicting evidence for the jury to weigh, this fact alone would not have barred the State from obtaining a conviction against Coppage.
A review of the record reveals that the State had presented sufficient evidence against Coppage to sustain a conviction for aggravated battery even at the point the trial was prematurely stopped. The State had presented evidence through McCuiston and the police officers supporting the charge. The photograph of McCuiston’s text message had been admitted into evidence. The police officers had testified about their observations at the residence and the statements made to them by T.S. The photographs of T.S.’s injuries had also been admitted into evidence as well as other physical evidence collected at the scene.
Furthermore, the trial court ignored tire State’s proffer of additional evidence which included Coppage’s confession to the charge. The trial court had initially ruled that Coppage’s statement would be admissible evidence. It should have been the jury’s function at Coppage’s trial to weigh the evidence and determine the credibility of the witnesses. State v. Overton, 279 Kan. 547, 554, 112 P.3d 244 (2005). By granting the judgment of acquittal after T.S.’s recantation, the trial court denied the jury the opportunity to determine Coppage’s guilt or innocence. The trial court clearly erred in not allowing the case to proceed.
Nevertheless, Coppage argues that this appeal should not be entertained simply to demonstrate trial court errors which were adverse to the State. He cautions this court against entering an “advisory opinion” in a concluded case. According to Coppage, the issue presented in this case is not of statewide interest to merit consideration of an appeal.
We disagree. The protection of victims of domestic abuse is an issue of statewide interest. Furthermore, it is of statewide interest to ensure that a crime may be prosecuted even when a victim recants his or her original statement, especially where other evi dence supports the charge. Because victims of domestic violence often recant their initial statements to police, the factual scenario in Coppage’s case is likely to arise in future cases.
We conclude the trial court erred by dismissing the aggravated battery charge against Coppage simply because T.S. recanted her original statements to the police. There was sufficient evidence of Coppage’s guilt to submit the case to tire jury. Despite the trial court error, however, double jeopardy prevents further prosecution of Coppage for aggravated battery.
Appeal sustained. | [
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Atcheson, J:
The doctrine of law of the case prevents a party from serially litigating an issue already presented and decided on appeal in the same proceeding. The doctrine promotes judicial efficiency while allowing litigants a full and fair opportunity to present their arguments on a point—the first bite of tire proverbial apple. We apply law of the case to affirm the Clay County District Court’s ruling suppressing evidence the State intended to use to prosecute Defendant Dominic Parry for possession of marijuana and drug paraphernalia. The State lost an earlier motion to suppress in the district court, and another panel of this court affirmed that ruling on the State’s interlocutory appeal. In response, the State manipulated the prosecution of Parry, as it forthrightly admits, by dismissing and refiling the charges to take what we find to be an impermissible second bite at the apple to again argue the constitutionality of the search.
The underlying facts related to the criminal charge are less important to our decision than the procedural history of the prosecution. We outline what is necessary to place the issue and our ruling in context.
Police officers went to an apartment building in Clay Center where Parry and his girlfriend lived with their 2-year-old son. A neighbor of Parry’s had reported a strong smell of burning marijuana in the building. The officers concluded the smell originated in Parry’s residence, so they knocked on the door. Parry and his girlfriend stepped across the threshold to speak with the officers. The woman admitted she had been smoking marijuana earlier in the day during a birthday celebration. The officers requested permission to look in the apartment. What happened next goes to the grounds for the motion to suppress and entails conflicting accounts about consent to search, so we skip ahead. The officers went inside and found marijuana and related drug paraphernalia.
The State charged Parry in Clay County No. 13CR2 with felony possession of marijuana as a repeat offender, a violation of K.S.A. 2014 Supp. 21-5706(b)(3), and with possession of drug paraphernalia, a misdemeanor violation of K.S.A. 2014 Supp. 21-5709(b)(2). Parry filed a motion to suppress the marijuana and paraphernalia on the grounds the police officers had no search warrant and any consent had been improperly coerced. The State countered that consent had been freely and voluntarily given, so the search did not violate the Fourth Amendment to the United States Constitution. The State made no alternative arguments for the validity of the search or the admissibility of the marijuana and paraphernalia. The district court held an evidentiary hearing, found any consent to have been involuntary, and granted the motion to suppress. The State filed an interlocutory appeal, as permitted by K.S.A. 2014 Supp. 22-3603. Another panel of this court affirmed the district court’s suppression order in an unpublished opinion. State v. Parry, No. 110,671, 2014 WL 1708137 (Kan. App. 2014) (Parry I).
Four days after the release of the panel decision in Parry I, the State dismissed No. 13CR2 against Parry without prejudice and immediately charged him in Clay County No. 14CR35 with the same offenses. As a practical matter, the complaints in the two cases differ only in their district court identification numbers.
Not surprisingly, Parry filed a motion to suppress in No. 14CR35. The district court held another evidentiary hearing. This time the State argued the search of Parry’s apartment was proper because exigent circumstances excused the need for a search warrant and even if the search were constitutionally improper, the marijuana and paraphernalia would have been inevitably discovered. The district court found those arguments unpersuasive and again granted Parry’s motion to suppress. And the State has again appealed. So here we are.
In their initial briefing, the parties did not address the law of the case doctrine. We issued an order requesting supplemental briefing, and both sides duly responded.
As indicated, we find law of the case applies, and its application precludes the State from again litigating the constitutionality of tire search of Pany’s apartment in the renewed prosecution. We, therefore, affirm the ruling of the district court without reaching the merits of the State’s position with respect to exigent circumstances and inevitable discoveiy.
The facts and procedural history relevant to law of tire case are undisputed. Our consideration of the doctrine presents a legal question, affording us unlimited review. See Dumler v. Kansas Dept. of Revenue, 302 Kan. 420, 425, 354 P.3d 519, (2015). Under the circumstances, a remand for the district court to consider a point of law would be both unnecessary and wasteful of judicial resources. See State v. Randall, 257 Kan. 482, 486, 894 P.2d 196 (1995); State v. Jones, 24 Kan. App. 2d 669, 675-76, 951 P.2d 1302 (1998).
Essentially, law of the case prevents parties from reopening issues in a case that have already been addressed and decided on appeal in that case. Thoroughbred Assocs. v. Kansas City Royalty Co., 297 Kan. 1193, 1212, 308 P.3d 1238 (2013) (“The law of the case prevents relitigation of the same issues within successive stages of the same suit.”); State v. Collier, 263 Kan. 629, Syl. ¶ 3, 952 P.2d 1326 (1998) (“[Ojnce an issue is decided by the [appellate] court, it should not be relitigated or reconsidered unless it is clearly erroneous or would cause manifest injustice.”). The Collier court outlined the purpose of the doctrine: “to avoid indefinite relitigation of the same issue, to obtain consistent results in the same litigation, to afford one opportunity for argument and decision of the matter at issue, and to assure the obedience of lower courts to the decisions of appellate courts.” 263 Kan. 629, Syl. ¶ 2. The doctrine is not an inexorable command and may yield in compelling circumstances.
The doctrine should apply here even though, technically, this case is not the same case as Tarry I. The distinction between the two rests on the slenderest of technicalities. The charges against Parry are the same. The dismissal of the original case was immediately followed by the refiling of those charges in this case—a maneuver the State undertook several days after the adverse ruling from this court in Tarry I. The State readily acknowledges the goal of the maneuver to be precisely what the circumstances otherwise indicate. The State wanted a do-over on the issue of the constitutionality of the police search of Parry’s residence and the seizure of the marijuana and paraphernalia from inside the home, so it could assert arguments it failed to raise during the first hearing. Under those circumstances, the prosecution of Pariy should be treated as a single proceeding for purposes of the law of the case.
The Kansas Supreme Court has similarly viewed the filing of the same criminal charges against the same defendants in successive cases as a single action to compute speedy trial time under K.S.A. 22-3402. State v. Cuezze, Houston & Faltico, 225 Kan. 274, 277-78, 589 P.2d 626 (1979); see State v. Goss, 245 Kan. 189, 192, 777 P.2d 781 (1989) (recognizing that Kansas courts tack time in successive cases when State dismisses and refiles as “a subterfuge . . . to avoid dismissal under tire speedy trial statute”)- The same rule should apply here. The State has dismissed and refiled criminal charges to evade an appellate decision confirming that Parry’s Fourth Amendment rights were violated in a search of his home. The State wants to garner another hearing in the district court to make additional arguments on the issue. Law of tire case aims to prevent precisely that sort of repetitive airing of points already decided in the district court and reviewed on appeal. If tire doctrine were inapplicable in this situation, tire State, in dre face of an adverse decision on the merits in this appeal, could again dismiss, refile, and get yet a third opportunity to argue the issue—with no end in sight.
The legislature has provided a remedy for dre State if it wishes to dispute a district court ruling granting a defendant’s motion to suppress. The State may take an immediate, interlocutory appeal. And the State did just that in Parry I. We do not see any sound basis for embroidering additional remedies into the common law, especially at the expense of fairness and judicial efficiency fostered by law of the case. Accordingly, the State could not breach the barrier of law of the case here by dismissing and refiling as it did.
The doctrine, then, applies to the issue of the constitutionality of the search of Parry’s apartment unless some specific circumstance would excuse its application. We see none. First, of course, the district court’s initial ruling granting the motion to suppress was not clearly erroneous. The panel in Parry I so ruled. See Collier, 263 Kan. 629, Syl. ¶ 3 (doctrine inapplicable to preserve “clearly erroneous” decision). Likewise, there is no manifest injustice here. 263 Kan. 629, Syl. ¶ 3. The State had a full and fair opportunity to present whatever arguments it chose in opposing the original motion to suppress. The State doesn’t claim otherwise. So the State could have argued exigent circumstances based on the loss of evidence and inevitable discovery because it could have obtained a search warrant from a judge. But it didn’t malee those arguments. Neither of them rests on a newly minted legal theory or a material change in the law. See State v. Mell, 39 Kan. App. 2d 471, 482, 182 P.3d 1, rev. denied 286 Kan. 1183 (2008) (court discusses factors in determining when potential loss of evidence creates exigent circumstances excusing need to obtain search warrant); State v. Thompson, 37 Kan. App. 2d 589, 598, 155 P.3d 724 (2007) (applying inevitable discovery when information known to officers would have furnished probable cause for warrant). We express no opinion on the efficacy of those theories in this case and note only that Kansas appellate authority recognized them well before the original suppression hearing.
In marshalling their arguments, legal advocates always pick and choose among possible positions, honing the promising ones and jettisoning those that don’t seem to be. Having chosen disadvantageously, especially in hindsight, an advocate cannot lay claim to manifest injustice as a result. If that were true, law of the case would be on the way to the legal dustbin where motions for judgments n.o.v. and depositions on written questions now take up space.
The dissent’s rejoinders fall short. First, the dissent suggests we have ignored the State’s argument that the issue decided in Parry I was confined to consent. But we carefully, though implicitly, disposed of the contention simply by correctly defining die issue on the motion to suppress as whether tire search and seizure conformed to the Fourth Amendment. Parry submitted that the search and seizure did not, since tire law enforcement officers had no warrant and the facts supported no exception to the warrant requirement. In Parry I, the State argued Parry consented, eliminating the need for a search warrant. The State also could have argued exigent circumstances and inevitable discovery but chose not to. The State’s position and the dissent’s observation collapse the governing issue into the arguments presented on that issue as if they were the same. Doing so largely negates law of the case and would preclude only repetition of the same arguments on an issue rather than relitigation of the issue.
The dissent then says it is unconvinced Parry I and this case should be treated as tire same proceeding and cites authority for the propositions that criminal cases dismissed without prejudice may be refiled and that one district court judge may consider a pretrial ruling of another district court judge in a single criminal prosecution. But none of that authority entails comparable circum stances in which the State lost on an issue in the district court, took a proper interlocutory appeal challenging the ruling, lost in the appellate court, and then dismissed without prejudice to secure a new hearing on the issue. Nor does that authority have anything to do with how law of the case should apply to give effect to an appellate ruling on an issue the State later attempts to relitigate in the district court.
This court’s decision in State v. Heigele, 14 Kan. App. 2d 286, 789 P.2d 218 (1990), is similarly off tire mark and provides neither controlling nor persuasive force for the dissent. There, the district court granted a defendant’s motion to suppress as a sanction because the State twice fáiled to have witnesses available for the scheduled evidentiary hearing. So tire district court never ruled on tire merits of tire motion. The State dismissed tire case. Several months later, the State refiled the charges against Heigele. Another district court judge took judicial notice of the suppression order from the earlier case and held collateral estoppel required it be applied in the new case. A panel of this court reversed because collateral estoppel requires the adjudication of and a final judgment based on ultimate facts. 14 Kan. App. 2d at 287. The court reasoned that in a criminal prosecution, collateral estoppel operates no more broadly than the constitutional prohibition on double jeopardy and Heigele had not been placed in jeopardy in the first prosecution. 14 Kan. App. 2d at 287; see Ashe v. Swenson, 397 U.S. 436, 443-45, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970) (collateral estoppel incorporated into double-jeopardy protection of the Fifth Amendment to United States Constitution); State v. Roberts, 293 Kan. 29, Syl. ¶ 5, 259 P.3d 691 (2011) (“Jeopardy attaches only when a jury is impaneled and sworn or in a bench trial when the judge begins to receive evidence.”). The panel in Heigele didn’t consider or discuss law of the case. And there never was an appellate review of the original order sanctioning the State, a component of law of the case as we consider the rule.
Finally, tine dissent’s foray into the pleading requirement for res judicata and collateral estoppel as affirmative defenses in civil actions seems to be rather beside the point. We are dealing with neither doctrine nor a civil proceeding. Moreover, a motion to suppress evidence does not assert an affirmative defense to a criminal charge. Here, the State wants to use a technicality to sidestep an adverse appellate ruling on a matter of constitutional dimension in a criminal prosecution. An appellate court may properly question that approach, especially when the parties have been given a full and fair opportunity to address the relevant considerations. State v. Puckett, 230 Kan. 596, Syl. ¶¶ 1, 2, 640 P.2d 1198 (1982) (appellate court may raise and address issue affecting fundamental rights so long as parties have been given opportunity to brief matter); see State v. Adams, 283 Kan. 365, 367-68, 153 P.3d 512 (2007) (applying rule to consider matter parties had not raised on appeal); State v. Douglas, 47 Kan. App. 2d 734, 740, 279 P.3d 133 (2012) (same).
We affirm the district court’s ruling granting Parry’s second motion to suppress because the constitutionality of the search was foreclosed by the district court’s original ruling and this court’s decision affirming that ruling in Parry I. In short, law of the case disposes of the issue at this juncture.
Affirmed.
⅜ # *
We consider law of the case in terms of respect for tire holding of an earlier appellate decision in the same proceeding. That is tire sense of the rule discussed, for example, in Collier, 263 Kan. 629, Syl. ¶ 3. In that context, the rule commands considerable respect and may be disregarded only in compelling situations. It functions in tandem with the mandate rule, requiring a district court to conscientiously adhere to the mandate from an appellate court. 263 Kan. 629, Syl. ¶ 4. By way of contrast, the phrase “law of the case” occasionally may be invoked when one district court judge taking over a case declines to reconsider a pretrial ruling made by another ¿strict court judge in the case. Most pretrial rulings are by their very nature interlocutory and may be reconsidered at any time. A district court judge may decline to revisit his or her own rulings absent good cause in the name of efficiency. So, too, one district court judge may extend professional respect to an earlier pretrial ruling by another ¿strict court judge, thereby promoting efficiency. But that sort of deference doesn’t carry the same force as law of die case applicable to an earlier appellate decision on an issue. | [
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Granted.
47 Kan. App. 2d 703 | [
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The opinion of the court was delivered by
Johnson, J.:
Betty Born (Betty), in her capacity as a trustee of the inter vivos, revocable trust created with her late husband, John H. Bom, Jr. (John), hereafter referred to as “the Born Trust,” brought this injunctive and declaratory judgment action against Sharon Bom (Sharon). Sharon held two installment promissory notes upon which the Born Trust assets had been pledged as security when John died. When Betty attempted to make payments on the notes, Sharon took the position that the notes were in default because of Johns death; that, pursuant to the notes’ acceleration clauses, the entire remaining balances were immediately due and payable; and that Sharons only remedy under the security agreements was to accept all of the Born Trusts pledged assets in full satisfaction of the note balances. This action challenged Sharon’s right to unilaterally effect an acceptance-of-collateral remedy.
The district court granted summary judgment in favor of Sharon, finding that the Bom Trust had failed to properly object to Sharon’s acceptance of the collateral in full satisfaction of the notes and that the Born Trust had failed to properly redeem the collateral after being notified that Sharon had accepted it. The district court therefore ordered the Born Trust to turn over the collateral to Sharon.
The Court of Appeals affirmed the district court. The panel found that, although the Bom Trust did properly object to Sharon’s proposed acceptance of collateral, the Uniform Commercial Code (UCC) required that the trust also redeem the collateral. The panel determined that the Born Trust had not effectively attempted to redeem the collateral, so that the district court s result could be affirmed. Born v. Born, No. 108,963, 2014 WL1096602, at *14 (Kan. App. 2014) (unpublished opinion).
This court granted the Born Trusts petition for review of the Court of Appeals’ decision. Finding that the Bom Trust had the right under the promissory notes to pay the accelerated balances due thereon to prevent Sharon’s acceptance of the pledged assets under the security agreement, we reverse both the Court of Appeals and the district court. The matter is remanded to the district court to calculate the amount due on the notes at the time they were accelerated, and upon payment of that amount, to order the release of Sharon’s hen on the Born Trust assets.
Factual and Procedural Overview
The promissory notes and security agreements at issue in this case were executed in connection with the sale of a business interest; the persons involved in the sale and this lawsuit are related by blood or marriage. At the time of the sale, John owned a successful stone mason company. His cousin, Sharon, owned all but nine shares of H.J. Born Stone, Inc. (Born Stone, Inc.), a family corporation that had owned and operated a stone and quarry business since 1949. Sharon’s son, Todd Born (Todd), held the other nine shares of Bom Stone, Inc., stock and was employed by the corporation.
In September 2010, the cousins reached an agreement for John to purchase a majority interest in the stone and quariy business, which would then be operated jointly by John and Todd. The transaction was stmctured to include both an asset purchase and a stock purchase.
First, the Born Trust and Todd formed a separate company, TJ Leasing, LLC (TJ Leasing), to be used to purchase certain equipment, vehicles, and real estate from Born Stone, Inc. The Born Trust’s membership interest in TJ Leasing was 51%; Todd owned 49%. Although Todd later transferred his interest in TJ Leasing to the Todd J. Born Revocable Trust, we will refer to his interest as individually owned to avoid further confusion.
TJ Leasing paid Born Stone, Inc., for the purchased assets by executing a “Purchase Price Note” for the full purchase price of $825,877, together with annual interest to be calculated each year pursuant to a formula. By the terms of the note, TJ Leasing, as “Borrower,” was to pay H.J. Born Stone, Inc., as “Lender,” annual payments of $50,000, until the note was paid in full. The payments were due each September 30, beginning in 2011. Although the Court of Appeals’ opinion referred to this instrument as “Note 1,” we will refer to it more descriptively as the “TJ Leasing note.” As collateral for die TJ Leasing note, Todd and the Born Trust executed a Pledge Agreement, granting Born Stone, Inc., a security inter est in and to all of their ownership interests in TJ Leasing. We will refer to this instrument as the “TJ Leasing security agreement.”
The day before the September 30, 2010, effective date of tire TJ Leasing note, Sharon resigned as an officer and director of Born Stone, Inc. Then, on the same date as the asset sale to TJ Leasing, Born Stone, Inc., used the sale proceeds, along with other remaining corporate assets, to fund the repurchase of 144 shares of Sharon’s Born Stone, Inc., stock, pursuant to a Stock Redemption Agreement. The corporation partially paid for the stock redemption by giving Sharon a written assignment of its interests and rights in and to the TJ Leasing note and TJ Leasing security interest. In other words, Sharon became the holder of those instruments, assuming the rights and obligations of Bom Stone, Inc. After the stock redemption on September 30, 2010, Born Stone, Inc., had 194 shares outstanding; Sharon owned 185 shares and Todd owned 9 shares.
The following day, October 1, 2010, the Bom Trust obtained one-half of the outstanding shares of Born Stone, Inc., by purchasing 97 shares from Sharon. The Born Trust paid for the stock purchase by executing an installment promissory note (“Stock Purchase Note”) in the principal amount of $708,300, together with interest, payable to Sharon in annual payments of $50,000, due on September 30 of each year, beginning in 2011. To secure those payments, tire Born Trust, by written agreement hereafter referred to as “stock security agreement,” pledged its Bom Stone, Inc., stock as collateral. That same day, Sharon gifted her remaining 88 shares of Born Stone stock to Todd, which resulted in Todd and John both holding 97 shares of Born Stone stock.
Unusual events ensued. Shortly after the sales transactions, John was diagnosed with terminal cancer. He informed Sharon of his diagnosis and kept her apprised of his medical condition. In April 2011, Sharon requested and received a lump sum payment of $375,000 from TJ Leasing so that she could pay her income taxes. That voluntary lump sum payment within the first 6 months of the TJ Leasing note reduced its principal amount by approximately 45%. In June 2011, Todd sold 1.94 shares of his Born Stone, Inc., stock to the Born Trust for $14,166, which made the Born Trusts interest in Born Stone, Inc., 51% and left Todd with 49% ownership, the same proportional ownership as it held in TJ Leasing. Then, on September 8, 2011, approximately 3 weeks before the first annual payments were due on the two notes, John died.
On or about September 19, 2011, Betty contacted Sharon in an attempt to make the annual payment on both notes, but Sharon avoided the attempt, claiming she was busy. Instead, 2 days later, on September 21 (9 days before the due date of the first annual installment), Sharons attorney hand-delivered two letters to Betty in her capacity as trustee of the Born Trust. One letter addressed the September 30, 2010, TJ Leasing note and security agreement; the other referenced tire October 1, 2010, documents. In both letters, Sharon made the following declaration and notification, with the addition of parenthetically describing the collateral for each note:
“As a result of the death of John H. Born, Jr., I, pursuant to paragraph 3 of the Note, declared die entire balance of the Note in default and immediately due and payable. Pursuant to paragraph 4 of the Pledge Agreement, this letter is notice to the John H. Born, Jr. Revocable Trust, as restated and amended u/a/d December 15, 2005, that I have accepted the Collateral listed in the Pledge Agreement.”
Additionally, in the TJ Leasing note and security agreement letter, Sharon made the following declaration: “As a result, all of the membership interest in TJ Leasing, LLC, held by the John H. Born, Jr. Revocable Trust, as restated and amended u/a/d December 15, 2005, is forfeited, ceased to exist and terminated.” Sharon then directed Betty to “immediately surrender the trust’s original Unit Membership Certificate of TJ Leasing, LLC, to my attorney, Todd E. Shadid,” at his Wichita office address.
Sharon sent a similar letter to her son, Todd, instructing him to surrender his original Unit Membership Certificate of TJ Leasing to her. Todd complied with his mother s demand, forfeiting his 49% interest in TJ Leasing to her.
The letter to Betty declaring a default under the Stock Purchase Note and security agreement, included the additional declaration: “As a result, all of interest [sic] of the trust as stockholder in H.J. Bron [sic] Stone, Inc. is forfeited, ceased to exist and terminated.” That letter demanded that Betty “immediately surrender the trust s original Stock Certificate(s) for H.J. Born Stone, Inc., to my attorney, Todd E. Shadid,” at his Wichita office address.
The day after Sharons attorney hand-delivered the above-described letters to Betty, the Born Trusts attorney contacted Sharon’s attorney to arrange payment of the entire remaining balances on the notes. Sharons attorney responded with the statement that Sharon would refuse to accept payment. Further, he confirmed that Todd had surrendered his interest in TJ Leasing to Sharon, albeit Sharon apparently did not credit the TJ Leasing note with any value for the relinquished collateral.
The next day, September 23, 2011, the Born Trusts attorney followed up with a letter to Sharons attorney confirming that the Born Trust had agreed to pay Sharon the total amounts then due under both accelerated notes but stating that “you and your client are taking the absurd position that once your client declares a default under the Promissory Notes, our clients have no rights to immediately malee payments to remedy the defaults.” The letter further alleged that Sharon failed to act in good faith when: (1) she refused to meet with Betty on or about September 19, 2011, to accept payment in full on tire notes; (2) she declared default on the notes 2 days later; and (3) she refused to accept full payment on the notes on September 22, 2011. The letter advised that pursuant to K.S.A. (2011 Supp.) 84-9-625, the Born Trust was filing a lawsuit seeldng an injunction to prevent Sharon from taking possession and ownership of the collateral and a declaratory judgment requiring Sharon to accept payment in full from the Born Trust in satisfaction of the promissory notes.
That same day, September 23, 2011, the Born Trust filed the lawsuit against Sharon, alleging that by declaring default and demanding immediate surrender of tire collateral, Sharon had breached the terms of the notes and security agreements and had violated provisions of the Uniform Commercial Code, specifically K.S.A. 2011 Supp. 84-9-607(c), K.S.A. 2011 Supp. 84-9-625, and K.S.A. 2011 Supp. 84-1-304. The Born Trust asked tire court to enter an order restraining Sharon from: (1) any further violation of the law, (2) undertaking any collection efforts against the Born Trust, (3) taking any ownership interest of the Stock Certificates and Unit Membership (Certificates, (4) exercising any authority or control over Born Stone, Inc., or TJ Leasing, (5) exercising any stockholder rights in Born Stone, Inc., or member rights in TJ Leasing, and (6) entering into any contracts on behalf of Born Stone, Inc., or TJ Leasing or acting as an agent of either company.
On September 26, 2011, Sharons attorney e-mailed a letter to the Bom Trust’s attorney, arguing that an intent to tender payment did not constitute an actual tender of payment, which was required even if Sharon would reject any such tender. The letter alleged that Betty had not offered to meet with Sharon on September 19 to pay all amounts owed under the notes, but rather the purpose of the meeting was to pay the $50,000 annual installments that were coming due under the notes. The attorneys letter further alleged that Betty had informed Sharon that Betty could not pay the full amount due on the notes until sometime in the future after she received the proceeds from John’s life insurance policy. Finally, the attorney opined that pursuant to the clear and unambiguous terms of the notes and security agreements, Sharon was not required to accept any payments from the Bom Tmst.
On September 27, 2011, the district court entered a temporary restraining order mandating that the operation and management structure of Born Stone and TJ Leasing maintain their status quo; prohibiting the sale, transfer, or encumbrance of company assets; and prohibiting the sale, transfer, or encumbrance of Born Stone Stock or TJ Leasing membership interests.
On September 28,2011, the Born Tmst caused a certified check in the amount of $964,144.87 to be hand-delivered to Sharon’s counsel, along with a letter stating: “This check should satisfy all amounts due under the contracts.” Although not explained at the time, the amount tendered was calculated as tire total amount of principal and interest due and owing under both notes as of September 29, 2011, after taking into account the April 8, 2011, payment of $375,000 on the TJ Leasing note and deducting 49% of the remaining principal balance of the TJ Leasing note to reflect Todd’s transfer to Sharon of his 49% ownership interest in TJ Leasing.
On September 30, 2011, Sharon’s attorney returned the check, stating: “I am in receipt of your client’s actual tender of payment, and as stated before, it is rejected.” The letter continued to set forth Sharon’s position; namely, drat she did not need to declare a default, that John’s death constituted an automatic default, that she only needed to declare that the notes’ balances were accelerated, and that her only remedy in the event of the default was to accept the collateral.
Todd’s Trust filed a motion to intervene in the lawsuit on October 11, 2011, and the motion was subsequently granted.
On October 31, 2011, Sharon filed a second amended answer and counterclaim seeking a declaratory judgment that (1) immediately upon the death of John, Sharon properly and rightfully declared due the entire amounts owed under the notes; (2) upon John’s death, Sharon had tire right to vote all of the membership interest in TJ Leasing and 97 shares of Born Stone; (3) Sharon properly notified the Born Trust of her acceptance of the collateral under the security agreements; (4) Sharon is the lawful owner of all membership interest in TJ Leasing and the 97 shares of Born Stone stock; and (5) the Born Trust has no further liability under the notes and secuxity agreements. In the alternative, Sharon requested that if the notes and security agreements could not be enforced as written, the agreements should be reformed to carry out the parties’ intent, or the agreements should be rescinded and the parties returned to their original position.
A restraining order was filed on November 15, 2011, wherein the parties agreed that the operations and management structure of Bom Stone and TJ Leasing would maintain their status quo and no other substantive actions would be taken by either company without written agreement by the lawsuit’s parties or court order.
The Born Trust also filed a motion for leave to amend its petition, which was subsequently granted. The amended petition added a count for declaratory judgment asking the court to find: (1) that the Born Trust was entitled to a reasonable amount of time to pay the balance of each note before Sharon could accept the collateral; (2) that Todd’s surrender of his membership interest in TJ Leasing, and Sharon’s acceptance of the same, satisfied 49% of the balance of the TJ Leasing note; (3) that the Born Trust’s tender of the total amount due under both notes was reasonable and timely; (4) that Sharon’s purported acceptance of the collateral was ineffective; (5) that the Born Trust remains the owner of 98.94 shares of Bom Stone stock; and (6) that Sharon’s remedy is acceptance of the amount previously tendered for each note as payment in full.
The Born Trust and Sharon subsequently filed competing motions for summary judgment, with Todd’s Trust joining Sharons motion. The district court granted summary judgment to Sharon, finding that the Born Trust had not formally objected to Sharon’s notice of acceptance of the collateral and that the Born Trust had not tendered payment in fulfillment of all its obligations under the notes. The district court therefore directed the Born Trust to turn over its 97 shares of Born Stone stock and all of its membership interest in TJ Leasing to Sharon.
The Born Trust filed a motion for reconsideration, which the district court denied. But the district court did clarify that John’s death did not trigger an option for Born Stone or its stockholders to purchase the 1.94 shares of Born Stone stock that had been previously purchased from Todd. As such, the district court held that die 1.94 shares of Born Stone stock properly passed to John’s heirs. The Born Trust appealed the district court’s initial ruling, and Sharon cross-appealed the district court’s ruling with regard to the 1.94 shares of Born Stone stock.
Court of Appeals Decision
To the Court of Appeals, the Born Trust raised five issues, asserting that (1) for multiple reasons, the district court erred in holding that Sharon had properly accepted the collateral under K.S.A. 2013 Supp. 84-9-620(a); (2) the written agreements clearly provided drat the Born Trust had a reasonable amount of time to pay the balance of the notes after John’s death and before Sharon’s acceptance of the collateral; (3) Sharon waived or relinquished her right to demand prompt payment of the notes; (4) Sharon’s acceptance of 49% of the collateral under the TJ Leasing security agreement should have reduced the amount required to be tendered by the Born Trust; and (5) the district court erred in holding that the Born Trust’s tender did not redeem the collateral secured by the TJ Leasing security agreement.
In response, Sharon argued that her acceptance of the collateral was in conformance with K.S.A. 2013 Supp. 84-9-620; that the dis trict court correctly held that Sharon’s acceptance of the collateral was effective unless the Born Trust timely objected and timely redeemed the collateral; and that the district court correctly held that the Born Trust failed to timely object and redeem the collateral. Finally, Sharon argued that the district court erred in holding that the Born Trusts transfer of the 1.94 shares of Born Stone stock was a permitted transfer.
In affirming the district court, the Court of Appeals first held that the parties’ agreements were subject to the UCC, which contains specific provisions relating to a secured party’s options upon default. Born, 2014 WL 1096602, at *6. Critical to its ultimate holding, the panel then found that the terms of the sales limited Sharon’s remedy upon default to accepting the secured collateral and that the UCC regulates the manner in which a secured party may accept collateral. 2014 WL 1096602, at *7. The Court of Appeals correctly noted that the acceptance of collateral procedure may not be waived. 2014 WL 1096602, at *7.
The Court of Appeals then found that Sharon’s September 21, 2011, letters constituted valid proposals to accept the collateral pursuant to K.S.A. 2013 Supp. 84-9-620. 2014 WL 1096602, at *9. Citing to K.S.A. 2013 Supp. 84-9-102(a)(66), the provision defining “proposal,” the Court of Appeals determined that Sharon’s proposal need only to manifest her intent to accept the collateral in full satisfaction of the Born Trust’s obligations, and Sharon’s September 21, 2011, letters clearly manifested that intent. 2014 WL 1096602, at *8. The Court of Appeals further reasoned that the UCC did not require tire secured party to notify the debtor of its right to object or notify the debtor of the amount due under the debt instrument. 2014 WL 1096602, at *9.
Contrary to the district court’s finding, the Court of Appeals held that die Born Trust did, in fact, object to Sharon’s acceptance of the collateral. 2014 WL 1096602, at *10. The panel reasoned that because Sharon’s only remedy under the agreements was to accept the collateral, an event of default
“could result in one of only two outcomes: (1) Sharon could accept die collateral in satisfaction of the Born Trust’s obligations on die Notes or (2) die Born Trust could object and redeem the collateral under K.S.A. 2013 Supp. 84-9-623. Therefore, the district court correctly determined that in order to prevent Sharon from accepting the collateral, the Born Trust had to both timely object to Sharon’s proposal and redeem the collateral.” 2014 WL 1096602, at *10.
The Court of Appeals concluded that the Bom Trust failed to redeem the collateral because it did not make a “full tender of the entire obligation due under the Notes.” 2014 WL 1096602, at *11.
In reaching this decision, the Court of Appeals rejected the Born Trust’s argument that Sharon’s refusal to accept payment constituted a waiver of its obligation to tender because the payment would have been futile. The Court of Appeals reasoned that because the debtor’s right to redeem is absolute and cannot be waived, “regardless of Sharon’s position, the Born Trust could have redeemed tire collateral if it had actually tendered payment of the outstanding balance of the Notes in full.” 2014 WL 1096602, at *12. In addition, the Court of Appeals found that Sharon did not, in fact, waive the Born Trust’s obligation to tender; but instead, Sharon s counsel repeatedly advised the Born Trusts counsel that actual tender was necessary. Finally, the Court of Appeals rationalized that the Born Trust’s attempt to tender the partial amount due, as well as its repeated statements that it intended to tender tire total amount due, established “that the Born Trust was aware of its obligation under K.S.A. 2013 Supp. 84-9-623(b).” 2014 WL 1096602, at *12.
The Court of Appeals also rejected the Born Trust’s argument that partial tender was sufficient, finding that the plain language of the TJ Leasing security agreement and the provisions of the UCC did not permit partial payment or partial surrender under the facts of this case. 2014 WL 1096602, at *13. Similarly, the panel rejected the Born Tmst’s argument that the partial tender completely satisfied the obligations secured by the Stock Purchase Note because the evidence indicated that the parties intended that all of the agreements were part of one transaction and that when making its tender, the Born Trust expressly stated that the check should satisfy all amounts due under the contracts. 2014 WL 1096602, at *14.
The Court of Appeals concluded that under the terms of the parties’ agreements, Sharon’s sole remedy was to accept the collateral, that Sharon did not waive her right to payment under the notes, and the Bom Tmst did not follow the steps to properly redeem the collateral because it did not tender fulfillment of all obligations secured by the collateral. As such, the Court of Appeals held that the district court properly granted summary judgment in favor of Sharon. 2014 WL 1096602, at *14. We granted the Born Trusts timely filed petition for review pursuant to K.S.A. 20-3018(b), obtaining jurisdiction under K.S.A. 60-2101(b).
In its petition for review, the Born Trust divides its challenge to the Court of Appeals’ decision into a number of issues, some of which overlap and some of which are alternative arguments. We take the liberty of consolidating and rearranging the issues for our discussion.
Standards of Review
The district court decided this case on defendants summaiy judgment motion, which is only appropriate if 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. The district court must resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. On appeal, the same rules apply; summaiy judgment must be denied if reasonable minds could differ as to the conclusions to be drawn from the evidence. Stanley Bank v. Parish, 298 Kan. 755, 759, 317 P.3d 750 (2014).
En route to its ultimate decision, the Court of Appeals interpreted the parties’ agreements, and the panel interpreted and applied statutory provisions. The interpretation of statutes and written contracts is a question of law over which this court exercises unlimited review, unaffected by the lower courts’ interpretations or rulings. See Prairie Land Elec. Co-op v. Kansas Elec. Power Co-op, 299 Kan. 360, 366, 323 P.3d 1270 (2014) (appellate court exercises unlimited review over interpretation and legal effect of written instruments; not bound by lower court’s interpretation); Cady v. Schroll, 298 Kan. 731, 734, 317 P.3d 90 (2014) (statutory interpretation legal question subject to unlimited review).
Validity of the Creditor’s Strict Foreclosure
The Bom Trusts first three issues on review posed the following questions: (1) Whether Sharons acceptance of the collateral in satisfaction of the notes under K.S.A. 2013 Supp. 84-9-620 was proper, given that the Bom Trust did not consent to that procedure but rather objected thereto; (2) whether the Born Trust was required to both object to the acceptance of collateral and redeem the collateral in order to prevent Sharon from accepting the collateral in satisfaction of the notes under K.S.A. 2013 Supp. 84-9-620; and (3) whether Sharon s sole remedy under the notes and security agreements was to accept the collateral in full satisfaction of the indebtedness.
Those issues were intertwined by the Court of Appeals when it determined that Kansas’ version of the Uniform Commercial Code, K.S.A. 84-9-101 et seq., applied to the transactions involved in this case; that Sharon’s sole default remedy under the written agreements was to accept the collateral in full satisfaction of the remaining indebtedness; and that, in such a case, K.S.A. 2013 Supp. 84-9-620 had to be interpreted to require the Bom Trust to both object to the acceptance of collateral and to redeem the collateral by tendering “fulfillment of all obligations secured by the collateral.” Born, 2014 WL 1096602, at *14. Accordingly, we will consider those three questions together.
The Court of Appeals’ holding that the UCC applies to the parties’ transactions in this case has not been challenged on review, and that holding is supported by K.S.A. 2013 Supp. 84-9-109(a)(1), which states that Article 9 applies to “[a] transaction, regardless of its form, that creates a security interest in personal property or fixtures by contract.” Here, the sale transactions created security interests in personal property (corporate stock and LLC membership units) by the two contracts which were labeled “Pledge Agreement.” See K.S.A. 2013 Supp. 84-1-201(b)(35) (defining “security interest”). In addition, the parties specifically provided in the security agreements that “all words in this Agreement shall have the meaning given to them in the Uniform Commercial Code.”
The applicability of the UCC is important here because, as the panel acknowledged, Article 9 provides a secured party with sev eral remedy options. Born, 2014 WL 1096602, at *6-7. Those UCC remedies are cumulative and may be used simultaneously. K.S.A. 2013 Supp. 84-9-601(c), Comment 5. Moreover, K.S.A. 2013 Supp. 84-9-601(a) indicates that the statutory remedies on default are in addition to “those [remedies] provided by agreement of the parties,” so long as the agreement does not contravene the nonwaiver provisions of K.S.A. 2013 Supp. 84-9-602. Nevertheless, the Court of Appeals determined that only one remedy could apply in this case, declaring:
“In tire present case, the terms of the parties’ agreements specifically limited Sharon to a single remedy — accepting the collateral in full satisfaction of the debt. The UCC regulates the manner in which a secured party may accept collateral. See K.S.A. 2013 Supp. 84-9-620(A). This procedure cannot be waived. K.S.A. 2013 Supp. 84-9-602(10).” 2014 WL 1096602, at 7.
The sole remedy identified by the panel — acceptance of collateral in full or partial satisfaction of the obligation — is set forth in K.S.A. 2013 Supp. 84-9-620. As it relates to the facts of this case, that statute provides that a secured party may accept collateral in full or partial satisfaction of the obligation it secures “only if’ the debtor consents to the acceptance or the secured party does not receive an authenticated objection to the proposal within 20 days of giving the debtor notice of tire proposal. K.S.A. 2013 Supp. 84-9-620(a)(1), (a)(2)(A), and (d).
The remedy described in K.S.A. 2013 Supp. 84-9-620 is also known as a strict foreclosure, which is defined as “a procedure by which the secured party acquires the debtor s interest in the collateral without the need for a sale or other disposition under Section 9-610.” K.S.A. 2013 Supp. 84-9-620, Comment 2. “Strict foreclosure eliminates the need for the secured party to dispose of the collateral,” and “[w]here the collateral is accepted in full satisfaction of the debt, the secured party effectively waives its right to a deficiency and the debtor waives its right to any surplus.” 11 Anderson on the Uniform Commercial Code § 9-620:3 (3d ed. 2007).
“The acceptance or retention of collateral is a permissive, not mandatory remedy. Moreover, a debtor cannot force a secured creditor to accept the property in satisfaction of the debt.” 68A Am. Jur. 2d, Secured Transactions § 577. On tire other hand, “[b]ecause the debtor loses any right that he [or she] may otherwise have to the amount by which the value of the collateral exceeds the debt (‘the surplus’), the debtor must consent to the secured party’s decision to strictly foreclose upon the collateral.” (Emphasis added.) 11 Anderson on the Uniform Commercial Code § 9-620:8. Arguably, that consent must occur at the time the secured party proposes strict foreclosure, rather than at the time the contract is executed. See, e.g., In re CBGB Holdings, LLC, 439 B.R. 551, 555 (Bankr. S.D.N.Y. 2010) (“[A] debtor cannot consent to strict foreclosure in anticipation of a future default at the time it enters into the transaction that creates die debt and security interest.”). Because both the note balance and the value of collateral can change dramatically over the term of a note, i.e., the existence of surplus or deficit collateral value is a constantly moving target, a “knowing” consent to strict foreclosure can only be made at the time the secured party proposes the strict foreclosure.
The changing effect of strict foreclosure on a debtor’s surplus is poignantly illustrated by the TJ Leasing transaction. The promissory note was initially made for the full purchase price of $825,877, plus interest, payable at $50,000 per year. At that rate of repayment, it would take 16.5 years to pay just the principal. But within the first year of the installment note, the debtor paid off nearly half of the indebtedness, only to have the secured party strictly foreclose on the collateral securing the debt, taking any surplus of the collateral’s value over the remaining debt that the payment of 45% of the purchase price had generated. To be colloquial, Sharon got to have her cake and eat 45% of it too on the TJ Leasing transaction, at the expense of John’s heirs.
Accordingly, the panel’s determination that the Born Trust did not consent to die strict foreclosure, but rather timely notified Sharon that it objected to the strict foreclosure proposal should have ended the inquiry with a ruling in favor of the Born Trust. The statute’s use of “only if’ clearly establishes mandatory conditions precedent to a creditor’s permissive use of strict foreclosure. Under our facts, those conditions precedent to strict foreclosure would be either that die debtor consented or that the debtor failed to object after notice. Sharon could not establish either condition; die Bom Trust did not consent and it did object.
But the Court of Appeals read into the statute an additional condition that a debtor must establish in order to prevent a secured party from forcing a strict foreclosure. Under the panels interpretation, a debtor’s objection to the strict foreclosure proposal under K.S.A. 2013 Supp. 84-9-620 must be accompanied with a redemption of the collateral under K.S.A. 2013 Supp. 84-9-623. But that does not comport with a plain language construction, under any reasonable interpretation of the common meaning of the common words employed in K.S.A. 2013 Supp. 84-9-620. See In re Tax Appeal of Burch, 296 Kan. 713, 722, 294 P.3d 1155 (2013) (when statute plain and unambiguous, appellate court cannot read something into statute that is not there).
Further, the Court of Appeals’ interpretation of K.S.A. 2013 Supp. 84-9-620 is inconsistent with other provisions of the UCC. For instance, K.S.A. 2013 Supp. 84-9-623(c)(3) provides that redemption may occur “at any time before a secured party: . . . has accepted collateral in full or partial satisfaction of the obligation it secures under K.S.A. 2013 Supp. 84-9-622, and amendments thereto.” The K.S.A. 2013 Supp. 84-9-622 referred to in that redemption provision deals with the effect of an acceptance of collateral, and its corresponding Comment explains: “The acceptance to which it refers is an effective acceptance. If a purported acceptance is ineffective under Section 9-620, e.g., because the secured party receives a timely objection from a person entitled to notification, then neither this subsection nor subsection (b) applies.” (Emphasis added.) K.S.A. 2013 Supp. 84-9-622, Comment 2. Pointedly, the comment does not say that to avoid the effects of an acceptance the debtor must also redeem the collateral.
The only way to statutorily square the Court of Appeals’ result would be to infer that it found that the Born Trust’s ineffectual redemption of collateral under K.S.A. 2013 Supp. 84-9-623 acted as a waiver or a variance of the rules by which a debtor prevents strict foreclosure with a notification of objection under K.S.A. 2013 Supp. 84-9-620. But that pathway runs counter to tire proscription against waiver or variance in K.S.A. 2013 Supp. 84-9-602. The Court of Appeals opinion mentions that statute in passing but fails to acknowledge that it does not apply to Sharons rights. To the contrary, the statute begins with the following limiting language, to-wit: “[T]o tire extent that they give rights to a debtor or obligor and impose duties on a secured party, the debtor or obligor may not waive or vary the rules stated in the following listed sections.” K.S.A. 2013 Supp. 84-9-602. In other words, the nonwaiver statute only proscribed a waiver or variance of a statutory rule by TJ Leasing or the Born Trust (as debtor and obligor, respectively); the statute did not prevent a waiver or variance of a statutory rule by Sharon, as tire secured party. Moreover, K.S.A. 2013 Supp. 84-9-602 only prevented a waiver or variance of a statutory rule that gave TJ Leasing or the Born Trust a right or that imposed a duty on Sharon; rules giving rights to Sharon or imposing duties on TJ Leasing or the Born Trust were unaffected by K.S.A. 2013 Supp. 84-9-602.
K.S.A. 2013 Supp. 84-9-620, dealing with the acceptance of collateral in satisfaction of the obligation, i.e., strict foreclosure, is one of the sections listed in K.S.A. 2013 Supp. 84-9-602 as containing debtors rights and/or secured party’s duties that cannot be waived or varied. Yet, the panel did that very thing; it varied the statutory mies of K.S.A. 2013 Supp. 84-9-620 by taking away the right of a debtor/obligor to prevent strict foreclosure by the sole and only act of effectively objecting to the secured party’s proposal. Put another way, the panel’s additions to K.S.A. 2013 Supp. 84-9-620 not only violated canons of statutoiy construction but also ran counter to the specific nonvariance provisions of K.S.A. 2013 Supp. 84-9-602.
Apparently, the Court of Appeals felt compelled to augment the statute governing strict foreclosure because it opined that the circumstance into which Sharon had placed herself by written agreements left her with no remedy when the Born Trust exercised its statutory right to object to strict foreclosure. Again, the parties’ agreements could waive or vary Sharon’s rights without violating K.S.A. 2013 Supp. 84-9-602. Therefore, court intervention to restore any right or remedy that Sharon might have contracted away was not statutorily warranted or appropriate.
Moreover, as will be discussed below, the panel's initial premise — that the parties’ agreements only permitted Sharon to strictly foreclose on the collateral upon default — was faulty and doomed its analysis from the outset. Nevertheless, even if the parties’ written agreements had created an untenable circumstance for tire secured party that the court could or should rectify, the fix should have been aimed at tire provisions of the agreements causing the problem, rather tiran revising the applicable statutory provisions.
There is statutory support for fixing the agreements. For instance, K.S.A. 2013 Supp. 84-9-603(a) indicates that where the parties are permitted to determine by agreement the standards measuring the fulfillment of rights and duties, those standards cannot be “manifestly unreasonable.” Cf. K.S.A. 84-2-302(1) (court may limit application of unconscionable clause of sales contract to avoid any unconscionable result). Likewise, there is contractual support for fixing any invalid provisions in the agreements. The parties’ security agreements contained a severability provision stating that “if any one or more such paragraphs shall be adjudged or declared illegal, invalid or unenforceable, this Agreement shall be interpreted and shall remain in full force and effect as though such paragraph or paragraphs had never been contained in this Agreement.” In short, a determination that a provision of the parties’ agreements is manifestly unreasonable or unconscionable does not provide the justification for a court to revamp a statute that had nothing to do with creating the perceived problem.
Turning to the question of whether the agreements limited Sharon’s default option to strict foreclosure, we first observe that the Court of Appeals focused entirely on Sharon’s rights under the default paragraph of the security agreements. After substituting Sharon’s name for that of her assignor, Born Stone, Inc., the default and remedies paragraph in the TJ Leasing security agreement provided:
“Whenever an Event of Default exists as set forth in the Note beyond any applicable cure period, or in the event Members fail to comply with the provisions of Paragraph 6, [Sharon] shall accept the Collateral by giving notice of such fact to Members in which case [Sharon] shall forthwith take possession of the Collateral and all interest of Members therein shall be forfeited and shall cease and terminate, and neither [Sharon] nor Members shall have an [sic] further liability to the other under this Agreement.”
We pause to note that the parties and the panel did not acknowledge that, in connection with the asset purchase transaction, the borrower on the promissory note is TJ Leasing, but the assets pledged to secure that note are individually owned by the Bom Trust and Todd. The record does not reflect whether the TJ Leasing members personally guaranteed the full amount of the corporate debt or whether they simply pledged their individual assets to secure the debt only to the extent of the value of those pledged assets. Nevertheless, the failure to differentiate between the debtor and the other obligors on the TJ Leasing note will not affect our resolution of tins appeal.
In the stock purchase transaction, where the borrower on the note was also the owner of the assets pledged as security, the security agreement contained essentially the same default provision, to-wit:
“Whenever an Event of Default exists as set forth in the Note beyond any applicable cure period, or in the event Stockholder fails to comply with provisions of Paragraph 6, [Sharon] shall accept the Collateral by giving notice of such fact to Stockholder in which case [Sharon] shall forthwith take possession of the Collateral and all interest of Stockholder therein shall be forfeited and shall cease and terminate, and neither [Sharon] nor Stockholder shall have an [sic] further liability to the other under this Agreement.”
The panel apparently read the phrase, “shall accept the Collateral,” as meaning that “the parties’ agreements specifically limited Sharon to a single remedy — accepting the collateral in full satisfaction of the debt.” But, of course, the phrase does not specifically state that acceptance of collateral is Sharons exclusive remedy. Moreover, reading the phrase in context would refute that such a reading should be implied. Within the same sentence, the phrase is immediately followed by the words, “by giving notice of such fact to Stockholder,” which could indicate that the word “shall” was intended to mandate the manner in which Sharon could accept the collateral. To paraphrase, the sentence could mean: “To use the acceptance of collateral remedy, Sharon shall give notice of such fact to Stockholder.” Nevertheless, the security agreement certainly does not mandate that the remedies provided under the UCC, which are in addition to those provided by the agreement, are not applicable to this transaction.
More importantly, however, the paragraph begins by referring to the provisions of the promissory note, specifically mentioning the events constituting a default set forth in the note and any applicable cure period. That reference acknowledges that the promissory note contains certain rights and duties as between the lender and borrower, separate and apart from the security agreement. Indeed, the note and the security agreement perform separate functions. The note governs the manner and method of the repayment of the debt, whereas the security agreement governs the disposition of the collateral pledged to assure the performance of the debtor under the note. See 8A Anderson on the Uniform Commercial Code § 9-102:42 (“The purpose of a security interest is that ‘the collateral serves to assure repayment of the debt in case of default.’”).
Here, as previously indicated, the note enumerates the events which would place the borrower in default, one of which was "the death of either John H. Born, Jr. or Todd Born.” The next paragraph of the note, entitled “Acceleration of Purchase Price Note upon Event of Default,” states:
“Upon the occurrence of an Event of Default, Lender may, at its option and in its sole discretion, declare the entire balance of this Purchase Price Note, including all interest, costs, expenses, charges, disbursements and fees payable by Borrower hereunder, to be immediately due and payable, and upon such declaration all sums outstanding and unpaid under this Purchase Price Note shall become and be in default, matured and immediately due and payable, without presentment, demand, protest or any notice of any land to Borrower or any other person.”
That provision of tire notes gave Sharon the option to accelerate the notes and demand payment of the remaining balances. There is nothing that would have precluded Sharon from accepting Betty’s proffer of the $50,000 annual payments on each note, rather than declaring an acceleration. But in either event, paragraph l.c. of the note directs the borrower as follows: “All payments due under [the] Purchase Price Note shall be made to Lender [at her address] in lawful money of the United States.” The notes contemplated cash payments.
Clearly, then, upon John’s death, the promissory notes gave Sha ron remedies other than strict foreclosure of the collateral, e.g., she could continue to accept annual payments under the installment notes or she could declare an acceleration of the notes and receive monetary payments of the full amount of their remaining balances. Nothing in the provisions of the notes would suggest that the lender was limited to receiving the “immediately due and payable” accelerated note balances in the form of forfeited collateral. To the contrary, the intended endgame on a promissory note is normally the full payment of the debt, rather than a foreclosure on the securing collateral.
Moreover, the remedies available to a lender under a promissory note are not lost simply by taking a security interest in the debtors collateral. A secured party, i.e., a person who has loaned money and secured collateral to assure repayment, “may also, at its option, ignore that security and satisfy its judgment from other property in the hands of the judgment debtor. ” Kennedy v. Bank of Ephraim, 594 P.2d 881, 884 (Utah 1979). See also Gillenwater v. Mid-American Bank & Tr. Co., 19 Kan. App. 2d 420, Syl. ¶ 3, 870 P.2d 700 (1994) (holding that creditor was not required to foreclose on a mortgage securing a note, but instead creditor could first sue debtors on the note). In other words, Sharon always had the option to forego a pursuit of her interest in the collateral under the security agreements and simply assert her right to repayment under the notes.
In this case, Sharon attempted to take both routes; she declared the accelerated notes “immediately due and payable,” while at the same time proposing to accept the collateral in full satisfaction of the debts. When the Born Trust, as obligor on the TJ Leasing note and debtor on the Stock Purchase note, objected to Sharons strict foreclosure proposal, that remedy was precluded by statute. But Sharon’s right to accept payment of the amounts due under the notes was still very much alive and well.
Likewise, both notes gave the borrower the right to prepay any amount of indebtedness at any time; nothing in either note purports to extinguish the borrower s right to pay the notes with money when the lender declares an acceleration. That result should not change simply by labeling tire tender of payment due on the note as a cure for a default. To the contrary, even the security agreements contemplate the possibility that an Event of Default can be cured, e.g., by payment in full, before the collateral remedies are invoked. The default/remedies paragraph in both security agreements specifically states that its provisions apply “[wjhenever an Event of Default exists . . . beyond any applicable cure period.” Certainly, that language is inconsistent with Sharon’s argument that the parties intended strict foreclosure to be automatically and immediately triggered when John died, without any opportunity to cure the default with full payment.
In summary, when Sharon invoiced her Event of Default option to accelerate the notes, declaring the remaining balances to be immediately due and payable, dre Bom Trust, as obligor under one note and debtor under the other, had the right to cure the declared default by paying the accelerated balances on the notes “in lawful money of the United States.” Sharon was not prohibited by law or by agreement from accepting the tender of a monetary payment on the accelerated debt. She was, however, prohibited by law from strictly foreclosing on the collateral without the consent and over the objection of the Born Trust.
The Born Trust made a concerted effort to exercise its right to pay the accelerated notes in full. First, the day following Sharons notice of acceleration, the trusts attorney contacted Sharon’s attorney to proffer and arrange for payment in full on the remaining balances. On Sharon’s behalf, her attorney rejected the proffer, taking the position that she did not have to accept note payments because she was strictly foreclosing on the collateral. Notwithstanding Sharon’s blanket refusal to accept any monetary payments, the Born Trust followed its proffer by tendering a $964,144.87 certified check to Sharon’s counsel, indicating that it was intended to “satisfy all amounts due under tire contracts.” Sharons attorney rejected the payment and returned the certified check, again asserting that strict foreclosure was the only remedy.
The Court of Appeals found that the tender of payment was an ineffectual redemption of collateral because it was for an amount less than the total remaining balance on the two notes. It supported that conclusion by stating that the parties later agreed that the bal- anees on the notes totaled $1,193,036.74. 2014 WL 1096602, at *4. But the panel does not indicate whether that figure takes into account the value of surrendered collateral. Certainly, TJ Leasing, as the borrower on the asset purchase note, was entitled to a credit against the TJ Leasing note for the value of the collateral its member transferred to tire lender, in the same manner as it received credit for the gratuitous $375,000 prepayment on the note to help Sharon out of her tax problem.
But the district court did not make any factual findings on the value of Todd’s membership units that were surrendered to Sharon, except to observe that the value of a minority stock holding is sometimes discounted. That observation is suspect for more than one reason. First, if the outstanding balance of the TJ Leasing note is disputed because the amount of credit for surrendered collateral is in dispute, summary judgment would not have been proper.
Next, even if the value of Todd’s membership units was discounted, it was worth something, and that something should have been credited against the debt. The panels holding that a partial acceptance of collateral was not permitted is belied by Sharon’s actions in accepting the partial strict foreclosure in lieu of payment. If the Bom Trust has to pay the entire balance on the TJ Leasing note, without reduction for Todd’s surrendered collateral, does the trust seek contribution from Todd or Sharon?
Finally, if the minority discount to which the district court referred is from the current book value of the TJ Leasing membership units, the discounted value of 49% of the units might well exceed the value of 49% of the remaining balance on the TJ Leasing note (which the Born Trust claimed). That result could easily obtain if the company's profits in its first year of operation increased the book value of its units or if the book value remained the same but the note balance was drastically reduced by the large prepayment, or both.
But more importantly, Sharon did not reject the Born Trust’s tender of payment because she disputed the amount tendered. She wrongfully rejected the tender in order to force a strict foreclosure, which was not permitted by law or required by agreement. Accordingly, the Born Trust’s good faith tender of the amount it believed to be due on the notes, in the absence of any claim at the time by Sharon that the tender was insufficient, established the Born Trust’s right to cure the Event of Default by paying the notes and triggered the date on which to establish the indebtedness. Cf. K.S.A. 84-3-603(c) (“If tender of payment of an amount due on an instrument is made to a person entitled to enforce the instrument, the obligation of the obligor to pay interest after the due date on the amount tendered is discharged.”). Sharons later claim that the amount tendered was not enough simply served to establish the existence of a material disputed fact that the district court should have resolved.
Consequently, the holdings of the Court of Appeals are reversed. The matter is remanded to the district court for further proceedings to determine, as of September 28, 2011, the amount due from tire Born Trust on the stock purchase note and the amount due from TJ Leasing on the asset purchase note, giving appropriate credit for the value of Todds transferred membership units to the lender. Upon payment of those amounts, Sharons liens against the pledged collateral shall be terminated and released.
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The opinion of the court was delivered by
Rosen, J.:
Michael Staten was convicted by a jury of one count of aggravated battery. The Court of Appeals affirmed his conviction, and we granted review.
Facts
Staten and Yvonne Williamson shared an apartment in Wyan-dotte County. In the early morning of July 22, 2011, the two engaged in an altercation that left Williamson severely injured. Witnesses disagreed on the circumstances leading up to the altercation, resulting in two distinct narratives, which, we set out below.
Williamson and other witnesses recalled the following sequence of the events.
Wilhamson testified that on July 21, she got off work around 9 p.m. and went home to cook dinner. Staten was already home, and they got into an argument. Williamson decided to leave and walk to a nearby liquor store in order to keep the argument from escalating. Upon returning home with her purchase, die argument became more heated, and she again left, this time to visit a friend, where she talked, watched television, drank some brandy, smoked some marijuana, and consumed some cocaine.
Early tire next morning, around 1:30 a.m., she returned to her apartment, feeling anxious and anticipating a continued argument with Staten. When she arrived, Staten was angry and had been drinking. He told her to get her belongings and leave. She packed her clothes, and he threw them out onto the back porch. While she was putting her clothes in her car, he attempted to lock her out of the house. He came outside about 20 minutes later and persuaded her to return to the apartment.
Once inside, they began to argue again. Staten grabbed her keys, and she called him a “bitch.” He hit her in the face with the keys, and then he pulled her into the bathroom, where he began beating her so hard that she started to bleed profusely. When he grabbed her by the hair, she bit him in an attempt to make him release her, and he put his arm around her neck in a chokehold. He informed her that he was going to kill her and then turn himself in to authorities in the morning. He finally released her when he got up to get something, and she ran outside and shouted for help.
Staten followed her outside and started swinging a stick at her. The stick had a nail protruding from one end. As she was trying to protect herself from the blows, one of her knuckles was broken. After he had hit her several times with the stick and his fist, she fell to the ground. He continued to hit her and kick her and told her that he would kill her, that she did not deserve to live, and that nobody would want her when he was through with her. She lay still until an ambulance arrived.
She was hospitalized for 4 days. In addition to receiving scars and bruises, she suffered a puncture wound near her lung, and she eventually received surgery for an injury to one eye. She denied having threatened or attacked Staten and testified that she bit him only after he grabbed her hair.
A neighbor, Emmanuel Rivera, testified that he was awakened by his dog barking and looked out his apartment window to see Staten “beating the crap out of a woman.” He reported that Staten was hitting the woman so hard with a stick that the stick broke and part of it flew away some distance. He saw Staten continue to hit her with the broken stick, then lack her, and then drag her around on the ground. In Riveras opinion, it appeared that Staten was hitting and kicking the woman so hard that he was trying to kill her. Rivera shouted to him that he should stop or Rivera would call the police. Staten hit the woman a few more times and then threw the stick into a neighbor’s yard. Rivera never saw the woman attack or attempt to hit Staten; she lacked the strength to do that, and she was unable to defend herself. While the woman screamed for help, Staten called her a “whore” and told her he was going to kill her. When emergency vehicles approached, Rivera saw Staten go back inside.
Edward Miller, a neighbor and acquaintance of Staten and Williamson, spent the evening of July 22 hanging out with Staten and a third man outside the apartment. They listened to music and waited for Williamson to return home. Around midnight, the three parted company and went into their respective apartments. Later, Millers fiancee woke him and told him he needed to go get Staten. Going outside, Miller heard a lot of yelling and saw Williamson lying in the middle of the parking lot. She was bloody but speaking in a normal voice. Staten was shouting that “she deserved it.” Miller pulled Staten away from Williamson and tried to stay between them. Staten went back inside his apartment, and Miller stayed outside until the police and ambulance arrived.
Millers fiancée, Nicole Vaughn, also witnessed some of the events. After hearing some noise in the parking lot, she looked out her apartment window and saw Staten with his hand raised as if he was preparing to strike Williamson. She woke Miller up, ran downstairs, and called the police. Williamson was seated or lying “helpless” on the ground, and Staten was standing over her. Vaughn saw no aggressive behavior on Williamsons part. Instead, she watched Staten lack Williamson and hit her several times, either with his fist or with a stick with a sharp object on the end. She also heard Staten say, “[T]his bitch deserves to die.” After Staten returned to his apartment, Vaughn walked over to Williamson, who was unrecognizable because there was so much blood and because her hair was matted to her head and her face was so swollen.
Staten testified to a different version of the events and subsequent altercation.
On the evening of July 21, Staten saw another man escorting Williamson home across the parking lot. When she arrived back in the apartment, Staten and Williamson had a tense encounter, and Williamson then left for several hours.
She returned to the apartment around 1:15 in the morning. When she arrived, Staten was in the living room. She grabbed a beer out of the refrigerator and walked into the bedroom. Staten followed her, intending to ask about the earlier situation, but she was on the telephone and he decided to wait. He told her they could discuss the matter later in the morning, and she agreed, so he returned to the front room to get ready for bed. He got in bed around 1:25, while Williamson stayed up and played a computer game.
Around 3 a.m., Williamson walked toward the kitchen and kicked the futon mattress on which Staten was sleeping. Returning from the kitchen, she told him that he did not have to worry about her staying because she was leaving. He went into the bedroom and saw that she had packed her clothes. He told her that packing her clothes meant she was ready to leave, so he took two bags of clothing and set them on the back porch, along with some of her other belongings. When she went to see where he had put her belongings, he locked her out of the bedroom, hoping that some time alone would defuse her antagonism.
When Staten heard Williamson putting things in her car, he locked her out of the apartment because he was concerned that she was agitated and confrontational. Then he went outside to talle with her after she had calmed down. After they talked for about 20 minutes, he went around to the front to smoke a cigar while she went back inside. He saw her take his keys and start to drop them in her purse, at which time he grabbed the key chain and snatched the keys out of her purse.
Williamson ran toward him, called him a “bitch,” and grabbed his keys. Staten warned her that he would call the police, whereupon Williamson grabbed his right hand and bit him on the right ring finger. As she bit down, he grabbed her in a headlock in an attempt to make her release his finger. After she finally let go, he got up and went into the living room to get his cell phone to call the police. While he was trying to unplug his phone from its charger, Williamson ran up and hit him with a stick that they had been using to hang laundry. She hit him on the head and in the face and chased him out of the apartment.
They both tripped over a bicycle railing, and he wrestled the stick away from her and hit her. She ran back toward him, so he hit her again in order to protect himself. Williamson said she was going to kill him, and he thought he was going to die. It was only after he had struck her several times that she became subdued enough to cease her attack, and he returned to the apartment.
The verdict and sentence
A jury found Staten guilty of one count of aggravated batteiy and he was sentenced to a standard term of 154 months and ordered to pay $27,000 in restitution. He took a timely appeal to the Court of Appeals, which affirmed the conviction. State v. Staten, No. 108,305, 2015 WL 423644 (Kan. App. 2015) (unpublished opinion). This court granted review with respect to all issues.
Analysis
Jury instruction on burden of proof for self-defense
Staten first complains that the jury instructions failed to inform the jury properly what the burden of proof was and who bore it. He asserted a self-defense theory at trial. He contends that the district court committed reversible error by failing to instruct the jury that the State was required to prove beyond a reasonable doubt that he did not act in self-defense. While the district court gave a general burden of proof instruction, it did not instruct specifically how the reasonable-doubt standard should apply to the selfdefense instruction. Staten maintains that, despite his failure to object, this omission constituted reversible error.
When a party fails to object to or request a jury instruction, appellate review is limited to a determination of whether the instruction was clearly erroneous. Review under this standard consists of two steps: first the appellate court determines whether the instruction as given was erroneous, that is to say, not legally and factually appropriate, after an unlimited review of the record; and second, if there was error, the appellate court will reverse only if it is firmly convinced that the jury would have reached a different verdict had die instruction error not occurred. The party asserting a clearly erroneous instruction maintains the burden of establishing the degree of prejudice necessaiy to require reversal. State v. Knox, 301 Kan. 671, 680, 347 P.3d 656 (2015).
Staten argues that, in order to find him guilty, the jury had to be instructed that the State bore the duty of proving beyond a reasonable doubt that he did not act in self-defense.
Instruction No. 5 informed the jury of what the State was required to prove:
“The defendant is charged with the crime of aggravated batteiy. The defendant pleads not guilty.
“To establish this charge, each of tire following claims must be proved:
“1. That the defendant intentionally caused great bodily harm to another person; to wit: Yvonne Williamson; and
“2. That this act occurred on or about the 22nd day of July, 2011, in Wyandotte County, Kansas.”
Instruction No. 7, explaining the theory of self-defense, read:
“Defendant claims his use of force was permitted as self-defense.
“Defendant is permitted to use force against another person when and to the extent that it appears to him and he reasonably believes such physical force is necessary to defend himself against 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.”
Instruction No. 9, relating to the State’s burden of proof, read:
“The State has the burden to prove the defendant is guilty. The defendant is not required to prove he is not guilty. You must presume that he is not guilty unless you are convinced from the evidence that he is guilty.
“The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant guilty.”
Neither PIK Crim. 4th 51.050 (2013 Supp.) nor its substantially similar predecessor, PIK Crim. 3d 52.08 (2008 Supp.), was given. PIK Crim. 4th 51.050 (2013 Supp.) would have informed the jury:
“The defendant raises describe the defense claimed as a defense. Evidence in support of this defense should be considered by you in determining whether the State has met its burden of proving that the defendant is guilty. The State’s burden of proof does not shift to the defendant.”
Staten did not propose this instruction to the court and did not object to its omission.
Self-defense has been recognized in Kansas as a defense against charges of battery for well over a century. In The State v. Newland, 27 Kan. 764 (1882), the court upheld the propriety of a jury instruction directing the jury that if the defendant “ ‘acted throughout only in a self-defense which was necessary, or apparently necessary, to avoid personal injuiy, then he should be acquitted.’” 27 Kan. at 768-69. The court determined that the remaining instructions adequately informed the jury of matters such as the presumption of innocence and questions of reasonable doubt. 27 Kan. at 767.
This court first considered the failure to instruct the jury under PIK Crim. 2d 52.08 in the absence of an objection in State v. Osbey, 238 Kan. 280, 285-86, 710 P.2d 676 (1985). There, the court held there was no error because the jury was instructed on defense of a person, reasonable doubt, the burden of proof, the definitions of the various legal terms relating to criminal intent, and the fact that the State s burden to prove such intent never shifts to the defendant. “Error cannot be predicated on the refusal to give specific instructions where tiróse which were given cover and include the substance of those refused.” 238 Kan. at 286.
Next, in State v. Crabtree, 248 Kan. 33, 805 P.2d 1 (1991), the court applied a clear-error standard in analyzing whether the omission constituted reversible error. 248 Kan. at 39-40. The court considered the instructions given as a whole, concluding that the general burden of proof instruction sufficed to make it clear to the jury that the defense relates to the State s burden of proof beyond a reasonable doubt. 248 Kan. at 39-40. The court then added that the evidence supporting the defense was vanishingly weak and that consideration of the evidence, combined with the accuracy of the instructions as a whole, did not lead to reversible error. 248 Kan. at 40-41.
Then, in State v. Sperry, 267 Kan. 287, 978 P.2d 933 (1999), this court was again confronted with a self-defense instruction given without the clarifying 52.08 PIK instruction. The court applied a standard of clear error because the defendant failed to object to the omission of the 52.08 instruction on burden of proof. 267 Kan. at 294. The court deemed the Crabtree language relating to the weakness of the defendants evidence to be dicta and not essential to determining reversibility. Relying on Crabtree, the court concluded that the instructions as a whole sufficed to cover the subject of the burden of proof when a self-defense instruction is given. 267 Kan. at 294-95.
In State v. Cooperwood, 282 Kan. 572, 581-82, 147 P.3d 125 (2006), this court subsequently reaffirmed Crabtree, holding that the trial court s failure to instruct the jury with PIK Crim. 3d 52.08 was not clearly erroneous.
These cases were all decided under a statutory scheme that did not explicitly refer to the burden of proof when the defendant asserts an affirmative defense. K.S.A. 21-3109 simply explained the presumption of innocence and the requirement of proof beyond a reasonable doubt, as well as setting out rules for lesser included offenses.
In 2010, the Kansas Legislature repealed 21-3109 and created K.S.A. 2011 Supp. 21-5108(c), which read, in relevant part:
“(c) A defendant is entitled to an instruction on every affirmative defense that is supported by competent evidence. Competent evidence is that which could allow a rational fact finder to reasonably conclude that die defense applies. Once the defendant satisfies the burden of producing such evidence, the state has die burden of disproving die defense beyond a reasonable doubt” L. 2010, ch. 136, § 8.
This amendment codified the caselaw requirement that, once a defendant properly asserts a self-defense affirmative defense, the State must disprove that defense beyond a reasonable doubt. See Kansas Criminal Code Recodification Commissions Final Report, Appendix A, Section 21-31-301, Comment (2010). The amendment did not alter the law in Kansas concerning the State s burden of proof, and it did not create a new element that the State must prove when charging a crime. Statutory self-defense is a rebuttable defense to certain crimes, as it was before the amendment. See, e.g., State v. Henderson, 284 Kan. 267, 276, 160 P.3d 776 (2007) (discussing Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 [2004]); State v. Shore, No. 97,833, 2007 WL 4578005, at *1-4 (Kan. App. 2007) (unpublished opinion), rev. denied 286 Kan. 1185 (2008).
The cases prior to the statutory amendment read the instructions as a whole and concluded that everything necessary for the jury to consider die burden of proof was contained within the instructions. We see no reason to change course from that line of cases.
Other jurisdictions have applied reasoning similar to our case analysis. Paprocki v. Foltz, 869 F.2d 281, 285-86 (6th Cir. 1989) (instruction stating that burden of proving guilt is upon prosecution throughout entire trial and that burden at no time shifts to defendant sufficed to inform jury that State bore burden of establishing guilt beyond reasonable doubt in light of defendant’s self-defense theory); United States v. Jackson, 569 F.2d 1003, 1010-11 (7th Cir. 1978) (instructions informed jury of prosecution’s burden of proof and evidence against self-defense claim so overwhelming that it was "very unlikely that the burden of proof omission had any effect on the jury’s determination of this case”; therefore, no plain error). See, e.g., Moore v. State, 275 Ind. 39, 42-43, 414 N.E.2d 558 (1981) (juiy correctly instructed on State’s burden to prove all elements of crime beyond reasonable doubt; additional instruction dealing only with the burden of proof as to self-defense was unnecessary); Woods v. State, 162 Ind. App. 316, 326, 319 N.E.2d 688 (1974) (instructions, taken as whole, sufficiently informed jury of State’s burden of proof, even though instruction on self-defense did not explicitly address State’s burden of proof beyond reasonable doubt); Tichnell v. State, 287 Md. 695, 714, 415 A.2d 830 (1980) (in death-penalty appeal, court rejected claim that trial court’s failure to instruct the jury clearly that burden was on State to prove he did not act in self-defense constituted plain error, but separate instruction informed juiy that burden of proof remained “with the State throughout the trial”; this instruction sufficed to ensure jury would assign proper burden of proof to self-defense claim); State v. Cooksey, 499 S.W.2d 485, 490 (Mo. 1973) (when instructions as whole covered presumption of innocence, reasonable doubt of guilt, and State’s burden to prove guilty beyond reasonable doubt, court not required to give combined self-defense and burden-of-proof instruction); State v. Syed Tagi Shah, 134 Wis. 2d 246, 256-58, 397 N.W.2d 492 (1986) (reasonable jurors would interpret instructions as whole and would apply to self-defense instruction other instructions governing presumption of innocence and States burden of proof).
The failure to give the PIK instruction was error, but it was not clear error. Instructions are clearly erroneous only when the reviewing court is firmly convinced that there is a real possibility that the jury would have reached a different verdict in &e absence of the error. State v. Richardson, 290 Kan. 176, 178, 224 P.3d 553 (2010). In light of the generally correct nature of the instructions as a whole as well' as the nature of the evidence supporting Staten’s claim of self-defense, we find no basis in the instructions to reverse Staten’s conviction.
Prosecutorial misconduct
Staten next argues that, during closing argument, the prosecutor engaged in misconduct that was of such a magnitude that it requires reversal.
The prosecution opened its cross-examination of Staten with the following exchange:
“Q: Would you agree with me that what she suffered was great bodily harm as a result of this incident?
“A: And me defending myself, yes, ma’am.
“Q: So you acknowledge that she suffered great bodily harm?
“A: In defense of myself, yes.”
During closing argument, the prosecutor told the jury:
“All of these elements that I have to prove to you beyond a reasonable doubt are true. He said yes, it happened in Wyandotte County, and yes, I caused great bodily harm to her. He gives you that, so he is guilty of aggravated battery as we stand here.”
Staten did not object to the prosecutor’s questions during cross- examination. He is therefore precluded from arguing on appeal that there was error in introducing that evidence to the juiy. See K.S.A. 60-404; State v. Sprague, 303 Kan. 418, 432-33, 362 P.3d 828 (2015).
He contends, however, that the prosecutor engaged in misconduct during the closing argument by referring to the testimony obtained by the cross-examination questions. He directs the courts attention to State v. Crum, 286 Kan. 145, 184 P.3d 222 (2008).
In Crum, the prosecution on cross-examination elicited testimony from the defendant suggesting that the defendant agreed that the murder in question was intentional and had been premeditated, although the defendant denied being the perpetrator. Then, during closing argument, the prosecution argued to the juiy that it did not have to prove premeditation because the defendant had conceded that the murder method “ ‘sounds like a plan.’ ” 286 Kan. at 154.
We noted that the issue of premeditation was not undisputed and the prosecutor’s statement that he did not have to argue why the facts established the element of premeditation exceeded the wide latitude afforded to prosecutors in discussing the evidence. The court then perceived the argument as “so fundamentally erroneous as to be gross and flagrant.” 286 Kan. at 154. Furthermore, the combination of eliciting improper lay opinion testimony and then characterizing the equivocal responses as a stipulation to an element of die crime connoted ill will or “such misunderstanding of basic legal principles as to be tantamount to ill will.” 286 Kan. at 154-55.
The court nevertheless determined the evidence of guilt in the case to be “overwhelming.” In addition, the prosecutor included proper argument on how other facts supported premeditation, and the question of premeditation was not a close call for the jury. The critical issue for the jury was the identity of the perpetrator. The court concluded the error was harmless. 286 Kan. at 155.
The testimony in the present case differed from that in Crum in two important respects. First, the relevant facts before us now were undisputed. It was not contested that Staten struck Williamson and that she experienced great bodily injury as a result. These facts were not the fulcrum on which the success of Staten’s defense rested. Staten’s own testimony on direct examination conceded that narrative. Staten argued instead that his actions and Williamsons injuries were provoked by her attack on him, and he did not waiver from that theory on cross-examination. The prosecutor focused her closing argument on Statens theoiy of self-defense. She acknowledged the presumption of innocence that attaches to a defendant, while also referring to evidence casting doubt on the elements of self-defense. Furthermore, in Crum, the elicited testimony went to the defendant’s opinion regarding the perpetrator’s thoughts and intent. Here, the elicited testimony was not speculative but was explicit — tire defendant struck the victim, causing her serious injuries, but the actions were motivated by a legally justifiable intent.
The prosecutor nevertheless erroneously stated that “he’s acknowledged he’s guilty of this crime . . . .” The prosecutor thus mischaracterized Staten’s testimony and referred to facts not in evidence. Staten did not acknowledge that he was guilty; instead, he testified that he was not guilty because he acted in self-defense. The comments were therefore outside the wide latitude allowed a prosecutor in discussing evidence. See Sprague, 303 Kan. at 427.
We nevertheless do not find the comments to rise to the level of reversible misconduct. The prosecution maintained a focus on the pivotal question of self-defense and did not show evidence of ill will or flagrant disregard for tire rules governing arguments. Moreover, the evidence was of such a direct and overwhelming nature that the error carried little weight. See Sprague, 303 Kan. at 427. In fight of the entire record, there is no reasonable possibility that tire error affected the verdict, and reversal is not appropriate. See State v. Rosa, 304 Kan. 429, 439, 371 P.3d 915 (2016).
Request for new counsel
Staten next argues that the trial court abused its discretion both in the manner in which it inquired about an alleged conflict of interest as well as in denying his request for new counsel. Before the trial commenced, Staten asked the court to provide him with new counsel, alleging a conflict with his appointed counsel and a breakdown of communication. On appeal, he contends that the district court abused its discretion when it denied the motion.
A district courts refusal to appoint new counsel is reviewed under an abuse of discretion standard. State v. Sappington, 285 Kan. 176, 196, 169 P.3d 1107 (2007). A court abuses judicial discretion if its action is (1) arbitraiy, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. State v. Wells, 297 Kan. 741, 753-54, 305 P.3d 568 (2013). If the district court has a reasonable basis to conclude that counsel could provide “ ‘effective aid in the fair presentation of a defense,’ ” then it cannot be found to be an abuse of discretion. Sappington, 285 Kan. at 196. The defendant bears the burden of proving the district court abused its discretion in denying the motion for new counsel. 285 Kan. at 196.
We recently provided an extensive framework for analyzing the denials of requests for new counsel in State v. Pfannenstiel, 302 Kan. 747, 758-60, 357 P.3d 877 (2015).
The right to counsel under the Sixth Amendment to the United States Constitution contains a correlative right to representation that is unimpaired by conflicts of interest or divided loyalties. Conflicts of interest and divided loyalties can take many forms, and whether an actual conflict exists is evaluated on the specific facts of each case. In general, a conflict exists when an attorney is placed in a situation conducive to divided loyalties and can include situations in which the caliber of an attorney’s services may be substantially diluted. In order to obtain substitute counsel because of alleged lack of performance by current counsel, a defendant must show justifiable dissatisfaction with his or her appointed counsel. 302 Kan. at 758-60.
The Sixth Amendment does not guarantee a defendant the right to select which attorney will represent tire defendant. A defendant seeking substitute counsel must show “ justifiable dissatisfaction’ ” with current counsel, which may be demonstrated by showing a conflict of interest, an irreconcilable disagreement, or a complete breakdown in communication between counsel and the defendant. 302 Kan. at 759-60.
Staten presented the district court with an articulated statement of attorney dissatisfaction, which triggered a duty on the part of the court to inquire into potential conflicts of interest.
This duty of inquiry may result in three types of errors, each of which is reviewed for an abuse of discretion. 302 Kan. at 760. The first type of error occurs when a district court becomes aware of a potential conflict of interest but fails to conduct an inquiry. Such a failure constitutes an error of law, that is, a failure to follow the law and fulfill a legal duty. The second type of error occurs when a district court conducts an inquiry but fails to do so in an appropriate manner. An appropriate inquiry requires fully investigating both the basis for the defendant’s dissatisfaction with counsel and the facts necessary for determining whether the dissatisfaction justifies appointing new counsel. The third type of error may occur when a district court conducts an appropriate inquiry but fails to make a decision that is reasonable in light of the facts that come to the fore. 302 Kan. at 761-62.
The morning of the trial, Statens counsel, Craig Lubow, informed the court that Staten was submitting a motion for new counsel. Lubow explained that Staten had at some earlier time filed a disciplinary complaint against him, but the Disciplinary Administrator had dismissed it. The court then asked Staten for the basis of his request. He replied with a series of complaints relating to the validity of the arrest warrant, allegedly inconsistent statements by one of the investigating detectives, failure to file motions regarding tiróse issues, and failure to communicate.
After hearing the argument, the trial court denied Statens motion, holding that he had failed to articulate justifiable dissatisfaction. The court noted that the motions that Staten had filed with respect to the arrest warrant and the detective were without merit.
The pro se motions to which Staten referred consisted of a motion to compel discovery, seeking transcripts of various recordings and hearings for die purpose of helping him prepare a defense; a motion to quash die arrest warrant, asserting tiiat die arresting detective used inconsistent statements of facts to support the issuance of the warrant; and a motion for judgment of acquittal, based on the allegations contained in the motion to quash. These motions appear to have little bearing on the success of Staten’s defense, and tiiey were denied in any event. The failure of the attorney to file the motions on Staten’s behalf did not dihite his ability to provide effective representation.
The major point remaining in Statens request for new counsel was the asserted breakdown of communication. Staten represented to the court that his attorney did not speak with him for several months and only got in touch with him a couple of times in the week before the trial. Staten did not, however, explain how this limited communication worked adversely to the presentation of his defense. “ The focus of the justifiable dissatisfaction inquiry is the adequacy of counsel in the adversarial process, not the accused’s relationship with his attorney.’” Pfannenstiel, 302 Kan. at 761-62 (quoting United States v. Baisden, 713 F.3d 450, 454 [8th Cir. 2013]).
The statements made at the pretrial hearing showed that Staten’s disciplinaiy complaint had been dismissed. It is unclear who dismissed it — Staten, voluntarily, or the Disciplinary Administrator, perhaps as a frivolous complaint. It is also unclear what the basis of the complaint was, although the record suggests that the complaint raised questions of communication.
In State v. Bryant, 285 Kan. 970, 992-93, 179 P.3d 1122 (2008), we considered whether fifing a disciplinaiy complaint in itself creates a conflict such that an attorney should be disqualified from further representation of the client fifing the complaint. We held that the fifing does not necessarily require a district court to replace counsel:
“During the May 18 inquiry, although discussion was sparse on the nature of the disciplinary complaint itself, the court learned that the Disciplinary Administrator had said there was nothing to investigate. Moreover, after discussion with Bryant and McBratney on the nature of Bryant’s overall concerns, the court stated that it did not see any conflict requiring her removal. During the November 18 inquiry, although similarly limited on the nature of die second disciplinary complaint itself, the record reveals that die court gave Bryant opportunities to be heard. Several times Judge Burdette asked Bryant to ‘give me something specific.’ And . .. there is nothing in the record indicating what McBratney’s responses to the complaints were, much less any indication that they ‘would be contrary’ to any position she needed for defending Bryant.” 285 Kan. at 992-93.
A court is not required to engage in a detailed examination of every nuance of a defendant’s claim of inadequacy of defense and conflict of interest. A single, open-ended question by the trial court may suffice if it provides the defendant with the opportunity to explain a conflict of interest, an irreconcilable disagreement, or an inability to communicate with counsel. Wells, 297 Kan. at 755-56.
The district court allowed Staten to make two statements about his dissatisfaction with his appointed counsel. While articulating displeasure with Lubow, Staten did not proffer any specific manner in which Lubow would be unable to present his theory of defense or why some other theory might have been preferable. The courts inquiry sufficed to explore whether Staten s right to counsel was in jeopardy, and tire district court did not abuse its discretion in determining that replacing Lubow was not necessary to protect Staten s right to a fair trial.
Cumulative error
Finally, Staten argues that the cumulative effect of various trial errors was so prejudicial as to warrant a new trial. When a party argues that the cumulative impact of alleged errors is so great that they result in an unfair trial, this court aggregates all errors and, even if those errors individually would be considered harmless, analyzes whether their cumulative effect is so great that they collectively cannot be determined to be harmless. State v. King, 297 Kan. 955, 986, 305 P.3d 641 (2013). While we acknowledge that error occurred in the jury instructions and in the prosecutor’s closing argument, the cumulative effect was not so great as to have been prejudicial to Staten s defense or to require a new trial.
Conclusion
The judgment of the district court is affirmed, and the judgment of the Court of Appeals affirming the district court is affirmed. | [
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The opinion of die court was delivered by
Luckert, J.;
Reginald Dupree appeals his convictions for felony murder, kidnapping, aggravated burglary, aggravated robbery, two counts of aggravated endangering a child, and aggravated assault. On appeal, Dupree raises a total of eight arguments, which can be generally categorized as follows: two charging information issues, a sufficiency of the evidence challenge, three jury instruction issues, a witness sequestration issue, and a cumulative error argument. For the reasons set forth below, we affirm Duprees convictions.
Factual and Procedural History
On the evening of December 14, 2011, two intruders pushed their way into a Wichita home (the “Locust Street home”). The homeowners 19-year-old daughter, Regina Stuart, was home at the time with her boyfriend, Markez Phillips, and her 5month-old nephew. Someone knocked on the side door, and when Phillips went to answer there was a struggle. As Phillips tried to close the door on the intruders, one of them shot him in the face. Two men then entered and forced Stuart to accompany them while they went throughout the house looking for valuables; the two men, plus another intruder, ultimately left with several televisions.
Investigators soon linked five men to the crime. The State charged Dupree with seven criminal counts: first-degree felony murder, kidnapping, aggravated burglary, aggravated robbery, two counts of aggravated endangering a child, and aggravated assault. At trial, Dupree did not deny that he was involved in the crimes and was one of the two initial intruders; nor, in asserting his arguments on appeal, does he deny his involvement. Instead, he took the stand in his own defense and explained he was an unwilling or unaware participant and never intended to rob or shoot anybody.
Given Dupree’s admission to being present when the crimes occurred, we need not discuss many of the evidentiary details heard by the jury in this lengthy trial. Instead, we will confine ourselves to the essential facts necessary to understanding his issues on appeal.
Many of these essential facts stem from Stuart’s testimony. Although she did not know the two men who first entered her home, she later identified them as Dupree and Malek Brown. She told the jury the men entered the room where she had been watching television; she described them as rounding the corner into the room at the exact same time. One man, Brown, held a black handgun. Stuart testified both men asked her for her cell phone, wallet, and money. She told them she only had her phone, which she gave to them. Brown then put the gun to the back of her head, and both men forced her to move room to room while asking her about the location of a safe. She repeatedly told Dupree and Brown there was no safe, but both said she was lying and threatened to kill her. Eventually she told the men to just take the televisions. She heard Brown make a phone call and ask someone to pull up and help him load the televisions.
After Brown made the phone call, Dupree told her to sit in a chair, but Brown made her lie face-down on the floor next to her nephew. At this point a third person, whom Stuart recognized as Daniel Dupree, entered the house. Daniel seemed shocked to see Phillips on the ground and asked Dupree what they were doing. Daniel told the men they needed to leave and were not supposed to have killed anybody. The men then took televisions out of the house.
Stuart testified it did not seem Brown forced Dupree to do anything, and she never heard Dupree say anything to this effect. She never saw Brown point a gun at Dupree or tell him to take valuables from the house. Although Brown had the gun the entire time and did most of the talking, Dupree pushed her through the house and also threatened to kill her. The men separated at one point when Dupree was getting the living room television and Brown was in the back of the house; Stuart testified Dupree could have left at this point because he was not in danger from Brown. He did not do so, and it did not appear to Stuart that he wanted to.
The State presented other evidence impheating Dupree and the other men in the crimes. Stuart’s grandmother, along with another of Stuarts nephews, encountered the men as they were leaving the Locust Street home, and one of the men pointed a gun at them. Others testified about their observations of and conversations with Dupree and his companions both before and after the crimes. In general, these witnesses did not observe anything indicating Du-pree was ill on the day of the shooting or suggesting he had been coerced to participate. In addition, video from a nearby security camera corroborated the testimony of Stuart, her grandmother, and Dupree about the incident: a Jeep drove up to the Locust Street home, two occupants got out and moved toward the home, and the Jeep returned after a few minutes and backed up the driveway so the men could load the televisions.
The defense presented only one witness: Dupree. Dupree testified that the day of the shooting he felt like he was coming down with something — his nose was running, he had an itchy throat and the chills, and he was tired. As the day went on, he felt worse and worse. During the afternoon or evening, Dupree asked for a ride to get some medicine. Dupree, Francis Dupree, and Daniel Dupree all got into a Jeep driven by Brown. Dupree testified that Brown seemed upset, possibly intoxicated or high, and did not seem like himself. Brown announced he had to pick something up first and pulled into a neighborhood. Brown circled the block a few times before pulling in front of a house. He asked the passengers to help him get some stuff. But when they all got out, Brown said, “I don’t think this is the house.” So the men all got back in the vehicle and left.
According to Dupree’s testimony, after driving around for a bit longer, Brown decided the house they went to was the right one after all. He drove back to the house and parked, at which time Dupree told Brown he felt poorly and his body was aching. Brown replied, “Come with me.” They walked up to the house, and Brown knocked at tire side door. Dupree then said, “I forgot my phone in the car. I’ll be right back.” He turned to walk away. As soon as he did, he heard the door open. Brown said something, and the man inside tire house replied, “I said I was going to beat your ass if I see you again.” Before Dupree got halfway down the driveway he heard a pop.
Dupree testified he was scared and jogged back to the doorway to see what had happened. He saw Phillips on the ground and Brown with a gun in his hand. He asked Brown what he was doing, but Brown did not reply and just waved the gun at him. Browns attorney asked whether Brown pointed the gun at him, and Dupree replied, “You can say that.” Dupree hesitated at the threshold, but Brown waved the gun again and said, “Come on.” When Dupree entered the Locust Street home he saw Stuart standing in the living room. Brown took her phone and then asked about a safe and some money. Brown pointed the gun at Stuart s back and made her lead him around the house. Dupree stayed close because he did not know what was going on.
Dupree testified that after Brown called for help loading the televisions, Brown told Dupree to stop standing around and help. Dupree complied because he was shocked and did not want anything else to go wrong. On his way out, he saw Daniel enter the house and heard him tell Brown he was not supposed to have shot anybody. As they were driving away, Daniel kept yelling at Brown for shooting someone.
On cross-examination, Dupree explained he did not leave after hearing a gunshot and seeing Phillips on the ground because he was afraid for his fife. Although Brown did not threaten him, he waved his gun at him. Dupree denied ever speaking to Stuart at any time while in the Locust Street house and also denied pushing her around. According to Dupree, only Brown ordered Stuart around and forced her through the house. Dupree also admitted he had his phone and could have called the police but did not. And on redirect, Dupree stated he did not intend to rob anybody or see anybody shot.
The juiy found Dupree guilty on all seven counts. After denying Dupree s posttrial motions for a new trial and judgment of acquittal, the district court sentenced him to a total sentence of life imprisonment, with 20 years’ minimum, plus 122 months. Dupree now appeals from his convictions. We have jurisdiction over his appeal pursuant to K.S.A. 2015 Supp. 223601(b)(3) (permitting a direct appeal to the Kansas Supreme Court in any case where a maximum sentence of life imprisonment has been imposed).
Analysis
Dupree raises eight arguments on appeal, and, as we briefly mentioned above, they can be categorized as arguments relating to deficiencies in the charging information, sufficiency of the evidence, the jury instructions, witness sequestration, and cumulative error. We will address his claims in that order.
Issue 1: The State’s failure to charge Dupree specifically loith “aiding and abetting” aggravated assault and aggravated child endangerment offenses did not deprive the district court of jurisdiction over these offenses.
Dupree contends the State’s failure to charge him specifically with aiding and abetting aggravated assault and aggravated child endangerment rendered the charging information insufficient, such that it never conferred subject matter jurisdiction on the district court. He argues there was no evidence he committed these offenses as a principal, and thus the States failure to charge him specifically as an aider and abettor requires these convictions be reversed. He acknowledges he failed to raise this argument before the district court, and he also acknowledges our precedent is contrary to his claim.
In making his argument, Dupree relies on past cases in which we have stated that, “if a complaint fails to include an essential element of a crime charged, it is ‘fatally defective, and the trial court lacks jurisdiction to convict the defendant of the alleged offense.’” State v. Gonzales, 289 Kan. 351, 366, 212 P.3d 215 (2009) (quoting State v. Moody, 282 Kan. 181, 197, 144 P.3d 612 [2006]). He also notes that issues involving subject matter jurisdiction may be raised at any time, and we review de novo whether a charging information conferred subject matter jurisdiction on the courts. State v. Williams, 299 Kan. 509, 532, 324 P.3d 1078 (2014). Although these arguments accurately reflect our past caselaw, parties in other pending cases have raised questions recently about whether a defective complaint is truly jurisdictional. See, e.g., State v. Dunn, No. 106,586, 2012 WL 3290004 (Kan. App. 2012), rev. granted 298 Kan. 1205 (2013). But the State has not raised those arguments here. Further, we need not resolve the question because, even under the cases Dupree cites, he fails to establish a charging defect that would entitle him to relief.
Turning to the specifics of Dupree s argument, he asserts that aiding and abetting is a specific intent crime with a separate, additional element of proof beyond the elements of aggravated child endangerment and aggravated assault — namely, the specific intent to aid and abet. See K.S.A. 2015 Supp. 21-5210. According to his theoiy, that means the charging information must allege that the defendant aided and abetted the commission of a crime. Absent that specific allegation, he argues, the information was fatally defective.
Three aiding and abetting liability statutes that have been in effect in Kansas at one point or another put Dupree’s argument in context. Prior to July 1969, tire Kansas aiding and abetting statute read: “Any person who counsels, aids, or abets in the commission of any offense may be charged, tried and convicted in the same manner as if he were a principal.” (Emphasis added.) G.S. 1949, 621016. This older statute expressly permitted the State to charge a defendant as a principal even if tire defendant was only an aider and abettor.
From July 1969 to July 2011 (several months before die December 2011 events at issue in dris case), Kansas utilized K.S.A. 21-3205(1), which read: “A person is criminally responsible for a crime committed by another if such person intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime.” Dupree stresses that K.S.A. 213205 did not retain the “may be charged ... in the same manner” language of the prior statute. He argues this indicated the legislature intended a change that can only be read as die imposition of a pleading requirement. But this court implicitly rejected that in 1976, when comparing 213205 with its predecessor and concluding “there is very little, if any, difference in the meaning of die language used in the two sections.” State v. Motor, 220 Kan. 99, 102, 551 P.2d 783 (1976). Moreover, we have “consistently held that die State is not required to charge aiding and abetting in the charging document in order to pursue a theoiy of accomplice liability at trial.” Williams, 299 Kan. at 533; see e.g., State v. Betancourt, 299 Kan. 131, 140, 322 P.3d 353 (2014).
Williams, which was published after Dupree filed his appellate brief, represents one of our more recent affirmations of this longstanding rule. The Williams defendant, like Dupree, had argued the district court lacked subject matter jurisdiction over certain offenses because the State failed to separately charge aiding and abetting. See 299 Kan. at 53233. Also like Dupree, the Williams defendant contended aiding and abetting required different elements of proof than the elements of committing the underlying crime as a principal. 299 Kan. at 533. We rejected these arguments and cited with approval previous precedent that “ ‘aiding and abetting is not a separate crime in Kansas. Instead, it extends criminal liability to a person other than the principal actor.’ ” 299 Kan. at 533 (quoting State v. Robinson, 293 Kan. 1002, 1038, 270 P.3d 1183 [2012]).
Nevertheless, Williams only addressed K.S.A. 21-3205, which was the statute in effect at the time of the crime and trial in that case. 299 Kan. at 533. We did note, however, that 21-3205 had been repealed and replaced with a new aiding and abetting liability statute, K.S.A. 2010 Supp. 21-5210. L. 2010, ch. 136; sec. 30; see Williams, 299 Kan. at 533. Williams declined to address this newest statute.
Now, because K.S.A. 2011 Supp. 21-5210(a) was the statute in place at the time of Dupree s crime and trial we must determine the pleading requirements under its terms. It provides: “A person is criminally responsible for a crime committed by another if such person, acting with the mental culpability required for the commission thereof, advises, hires, counsels or procures the other to the commit the crime or intentionally aids the other in committing the conduct constituting the crime.”
The difference between our present statute and the earlier statute discussed in Williams comes down largely to formatting; in other words, we see no meaningful difference supporting a departure from Williams. Under K.S.A. 2015 Supp. 21-5210 the State is not required to use the words “aiding and abetting” in the charging document in order to pursue a theory of accomplice liability at trial.
Dupree’s charging information thus did not fail to allege an essential element of the crimes of aggravated child endangerment and aggravated assault. See Gonzales, 289 Kan. at 366.
Issue 2: The State’s oral amendment to the felony-murder charge did not deprive the district court of jurisdiction or otherwise constitute reversible error.
Dupree’s second jurisdictional argument relates to the State’s oral amendment, at the close of evidence, to the felony-murder charge. The State’s motion, which was made after the district court had denied Dupree’s motion for acquittal, requested permission to change the underlying felony from aggravated robbeiy to aggravated burglaiy.
Dupree’s counsel responded by saying, “I suppose for the record, I would [object].” He argued that he approached the case with the idea that “aggravated] robbeiy was the underlying felony.” The State contended there was no prejudice to Dupree, since during the preliminaiy hearing the district court approved both the aggravated robbery and aggravated burglary charges and thus both had to be proved all along. Dupree had no response, and the district court permitted the State’s amendment. It also specifically found that Dupree was “not prejudiced whatsoever” by the amendment because he was aware of the aggravated burglary charge and had the opportunity to meet that charge.
Now, on appeal, Dupree urges us to conclude the State’s amendment was not sufficiently specific. Additionally, while he recognizes the State need not always formally file an amended complaint, he contends its failure to do so in this case prejudiced his defense and constituted reversible error.
In general, the State bears the burden of filing a written complaint setting forth the essential facts constituting die crime charged. See K.S.A. 22-3201(b). The State may, with the district court’s leave, amend an information “at any time before verdict... if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.” K.S.A. 22-3201(e). This amendment may be oral, but “the prosecution has the duty to memorialize the amendment by filing an amended complaint.” State v. Switzer, 244 Kan. 449, 456, 769 P.2d 645 (1989); see also State v. Nunn, 244 Kan. 207, 768 P.2d 268 (1989) (recognizing me-morialization may occur in a journal entiy). The States failure to comport with this duty “does not deprive a trial court of subject matter jurisdiction over the defendant,” though such a failure may nonetheless constitute reversible error. State v. Davis, 283 Kan. 767, 769, 156 P.3d 665 (2007); see Switzer, 244 Kan. at 457 (“[T]he issue,” when the State fails to amend the complaint in writing, “is whether the omission invalidates the verdict.”).
To determine whether a failure to memorialize an oral amendment requires us to reverse a conviction, we examine (1) whether the amendment was appropriate — meaning no additional or different crime was charged and the substance of the amendment was not prejudicial, and (2) whether the failure to memorialize the amendment was prejudicial to the defendant. See Davis, 283 Kan. at 769 (explaining the court’s use of the word “appropriate”); Switzer, 244 Kan. at 456-57 (discussing the additional consideration of whether prejudice results from the failure to memorialize the amendment and stating that failure to memorialize an amendment is not per se prejudicial and does not by itself constitute reversible error); see also Nunn, 244 Kan. at 224 (holding that an oral amendment is effective even without later memorialization, so long as the defendant is not prejudiced).
Applying these concepts in this case, we first conclude the information did not charge a new or different crime. Second, changing the underlying felony did not prejudice Dupree. The States oral amendment only affected the felony-murder count by changing the underlying felony. And this change came as no surprise because Dupree had been charged with both underlying felonies, had defended against each, and his defense did not revolve around the nature of the underlying" felony. In fight of these circumstances, Dupree has failed to convince us that swapping the underlying felony for the felony-murder charge impaired his ability to defend himself or impaired his right to a fair trial. See K.S.A. 22-3201(e); Nunn, 244 Kan. at 22526 (explaining that changing noncritical factors of an offense is not prejudicial).
So far we have considered the amendment itself. We must now consider whether the fact that the State did not follow up its oral amendment with a written amendment constitutes reversible error — that is, whether amendment only by oral motion prejudiced Dupree. See Davis, 283 Kan. at 769; Switzer, 244 Kan. at 456; Nunn, 244 Kan. at 224. We conclude it did not.
Dupree had notice of the amendment made on the record. See Switzer, 244 Kan. at 457. Further, substituting one underlying felony for another did not require any additional rewording of the charge, and Dupree does not claim the original charge for felony murder was not sufficiently specific. His arguments essentially boil down to a claim the State should have read the amended charge aloud from beginning to end, instead of just asking to swap out “aggravated robbery” for “aggravated burglary.” Yet the effect of the State s amendment is clear and caused no confusion. Also, he was not, contrary to his argument, “left to guess” about how tire jury instructions would be affected. Dupree participated in the jury charge conference and was able to see exactly how the amended charge played out. He had ample opportunity to object to any prejudice. We conclude the failure to memorialize the amendment did not cause prejudice.
Accordingly, we hold the State’s oral amendment to the felony-murder charge, even though not memorialized, did not deprive tire district court of jurisdiction or otherwise constitute reversible error.
Issue 3: Sufficient evidence supports Dupree’s felony-murder conviction.
Dupree claims insufficient evidence supported his felony-murder conviction. He points out that while the amended information charged him with felony murder based, on a killing that happened “while in the commission of, attempt to commit, or flight from” aggravated burglaiy, the juiy instructions only asked the jury to consider whether Phillips was killed while Dupree “was committing” aggravated burglary. He contends aggravated burglary is not “committed” until a perpetrator actually enters a building. Thus, Dupree argues the evidence was sufficient to establish only an “attempt to commit” aggravated burglary at the time of the murder because the evidence only established, at most, that he and Brown were trying to get into the Locust Street house (by pushing on the door or shooting through the door from the outside). In other words, according to Dupree, because the jury instructions theory only encompassed a completed burglary and not an attempted burglary there was insufficient evidence supporting his felony-murder conviction as charged.
Given that Dupree raises this issue as a sufficiency of the evidence claim, our standard of review is to “look[] at all the evidence in a light most favorable to the prosecution and determin[e] 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). We “do not reweigh the evidence or evaluate the credibility of the witnesses,” as this function is best left to the jury. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011). Applying this standard, we reject Duprees sufficiency challenge.
The felony-murder instruction required the jury to consider whether “[t]he killing was done while defendant was committing aggravated burglary.” Granted, this was narrower than the charging information, as amended, which stated that Dupree and others killed Phillips “while in the commission of, attempt to commit, or flight from” aggravated burglary, language that mimicked the felony-murder statute. See K.S.A. 2015 Supp. 215402(a)(2) (defining felony murder as “the killing of a human being committed ... in the commission of, attempt to commit, or flight from any inherently dangerous felony.”).
Despite this deviation and the focus on whether the killing occurred while Dupree “was committing” aggravated burglary, we have previously explained:' “ ‘The question for the jury is whether the death is within the res‘gestae of the crime, regardless of the actual sequence of events.’” State v. Beach, 275 Kan. 603, 610, 67 P.3d 121 (2003) (quoting State v. Jacques, 270 Kan. 173, 189-90, 14 P.3d 409 [2000]). And, with respect to felony murder, the res gestae includes “those acts done before, during, or after the hap pening of the principal occurrence when those acts are so closely connected with the principal occurrence as to form, in reality, a part of the occurrence.” State v. Jackson, 280 Kan. 541, 545, 124 P.3d 460 (2005).
Plere, to determine whether Dupree “was committing” aggravated burglary when Phillips was shot, the jury could consider the moments immediately preceding the shooting, the moment of the shooting, and the moments immediately after the shooting, all of which fell within the res gestae of the felony murder in this case. Thus, it does not matter whether Phillips was shot during the scuffle to enter the home (which Dupree argues would only be an “attempt” to commit aggravated burglary) or once Dupree and Brown were over the threshold (which Dupree agrees would be a “committed” aggravated burglary) because the instruction permitted the jury to consider all these moments together as it determined whether a killing occurred while Dupree “was committing” aggravated burglary. Phillips’ death occurred within the res gestae of felony murder, and the jury instruction reflected the facts of the case and did not run afoul of our precedent. See Jackson, 280 Kan. at 545; Beach, 275 Kan. at 610.
In fact, Dupree acknowledges that his attempt to distinguish between attempting to commit and committing a completed underlying felony is contrary to our precedent regarding res gestae. But he nonetheless urges us to set this precedent aside as inconsistent with legislative intent. He argues the three options in the felony-murder statute — a killing that occurred in the commission of, attempt to commit, or flight from any inherently dangerous felony — eliminate the res gestae concept and segment the nature of the State’s proof.
Dupree is nominally correct because K.S.A. 2015 Supp. 21-5402(a) does set forth various circumstances in which the crime can occur. As we have stated:
“The felony-murder statute has two primary elements — killing and simultaneously engaging in an inherently dangerous felony. The second element can be established through proof that the killing occurred while the defendant was committing, attempting to commit, or fleeing from an inherently dangerous felony. These are simply factual circumstances in which a material element may be proven.” State v. Cheffen, 297 Kan. 689, 702, 303 P.3d 1261 (2013).
In some felony-murder cases, there will be clear evidence that the death occurred after completion of the crime. See State v. Kunellis, 276 Kan. 461, 473, 78 P.3d 776 (2003). But at other times detailed sequences of events are unavailable, perhaps making it unclear when exactly the death occurred or the precise moment when actions crossed tire line from attempt to completion. Still the evidence is sufficient so long as the acts happened so closely as to be part of the same occurrence — in other words, within the res gestae of felony murder. See, e.g., Jackson, 280 Kan. at 546 (affirming a jurys conclusion that a murder occurred “during” a drug transaction when the transaction “had not been completed but was still in process”); State v. Kleypas, 272 Kan. 894, 938, 40 P.3d 139 (2001) (describing the three statutoiy phrases as “temporal requirements delineating when a killing may occur and still be part of the underlying felony”), overruled in part on other grounds State v. Marsh, 278 Kan. 520, 102 P.3d 445 (2004). Nothing Dupree points to convinces us the language of the statute requires that the State must prove whether the killing specifically occurred once the intruders had crossed die threshold, as opposed to while they were committing the act of forcing their way into the home. Dupree fails to persuade us that the language of the felony-murder statute requires us to overrule our prior cases.
Here, the struggle at the door, the shot, and the entry happened so close together that they were all part of the same occurrence and within the res gestae. The evidence sufficiently supported the jury’s finding that Phillips was killed while the men were committing aggravated burglary. Accordingly, we need not reach the parties’ other arguments, and we hold there was sufficient evidence to support Dupree’s felony-murder conviction.
Issue 4: The jury instructions do not require reversal.
We turn now to Dupree’s three jury instruction arguments. We begin by discussing the steps of analysis that we apply when analyzing a claim of error arising from jury instructions. These steps are:
‘“(1) determining whether the appellate court can or should review the issue, i.e., whether there is a lack of appellate jurisdiction or a failure to preserve the issue for appeal; (2) considering the merits of foe claim to determine whether error occurred below; and (3) assessing whether foe error requires reversal, i.e., whether the error can be deemed harmless.’” State v. BolzeSann, 302 Kan. 198, 209, 352 P.3d 511 (2015) (quoting State v. Williams, 295 Kan. 506, 510, 286 P.3d 195 [2012]).
Applying these steps to each of Dupree’s three jury instruction issues, the parties focus on the second step, at which we determine whether there was any error at all by “ ‘considering] whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record.’ ” State v. Herbel, 296 Kan. 1101, 1121, 299 P.3d 292 (2013) (quoting Williams, 295 Kan. 506, Syl. ¶ 4); see also State v. Plummer, 295 Kan. 156, 16063, 283 P.3d 202 (2012) (setting forth a fourstep standard of review, in which this second step is split into two separate inquiries — was the instruction factually appropriate and was the instruction legally appropriate). We, too, will focus on the merits step and examine whether the instructions were factually and legally appropriate.
4.1. The jury instructions did not result in an erroneous felony-murder conviction based on principal liability as opposed to aiding and abetting liability.
Turning to the specifics of Dupree’s first jury instruction issue, Dupree claims his felony-murder conviction must be reversed because the jury was not properly instructed about aiding and abetting liability. He believes the jury instructions precluded consideration of aiding and abetting liability for the felony-murder charge— meaning the jury could only have convicted him of felony murder as a principal. He further contends no evidence established he was the one who fired the gun and shot Phillips, and he also seems to imply the jury could not consider that he aided and abetted the aggravated burglary to the extent the commission of that crime was an element of felony murder, as charged. Therefore, he argues, the jury could not find him guilty of felony murder.
The aiding and abetting instruction at issue was given after both the State and Dupree proposed using PIK Crim. 4th 52.140, the pattern jury instruction explaining accomplice liability based on the theory of aiding and abetting. The district court proposed a slight modification, beginning the instruction with the words “[a]s to Counts 2 to 7.” As Dupree points out, this alteration effectively informed the jury that the instruction did not apply to the felony-murder count, which was Count 1.
Before turning to the merits of Duprees arguments, we first briefly address his contention that we must rule in his favor because the State “invited error” by requesting the use of the pattern jury instruction on aiding and abetting, PIK Crim. 4th 52.140, and defending the district courts addition of the phrase limiting the instruction to Counts 2 through 7. But invited error is not a path to relief for the party making a claim of error in an appeal. Typically, unless tire error is structural, invited error works to preclude appellate review of a claim of error if the party making the claim invited the error. See State v. Verser, 299 Kan. 776, 784, 326 P.3d 1046 (2014); see also State v. Hargrove, 48 Kan. App. 2d 522, 531, 293 P.3d 787 (2013). Because Dupree is making the claim of error, not the State, the invited error doctrine is inapplicable.
Turning to Dupree’s principal argument, we conclude it also lacks merit. Dupree argues the jury could not find him guilty of aiding and abetting felony murder if it followed the courts instructions. But he premises his argument on a fundamental misunderstanding of the nature of felony murder. If someone dies in the course of an inherently dangerous felony, such as aggravated burglary, “all the participants ... [are] equally guilty of the felony murder, regardless of who fired the fatal shot.” State v. Thomas, 239 Kan. 457, 462, 720 P.2d 1059 (1986). In short, all participants in a felony murder are principals. See State v. Littlejohn, 260 Kan. 821, 822, 925 P.2d 839 (1996); Thomas, 239 Kan. at 462.
If the evidence shows someone other than the defendant did the shooting, a district court may choose to issue a felony-murder instruction like the one given in this case, which requires the State to prove “the defendant, or another, lulled [the victim].” See PIK Crim. 4th 54.120 & Notes on Use. Choosing to add “or another” so that the instruction more closely matches a particular factual scenario does not require the court to then also issue an aiding and abetting instruction specific to felony-murder. Indeed, this would be at odds with the nature of felony murder.
As to intent and participation in the underlying felony, it is enough that the instructions as a whole informed the jury about the nature of the defendant’s liability for the underlying felony — in this case, Dupree’s liability for the aggravated burglary. See State v. Edgar, 281 Kan. 47, 58, 127 P.3d 1016 (2006) (“[W]hen a homicide occurs during the commission of a felony, the ‘ “felony is the statutory equivalent to the deliberation and premeditation essential to murder in the first degree.’”” [quoting State v. Altum, 262 Kan. 733, 738, 941 P.2d 1348 [1997]). The district court instructed the jury on the elements of felony murder, as charged, which required the State to prove Phillips was killed in the commission of aggravated burglary. The instruction referred the jury to a separate instruction defining the elements of aggravated burglary. Specifically, to prove aggravated burglaiy, as charged, the State had to prove Dupree entered the Locust Street home without authority, he did so with the intent to commit aggravated robbery, and he did so while another person was in the house. In turn, the district court instructed the jury on tire elements of aggravated robbery. The district court’s instructions allowed the jury to consider whether Du-pree aided and abetted the aggravated burglary.
While Dupree essentially reads the felony-murder instruction in isolation, the jury had to — and this court in reviewing his claim of error must also — consider the instructions as a whole. See State v. Keel, 302 Kan. 560, 570, 357 P.3d 251 (2015), cert. denied 136 S. Ct. 865 (2016) (directing that “instructions are to be considered together as a whole, without isolating any one instruction”). When read together, the jury instructions informed the jury that the aiding and abetting instruction applied to both the crimes of aggravated burglary and aggravated robbeiy — in other words, that it could convict Dupree of aggravated burglaiy and aggravated robbery based on aiding and abetting liability. If Dupree aided and abetted an aggravated burglary, and in the course of that aggravated burglary Brown shot Phillips, then Dupree may be convicted as a principal for felony murder. This theory is accurately reflected in the jury instructions as a whole.
We also note that the juiy could well have concluded Dupree was guilty of tire underlying felony of aggravated burglaiy as a prin cipal. See State v. Gleason, 277 Kan. 624, 633, 88 P.3d 218 (2004). Contraiy to Dupree’s assertion, there was more than sufficient evidence to support this theory: Stuart testified Dupree immediately stepped into the house after tire shooting; asked her for money and her cell phone; pushed her through the house looking for a safe; threatened to ldll her; and carried a television out of the house. Dupree admitted to taldng a television and also admitted to accompanying Stuart and Brown throughout the house. While he denied threatening Stuart, pushing her, or acting of his own accord, the jury was free to disbelieve the parts of his story that did not correlate with Stuart’s account. This evidence would permit a rational factfinder to conclude Dupree did not merely aid and abet an aggravated burglary but instead was an active and willing principal. We will not reweigh a jury’s credibility determination. See Hall, 292 Kan. at 859.
Dupree also argues the problems with the jury instructions are illustrated by misstatements in the State’s closing argument relating to his culpability for the acts of another. At issue is a portion of the argument where the prosecutor stated, “In for a penny, in for a pound.” The State then recited the text of the court’s aiding and abetting instruction and told the jury, “Now, don’t get confused about the language here where it says as to Counts 2 through 7, when you’re looking at Count 1, the felony murder. It’s already built in. Go to . . . the felony murder [charge].” The State continued by noting Dupree had admitted that Brown lulled Phillips and that the Mling happened “while [Dupree] was committing an aggravated burglary. They’re pushing their way into the house .... They>re trying to get in.” The State asserted it did not have to show Dupree intended to Ml Phillips or that he knew Phillips would die; all it had to show was that the men were committing an inherently dangerous felony, Dupree was involved in it, and a person died.
This argument, rather than pointing out a problem with the instructions, illustrates how the instructions, when read as a whole, correctly reflected Kansas law and fully explained the theory of accomplice liability relevant to the facts of Dupree’s case. Liability for felony murder does not distinguish between principals and aiders and abettors, and the felony-murder instruction explained this through the use of the phrase “the defendant or another.” The State also accurately informed the jury that the foreseeability portion of the aiding and abetting instruction' — that a person is responsible not only for the crime he intentionally aided and abetted but also for reasonably foreseeable crimes and consequences that might happen during the course of the intended crime — was built into the felony-murder instruction. The instructions referred the jury to the instruction for aggravated burglary which in turn referred the jury to the instruction for aggravated robbery. And they informed the jury that Dupree had to intend to commit — or aid and abet the commission of — these crimes. The prosecutors arguments did not tell the jury to ignore these requirements or direct them away from considering any element of the underlying crimes.
We therefore reject Duprees first jury instruction argument. The instructions regarding felony murder, aggravated robbery, and aiding and abetting properly and fairly stated the law as applied to the facts of his case. Because we find no error, we need not discuss the other steps of the juiy instruction analysis. See Williams, 295 Kan. at 518.
4.2. The district court did not commit reversible error by declining to instruct the jury on Duprees requested compulsion defense.
In Dupree’s next claim of jury instruction error, he contends the evidence at trial, taken in the light most favorable to him, supported a compulsion defense. He argues there was evidence that Brown pointed a gun at him and directed him .into and around the Locust Street home. Accordingly, he contends, the district court erred as a matter of law in rejecting his request for such an instruction.
The compulsion defense is defined in K.S.A. 2015 Supp. 21-5206(a), which provides:
“A [defendant] is not guilty of a crime other than murder or voluntary manslaughter by reason of conduct which [he or she] performs under the compulsion or threat of tire imminent infliction of death or great bodily harm, if [the defendant] reasonably believes that death or great bodily harm will be inflicted upon [him or her] or upon [his or her family] if [he or she] does not perform such conduct.”
The compulsion defense “is not available to a person who intentionally or recklessly places such person s self in a situation in which such person will be subjected to compulsion or threat.” K.S.A. 2015 Supp. 21-5206(b).
As to the first part of the statute making the defense unavailable to defendants accused of “murder or voluntary manslaughter,” this court has explained this phrase means murders resulting from an intentional killing. See State v. Hunter, 241 Kan. 629, 641, 740 P.2d 559 (1987) (“The rationale is that, when confronted by a choice between two evils of equal magnitude, the individual ought to sacrifice his own life rather than escape by the murder of an innocent.”). But a defendant may raise a compulsion defense if he or she is charged with a killing “done by another during the commission of some lesser felony,” so long as compulsion is an available defense for that underlying felony. Hunter, 241 Kan. at 641-42.
Hence, the compulsion was legally available to Dupree as a defense to the felony-murder charge. Even so, the district court had to determine whether the evidence supported the instruction— that is, whether the instruction was factually appropriate. See Herbel, 296 Kan. at 1121. Generally, a criminal defendant is entitled to instructions on the law applicable to his or her theory of defense if there is sufficient evidence for a rational factfinder to find for the defendant on that theory. State v. Hilt, 299 Kan. 176, 184, 322 P.3d 367 (2014). If the defendant requested an instruction at trial, as Dupree did, the court must view the evidence in the light most favorable to the defendant, 299 Kan. at 184, and can find the evidence sufficient even if a defendant’s testimony was all that supported the defense. State v. Anderson, 287 Kan. 325, 334, 197 P.3d 409 (2008).
In making this assessment, the district court had to consider the limited nature of the compulsion defense. State v. Dunn, 243 Kan. 414, 421, 758 P.2d 718 (1988). Specifically, a compulsion defense is only available if “the coercion or duress [was] present, imminent, and impending, and of such a nature to induce a well-grounded apprehension of death or serious bodily injury if the act [was] not done.” 243 Kan. at 421; see also State v. Matson, 260 Kan. 366, 385, 921 P.2d 790 (1996) (“A threat of future injury is not enough.”). The coercion or compulsion must also be continuous, and a defendant cannot invoke the defense if there was a reasonable opportunity to avoid committing the crime without undue exposure to death or great bodily harm. Dunn, 243 Kan. at 421; see State v. Baker, 287 Kan. 345, 352, 197 P.3d 421 (2008).
Considering tírese requirements, a district court must evaluate whether a rational juror could conclude that the defendant reasonably believed he or she was in danger of death or great bodily harm, see K.S.A. 2015 Supp. 21-5206, and whether coercion induced a ■well-grounded fear, see Dunn, 243 Kan. at 421. “[Mjerely ‘slight’ evidence of these objective standards of reasonableness would appear to be insufficient to justify a rational factfinder finding for the defendant, and therefore insufficient to warrant the giving of a compulsion instruction.” Anderson, 287 Kan. at 334.
Here, the district court determined there was not enough evidence to permit a rational jury to believe Dupree’s compulsion defense. See Anderson, 287 Kan. at 334. Thus, it denied Dupree’s request for such an instruction.
Dupree argues the district court erred in making this ruling because four portions of his trial testimony supported a compulsion defense instruction: (1) Duprees testimony he was walking away from the Locust Street home when, after hearing a pop, Brown waved a gun at Dupree and indicated he should follow inside; (2) Dupree’s testimony that when he hesitated at the threshold, Brown again waved the gun and told him to come on; (3) his testimony that he stayed close to Brown inside the house because he did not know what was going on and felt his life was in danger; and (4) his testimony that he helped steal the televisions because Brown told him to stop standing around and help and because he did not want anything else to go wrong.
While Duprees testimony represents some slight evidence of duress, his testimony is not sufficient to entitle him to a compulsion defense instruction. See Anderson, 287 Kan. at 334. In fact, Du-pree’s own testimony on crossexamination negated his compulsion defense. Dupree admitted that he could have fled the scene after the shooting, and, though he explained he did not flee because he was shocked and scared for his life, he also admitted that Brown did not verbally threaten him. Dupree also acknowledged Brown was not in tire same part of the house or threatening him when he took the television from the living room and went outside. Again, a compulsion defense is only available when coercion was continuous and there was no reasonable opportunity for the defendant to escape the scene without committing the charged crimes. See Dunn, 243 Kan. at 421.
Thus, even Dupree’s own testimony, considered in the light most favorable to him, does not provide evidence sufficient to support his request for an instruction regarding the compulsion defense. See Anderson, 287 Kan. at 334. The district courts assessment that the instruction was not warranted is further bolstered by the testimony of Stuart and other witnesses who had been around Dupree and his accomplices before and after the events at tire Locust Street house. Considering all this evidence, a rational jury could not find that Dupree reasonably believed he was in danger of death, that this fear was wellgrounded, or that the compulsion was continuous and left Dupree with no reasonable opportunity to escape the compulsion or avoid tire act. See Anderson, 287 Kan. at 334. Accordingly, we hold the district court did not err in concluding Dupree’s requested instruction on compulsion was not factually warranted.
4.3. The district court did not err in failing to give a lesser included offense instruction for the felony-murder charge.
Dupree’s third and final jury instruction argument is that the district court committed reversible error in rejecting his request to instruct the jury about lesser included offenses for felony murder — specifically, the lesser included offenses of second-degree intentional murder and voluntary manslaughter. He urges us to conclude the jury could well have convicted him of a lesser included offense, and he points to evidence he believes shows the victim, Phillips, was the aggressor prior to the shooting.
At the time of Dupree’s trial, Kansas law held that lesser included offense instructions must be given, even in felony-murder cases, when there was some evidence that would reasonably justify a conviction of a lesser included crime. State v. Berry, 292 Kan. 493, 254 P.3d 1276 (2011), superseded by statute as recognized in State v. Todd, 299 Kan. 263, 273-74, 323 P.3d 829 (2014).
However, after our opinion in Berry the legislature eliminated all lesser included offenses of felony murder. See K.S.A. 2013 Supp. 21-5109; L. 2012, ch. 157, sec. 2; see Todd, 299 Kan. at 274. Although K.S.A. 2013 Supp. 21-5109 was effective July 1, 2013— after Dupree’s trial — the legislature expressly provided that the statute is a procedural rule meant to apply retroactively to any case currently pending. See K.S.A. 2013 Supp. 21-5402(d), (e), L. 2013, ch. 96, sec. 2; see Todd, 299 Kan. at 274-75. We have since held that this last prescription was within the legislature’s powers and did not violate the Ex Post Facto Clause. Todd, 299 Kan. at 276-78.
With this recent legislative history in mind, we readily agree with tire State that Dupree’s argument lacks merit. The legislature has made clear that (1) felony murder has no lesser included offenses and (2) this rule applies retroactively to all cases pending, which would include Dupree’s case. See Todd, 299 Kan. at 276-78. Du-pree’s requested lesser included offense instructions were legally inappropriate. Likewise, the district court did not err in refusing to issue such instructions. See State v. Herbel, 296 Kan. 1101, 1121, 299 P.3d 292 (2013).
Issue 5: The district court's order permitting the case detective to sit at or near counsel table during trial, and its decision to exempt the case detective from a sequestration order, did not prejudice Dupree and do not require reversal.
Dupree argues the district court abused its discretion in allowing the case detective to sit with the State’s attorneys at or near the prosecution’s table and also abused its discretion by permitting the case detective to remain in the courtroom despite the general sequestration order. He asserts the case detective’s presence and testimony unfairly bolstered the State’s case and amounted to a constitutional error requiring reversal of his convictions.
Prior to trial Dupree had moved for an order of sequestration and specifically requested the order cover the case detective— meaning she, like all other witnesses, would not be permitted to hear any other person’s testimony. Dupree’s motion also stated that even though it might not be per se abuse of the district court’s discretion to allow a case detective to sit at counsel table during trial, it nonetheless opened the door to possible prejudice.
The State responded by noting it was the general practice in Sedgwick County to permit detectives to remain in the courtroom despite a sequestration order. But on Dupree’s second point, the State agreed — it assured the district court it would not place the case detective at counsel table. Instead, she would sit behind counsel but still assist the State.
The district court entered a sequestration order but exempted the case detective from its order. It also specifically ruled the case detective would be permitted to sit near the prosecutor. In the course of its ruling the district court stated it had “always been [its] practice over the years to allow the case detective to sit at the table or in close proximity to the prosecutor,” and it “[had not] been made aware of a case that stands for the proposition that it is definitely prejudicial and [should not] be allowed.” The State again confirmed it was not intending to have the case detective sit at counsel table and explained there was not enough room at the counsel table anyway. Instead, the State explained, it would probably have the case detective sit in front of the barrister bar but behind the counsel table.
With these facts in mind, we will separately consider the two aspects of Dupree’s argument: (1) whether the district court erred in allowing the case detective to sit with counsel and (2) whether the district court erred in exempting her from the sequestration order.
As to the first aspect, in State v. Sampson, 297 Kan. 288, 292, 301 P.3d 276 (2013), which was filed after the trial in this case, we acknowledged that our previous caselaw allowed a district court some discretion to allow a testifying law enforcement officer to sit at the prosecution table. See State v. Kirkpatrick, 286 Kan. 329, 342-43, 184 P.3d 274 (2008), abrogated by Sampson, 297 Kan. 288. But we abrogated this rule in Sampson and held that permitting a case detective to sit at counsel table carried a significant likelihood the detectives credibility would be improperly bolstered. Sampson, 297 Kan. at 295-96. Accordingly, post -Sampson, “a trial court has no discretion to permit a testifying law enforcement officer to sit at the prosecution table, regardless of the practical benefits of that practice to the prosecution.” 297 Kan. at 297.
That post-Sampson holding does not apply to this case, which preceded the filing of Sampson. Nevertheless, the reasoning of Sampson supports Dupree s arguments as to why the district court abused its discretion in permitting the case detective to sit nearby and assist the prosecutor. Indeed, in Sampson, 297 Kan. at 296-97, we identified tire harm as the significant likelihood a detectives credibility would be improperly bolstered by permitting an officer to be so visually associated with the State’s lawyers. This danger exists even if the case detective sits behind the counsel table but in front of the barrister bar, as apparently happened here.
We also specifically stated in Sampson that the “practical benefits” of having a case detective handy are simply not more important than the need to avoid improper credibility vouching by tire State. 297 Kan. at 297. And we are thus troubled by the States explanation, to the district court, that the case detective would assist the State in gathering documents and answering questions the prosecutors might have about the case. This type of conduct unquestionably adds an imprimatur of credibility to the case detectives testimony that will in many cases be inappropriate. See 297 Kan. at 296 (noting that the case detective in that case “acted as a legal assistant, rose four times from the table to testify, and returned four times to the table”). It is well established the State may not assert to the jury a certain witness is or is not truthful. Working with and openly relying upon a case detective throughout trial communicates trust and veracity. See State v. Elnicki, 279 Kan. 47, 64, 105 P.3d 1222 (2005) (“[A] prosecutor should not comment on the credibility of his or her own witnesses.”).
The State counters, however, that before Sampson the practice was still allowed and nothing suggests this case differs in kind from those past cases. This may be valid. Regardless, even assuming an abuse of discretion here, the assumed error was harmless. Dupree asserts, without analysis, that we must apply the constitutional harmless error standard. Under this standard,
“the error may be 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 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. 2d 705, reh. denied 386 U.S. 987 [1967]).
Assuming this standard controls, we conclude the State has met its burden in light of the overwhelming evidence against Dupree and tire fact that the case detectives testimony had little, if any-tiring, to do with Dupree s defense. The bulk of the case detective s testimony consisted of a summary of the police investigation, direct evidence of her own interactions with Stuart, and a narration of the video from tire security camera located near the Locust Street house. Some of her testimony was helpful to the defense, such as her statements that no DNA or fingerprint evidence was found and her statement that Dupree was not hiding and was peaceably arrested. And, unlike in some cases, Dupree did not attack the credibility of the case detective because the case detective s testimony was not the disputed evidence in the trial.
Stuart was the main witness against Dupree, and she told the jury about his personal involvement and his culpability for the crimes. Other witnesses, too, implicated him in the crimes. Even Duprees testimony tracked Stuarts version of events, only differing on the matter of his intent — i.e., he claimed he was an unwilling actor. Like Stuart, Dupree subjected himself to the juxy s credibility evaluation by testifying, and the jury apparently rejected his testimony about being sick and not acting of his own free will — a theory rebuffed by several fact witnesses and his own answers on cross-examination. The case detectives testimony had little bearing on that point. Hence, we do not believe there is any reasonable possibility the result would have changed if the case detective had not been sitting near the prosecutors table.
For the same reasons, even if we assume the district court abused its decision when it exempted the case detective from the sequestration order, considering the record as a whole, we cannot conclude the case detectives presence prejudiced Dupree. Du-pree points to no indication in the record of prejudice and makes no suggestion, for example, that the case detective tailored her tes timony to buttress or to rebut another witness’ testimony. See State v. Heath, 264 Kan. 557, 589, 957 P.2d 449 (1998) (recognizing that even if district court abuses its discretion in denying a request to sequester witnesses, the error is not reversible absent evidence of prejudice).
We conclude the district court’s orders regarding the sequestration and seating of the case detective do not require us to reverse Dupree’s convictions.
Issue 6: The cumulative error doctrine does not require reversal of Dupree’s convictions.
In his final argument, Dupree argues all of the alleged errors discussed above, when considered together, deprived him of a fair trial.
“Cumulative trial errors, when considered collectively, may require reversal of the defendant’s conviction when the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial.” State v. Waller, 299 Kan. 707, 72728, 328 P.3d 1111 (2014). We will not find cumulative error “when the record fails to support the errors raised on appeal.” State v. Cofield, 288 Kan. 367, 387, 203 P.3d 1261 (2009). A single error will not constitute cumulative error. State v. Foster, 290 Kan. 696, 726, 233 P.3d 265 (2010).
As we have explained above, each of Dupree’s claims fails individually; at most, we have assumed error in die orders regarding the case detective but have determined that this assumed error did not prejudice Dupree. There are no other errors to accumulate, and the cumulative error doctrine does not apply. See Foster, 290 Kan. at 726.
Conclusion
For the foregoing reasons, we affirm each of Dupree’s convictions and sentences.
Affirmed. | [
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Denied.
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The opinion of the court was delivered by
Schroeder, C.J.:
This is a direct appeal from the concurrent sentences imposed against the defendant of five to twenty years for aggravated criminal sodomy (K.S.A. 1985 Supp. 21-3506) and three to ten years for aggravated burglary (K.S.A. 21-3716). The defendant pled guilty to the charges.
After sentencing the defendant on the basis of arguments made by counsel and the content of the presentence investigation report, the trial court indicated it would consider a report from the Kansas State Reception and Diagnostic Center (KSRDC) for purposes of modification of the sentence. The defendant’s attorney had strongly argued for probation or a suspended sentence. At the time of sentencing, the district court stated only that a “very violent crime” was involved. It did not state on the record the factors it considered in arriving at the defendant’s particular sentence. The defendant moved for a modification of sentence and, at a hearing held on that motion, the district court had before it the report from the KSRDC. The report stated that the defendant hoped that if he were placed in the penal system he could be trained for the construction trade in order to get a better job when he was released from incarceration. The report recommended training for the defendant, stating he was capable of becoming a carpenter’s helper. In its journal entry denying the defendant’s motion for modification of sentence, the district court stated it “strongly recommends that the Secretary of Corrections provide job training for the defendant during his incarceration, and particularly receive consideration for such training at the Kansas Correction and Vocational Training Center.” The journal entry does not state the particular factors considered by the district court in denying the defendant’s motion for modification of sentence.
The defendant asserts two issues on appeal. The first is that “the trial court failed to sentence Mr. Bennett in a manner that would have a reasonable chance of achieving the goal of vocational rehabilitation that it felt was most important in Mr. Bennett’s case.” The second is that the trial court abused its discretion by failing to state on the record its consideration of the sentencing criteria set forth in K.S.A. 21-4606.
The State argues this court has no jurisdiction to hear this appeal pursuant to State v. Haines, 238 Kan. 478, 712 P.2d 1211, cert. denied_U.S._(1986), because the defendant fails to allege that the sentence is the result of partiality, prejudice, or corrupt motive.
State v. Haines, 238 Kan. 478, was overruled in part by State v. Harrold, 239 Kan. 645, 722 P.2d 563 (1986), which was decided after the parties’ briefs were submitted. In Harrold, a majority of this court held that, pursuant to K.S.A. 22-3602(a), a direct appeal may be taken from a sentence imposed when the defendant pleads guilty or nolo contendere. This court further held that it is not necessary to allege the sentence is the result of partiality, prejudice, or corrupt motive in order to present a justiciable issue. 239 Kan. at 649. Therefore, this court does have jurisdiction to hear the defendant’s challenges to the sentence imposed.
Turning to the defendant’s argument that the trial court failed to sentence him in a manner which would further vocational rehabilitation, it appears the defendant is complaining he was not placed by the Secretary of Corrections in a work release program or in an institution where he could receive vocational training.
We note the relevant statutory scheme. In sentencing the defendant to the custody of the Secretary of Corrections, the sentencing court can make a recommendation regarding rehabilitation in its journal entry. K.S.A. 21-4620(b)(3). Upon receipt of the report of the Kansas State Reception and Diagnostic Center, the Secretary of Corrections selects one of the state correctional institutions for the defendant’s confinement based upon the examinations and studies made of the defendant. K.S.A. 75-5262. Thereafter, the Secretary of Corrections may transfer an inmate serving a sentence of imprisonment from one institution to another. K.S.A. 21-4609.
It is the sentencing court that determines the length of the defendant’s incarceration. While that court can make recommendations regarding rehabilitation, the sentencing court cannot determine where the defendant will serve his time. That decision is statutorily to be decided by the Secretary of Corrections in the exercise of his discretion. Therefore, the defendant’s complaint lies not with the sentencing court but with the Secretary of Corrections. The issue of whether the Secretary of Corrections has abused the exercise of his discretion is not a justiciable issue on this direct appeal from the sentence imposed. The court has no jurisdiction to consider it on this appeal.
Next, the defendant argues the trial court abused its discretion by failing to state on the record the factors it considered when imposing sentences and when considering the defendant’s motion to modify the sentences.
The defendant was sentenced to five to twenty years on the aggravated criminal sodomy charge, which is the statutory minimum set by law. K.S.A. 1985 Supp. 21-4501(b). The defendant was sentenced to three to ten years on the aggravated burglary charge, which is the statutory minimum sentence. K.S.A. 1985 Supp. 21-4501(c). The journal entry was silent regarding the concurrent or consecutive nature of the two sentences and, pursuant to statute, the sentences are to be served concurrently. K.S.A. 1985 Supp. 21-4608(1).
K.S.A. 21-4606 sets forth seven factors which, while not controlling, are to be considered by a sentencing court in fixing the minimum term of imprisonment. In State v. Buckner, 223 Kan. 138, 574 P.2d 918 (1977), this court stated that when the sentence exceeds the statutory minimum, it is the better practice for the sentencing court to place on the record a detailed statement of the facts and factors it considered. 223 Kan. at 151. However, the failure to place on the record such a detailed statement does not necessarily indicate the sentencing court abused its discretion, and each case is to be considered separately on its facts. State v. Harrold, 239 Kan. at 650; State v. Richard, 235 Kan. 355, 366, 681 P.2d 612 (1984). Here, the sentences imposed did not exceed the statutory minimum.
The presentence investigation report which was provided to the court included copies of police reports, the defendant’s prior juvenile record, his family background, the defendant’s version of the crimes, and the victim’s version. In his version, the defendant stated he was sleeping at the victim’s house in her living room on the night of the incident. He and the victim, with whom he had lived, had decided to separate. He went into her bedroom and asked her to make love with him for the last time; she didn’t say anything, so he made love to her. As he was leaving the room, he saw that the victim was bent over like she was hurt. In her version, the victim said that when the defendant came into her bedroom she got up, but he pulled her back onto the bed and started taking off her clothes, ripping some of them. He bit her private parts, causing bleeding and swelling, and forced her to have sexual intercourse. The presentence investigation report indicated the defendant had never paid for a marriage license, but considers himself the father of six children by three common-law wives.
The report of the State Reception and Diagnostic Center, provided to the court at the hearing on the defendant’s motion to modify the sentence, indicates the defendant thought the victim was a willing participant and described the events “with a smile on his face.”
All of the above facts provided to the sentencing court address the factors set forth in K.S.A. 21-4606. Having these facts before it, we cannot say the sentencing court abused its discretion when it failed to state on the record the factors it considered in arriving at the defendant’s sentences.
The judgment of the lower court is affirmed.
Allegrucci, J., not participating.
Approved by the court prior to the retirement of Schroeder, C.J. | [
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Malone, J.:
Kathleen S. Zak filed a medical negligence case seeking damages for the wrongful death of her husband, Michael Zak, a 48-year-old business executive, from dilated cardiomyopathy. The case proceeded to trial against only Dr. Lawrence D. Riffel. The jury returned a verdict finding Dr. Riffel to be 51% at fault and Michael to be 49% at fault. The jury awarded $100,000 in total damages. The primaiy issue we will address on appeal is whether the trial court erred by giving an instruction which allowed the jury to allocate fault to Michael because of his “obesity and lifestyle.” We will also address whether the trial court violated the collateral source rule by admitting evidence of a $262,500 payment made to Kathleen by Michael’s employer after Michael’s death.
Factual and procedural background
In 1988, Michael became a patient of Dr. Fred Farris at the Kenyon Clinic. In 1992, Michael was diagnosed with aortic stenosis, a congenital defect in one of the valves of his heart. Michael underwent surgery for an aortic valve replacement on April 2,1992. As a result of the damage due to the defective valve, however, Michael was left with a chronic condition known as left ventricular dysfunction in which the left ventricle of the heart was unable to pump the normal amount of blood from that chamber. Michael was obese and significant weight loss and lifestyle adjustments were suggested as a way to manage the left ventricular dysfunction.
In May 1996, Dr. Farris referred Michael to his partner, Dr. Riffel, for evaluation and consultation regarding weight loss. On May 30,1996, at the time of the initial consultation with Dr. Riffel, Michael weighed 309 pounds and had borderline elevated blood pressure. Michael’s cholesterol, triglycerides, and LDL cholesterol were all high. In a letter memorializing the consultation, Dr. Riffel advised that Michael’s chest x-ray appeared normal and his electrocardiogram (EKG) was unchanged from previous EKG’s in 1992 and 1994. The letter concluded that Michael was in good health and an excellent candidate for the weight loss program.
Dr. Riffel put Michael on a weight loss program of diet, exercise, and medication, which included a prescription for phentermine. Michael’s goal was to lose about 80 pounds. The weight loss program was initially successful.. Michael lost 89 pounds to a weight of 220 pounds. Blood pressure and cholesterol readings were down, and the weight loss program was stopped in May 1997.
By the time of his annual physical on November 25, 1997, Michael had regained 18 pounds. Dr. Riffel concluded that Michael was in excellent health, but he stressed the importance of continuing to exercise and watching his diet. In February 1998, Michael saw Dr. Riffel because he was concerned and upset that he was gaining weight despite exercising regularly. Dr. Riffel gave Michael another prescription for phentermine, but he did not continue taking the prescription beyond 30 days.
On December 21, 1998, Michael had his annual physical. Dr. Riffel noted that Michael’s weight had gradually increased to 265 pounds. Michael reported that his appetite had been difficult to control. Michael’s blood pressure, cholesterol, and LDL cholesterol were elevated. Dr. Riffel concluded that Michael’s chest x-ray was clear and his EKG had not changed significantly. He did not refer Michael to a cardiologist because he felt comfortable managing the left ventricular dysfunction.
On February 12, 1999, Michael went to the St. Joseph Health Center Emergency Room after he woke up experiencing chest pain and shortness of breath. Dr. Michael Reilly performed an examination and ordered a chest x-ray and EKG. Dr. Reilly reported the results of the tests as normal and diagnosed Michael with gastritis. He was given a gastrointestinal cocktail and discharged with a 10-day supply of Prevacid. The next day, Michael and Kathleen left for a scheduled vacation to Hawaii after reporting the emergency room visit to Dr. Riffel.
On February 22, 1999, after returning from vacation, Michael saw Dr. Riffel. Michael informed Dr. Riffel of the details of the emergency room visit on February 12, 1999. Michael also related to Dr. Riffel that he had several episodes of mild chest discomfort in the middle of the night while on vacation. Michael told Dr. Riffel that he had never had symptoms like this before. Dr. Riffel examined Michael and concluded he had gastroesophageal reflux disease (GERD). He continued the Prevacid medication.
On March 17, 1999, Michael left work early because he was not feeling well. On March 18, 1999, Michael again came home from work early and told Kathleen he was not feeling well. About 9:45 p.m., Michael began to have problems breathing, and Kathleen called 911. The paramedics arrived and found Michael in respiratory arrest. Efforts to resuscitate began, and Michael was transported to the hospital. After resuscitation efforts failed at the hospital, Michael was pronounced dead at 10:37 p.m., by Dr. Kevin Koch. Dr. Koch concluded that Michael had a cardiopulmonary arrest with pulmonary edema and called the coroner’s office to schedule an autopsy.
Dr. Michael Handler conducted the autopsy and concluded that Michael died of an arrhythmia due to an enlarged heart, or dilated cardiomyopathy culminating in a cardiac arrest. Dr. Handler tes tilled that Michael’s heart weighed 880 grams at the time of the autopsy where a normal heart would weigh 350-420 grams. Any heart weighing over 600 grams is considered electrically unstable. Based on tire scar tissue found on the heart, Dr. Handler believed that Michael had two previous heart attacks, but he could not date the attacks. At the time of his death, Michael weighed 272 pounds.
Kathleen filed her petition for medical negligence and wrongful death on March 15, 2001. Kathleen originally brought her lawsuit against Dr. Riffel and several other providers. Prior to trial, settlement agreements were reached and all the other providers were dismissed with prejudice, leaving Dr. Riffel as the sole defendant. Kathleen alleged that Dr. Riffel failed to properly diagnose and manage Michael’s heart condition, failed to refer Michael to a cardiologist for treatment, and failed to advise Michael of the abnormal tests performed at the Kenyon Clinic.
On June 16, 2003, the case was tried to a jury. Dr. John Daniels, Kathleen’s internal medicine expert, testified diat Michael’s EKG was “very abnormal,” and his chest x-ray taken by Dr. Riffel in 1996 showed an enlarged heart at that time. Dr. Daniels testified that the standard of care required that Dr. Riffel place Michael on an ACE Inhibitor rather than prescribing phentermine as part of a weight loss plan. An ACE Inhibitor operates to decrease the worldoad on the heart, and Dr. Daniels testified it was standard therapy to use ACE Inhibitors on patients with left ventricular dysfunction by the mid-1990’s. Dr. Daniels noted that phentermine was contraindicated for individuals with cardiac disease.
Based upon his review of the test results from Michael’s December 21, 1998, annual physical, Dr. Daniels concluded that Michael had substantial left ventricular dysfunction that presented a life-threatening problem requiring treatment. Dr. Daniels testified the results from the December 1998 echocardiogram indicated that the heart was getting larger and the disease process was getting worse. Dr. Daniels opined that the standard of care required Dr. Riffel to have referred Michael to a cardiologist at that time.
Based upon his review of the records from Michael’s emergency room visit on February 12, 1999, Dr. Daniels concluded that Michael was clearly in congestive heart failure. Dr. Daniels stated that Michael’s further complaints of pain while on vacation should have alerted Dr. Riffel to be suspicious of the GERD diagnosis. According to Dr. Daniels, Michael required an urgent cardiac evaluation at that time, and Dr. Riffel’s failure to provide proper management of Michael’s condition contributed to his death.
Dr. Daniels’ testimony was corroborated by two cardiologists, Dr. Dan Fintel and Dr. Dennis Bresnahan. Dr. Fintel testified that by the mid-1990’s, ACE Inhibitors were absolutely standard of care for patients with enlarged hearts and cardiomyopathy. He believed that Dr. Riffel’s failure to manage Michael’s heart condition reduced his life expectancy by 5 to 10 years. Dr. Bresnahan opined Michael’s life expectancy could have been 7 to 10 years with proper care.
At trial, Dr. Riffel admitted that Michael’s chest x-ray and EKG results were abnormal. He testified that his entries in the medical records to the contrary meant that the results were “normal for Michael’s condition.” Dr. Riffel did not believe that Michael’s heart condition was getting worse because he had not developed any symptoms of heart failure.
Dr. Riffel’s experts testified that the use of ACE Inhibitors was not the standard of care for asymptomatic left ventricular dysfunction. They testified that weight loss and lifestyle changes were effective treatment for the condition. They also testified there was no indication in Michael’s medical history which should have alerted Dr. Riffel to refer Michael to a cardiologist.
Dr. John Ward, economist, testified regarding a calculation of lost wages. Michael was an executive with BHA Group at the time of his death. Dr. Ward testified that BHA Group was a rapidly growing company from 1996 to 1998. Michael earned $592,000 in 1996, $363,000 in 1997, and $693,000 in 1998. According to Dr. Ward, total wage loss for a* 5-year life expectancy was $1,077,737; total loss for a 10-year life expectancy was $2,132,797.
Jim Shay, chief financial officer for BHA Group, testified that after Michael’s death, BHA Group’s board of directors elected to pay Kathleen a total of $262,500. This was the result of an earlier agreement that in the event of Michael’s death, his salary would be continued for 1 year. Shay testified the payment was a death benefit and not regular compensation. However, the payment was recorded in the company books as payment from a “bonus account.”
Prior to trial,' Kathleen filed a motion in limine to exclude evidence of the $262,500 payment on the grounds that it constituted a collateral source payment. Dr. Riffel argued that he should be allowed to cross-examine Dr. Ward regarding this information because Dr. Ward had not counted the payment in his calculations and conclusions regarding economic loss. According to Dr. Riffel, this omission showed a bias by Dr. Ward which affected his credibility as a witness. The trial court ruled that it would allow the evidence of the $262,500 payment to be presented to the jury for the limited purpose of laying a foundation for the defense to cross-examine Dr. Ward about his report.
At the conclusion of the trial, the district court instructed the jury to compare fault between Michael and Dr. Riffel. The jury returned a verdict, finding Dr. Riffel to be 51% at fault and Michael to be 49% at fault. The jury awarded $100,000 in total damages, which included $25,000 for medical expenses and $75,000 for past economic loss. The jury did not award any damages for past or future noneconomic loss, past or future loss or impairment of services, or future economic loss. Kathleen filed a motion for a new trial which was denied. She timely appeals.
Kathleen raises five issues on appeal: (1) the trial court violated the collateral source rule by admitting evidence of the $262,500 payment; (2) the trial court erred by giving Instruction No. 14 because it allowed the jury to allocate fault to Michael because of his obesity and lifestyle; (3) Kathleen was denied a fair trial due to juror misconduct; (4) the damage award was inadequate and contrary to undisputed evidence; and (5) the trial court erred in limiting the cross-examination of an expert witness regarding Dr. Riffel’s prescription for phentermine as part of Michael’s weight loss program. We will begin with the claimed error involving Instruction No. 14.
Instruction No. 14
Kathleen claims the trial court erred by giving jury Instruction No. 14 because it allowed the jury to allocate fault to Michael because of his obesity and lifestyle. Kathleen had objected to the instruction at trial on the basis that it was not supported by the evidence.
“The trial court is required to properly instruct the jury on a party’s 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 have been misled by them, the instructions will be approved on appeal. [Citation omitted.]” Wood v. Groh, 269 Kan. 420, 423-24, 7 P.3d 1163 (2000).
The trial court gave Instruction No. 14 to the jury which identified the party’s “claims and defenses” as follows:
“Issues-Plaintiffs Claim
“The plaintiff, Kathy Zak, claims that she sustained damages as a result of the death of her husband and due to die fault of the defendant.
“The plaintiff claims that she sustained damage due to the fault of the defendant, Dr. Lawrence Riffel, in:
1. Failing to properly manage Michael Zak’s heart condition;
2. Failing to refer Michael Zak to a cardiologist; and,
3. Fading to advise Michael Zak of the abnormal diagnostic test results performed at the Kenyon Clinic.
“Burden of Proof-Plaintiffs Claim
“The plaintiff has the burden to prove that it is more probably true than not true that she sustained damages caused by any one or more of the claimed negligent acts or omissions of the defendant. When more than one specified negligent act or omission is alleged against a defendant, agreement as to which specific act or omission is not required.
“Issues-Defendant’s Admissions and Denials
“The defendant denies any and all claims of negligence asserted against him by plaintiff, and specifically, denies that he departed from acceptable standards of medical care with respect to the care and treatment provided to Michael Zak by him under the circumstances of this case. This defendant asserts that the care and treatment provided by this defendant was within acceptable standards of care for similarly situated physicians given the circumstances of this case.
“This defendant asserts that the death of Michael Zalc was not the result of, or caused by, any act or omission on the part of this defendant. Instead, the death of Michael Zak was the result of a pre-existing cardiomyopathy that was aggravated by Michael Zak’s obesity and lifestyle.
“This defendant denies the nature and extent of the damages alleged by to have been sustained by the plaintiff.”
Instruction No. 14 provided the basis for the trial court to further instruct the jury on the comparative fault of Michael and Dr. Riffel. Kathleen failed to object to any of the comparative fault instructions except for Instruction No. 14. However, the standard of review requires us to view the instructions as a whole in order to establish whether they are substantially correct.
The Kansas comparative negligence statute “requires a weighing of the causal negligence, if any, of all parties whose conduct brought about the harm, and the consequent imposition of individual liability for damages based upon the proportionate fault of each party to the occurrence.” Arredondo v. Duckwall Stores, Inc., 227 Kan. 842, 844-45, 610 P.2d 1107 (1980); see K.S.A. 60-258a. The concept of fault consists of two components, negligence and causation. Negligence is the lack of ordinary care. It is the failure of a person to do something that an ordinary person would do, or the act of a person in doing something that an ordinary person would not do, measured by all the circumstánces then existing. Beck v. Kansas Adult Authority, 241 Kan. 13, 33, 735 P.2d 222 (1987). A party is at fault when he or she is negligent and that negligence caused or contributed to tíre event which brought about the injury or damages for which a claim is made. Sharples v. Roberts, 249 Kan. 286, 295, 816 P.2d 390 (1991); PIK Civ. 3d 105.01. Thus, to establish comparative fault, Dr. Riffel was required to present sufficient evidence that Michael was negligent and that his negligence caused or contributed to his injury and death.
Michael was obese and had a heart condition. However, a patient’s prior condition which required him to be under a physician’s care cannot be a basis for comparative fault in a negligence claim against the physician:
“Conduct prior to an injury or death is not legally significant in an action for damages, unless it is a legal or proximate cause of the injury or death. It is inconsistent with the reasonable and normal expectations for the court to excuse or reduce the medical provider’s liability simply because it was the patient’s own fault that he or she required care in the first place.” Huffman v. Thomas, 26 Kan. App. 2d 685, Syl. ¶ 2, 994 P.2d 1072, rev. denied 268 Kan. 846 (1999).
On appeal, Dr. Riffel asserts the basis for the jury to assess fault against Michael was his failure to follow Dr. Riffel’s reasonable treatment advice. Kansas law recognizes a patient’s duty to follow reasonable directions and advice given to the patient by a héalth care provider. See Cox v. Lesko, 263 Kan. 805, 819-20, 953 P.2d 1033 (1998) (patient failed to complete her physician-ordered physical therapy); Wisker v. Hart, 244 Kan. 36, 39-41, 766 P.2d 168 (1988) (patient disregarded his physician’s warnings to refrain from strenuous work and returned to his physically demanding job soon after he suffered internal injuries in a motorcycle accident).
However, the evidence at trial supporting Dr. Riffel’s assertion that Michael failed to follow reasonable treatment advice was tenuous. The only specific evidence cited by Dr. Riffel to support this claim was Michael’s failure to keep his weight down and his failure to renew the phentermine prescription in 1998. The evidence was undisputed that Michael was overweight. However, the mere fact that Michael regained much of the weight that he had initially lost does not prove that Michael failed to follow Dr. Riffel’s treatment advice. To the contrary, the testimony supported the fact that Michael continued to watch his diet and exercised regularly. In fact, Dr. Riffel testified that Michael was an “excellent patient,” and Dr. Riffel was shocked when he learned of Michael’s death. Furthermore, Michael’s failure to renew his prescription for phentermine could hardly be considered as fault in light of the evidence that phentermine was contraindicated for individuals with cardiac disease.
During the closing argument, Dr. Riffel’s counsel never even asserted Michael was at fault for his injuries and death. To the contrary, defense counsel described Michael’s conduct as follows:
“What else is going on at that time with Michael Zak? He is starting to eat better, and I think we have heard it from just about every witness who knew him in this trial, including Dr. Riffel, he was exercising much, much more, which is also in and of itself good for the heart and good for a heart with left ventricular dysfunction.”
In summing up the case for the jury, defense counsel stated:
“I think we can conclude that nobody is at fault here. This was a death that was very unfortunate, tragic. Mr. Zak was taken way before his time, everybody agrees, but is it anybody’s fault? . . .
“And my suggestion to you would be that when you go back to the juiy room, that you answer question number one, no. No fault; nobody caused Michael Zak’s death. That’s the most appropriate and the fairest answer based on the evidence.”
Clearly Dr. Riffel’s trial strategy was to convince the jury that no one was at fault for Michael’s death. In any event, whether there was sufficient evidence at trial to support a comparison of fault between Michael and Dr. Riffel is not die issue in this appeal. The real question we must decide is whether Instruction No. 14 adequately apprised the jury of each party’s claims and affirmative defenses concerning fault. Regarding Dr. Riffel’s contentions, we conclude Instruction No. 14 was fatally defective in two respects. First, Instruction No. 14 failed to specify any allegations of fault on Michael’s part. Second, the instruction failed to set forth Dr. Riffel’s burden of proof on this issue.
Kathleen’s claims against Dr. Riffel were clearly identified in Instruction No. 14. She made three specific allegations of fault against Dr. Riffel. The instruction further informed the jury that Kathleen had the burden to prove that her allegations of fault were more probably true than not true. The instruction did not contain the same information regarding Dr. Riffel’s claims, if any, against Michael.
The instruction stated that “defendant asserts that the death of Michael Zak was not the result of, or caused by, any act or omission on the part of this defendant. Instead, the death of Michael Zak was the result of a pre-existing cardiomyopathy that was aggravated by Michael Zak’s obesity and lifestyle.” At best, this language constituted a claim that Michael’s death was caused by his obesity and lifestyle. However, causation is only one component of fault. The instruction did not include any specific allegations of fault against Michael which could be compared with the specific allegations of fault that had been made against Dr. Riffel. Although the juiy was informed in another instruction that a patient has a duty to follow his or her physician’s reasonable treatment advice, the juiy was not given any guidance in the instructions as to what advice Michael failed to follow. This problem was exacerbated by the fact that defense counsel never pointed to any specific allegations of fault against Michael during the closing argument.
More importantly, Instruction No. 14 was fatally defective because it failed to inform the jury that Dr. Riffel shouldered the burden of proof to establish Michael’s comparative fault. The trial court instructed the jury that Kathleen had the burden to prove her claims of fault against Dr. Riffel, but Instruction No. 14 never informed the jury that Dr. Riffel had a similar burden to prove any claim of fault against Michael. In another instruction, the jury was informed that “[a] party who has the burden of proof must persuade you that his claim is more probably true than not true.” However, this instruction would be meaningless to the jury unless at some point the jury was informed Dr. Riffel had the burden to prove his claims. This important information was not contained anywhere in the entire set of instructions given by the trial court, and this omission resulted in the instructions as a whole being clearly erroneous.
PIK Civ. 3d 106.01 provides that in outlining affirmative defenses, the defendant should “[s]et forth concisely the defendant’s specific grounds of negligence that are supported by the evidence.” Also, PIK Civ. 3d 106.01 includes a statement that “[t]he defendant has the burden to prove that any of (his) (her) claims of fault on the part of the plaintiff are more probably true than not true.” The use of PIK instructions by trial courts is strongly recommended. State v. Kleypas, 272 Kan. 894, 1035, 40 P.3d 139 (2001), cert. denied 537 U.S. 834 (2002), overruled on other grounds State v. Marsh, 278 Kan. 520, 102 P.3d 445 (2004).
Here, Instruction No. 14 did not include specific allegations of Michael’s fault, nor did it set forth Dr. Riffel’s burden of proof. The instructions as a whole were not substantially correct, and the jury could have reasonably been misled by them. We conclude the trial court committed reversible error in instructing the jury and, as a result, the case must be remanded for a new trial. Upon retrial, we make no determination whether Michael’s alleged fault can be compared with Dr. Riffel’s. That will depend on the evidence pre sented at trial. However, an assertion of fault based only upon Michael’s “obesity and lifestyle” would be legally deficient because that is what required Michael to seek medical care in the first place. Furthermore, if fault is to be compared, the trial court must correctly instruct the jury on the specific claims of fault by each party and the respective burdens of proof pursuant to PIK Civ. 3d 106.01.
Collateral source benefit
Kathleen also claims the trial court erred by admitting evidence of a $262,500 payment by BHA Group after Michael’s death because the admission of the evidence violated the collateral source rule. The trial court admitted the evidence for the limited purpose of laying a foundation for the defense to cross-examine Dr. Ward about his report. We will address this issue because it is likely to be raised upon a retrial of the case.
Generally, the admission of evidence lies within the sound discretion of the trial court. An appellate court’s standard of review regarding a trial court’s admission of evidence is abuse of discretion. Wendt v. University of Kansas Med. Center, 274 Kan. 966, 975, 59 P.3d 325 (2002). An abuse of discretion must be shown by the party attacking the evidentiary ruling and exists only when no reasonable person would take the view adopted by the trial court. Jenkins v. T.S.I. Holdings, Inc., 268 Kan. 623, 633-34, 1 P.3d 891 (2000). However, an abuse of discretion has occurred where the trial court clearly erred or ventured beyond the limits of permissible choice under the circumstances. Unwitting Victim v. C.S., 273 Kan. 937, 944, 47 P.3d 392 (2002).
“ ‘The collateral source rule provides that benefits received by the plaintiff from a source wholly independent of and collateral to the wrongdoer will not diminish the damages otherwise recoverable from the wrongdoer.’ ” Farley v. Engelken, 241 Kan. 663, 666, 740 P.2d 1058 (1987) (quoting Allman v. Holleman, 233 Kan. 781, Syl. ¶ 8, 667 P.2d 296 [1983]). The purpose of the collateral source rule is to prevent the tortfeasor from escaping full liability resulting from his or her actions by requiring the tortfeasor to compensate the injured party for all of the harm, not just the net loss. Rose v. Via Christi Health System, Inc., 276 Kan. 539, 544, 78 P.3d 798 (2003), modified on rehearing 279 Kan. 523, 113 P.3d 241 (2005).
“A benefit secured by the injured party either through insurance contracts, advantageous employment arrangements, or gratuity from family or friends should not benefit the tortfeasor by reducing his or her liability for damages. If there is to be a windfall, it should benefit the injured party rather than the tortfeasor.” (Emphasis added.) 276 Kan. at 544.
Dr. Riffel disputes the fact that the $262,500 payment from BHA Group to Kathleen constituted a collateral source payment and claims this was a factual issue for the jury to decide. He argues BHA Group’s promise that Michael’s salary would be continued for 1 year from the date of his death indicated that the payment was compensation to Michael rather than a death benefit. He also points to the fact that the payment was recorded in the company . books as a payment from a “bonus account,” to which payments of cash bonuses to employees were ascribed.
However, it was die trial court’s function to determine whether the payment received by Kathleen constituted collateral source evidence. The testimony established that both BHA Group and Kathleen considered the payment to be a death benefit. It was irrelevant whether the payment was based upon BHA Group’s promise to continue Michael’s salary for 1 year from the date of his death. Even if this evidence is taken at face value, it was apparent that the payment was not compensation earned by Michael during his lifetime. Rather, it was a benefit paid upon his death. Furthermore, it was irrelevant whether the payment was voluntary or an obligation. The collateral source rule applies to payments received gratuitously as well as those received as a result of an obligation. Johnson v. Baker, 11 Kan. App. 2d 274, 278, 719 P.2d 752 (1986). The evidence was undisputed that the $262,500 payment was a death benefit received by Kathleen as a result of an advantageous employment arrangement between BHA Group and Michael. This constituted inadmissible collateral source evidence as a matter of law. See Rose, 276, Kan. at 544.
Dr. Riffel also asserts that the evidence of the $262,500 payment was admissible to impeach the credibility of Dr. Ward because he had failed to account for the payment in his damages calculations. According to Dr. Riffel, this omission provided evidence that Dr. Ward’s calculations were biased and not credible.
Dr. Riffel is correct in asserting that although evidence of a collateral source payment is generally inadmissible as a matter of law, such evidence may be admissible if it “ ‘carries probative value on an issue not inherently related to measurement of damages.’ [Citation omitted.]” Wentling v. Medical Anesthesia Services, 237 Kan. 503, 515, 701 P.2d 939 (1985). Apparently the trial court adopted this reasoning when it ruled that evidence of the $262,500 payment would be admissible for the limited purpose of laying a foundation for the defense to impeach Dr. Ward.
Prior to allowing the jury to hear evidence of the $262,500 payment, the trial judge gave the following limiting instruction to the jury:
“Members of the jury, we are about to receive some evidence which is going to be received for a limited purpose only. This is evidence concerning some compensation that was paid by Mr. Zak’s employer to Ms. Zalc as his surviving spouse, and this evidence is being introduced, and I’m permitting it to be introduced solely for the purpose of being used in examination of an expert witness that’s going to testify tomorrow, and it toill become apparent which expert witness and what . . . [it’s] being considered for when it happens.
“This evidence is not being admitted for the purpose of permitting you to understand or in any way diminish or reduce the economic losses suffered by Ms. Zak, if any, as a result of Mr. Zak’s death due to the negligence of the defendant.
“In other words, later in this case you are going to have to determine the amount of damages that the plaintiff has suffered because of the negligence of the defendant and to the extent that you determine those amounts, this evidence is not being offered. It’s being offered but not being received for the purpose of using that to reduce or to diminish the amount of damages that you may find Ms. Zak may be recovering.
“It’s only being used and received for the purpose of laying a foundation for some questions and calculations made by an expert witness who is going to testify presumably tomorrow, and so you are to consider it, and remember that it’s being received only for that purpose.” (Emphasis added.)
After evidence regarding the payment was presented to the jury, the trial judge again admonished the jury:
“Members of the jury, these two exhibits that we have just been talking about, Exhibits 139 and 140, were received in evidence by me earlier this afternoon for the limited purposes that I have talked about before. They are merely being introduced for the purpose of laying a foundation to determine some calculations that have been made by an expert witness who will testify tomorrow. They are not received for the purpose of presenting evidence to diminish tire amount of economic loss, if any, that the plaintiff has suffered as a result of the defendant’s negligence.”
The problem in this case is that the limited purpose for which the trial court admitted the collateral source evidence never became clear to the jury. After successfully convincing the trial court that the evidence of the payment should be admitted for the limited purpose of impeaching Dr. Ward, defense counsel failed to use the evidence for this purpose. Dr. Ward was never cross-examined about the $262,500 payment. After evidence of the payment was initially presented to the juiy, the subject was not addressed throughout the remainder of the trial. Although the trial court had admonished the jury that it was hearing the evidence for a limited purpose that would “become apparent” in later testimony, no evidence was ever presented for the jury to malee a connection. The jury could only have been confused by the limiting instruction given by the court.
Furthermore, the evidence of the $262,500 payment had no probative value on any issue other than the measurement of damages. As previously discussed, the question of whether the payment was compensation or a death benefit was not a factual issue for the jury to decide. The payment was collateral source evidence as a matter of law. Dr. Ward was correct in not including the payment in his calculations, and his failure to do so could not have properly been used to show bias by Dr. Ward. Thus, although collateral source evidence may be admissible in certain instances if relevant to an issue other than the measurement of damages, this case does not present such an instance.
Finally, Dr. Riffel argues that Kathleen should have filed a motion to strike the testimony regarding the $262,500 payment once Dr. Ward was not cross-examined on the issue. However, the burden was not on Kathleen to file such a motion, and it may have only caused further prejudice by reemphasizing the collateral source evidence. Furthermore, Instruction No. 5A, which instructed the jury that evidence admitted for one purpose should not be considered for any other purpose, did not cure the error because the limited purpose that the evidence was admitted in this case never became clear to the jury.
We conclude the $262,500 payment from BHA Group to Kathleen constituted inadmissible collateral source evidence as a matter of law. The trial court abused its discretion in admitting this evidence. Upon retrial, the evidence should not be admitted even for the limited purpose of impeaching Dr. Ward.
We recognize that Kathleen has raised other significant issues on appeal. Because we are already remanding this case for a new trial, we will not address the remaining issues.
Reversed and remanded. | [
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Marquardt, J.:
Norman Goodman appeals the trial court’s grant of summary judgment to the Kansas Department of Transportation (KDOT), E. Dean Carlson, the Secretary of KDOT, and KDOT, d/b/a Kansas Operation Lifesaver. We affirm.
On November 23, 1999, a train owned by Union Pacific struck Goodman’s vehicle at a railroad grade crossing located in Brown County. Goodman was injured. On November 15,2001, Goodman filed a lawsuit alleging that Union Pacific and its employees had been negligent in maintaining and operating a train crossing, had engaged in fraudulent behavior by misrepresenting facts as part of its public relations campaign, and had made fraudulent reports. Goodman alleged that KDOT and Carlson were negligent because they breached their duties to administer federal funding in compliance with 23 U.S.C. § 130(d) (2000), 23 U.S.C. §109(e) (2000), 23 C.F.R. § 646.214, and 49 U.S.C. § 20106 (2000), and they also failed to install adequate warning devices at the crossing. Goodman also alleged that Kansas Operation Lifesaver, operated by KDOT, disseminated misinformation about the safety risks involved at train crossings, and those misrepresentations created an increased risk of harm which contributed to his accident.
After Goodman settled with Union Pacific, L.D. Howe, and B.K. Lewis, the remaining defendants, KDOT, Carlson, and KDOT, d/b/a Kansas Operation Lifesaver (hereinafter referred to collectively as KDOT), filed a motion for summary judgment.
On April 2, 2004, the trial court granted summary judgment to KDOT. The trial court found that KDOT had complied with 23 U.S.C. § 130(d), and that 23 U.S.C. § 109(e) and C.F.R. § 646.214 were not applicable to this case. The trial court also found there was no legal basis for Goodman’s claim that KDOT was negligent for failing to monitor Union Pacific’s activities at the crossing or the claims regarding Operation Lifesaver. Goodman timely appeals.
Summary judgment is appropriate 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. Bracken v. Dixon Industries, Inc., 272 Kan. 1272, 1274-75, 38 P.3d 679 (2002). On appeal, we apply the same rules, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 (1999). Where there is no factual dispute, appellate review of an order regarding summary judgment is de novo. Duarte v. DeBruce Grain, Inc., 276 Kan. 598, 602, 78 P.3d 428 (2003).
Goodman is pursuing a claim against KDOT for failing to follow 23 C.F.R. § 646.214(b)(3) after expending federal funds at the railroad crossing, and negligence on the theory that KDOT breached a duty which it assumed by reviewing the crossing and slating it for improvements.
23 C.F.R. § 646.214 (b)(3)(I) states, in pertinent part:
“Adequate warning devices, under Sec. 646.214(b)(2) or on any project where Federal-aid funds participate in the installation of the devices are to include automatic gates with flashing light signals when one or more of the following conditions exist:
(A) Multiple main line railroad tracks.
(B) Multiple tracks at or in the vicinity of the crossing which may be occupied by a train or locomotive so as to obscure the movement of another train approaching the crossing.
(C) High Speed train operation combined with limited sight distance at either single or multiple track crossings.
(D) A combination of high speeds and moderately high volumes of highway and railroad traffic.
(E) Either a high volume of vehicular traffic, high number of train movements, substantial numbers of schoolbuses or trucks carrying hazardous materials, unusually restricted sight distance, continuing accident occurrences, or any combination of these conditions.
(F) A diagnostic team recommends them.”
This regulation was adopted by the United States Secretary of Transportation to implement 23 U.S.C. § 130, known as the Federal Railway-Highway Crossings Program. The Crossings Program was created by the Highway Safety Act of 1973. See Norfolk Southern Railway Co. v. Shanklin, 529 U.S. 344, 347-349, 146 L. Ed. 2d 374, 120 S. Ct. 1467 (2000).
The question in this case is whether 23 C.F.R.-§ 646.214(b)(3) and its enabling legislation, 23 U.S.C. § 130, create an implied private right of action. In Gonzaga Univ. v. Doe, 536 U.S. 273, 153 L. Ed. 2d 309, 122 S. Ct. 2268 (2002), the United States Supreme Court discussed a number of recent court opinions which had considered the issue of whether Congress intended to create a private right of action under Spending Clause statutes. The Court noted that it had only found spending legislation to give rise to enforceable rights on two occasions since 1981. 536 U.S. at 280.
The Gonzaga Court noted that the first step in determining whether a private right of action can be implied from a particular statute is to determine whether Congress intended to create such a right. When a statute by its terms does not grant a private right to any identifiable class, there is no private right of action. 536 U.S. at 283-84. For a statute to create a private right, its text must be written in terms of the persons benefitted. Some examples of text from statutes conferring a federal right are: “No person in the United States shall... be subjected to discrimination .... [Citation omitted.]”; “No person in the United States shall, on the basis of sex, ... be subjected to discrimination .... [Citation omitted.]” 536 U.S. at 284 n.3.
Like substantive federal law itself, private rights of action to enforce federal law must be created by Congress. Alexander v. San doval, 532 U.S. 275, 286, 149 L. Ed. 2d 517, 121 S. Ct. 1511 (2001). To determine whether a private right of action exists, the statute passed by Congress must be examined to determine whether it displays an intent to create not only a private right, but also a private remedy. Statutory intent is determinative. 532 U.S. at 286. Without statutory intent to create a private remedy, a cause of action does not exist and the courts may not create one regardless of how desirable it may be as a policy matter or how compatible it would be with the statute. 532 U.S. at 286-87. A statute must evince congressional intent to create new rights, it is not enough to look at who would benefit from the statute; the statute must demonstrate intent to confer federal rights on those beneficiaries. California v. Sierra Club, 451 U.S. 287, 294, 68 L. Ed. 2d 101, 101 S. Ct. 1775 (1981).
In filis case, the enabling statute for 23 C.F.R. § 646.214(b)(3) is 23 U.S.C. § 130, titled “Federal Railway-Highway Crossings Program.” Shanklin, 529 U.S. at 348.
23 U.S.C. § 130 was intended to help states finance improvements to railway-highway crossings. Although the statute is intended to increase safety, it is not designed to create a federal right for anyone who might be injured at a railway-highway crossing. Furthermore, the purpose of regulations governing railroad-highway projects “is to prescribe policies and procedures for advancing Federal-aid projects involving railroad facilities.” 23 C.F.R. § 646.200(a). The standards for implementing grade crossing improvements, including the standards for adequate warning devices, are in 23 C.F.R. § 646.214(b).
Goodman argues that the states are responsible for making improvements and following federal regulations at federally funded crossings. Goodman cites Ball v. Burns & McDonnell, 256 Kan. 152, 162, 883 P.2d 756 (1994), for support; however, the issue in Ball involved a different subsection of the regulation, 23 C.F.R. § 646.214(b)(2). The Ball court stated that unlike § 646.214(b)(3), § 646.214(b)(2) did not create a mandatory duty on the states. 256 Kan. at 161-62. The Ball court cited CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 123 L. Ed. 2d 387, 113 S. Ct. 1732 (1993), as authority for the proposition that 23 U.S.C. § 130(d) and 23 C.F.R. § 646.214(b)(3) impose a duty on the states. 256 Kan. at 160. However, even if Shanklin and Easterwood are read as requiring the states to take responsibility for federally funded crossings, it does not mean that motorists like Goodman would be entitled to sue for damages. None of these cases discussed that issue. Furthermore, “ ‘[i]n legislation enacted pursuant to the spending power, the typical remedy for state noncompliance with federally imposed conditions is not a private cause of action for noncompliance but rather action by the Federal Government to terminate funds to the State.’ [Citation omitted.]” Gonzaga, 536 U.S. at 279-80.
23 U.S.C. § 130 and 23 C.F.R. § 646.214(b)(3) do not demonstrate congressional intent to create a federal right and private remedy for persons injured in railway-highway accidents.
Goodman argues that KDOT assumed a duty to install adequate warning devices at the crossing by reviewing the crossing and slating it for improvements. He argues that once KDOT assumed this duty, it was negligent for failing to make the improvements.
Goodman cites to several Kansas cases, including Schmeck v. City of Shawnee, 232 Kan. 11, 26, 651 P.2d 585 (1982), to demonstrate that the Restatement (Second) of Torts §324A (1965) has been applied in Kansas for years. This section of the Restatement reads:
“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for tire protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.” Restatement (Second) of Torts § 324A.
We must analyze Goodman’s argument to determine whether KDOT assumed a duty to improve the crossing. The assessment of the crossing at issue in this case was part of the 23 U.S.C. §130 corridor project. Section 130 requires states to conduct surveys of crossings as part of the program; it does not impose on KDOT a duty to motorists simply by surveying the crossing.
Goodman’s own account of the accident belies his claim that KDOT’s failure to install stop signs and pavement improvements caused his injury. Goodman was familiar with the road, having used the crossing on a weekly basis for several years. On the day of the accident, Goodman slowed to a near stop before reaching the first track and looked for an approaching train. Goodman stated that he did not see or hear the approaching train, though it was less than 100 feet (1.6 seconds) away. The existence of stop signs would not have prevented this accident. Goodman’s testimony does not show drat KDOT’s failure to install stop signs caused his injury.
When construed in a light most favorable to Goodman, the evidence does not establish that KDOT assumed a duty to improve the crossing, or that the failure to implement the improvements caused Goodman’s injuiy. The trial court did not err in granting summary judgment to KDOT.
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Caplinger, J.:
Shirley Sutton appeals the district court’s grant of summary judgment in favor of die defendants in this action to recover real property. Shirley contends the district court incorrectly applied the 2-year statute of hmitations for fraud, K.S.A. 2004 Supp. 60-513(a)(3), instead of the 15-year limitation period for actions for recovery of real property, K.S.A. 60-507. We hold that although Shirley did not specifically plead for relief on the basis of fraud, her action is based on a conveyance of title perpetrated by alleged fraud. Thus, the trial court correctly held that Shirley must first nullify the alleged fraudulent conveyance within 2 years from the time the fraud was, or should have been, discovered pursuant to K.S.A. 2004 Supp. 60-513(a)(3). We further conclude the district court properly determined as a matter of law that Shirley failed to bring her action within 2 years of the time she knew or should have known of the alleged fraud, and summary judgment was thus appropriate.
Background
In 1979, William and Shirley Sutton lived on 160 acres of real estate located in Douglas County. The property was owned by William’s mother, Loretta Sutton. On December 19, 1979, Loretta contracted to sell the property to William and Shirley for $90,000, less a $25,500 down payment. The contract required yearly payments by William and Shirley to Loretta until the balance of the contract was paid in full. On that same date, Loretta deeded the real estate to William and Shirley.
William and Shirley made none of the required payments on the contract but continued to live on the property. In 1994, Loretta’s attorney drafted a deed to transfer the real estate back to Loretta from William and Shirley in exchange for cancellation of the debt. The deed was not executed, however, until Shirley was admitted to Lawrence Memorial Hospital for a serious medical condition in May 1995. William and Shirley did not have health insurance to cover the looming medical expenses and were concerned that their creditors could take the real property from them if they defaulted on their medical debts.
To solve this perceived issue, William asked Shirley to sign the deed that Loretta’s attorney had prepared in 1994, transferring the real property back to Loretta. Shirley alleges William claimed the transfer would only be temporary. In any event, Shirley agreed to sign the deed and the real property was deeded back to Loretta on May 8, 1995.
Loretta deeded the real property to the Loretta Sutton Trust in July 1995. Five years later, in October 2000, William became sole beneficiary of the trust.
Sometime in 2003, Loretta died, having never deeded the real property back to William and Shirley. In late 2003, William filed for divorce from Shirley. On January 23, 2004, Shirley filed this separate action against William and William’s sister, Jane Buttenhoff, the trustee of the Loretta Sutton trust, in an attempt to bring the real property into the marital estate. Shirley alleged the deed was invalid because she lacked mental capacity to execute the deed at the time it was signed, and also that her signature on the deed was procured by undue influence and misrepresentations.
The parties were granted a divorce, and in the memorandum decision in the divorce action, the district court ruled that it retained jurisdiction over the real estate for possible later distribution, after the resolution of the action for recovery of real property.
Shirley’s separate action for recovery of the real property proceeded through discovery. William Sutton and the trustee eventually filed a motion for summary judgment in that action, alleging inter alia, that the action was barred by the expiration of the statute of hmitations. The district court granted summaiy judgment in favor of William and the trustee, and Shirley appeals.
Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. On appeal, a reviewing court applies the same rules and where the reviewing court finds reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. Bracken v. Dixon Industries, Inc., 272 Kan. 1272, 1274-75, 38 P.3d 679 (2002).
Statute of limitations
The district court applied the 2-year statute of hmitations for actions sounding in fraud pursuant to K.S.A. 2004 Supp. 60-513(a)(3). On appeal, Shirley contends that because her action is one for recovery of real property, the district court should have apphed the 15-year statute of hmitations provided for in K.S.A. OO-SO?. However, “[t]he mere fact that an action pertains to real estate does not necessarily constitute it an action for the recovery of real estate.” Herthel v. Barth, 148 Kan. 308, 81 P.2d 19 (1938).
We agree with the defendants that the facts of this case closely resemble those before the court in Foy v. Greenwade, 111 Kan. 111, 206 Pac. 332 (1922). There, the plaintiff alleged that through false representations, the defendant fraudulently induced her to sign a quitclaim deed for her interest in certain real property. Like the plaintiff here, the plaintiff in Foy argued the 2-year statute of limitations did not apply because the action was essentially one for the recovery of real estate. The court disagreed and held:
“[Pjlaintiff must get rid of his deed of 1912 before he can successfully maintain his claim to the real estate . . . [but] the relief must be invoked according to the statute. The statute says two years is the limitation for an action for relief on the ground of fraud. Plaintiff has waited seven years — on the theory perhaps that he has fifteen years. He would have fifteen years if he had given no title; but having given title, he does not have fifteen years to get rid of his conveyance; he only has such time as the statute allows — two years. Once rid of the alleged fraudulent conveyance he might wait as long as he chose to recover his interest in the property, not exceeding fifteen years.” 111 Kan. at 118.
Thus, to maintain an action for recovery of real property based on a conveyance of title perpetrated through fraud, a plaintiff must first nullify the fraudulent conveyance before attempting to recover the real property. The suit to nullify the fraudulent conveyance, however, must be brought within the appropriate time frame for such actions, i.e., 2 years from the time the fraud was or should have been discovered, as set forth in K.S.A. 2004 Supp. 60-513(a)(3). While the suit to nullify the fraudulent conveyance and for recovery of an interest in the property may be combined in one action, “the second count to recover the property has no standing until the matter of title is disposed of.” 111 Kan. at 118.
Shirley attempts to circumvent this rule by suggesting she did not plead for relief on the basis of fraud. As the district court accurately pointed out, however: “While plaintiff did not specifically mention fraud as a cause of action, [the court] can look beyond what was pleaded to the real issue involved. . . . Both misrepresentation and undue influences' are claims based in fraud.” The district court here based its ruling on Herthel v. Barth, 148 Kan. 308. There, our Supreme Court relied upon Foy to conclude: “Looking beyond the mere form of the action and to the real issue involved, we find the gist of the action was relief on the ground of fraud.’ ” Herthel, 148 Kan. at 312.
Shirley argues King v. Robbins, 193 Kan. 70, 392 P.2d 154 (1964), is more analogous to the facts here. King, however, dealt with a conveyance based on an oral contract, which the plaintiffs did not allege was fraudulent. Significantly, the court in King distinguished Herthel, and as a consequence, distinguished Foy, upon which Herthel relied. Thus, we believe Foy, not King, guides the outcome of this case.
We conclude the district court correctly held that Shirley was required to bring that portion of her action alleging a fraudulent conveyance within 2 years from the point the fraud was discovered or should have been discovered. We thus affirm the district court’s application of the 2-year statute of limitations for actions based on fraud.
Application of the discovery rule
Shirley briefly suggests that even if the 2-year statute of limitations applies, she did not discover the fraud until the divorce was filed, and thus the statute did not begin to run until that time. The basis for this argument is not at all clear from Shirley’s appeal brief, as the only factual support she offers for this contention is that she “continued to live on the land, enjoy the land, [and] profit from the land,” until the divorce was filed. The district court essentially interpreted Shirley’s claim to be that she was misled by William into believing the property would be transferred back after she recovered from the illness for which she was hospitalized, and after the medical bills were paid. Further, the district court believed Shirley to be contending that she relied upon William’s alleged representation that the transfer was temporary.
K.S.A. 2004 Supp. 60-513(a)(3) states that an action for relief on the ground of fraud must be brought within 2 years, but the cause of action shall not be deemed to have accrued until the fraud is discovered. Our Supreme Court has held that the phrase “the cause of action shall not be deemed to have accrued until the fraud is discovered” does not necessarily mean until the party complaining had actual notice of the fraud alleged to have been committed. Rather, constructive notice of the fraud is sufficient to set the statute in motion even though there may be no actual notice. Armstrong v. Cities Service Gas Co., 210 Kan. 298, 310, 502 P.2d 672 (1972).
It is uncontroverted that Shirley knew and understood that she had signed a deed transferring the real estate to Loretta on May 8, 1995. It is also uncontroverted that although Shirley claims she lost her mental capacity to execute the deed due to her hospital stay, she regained her mental capacity when she was discharged from the hospital a few days later. Moreover, from the time Shirley signed the deed to the filing of the divorce, Shirley knew that Loretta was the record owner of the property, regardless of the fact that she and William continued to live on the property. Arguably, tírese facts alone are sufficient to establish that Shirley had constructive notice of the alleged fraud, at the very latest, when she was discharged from the hospital in 1995.
While Shirley alleges she did not initially know that the property would have been protected from creditors despite unpaid medical bills, the record reveals that Shirley learned a few years after the property was deeded to Loretta that the property would have been protected. Moreover, the record reveals that Shirley was not concerned, even after the medical bills were paid a few years after she was in the hospital, that the property had not been deeded back. Rather, Shirley testified in her deposition that even after the medical bills were paid, and even after she was aware the property would have been protected, she simply did not “think about it.”
The district court found that the only possible material controverted fact concerned whether Shirley believed, based upon William’s representations, that the transfer of the deed was only temporary. The district court reasoned: “This particular point is the only possible point where there may be a genuine issue of material fact as to how long a reasonable person would consider a ‘temporary’ transaction to last.” The district court held, however, that “as a matter of law, this Court believes that the seven years, plus the two years for the statute of limitations, goes well beyond any definition of ‘temporary.’ ”
We agree with the trial court that as a matter of law, a reasonable person would not have waited 9 years to question why a “temporary” transfer was not temporaiy at all. This is particularly true when the plaintiff had knowledge within a few years of the transfer that the asserted basis for the transfer, i.e., protecting the couple’s property from creditors based upon unpaid medical bills, was no longer at issue.
We conclude that Shirley had constructive notice of the alleged fraud, at the very latest, within a few years of May 1995, when the deed was transferred. Thus, the 2-year statute of limitations ran long before Shirley filed this action in January 2004. Accordingly, we affirm the trial court’s grant of summary judgment based upon the expiration of the 2-year statute of limitations for fraud, K.S.A. 2004 Supp. 60-513(a)(2).
Finally, while we do not remand this action to the district court, we note that the district court retained jurisdiction of the real estate in the parties’ divorce action for possible later distribution after the resolution of this action for recovery of real property.
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Malone, J.:
Michael S. Hayes appeals the district court’s dismissal of his K.S.A. 2004 Supp. 60-1507 motion. The district court ruled the motion was barred by the 1-year statute of limitations at K.S.A. 2004 Supp. 60-1507(f), which became effective on July 1, 2003. L. 2003, ch. 65, sec. 1. We hold the 1-year statute of limitations at 60-1507(f) begins to run for preexisting claims on the date the statute became effective. Because Hayes filed his 60-1507 motion on November 25, 2003, the district court erred in dismissing the motion based upon the statute of limitations.
The facts are undisputed. Hayes was convicted of first-degree murder, aggravated robbery, and conspiracy to commit robbery. He appealed to the Kansas Supreme Court, which affirmed the convictions on December 8, 1995. State v. Hayes, 258 Kan. 629, 908 P.2d 597 (1995).
On November 25, 2003, Hayes filed a pro se 60-1507 motion. The motion alleged (1) the trial court erred in denying his motion for change of venue; (2) his trial counsel was ineffective; (3) prosecutorial misconduct; (4) the trial court erred in not instructing the jury on lesser included offenses; and (5) because he was only 17 years old when convicted and could not find legal assistance, it would be manifest injustice for the court to dismiss his motion as untimely. Upon receiving the motion, the district court appointed counsel to represent Hayes.
The State filed a motion to dismiss and argued Hayes’ motion was untimely under 60-1507(f) because more than 1 year had elapsed since Hayes’ convictions had been affirmed by the Kansas Supreme Court. Hayes filed a memorandum in opposition to the State’s motion to dismiss. Hayes argued the 1-year time limitation should be extended pursuant to 60-1507(f)(2) to prevent a manifest injustice.
The district court granted the State’s motion to dismiss. The district court determined Hayes’ motion was untimely under 60-1507(f)(1) because the motion was not filed within 1 year of the final order of the Kansas Supreme Court affirming Hayes’ convictions. The district court also found Hayes’ pleadings failed to disclose any facts or issues which were not known or available to Hayes within 1 year of the Supreme Court’s decision. The district court stated “even a claim of ‘manifest injustice’ needs to be timely pursued” and concluded Hayes had failed to do so. Hayes timely appeals.
On appeal, Hayes claims the district court should have considered his motion pursuant to 60-1507(f)(2), which authorizes extension of the 1-year time limitation in order to prevent a manifest injustice. Before we address this issue, however, we must first consider whether the district court erred in determining Hayes’ motion was untimely under 60-1507(f)(l). Interpretation of a statute is a question of law over which an appellate court has unlimited review. Dougan v. Rossville Drainage Dist., 270 Kan. 468, 472, 15 P.3d 338 (2000).
K.S.A. 2004 Supp. 60-1507(f), which became effective July 1, 2003, states:
“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.”
Although not specifically addressed by the district court, the real question in this case is how 60-1507(f) should be applied to Hayes’ preexisting claim. There is no language in 60-1507(f) indicating whether the legislature intended the amendment to apply prospectively or retroactively. As a general rule, a statute operates prospectively unless its language clearly indicates the legislature intended it to operate retroactively. Owen Lumber Co. v. Chartrand, 276 Kan. 218, 220, 73 P.3d 753 (2003). An exception to this rule has been recognized where a statutory change is procedural or remedial in nature and does not prejudice the parties’ substantive rights. State v. Martin, 270 Kan. 603, 609, 17 P.3d 344 (2001). Procedural statutes generally concern the manner and order of conducting lawsuits, while substantive statutes establish the rights and duties of the parties. If an amendment to a procedural statute does not prejudice the substantive rights of a party, all actions generally will be subject to the new procedure whenever they accrued or were instituted. In re Tax Grievance Application of Kaul, 269 Kan. 181, 184, 4 P.3d 1170 (2000).
There is no Kansas case which addresses how 60-1507(1) should be applied to preexisting claims. However, we can examine similar legislative efforts to impose time limitations on post-conviction actions in order to ascertain how 60-1507(f) should be applied to Hayes’ case.
In 1994, the Kansas Legislature amended K.S.A. 60-1501, adding a requirement that an inmate “file a petition for writ pursuant to subsection (a) within 30 days from the date the action was final, but such time is extended during the pendency of the inmate’s timely attempts to exhaust such inmate’s administrative remedies.” L. 1994, ch. 227, sec. 3. This provision became effective on July 1, 1994.
In Peters v. Kansas Parole Board, 22 Kan. App. 2d 175, 179-80, 915 P.2d 784 (1986), an inmate filed a petition for writ of habeas corpus pursuant to K.S.A. 60-1501 on August 8, 1994. The inmate claimed he was wrongfully denied parole by the Kansas Parole Board (KPB), whose administrative decision became final on June 10, 1994. The KPB filed a motion to dismiss the petition as untimely. The district court agreed and dismissed the petition because it was not filed within 30 days of the final action by the KPB. 22 Kan. App. 2d at 177.
On appeal, the court concluded that for preexisting claims, the 30-day limitation period began to run on the date the statute became effective. Thus, for a cause of action under K.S.A. 60-1501 that accrued prior to July 1, 1994, but had not yet been filed by that date, a petition for writ of habeas corpus would not become time barred until 30 days after July 1,1994. However, because the inmate’s petition was filed beyond that date, the court affirmed the dismissal of the action. 22 Kan. App. 2d at 180.
In making this determination, the court relied on In re Estate of Forrester, 13 Kan. App. 2d 98, 762 P.2d 198, rev. denied 244 Kan. 737 (1988), which held that a shortened statute of limitations controlled if there was reasonable time to file the petition before expiration of the shortened limitation period. The court also relied on Superior Engraving Co. v. National Labor Rel. Bd., 183 F.2d 783, 789 (7th Cir. 1950), cert. denied 340 U.S. 930 (1951), where tire Seventh Circuit held that “ where a statute creates a period of hmitations where none had previously existed, the period will begin to run with respect to preexisting claims, on the effective date of tire statute.’ ” 22 Kan. App. 2d at 179.
Similarly, in 1996 Congress amended federal habeas corpus litigation by implementing a statute of limitations. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) imposed a 1-year statute of limitations on habeas corpus petitions filed by state prisoners in federal court. 28 U.S.C. § 2244(d)(1) (2000); Pace v. DiGuglielmo, 544 U.S. 408, 410, 161 L. Ed. 2d 669, 125 S. Ct. 1807 (2005).
After AEDPA’s implementation, the federal courts determined that the 1-year statute of hmitations could not be applied retro actively to bar habeas corpus claims of prisoners whose convictions or sentences technically became final before the effective date of AEDPA. See, e.g., Malcom v. Payne, 281 F.3d 951, 955 (9th Cir. 2002); Rogers v. United States, 180 F.3d 349, 354 (1st Cir. 1999), cert. denied 528 U.S. 1126 (2000); Hoggro v. Boone, 150 F.3d 1223, 1225-26 (10th Cir. 1998); Brown v. Angelone, 150 F.3d 370, 374-75 (4th Cir. 1998); Miller v. Marr, 141 F.3d 976, 978 (10th Cir.), cert. denied 525 U.S. 891 (1998); United States v. Flores, 135 F.3d 1000, 1002-05 (5th Cir. 1998); Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998); Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir. 1996), rev’d on other grounds 521 U.S. 320, 138 L. Ed. 2d 481, 117 S. Ct. 2059 (1997). Thus, the federal courts determined that AEDPA’s statute of limitations created in 28 U.S.C. § 2244 did not bar federal habeas corpus petitions filed within 1 year after April 24, 1996, the effective date of AEDPA. See Hoggro, 150 F.3d at 1225-26. The courts reasoned that to apply the limitation retroactively would be entirely unfair and a severe instance of retroactivity. See, e.g., United States v. Simmonds, 111 F.3d 737, 745 (10th Cir. 1997), overruled on other grounds United States v. Hurst, 322 F.3d 1256, 1261 (10th Cir. 2003). According to Simmonds:
“[A] new time limitation cannot be so unfairly applied to bar a suit before the claimant has had a reasonable opportunity to bring it. Indeed, the Supreme Court has explained:
“ ‘It may be properly conceded that all statutes of limitation must proceed on the idea that the party has full opportunity afforded him to try his right in the courts. A statute could not bar the existing rights of claimants without affording this opportunity; if it should attempt to do so, it would not be a statue of limitations, but an unlawful attempt to extinguish rights arbitrarily, whatever might be the purport of its provisions. It is essential that such statutes allow a reasonable time after they take effect for the commencement of suits upon existing causes of action ....”’ 111 F.3d at 745 (citing Texaco, Inc. v. Short, 454 U.S. 516, 527 n.21, 70 L. Ed. 2d 738, 102 S. Ct. 781 [1982]).
Although the time limitation in K.S.A. 2004 Supp. 60-1507(f) could be considered a procedural amendment, it cannot be applied retroactively if doing so would violate an individual’s substantive rights. Cf., Kaul, 269 Kan. at 184. A reasonable time must be given after implementation of a statute of limitations for individuals to bring preexisting claims. In line with Peters, which interpreted the amendment to K.S.A. 60-1501, and the federal cases which interpreted the AEDPA limitation period, it would seem reasonable for this court to determine that Hayes had 1 year from the effective date of the 2003 amendment to file his 60-1507 motion.
As stated, the 2003 amendment to K.S.A. 60-1507 became effective on July 1, 2003. Thus, given a 1-year “grace period,” Hayes had until June 30, 2004, to file his motion. Hayes filed his motion on November 25, 2003. Therefore, the trial court erred in dismissing his motion as untimely under 60-1507(f)(l). As a result of this conclusion, we do not need to address Hayes’ argument that the time limitation should have been extended under 60-1507(f)(2) to prevent a manifest injustice.
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McAnany, J.:
Joey Herndon appeals from his jury convictions of aggravated endangering a child, discharging a firearm at an occupied vehicle, discharging a firearm at an unoccupied dwelling, and two counts of aggravated assault. The district court sentenced Herndon to 38 months in prison. On appeal, Herndon contends: (1) insufficient evidence supported his conviction for aggravated endangering a child; (2) the district court erred by denying his motion to suppress; (3) the prosecutor committed reversible misconduct by referring to an uncharged crime; (4) cumulative trial errors deprived him of a fair trial; and (5) the district court violated his Sixth and Fourteenth Amendment rights by using his prior convictions to increase his sentence without proving them to a jury beyond a reasonable doubt.
Here is the evidence that led to these convictions. Herndon and Tracy Waller had been friends for over 20 years. In May 2011, Herndon was homeless and needed a place to stay. Waller invited Herndon to move into his home in Chanute. This living arrangement ended in about January or February 2012 when Waller evicted Herndon for selling drugs at the house. Thereafter, Herndon and Waller ran into each other occasionally at local taverns,- but they were no longer friends.
On the afternoon of March 14, 2013, Waller and his girlfriend, Wanda Fry, were driving in Frys extended cab pickup truck to a Sonic Drive-In in Chanute. Fry was driving, Waller was seated in the front passenger seat, and Frys 9-year-old son, who is disabled and unable to speak, was in a car seat in the middle backseat.
Fry approached an intersection and stopped. Herndon approached from another direction driving his girlfriends gray BMW Z3 convertible. As he turned at the intersection, Herndon waived his arms and began yelling and making profane gestures toward Frys pickup truck. Fry followed Herndon on South Steuben Avenue.
When Fry arrived at 12th Street and South Steuben Avenue, the BMW was parked in the driveway of a residence and Herndon was outside the car and making profane gestures and yelling obscenities at Fry and Waller. Fry stopped the pickup truck at the intersection, and Waller got out and exchanged insults with Hern-don. At tlrat point, Herndon reached into the trunk of his car and pulled out a .22 caliber rifle, which he aimed in Wallers direction. Waller retreated to the pickup and told Fry to drive off.
As Fry sped away, Herndon fired a .22 caliber round toward Frys pickup truck, striking the truck’s tailgate. When Fry slammed on the brakes, Waller grabbed the pickups steering wheel, put his foot on the accelerator, and sped off. Once safely out of sight, Waller called 911, and Fry checked her son to determine that he was not injured. The police discovered a .22 caliber rifle casing at the scene and noted a bullet welt in the tailgate of Fry’s truck, which appeared to have been made by a .22 caliber bullet.
After being interviewed by the police, Fry and Waller drove to Waller’s residence where Waller noticed his own pickup truck had a flat tire and there were five .22 caliber bullet holes on tire side of his house. A neighbor told the police that while sitting on the front porch across the street, she saw the driver of a passing silver or gray sports car fire shots from a rifle pointed out of the car’s window. The driver fit Plemdon’s description. The police discovered several .22 caliber bullets and shell casings along with several bullet holes in the side of Waller’s home.
Herndon’s daughter, Janae Baker, told the police she spoke with Herndon on the afternoon of the shootings. Herndon told Baker that “he had fired some rounds off at that [expletive], Tracy [Waller]” and that “he wasn’t going to get in trouble because [the police] wouldn’t find the gun.” He told Baker that he had stashed the gun in a storage unit.
Herndon’s version of the events was quite different. He claimed that Fiy and Waller followed him for several blocks before he pulled into a driveway. Herndon claimed that Fry pulled up directly behind his BMW “close enough to almost hit” it. Waller got out and a verbal confrontation followed. Waller then returned to the truck, and Fry drove about 50 feet before stopping. Fearing Waller was going to “come back and get aggressive again,” Hern-don claimed he fired a Daisy Red Ryder BB gun twice into the air in order to drive them off.
The State charged Herndon with aggravated endangering a child, criminal discharge of a firearm at an unoccupied dwelling, criminal discharge of a firearm at an occupied vehicle, and two counts of aggravated assault.
During a police interrogation following his arrest, Herndon said he rented a storage unit and consented to a search of the unit. Herndon indicated the key to the padlock on storage unit 57 was in the BMW, which had been impounded by the police. The police asked Herndon whether he had any other storage units, and Hern-don denied an interest in any other units.
The next day, the police attempted to open storage unit 57 using Herndons key. The key did not open the padlock on storage unit 57, so the officer tried the key on various padlocks on other units at the facility. Eventually the key opened the padlock on storage unit 5. The police did not open the door to unit 5 but resecured the lock and applied for a search warrant. When the warrant was obtained, they searched unit 5 and found some statues which had been stolen from Waller and a .22 caliber rifle.
Herndon moved to suppress the evidence seized during the search of the storage unit. After an evidentiary hearing, the district court denied Herndon’s motion, finding that Herndon had no standing to challenge the search of storage unit 5 because he told the police he had no interest in that unit.
At trial, the prosecutor told the jury in opening statement about the gun found in storage unit 5 along with “some figurines or statues that Mr. [Waller] had reported stolen earlier.” .
Herndon was convicted on all counts and sentenced to 38 months in prison. His appeal brings the matter to us.
Aggravated Child Endangerment
K.S.A. 2015 Supp. 21-5601(b)(l) defines aggravated child endangerment as “[r]ecklessly causing or permitting a child under the age of 18 years to be placed in a situation in which the child’s fife, body or health is endangered.” Under K.S.A. 2015 Supp. 21-5202(j), a person acts recklessly “when such person consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.”
In interpreting tírese statutes we give common words their ordinary meanings in order to determine the legislature’s intent. Further, we strictly construe criminal statutes in favor of the accused so long as doing so results in a reasonable and sensible expression of legislative intent. See State v. Phillips, 299 Kan. 479, 495, 325 P.3d 1095 (2014).
The district court instructed the jury as follows:
“Instruction No. 7. Defendant is charged with the crime of aggravated endangering a child in Count 3. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“Number 1. That the defendant recklessly caused [the child] to be placed in a situation in which [tire child’s] life, body, or health was in danger;
“Number 2. That [tire child] was less than 18 years old; and
“Number 3. That this act occurred on ór about tire 14th day of March, 2013, in Neosho County, Kansas.
“The State must prove that the defendant committed aggravated endangering a child recklessly.... [A] defendant acts recklessly when the defendant consciously disregards a substantial and unjustifiable risk that a result of the defendant’s action will follow. This act by the defendant dísregárding the risk must be a gross deviation from the standard of care a reasonable person would use in tire same situation.”
Herndon contends there was insufficient evidence to find that he acted recklessly because there was no evidence he knew the child was in the back seat of Fry’s truck, and a “defendant cannot consciously disregard a risk his actions could endanger a child if he had no knowledge of the presence of the child.” Further, under the statute the risk that a defendant consciously disregards must be substantial.
When the sufficiency of evidence is challenged in a criminal case, we review the evidence in the light favoring the State. We will uphold the conviction only if we are convinced that a rational fact-finder could have found the defendant guilty beyond a reasonable doubt based on the evidence. State v. Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014).
In considering whether the facts elicited at trial support the verdict, we may consider the reasonable inference arising from tire facts established at trial, but we may’ not stack inference upon inference to arrive at a fact that supports the verdict.
“Facts can be established at trial either by direct evidence or by circumstantial evidence. Neither is intrinsically more worthy of consideration than the other. In fact, even the most serious crime may be proven by circumstantial evidence. [Citations omitted.] Nevertheless, a conviction cannot be based solely upon inferences. [Citation omitted.] Thus, when a fact is established by circumstantial evidence, the circumstances must be proven and cannot be inferred from other circumstances. [Citation omitted.] But once a fact is proven through circumstantial evidence, tire jury may draw reasonable inferences from a fact so proven. Thus, there is no impermissible stacking of inferences if each element of the crime charged is supported by substantial evidence, either direct or circumstantial.” State v. Taylor, 34 Kan. App. 2d 889, 891, 126 P.3d 437, rev. denied 281 Kan. 1381 (2006).
K.S.A. 2015 Supp. 21-5601(b)(l) requires evidence of reckless conduct that causes a child to be placed at risk. To constitute reckless conduct, K.S.A. 2015 Supp. 21-5202(j) requires a showing that the defendant (1) consciously disregarded a risk which was (2) substantial and (3) unjustifiable and (4) which, under the circumstances, was a gross deviation from the standard of reasonable care. The State' showing that the defendant’s conduct placed the child at risk is only part of its burden. It must also prove each of these four elements of recklessness in order to convict.
There is no question that Herndon’s conduct in shooting a .22 rifle at the back of Fiy’s truck put Fry’s son at risk. The question is whether there is evidence of each statutory element needed to show recklessness.
First, in order to show recklessness, the State had to prove that Herndon consciously disregarded the risk that in discharging the rifle at the back of the pickup truck he was placing the child passenger at risk. Our review of the record discloses no direct evidence that Herndon was aware that Fry’s son was in the backseat of the pickup truck at the time of the shooting. Further, to infer without direct evidence that Herndon knew the boy was present in the pickup truck would require an impermissible stacking of inferences.
There was evidence that Herndon lived with Waller from May 2011 to about February 2012. During this period Fry lived with her mother, but she was at Waller’s house every day for about 2½ years prior to the March 2013 shooting. She was aware that Herndon was a roommate in Waller’s home, but “[t]heir relationship was their personal matter. I didn’t get involved in it.” There is no testimony that Frys son, who was severely disabled, was ever with her when she went to Waller’s house or that Herndon was aware that she had a son. So an inference that Herndon knew that Fry had a son would be tenuous at best.
Further, there is no evidence that Herndon was aware that anyone other than Fry and Waller were in tire pickup truck at the time of the shooting. The pickup truck belonged to Fry. Can we stack onto the rather questionable inference that Herndon knew Fry had a child the equally questionable inference that if she was driving her truck around town with her boyfriend she probably had her severely disabled son with her? We think not. There are too many equally probable factual scenarios that dispel the making of any such inference.
It suffices to say that we simply find a dearth of evidence to support the notion that Herndon was aware of the child’s presence in the truck. It is hard to imagine how Herndon consciously disregarded the risk to a child he had no reason to think was there.
Further, under the standard for recklessness the risk to be avoided must be substantial. There is always the risk that shooting a .22 rifle at a moving vehicle could cause grave injuiy or death to an occupant of the vehicle. But under this statute there must be a substantial risk, which the defendant disregarded, that the vehicle had a child occupant. The defendant’s actual knowledge of a child’s presence would, of course, be sufficient to show a substantial risk. But circumstances establishing tire strong likelihood of a child’s presence would also satisfy the “substantial risk” component of the statute, so long as a child was, in fact, endangered.
Shooting a firearm in the direction of a child daycare center at 10 a.m. on a school day carries with it the substantial risk of injury to a child. But the same cannot be said if the shot is fired at a daycare center building at midnight. The chance of a child being present at that hour is remote at best. In any event, the likelihood of a child being injured by a shot fired at midnight certainly would not. be substantial so as to satisfy this element of the crime.
Herndon’s conduct was certainly unjustifiable and a gross deviation from any reasonable standard of care. But there is no evidence that it was done in conscious disregard of a substantial risk of injury to a child occupying the truck.
The aggravated child endangerment statute is perfectly suited to instances in which the defendant knows of the presence of a child but in a gross deviation from the standard of reasonable care consciously disregards a substantial and unjustifiable risk of injury to the child. For example, in State v. Knight, No. 105,092, 2012 WL 2325849, at *5 (Kan. App. 2012) (unpublished opinion), rev. denied 296 Kan. 1133 (2013), the defendant who had been drinking left his Slé-year-old daughter to play and swim at the beach for several hours without supervision. Similarly, in State v. Martin, No. 110,556, 2015 WL 5224697, at *7-8 (Kan. App. 2015) (unpublished opinion), petition for rev. filed September 28, 2015, the defendant drove while intoxicated with an 18-month-old child in the car. State v. Thomas, No. 110,571, 2015 WL 569371, at *27 (Kan. App. 2015) (unpublished opinion), rev. denied 302 Kan. 1020 (2015), involved ‘"the accidental and unplanned presence of [a child] during the burglary and robbery.’” In State v. Martinez, No. 108,441, 2014 WL 3731888, at *7-8 (Kan. App. 2014) (unpublished opinion), rev. denied 302 Kan. 1017 (2015), pointing a loaded gun at a child during a robbery supported conviction for aggravated child endangerment. But we find no Kansas case in which a conviction was upheld when the defendant was unaware of the presence of the child.
New Mexico criminalizes child abuse by negligence or intentional misconduct. See N.M. Stat. Ann. § 30-6-l(D)(l) (1978) as amended in 2009, which provides: “Abuse of a child consists of a person knowingly, intentionally or negligently, and without justifiable cause, causing or permitting a child to be . . . placed in a situation that may endanger the child’s life or health.”
In State v. Gonzales, 150 N.M. 494, 263 P.3d 271 (Ct. App. 2011), aff'd on other grounds 301 P.3d 380 (2013), the defendant was charged and convicted under this New Mexico child endangerment statute when she drove her vehicle while severely drunk, sideswiped one car, and plowed into the rear of another car in which two children were riding in the backseat. One of the children was killed and the other was injured. On appeal, the issue was whether the statute applied when the defendant has no knowledge of the presence of the children and her driving did not specifically endanger these children any more than her driving endangered the general public using the roadway that night.
The New Mexico Court of Appeals cited instances in which the statute was found to apply to intoxicated drivers who had children riding with them at the time or when the intoxicated driver struck another vehicle which he knew was occupied by a child. But applying die statute to a defendant for endangering a child “whose presence was not previously known to the defendant at the time the negligent and dangerous behavior was commenced” was a matter of first impression in the state.
Like our Kansas statute, the New Mexico statute criminalizes child endangerment. Under both statutes, the crime is placing a child in a position of peril, not in causing the actual injuiy that may follow. The New Mexico court observed that “it is almost impossible to be indifferent to or disregard a risk of which one is not aware.” 263 P.3d at 279. The court stated:
“‘Typically criminal conduct is premised upon a defendant’s culpable conduct, the actus reus, coupled widi a defendants culpable mental state, the mens rea.’ [Citation omitted.] Even if Defendant commits an act that endangers a child, the State cannot prove child abuse by endangerment unless Defendant’s culpable mental state coincided with the act. Defendant must be criminally negligent in placing the child in the direct line of, or at least close to, the danger by recklessly disregarding tire substantial and unjustifiable risk to the child’s life and health.” 263 P.3d at 279-80.
In setting aside the defendant’s conviction of child abuse by endangerment, the court concluded:
“Defendant’s reckless behavior endangered all persons on the road, but nothing about the situation gives rise to evidence that the children were subject to any particular danger not shared by all fellow motorists and their passengers. Defendant did not specifically act in a criminally negligent manner with regard to endangering these particular children. Rather, she acted that way toward people of all ages on the road that night.” 263 P.3d at 279.
The New Mexico Supreme Court reviewed other aspects of this decision in Gonzales but did not grant review of this holding on child abuse by endangerment. State v. Gonzales, 2013-NMSC-016, 301 P.3d 380 (2013).
We find the reasoning of Gonzales persuasive. In the case before us, there is no evidence that Herndon was aware of the presence of Frys child when he shot at the pickup truck. In the context of our aggravated child endangerment statute, K.S.A. 2015 Supp. 21-5601(b)(1), and the definition of recklessness found in K.S.A. 2015 Supp. 21-5202(j), we conclude that the State failed to establish that Herndon consciously disregarded a substantial risk that his conduct would place Frys child in peril. Accordingly, we must set aside this conviction and remand to the district court to vacate Herndon s sentence for this conviction.
Motion to Suppress
Herndon claims the district court erred in denying his motion to suppress the evidence seized during the search of the storage unit. In considering this claim we review the. district court s factual findings, without reweighing the evidence or assessing the credibility of the witnesses, to determine whether the findings are supported by substantial competent evidence.- Whether the evidence should be suppressed at trial is a legal issue we consider de novo. In reviewing the factual findings, we do not reweigh conflicting evidence, pass on the credibility of witnesses, or redetermine questions of fact. State v. Reiss, 299 Kan. 291, 296, 326 P.3d 367 (2014).
As a preliminary matter, Herndon concedes that his counsel failed to renew at trial an objection to admission of the evidence he sought to suppress. A timely and specific objection is necessary to preserve an evidentiary issue for appeal. K.S.A. 60-404; State v. King, 288 Kan. 333, 341-42, 204 P.3d 585 (2009).'“[W]hen a pretrial motion to suppress has been denied, the evidence must also be objected to at the time it is offered during the trial in order to preserve the issue for áppeal.” State v. Houston, 289 Kan. 252, 270, 213 P.3d 728 (2009). Although Herndon claims that “[njowhere in the plain language of [K.S.A. 60-404] is the requirement that the objection be made at trial,” we are bound to follow the Supreme Courts rulings in Houston and King.
Herndon relies on the exception to this rule recognized in State v. Bogguess, 293 Kan. 743, 747, 268 P.3d 481 (2012), which relates to a bench trial solely on stipulated facts before the same judge who presided over the suppression motion. This is no safe harbor for Herndon. Here, the case was tried to a jury with tire facts not stipulated to and much additional evidence introduced.
Herndon also claims we can review the issue because the constitutionality of the storage unit search is an issue of law arising from proved or admitted facts and is finally determinative of the case. See State v. Poulton, 286 Kan. 1, 5, 179 P.3d 1145 (2008). But we do not have uncontested facts here. The district court found that Herndon had no possessory interest in the storage unit where the gun was found, so he had no standing to challenge the search. On appeal Herndon challenges the district court’s finding of no pos-sessory interest, so the matter does not come to us on proved or admitted facts.
Finally, Herndon argues consideration of this issue is necessary to prevent the denial of his fundamental right to be free from unreasonable searches. But our Supreme Court recently declined to review the denial of a motion to suppress when the defendant failed to timely renew the objection at trial. See State v. Moore, 302 Kan. 685, 697-98, 357 P.3d 275 (2015). In doing so the court stated: “[W]e have applied the timely and specific objection requirement even in cases where an evidentiary claim involved a defendants constitutional rights. [Citation omitted.]” 302 Kan. at 698. The court concluded: “[I]f we were to overlook the lack of objection in such circumstances, these and other caselaw exceptions would soon swallow the general statutory rule.’ [Citation omitted.]” 302 Kan. at 698.
But Herndon argues that Moore should not control because by the time he is able to move for relief under K.S.A. 60-1507 for his ineffective lawyer’s failure to object to this evidence at trial, Herndon probably will have completed his prison sentence. But as a general rule, we do not consider ineffective assistance of counsel claims in a direct appeal. State v. Rowland, 289 Kan. 1076, 1084, 219 P.3d 1212 (2009). Further, Herndon has not sought a remand for the trial court to consider an ineffective assistance of counsel claim under State v. Van Cleave, 239 Kan. 117, 119-20, 716 P.2d 580 (1986).
In any event, even if the issue were properly preserved, it would not warrant relief. To have standing to challenge the search, Herndon had to have an expectation of privacy in the storage unit. State v. Gonzalez, 32 Kan. App. 2d 590, 593, 85 P.3d 711 (2004). Herndon claimed a possessory interest in a different storage unit but no possessoiy interest in the one the police searched. See State v. Grissom, 251 Kan. 851, 911, 840 P.2d 1142 (1992); State v. Jakeway, 221 Kan. 142, 144-45, 558 P.2d 113 (1976); State v. McCammon, 45 Kan. App. 2d 482, 484-85, 250 P.3d 838, rev. denied 292 Kan. 968 (2011). Herndon had no standing to challenge the search.
K. S.A. 60-455 Evidence
Herndon argues the prosecutor engaged in misconduct when, during opening statement, he referred to statues reported stolen by Waller which were found in the storage locker. Herndon complains that this was improper K.S.A. 60-455 evidence which was not disclosed to defense counsel as required by K.S.A. 2015 Supp. 60-455(e) and for which the State did not seek a pretrial court admissibility ruling.
The prosecutors remark during opening statement was not testimony or evidence. But during the States case, there was testimony introduced that the police found the statues in storage unit 5. Waller testified that two of the statues were stolen from his yai'd after he kicked Herndon out of the house. This testimony was not wholly unrelated to the charges against Herndon. The testimony tended to fink the gun found in the storage unit to Herndon because items purportedly taken from Waller, with whom Herndon had lived, were also found in the storage unit.
In any event, Herndon did not object to any of this testimony at trial. Thus, Herndons complaint about the prosecutors misconduct during his opening statement was rendered harmless in view of tire fact that the evidence referred to in opening statement was admitted for consideration by the jury without objection. The prosecutors remark was neither gross nor flagrant and did not evidence ill will towards Herndon. We are satisfied that even if the prosecutor had not mentioned these items in opening statement, in view of this testimony admitted at trial without objection and the additional overwhelming evidence of Herndon s guilt educed at trial, the outcome of the trial would have been the same. See State v. Williams, 299 Kan. 509, 540, 324 P.3d 1078 (2014).
Cumulative Error
Flerndon contends that the cumulative effect of multiple trial errors denied him a fair trial. We have already ruled on the propriety of Herndon’s aggravated endangerment conviction. There were no other trial errors to accumulate. Thus, tire notion of cumulative error simply does not apply.
Sentencing
Finally, Herndon contends the district court violated his constitutional lights under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), by using his prior convictions to increase his sentence without requiring the prior convictions to be included in the complaint and proved to a jury beyond a reasonable doubt. The Kansas Supreme Court has repeatedly rejected this contention since its holding in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002). We are duty bound to follow the holding in Ivory absent some indication the court is departing from this ruling. See State v. Belone, 51 Kan. App. 2d 179, 211, 343 P.3d 128, rev. denied 302 Kan. 1012 (2015). We see no such indication. See State v. Barber, 302 Kan. 367, 386, 353 P.3d 1108 (2015). Accordingly, this claim fails.
Affirmed in part, reversed in part, and remanded. | [
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Per Curiam:
This court accepted this case on the petition for review filed by defendant Heather Page Hilton for the specific purpose of deciding whether both the first and second of Hilton’s two consecutive 12-month probation terms could be revoked as a result of a violation that occurred during the first 12 months. A panel of our Court of Appeals had affirmed the district court’s revocation of both of Hilton’s probation terms. State v. Hilton, 49 Kan. App. 2d 586, 311 P.3d 1161 (2013).
On the way to the panel’s ruling, the Court of Appeals judges left for another day the predicate issue of whether the district judge was empowered to grant consecutive probation terms to Hilton in the first place. 49 Kan. App. 2d at 589-90. Judge G. Gordon At-cheson expressed some reservation about the existence of such a power in a brief concurrence. 49 Kan. App. 2d at 594-95.
Earlier, we had effectively compelled the panel to address the merits of the dual revocation issue by granting a petition for review on the Court of Appeals’ dismissal of Hilton’s appeal as moot and summarily reversing and remanding the case. State v. Hilton, 295 Kan. 845, 286 P.3d 871 (2012). Although Plilton had already completed service of the prison terms underlying the consecutive pro-bations, we then believed the dual revocation issue to be one of public importance likely to arise in other cases. 295 Kan. at 851-52. As such, we further believed it to be a worthy exception to application of the mootness doctrine. 295 Kan. at 851-52.
On closer examination, we have concluded that the Court of Appeals had it right in the first place and that this appeal should be dismissed as moot.
It is logically and legally impossible to approve or disapprove of the panel’s rationale in affirming the dual revocation without first addressing whether the district judge had the power to grant consecutive probation terms. But it would be unwise to decide that predicate question when the parties have not truly set up or argued opposing viewpoints and no client’s fate hangs in the balance. Here, the parties agreed on the grant of consecutive probation terms in the district court, and neither questioned their propriety before the Court of Appeals or before this court. Our adversarial system typically depends upon committed advocacy to fully explore and expose strengths and weaknesses in pro and con arguments on the legal issues that come before us. We will follow the typical pattern here and await a more appropriate setting to consider whether a district judge may grant consecutive probation terms and, if so, under what circumstances such terms may be revoked.
The Court of Appeals decision is vacated. This appeal is dismissed. | [
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Granted.
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Buser, J.:
Margaret R. Puls, an heir-at-law of the decedent, Esther A. Broderick, appeals the district court’s ruling denying her motion for the production of Broderick’s medical records and granting the petition for the probate of Broderick’s will. We affirm in part, reverse in part, and remand with directions.
Factual and Procedural Background
In 1993, Esther R. Broderick executed her will. She bequeathed her stocks and bonds to her three nephews, Geary E. Ludwig, Jr., Dale W. Ludwig, and Gene R. Ludwig. The residuary of her estate was bequeathed to those same three nephews and two nieces, Esther A. Aikens and Margaret R. Puls. Geaiy was designated as executor. Dale was the successor executor, and if necessary, then Gene.
Broderick died on June 27, 2004. Prior to her death, Geary had died and Dale became disabled. In July 2004, Gene filed a petition for the admission of Broderick’s will to probate and requested that he be named executor of her estate. The petition alleged Broderick was of sound mind and not under any restraint when she executed her will. A hearing was scheduled for August 4, 2004. The heirs were sent a copy of the petition and notice of the hearing.
On August 3, 2004, Puls filed a pro se motion requesting an additional 30 days to file written defenses. Puls opposed the probate of Broderick’s will on grounds that Broderick’s will was not duly executed, Broderick was mentally incompetent at the time she executed the will, and Broderick was under the undue influence of a beneficiary.
At the hearing, the district court held Puls’ pleading constituted a written defense contesting the admission of Broderick’s will to probate and continued the hearing to September 20, 2004. The district court also appointed Gene Ludwig as special administrator until the hearing.
On August 13, 2004, Puls filed a pro se motion for the production of Broderick’s medical records from Medicalodge. Broderick had resided at Medicalodge, a full-care nursing home, from June 20,1991, until her death. Puls stated the production of Broderick’s medical records from Medicalodge was authorized under 45 C.F.R. § 164.512(e) (2004). She argued the records were necessary “to assess and document” Broderick’s mental condition at the time she executed the will. Notice was given to Ludwig but not to Medicalodge.
On August 20, 2004, the district court denied Puls’ motion for Broderick’s medical records. The court noted a health care entity could disclose the protected information under the federal regulations upon receipt of a court order but concluded that it had no authority to issue an order requiring Medicalodge to produce Broderick’s medical records.
On August 31, 2004, Puls filed a second pro se motion for requesting an order directing Medicalodge to produce Broderick’s medical records. Her motion included allegations to explain why she contested Broderick’s will. Among the information she sought, Puls requested “any and all mental and physical disorders or aberrations exhibited by [Broderick].” Puls agreed not to use the disclosed medical records for any purpose other than the probate proceedings. As authority for such an order Puls cited 45 C.F.R. § 164.512(e)(l)(i) and several Kansas statutes, including K.S.A. 2004 Supp. 60-234(c).
On September 20, 2004, Puls appeared for the hearing by telephone. Puls informed the district court she had not requested a continuance of the hearing. When the district court concurred, Puls stated she needed additional time for discovery, to prepare the case, and to hire counsel. The district court did not comment on her request and continued with the proceedings.
At Ludwig’s request, the district court examined Broderick’s will that was filed with his petition and found it met the requirements for a self-proving will. The district court then held the burden shifted to Puls to prove the will should not be admitted for probate.
Puls relied upon the allegations in her second motion for the production of Broderick’s medical records. Puls also stated the last time she saw Broderick was in June 1975; however, she had spoken occasionally with staff at Medicalodge to check on Broderick’s condition. Puls stated she wanted to question the two persons who witnessed the signing of Broderick’s will.
The district court found the fact that Broderick was in a nursing home coupled with the statements Puls made in her motion were insufficient evidence to overcome Broderick’s self-proving will. The district court admitted Broderick’s will to probate and appointed Ludwig as executor. Puls appeals.
Medical Records Discovery
Puls contends the district court implicitly denied her second motion to produce Broderick’s medical records when it commenced the hearing. She argues the denial was error because the district court had previously found her earlier pleading was a written defense to the admission of Broderick’s will and that Supreme Court Rule 144 (2004 Kan. Ct. R. Annot. 208) authorizes die discovery procedures contained in K.S.A. 60-226 through K.S.A. 60-237, as amended, to apply in probate proceedings involving factual disputes. Puls claims those provisions gave the district court the legal authority to order Medicalodge to produce Broderick’s medical records.
Our standard of review is well setded. “Control of discovery is entrusted to the sound discretion of the trial court, and orders concerning discovery will not be disturbed on appeal in the absence of clear abuse of this discretion. [Citations omitted.]” Hill v. Farm Bur. Mut. Ins. Co., 263 Kan. 703, 704, 952 P.2d 1286 (1998). “Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the trial court. [Citation omitted.]” 263 Kan. at 704.
Kansas Discovery Procedures
In 1977, the unification of the Kansas court system abolished the probate courts and placed all probate matters brought pursuant to Chapter 59 under the authority of the district court. Quinlan v. Leech, 5 Kan. App. 2d 706, 709, 623 P.2d 1365 (1981). Civil proceedings in the district court, except for limited actions commenced under Chapter 61, are governed by the Code for Civil Procedure in Chapter 60. K.S.A. 2004 Supp. 60-201. Also in 1977, the Kansas Supreme Court adopted Supreme Court Rule 144 (2004 Kan. Ct. R. Annot. 208), which now provides:
“In all proceedings now or hereafter conducted pursuant to Kansas Statutes Annotated, Chapter 59, the discoveiy procedures as now prescribed by K. S. A. 60-226 to K.S.A. 60-237, inclusive, or as hereafter amended, together with all rules of court pertaining thereto, shall be available to the parties in such proceedings if issues of fact have been raised by written defenses.”
K.S.A. 2004 Supp. 60-226(a) authorizes the parties in a proceeding to use depositions by oral examination or written questions, written interrogatories, production of records and items, per mission to enter upon property for inspection, physical and mental examinations, and requests for admission.
A party is authorized under K.S.A. 2004 Supp. 60-230(a) and K.S.A. 2004 Supp. 60-231(a) to take the testimony “of any person” by oral or written depositions. A nonparty “may be compelled to produce documents and things or to submit to an inspection as provided in K.S.A. 60-245 and 60~245a and amendments thereto.” K.S.A. 2004 Supp. 60-234(c).
K.S.A. 2004 Supp. 60-245a authorizes the issuance of a subpoena duces tecum for the records of a nonparty business. It provides in part as follows:
“A subpoena duces tecum which commands the production of business records in an action in which the business is not a party shall inform the person to whom it is directed that the person may serve upon the attorney designated in the subpoena written objection to production of any or all of tire business records designated in the subpoena within 14 days after the service of the subpoena or at or before the time for compliance, if the time is less than 14 days after service. If such objection is made, the business records need not be produced except pursuant to an order of the court upon motion with notice to the person to whom the subpoena was directed.” K.S.A. 2004 Supp. 60-245a(b).
The statute also states that a “party may require the personal attendance of a custodian of business records and the production of original business records by causing a subpoena duces tecum to be issued.” K.S.A. 2004 Siipp. 60-245a(d). If the attendance of the custodian is not required, notice must be given to all of the other parties to the action of the party’s intent to request the issuance of a subpoena at least 10 days before its issuance and a copy of the proposed subpoena must also be served upon all parties, if a party objects to the issuance of the subpoena, the subpoena cannot be issued until further order of the court. K.S.A. 2004 Supp. 60-245a(e).
Puls states the district court “could have ordered the Medicalodge records custodian to stand for a deposition and produce the health information records in question.” She also points out there were no objections to her motion.
Puls’ motions did not comply with Kansas civil procedure. Her motions did not request Medicalodge’s custodian of records to tes tify at a deposition, nor were they a request for a subpoena duces tecum that commanded the production of the information and notified both Medicalodge and Ludwig of their opportunity to object within 14 days.
Puls also argues her pro se motions were sufficient for the district court to issue an order directing Medicalodge to produce Broderick’s medical records since pro se motions are to be liberally construed. She asserts pro se litigants should not be held to the same level as a lawyer on the “finer points” of civil procedure or, in the alternative, the district court should have directed her to K.S.A. 2004 Supp. 60-234(c) and K.S.A. 2004 Supp. 60-245a.
While pro se pleadings are to be liberally construed so that relief may be granted if warranted by the facts alleged, this simply means that the substance of the pleading controls over its label. See Jackson v. State, 1 Kan. App. 2d 744, Syl. ¶ 3, 573 P.2d 637 (1977), rev. denied 225 Kan. 844 (1978). The relief requested by Puls was clearly seeking an order directing Medicalodge to produce Broderick’s medical records. The liberal construction rule, however, does not mean that the statutory requirements to obtain those records may be ignored. Our court has stated the following rule applicable to pro se litigants:
“A pro se litigant in a civil case is required to follow the same rules of procedure and evidence which are binding upon a litigant who is represented by counsel. Our legal system cannot function on any basis other than equal treatment of all litigants. To have different rules for different classes of litigants is untenable. A party in civil litigation cannot expect die trial judge or an attorney for the other party to advise him or her of the law or court rules, or to see that his or her case is properly presented to the court. A pro se litigant in a civil case cannot be given either an advantage or a disadvantage solely because of proceeding pro se.” Mangiaracina v. Gutierrez, 11 Kan. App. 2d 594, 595-96, 730 P.2d 1109 (1986).
Because Medicalodge was not a party to the probate case, the proper method to obtain Broderick’s medical records from Medicalodge was to follow the requirements of K.S.A. 2004 Supp. 60-245a for a subpoena duces tecum to a nonparty. Even if Puls’ motions were liberally construed, she did not comply with the notice requirements to Medicalodge and the district court did not err by failing to advise Puls of the appropriate discovery statutes.
Health Insurance Portability and Accountability Act Regulations
Puls next argues the federal regulations that were enacted pursuant to the Health Insurance Portability and Accountability Act of 1996 (HIPAA), 42 U.S.C. § 1320d etseq. (2000), authorized the district court to issue an order directing Medicalodge to produce Broderick’s medical records.
At the outset, it is important to note that the federal regulations pursuant to HIPPA do not create a federal privilege between physician-patient or hospital-patient; rather, the regulations provide the required procedures for disclosure. Any objections to disclosure claiming such a privilege would be based upon authority other than the federal regulations. Northwestern Memorial Hosp. v. Ashcroft, 362 F.3d 923, 925-26 (7th Cir. 2004).
Ludwig does not deny that Medicalodge is a covered entity under HIPAA. See 45 C.F.R. §160.103 (2004) (a covered entity includes a [1] health plan, [2] health care clearinghouse, and [3] health care provider transmitting health information in electronic form in connection with a covered transaction). An individual is defined as “the person who is the subject of protected health information.” 45 C.F.R. § 160.103.
The federal regulations also apply “to the protected health information of a deceased individual.” 45 C.F.R. § 164.502(f) (2004). In cases of a deceased individual, the covered entity must “treat a personal representative as the individual.” 45 C.F.R. § 164.502(g)(1). A personal representative of the deceased individual includes an executor or administrator who under applicable law is authorized to act on behalf of a deceased individual’s estate. 45 C.F.R. § 164.502(g)(4).
HIPAA regulations preempt any contrary provision of state law unless the state law provides greater privacy protection for an individual whose health information is protected. See 45 C.F.R. § 160.203(b) (2004). Under the regulations, “[a] covered entity may not use or disclose protected health information, except as permitted or required by [the regulations].” 45 C.F.R. § 164.502(a) (2004).
A covered entity, however, may disclose protected health information as permitted by and in compliance with 45 C.F.R. § 512(e) or 45 C.F.R. § 164.514(e) (2004). 45 C.F.R. § 164.502(a)(vi). When disclosing protected health information, “a covered entity must make reasonable efforts to limit protected health information to the minimum necessary to accomplish the intended purpose of the use, disclosure, or request.” 45 C.F.R. § 164.502(b). 45 C.F.R. § 162.512(e) authorizes four methods to obtain the protected health information.
The first method requires the party seeking the information through a subpoena, discovery request, or other lawful process that is not accompanied by a court order to provide a statement and attach documentation to the covered entity that the party made reasonable efforts (or a good faith attempt to do so) to notify the individual whose health information is protected. 45 C.F.R. § 164.512(e)(l)(ii)(A), (iii)(A). The party must also provide a statement and documentation showing that the notice included information about the litigation so that the individual could object in court, that the time to file such objections had elapsed, and that either no objections were filed or they were resolved by the court and the disclosures were consistent with that resolution. 45 C.F.R. § 164.512(e)(l)(ii)(A), (iii)(B)-(C).
The second method allows a covered entity to release the protected information in response to a subpoena, discovery request, or other lawful process without a court order if the party seeking the protected information gives satisfactory assurance to the covered entity that reasonable efforts were made to secure a qualified protective order. 45 C.F.R. § 164.512(e)(l)(ii)(B). Such satisfactory assurances include a written statement with accompanying documentation that the parties to the dispute have agreed to a qualified protective order and have presented it to the court or the party seeking the information has requested a qualified protected order from the court. 45 C.F.R. § 164.512(e)(l)(iv).
A qualified protected order is defined as a court order or a stipulation by the parties to the litigation that the parties are prohibited from using or disclosing the information for any purpose other than the litigation for which it was requested and the information must be returned to the covered entity or destroyed at the conclusion of the litigation. 45 C.F.R. § 164.512(e)(l)(v).
The third method authorizes a covered entity to release the protected information in response to a lawful process without the required assurances from the requesting party if the covered entity makes reasonable efforts to provide notice to the individual that meets the requirements of the first method or seeks a qualified protected order that meets the requirements of the second method. 45 C.F.R. § 164.512(e)(l)(vi).
Puls’ motion did not comply with any of the above HIPAA regulations because it was not sent to Medicalodge and did not include all of the required assurances.
The fourth method to obtain the protected information states as follows:
“A covered entity may disclose protected health information in the course of any judicial or administrative proceeding:
(i) In response to an order of a court or administrative tribunal, provided that the covered entity discloses only the protected health information expressly authorized by such order.” 45 C.F.R. § 164.512(e)(1).
Puls argues this option authorized the district court to issue an order to Medicalodge for the production of Broderick’s medical records. Puls states: “Since Kansas law does not provide more stringent protection for a decedent’s health information records, HI-PAA requirements control.”
According to Puls’ argument, the court may issue an order requiring a nonparty to produce any and all medical documents without giving notice to the nonparty who holds the individual’s medical records. This argument is inconsistent with HIPAA regulations which create the minimum requirements for disclosure and provide that state laws must be followed if they afford additional protection.
As discussed above, K.S.A. 2004 Supp. 60-245a(b) requires a nonparty be served with a subpoena duces tecum and told a written objection to the production of the documents can be made within a specified time period. If so, the documents need not be produced unless the party files a motion with notice to the nonparty and thereafter the court issues an order for the nonparty to produce the documents. At a minimum, Kansas law or HIPAA regulations required Puls to notify Medicalodge of her request for the pro duction of Broderick’s medical records and afford Medicalodge the opportunity to object. In this context, the district court did not err by denying Puls’ motion.
One other option existed for Puls to obtain Broderick’s protected medical information from Medicalodge that is not provided for under 45 C.F.R. § 164.512(e). The federal regulations authorize a covered entity to disclose protected health information pursuant to a valid authorization under 45 C.F.R. § 164.508. 45 C.F.R. § 164.502(a) (iv). If a covered entity receives a valid authorization, its disclosure must be consistent with that authorization. 45 C.F.R. § 164.508(a)(1). The requirements for a valid authorization are set forth in 45 C.F.R. § 164.508(c).
Puls claims it would be unreasonable to expect that Broderick’s personal representative would execute the authorizations because the personal representative was also the beneficiary who was accused of wrongdoing.
In Kansas, a patient’s medical records, whether for a physical or mental condition, are protected by the physician-patient privilege. See K.S.A. 60-427. The holder of the privilege includes “the personal representative of a deceased patient.” K.S.A. 60-427(a)(3). Even though not the holder of the privilege, a physician or hospital, absent statutory authority, may not reveal information subject to the privilege without the knowledge and consent of the patient or the holder of the privilege. As such, hospital records that are subject to the physician-patient privilege are not usually discoverable without notice to and consent of the holder of the privilege. Wesley Medical Center v. Clark, 234 Kan. 13, 20, 669 P.2d 209 (1983).
There is no physician-patient privilege, however, regarding “an issue as to the validity of a document as a will of the patient” or “an issue between parties claiming by testate or intestate succession from a deceased patient.” K.S.A. 60-427(c)(2)-(3). Puls could have submitted HIPPA-complaint authorizations to Ludwig for his signature. If Ludwig refused to sign the authorizations, the district court could have then determined whether it should order Ludwig to sign the authorizations.
Quite simply, Puls did not comply with the necessary requirements under state law or HIPAA regulations to properly obtain Broderick’s medical records held by Medicalodge. Under these circumstances, the district court’s denial of Puls’ motions to produce medical records was not a clear abuse of discretion and we affirm.
Admission of Will to Probate
Puls contends the district court erred by admitting Broderick’s will to probate. She claims Ludwig did not present a prima facie case to prove capacity and due execution.
At the hearing, Ludwig’s counsel asked the district court to take notice of the will itself which was filed with the petition. He argued Broderick’s will established a prima facie case to prove capacity and due execution because it met all of the statutory requirements of a self-proving will. The district court reviewed the will and agreed. Ludwig’s counsel then rested his case.
Puls, who appeared by telephone, asked if the attesting witnesses were at the hearing. The district court advised they were not and that Kansas law authorized a self-proving will to be admitted into evidence without the testimony of attesting witnesses. Upon its admission, no further evidence was needed to prove capacity or the lack of undue influence. Puls said she wanted the opportunity to examine witnesses and had prepared a list of questions for them. The district court, however, had Puls present her evidence and arguments to contest Broderick’s will.
In cases where the district court has made factual findings and conclusions of law, our function is to decide whether its findings are supported by substantial competent evidence and whether those findings are sufficient to support the district court’s legal conclusions. In re Estate of Farr, 274 Kan. 51, 58, 49 P.3d 415 (2002).
When the admission of a will is contested, the burden of proof has been stated as follows:
“When offering a will to probate, the burden of proof is initially upon the proponent to make a prima facie case showing capacity and due execution of the will. [Citations omitted.] It is well established in Kansas that once it has been shown that a will has been executed in accordance with the formalities required by law, the burden is upon the will contestant and he or she must produce evidence to support his or her position. [Citation omitted].” 274 Kan. at 58-59.
The provisions in Broderick’s will clearly met the statutory requirements of a self-proving will. See K.S.A. 2004 Supp. 59-606. Puls does not challenge that portion of the district court’s decision. Rather, she contends a self-proven will cannot be used as prima facie evidence to prove the testator’s capacity and the due execution of the will in cases where the will is contested.
K.S.A. 2004 Supp. 59-2224 states that at the hearing on the petition for the probate of a will:
“[U]nless it is an uncontested, self-proved will . . . the testimony of at least two of the subscribing witnesses shall be taken in person, by affidavit or by deposition. The court may waive the requirement of such testimony of such subscribing witnesses upon a proper showing that such witnesses are unavailable or cannot be located. Otherwise, the court may admit die testimony of other witnesses to prove the capacity of the testator . . . and the due execution of the will . . . and, as evidence of such execution, may admit proof of the handwriting of the testator .. . and of the subscribing witnesses.”
Similarly, K.S.A. 2004 Supp. 59-606 provides that “[a] self-proved will, unless contested, shall be admitted to probate without the testimony of any subscribing witness, but otherwise it shall be treated no differently than a will not self-proved. A self-proved will may be contested in the same fashion as a will not self-proved.”
Puls also relies upon the following language from In re Estate of Farr:
“[I]t is important to note that pursuant to K.S.A. 2001 Supp. 59-606, if a will containing a self-proving affidavit is contested, the will is treated as if it contained no such affidavit. Thus, once a self-proved will is contested, the question of the validity of the self-proving affidavit is moot because the affidavit is no longer conclusive as to the admission of the will to probate.” 274 Kan. at 59-60.
In his brief, Ludwig’s counsel candidly “admits that, if the will was properly contested, the [district court] applied the wrong standard and a prima facie case was required to be made by the proponents of the will. However, the question is whether [Puls] set forth sufficient allegations to contest the will.” Ludwig’s counsel continues by arguing Puls presented only conclusory allegations and hearsay statements that were insufficient to raise the issues of undue influence and capacity.
There is no statute prescribing the requirements for a written defense in probate proceedings. Supreme Court Rule 143 (2004 Kan. Ct. R. Annot. 208) addresses procedural matters when a written defense to a petition is filed in a probate case, but it does not indicate the form or substantive content for a valid written defense.
■Significantly, at the August 3, 2004, hearing, the district court asked Ludwig’s counsel for his position on Puls’ motion for a continuance and he responded, “Well, Judge, I think she has actually, even though she hasn’t captioned it as written defenses, she’s filed a pleading in here which I think constitutes a written defense setting up an attack on the validity of the will.” (Emphasis added.) The district court concurred. Ludwig’s counsel continued, “[Puls] did file the responsive pleading within the time permitted by notice, even though it was late in the day yesterday.” He then advised the district court that the hearing should be continued so that Puls could present her defense to the admission of the will.
“Where a party procures a court to proceed in a particular way thereby inviting a particular ruling, that party is precluded from assailing such proceeding and ruling on appellate review. [Citation omitted.]” McGuire v. Sifers, 235 Kan. 368, 372, 681 P.2d 1025 (1984).
Because the district court determined that Puls filed a written defense to the admission' of Broderick’s will, Ludwig had the burden of proof to make a prima facie case showing capacity and due execution of that will. Ludwig did not sustain his burden of proof by presenting Broderick’s self-proven will. The district court erred by concluding that he did. We hold there was insufficient evidence for the district court’s factual findings and conclusions of law that the will be admitted to probate.
Affirmed in part, reversed in part, and remanded with directions to the district court to allow the parties to proceed with the will contest following a reasonable period of time for discovery. | [
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The opinion of the court was delivered by
Holmes, J.:
This is a personal injury suit arising out of a controlled intersection traffic accident which occurred on the outskirts of Garden City, Kansas. At the close of plaintiff s case, the trial court directed a verdict in favor of the defendants, the City of Garden City, Kansas, (Garden City or the City), and the Kansas Department of Transportation (KDOT). Plaintiff, Cecil W. Baker, appeals.
The accident occurred at the intersection of United States Highway 83 and Mary Street on the western edge of Garden City. At this location the highway consists of two lanes running north and south with one lane of traffic in each direction. East of the intersection Mary Street is a divided four-lane east and west city thoroughfare with two lanes of traffic in each direction. West of the intersection Mary Street is a two lane county road with one lane of traffic in each direction. Traffic at the intersection was formerly controlled by stop signs for the east-west traffic on Mary Street. Traffic on U.S. Highway 83 was not required to stop. In November of 1980 a fatal accident occurred at the intersection and in response to this tragedy Garden City officials decided to replace the stop signs with four-way electric signals. The City contacted KDOT regarding the installation of temporary signals during construction and it is disputed whether KDOT approval was given for temporary signalling. It is clear that no written approval had been obtained from KDOT. See K.S.A. 8-2002(b). During mid-December the City installed four temporary signals which were hung in the intersection from wires strung between poles at each corner and the stationary stop signs for Mary Street traffic were removed. At the time the temporary signals were emplaced, their installation did not meet the standards specified in the Uniform Manual of Traffic Control. Although a diagram of the installation was sent to KDOT, the inadequate nature of the signals apparently was not discovered by KDOT until after the plaintiffs accident.
On the day of the accident, an eighteen-wheel tractor-trailer, loaded with sheep, driven by Clyde Tyson was southbound on Highway 83 approaching .the Mary Street intersection. At the same time, Eldon Wagner sat in his westbound vehicle at the intersection waiting for the temporary light to turn green in his direction. Behind the Wagner vehicle were Robert and Beverly Chartier in their car, also waiting for the light to change. Cecil W. Baker, in his pickup truck, was northbound on Highway 83 approaching the intersection. As the light turned green for east-west traffic, the Wagner vehicle moved into the intersection. Simultaneously, the southbound tractor-trailer ran the red light and struck the Wagner vehicle in the passenger’s side, spinning it back into the eastbound lane of Mary Street. The Tyson truck careened on down the highway, collided with Baker’s pickup truck, and came to rest on its side with the cab of the truck on the Baker vehicle.
Baker suffered serious injuries as a result of the accident. He required hospitalization for three weeks following the accident, including two operations to refabricate one knee. Plaintiff filed suit against the trucking company which operated the truck, its insurance carrier, the driver Tyson, the City of Garden City, the Board of County Commissioners of Finney County, and the Kansas Department of Transportation. Prior to trial the County was granted summary judgment and no appeal is taken from that ruling. The defendant trucking company, its insurance carrier, and Tyson settled with plaintiff and were dismissed from the action. The case went to trial on the issue of the negligence of the City and KDOT in erecting the temporary traffic signals. At the close of the plaintiff s case, the trial court sustained the defendants’ motions and directed verdicts in their favor. Baker has appealed.
The. only issue raised on appeal is the plaintiff s contention that the trial court improperly directed a verdict for the defendants.
In ruling on a motion for a directed verdict pursuant to K.S.A. 60-250, 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 the evidence is such that reasonable minds could reach different conclusions thereon, the motion must be denied and the matter submitted to the jury. Denison State Bank v. Madeira, 230 Kan. 684, Syl. ¶ 1, 640 P.2d 1235 (1982). In reviewing a directed verdict the appellate court will apply the same rule on appeal that was required in the trial court, Fisher v. Sears, Roebuck & Co., 207 Kan. 493, 495, 485 P.2d 1309 (1971), and if the evidence is such that reasonable minds could reach different conclusions then the verdict should be reversed. Stair v. Gaylord, 232 Kan. 765, 769, 659 P.2d 178 (1983).
Thus, the issue in the present case is whether Baker presented a prima facie case of negligence at trial. Prima facie evidence denotes evidence which, if left unexplained or uncontradicted, would be sufficient to carry the case to the jury and sustain a verdict in favor of the plaintiff on the issue it supports. Van Brunt, Executrix v. Jackson, 212 Kan. 621, 623, 512 P.2d 517 (1973). In a negligence case the plaintiff must establish a duty of reasonable care owed by the defendant to the plaintiff, a breach of that duty, damage to plaintiff, and a causal connection between the duty breached and the damage sustained. Durflinger v. Artiles, 234 Kan. 484, 673 P.2d 86 (1983). In order to recover in a negligence action, the breach of duty must be the actual and proximate cause of the injury. The proximate or legal cause of an injury is that cause which in natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury and without which the injury would not have occurred, the injury being the natural and probable consequence of the wrongful act. Wilcheck v. Doonan Truck & Equipment, Inc., 220 Kan. 230, 235, 552 P.2d 938 (1976).
Whether conduct in a given case is the cause in fact or proximate cause of plaintiff s injuries is normally a question of fact for the jury. Durflinger v. Artiles, 234 Kan. at 488; Steele v. Rapp, 183 Kan. 371, 379, 327 P.2d 1053 (1958). However, where the facts are such that they are susceptible to only one inference, the question is one of law and may be disposed of summarily by the court when the plaintiff has failed to establish the necessary burden of proof. 57 Am. Jur. 2d, Negligence § 137.
In the present case it was the position of the defendants that even if the temporary signals were not properly installed and timed, there was no showing that such defects were the cause of Tyson’s running the red light and the resultant collision with Mr. Baker’s truck. The trial court reviewed the evidence, prior to directing verdicts for the defendants, and stated:
“The city and the Department of Transportation have made a motion to this Court for a directed verdict. The city and department state that there is no evidence presented to indicate that either the city or the department were at fault in the injuries sustained by Mr. Baker.
“Van Brunt Executrix versus Jackson, 212 Kansas 69 — or excuse me — 621, 1973 case, states that when such a motion is made ‘the issue is whether the plaintiff has made a prima facie case. “Prima facie” denotes evidence which, if unexplained or uncontradicted, is sufficient in a jury case to carry the case to the jury and to sustain a verdict in favor of the issue upon which it supports, but which may be contradicted by other evidence . . . .’
“As such the question becomes whether or not the plaintiff has made a prima facie case as to the ‘actionable negligence’ of the defendants. ‘Actionable negligence’ is the lack of care which caused or contributed to the event which brought about the injury or damage for which claim is made.
“With these considerations in mind, the evidence presented must be examined.
“At this point in time revol--resolving all fact questions in the favor of the plaintiff, the plaintiff has presented at least a prima facie case as to the following: number one, the city did not exercise ordinary care in the signalization of the intersection; number two, the driver of the cattle truck, Mr. Tyson, did run a red light at that intersection; number three, Mr. Baker was severely injured and still suffers from the injuries received; number four, the accident was every bit as severe and horrendous as related by the Chartiers and Mr. Zerr. Their concerns were entirely valid.
“These prima facie showings, however, do not in and of themselves entitle the case to go to the jury. There still must be a showing of proximate cause. In other words there still must be a showing that the negligence on the part of the city and state was ‘actionable negligence.’ As stated in the terms of the law, there must be a prima facie showing that the lack of ordinary care caused or contributed to the event which brought about the injury or damages for which the claim is made.
“In arguing the motion the plaintiff correctly stated that violation of safety statutes such as requirements contained in the uniform manual was and can be considered negligence per se. This, however, is not dispositive of the issues in that even negligence per se must be the proximate cause of the injuries.
“In arguing the motion the plaintiff stated that there was no evidence of any negligence on the part of the truck driver and that his negligence should not be compared. The plaintiff stated that the truck driver is not a party to this suit and cannot be considered.
“The truck driver may not at the present time be exposed in terms of liability. The truck driver, however, must be compared when determining what and who caused the injuries of Mr. Baker. The actual physical force applied to Mr. Baker came from the truck driven by Mr. Tyson. What caused Mr. Tyson to strike Mr. Baker is the issue. This consideration is the foundation for a prima facie showing of proximate cause.
“All that is known about the driver’s action is that he ran the red light, and there is some indication that he may not have seen the light. There is no further testimony or evidence attributed to Mr. Tyson and the circumstances in which he found himself on that fateful day. Did he see the light but failed to stop because of fatigue? Was he daydreaming? Was his attention distracted by a roadside object? Was there a mechanical malfunction when he tried to stop? Or did he see the light but due to improper sequence was unavailable —- or unable to stop no matter what he did?
“These things, perhaps others, the Court will never know as Mr. Tyson did not elaborate. Within the facts of this case, Mr. Tyson is the critical link of proximate cause. At this stage proximate cause can only be speculated upon. The defend ants are not required to supply this link. This is an adversary proceeding. Further, this is not a res ipsa loquitur situation. There are too many variables not answered by the evidence presented.
“Mr. Baker suffered greatly by this accident, and it was brought about through absolutely no fault of his own. However, without a showing of proximate cause, Kansas law will not allow a recovery.
“The city’s motion, joined by the Kansas Department of Transportation, is granted in the sense that there has been no showing of proxi — proximate cause as it relates to the acts of the city or state.”
The trial court, while finding negligence in the improper installation of the temporary signals, also found that plaintiff had failed to show any causal connection between that negligence and the injuries and damage suffered by plaintiff. The plaintiff had the burden of proving that the negligence of the City and/or KDOT caused the damage suffered by the plaintiff. See Little v. Butner, 186 Kan. 75, 79, 348 P.2d 1022 (1960); Kreh v. Trinkle, 185 Kan. 329, 340, 343 P.2d 213 (1959). The burden of proof required of the plaintiff on the issue of causation is summarized in Prosser and Keeton on Torts § 41, pp. 269-70 (5th ed. 1984) as follows:
“The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant. Where the conclusion is not one within common knowledge, expert testimony may provide a sufficient basis for it, but in the absence of such testimony it may not be drawn. . . .
“The plaintiff is not, however, required to prove the case beyond a reasonable doubt. The plaintiff need not negative entirely the possibility that the defendant’s conduct was not a cause, and it is enough to introduce evidence from which reasonable persons may conclude that it is more probable that the event was caused by the defendant than that it was not. The fact of causation is incapable of mathematical proof, since no one can say with absolute certainty what would have occurred if the defendant had acted otherwise. Proof of what we call the relation of cause and effect, that of necessary antecedent and inevitable consequence, can be nothing more than ‘the projection of our habit of expecting certain consequents to follow certain antecedents merely because we had observed these sequences on previous occasions.’ If as a matter of ordinary experience a particular act or omission might be expected, under the circumstances, to produce a particular result, and that result in fact has followed, the conclusion may be permissible that the causal relation exists.”
The testimony at trial, viewed in the light most favorable to the plaintiff, indicated that the wind was blowing from the north, causing the traffic signals to tilt and be difficult to see. A witness stated that when a vehicle approached the intersection from the north, the signal light hanging in the middle of the road was obscured by and blended in with the surrounding terrain. Further, lay testimony at trial revealed that the amber warning signal was lit for a very short period of time, creating a rapid transition from the green to red signal. Witnesses testified Tyson approached the intersection at 45 to 50 miles per hour and made no attempt to stop prior to the collision with the Wagner vehicle. Baker also offered expert testimony by Dr. John Glennon on the subject of signal light timing, stopping distances, reaction time, and related matters. Dr. Glennon basically stated that the shorter the time of the amber light the greater the danger of intersection collisions. No cases have been cited by counsel to support the granting or denial of a directed verdict on these facts, and research has revealed no case on all fours. For cases with somewhat similar facts see Ferri v. City of Gainesville, 362 So. 2d 345 (Fla. Dist. App. 1978); Fraley v. City of Flint, 54 Mich. App. 570, 221 N.W. 2d 394 (1974); Stevenson v. State of Oregon, 42 Or. App. 747, 601 P.2d 854 (1979).
We concur with the trial court that there was insufficient evidence to establish that the timing and/or improper installation of the temporary traffic signals caused Tyson’s failure to stop. It would be sheer speculation to conclude that some defect in the installation and function of the temporary signal caused Tyson to fail to see the signals in time to stop his vehicle and avoid the crash. There were at least three signs warning approaching traffic of a reduced speed zone and traffic controls ahead. Why Tyson ignored them will probably never be known. There is nothing in the record to indicate there would have been any different result if the signals had been properly installed and if the yellow sequence on the signal had been longer. It is indeed unfortunate that the plaintiff has suffered severe injury and damage, but that alone does not justify recovery from these defendants.
The judgment is affirmed.
Allegrucci, J., not participating. | [
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Leon E. Roulier, of Colby, an attorney admitted to the practice of law in Kansas, was charged in a complaint filed by the Disciplinary Administrator with the Kansas Board for Discipline of Attorneys (Board) with violations of the Kansas Code of Professional Responsibility (Supreme Court Rule 225, 235 Kan. cxxxvii) in handling the Estate of Fern L. Craige, deceased, in the District Court of Thomas County, Kansas.
Following a hearing, a panel of the Board found that respondent, as attorney for the estate, had failed to timely file the federal estate tax return and the Kansas inheritance tax return resulting in considerable loss to the estate due to the accrual of interest and assessment of penalties. Respondent candidly admitted his failure to timely file the tax returns and attributed his failure to do so to personal problems which he testified have now been resolved. Respondent has practiced law in Colby since 1964 and no prior complaints have been filed against him. He was candid in his testimony and cooperated with the disciplinary administrator’s office and the Board. The panel concluded:
“Respondent’s actions in handling the Estate of Fern L. Craige, Deceased, do amount to neglect of a legal matter entrusted to him in violation of DR 6-101(A)(3). The Respondent’s actions also violate DR 1-102(A)(6) in that he engaged in conduct that adversely reflects on his fitness to practice law.”
The panel unanimously recommended to this Court that respondent be disciplined by public censure in accordance with Supreme Court Rule 203(a)(3). 235 Kan. cxxiv. Respondent took no exceptions to the report of the panel.
The Court, having carefully considered the record, the report of the Board, and the circumstances shown by respondent in mitigation of his conduct, approves and adopts the report of the hearing panel.
IT IS THEREFORE ORDERED that Leon E. Roulier be and he is hereby disciplined by public censure for his violations of the Code of Professional Responsibility.
IT IS FURTHER ORDERED that this order shall be published in the official Kansas Reports and that the costs herein be assessed to the respondent.
Effective this 20th day of February, 1987. | [
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The opinion of the court was delivered by
Lockett, J.:
This is an appeal of a declaratory judgment action in which Patrons Mutual Insurance Association (Patrons) sought to determine if an exclusion in its homeowners insurance policy for bodily injury to an insured applies to the wrongful death claim made by a minor son against his father, who caused the death of the mother. All were insured under the terms of the policy. The district court found that under the homeowner’s policy the son had a valid claim against his father for the wrongful death of the mother. The insurer appeals.
Three separate actions are involved in this appeal: (1) a criminal action, (2) a wrongful death action, and (3) this declaratory judgment action.
In June of 1983, Patrons issued a homeowners insurance policy to Ronald D. Harmon and Karen E. Harmon, husband and wife. Dan Harmon, the minor son of Ron and Karen, was also insured under the policy.
On September 26, 1983, Ron and Karen returned home from a party at which Ron had been drinking and Karen had allegedly been fraternizing with another man. Ron entered the bedroom, took a pistol off a shelf, and turned toward the bedroom door. The gun fired and the bullet struck Karen in the head. Karen died as a result of the shooting.
On September 27, 1983, Ron was charged with first-degree murder. Ron Harmon contended that the shooting was accidental.
On December 29,1983, while Ron Harmon’s criminal trial was pending, the son filed a wrongful death action against his father for loss of support and companionship, and for mental anguish caused by the death of his mother. Dan claimed that his father had negligently shot and killed his mother.
On January 14, 1984, the jury found Harmon guilty of voluntary manslaughter. To reach this verdict, the jury was required to find that Ron Harmon had intentionally caused the death of his wife. Harmon did not appeal the conviction.
On April 20, 1984, Patrons was notified by Harmon’s attorney that the wrongful death action had been filed and Patrons was requested to defend Harmon. Patrons investigated the facts and on May 10, 1984, notified Ron’s attorney that Patrons was declining to defend its insured, Ron Harmon.
On May 14, 1984, Patrons filed this declaratory judgment action to determine if there was liability coverage under its policy. Patrons denied coverage under the homeowner’s policy on three grounds:
1. Liability was excluded for bodily injury to an insured, Karen Harmon.
2. Ronald Harmon, by virtue of being convicted of voluntary manslaughter, had been proven to have intentionally shot and killed his wife.
3. Harmon had failed to timely report the filing of the lawsuit as required by the homeowner’s policy.
Patrons also claimed that the son’s negligence action against his father was barred by the intrafamily immunity doctrine recognized in Nocktonick v. Nocktonick, 227 Kan. 758, 611 P.2d 135 (1980).
Patrons later filed amotion for summary judgment. Prior to the hearing on Patrons’ motion, the wrongful death action that Patrons had refused to defend proceeded to jury trial before the same judge who had presided at Harmon’s criminal trial. The trial judge found from the evidence presented that, as a matter of law, Ron Harmon had negligently shot and killed his wife. The judge then submitted the question of damages to the jury. On August 10,1984, the jury awarded Linda Jo Kerl, as guardian and next friend of Dan C. Harmon, $125,000 and costs. No appeal was taken.
On September 12, 1984, Kerl, as guardian and next friend of Dan, intervened in this action. The judge overruled Patrons’ motion for summary judgment, finding that there was a factual dispute as to whether Ron Harmon accidentally or intentionally injured his wife. The judge did not determine if the policy excluded coverage for bodily injury to an insured. Patrons filed a motion asking the court to reconsider this issue. Later, in December, the judge ruled that all three Harmons were insureds under the policy and the son was not claiming damages for bodily injury (K.S.A. 60-1801), which are excluded under the policy, but damages “for his losses as an heir” (K.S.A. 60-1901). In addition, the court held that the policy clauses excluding coverage for bodily injury to any insured and excluding coverage for intentional or expected acts were ambiguous as a matter of law. The judge denied Patrons’ motion for summary judgment, finding that the insurance policy covered the damages sustained by Dan C. Harmon and awarding the son $125,000 in damages. Patrons appealed. The defendant and the intervenor cross-appealed. Ron Harmon claimed that Patrons had failed to defend him as required by its policy.
Patrons is not bound to defend an insured in actions brought wholly outside any coverage obligations assumed in the policy or when the insurer would have no liability if the plaintiff secured a judgment against the insured. Where there is no coverage, there is no duty to defend. Spruill Motors, Inc. v. Universal Underwriters Ins. Co., 212 Kan. 681, 684, 512 P.2d 403 (1973).
Patrons must look beyond the effect of the pleadings and consider any facts brought to its attention or any facts which it could reasonably discover when determining whether it has a duty to defend. If those facts give rise to a “potential of liability” under the policy, Patrons has a duty to defend. Gray v. Zurich Insurance Co., 65 Cal. 2d 263, 54 Cal. Rptr. 104, 419 P.2d 168 (1966). The possibility of coverage may be remote, but if it exists the company owes the insured a defense. The possibility of coverage must be determined by a good faith analysis of all information known to the insured or all information reasonably ascertainable by inquiry and investigation. If ambiguities in coverage, including exclusionary clauses, are judicially determined against the insurer, the ultimate result controls the insurer’s duty to defend. Spruill Motors, Inc., 212 Kan. 681, 686.
In Spruill, the insured, an employer, was sued for damages deliberately inflicted by its employees. The insurance company refused to defend Spruill, because the petition alleged acts outside the coverage of Spruill’s liability insurance policy. The insurance company investigated and withdrew from Spruill’s defense after determining there was no coverage for intentional acts. Judgment was entered against Spruill. Spruill then sued its insurer for reimbursement for the judgment and attorney fees awarded. This court found that the insurer had information which showed a probability that its policy covered some of the injuries; therefore, there was actual coverage and the insurer was liable.
Patrons, after investigating the facts, determined that there was no coverage and refused to provide Ron Harmon a defense in the son’s wrongful death action. Patrons then filed this declaratory judgment action to determine if there was coverage under its policy. The judge ruled that in the wrongful death action it had been determined that Ron Harmon had accidentally caused the death of his wife. A valid judgment had been entered against Ron Harmon in the wrongful death action. As an insurer, Patrons was privy to Ron Harmon, its insured. Because of the mutuality rule of collateral estoppel, Patrons was bound by that prior finding in this action.
The mutuality rule provides that a person who is a party or privy to a party to an action in which a valid judgment other than a judgment in rem is rendered is bound by or entitled to claim the benefits of an adjudication upon any matter decided in the action. Three questions must be asked in considering whether mutuality applies: Was the issue decided in the prior adjudication identical with the one presented in the action in question? Was there a final judgment on the merits? Was the party against whom the claim is asserted a party or in privity with a party to the prior adjudication? McDermott v. Kansas Public Serv. Co., 238 Kan. 462, 712 P.2d 1199 (1986).
Patrons candidly requests this court to create an exception to the mutuality requirement of collateral estoppel for insurance companies. Because Patrons was in privity with a party, Ron Harmon, in the wrongful death action, it was bound by that judgment. An exception to the rule would allow Patrons, the insurer, to refuse to defend its insured in the original action and, if the insured lost, would allow the insurer to relitigate the same issue against its insured in a subsequent action.
We are not inclined to create a special exception to the mutuality requirement of collateral estoppel for insurance companies.
Patrons next requests that we allow the jury’s finding of guilt to the voluntary manslaughter charge be admitted into evidence in the subsequent declaratory judgment action. Patrons claims that where an insured is convicted of an intentional crime, that finding of guilt should be determinative in a subsequent civil action and negate any claim by the insured that the injury was an accident or caused by a negligent act. This is contrary to our present law.
Under the Kansas evidentiary rules, any evidence having a reasonable tendency to establish a material fact is relevant and may be admitted in evidence. A plea of guilty to a charge is an admission of an act which was the basis for that charge. When relevant, the plea of guilty to that charge may be admitted into evidence in a subsequent civil action as an admission of the act charged. K.S.A. 60-401 et seq.; K.S.A. 1986 Supp. 60-460(g); Scogin v. Nugen, 204 Kan. 568, 464 P.2d 166 (1970).
A plea of nolo contendere or a finding of guilt in a criminal action is not an admission of the act charged and is limited to the case where the plea of nolo contendere or the finding of guilt is entered and cannot, therefore, be used as evidence as an admis sion in a subsequent civil case. Federal Deposit Ins. Corp. v. Cloonan, 165 Kan. 68, 193 P.2d 656 (1948). We are not inclined to enlarge the statutory rule of evidence as Patrons requests.
Patrons correctly claims that it could not have represented Ron Harmon in the wrongful death action because its interests were adverse to those of Harmon. In that action, the insured wanted to prove either that he was not liable for the death or that he was, at most, negligent. It would be an economic benefit for the insurer to prove that the insured, if liable, had committed an intentional act and, therefore, coverage for the insured was excluded under the terms of its policy. Under such circumstances, we agree the interest of the insured and the insurer are adverse. Patrons could not represent both interests.
Patrons claims that, because of its adverse interest to the insured, its course of action was to file this declaratory judgment action to determine the issue of coverage and its obligation to defend the insured. Other courts have held that in similar situations the insurer is not estopped from relitigating the issue of intent. For example, see Farmers Ins. Co. of Arizona v. Vagnozzi, 138 Ariz. 443, 675 P.2d 703 (1983); Fireman’s Fund Ins. Co. v. Rairigh, 59 Md. App. 305, 475 A.2d 509 (1984); and Kelly v. Cherokee Ins. Co., 574 S.W.2d 735 (Tenn. 1978).
In Bell v. Tilton, 234 Kan. 461, 674 P.2d 468 (1983), there was a conflict of interest between the insured and the insurer in a civil action. The insurance company hired independent counsel to defend the insured in the civil action and notified the insured that it was reserving all rights under the policy. This procedure protects both the insured’s and the insurer’s interests and rights and eliminates the necessity of multiple suits to determine the same issues. We believe this is the proper procedure to protect the rights of both parties under their contract.
Patrons contends that the trial court erred in finding that the household exclusion did not prevent Dan Harmon from recovering under the policy. The trial court, in considering the household exclusion, made two rulings:
1. Dan Harmon was not making a claim for his “bodily injuries” or the “bodily injuries” to “any insured” and, therefore, the household exclusion did not apply and;
2. in the trial court’s opinion, the household exclusion clause and coverage clause were ambiguous.
Regardless of-the construction of the written contract made by the trial court, on appeal a contract may be construed and its legal effect determined by the appellate court. Cornwell v. Jespersen, 238 Kan. 110, 708 P.2d 515 (1985).
To be ambiguous, a contract must contain provisions or language of doubtful or conflicting meaning, as gleaned from a natural and reasonable interpretation of its language. Ambiguity in a written contract does not appear until the application of pertinent rules of interpretation to the face of the instrument leaves it genuinely uncertain which one of two or more meanings is the proper meaning. Clark v. Prudential Ins. Co., 204 Kan. 487, 491, 464 P.2d 253 (1970).
The language of a policy of insurance, like any other contract, must, if possible, be construed in such manner as to give effect to the intention of the parties. Where the terms of a policy of insurance are ambiguous or uncertain, conflicting, or susceptible of more than one construction, the construction most favorable to the insured must prevail. Since the insurer prepares its own contracts, it has a duty to make the meaning clear. If the insurer intends to restrict or limit coverage provided in the policy, it must use clear and unambiguous language in doing so; otherwise, the policy will be liberally construed in favor of the insured. When an insurance contract is not ambiguous, the court may not make another contract for the parties. Its function is to enforce the contract as made. Goforth v. Franklin Life Ins. Co., 202 Kan. 413, 417, 449 P.2d 477 (1969).
The Harmons’ insurance policy contained the following liability provisions:
"Section II - Liability Coverages - Coverage E Personal Liability.
“If a claim is made or a suit is brought against any insured for damages because of bodily injury or property damage to which this coverage applies, we will:
“a. pay up to our limit of liability for the damages for which the insured is legally liable; and
“b. provide a defense at our expense by counsel of our choice. . . .” “Section II - Exclusions.
“1. Coverage E - Personal Liability and Coverage F - Medical Payments to others do not apply to bodily injury or property damage:
“a. which is expected or intended by the insured;
“f. bodily injury to you and any insured within the meaning of part a. and b. of Definition 3, insured.”
Patrons contends that Dan Harmon’s action is for his mother’s bodily injury which was caused by the intentional act of his father. Dan Harmon contends that his action is for damages due to the wrongful death of his mother which resulted from the bodily injury accidentally caused by his father, i.e., wrongful death. K.S.A. 60-1901 et seq.
The policy defines “bodily injury” to mean “bodily harm, sickness or disease including required care, loss of services and death resulting therefrom.” Patrons argues that Dan Harmon’s wrongful death damages are the types of damages included within the policy definition for bodily injury. K.S.A. 60-1901 et seq. provides damages for mental anguish; suffering; bereavement; loss of society, companionship, comfort or protection; loss of filial care or attention; loss of parental care or training; and the reasonable funeral expenses for the deceased. Karen suffered bodily injury, i.e., death.
The trial court found that the coverage and exclusion clauses were ambiguous, and that the ambiguity or conflict in the provisions of an insurance policy was to be construed strictly against Patrons and in favor of its insured. It said that the language in the insurance contract was ambiguous because the words used to express the meaning and intention of the parties were insufficient and the contract could be understood to reach two or more possible meanings.
We do not agree with the trial court’s finding that the policy is ambiguous. The policy simply states that personal liability coverage does not apply to (1) bodily injury or death which is expected or intended by the insured or (2) bodily injury or death to any insured. This is not ambiguous. The coverage neither compensates individuals who suffer injury or damages by an act that is intended or expected by the insured nor compensates any insured for bodily injury or death to an insured. Dan Harmon, an insured, is suing for damages resulting from the wrongful death of his mother, an insured. Dan’s action was excluded under the homeowners policy.
Other issues raised need not be determined. Reversed.
Allegrucci, J., not participating. | [
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The opinion of the court was delivered by
Herd, J.:
This is a consolidated appeal from decisions of the district courts of Washington and Republic Counties, holding the Family Farm Rehabilitation Act, K.S.A. 1986 Supp. 2-3401 et seq., unconstitutional.
The facts are not in dispute.
No. 59,734
On November 13, 1985, the appellee Federal Land Bank of Wichita filed a foreclosure action in Washington County against the appellants, Delwin, Lois, Herman, and Amanda Bott. On April 11, 1986, the district court granted judgment to the appellee for the amount of the notes plus interest and costs, and for foreclosure of the mortgage. No appeal was taken from the judgment.
On May 12, 1986, the Botts filed a motion for protection under the Family Farm Rehabilitation Act (’’the Act”). On June 24, 1986, the district court issued a memorandum decision finding the Act unconstitutional and ordered execution to issue on the judgment. The Botts appeal from that ruling.
No. 59,737
On December 6, 1985, the Federal Land Bank of Wichita filed a foreclosure action in Republic County against Clarence and Ethel Nelson. On July 8, 1986, a journal entry of judgment was filed, granting judgment against the Nelsons plus interest and costs, and for foreclosure of the mortgage. No appeal was taken from this judgment.
On June 3, 1986, the Nelsons filed a motion for protection under the Family Farm Rehabilitation Act. On July 8, 1986, the district court held the Act unconstitutional and ordered execution to issue on the judgment. The Nelsons appeal from this ruling.
Prior to discussing the issues raised by the appellants, let us examine the provisions of the Family Farm Rehabilitation Act.
Recognizing the increasing rate of farm foreclosures, the declining value of land used for agricultural purposes, high interest rates, and low commodity prices, the 1986 Kansas Legislature enacted the Family Farm Rehabilitation Act. The stated purpose of the Act is “to assist in stabilizing the economic conditions of this state.” K.S.A. 1986 Supp. 2-3401. The Act, which became effective May 8, 1986, authorizes the stay of enforcement of certain judgments relating to land and property used in farming operations and provides for redemption of that land and property in certain cases.
The Act is limited in scope to agricultural foreclosure or repossession actions wherein the defendant is a “farmer” engaged in a “farming operation” and is “insolvent.” A “farmer” is a person or family farm corporation which derives more than 80% of gross income from farming operations. K.S.A. 1986 Supp. 2-3402(c). “Insolvent” means a person has no equity in property other than exempt property under other provisions of Kansas law. K.S.A. 1986 Supp. 2-3402(e). The Act applies only to cases involving foreclosure of mortgages of agricultural land, the cancellation of a contract for the purchase of agricultural land, or the repossession of or collection against agricultural property commencing on or after October 1, 1985, which has been reduced to a final judgment without appeal. The Act automatically expires July 1, 1991. K.S.A. 1986 Supp. 2-3412.
Under the Act a farmer may apply at least 20 days prior to trial or hearing date for protection from foreclosure or repossession, or within 30 days of final judgment for actions pending on the effective date of the Act. At the hearing, the court must determine the current fair market value of the agricultural land and property as a whole as well as the fair market value of each parcel of land and each piece of property. The court must further determine whether the applicant is an “insolvent farmer” as defined in the Act and whether the provisions of the Act are applicable to the case. K.S.A. 1986 Supp. 2-3405.
If the court finds the Act applicable, the court must stay execution of judgment for 30 days. K.S.A. 1986 Supp. 2-3406(a). If within that 30 days, the farmer pays into court an amount equal to one year’s interest on the fair market value of the agricultural land and/or one year’s interest plus depreciation on the fair market value of the agricultural property (the court may alter such payment into semi-annual or quarterly-annual payments), the court must stay execution of the judgment for a period of one year after the first payment. K.S.A. 1986 Supp. 2-3406(a). (The interest rate required under the Act is equal to the average yield received on 52-week United States Treasury Bills at the most recent public offering prior to the time of payment by the debtor, plus 2%. K.S.A. 1986 Supp. 2-3406[c].) As part of its order of stay of execution, the court must specify “methods of providing adequate protection” of the land or property upon which execution has been stayed. K.S.A. 2-3406(a). “Adequate protection” is defined as “those requirements which maintain the creditor n substantially the same position as the creditor was in at the time the court ordered a stay of execution of the judgment” and includes, but is not limited to, insurance, prevention of waste, and preservation and inspection of the land or property. K.S.A. 1986 Supp. 2-3402(f).
Upon the expiration of the first year’s stay, up to two additional years’ stays upon similar conditions may be entered by the court upon application by the farmer. K.S.A. 1986 Supp. 2-3406(b).
A key provision of the Act provides that during the stay period, a debtor waives his right to redeem as otherwise provided by law but still has the right to redeem as provided under the Act. K.S.A. 1986 Supp. 2-3406(d). The Act allows a farmer to redeem any part or all of the land or property subject to the stay by paying costs and taxes and the greater of the fair market value of the property determined by the court at the time of the initial hearing or at the time of the redemption. K.S.A. 1986 Supp. 2-3407.
If the farmer does not meet his payments or other obligations in maintaining the stay or redeeming the property under the Act, the creditor may proceed with execution of its judgment.
The Act states its provisions should not be construed to forgive or discharge any indebtedness of the judgment debtor or to affect any judgment lien on property of the defendant-owner or purchaser other than property subject to the mortgage or lien being foreclosed or the contract being cancelled. K.S.A. 1986 Supp. 2-3411.
The final clause of the Act is a severability clause providing that, if any part or parts of the Act are found to be unconstitutional, the remainder of the Act is presumed to be constitutional. K.S.A. 1986 Supp. 2-3413.
Before turning to the issue of the constitutionality of the Family Farm Rehabilitation Act, we first restate the basic principles applicable when the court considers the constitutionality of a statute. In Barnes v. Kansas Dept. of Revenue, 238 Kan. 820, 824, 714 P.2d 975 (1986), we held:
“ ‘This court adheres to the proposition that the constitutionality of a statute is presumed, that all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution. Moreover, it is the court’s duty to uphold the statute under attack, if possible, rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done.’ ” (Quoting State v. Huffman, 228 Kan. 186, Syl. ¶ 1, 612 P.2d 630 [1980]).
See Bingo Catering & Supplies, Inc. v. Duncan, 237 Kan. 352, 354, 699 P.2d 512 (1985).
The primary issue presented for review is whether the Family Farm Rehabilitation Act unlawfully impairs contracts in violation of Article I, Section 10 (the contract clause) of the United States Constitution, which provides: “No State shall . . . pass any . . . Law impairing the Obligation of Contracts . . . .”
The Federal Land Bank argues the Act impairs the obligation of its contracts made with the appellants by removing many important rights it holds as a mortgagee, including: (1) The right to retain the mortgage lien until the indebtedness secured thereby is fully paid; (2) the right to realize upon the security by a judicial sale; (3) the right to determine when such sale shall be held; and (4) the right to control the property after the normal redemption period. Further, the appellee contends the Act impairs its contracts with the appellants by reducing the interest rate from that provided in the note to the rate set by statute and by allowing the mortgagor to continue in possession for up to three years without paying real estate taxes or rent or accounting for profits.
Historically, the contract clause of the United States Constitution was adopted to prohibit the states from enacting laws which “impair the obligation of contracts.” This prohibition has been construed as preventing the states from passing any statute which will alleviate the commitment of one party to a contract or which interferes with the enforcement of the contract. See Hale, The Supreme Court and the Contract Clause, 57 Harv. L. Rev. 512, 621, 852 (1944). The contract clause does not apply to the United States government, thus permitting federal bankruptcy laws.
The motive for adoption of the contract clause was to prohibit states from retroactively interfering with contracts between private parties. Specifically, the main thrust of the clause was intended to prevent the states from enacting debtor relief legislation. (The Family Farm Rehabilitation Act is a debtor relief law.) The delegates to the Constitutional Convention recognized money lenders required assurance that credit arrangements would not be cancelled by state legislatures under pressure from troubled borrowers. The delegates also realized economic growth is dependent upon a stable environment for those who have capital to invest or loan. 2 Rotunda, Nowak and Young, Treatise on Constitutional Law: Substance and Procedure § 15.8 (1986).
Despite the narrow scope of the contract clause envisioned by the framers, the United States Supreme Court has historically given the clause a more expansive interpretation. The Supreme Court first considered the meaning of the clause in Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 3 L. Ed. 162 (1810), a case which arose out of the notorious Georgia Yazoo land scandal of the 1790’s. In an opinion written by Chief Justice John Marshall, the Court held invalid an attempt by the Georgia legislature to annul land titles granted by a previous legislature which had been subjected to fraud and bribery. Although the decision of the Court was based at least partially upon the contract clause, Justice Marshall also utilized “general principles” of society and government and the concept of natural law. Thus, it was still uncertain whether the contract clause, standing alone, could prohibit legislation impairing the obligation of a state to a private party.
This uncertainty was resolved some nine years later in one of the most important and famous decisions rendered under the contract clause, Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518, 4 L. Ed. 629 (1819). There, the Court applied the contract clause to invalidate a New Hampshire statute which attempted to change the provisions of the corporate charter issued to the college by George III. The Court, speaking through Justice Marshall, held that a corporate charter is a contract entitled to protection under the clause. This construction of the contract clause served to protect industrial and financial corporations from legislative regulation for many years to follow. Wright, The Growth of American Constitutional Law § III (1942).
In Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122, 4 L. Ed. 529 (1819), the Court first applied the contract clause to the type of legislation the framers had in mind — e.g., debtor relief laws. In Sturges, the Court held a New York insolvency law unconstitutional which discharged debtors’ obligations once they had surrendered their property. See Tribe, American Constitutional Law § 9-5 (1978). However, eight years later, in Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 6 L. Ed. 606 (1827), a strongly divided Supreme Court held that a debtor relief law which had prospective application was constitutional. In so holding, the majority reasoned that state laws in existence at the time a debt or other contractual obligation was incurred became part of the contract and subsequent enforcement of such laws could not impair contractual obligations.
In the late nineteenth century, the Supreme Court used the contract clause more than any other constitutional provision to invalidate state legislation. However, in the early 1900’s, the contract clause fell into disuse as the Court began to rely upon competing constitutional theories such as the doctrine of substantive due process and the police power as a basis for softening the claimed harshness of the contract clause. See Note, A Process-Oriented Approach to the Contract Clause, 89 Yale L.J. 1623 (1980).
In the 1930’s, states enacted debtor relief laws as a way of dealing with the Depression, and the contract clause was again relied upon as a means of attacking such legislation. Perhaps the most important case decided during that period (and the one most relevant to our consideration of the case at bar) was Home Bldg. & L. Assn. v. Blaisdell, 290 U.S. 398, 78 L.Ed. 413, 54 S. Ct. 231 (1934). At issue in Blaisdell was a Minnesota law which gave state courts authority to extend a landowner’s redemption period after a real estate mortgage foreclosure sale from eighteen months to three years. During the period of extension, the mortgagor was allowed to remain in possession but was required to pay the reasonable rental value of the property, as fixed by the court, toward the payment of the mortgage debt, interest, taxes, and insurance.
In upholding the mortgage foreclosure moratorium, the court recognized “the necessity of finding ground for a rational compromise between individual rights and public welfare.” 290 U.S. at 442. This “compromise” is more thoroughly discussed at page 439 of the opinion, where the court states:
“Undoubtedly, whatever is reserved of state power must be consistent with the fair intent of the constitutional limitation of that power. The reserved power cannot be construed so as to destroy the limitation, nor is the limitation to be construed to destroy the reserved power in its essential aspects. They must be construed in harmony with each other. This principle precludes a construction which would permit the State to adopt as its policy the repudiation of debts or the destruction of contracts or the denial of means to enforce them. But it does not follow that conditions may not arise in which a temporary restraint of enforcement may be consistent with the spirit and purpose of the constitutional provision and thus be found to be within the range of the reserved power of the State to protect the vital interests of the community.”
After a detailed review of constitutional authorities, the Court concludes:
“With a growing recognition of public needs and the relation of individual right to public security, the court has sought to prevent the perversion of the clause through its use as an instrument to throttle the capacity of the States to protect their fundamental interests. This development is a growth from the seeds which the fathers planted. . . . The principle of this development is, as we have seen, that the reservation of the reasonable exercise of the protective power of the State is read into all contracts.” 290 U.S. at 443-44.
Thus, it is clear from Blaisdell that while the contract clause appears facially absolute, it must be considered in conjunction with the reserved power of the state to protect the vital interests of the community.
Applying this criteria to the facts of Blaisdell, the Court determined the Minnesota statute was justified as an exercise of the State’s police power. In so holding, the Court listed five factors which were significant to its analysis: (1) the existence of an emergency; (2) the legislation was addressed to a legitimate end for the protection of a basic interest of society as opposed to the advantage of particular individuals; (3) the relief afforded was of a character appropriate to the emergency; (4) the statute imposed reasonable conditions; and (5) the statute was limited to the “exigency which called it forth.”. 290 U.S. at 444-47.
The “reasonable conditions” considered essential by the court were stated as follows:
“[T]he integrity of the mortgage indebtedness is not impaired; interest continues to run; the validity of the sale and the right of a mortgagee-purchaser to title or to obtain a deficiency judgment, if the mortgagor fails to redeem within the extended period, are maintained; and the conditions of redemption, if redemption there be, stand as they were under the prior law. The mortgagor during the extended period is not ousted from possession but he must pay the rental value of the premises as ascertained injudicial proceedings and this amount is applied to the carrying of the property and to interest upon the indebtedness. The mortgagee-purchaser during the time that he cannot obtain possession thus is not left without compensation for the withholding of possession.”
The contract clause was again asserted in the 1970’s when the Supreme Court in Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 57 L. Ed. 2d 727, 98 S. Ct. 2716 (1978), struck down a Minnesota statute which protected employees’ expectations of receiving pensions. The law required that, when certain companies terminated a pension plan or closed their Minnesota plants, pension rights would vest for all employees of ten years or more.
In holding the Minnesota statute violated the contract clause, the Court applied the factors utilized in Blaisdell and which were given “concrete force” in three cases that followed Blaisdell. 438 U.S. at 243. Application of this test resulted in a determination that the Minnesota law: (1) did not deal with a broad, generalized economic or social problem; (2) did not operate in an area already subject to state regulation; (3) severely, permanently, and immediately altered contractual relationships; and (4) protected a narrow class rather than a broad societal interest. 438 U.S. at 250.
In a more recent case, Energy Reserves Group v. Kansas Power & Light, 459 U.S. 400, 74 L. Ed. 2d 569, 103 S. Ct. 697 (1983), the Court upheld a Kansas law which placed a statutory ceiling on price increases which a natural gas supplier could charge a public utility under the escalator clause of a pre-existing contract. The Court reasoned that to the extent the law substantially impaired contract rights, it is a narrowly tailored means of promoting an important state interest in protecting consumers from an imbalance in market prices caused by federal deregulation of natural gas prices.
Since Energy Reserves pertains to a regulated industry which has historically been exempt from the contract clause, it is cited only to show the clause is still recognized as a viable constitutional limitation on impairment of contract and to set out the test the Court provided for determining the contract clause’s application.
The “test” provided in Energy Reserves was stated as follows:
“The threshold inquiry-is ‘whether the state law has, in fact, operated as a substantial impairment of a contractual relationship.’ [Quoting Allied Structural Steel Co. v. Spannaus, 438 U.S. at 244.] . . .
“If the state regulation constitutes a substantial impairment, the State, in justification, must have a significant and legitimate public purpose behind the regulation, [citation omitted] such as the remedying of a broad and general social or economic problem. . . .
“Once a legitimate public purpose has been identified, the next inquiry is whether the adjustment of ‘the rights and responsibilities of contracting parties [is based] upon reasonable conditions and [is] of a character appropriate to the public purpose justifying [the legislation’s] adoption.’” 459 U.S. at 411-12.
This test takes into account the factors applied in Blaisdell and Spannaus as well as the overriding general principle that the reservation of the State’s police power must be read into all contracts.
Keeping in mind the historical context of the contract clause and the most recent statement of the criteria for determining whether a law violates the clause, we now examine the Family Farm Rehabilitation Act for the purpose of determining whether its provisions violate the contract clause of the United States Constitution.
The initial question is whether the Act operates as a “substantial impairment” of contractual relationships. If not, there is no constitutional violation, and the test ends. Several features of the Act lead us to answer this question affirmatively.
As a preliminary matter, we note that if a farmer does not redeem the mortgaged property during the stay period, the mortgage indebtedness will not be impaired. The mortgagee will still be entitled to bid on the property at a judicial sale and to obtain a deficiency judgment, if applicable. However, the problem here is the effect a redemption of the property as provided for under the Act will have upon the mortgage indebtedness. We conclude that effect is substantial and severe.
The Act authorizes an insolvent farmer to redeem the mortgaged property at a price which is the greater of the fair market value of the property determined by the court at the time of the initial hearing or at the time of redemption. This price will generally be substantially less than the judgment amount. While the Act provides its provisions shall not be construed to forgive or discharge any indebtedness of the judgment debtor, the property subject to the mortgage or lien being foreclosed upon is specifically excepted from this rule. Further, the Act requires the farmer to be insolvent yet authorizes him to redeem the mortgaged property at a value set by the court. This provision contemplates the mortgagor obtaining title to the redeemed property free and clear of the mortgage lien, otherwise the redemption authority is meaningless. Thus, the Act seriously impairs the mortgage indebtedness, since if a farmer redeems the property, the lender is left without security for the difference between the redemption amount and the judgment amount.
Moreover, while interest continues to run during the stay period, it continues at a much lower rate than that provided under the contract. The Act provides for interest at the Treasury Bill rate plus 2% and this interest is calculated only on the fair market value of the land.
An additional impairment of the contract results from the Act’s allowance of a “partial redemption.” K.S.A. 1986 Supp. 2-3407 permits a farmer to redeem “any part or portion” of the agricultural land upon which execution has been stayed. Thus, the farmer could choose to redeem the most valuable portion of land and leave the mortgagee with a severed portion of little value.
Finally, the Act does not provide sufficient protection for the mortgagee, and lacks the “reasonable conditions” contained in the debtor relief legislation upheld in Blaisdell. Specifically, the farmer is permitted to remain in possession of the property, yet he is not required to pay rent or taxes or account for profits. While the Act requires the court to specify “methods of providing adequate protection” for the agricultural land or property, it does not obligate the court to order the payment of taxes or rent or the accounting of profits. Thus, the potential for abuse is great and the legislation does not specifically protect the mortgagee.
We conclude that the Family Farm Rehabilitation Act substantially impairs the contractual relationship between the mortgagor and mortgagee because the Act (1) impairs the mortgage indebtedness; (2) alters the contract rate of interest; (3) permits partial redemption of the mortgaged property; and (4) provides inadequate protection for the mortgagee. This makes K.S.A. 1986 Supp. 2-3401 et seq. facially unconstitutional according to Blaisdell.
However, the next .two prongs of the test, taken together, can restore the law’s constitutionality. Under the second prong of the Energy Reserves test, we must determine whether there is a significant and legitimate public purpose behind the legislation. The stated purpose of the Act is to assist in stabilizing agricultural conditions. There can be no doubt there is a serious depression in agriculture. High interest rates, inflation, overproduction, and low commodity prices threaten the stability of the entire industry. Agriculture’s stability affects the well-being of all Kansans. None of the parties to this appeal, including the Federal Land Bank, disagree that the public purpose exists. Thus, we hold there is such a significant and legitimate public purpose behind the legislation to justify the legislature in exercising its police power to assist the troubled agricultural industry.
This now brings us to the third prong of the Energy Reserves test — whether the impairments to the contracting parties’ rights and responsibilities are based upon “reasonable conditions” and are of a “character appropriate to the public purpose” to justify the legislation’s adoption. In other words, even though the impairment of contract by the legislature is justified under the police power to satisfy a significant public purpose, is the remedy reasonable and appropriate to accomplish the desired result?
The standards of “reasonable conditions” set out in Blaisdell are determinative of this question. Blaisdell considered it essential that the integrity of the mortgage indebtedness not be impaired; that the interest pursuant to the contract continue to run; that the mortgagee have the right to a title to the security or to obtain a deficiency judgment; that the conditions of redemption, if it occurs, stand as they were under the prior law; and that the mortgagor, if he retains possession during the extended redemption period, pay a reasonable rental.
K.S.A. 1986 Supp. 2-3401 et seq. impairs the mortgage debt by authorizing redemption at less than the judgment amount and preventing the mortgagee from bidding at a judicial sale or obtaining a deficiency judgment. It changes the rate of interest from that provided in the contract to a set rate provided in the Act. The conditions of redemption are changed as the Act authorizes redemption of any part or parcel of the mortgaged land. Further, the Act makes no specific provision for the payment of taxes, profits, or reasonable rental during the period of extended redemption. Finally, under K.S.A. 1986 Supp. 2-3401 et seq., all institutions and persons making farm loans would cease doing so because the statute impairs the security for such loans.
For the foregoing reasons we hold the Family Farm Rehabilitation Act, K.S.A. 2-3401 et seq., unconstitutionally impairs the contract between mortgagor and mortgagee in violation of Article I, Section 10 of the United States Constitution. Although the Act provides that if any part or parts of the Act are found to be unconstitutional, the remainder of the Act is presumed to be constitutional, we do not so hold. The constitutional deficiencies which we have delineated here — particularly the lack of “reasonable conditions” for the protection of the mortgagee — permeate the entire Act. Accordingly, we are unable to apply the severability clause of the Act.
We mention in passing that the United States Congress, which is unrestrained by the contract clause, recently enacted a new chapter to the Bankruptcy Code — Chapter 12 — for the benefit of economically depressed farmers. Adjustments of Debts of a Family Farmer with Regular Annual Income, Pub. L. No. 99-554, Sec. 255, 99th Cong., 2d Sess., 10A U.S. Code Cong. & Ad. News, Dec. 1986 (to be codified at 11 U.S.C. § 1201 et seq.). It may furnish some relief for persons such as the defendants here.
The judgment of the district court is affirmed.
Schroeder, C.J., and Allegrucci, J., not participating. | [
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The opinion of the court was delivered by
Holmes, J.:
This is an appeal by the State pursuant to K.S.A. 22-3602(b)(l) from an order discharging the defendant John David Puckett at the end of his second preliminary hearing on a criminal complaint charging one count of making a terroristic threat (K.S.A. 1985 Supp. 21-3419).
The facts are not in dispute. On the evening of August 30, 1985, the prosecutrix, Nancy Schall, met her former boyfriend, the defendant John Puckett, while out socializing. Puckett was intoxicated at the time and Schall allowed him to accompany her home and sleep on her couch. When Puckett was awakened the next morning, he was belligerent and refused to leave Schall’s residence for over an hour. Ultimately, Schall drove the defendant to his residence, dropped him off and returned to her home. Shortly thereafter Puckett returned and entered Schall’s home without authorization. Schall was frightened and when the defendant reached for her she fled to a neighbor’s home and called the police. When the police arrived, Puckett had left the residence.
A short time later, and while the police were still at her home, Schall began to receive threatening calls from the defendant. The calls persisted and the victim estimated that she received between fifteen and twenty calls. She testified Puckett repeatedly threatened to kill her. A complaint was filed on September 19,1985, charging Puckett with making a terroristic threat, and a preliminary hearing was held October 31, 1985. At the conclusion of that hearing the magistrate judge granted the defendant’s motion to dismiss. The State then refiled the charge on November 14, 1985, and a second preliminary hearing was held March 4, 1986.
On cross-examination at the March 4, 1986, preliminary hearing, Schall testified that on the third weekend of October, 1985, she and the defendant had spent a weekend together vacationing at the Lake of the Ozarks. In addition, the victim acknowledged that Puckett had spent Christmas. Day 1985 at her parents’ house.
At the conclusion of testimony, the district judge dismissed the charge of terroristic threat and in doing so stated:
“Mr. Puckett, the circumstances of this case are such that this puts me in a bit of a quandary. There’s no question but what technically, the State has made a prima facie showing in terms of the State’s obligation to establish what you did on or about the 31st day of August, ‘85. There is no question in my mind but what the [complaining witness] was terrorized by your conduct on that occasion. What I have a problem with in this case is the fact that apparently you won’t leave this lady alone at this point even though she has apparently made it repeatedly obvious to you that she does not wish to see you or have any further contact with you. Now, the law is very clear. It doesn’t permit you to force yourself on this lady or on me or upon anybody else. If they don’t want you on their property, then you’ve got to honor that. Now, I don’t know how much you intend to spend on bond and legal fees and so forth in the process of learning that lesson, but you better learn it. [Emphasis added.]
“Now, I’m not going to buy the concept, Mr. Beye, I’m not going to buy the concept that this lady can be terrorized by the Defendant on 30 or 31 August and then go spend a nice weekend at Tan-Tar-A in October. Now, you know, there’s a little thing called forgiveness in the law, whether its criminal law or civil law, and I’ll draw you a parallel. It’s very clear, you know, when a man and his wife are having marital problems that one can be very angry at the other and one may file for divorce, and maybe that person at that point has been beaten or knocked around or threatened or whatever. But when those two people through their own voluntary actions reconcile, then the law says very clearly that the past transgressions are forgiven because of the changed attitude and the reconciliation that occurred thereafter.
“Now, I’m not about to bind this case over and suggest that Mr. Puckett ought to go to trial on a felony charge of harassment of this lady after they reconciled their differences and spent a pleasant weekend at Tan-Tar-A. Now, it’s just ludicrous to have her walk through the door to my courtroom today and suggest that today after this long and leisurely and I assume intimate relationship and weekend at Tan-Tar-A that she wants me to bind him over for his terrorizing of her in August of-last year. That is ludicrous. And quite frankly, Mr. Beye, I would love to have you take this case on an appeal and see what the Court of Appeals would say with the concept that she can be terrorized in August of last year, spend a weekend of October in intimate relationships, and then pursue a felony case in prosecution thereafter based upon a prior occurring factual circumstance.
“The Defendant is discharged and surety is released. But, Mr. Puckett, I hope at this point you’ll have the good sense to follow Mr. Russell’s good advice and stay away from this woman.”
The only issue raised by the State is whether the judge erred in failing to bind the defendant over for trial.
The State claims that probable cause existed under the testimony outlined above to require the judge to bind the defendant over to the district court for trial. Probable cause at a preliminary hearing has been defined as evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused’s guilt. State v. Green, 237 Kan. 146, 697 P.2d 1305 (1985). We agree with the State that probable cause existed to bind the defendant over for trial.
K.S.A. 22-2902 provides in part:
“Preliminary examination. (1) Every person arrested on a warrant charging a felony or served with a summons charging a felony shall have a right to a preliminary examination before a magistrate, unless such warrant has been issued as a result of an indictment by a grand jury.
(3) The defendant shall not enter a plea at the preliminary examination. The defendant shall be personally present and the witnesses shall be examined in said defendant’s presence. The defendant’s voluntary absence after the preliminary examination has been begun in said defendant’s presence shall not prevent the continuation of the examination. The defendant shall have the right to cross-examine witnesses against the defendant and introduce evidence in his or her own behalf. If from the evidence it appears that a felony has been committed and there is probable cause to believe that a felony has been committed by the defendant the magistrate shall order the defendant bound over to the district judge or associate district judge having jurisdiction to try the case; otherwise, the magistrate shall discharge the defendant.” (Emphasis added.)
In the present case the judge acknowledged that the State had established sufficient probable cause that the crime alleged had been committed. Having found probable cause, the judge was required by the statute to bind the defendant over for trial. Compare State v. Jones, 233 Kan. 170, 660 P.2d 965 (1983). It is not the function of the judge or magistrate at a preliminary hearing to determine the wisdom of the prosecuting attorney’s decision to file and pursue the charges against a defendant. Neither is it the function of the trial judge to conclude that there should be no prosecution because the possibility of a conviction may be remote or virtually nonexistent. State v. Hunter, 232 Kan. 853, 658 P.2d 1050 (1983). While the court’s analogy of the present facts to the defense of condonation in a divorce or marital case appears rational, and has a certain amount of appeal from a commonsense standpoint, there is no such defense to a criminal charge. Nancy Schall was not a party to this case. The action is between the State of Kansas and the defendant and her wishes or actions subsequent to August 31, 1985, do not control whether a prosecution should be pursued. When the State has established the necessary probable cause at a preliminary hearing, it is the duty of the judge to bind the defendant over for prosecution regardless of the wishes of the alleged victim or the personal assessment of the judge as to the merits of the action.
The judge erred when he failed to bind the defendant over for trial.
Defendant on appeal asserts that further prosecution is barred because of the constitutional prohibition against double jeopardy. It is argued that subjecting the defendant to two prelimi nary hearings constitutes double jeopardy when there was no additional or different evidence offered at the second preliminary hearing. It has often been held that the discharge of a defendant at a preliminary hearing does not constitute a bar to a subsequent prosecution on the same charges. State v. Hunter, 232 Kan. at 854; State v. Bloomer, 197 Kan. 668, 671, 421 P.2d 58 (1966), cert. denied 387 U.S. 911 (1967). The argument lacks merit.
The judgment of the district court is reversed and the case is remanded with directions to reinstate the complaint. | [
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The opinion of the court was delivered by
McFarland, J.:
This is an action by members of the Pinebrooke Condominium Association Subdivision Board of Directors (plaintiffs-appellants), individually and on behalf of all other Pinebrooke condominium owners, against the builder-original owners of the complex (N. W. Dible Co. et al.) seeking damages resulting from negligent installation of fireplaces in the condominiums. The district court entered summary judgment in favor of the defendants based on the statute of limitations (K.S.A. 60-513), and plaintiffs appealed therefrom. The Court of Appeals affirmed the district court in an unpublished opinion. The matter is before us on petition for review.
At the outset, it should be noted that certain significant facts are in dispute. However, looking at the pleadings and discovery record in the light most favorable to plaintiffs, as we are required to do in reviewing the entry of summary judgment herein, the following would appear to be an appropriate factual statement.
The units comprising the Pinebrooke Condominium were built as apartments in 1968-70. The owner and general contractor was defendant N. W. Dible Co. The general partners in N. W. Dible Co. were William H. Hickok and decedent John D. Hickok. The masonry work in the fireplaces may have been subcontracted to a masonry firm. On December 24, 1969, during construction, a fire broke out in one of the fireplace units. The local fire department was called to the scene. The department’s report stated no damage occurred and that a total of ten gallons of water was used to resolve the problem. The same report stated the cause of the fire was “fireplace installed incorrectly.” Upon further investigation, it was learned that other units in the complex suffered from the same defect — namely that the brick in the fireplaces was located too close to the underlying wooden flooring structure. This construction was not in accordance with the plans for the structures for which the building permit had been issued, was in violation of the applicable building code (City of Overland Park), and constituted a fire hazard. As a result of this incident, an agreement was entered into between defendant Dible and the Building and Zoning Department of Overland Park whereby Dible agreed to correct the defective construction in the units by installing metal sheets between the fireplace brick and the wooden flooring. The agreed upon remedial work was not done.
The complex was completed and was operated by Dible as an apartment complex until 1979 when it was sold to the WilsonMayberry Partnership (not parties herein). Dible did not apprise Wilson-Mayberry of the defective fireplace construction. Wilson-Mayberry operated the complex as apartments for a short period of time and then converted the complex into condominiums. As a result thereof the units passed into individual ownership.
On November 29, 1981, the defective fireplace construction caused a fire in one of the units. The fire department report estimated damage at $1,000 and stated the fireplace had been improperly installed and that “firebrick transmitted heat to sub-floor.” On December 18, 1981, the following letter was sent by the Community Standards Division of Overland Park to the president of the plaintiff association:
“Mr. Mark Brumback, President
Pinebrooke Homes Association
7627 W. 102 Street
Overland Park, KS
“FIREPLACE CONSTRUCTION IN PINEBROOKE
“The Community Standards Division of Overland Park was notified of a fire at the Pinebrooke Condominiums late in November. During the investigation of this fire, the fireplace hearth was found to have been constructed on the flooring system directly above the fire.
“On December I, 1981, fireplaces in six units were inspected by Larry Sams the Inspection Supervisor of Overland Park. This inspection revealed that all of the fireplaces and hearths were constructed in a similar manner. The approved plan and the building code enforced at the time of construction required these fireplaces and hearths to be constructed as freestanding structures, independent of the flooring system. The fireplace hearth as constructed at the Pinebrooke Condominiums are a potential fire hazard and corrective action is being required by the Community Standards Division of Overland Park.
“If you have any questions in regard to this matter, please contact the Community Standards Division of Overland Park. Your cooperation in this matter will be appreciated.”
/s/ “Larry Sams
LARRY SAMS
INSPECTION SUPERVISOR”
A later letter indicated that not all of the units in the complex contained the faulty construction. The plaintiff-owners of the units with defective fireplaces are being required by the City of Overland Park to expend sums to bring the fireplaces into compliance with the applicable building code and seek, in this action, to recover such sums from defendants on the basis of negligent construction of the fireplaces.
The defendants filed a motion for summary judgment on the basis of K.S.A. 60-513, which provides, in pertinent part:
“(a) The following actions shall be brought within two (2) years;
“(4) An action for injury to the rights of another, not arising on contract, and not herein enumerated.
“(b) Except as provided in subsection (c) of this section, the cause of action in this section shall not be de.emed 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 the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall the period be extended more than ten (10) years beyond the time of the act giving rise to the cause of action.”
Note: Subsection (c) relates to medical malpractice actions and is inapplicable herein.
Specifically, defendants argue that the 1969 fire was when the defective construction first caused “substantial injury” and hence the action herein is barred. Defendants reason that, inasmuch as the negligent fireplace construction was done by Dible’s subcontractor, then Dible was a victim of the subcontractor’s negligence and had a cause of action against the subcontractor as of the time of the 1969 fire. They argue that the statute of limitations was “triggered” by the 1969 fire and hence had run long before the 1981 fire occurred. The district court agreed that the 1969 fire was the “first substantial injury” within the purview of K.S.A. 60-513 and triggered the running of the statute and entered summary judgment in favor of defendants. On appeal, the majority of the Court of Appeals panel affirmed the district court in an unpublished opinion.
The primary issue before us is the propriety of the entry of summary judgment based upon the statute of limitations. At the time the then apartment complex was being constructed, it was owned by the Dible Company, which also served as the general contractor for the construction. Negligent construction was performed by a subcontractor. The 1969 fire gave notice to Dible of faulty construction which created latent defects in the structures, presenting a continuous fire hazard to the structures themselves as well as to the lives and property of future residents therein. Dible did not correct the dangerous condition, although promising the appropriate municipal regulatory agency that it would do so. Presumably, without the promise, some action would have been taken against Dible to force compliance with the building code. Now Dible seeks to use its knowledge of the defects gained through the 1969 fire and subsequent municipal building inspection to relieve itself of liability by portraying itself as a victim of the same negligence as were plaintiffs. Since Dible did not sue its own subcontractor within two years after the 1969 fire, it argues plaintiffs are barred from their action against Dible. The argument is not persuasive.
K.S.A. 60-513(a)(4) gives the party injured by a tortfeasor two years after the tort in which to bring the action. The portion of K.S.A. 60-513(b) applicable herein states an injured party’s cause of action shall not be deemed to accrue until after the tort first causes substantial injury. Some tortious acts do not cause injury until more than two years after the tortious act occurred. This statutory provision gives the injured party two years to bring an action after he or she has first sustained substantial injury. The ten-year cap contained in K.S.A. 60-513(b) is applicable only where the fact of injury is not reasonably ascertainable until some time after substantial injury occurs. See Ruthrauff, Administratrix v. Kensinger, 214 Kan. 185, 519 P.2d 661 (1974). In the case before us, the action was brought in less than two years after the 1981 fire, and ensuing official investigation into the cause of the fire resulted in plaintiffs becoming obligated to make expenditures for remedial construction to their fireplaces. Under the facts herein, the “substantial injury” provision in K.S.A. 60-513(b) means when the act giving rise to the injury first caused substantial injury to the plaintiffs. We can foresee a different result could be proper where the injured party stands as a successor to a previously injured party. Illustrative thereof would be where A builds a house for B. While B occupies the home, the roof leaks substantially due to negligent construction. B then sells the home to C, who sustains damage from the leaking roof. If more than two years elapsed between the time the leaks first caused substantial injury to B and the time C was damaged, any action by C against A would be barred, particularly where the defect was not life threatening in nature.
In the case before us, Dible wore two hats in the construction — it was the owner and the general contractor. As the general contractor, it certainly had overall responsibility for proper construction in accordance with the building plans which were the basis for the issuance of the building permit. The structures were intended for human habitation and Dible was aware of a dangerous latent defect in the construction. The fact that the defect in one unit caused a minor fire in 1969 during construction but Dible did not sue the subcontractor actually doing the faulty work cannot operate, to bar plaintiffs’ claims herein. To hold otherwise would result in the ridiculous situation that a builder could defeat claims predicated upon negligent workmanship by a subcontractor arising more than two years after construction by showing it had been damaged during construction by the same negligence. A builder with full knowledge of the dangerous latent defect would thereby escape liability, while a builder with no such graphic knowledge of the defect and the harm it could cause could be liable. This result is wholly inconsistent with the purpose of K.S.A. 60-513(b). We conclude the district court erred in holding the statute of limitations had run on plaintiffs’ claims.
For their next issue plaintiffs contend the district court abused its discretion in refusing, after the entry of summary judgment herein, to permit plaintiffs to amend their petition to add a fraud count.
K.S.A. 60-215 governs amendments to pleadings, and provides, in pertinent part:
“(a) Amendments. A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within twenty (20) days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.”
The trial court has wide latitude and discretion in permitting or refusing amendments of pleadings and, absent a clear abuse of discretion, the trial court’s order will not be disturbed on appeal. First Nat’l Bank v. Milford, 239 Kan. 151, Syl. ¶ 5, 718 P.2d 1291 (1986); McAlister v. Atlantic Richfield Co., 233 Kan. 252, 265, 662 P.2d 1203 (1983).
The action herein was commenced on December 6, 1982. Twice the court granted motions to file amended petitions. The motion for summary judgment was filed on May 4, 1984. The district court’s decision to grant summary judgment was filed August 23, 1984. Fraud, as a cause of action, was not claimed until after the entry of summary judgment. This was not a situation where plaintiffs were attempting to lock the barn after the horse was gone — rather, they were attempting to construct a barn after the horse had departed. We find no abuse of discretion in the district court’s refusal to permit the plaintiffs to add a fraud count to their second amended petition. However, inasmuch as we have held herein that the entry of summary judgment was improper, the district court’s prior ruling should not be deemed to foreclose any renewed request for amendment to the pleadings. The propriety of such amendment should be considered in light of the circumstances existing upon remand.
For their final issue plaintiffs contend the district court erred in not finding defendants were estopped to assert the statute of limitations defense. This issue is rendered moot by our previous determination herein relative to the statute of limitations.
The judgments of the Court of Appeals and district court are affirmed in part and reversed in part, 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 wrongful death action brought by Clayton F. Hughes, as administrator of the estate of Clayton F. Hughes, Jr., deceased, and in his capacity as administrator of the estate of Shirley K. Hughes, deceased. The defendant is Lynn E. Martin, administrator of the estate of Michael W. Baldwin, deceased. The facts in the case are undisputed and are as follows; The plaintiffs son, Clayton F. Hughes, Jr., was killed on May 29, 1983, in a collision between an automobile and a freight train in Miami County, Kansas. At the time of the collision, plaintiff s son was riding as a passenger in an automobile driven by the defendant, Michael W. Baldwin, now deceased. There is no question of liability involved in this case. The defendant had the minimum liability insurance coverage of $25,000.
Attempts were made to settle the case which were not successful. When it appeared to the plaintiff that the statute of limitations was about to run, he took legal action. On May 17, 1985, the plaintiff caused the estate of Shirley K. Hughes to be opened in the district court of Miami County and was appointed administrator of the estate. On May 21, 1985, the plaintiff filed this action in the district court of Miami County. On May 21, 1985, the clerk of the district court prepared a summons for service and delivered the same to the Miami County Sheriff.
The initial praecipe for summons bore the caption “Clayton F. Hughes, Admin, of the estate of Clayton F. Hughes, Jr., deceased, et al. Plaintiff vs. Lynn E. Martin, Administrator of the estate of Michael W. Baldwin, deceased, Defendant.” The actual summons issued by the District Court of Miami County was captioned “Clayton F. Hughes, Admin, vs. Lynn E. Martin, Admin.” and was directed to “the above-named Defendant: Lynn E. Martin, Admin., 117 S. Pearl, Paola, Kansas 66071.” The summons, along with a copy of the petition, which properly identified the parties, was served “upon the defendant Lynn Martin” by delivery to his secretary. It appears clear that the statement on the return that the summons and petition were served “upon the defendant Lynn Martin” can only refer to “Lynn E. Martin, Admin.” as named in the summons itself. Thus, the return of the sheriff obviously purports to serve the proper defendant.
On June 10, 1985, defendant Martin, as administrator, filed an answer on behalf of the defendant estate. The answer consisted of a general denial of negligence and alleged as a defense that Clayton F. Hughes, Jr., was negligent and that his negligence caused or contributed to the accident and his death. The answer also asserted the defenses that the court lacked jurisdiction over the matter, insufficiency of process, insufficiency of service of process, and that the petition failed to state a cause of action upon which relief could be granted.
On August 9, 1985, a discovery conference was held where the possibility of a settlement was discussed. The defendant requested additional time to discover facts to support and prepare his liability defense. At that conference, the defendant made no mention of his alleged defense of insufficiency of process. The trial court then gave the defendant until October 31, 1985, to pursue discovery. The court set a pretrial date of November 1, 1985, and notified the parties that it expected this matter to be tried in early December, 1985.
After the 90-day period provided for service of process in K.S.A. 60-203(a)(l) had expired, and shortly before the pretrial, plaintiff received defendant’s pretrial questionnaire and learned of the defendant’s intention to vigorously pursue the irregularity in the service of process upon the defendant. At the pretrial conference held on October 31, 1985, the defendant raised the question of the sufficiency of service on the defendant. Following arguments of counsel, the trial court made an adjudication pursuant to K.S.A. 60-203(b), holding that: (1) the return of service of summons indicates that Lynn E. Martin was not served as administrator of the estate of Michael W. Baldwin, deceased; (2) Lynn Martin was not served personally; and (3) there was an irregularity in the process upon the defendant and, as a result, this service of process was defective.
The trial court directed plaintiff to attempt new service upon the defendant within the 90-day period authorized by K.S.A. 60-203(b).
On November 1, 1985, an alias summons was prepared by the clerk of the district court and delivered to the sheriff s office for service upon Lynn E. Martin, administrator of the estate of Michael W. Baldwin, deceased. On November 5, 1985, the return of the service of alias summons was filed with the clerk of the district court indicating that the undersheriff had served Lynn E. Martin, as administrator of the Baldwin estate, personally on the first day of November, 1985.
On November 6,1985, the defendant filed a motion requesting the court to reconsider its order permitting the plaintiff to obtain new service upon the defendant. On January 13, 1986, the court denied the defendant’s motion to reconsider. The defendant took a timely interlocutory appeal, and the case was assigned to the Supreme Court.
The basic issue presented on appeal is one of statutory interpretation and requires the court to construe K.S.A. 60-203 and K.S.A. 60-204, which provide as follows:
“60-203. Commencement of action, (a) A civil action is commenced at the time of: (1) Filing a petition with the clerk of the court, if service of process is obtained or the first publication is made for service by publication within 90 days after the petition is filed, except that the court may extend that time an additional 30 days upon a showing of good cause by the plaintiff; or (2) service of process or first publication, if service of process or first publication is not made within the time specified by provision (1).
“(b) If service of process or first publication purports to have been made within the time specified by subsection (a)(1) but is later adjudicated to have been invalid due to any irregularity in form or procedure or any defect in making service, the action shall nevertheless be deemed to have been commenced by the original filing of the petition if valid service is obtained or first publication is made within 90 days after that adjudication, except that the court may extend that time an additional 30 days upon a showing of good cause by the plaintiff.
“(c) The filing of an entry of appearance shall have the same effect as service.”
“60-204. Process, generally. The methods of serving process as set forth in article 3 of this chapter shall constitute sufficient service of process in all civil actions and special proceedings, but they shall be alternative to, and not in restriction of different methods specifically provided by law. In any method of serving process, substantial compliance therewith shall effect valid service of process if the court finds that, notwithstanding some irregularity or omission, the party served was made aware that an action or proceeding was pending in a specified court in which his or her person, status or property were subject to being affected.”
The issue to be determined is whether, under the undisputed facts, the trial court erred in holding that K.S.A. 60-203(b) was applicable and extended the time for obtaining proper service on Lynn E. Martin as administrator. It is undisputed that the defects in the original service of process were twofold:
(1) Lynn E. Martin was served as an individual and not as the administrator of the estate of Michael W. Baldwin, deceased;
(2) Lynn E. Martin’s secretary was served at his law office in Miami County, not Lynn E. Martin personally.
In his brief, counsel for the defendant includes two questions stated in the following language:
(1) “Does the ‘re-serve’ provision of sub-section (b) of KSA 60-203 apply to a factual situation where the praecipe or request for summons is made for service upon ‘Lynn E. Martin, 117 S. Pearl, Paola, Kansas’ and service is had and made upon ‘Lynn Martin by delivering to secretary, Jean Croan,’ and the defendant named in the suit was ‘Lynn E. Martin, Administrator of the Estate of Michael W. Baldwin, deceased’?”
(2) “Does KSA 60-203(b) enacted in 1983 repeal the ‘substantial compliance’ requirements of KSA 60-204?”
Simply stated, the defendant maintains that the original service upon Lynn E. Martin, as an individual, was irregular, defective, and insufficient to serve notice of suit upon the true defendant, Lynn E. Martin, as administrator of the estate of Michael W. Baldwin, deceased. Defendant contends that there was no purported service upon Lynn E. Martin as administrator; that contrary to the requirement of K.S.A. 60-204, there was no substantial compliance with the methods of service of process authorized by Article 3 of Chapter 60; that the service upon Lynn E. Martin, individually, not only was irregular, defective, and insufficient as found by the court but was in fact a nullity as to Lynn E. Martin, administrator, and constituted “no service” upon the administrator. Counsel for the defendant further contends that, there having been no service of process upon Lynn E. Martin, administrator, as required by K.S.A. 60-203(a), the reserve provisions of K.S.A. 60-203(b) do not and cannot apply, and the trial court’s ruling permitting re-service should be set aside because the action was never commenced within the statutory period of limitations. The statute has run and the provisions of K.S.A. 60-203 do not allow a refiling. The defendant urges this court to hold that the case should be reversed and remanded with directions to dismiss the plaintiff s action.
The plaintiff takes the position that the 1983 amendment to K.S.A. 60-203 was for the express purpose of correcting the injustice which existed as a result of Bray v. Bayles, 228 Kan. 481, 618 P.2d 807 (1980); Briscoe v. Getto, 204 Kan. 254, 462 P.2d 127 (1969); and Dunn v. City of Emporia, 7 Kan. App. 2d 445, 643 P.2d 1137, rev. denied 231 Kan. 799 (1982). In those cases, where the service was found to be defective, it was held that the running of the statute of limitations was not tolled although the defendant gained knowledge of the pendency of the action through the faulty process. In each case, the defendant appeared in the case but did not seriously raise the issue of improper service until after the 90-day period for obtaining service had expired. Plaintiff maintains that K.S.A. 60-203(b) was enacted for the express purpose of remedying the injustice brought about by prior Kansas case law.
In this regard, we note the comments of Spencer A. Gard in 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-203 (1986 Supp.) in regard to the 1983 amendment to K.S.A. 60-203:
“Subsection (b) is new by virtue of 1983 amendment. Its purpose is to save from disaster on account of the running of the statute of limitations such situations as existed in Briscoe v Getto, 204 K 254, 462 P2d 127; Bray v Bayles, 228 K 481, 618 P2d 807; and Dunn v City of Emporia, 7 K App 2d 445, 643 P2d 1137, where service was held to be defective and the running of the statute not tolled although the defendants had actual knowledge of the pendency of the action through the faulty process. The amendment is in keeping with the spirit of the original code provisions, particularly in the light of section 60-204, and really should not have been necessary except for conflicting appellate court views.”
A similar comment on 60-203(b) may be found in 1 Vernon’s Kansas C. Civ. Proc. § 60-203 (1984 Supp.):
“The more significant change is the addition of subsection (b) which will reduce the instances in which defective service of process will result in actions being barred by the statute of limitations. The problem under the former law may be illustrated as follows: Shortly before the expiration of the statute of limitations, a petition is filed in an action against an individual defendant. Process is delivered to defendant’s secretary at defendant’s business office. Such service does not comply with K.S.A. 60-304(a) because the secretary is not an agent specially designated for service of process. More than 90 days after the petition was filed and after the statute of limitations has run defendant raises insufficiency of service of process as a basis for dismissing the action. Following dismissal of the action, plaintiff obtains proper service of alias process upon defendant. Under former law the action was commenced when alias process was served rather than when the petition was filed and defendant could assert a valid statute of limitations defense. See e.g. Haley v. Hershberger, 1971, 207 Kan. 459, 485 P.2d 1321; Bray v. Bayles, 1980, 4 Kan. App. 2d 596, 609 P.2d 1146, reversed in part on other grounds, 1980, 228 Kan. 481, 618 P.2d 807; Briscoe v. Getto, 1969, 204 Kan. 254, 462 P.2d 127; Dunn v. City of Emporia, 1982, 7 Kan. App. 2d 445, 643 P.2d 1137.
“Under the 1983 amendment, the statute of limitation will not defeat plaintiff s action if plaintiff acts promptly after the dismissal for insufficiency of service of process. If plaintiff purports to have made timely service which is subsequently adjudged invalid, the action will still be considered commenced when filed if plaintiff makes service of process within 90 days after that adjudication, or within 120 days of that adjudication if the Court allows additional time upon a showing of good cause.”
We have concluded that, under the factual circumstances present in this case, the trial court correctly interpreted and applied K.S.A. 60-203(b). K.S.A. 60-102 specifically provides that the provisions of the Kansas Code of Civil Procedure shall be liberally construed to insure the just determination of every action or proceeding. Under that section, we must construe K.S.A. 60-203(b) liberally to secure the just determination of the action now before us. K.S.A. 60-203(b) states that, if service of process purports to have been made within the time specified by (a)(1) but is later adjudicated to have been invalid due to any irregularity in form or procedure or any defect in making service, the action shall nevertheless be deemed to have been commenced if valid service is made within 90 days after that adjudication.
Black’s Law Dictionary 1112 (5th ed. 1979), defines the verb “purport” to mean “to have the appearance of being.” K.S.A. 60-203(b) is also declared to be applicable to any situation where the original service was invalid due to “any irregularity” in form or procedure or any defect in making service. The use of the word any makes crystal clear the legislative intent that the statute is to be liberally applied in cases involving any irregularity or any defect in the service of process.
K.S.A. 60-203(b) originated as an amendment to the Kansas Civil Code proposed by the Kansas Judicial Council, which obviously was concerned about the situation brought about as the result of the decisions of this court in Bray v. Bayles, 228 Kan. 481; Briscoe v. Getto, 204 Kan. 254; and Dunn v. City of Emporia, 7 Kan. App. 2d 445. We have no hesitancy in holding that, under the particular factual circumstances in this case, the trial court did not err in holding that K.S.A. 60-203(b) was applicable and in extending the time for obtaining proper service upon the defendant.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Biles, J.:
This is a quiet title action challenging a claimed interest to oil and gas rights reserved in 1924 when the landowners sold the surface and mineral estate, but kept for themselves and their heirs what was described as a portion of the landowners' one-eighth interest in the oil, gas, or other minerals that might later be developed. The district court and Court of Appeals held that this reservation was a royalty interest and invalidated it under the rule against perpetuities. We hold that the royalty interest is not void under the rule against perpetuities because it was reserved in the grantors and reverse.
Factual and Procedural Background
The parties stipulated to the following facts. In 1924, Earl R. DeLay and his wife Leah Griffith DeLay executed a general warranty deed transferring title to certain lands in Barber County, Kansas, to Lurena Keener. The warranty deed contained the following reservation:
“The grantor herein reserves 60% of the land owner s one-eighth interest to the oil, gas or other minerals that may hereafter be developed under any oil and gas lease made by the grantee or by his subsequent grantees.”
Earl ratified an oil and gas lease in 1946, and two of his successors ratified an oil and gas lease in 1966. No other leases have been executed or ratified, and no oil or gas has ever been produced on the land. Earl and Leah’s successors in interest have paid taxes on 6 mineral acres, as their interest is expressed in the Barber County Clerk’s Severed Mineral Interest Book.
In 2008, the current property owners, Donald R. Rucker and Barbara L. Rucker, filed a quiet title action against Earl and other heirs of Earl and Leah DeLay (the DeLays). The Ruckers alleged the reservation in the deed was a royalty interest that violated the rule against perpetuities. The DeLays alleged the reservation created a mineral interest and the rule against perpetuities did not apply. In other words, the case presented two issues: (1) What interest was created by the language of the deed; and (2) Is that interest valid?
Based on the stipulated facts, the district court found:
“The language here attempts to create an interest which has no leasing rights (nonparticipating) with no reservation of a right to enter and produce. The one-eighth is a traditional leasehold royalty a portion of which is attempted to be reserved forever but which may not ever come to fruition (if land is never leased or developed).”
The district court held that the deed created a perpetual, nonparticipating, royalty interest that was subject to termination under Kansas caselaw. It held further that this royalty interest was void because it violated the rule against perpetuities. In so ruling, the district court added that the result was required by what it considered to be settled Kansas precedent, but it expressed concern that the result was inequitable and not what the parties to the 1924 transaction intended. It commented that “[occasionally, tire application of the law is not fair in a traditional sense.”
Based on its decision, the district court declined to rule on a pending issue regarding delay in recording the deed, but the appellate briefs explain that this issue is premised on the reserved interest being a mineral interest, rather than a royalty interest as the court found. See G.S. 1935, 79-420 (“[W]hen such reserves or leases are not recorded within ninety [90] days after execution, they shall become void if not listed for taxation.”). The DeLays filed a timely notice of appeal to the Court of Appeals.
Like the district court, the Court of Appeals held that the deed created a royalty interest. It also reluctantly applied the rule against perpetuities to void the interest, citing its obligation to follow Kansas Supreme Court caselaw. But the panel observed: “Were we to write on a clean slate, our reasoning and result would be different.” Rucker v. DeLay, 44 Kan. App. 2d 268, 282, 235 P.3d 566 (2010). The DeLays petitioned for this court’s review, which we granted. Jurisdiction arises under K.S.A. 20-3018(b) (review of Court of Appeals decision).
Analysis
The DeLays’ threshold argument to the Court of Appeals was that the deed created a mineral interest, not a royalty interest, but the court disagreed. In their petition for review to this court, the DeLays specified that they sought review of: (1) “[T]he Court of Appeals determination that the reservation by the Appellant’s predecessors in interest is violative of the rule against perpetuities and as a result the interest is quieted”; and (2) “whether production should continue to be the vesting event if the rule against perpe-tuities is to continue to be applied to such situations.” These issues relate only to the panel’s holing that the rule against perpetuities voided the royalty interest. They do not challenge the holing that the reserved interest in this case was a royalty interest.
At oral argument, the DeLays stated that they had intended to continue arguing that the deed created a mineral interest and claimed the lower courts erred in finding a royalty interest. But that issue is beyond our reach at this stage. Under Kansas Supreme Court Rule 8.03(a)(5)(c) (2011 Kan. Ct. R. Annot. 70), this court will not consider any issues not presented in the petition for review or fairly included therein, absent application of a permissive exception for plain error. Moreover, under Supreme Court Rule .8.03(g)(1), a party must allege that an issue was decided erroneously by the Court of Appeals in order for tire issue to be properly before the Supreme Court on petition for review. State v. Allen, 293 Kan. 793, Syl. ¶ 2, 268 P.3d 1198 (2012).
For these reasons, we hold that any argument regarding whether a royalty or mineral interest was created by the deed was not preserved for appeal. Therefore, in deciding the issue that was preserved, we will presume the Court of Appeals and district court correctly held that the deed created a royalty interest. Rucker, 44 Kan. App. 2d at 278-79 (“the reserved interest is that of a royalty interest”).
Appellate courts “have de novo review of cases decided on the basis of documents and stipulated facts.” In re Trust D of Darby, 290 Kan. 785, 790, 234 P.3d 793 (2010). In this case, whether the DeLays’ royalty interest is void under the rule against perpetuities is a question subject to de novo review.
At the outset, it is helpful to define the parameters for some relevant terms. A royalty interest refers to the right to share in the production of oil and gas at severance. In Kansas, a royalty interest is considered personal property. Royalty interests are often contrasted with mineral interests, which refer to oil and gas in place. In Kansas, mineral interests are real property. Kumberg v. Kumberg, 232 Kan. 692, Syl. ¶ 2, 659 P.2d 823 (1983).
Both mineral and royalty owners share in royalties derived from an oil and gas lease. The mineral-royalty distinction determines whether the interest owner has additional rights and benefits that this court calls the “ ‘indicia of mineral interests.’ ” See Drach v. Ely, 237 Kan. 654, 658, 703 P.2d 746 (1985). Kansas has long recognized that property interests are subject to the rule against perpetuities. Gore v. Beren, 254 Kan. 418, 429, 867 P.2d 330 (1994). In Gore, this court said:
“The rule against perpetuities springs from considerations of public policy. The underlying reason for and purpose of the rule is to avoid fettering real property with future interests dependent upon contingencies unduly remote which isolate the property and exclude it from commerce and development for long periods of time, thus working an indirect restraint upon alienation, which is regarding at common law as a public evil.” 254 Kan. 418, Syl. ¶ 9.
The rule against perpetuities began as a creation of common law, but the 1992 legislature codified and somewhat modified it by adopting the Uniform Statutoiy Rule Against Perpetuities. K.S.A. 59-3401 et seq. The statutory scheme supersedes the common-law rule. K.S.A. 59-3408. But the statutory rule only applies to non-vested property interests created on or after July 1992. See K.S.A. 59-3405(a); L. 1992, ch. 302, sec. 20. Therefore, the uniform rule from the statute is not applicable in this case because the DeLays’ royalty interest was created by the 1924 deed. See Gore, 254 Kan. at 429 (holding uniform act did not apply to property interest ere- ated in 1962). Accordingly, we revert to the common law to decide this case.
The common-law rule against perpetuities “precludes the creation of any future interest in property which does not necessarily vest within twenty-one [21] years after a life or lives presently in being, plus the period of gestation, where gestation is, in fact, taking place.” Singer Company v. Makad, Inc., 213 Kan. 725, 728-29, 518 P.2d 493 (1973). A future interest is an ownership interest that does not currently entitle the owner to possession or enjoyment of the property because the right to possess is delayed until some future time. 3 Restatement (Third) of Property, Future Interests § 25.1 (2011). The rule against perpetuities applies if it is possible that the interest will not vest during the permitted time period. Gore, 254 Kan. at 428. There are two kinds of future interests— reversions and remainders. 3 Restatement (Third) of Property, Future Interests § 25.2.
A future interest is a reversion if it was retained by the transferor and a remainder if it was created in the transferee. 3 Restatement (Third) of Property, Future Interests § 25.2. The royalty interest in this case is a reversion because Earl and Leah DeLay retained a portion of it when they executed the deed in question. In other words, at the time of the transaction in question, Keener received a lesser estate because the deed did not convey all of the DeLays’ property rights. See Bergin & Haskell, Preface to Estates in Land and Future Interests, p. 56 (2d ed. 1984) (“When the owner of an estate transfers a lesser estate, the future estate that the owner keeps is called a reversion.”). This court has previously recognized:
“Generally speaking, future interests reserved to or remaining in the grantor or in the estate of the testator are not subject to the rule against perpetuities. It is universally agreed that the possibility of reverter is not within the rule.” Trustees of Endowment Fund of Hoffman Memorial Hosp. Ass’n v. Kring, 225 Kan. 499, 502, 592 P.2d 438 (1979) (citing Simes, Law of Future Interests § 132, p. 280 [2d ed. 1966]).
This rule was first applied in Commercial National Bank v. Martin, 185 Kan. 116, 340 P.2d 899 (1959). In that case, Commercial National Bank sued to quiet title to certain land devised to W.M. DeVore’s son for life and upon his son’s death to the Kansas Trust Company to pay income to a school district. But if the district discontinued a course in vocational agriculture, the trust ceased and the funds reverted back to DeVore’s heirs. DeVore’s son, however, bequeathed the property to his spouse, and the trustee sued. This court addressed whether DeVore’s will creating the trust with a possibility of reverter violated the rule against perpetuities. We held it did not because DeVore’s will created the possibility of reverter and that interest is not subject to the rule. 185 Kan. at 122.
This court reaffirmed that reversionary interests are not subject to the rule against perpetuities in Nelson, 225 Kan. at 502. There, the trustees of a charitable trust benefitting a local hospital sued to determine who should own the assets once the hospital ceased operating. The trust instrument provided that die trust, income, and interest should become the property of George Green and his heirs if the hospital closed. This court examined whether that provision violated the rule against perpetuities. Green’s heirs argued the trust was valid, citing our Commercial National Bank decision.
But the Nelson court distinguished the devise in Commercial National Bank because the corpus of that charitable trust reverted to the testator’s heirs, i.e., it was a reservation. Thus, it was not subject to the rule against perpetuities. In contrast, the trust in Nelson created a gift to a third-party noncharity, i.e., it was a remainder, not a reversionary interest. 225 Kan. at 502. Since that interest did not necessarily vest within the required time, it violated the rule against perpetuities. 225 Kan. at 503.
The Nelson court’s summaiy of tire law on reversionary interests remains an accurate statement of the law. Future interests reserved or remaining in the grantor or his estate are not subject to the rule against perpetuities. See Simes & Smith, The Law of Future Interests § 1235, p. 184 (Borron 3d ed. 2002) (“vested remainders and reversions are not within the rule”); Gray, The Rule Against Perpetuities § 205, pp. 167-68 (2d ed. reprint 2000) (reversions and vested remainders are vested future interests not subject to the rule against perpetuities).
The Court of Appeals acknowledged the DeLays’ interest was a reservation in the grantor and noted this could be “a critical and possibly determinative fact.” Rucker, 44 Kan. App. 2d at 279. But the panel declined to follow through with this reservation because Nelson did not involve a mineral or royalty interest. The panel believed there was a “ ‘conceptual problem’ ” with applying that principle in light of our caselaw holding a royalty interest does not vest until oil and gas is produced. 44 Kan. App. 2d at 279-80 (citing 1 Pierce, Kansas Oil and Gas Handbook § 4.14, p. 4-20 [1991]). We discuss those cases next.
This court has applied the rule against perpetuities to void royalty interests in two prior royalty interest cases: Lathrop v. Eyestone, 170 Kan. 419, 227 P.2d 136 (1951), and Cosgrove v. Young, 230 Kan. 705, 642 P.2d 75 (1982). Relying on Cosgrove, the Ruck-ers argue the DeLays’ royalty interest is void. But the DeLays and amicus curiae urge us to either overrule it as an incorrect analysis of the law or distinguish this prior caselaw because the DeLays’ royalty interest was reserved in the grantor.
In Lathrop, the landowner’s fee title was subject to three interests held in trust by the defendants. The landowner filed an action to quiet the defendants’ title to those lands. Three separate conveyances were at issue, and the preliminary question was whether the instruments created royalty or mineral interests. The Lathrop court held that the first instrument created a mineral interest and upheld that mineral interest because it was “an interest in the land.” 170 Kan. at 424-25. But the Lathrop court held the other two instruments created royalty interests. 170 Kan. at 425-27. Notably, both of these instruments involved the grantors’ transfer of a royalty interest to the grantee while the grantor maintained fee title to the land subject to the newly created royalty interest, i.e., the royalty interest was not a reservation. See 170 Kan. at 422, 425-27.
After determining the grantor transferred a royalty interest, the Lathrop court examined whether the plaintiff was bound by the prior landowners’ covenants purporting to grant an interest in the royalty, rent, and bonuses generated by future oil and gas leases when there were currently no leases applicable to the ground and no production. 170 Kan. at 427. The Lathrop court held the rule against perpetuities voided those interests, stating:
“We need not determine whether these instruments . . . were intended to be binding on subsequent fee title owners. If such was the intention when would the grant of such future interests vest? Appellant or future fee owners might never execute another lease. There is nothing in any of the instruments which imposes a duty on them to do so. Under the last two instruments, at least, the fee title owner would not be precluded from doing his own developing. [Citations omitted.] Moreover there is no limitation of time within which a future lease would be required to be executed, if one were actually executed. It is, therefore, wholly problematic when, if ever, such an interest under future leases would vest. Such a grant violates the rule against perpetuities, a rule against too remote vesting.” 170 Kan. at 428.
Lathrop favors mineral interests by upholding the mineral interest created by the first instrument, while voiding the royalty interests created by the other two instruments. But the Lathrop court failed to clearly identify when a royalty interest vests.
In Cosgrove, the plaintiff landowners were successors in interest to land subject to a royalty interest created in 1918, and the defendants were the successors in interest of that royalty interest. The landowners sued to cancel or quiet the defendants’ title, arguing that it violated the rule against perpetuities. And like the royalty interests in Lathrop, the grantor reserved fee title in the land, and the instrument at issue transferred a lesser interest to the grantees, his heirs, and assigns. The Cosgrove court held that the grantors conveyed a royalty interest applicable to the leases covering the property at the time of the conveyance and any future oil and gas leases based on the conveying instrument’s language. 230 Kan. at 713. It then turned to whether that conveyance violated the rule against perpetuities.
Relying upon this court’s analysis in Lathrop, the majority in Cosgrove held that the instrument violated the rule against per-petuities, explaining:
“As was die situation in Lathrop v. Eyestone, the instrument does not require the grantor or his successors to execute and deliver any future oil and gas leases at any future time. Naturally, if no future oil and gas leases are made and executed, diere would never be a vesting of title to any royalty interest. If it is not certain the vesting will occur within the time stated in the rule, then the rule has been violated and the conveyance is void. Even if an oil and gas lease were required to be executed within the time prescribed by law, diere would still be no vesting of title until royalty becomes due and payable to the grantor or his successor. The execution and delivery of an oil and gas lease does not insure that there will ever be any production attributable to the lease. Additionally, as was the situation in Lathrop v. Eyestone, the instrument is not prohibitive of the grantor developing the minerals for himself, without any oil and gas lease being involved. Under such circumstances, there would never be any royalties paid to anyone.” (Emphasis added.) Cosgrove, 230 Kan. at 715.
Cosgrove is notable because it is the first time this court expressly held that production is the vesting event. It is also worth noting the majority acknowledged this approach had been criticized, stating: “We are not unmindful that some other jurisdictions might well reach a different result in applying their case law to the issue herein.” 230 Kan. at 715. But the court refused to overturn Lathrop because the parties did not raise it and “we see no compelling reason for change.” Cosgrove, 230 Kan. at 715.
The DeLays and amicus curiae urge us to overrule both cases now. They cite considerable criticism of our holding that a royalty interest is a future interest that vests at production. And we acknowledge that holding has been criticized as conceptually invalid. See Cosgrove, 230 Kan. at 724-25 (Herd, J., dissenting) (arguing a royalty interest creates a present interest in real property and the only uncertainty is whether that interest will ever result in a share in the production); Dauphin Island Property v. Callón Inst., 519 So. 2d 948, 949-51 (Ala. 1988) (criticizing Lathrop because a royalty interest is a vested interest even though uncertain in the enjoyment). Cosgrove and Lathrop have also been criticized as inconsistent with other caselaw upholding similar interests. See, e.g., 2 Williams & Meyers, Oil & Gas Law § 323, p. 18.2 (2011) (stating that “[i]t is an odd fact that in Kansas the perpetuities attack has succeeded only with respect to royalty and nonexecutive mineral interests”).
Other Kansas cases are difficult to reconcile with Cosgrove and Lathrop. See Froelich v. United Royalty Co., 178 Kan. 503, 509-10, 290 P.2d 93 (1955) (upholding a nonparticipating mineral interest because it vested immediately), modified 179 Kan. 652, 297 P.2d 1106 (1956); Howell v. Cooperative Refinery Ass’n, 176 Kan. 572, 578, 271 P.2d 271 (1954) (upholding lease agreement provision creating overriding royalty interest in future leases because the interest vested when the assignment was made and accepted); Kenoyer v. Manglolia Petroleum Co., 173 Kan. 183, 188, 245 P.2d 176 (1952) (upholding lease agreement’s unitization clause and royalty interest agreement because those interests vested upon the lease’s execution and delivery).
The criticism about this court’s prior vesting analysis has some merit. Thus, we decline to extend it to royalty interests reserved in the grantor. It is better to right the ship and apply the well-recognized property law principles excepting reservations from the rule against perpetuities despite any “conceptual” difficulties this may cause. But we need not determine in this case whether we should overrule our caselaw holding royalty interests created in a transferee are future interests that vest at production because that issue is not squarely before us.
Our resolution in this case is consistent with recent caselaw recognizing that “[t]he modem tendency is to temper the rule [against perpetuities] where its rigid application would do violence to an intended scheme for the disposition of property.” Drach, 237 Kan. at 656; see also First Nat’l Bank & Trust Co. v. Sidwell Corp., 234 Kan. 867, 876, 678 P.2d 118 (1981) (“[T]he recent trend among legal authorities is to relax the harsh and inflexible application of the rule, and instead follow tenable legal theories which will give effect to the intention of the parties.”). We hold that the DeLays’ royalty interest is not void under the rule against perpetuities. We reverse the district court’s order quieting the DeLays’ title.
Judgment of the Court of Appeals affirming the district court is affirmed in part and reversed in part. Judgment of the district court is affirmed in part and reversed in part.
Moritz, J., not participating.
Bradley E. Amrrosier, District Judge, assigned. | [
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The opinion of the court was delivered by
Allegrucci, J.:
This is an appeal by the State of Kansas from judgment entered by the district court dismissing the complaint against the defendant for lack of jurisdiction, and remanding the case to juvenile court.
The facts are not in dispute. On September 6, 1985, a juvenile complaint, No. 85-JV-1051, was filed against Danell J. Magness in connection with separate incidents of theft occurring on September 1 and 2,1985. Also on September 6,1985, he was charged in a separate case, No. 85-JV-1050, with offenses including theft and battery which occurred on September 5, 1985. Magness entered admissions and he was adjudicated a juvenile offender in both cases in a single hearing held on September 30, 1985.
On January 7,1986, Magness was charged in juvenile case No. 86-JV-17 with the crimes of burglary and theft which allegedly occurred on December 14, 1985. Magness admitted the allegations in case No. 86-JV-17 and also admitted violation of probation in case Nos. 85-JV-1050 and 85 JV-1051 in exchange for the District Attorney’s agreement not to seek prosecution as an adult. On February 10, 1986, a hearing was conducted in juvenile court and Magness was ordered committed to a state youth center. The State Secretary of Social and Rehabilitation Services (SRS) petitioned the juvenile court on April 3, 1986, to reconsider adjudication in case No. 86-JV-17. SRS argued that, because of the juvenile adjudications in case Nos. 85-JV-1050 and 85-JV-1051, the defendant lacked juvenile status under K.S.A. 38-1602(b)(3), and should be prosecuted as an adult. The juvenile court accepted the argument of SRS, and set aside the juvenile adjudication and disposition in case No. 86-JV-17.
Subsequently, a criminal proceeding was filed against Magness in case No. 86-CR-651, based upon the same acts originally complained of in the juvenile case. A preliminary hearing was held on the matter. At the conclusion of the hearing the trial court reasoned that, since both 85-JV-1050 and 85-JV-1051 were adjudicated at the same hearing, these adjudications constituted only one “proceeding,” and therefore were insufficient to divest the juvenile court of jurisdiction over the juvenile under K.S.A. 38-1602(b)(3).
The State contends that the district court erred by dismissing the adult prosecution for lack of jurisdiction, based on the court’s improper interpretation of K.S.A. 38-1602. K.S.A. 38-1602 provides, in pertinent part:
“(a) ‘Juvenile’ means a person 10 or more years of age but less than 18 years of age.
“(b) ‘Juvenile offender’ means a person who does an act while a juvenile which if done by an adult would constitute the commission of a felony or misdemeanor as defined by K.S.A. 21-3105 and amendments thereto or who violates the provisions of K.S.A. 41-715 or 41-2721, and amendments thereto, but does not include:
“(3) a person 16 years of age or over who is charged with a felony or with more than one offense of which one or more is a felony after having been adjudicated in two separate prior juvenile proceedings as having committed an act which would constitute a felony if committed by an adult and the adjudications occurred prior to the date of the commission of the new act charged.”
The trial court interpreted the requirement of adjudications in “two separate prior juvenile proceedings” to mean two separate hearings. On appeal, it is the State’s position that combining the two cases for adjudication at one hearing was immaterial. Thus, the question is one of statutory interpretation.
The State contends that “proceedings,” as referred to in the statute, does not necessarily mean a hearing involving only one matter. In support of its position the State refers to language found in another part of the juvenile offenders code indicating that the word “proceeding” is meant only as a general description of the case. K.S.A. 38-1622(a)(2) states, “The proceedings shall be entitled: ‘In the matter of_, respondent.’ ” (Emphasis added.) The State also argues that K.S.A. 38-1602(b)(3) is not a recidivism statute and, therefore, the trial court improperly applied reasoning found in cases involving our habitual criminal statute.
“The fundamental rule of statutory construction is that the purpose and intent of the legislature governs.” State v. Cole, 238 Kan. 370, 371, 710 P.2d 25 (1985). When a penal statute is questioned, the court is required to strictly construe the act in favor of the accused. State v. Cole, 238 Kan. at 372. “However, [this] 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 . . . intent.” State v. Fowler, 238 Kan. 213, 215, 708 P.2d 539 (1985). “[W]ords in common usage are to be given their natural and ordinary meaning.” Szoboszlay v. Glessner, 233 Kan. 475, 478, 664 P.2d 1327 (1983). The Judicial Council’s comments, published before the code was enacted by the legislature, are helpful in determining legislative intent. Arredondo v. Duckwall Stores, Inc., 227 Kan. 842, 610 P.2d 1107 (1980).
Although the Kansas juvenile offenders code was a product of the legislature, it has its roots in the draft prepared by the Judicial Council. The original provision appearing in the preliminary draft prepared by the Judicial Council read in pertinent part:
“(b) ‘Juvenile Offender’ means (1) A juvenile who does an act which if done by an adult would constitute the commission of a felony or misdemeanor as defined by 21-3105 except as follows: ‘Juvenile Offender’ shall not mean
“(A) a person age 14 years or over who commits a traffic offense pursuant to chapter 8 of K.S.A. or any city ordinance or county resolution which relates to the regulation of traffic on the roads, highways, or streets, or the operation of self-propelled or non-self-propelled vehicles of any kind.
“(B) a person age 16 years or over who commits an offense as defined in K.S.A. chapter 32.
“(2) A person who escapes from or runs away from any lawful court ordered placement or placement by the secretary after a commitment to said secretary pursuant to the Kansas Juvenile Offenders Code.” Kan. Jud. Council Bull. 57 (June 1981).
Additional hearings were conducted on the matter by the Judicial Council in June 1981, after which the relevant subsection was amended to read as follows:
“(b) ‘Juvenile Offender’ means a juvenile who does an act which if done by an adult would constitute the commission of a felony or misdemeanor as defined by 21-3105 except as follows: ‘Juvenile Offender’ shall not mean
“(1) A person age 14 years or over who commits a traffic offense pursuant to chapter 8 of K.S.A. or any city ordinance or county resolution which relates to the regulation of traffic on the roads, highways, or streets, or the operation of self-propelled or nonself-propelled vehicles of any kind.
“(2) A person age 16 years or over who commits an offense as defined in K.S.A. chapter 32.
“(3) A person 16 years of age or more who is charged with a felony after having been adjudicated in two separate prior juvenile proceedings as having committed an act which would constitute a felony if committed by an adult and such adjudications occurred prior to the date of the commission of the new act charged.”
The Committee Comment on the above change explained:
“This section is changed from the published draft by the striking of what appeared as subsection (b)(2) and by the addition of a new subsection (b)(3). The Committee believes that the language contained in (b)(2) is unnecessary. (See section 1667). The Committee inserted (b)(3) because it is the opinion of a majority of the Committee that if the juvenile system has attempted twice to ‘rehabilitate’ a juvenile after felony adjudications and has failed that the juvenile should then be handled under the criminal code.
“The Committee has spent many hours considering if and when a juvenile should stand trial as an adult. The Committee has considered numerous proposals on the subject including a ‘laundry list’ of offenses for which a juvenile would stand trial as an adult.”
The Judicial Council draft received interim review during the summer and fall of 1981 by the Special Committee on the Judiciary. A review of the minutes from the legislative interim committee meetings indicates that great deference was given to the proceedings of the Judicial Council. The bill was originally introduced in the 1982 legislative session, and ultimately passed without any amendment to the language now found in K.S.A. 38-1602(b)(3).
Black’s Law Dictionary 1368 (4th ed. rev. 1968) reveals the following general definitions:
“Proceeding. In a general sense, the form and manner of conducting juridical business before a court or judicial officer; regular and orderly progress in form of law; including all possible steps in an action from its commencement to the execution of judgment. Erwin v. U.S., D.C. Ga., 37 F. 470, 488, 2 L.R.A. 229. Sometimes, merely the record history of a case. See Uhe v. Railway Co., 3 S.D. 563, 54 N.W. 601.
“In a more particular sense, any application to a court of justice, however made, for aid in the enforcement of rights, for relief, for redress of injuries, for damages, or for any remedial object. See Coca-Cola Co. v. City of Atlanta, 152 Ga. 558, 110 S.E. 730, 732, 23 A.L.R. 1339. People v. Raymond, 186 Ill. 407, 57 N.E. 1066.”
The purpose of the juvenile offenders code is to provide an alternative to prosecuting a juvenile under the Kansas Criminal Code. The legislature requires that the juvenile offenders code be liberally construed to provide each juvenile coming within its provision with “care, custody, guidance, control and discipline” that will best serve the offender’s rehabilitation and the protection of society. K.S.A. 38-1601; Findlay v. State, 235 Kan. 462, 681 P.2d 20 (1984); Lennon v. State, 193 Kan. 685, 396 P.2d 290 (1964). A liberal construction of K.S.A. 38-1602(b)(3), particularly in light of the Judicial Council’s comments, supports the ruling of the trial judge.
The appeal of the State is denied. | [
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The opinion of the court was delivered by
Miller, J.:
This is an appeal by Terrance Houck, following his conviction by jury trial in Montgomery District Court, of two counts of aggravated arson, K.S.A. 21-3718(1)(a), K.S.A. 21-3719; two counts of conspiracy to commit aggravated arson, K.S.A. 21-3302, -3718(1)(a) and -3719; one count of felony murder, K.S.A. 21-3401; and one count of felony theft, K.S.A. 21-3701(b). The controlling issue is whether the evidence was sufficient to establish the crime of aggravated arson under K.S.A. 21-3718(1)(a) and -3719.
Briefly, these are the facts. Terrance Houck owned two houses in Independence, Kansas, one located at 1328 West Chestnut, the other at 729 South 16th Street. On June 25, 1980, the house on Chestnut was damaged by fire. Albert Hughes was the tenant; he was inside the house when the fire was discovered. The Marysville Mutual Insurance Company had a policy of insurance covering the Chestnut Street property. Houck, as owner, was the named insured. He collected $4,900 from Marysville Mutual for his loss.
On January 29, 1981, fire destroyed the 16th Street property. Carl Clay was in the house when it burned, and he was killed. The house was uninsured, but the First National Bank of Elk City held a mortgage on it.
Arson was not suspected. The fire chief concluded that both fires were caused by careless smoking. Houck, meanwhile, was charged on August 28, 1980, and was convicted on March 5, 1981, of aiding and abetting arson and theft by deception. These charges arose out of yet a third fire. On December 21, 1981, he was placed on parole, and on June 3, 1982, his parole officer granted Houck’s request and authorized him to move to Arkansas. There he reported to an Arkansas parole officer upon his arrival in that state, and he remained under the supervision of that officer.
An arson investigation was initiated in April or May, 1983, when Independence authorities received anonymous letters from someone in Arkansas. Two statements were taken from the defendant. The first, taken in Arkansas on May 22,1983, covered the Chestnut Street fire. The second, taken in Independence on May 24, 1983, covered the 16th Street fire. In regard to the Chestnut Street fire, defendant told police officers that he was buying several houses from John Briggs, and the Chestnut Street house was insured through John’s son, Robert Briggs, an insurance agent. Robert Briggs called him several times and finally defendant went in to see him. Robert Briggs suggested that the Chestnut Street house was insured and a fire at that address might get the defendant out of debt. Houck said that he then talked with Michael Harris, and told Harris that if the house would accidentally burn the burning would be worth about $500. The house later burned and Houck collected on the insurance policy. Robert Briggs held out of the proceeds the money that Houck owed John Briggs (about $4,780), and Houck received a check from Robert Briggs for the balance, $120. In the May 22 statement, Houck denied ever talking to Harris about setting fire to the 16th Street house.
On the following day, May 23, Houck was returned to Kansas and on May 24, he gave a statement concerning the 16th Street fire. He stated that Suretta Beach, Carl Clay’s lady friend, came to him and asked him to burn the 16th Street house so that Clay would die and she could collect on an insurance policy which she held on Clay’s life. She insisted the fire occur on January 29, 1981. She promised Houck that she would pay him after she received the insurance money. She also told him that the windows and rear door were barred and that the fire should be started on the front porch so that Clay could not escape. Houck talked to Michael Harris and paid him $500 to set the fire and promised to pay him more when the job was finished. When Harris said he had no way to carry gasoline, Houck told him that there was a five-gallon gasoline can in the back of his truck. On the morning of January 29, Houck went to a coffee shop about 6:00 o’clock and then went down to 16th Street to get Clay out of the house. When Houck arrived, the house was already on fire. Houck went on to work. After the fire, Suretta Beach stopped him on his way home and told him she would pay him as soon as she got the insurance money. She never paid him anything. Both of these statements were received in evidence.
At trial, Suretta Beach was called as a witness for the State. She testified that the windows and back door of the 16th Street house were sealed for weatherization. She denied hiring anyone to burn the house, and testified that she had no life insurance on Clay. She denied collecting any insurance money after he died. Michael Harris was killed in 1982, and John Briggs died in August 1983, before this trial, and thus neither was available as a witness. Robert Briggs, called as a witness for the State, testified as to the insurance coverage, the proof of loss, and the disbursement of the policy proceeds. He was not asked if he suggested to Houck that he burn the house.
Two other witnesses, Gary and Michael VanGilder, testified that Houck approached them about burning a house. The witnesses, however, were unsure of the location of the target properties.
The first issue is whether the evidence was sufficient to sustain the convictions of aggravated arson, as charged in the second amended information. Both charges allege the damaging of a building in which another person has an interest, without the consent of such other person. Count No. 2 charges defendant with the aggravated arson of the 16th Street property “in which another person has an interest, to-wit: The First National Bank of Elk City, Kansas, without the consent of such other person . . .
Count No. 5 charges defendant with the aggravated arson of the Chestnut Street property “in which another person has an interest, to-wit: Marysville Mutual, Marysville, Kansas, and Albert Hughes without the consent of such other persons . . . .” Arson is defined by K.S.A. 21-3718 as follows:
“21-3718. Arson. (1) Arson is knowingly, by means of fire or explosive:
“(a) Damaging any building or property in which another person has any interest without the consent of such other person; or
“(b) Damaging any building or property with intent to injure or defraud an insurer or lienholder.
“(2) Arson is a class C felony.” (Emphasis added.)
Aggravated arson is defined by K.S.A. 21-3719 as follows:
“21-3719. Aggravated arson. Aggravated arson is arson, as defined in section 21-3718, and committed upon a building or property in which there is some human being.
“Aggravated arson is a class B felony.”
Houck argues that neither the bank nor the insurance company had any interest in the property that burned. Our former statute, G.S. 1949, 21-581, prohibited the burning of the property of another person. In State v. Crosby, 182 Kan. 677, 324 P.2d 197 (1958), we were called upon to interpret that statute. Crosby was charged with burning a dwelling house which was the property of a savings and loan association by virtue of a certain mortgage held by it on that property. Defendant Crosby was the owner of and in possession of the property. Prior to the fire, he and his wife had executed a note and mortgage to the savings and loan association. On appeal, defendant contended that the interest, if any, of the savings and loan association in the property, being merely that of a mortgagee, did not make the house “the property of another person” within the meaning of the arson statute. In reversing the conviction, our court said:
“[G.S. 1949] 67-301 [now K.S.A. 58-2301] provides that in the absence of stipulations to the contrary, the mortgagor of real property may retain the possession thereof. It has been held many times that a mortgage on real property is a lien thereon; that it is merely an incumbrance of security for a debt; that title to the property remains in the mortgagor; that in the foreclosure of a mortgage on real property legal title to the property does not pass until the sheriff s deed is executed and delivered, and that a mortgage does not convey any interest in the land itself. (Penn Mutual Life Ins. Co. v. Tittel, 153 Kan. 530, Syl. 2, 111 P.2d 1116 [opinion on motion for rehearing, 153 Kan. 747, 114 P.2d 312], and Mid-Continent Supply Co. v. Hauser, 176 Kan. 9, 15, 269 P.2d 453.)
“Conceding, for the sake of argument, that in one sense of the word a mortgagee has an ‘interest’ in the mortgaged property (the Bodwell case, supra), we are not here concerned with civil rights and liabilities growing out of the relationship, such as for acts of waste committed by the mortgagor, and the like. Our question is whether mortgaged real property is ‘the property of another person’ (the mortgagee) within the meaning of the statute, 21-581.
“We think the answer is to be found in the principles and rules applicable to criminal prosecutions generally, a primary one being that criminal statutes are to be given a strict construction. . . . [A] rule of strict construction is to be applied to criminal statutes, and courts should not extend them to embrace acts or conduct not clearly included within the prohibitions of the statute.
“In our opinion the dwelling house here involved was not the ‘property’ of the mortgagee within the meaning of the statute, and therefore count one of the information does not allege a public offense.” 182 Kan. at 683-84.
The Bodwell case, referred to in Crosby, is Bodwell v. Heaton, 40 Kan. 36, 18 Pac. 901 (1888). Bodwell was a civil action, by Heaton and others, to recover on promissory notes and an account from one F. M. Jolly. Bodwell filed an interplea, contending that he held a mortgage on the property from Jolly which was prior to the attachment issued on the judgment of Heaton. Our court held that a mortgagee has sufficient interest in the property to permit his interpleader when the real estate is attached. We said:
“A mortgage upon such property is a lien upon it, and although the mortgagee has no rights of possession or title to the land, he certainly has an interest in it, and under the statutory definition a mortgagee has property in the land mortgaged, so that he may interplead in any cause in which it is sought to be taken.” 40 Kan. at 38.
The information here charged that the First National Bank had an interest in the 16th Street property. It held a mortgage and was thus “interested” in the property as security for its loan. The issue here is whether the mortgagee held an interest in the building or property under the specific language of K.S.A. 21-3718(l)(a). Reading the statute in its entirety, we note that the following subsection (b) makes it an offense to knowingly, by means of fire or explosive, damage any building or property with intent to injure or defraud an insurer or lienholder. Obviously, the Bank was a lienholder and the burning of the house with intent to defraud the mortgagee would constitute a violation of subsection (b). If, as the State argues, subsection (a) prohibits destruction of mortgaged property, we fail to see why the legislature would make it a separate crime to destroy mortgaged property with intent to defraud the mortgagee by enacting subsection (b).
The statements in the first quoted paragraph from the Crosby opinion are still true. A mortgagee has a lien, not an ownership interest in the land. Construing subsection (a) strictly, as we are required to do in the case of criminal statutes, we hold that a mortgagee does not have an interest in the property upon which it holds a mortgage, within the meaning of K.S.A. 21-3718(l)(a).
Similarly, does the “interest” of the insurance carrier, Marysville Mutual, constitute an “interest” in the Chestnut Street property within the meaning of K.S.A. 2I-3718(l)(a)P Its “interest,” if any, is specifically protected by subsection (b). Insurance is a matter of contract. The insurance carrier has an interest in the contract and in the premiums. It has no legal interest in the insured property. We hold that an insurer does not have an interest in the property it insures, within the meaning of K.S.A. 21-3718(l)(a).
Appellant, despite the arguments of the State to the contrary, is not challenging the information; he is challenging the sufficiency of the evidence to convict him of the specific charges of aggravated arson made against him in the information — knowingly, by means of fire or explosive, damaging a building in which another person has an interest, without the consent of such other person. For the reasons stated above, we hold that neither the mortgagee nor the insurance carrier had an interest under K.S.A. 21-3718(l)(a) in the property destroyed. 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.
The defendant next contends that the State’s failure to charge him for almost three years after the crimes occurred resulted in a delay which prejudiced him and denied him due process under the United States Constitution. He first argues that his absence from the state did not toll the running of the statute of limitations. The statute of limitations for the charges at issue is two years. K.S.A. 21-3106(2). That statute specifically provides, in subsection (3), that the period within which a prosecution must be commenced shall not include any period in which “[t]he accused is absent from the state.” Thus, if the period during which Houck was in Arkansas is excluded, this prosecution was timely.
Defendant argues that he was on parole and under the joint supervision of Kansas and Arkansas parole officers during all the time that he was in Arkansas. He contends that he was in the “constructive custody” of the State of Kansas and the State could have contacted him at any time or could have returned him to Kansas if it wished. There is no dispute, however, that Houck voluntarily sought leave to move to Arkansas. He left the state of his own free will and remained out of state as a personal choice during the period in question. Pie was not ordered to leave the state; he was granted permission upon his request.
K.S.A. 1985 Supp. 22-3717(h) provides in applicable part that: “Every inmate while on parole shall remain in the legal custody of the secretary of corrections and is subject to the orders of the secretary.” In Johnson v. Stucker, 203 Kan. 253, 259, 453 P.2d 35, cert. denied 396 U.S. 904 (1969), an action in habeas corpus, we observed that while it is true that a paroled prisoner is one conditionally released from actual custody, he remains in “ ‘legal custody’ of the institution from which he is released, and constructively is a prisoner of the state.” Similarly, one who is released on bond or other recognizance after conviction in a state court is held to be “in custody” within the meaning of the federal habeas statute. See Hensley v. Municipal Court, 411 U.S. 345, 36 L. Ed. 2d 294, 93 S. Ct. 1571 (1973). Though Houck may have been “in custody” of the State for the purposes of habeas corpus, he was not in actual custody. With the consent of his parole officer, he elected to move out of state.
We have reviewed the cases cited by counsel, but find them distinguishable. A review of the cases dealing with prisoners held out of state, and servicemen absent from the state, would not be helpful. We have found no case involving facts similar to those at hand. It seems to us that the defendant is in no better position than a person not on parole, who voluntarily absents himself from the state, and whose whereabouts are known by the Kansas officers. Should the statute be tolled as to one and not the other? We think not. We hold that Houck was voluntarily absent from the state and thus the two-year statute of limitations was tolled during his absence. The prosecution was timely commenced.
Houck also argues that due process requires dismissal because the preindictment delay caused substantial prejudice to his rights. We discussed a similar claim and the law applicable thereto in State v. McCorgary, 224 Kan. 677, 681-84, 585 P.2d 1024 (1978). In that opinion we reviewed the leading federal cases as well as our own on the point. In McCorgary, there was an eleven-year lapse of time between the murder and the commencement of the prosecution. Some of the principles set forth therein are as follows: (1) To prosecute a defendant following investigative delay does not deprive him of due process even if his defense might have been somewhat prejudiced by the lapse of time; (2) a due process inquiry must consider the reasons for the delay as well as the prejudice of the accused; and (3) prosecutorial delay solely to gain tactical advantage over the accused would violate due process.
In this case, as in McCorgary, there is not the slightest indication that the delay by the State was for the purpose of gaining tactical advantage. To the contrary, the State had no suspicion of arson until it received anonymous letters some sixty days or less prior to the time this prosecution was commenced. Once the State was alerted, its investigation moved promptly and charges were filed on May 20, 1983. Defendant contends that he was prejudiced because two witnesses, John Briggs and Michael Harris, died before the case was tried. Michael Harris, the alleged coconspirator, died of gunshot wounds approximately one year before the charges were filed. John Briggs died shortly after the charges were filed, but prior to trial. John Briggs, a former employer of the defendant, was the former owner of one of the properties and the defendant owed him money at the time the Chestnut Street property was destroyed. Briggs received a substantial portion of the insurance proceeds, as we have stated above. That evidence came in through the testimony of his son, Robert Briggs. Defendant does not allege that John Briggs had any information as to the conversations between the defendant and Robert Briggs, or that John Briggs could have disputed any of the State’s evidence at trial. Michael Harris, on the other hand, allegedly conspired with the defendant and set fire to both properties at defendant’s request. He was an important witness both for the State and for the defense, depending on his testimony. There is no indication, however, that the State was in any way responsible for his death or that the State deliberately delayed prosecution until after his demise. Upon the facts before us, we hold that defendant was not denied due process by the preindictment delay.
Defendant next contends that his “uncorroborated” confession is not sufficient to establish the elements of the offenses charged against him, in the absence of sufficient proof of the corpus delicti. In view of our disposition of this case, we need not reach this issue.
Defendant contends that the written instructions to the jury defining aggravated arson and the lesser included offense of arson were clearly erroneous. Instruction No. 22 attempts to set forth the elements of the crime of aggravated arson as charged in count No. 5 of the information, relating to the destruction of the Chestnut Street property. The trial court’s instruction omits the phrase of “knowingly, by means of fire or explosive,” a necessary element of aggravated arson when charged under K.S.A. 21-3719 and -3718(l)(a). In charging the jury in a criminal case, it is the duty of the trial court to define the offense charged, stating the essential elements of the crime either in the language of the statute or in appropriate language of the court. This instruction, omitting an essential element, was erroneous. However, it was not objected to at trial. When an instruction has not been objected to at trial, this court’s scope of review is limited to a determination of whether the instruction is clearly erroneous. An instruction is clearly erroneous when a reviewing court reaches a firm conviction that if the trial error had not occurred, there was a real possibility the jury would have returned a different verdict. State v. Maxwell, 234 Kan. 393, Syl. ¶ 5, 672 P.2d 590 (1983); State v. Stafford, 223 Kan. 62, Syl. ¶ 2, 573 P.2d 970 (1977). We note that the trial court did not omit this element in defining aggravated arson concerning the 16th Street property. Nor did the trial court omit that element in defining the lesser included offense of arson. We also note that the trial court erred in its instruction of the lesser included offense of arson of the Chestnut Street property when it substituted the First National Bank for the Marysville Mutual Insurance Company, which the State charged had an interest in that property. However, in light of our final disposition of this case, we need not determine whether these instructional errors were clearly erroneous and reversible error.
Five of the offenses charged were related to or arose out of the alleged aggravated arson. All stand or fall upon the sufficiency of the proof of the aggravated arson charges. Count I charged conspiracy to commit aggravated arson, which is defined in the information in pertinent part as “knowingly by means of fire . . . damaging any building ... in which another person has an interest without consent of such other person . . . .” and describing the 16th Street residence. As we have already held, the evidence did not establish that another person had an interest in that property. Count II charged aggravated arson of the 16th Street residence “in which another person has an interest, to-wit: The First National Bank of Elk City . . . .” As discussed above, the evidence was insufficient to establish that offense.
Count III charged first-degree felony murder, the killing of Carl Clay “while perpetrating the felony crime of aggravated arson ... as stated in Count II of this Information which is hereby incorporated into this Count by reference . . . .” The felony upon which the charge was founded was not established by the evidence.
We are not unmindful of our prior holding that one convicted of felony murder need not be charged with and convicted of the underlying felony. See State v. Wise, 237 Kan. 117, 122, 697 P.2d 1295 (1985). In that opinion we cited a New York case, People v. Murray, 92 App. Div. 2d 617, 459 N.Y.S.2d 810 (1983), in which it was held that an acquittal of the underlying felony is not inconsistent with a conviction of felony murder. In the case at hand, however, there is no evidence that Houck committed, attempted to commit, or conspired to commit the specific felony upon which the State relied — the burning of a dwelling house in which some other person had an interest. Absent proof of this offense, the homicide conviction cannot stand.
Counts IV and V charged conspiracy to commit aggravated arson and the aggravated arson of the Chestnut Street residence in much the same manner as Counts I and II were drafted. These counts were based upon the premise that Marysville Mutual had an interest in the property, which the evidence fails to establish. Defendant’s conviction of the offenses charged in those counts must likewise be reversed.
Defendant was charged in Count VI and convicted of theft by deception of the $4,900 he received from the insurance company. We find no direct interrelation between that conviction and the errors which pervade the others. The evidence was sufficient to sustain this conviction.
For the reasons stated, the convictions of conspiracy to commit aggravated arson (Counts I and IV), aggravated arson (Counts II and V), and felony murder (Count III) are reversed. The conviction of theft by deception (Count VI) is affirmed.
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The opinion of the court was delivered by
Moritz, J.:
Christopher D. Britt appeals his Jessica’s Law convictions for rape, aggravated sodomy, and aggravated indecent liberties. He contends all three convictions must be reversed because the evidence was insufficient to support a finding of guilt on each of the alternative means for committing the crime on which the jury was instructed. Applying State v. Brown, 295 Kan. 181, 284 P.3d 977 (2012), we conclude none of the complained of jury instructions included alternative means. Britt also argues that three separate statements by the prosecutor constitute misconduct. While we conclude one of the complained of statements was improper, we find the error is not reversible.
Britt also raises a constitutional challenge to his life sentence, arguing it violates § 9 of the Kansas Constitution Bill of Rights. Applying the three-part test of State v. Freeman, 273 Kan. 362, 367, 574 P.2d 950 (1978), we conclude Britt’s sentence does not violate our constitution. Finally, we agree that the district court erred in imposing lifetime postrelease. We affirm Britt’s convictions but vacate the imposition of lifetime postrelease supervision.
Facts and Procedural History
On July 16, 2006, D.B. married Christopher Britt. Around December 12, 2006, D.B., her two children, and Britt moved to Overland Park, Kansas from Kansas City, Missouri. In March of 2007, Britt apparently was unemployed and took over household duties while D.B. worked.
On December 31, 2007, D.B. and Britt had a domestic dispute. During the dispute Britt threatened to kill D.B. and slammed a car door on her leg. Britt was charged with and eventually pled guilty to criminal threat, domestic battery, and misdemeanor assault.
In early January 2008, while Britt was in jail on domestic dispute charges, D.B.’s 9-year-old daughter, A.C., disclosed to her mother that Britt tried to kiss her and rub her genitals. A.C. gave her mother a piece of paper on which she had written that Britt made her “suck his middle part.” D.B. took her daughter for a sexual assault examination and later a “safe talk” interview at Sunflower House on January 7, 2008.
Jennifer Coughlin, a forensics interviewer, conducted the Sunflower House interview. During the interview, A.C. stated that Britt touched die inside of her middle part approximately 6 to 10 times; placed his middle part in her middle part approximately 20 times, and made her suck his middle part approximately 30 times. Occasionally, A.C. would elect to write out her answers to Cough-lin’s questions. Her written answers were admitted into evidence at trial. Some of A.C.’s most graphic statements were made in writing, e.g., Britt made her “suck his middle part” and it was “nasty stuff that I don’t want to taste.” A.C. also wrote that during the forced fellatio “[Britt’s] body [was] jumping like [a] grasshopper.”
The State charged Britt with rape, aggravated criminal sodomy, and aggravated indecent liberties with a child. At trial, A.C., now 11 years old, testified that Britt touched the inside and outside of her middle part, made her suck his middle part, and kissed her breasts and mouth. A.C. stated that Britt’s penis never penetrated her vagina. But she stated that Britt rubbed his penis “on the outside, on the edge” of her “private part.”
Stephanie Strout conducted A.C.’s sexual assault examination which revealed no signs of trauma or healed trauma. But Strout testified that the hymen usually heals within 72 hours of trauma, leaving no sign of the prior trauma. Because A.C.’s sexual assault examination was completed more than 72 hours after the last alleged assault, Strout opined that the lack of trauma was not probative of whether an assault occurred. Britt’s expert witness, Dr. William Logan, reviewed the examination report and largely agreed with Strout. He concluded that the examination “[d]oesn’t prove anything one way or the other, standing alone.”
Britt testified and denied that any abuse occurred. The jury returned a guilty verdict on all charges.
The rape instruction required the jury to find that Britt was over the age of 18. But no age element was included in the instructions for the two other charged crimes. Consequently, at sentencing the State asked the court to sentence Britt to the grid for the nonrape counts under this court’s reasoning in State v. Bello, 289 Kan. 191, 211 P.3d 139 (2009). The district court obliged and imposed consecutive sentences of life with a mandatory minimum sentence of 618 months for the Jessica’s Law rape charge, and grid sentences of 123 months and 61 months for the sodomy and aggravated indecent liberties charges, respectively. At the time of his sentencing, Britt’s criminal histoxy score was a B. Therefore, under K.S.A. 21-4643(a)(2)(B), Britt’s mandatory minimum sentence was between 554 and 618 months. Britt timely appealed.
Alternative Means
Britt raises alternative means challenges to his aggravated sodomy, aggravated indecent liberties, and rape convictions. “Issues of statutory interpretation and construction, including issues of whether a statute creates alternative means, raise questions of law reviewable de novo on appeal.” Brown, 295 Kan. 181, Syl. ¶ 6.
Aggravated Sodomy
Britt argues his aggravated sodomy conviction must be reversed because the evidence was insufficient to support a finding of guilt on each of die alternative means for committing the crime on which the jury was instructed.
We recently analyzed and developed a framework for considering sufficiency of the evidence claims when the defendant asserts the evidence of alternative means was insufficient to establish each alternative means. Brown, 295 Kan. at 200-01. In Brown, we noted that in past decisions we have applied a “super-sufficiency” requirement for evidence in alternative means cases. Under that analysis, 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 jury 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. Brown, 295 Kan. at 200-02.
But in Broton, we recognized a preliminary step to be applied before considering the super-sufficiency requirement. That preliminary step requires that we identify whether the criminal statute supporting die charged crime is an alternative means statute. 295 Kan. at 200. To make that determination, we first consider whether an “or” separates alternative means or separates “options within a means.” 295 Kan. at 201. Only if that language is ambiguous do we rely on legislative history or background considerations that speak to legislative purpose, or apply canons of statutoiy construction. See 295 Kan. at 201; Double M Constr. v. Kansas Corporation Comm'n, 288 Kan. 268, 271-72, 202 P.3d 7 (2009). We held in Brown:
“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 create alternative means, even if the description is included in a jury instruction.” 295 Kan. at 194.
As we explained in Brown, the legislature typically signals its intent to state alternative means through structure, separating alternatives into distinct subsections of the same statute. However, the legislature may also list additional alternatives or options within a single means of committing die crime. These “options within a means” do not constitute alternative means themselves if drey 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. Brown, 295 Kan. at 196.
Returning to the specifics of this appeal, Britt challenges his aggravated sodomy conviction arguing the State presented insufficient evidence to demonstrate that he engaged in oral contact with, or oral penetration of, A.C.’s female genitalia. Britt claims the only evidence of sodomy the State presented was A.C.’s testimony that Britt forced her to “suck” his “middle part.” The State, without the benefit of this court’s clarification of alternative means in Brown, appears to concede that it failed to present evidence of alternative means of committing aggravated sodomy, but argues the error was harmless.
Rather than accept this apparent concession, we will first apply the framework of Brown to determine whether the criminal statute supporting the charged crime is an alternative means statute.
At the time of the offense, K.S.A. 2010 Supp. 21-3506(a) provided: “Aggravated criminal sodomy is: (1) Sodomy with a child who is under 14 years of age.” Britt contends the definition of sodomy in K.S.A. 21-3501(2), states alternative means of committing the crime of aggravated sodomy. That definition 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.” Similarly, the jury was instructed that for purposes of this case “sodomy means ‘oral contact or oral penetration of the female genitalia or oral contact of the male genitalia.’ ”
The actus reus of aggravated criminal sodomy under K.S.A. 2010 Supp. 21-3506(a)(l) is the defendant’s act of sodomy with a child who is under 14 years of age. The definition of sodomy, K.S.A. 21- 3501(2), creates three alternative means of committing sodomy: (1) oral contact with male or female genitalia; (2) anal penetration of a male or female; and (3) sexual acts between a person and an animal.
But the specific definition of oral contact used in the statute— “oral contact or oral penetration of the female genitalia or oral contact of the male genitalia”—does not contain alternative means. Instead, the definition refers to various types of oral contact of either the male or female genitalia. While we note that the definition refers to both oral “contact” and oral “penetration” of the female genitalia, since oral penetration of the female genitalia would seemingly always involve oral contact with the female genitalia, these terms are both encompassed within the definition of oral contact.
Thus, we conclude that within the first alternative means of committing aggravated criminal sodomy under K.S.A. 21-3501(2)—oral contact—there are various factual circumstances that prove the crime—i.e., oral contact with oral penetration of the female genitalia or oral contact with the male genitalia. But these factual circumstances do not present alternative means of committing aggravated criminal sodomy, and we conclude the State presented sufficient evidence of the crime by proving that Britt forced A.C. to engage in oral contact with his genitalia.
Aggravated Indecent Liberties
Britt also challenges his conviction of aggravated indecent liberties claiming the jury instructions presented alternative means as to this crime and the State failed to present sufficient evidence of each means. The crime of aggravated indecent liberties is set out at K.S.A. 2010 Supp. 21-3504(a)(3)(A) and defined as: “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 tire sexual desires of either the child or the offender, or both.” The portion of the jury instruction at issue here instructed the jury that to establish the charge of aggravated indecent liberties, it must find that “the defendant fondled or touched the person of A.C. in a lewd manner, with intent to arouse or to satisfy the sexual desires of either A.C. or the defendant, or both.”
Britt argues K.S.A. 2010 Supp. 21-3504(a)(3)(A) requires tire State to present evidence that he acted with the intent to arouse or satisfy both his sexual desires and A.C.’s sexual desires. He reasons that because the State presented no evidence that he acted with tire intent to arouse or satisfy A.C.’s sexual desires, the State necessarily failed to present sufficient evidence of each of the alternative means upon which the district court instructed the jury.
But Brown rejected this argument, and held that the phrase “either the child or the offender, or both” under K.S.A. 21-3504(a)(3)(A) does not state a material element of the crime but merely describes a secondary matter, the potential yet incidental objects of the offenders required intent. 295 Kan. at 201. Thus, the phrase outlines options within a means, and describes factual circumstances that may prove the distinct, material mental state element of the crime.
Because the phrase “either the child, the offender, ... or both” in K.S.A. 21-3504(a)(3)(A) does not state material elements of the crime, but merely outlines options within a means, the jury instruction reiterating these options did not include alternative means of committing the charge of aggravated indecent liberties.
Rape
Britt also challenges his rape conviction, arguing the definition of this crime contains alternative means of committing the crime and the State failed to present sufficient evidence of those means.
“Sexual intercourse” as an element of the crime of rape is defined by K.S.A. 21-3501(1) as “any penetration of the female sex organ by a finger, the male sex organ or any object.” In its instruction on the crime of rape, the jury was given this same definition of the term “sexual intercourse.”
Britt argues K.S.A. 21-3501(1) creates three alternative means of penetrating the female sex organ: (1) by a finger; (2) by the male sex organ; and (3) by any object. Britt acknowledges that the State presented at least some evidence to support the claim that he penetrated A.C.’s vagina with his penis. However, Britt claims the State failed to present evidence that he penetrated A.C.’s female sex organ with an object.
We address this challenge as we did Britt’s first two alternative means challenges, by examining the language of the relevant statute, K.S.A. 21-3501(1), and determining whether alternatives within the statute define alternative means or “an option within a means.” Again, we exercise de novo review over this question of law. Brown, 295 Kan. at 193-94.
The actus reus of the sexual intercourse reference in the rape statute is “penetration.” The alternative methods of penetrating the female sex organ set forth in the statute—by a finger, the male sex organ, or an object—merely describe “the factual circumstances in which a material element may be proven,” i.e., the different ways in which penetration may occur. Brown, 295 Kan. at 196-97. Thus, these are not alternative means, but options within a means and the inclusion of this language in the jury instructions does not make this an alternative means case triggering concerns of jury unanimity. As such, Britt is not entitled to reversal of his rape conviction. See State v. Burns, 295 Kan. 951, 287 P.3d 261 (2012) (rejecting a similar argument regarding the anal penetration required under K.S.A. 21-3501[2] for aggravated criminal sodomy being perpetrated by [1] a body part or [2] an object).
Prosecutorial Misconduct
Britt next alleges three instances of prosecutorial misconduct. We apply the well known two-step test to these claims. First, we consider whether the prosecutor’s comments were outside the wide latitude allowed in discussing the evidence. If so, we next determine whether those comments prejudiced the jury against the defendant and denied the defendant a fair trial. This second step requires determining whether: (1) the misconduct was gross and flagrant; (2) the misconduct showed ill will on the prosecutor’s part; and (3) the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. See State v. Inkelaar, 293 Kan. 414, 427, 264 P.3d 81 (2011). The third factor of the second step of the prosecutorial misconduct test may not override die first two factors unless 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. State v. Naputi, 293 Kan. 55, 58, 260 P.3d 86 (2011).
First Instance
First, Britt contends diat in closing argument, the prosecutor improperly requested the jury characterize A.C/s testimony:
“I am asking you to assess the credibility of a nine-year-old girl, now 11, and its just that simple. It’s this simple. She’s either telling you the truth, in which case she’s a victim of a horrible crime and he’s guilty, or she’s a lying, manipulative, conniving, creative, vindictive, evil child, who’s accused this man right here of the most heinous of crimes, and he’s innocent. It’s one of the two. There are no shades of gray on this, folks. There is no middle ground.
“And once you decide those things about [A.C.], either she experienced these things and she’s is a victim, or she’s the most evil manipulating person you have ever seen. Because, again, there is no middle ground.”
Britt argues the prosecutor made a misstatement of logic by advising the jury that in considering A.C/s credibility, they must find one of two extreme alternatives: (1) either A.C. was telling the truth because she was “a victim of a horrible crime,” or (2) A.C. was “a lying, manipulative, conniving, creative, vindictive, evil child.”
Contrary to the prosecutors argument, the jury was not presented with only two extreme options in considering A.C/s credibility. Instead, as Britt points out in his brief on appeal, the jury was presented with several “shades of gray,” in assessing A.C/s credibility:
“Perhaps, as defense counsel suggested, someone had ‘manipulated’ A.C. into making the allegations. Perhaps A.C. believed she was telling the truth, when in reality, none of the abuse had occurred. Perhaps A.C. had made the initial allegation that Mr. Britt had ‘tried, to kiss her,’ and that he ‘was trying to rub on her genitals,’ and, after realizing how much attention she received for saying those things had occurred, she began to embellish upon her story. She may have then become afraid that, if she admitted to those embellishments, her mother (and odrers) would be angry at her. Perhaps some of A.C.’s claims were true, meaning Mr. Britt was guilty of some of the crimes the State alleged he had committed, but some of A.C.’s claims were false, making Mr. Britt not guilty of some of the crimes the State alleged he had committed. Any of these scenarios would consti tute the type of ‘grey area’ or ‘middle ground’ the prosecutor, during his closing argument, claimed did not exist.”
We agree with Britt that the prosecutor clearly misstated the jury’s options in considering the credibility of the victim, and the prosecutor intended these misstatements to improperly influence jurors to believe they had no choice other than to find the victim entirely credible and convict Britt of all charges.
But while we find these statements outside the wide latitude given to prosecutors, it was not reversible error. First, there was no showing of ill will by the prosecutor. See State v. Miller, 284 Kan. 682, 719, 163 P.3d 267 (2007) (“ ‘In past cases, we have noted a prosecutor’s indifference to a court’s rulings, mocking of a defendant, or repeated acts of misconduct are evidence of ill will and the lack of such conduct shows that there was no ill will. [Citations omitted.]’ ”); State v. Washington, 275 Kan. 644, 672, 68 P.3d 134 (2003) (stating that a few comments in lengthy transcript do not show ill will).
When determining whether a prosecutor’s conduct is gross and flagrant, we consider whether the prosecutor “ ‘repeated or emphasized the misconduct.’ ” State v. Simmons, 292 Kan. 406, 418, 254 P.3d 97 (2011). Here, while the prosecutor repeated the offending misstatement twice in his closing argument, the statements were not emphasized and repeated throughout the entire argument. So while we disapprove of the comments, we find that under the circumstances of this case, the prosecutor’s statements were not gross and flagrant.
Because we have found an absence of prejudice under the second prong of the test for prosecutorial misconduct, we conclude the prosecutor’s improper comments do not require reversal.
Second Instance
Next, Britt argues that the prosecutor erred when he commented on the credibility of Dr. Logan, Britt’s expert witness. The prosecutor stated, “Dr. Logan is a paid defense witness. Period. And all he told you were things that you are definitely smart enough to look at the tape and see.”
Here, because Dr. Logan testified that he was a paid witness, the prosecutor stated a fact in evidence. In that sense, this case is distinguishable from State v. Sprung, 294 Kan. 300, 312, 277 P.3d 1100 (2012), where the prosecutor insinuated that paid witnesses he in order “to get [the defendant] off.” Moreover, exposing a witness’ bias or motive for testifying is a proper subject for cross-examination. See State v. Jones, 273 Kan. 756, 783, 47 P.3d 783, cert, denied 537 U.S. 980 (2002). Thus, by extension, a prosecutor is free to argue a witness’ bias or motive to the jury if the evidence has established the facts.
For these reasons, we conclude the prosecutor’s comments regarding Britt’s expert witness were not outside the wide latitude allowed the prosecutor, and we need not reach the prejudice prong of the test.
Third Instance
The prosecutor concluded his closing argument by stating: “Folks, I am confident when you go back there, you put your heads together, you are going to apply some common sense, and you are going to do the right thing, here, find him guilty.” Britt argues that with this remark, the prosecutor inappropriately injected his own personal opinion of the defendant’s guilt. Further, Britt contends that because the prosecutor represents the State of Kansas, the prosecutor misled the jury into believing that the prosecutor’s opinion about the justness of his cause was validated by the State of Kansas. See State v. Morris, 40 Kan. App. 2d 769, 787-88, 196 P.3d 422 (2008). The State contends the prosecutor’s remark was an appropriate request for justice.
In determining whether the prosecutor’s statement was outside the wide latitude given to prosecutors, we note that we have been critical of similar comments in which the prosecutor requested justice on behalf of either the victim or the community. For instance, in State v. Ruff, 252 Kan. 625, 636, 847 P.2d 1258 (1993), the prosecutor improperly told the jury that it had a duty to send a message to the community and convict the defendant. And in State v. Martinez, 290 Kan. 992, 1013-14, 236 P.3d 481 (2010), the prosecutor improperly asked the jury to return a guilty verdict in order to tell a child rape victim that “ ‘she did the right thing’ ” by reporting the crime.
In contrast, the prosecutor’s statement to the jury “to do the right thing” in this case is more aptly characterized as a general appeal for justice that was not explicitly tied to the community or the victim. See, e.g. State v. Nguyen, 285 Kan. 418, 425, 172 P.3d 1165 (2007) (noting it is permissible for prosecutor to argue for justice in general, or “justice for the citizenry of the State of Kansas”). Accordingly, we find this statement by the prosecutor was not improper.
Constitutionality of Sentence
Britt contends his sentence violates the prohibition against infliction of cruel or unusual punishment found in § 9 of the Kansas Constitution Bill of Rights. Recently, we concluded that the hard 25 life sentence under Jessica’s Law, K.S.A. 21-4643(a)(l)(C), withstands § 9 constitutional scrutiny. See State v. Woodard, 294 Kan. 717, 724-25, 280 P.3d 203 (2012). In his Rule 6.09(b) letter, Britt asks this court to revisit that holding.
Standard of Review
In Woodard, 294 Kan. at 720, we reiterated the standard of review for § 9 constitutional challenges.
“In determining whether a sentence is cruel or unusual, a district court must make both legal and factual inquiries. See, e.g., State v. Ortega-Cadelan, 287 Kan. 157, 160-61, 194 P.3d 1195 (2008). These inquiries invoke a bifurcated standard of review: without reweighing the evidence, the appellate court reviews the factual underpinnings of the district court’s findings under a substantial competent evidence standard, and the district court’s ultimate legal conclusion drawn from those facts is reviewed de novo. State v. Gant, 288 Kan. 76, 80, 201 P.3d 673 (2009); State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007).
“A statute is presumed constitutional and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court has the authority and the duty to do so. State v. Laturner, 289 Kan. 727, 735, 218 P.3d 23 (2009); see also State ex rel. Six v. Kansas Lottery, 286 Kan. 557, 562, 186 P.3d 183 (2008) (Tt is not the duty of this court to criticize the legislature or to substitute its view on economic or social policy; it is the duty of this court to safeguard the constitution.’).” State v. Woodard, 294 Kan. at 720.
The Freeman Test
In considering constitutional challenges under § 9 of the Kansas Constitution Bill of Rights, we apply the 3-part Freeman test:
“(1) The nature of the offense and the character of the offender should be examined with particular regard to the degree of danger present to society; relevant to this inquiry are the facts of the crime, the violent or nonviolent nature of the offense, the extent of culpability for the injury resulting, and the penological purposes of the prescribed punishment;
“(2) A comparison of the punishment with punishments imposed in this jurisdiction for more serious offenses, and if among them are found more serious crimes punished less severely than the offense in question the challenged penalty is to that extent suspect; and
“(3) A comparison of the penalty with punishments in other jurisdictions for the same offense.” State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978).
Under this test, no single factor controls. “ ‘Ultimately, one consideration may weigh so heavy that it directs the final conclusion,’ but ‘consideration should be given to each prong of the test.’ ” Woodard, 294 Kan. at 723 (quoting State v. Ortega-Cadelan, 287 Kan. 157, 161, 194 P.3d 1195 [2008]).
At sentencing, Britt filed a motion for downward departure and requested that the district court find K.S.A. 21-4643 unconstitutional under § 9 of the Kansas Constitution. Although the district court considered the nature of the offense and compared Kansas’ Jessica’s Law scheme with similar schemes in other states, the district court denied the motion without expressly considering the second Freeman factor—comparison of Jessica’s Law sentences with sentences for more serious offenses.
The district court’s failure to expressly consider the second prong implicates die district court’s legal conclusion but does not raise a preservation issue. See State v. Gonzalez, 290 Kan. 747, 756, 234 P.3d 1 (2010) (district court abuses its discretion when it fails to follow the law); State v. Ortega-Cadelan, 287 Kan. at 161 (district court should give “consideration [ ] to each prong of the test”); Here, Britt presented his argument and the district court denied the motion, loosely following the Freeman factors. Thus, Britt preserved the issue, and we will consider his argument under Freeman.
The first Freeman factor requires this court to consider the nature of the offense and the character of the offender. Here, Britt had a prior person felony sex offense from Tennessee. While he apparently submitted a psychological report that indicated he was not a pedophile, Britt’s own criminal history indicated that he is a risk to reoffend. Like Woodard, Britt “enjoyed a position of trust as the victim’s stepfather.” Woodard, 294 Kan. at 721. And also like Woodard, Britt’s sexual abuse of his stepdaughter did not stop until law enforcement intervened, i.e., when he was arrested for domestic abuse. While the length of Britt’s abuse of A.C. is unknown, the State proved multiple, reoccurring instances of abuse. Under these circumstances, we conclude that as in Woodard, Britt’s argument under the first Freeman factor fails.
Next, we compare the Jessica’s Law sentencing scheme with sentences for more serious Kansas offenses. In Woodard, we held that at least one part of the Jessica’s Law sentencing scheme, the hard 25 life sentence under K.S.A. 21-4643(a)(l)(C), survived § 9 scrutiny under this factor. 294 Kan. at 724-26. Here, however, Britt was sentenced under K.S.A. 21-4643(a)(2)(B). In his 6.09(b) letter, Britt argues this distinction gives this court a basis to distinguish Woodard. We disagree. K.S.A. 21-4643(a)(2)(B) provides:
“The provision of paragraph (1) requiring a mandatory minimum term of imprisonment of not less than 25 years shall not apply if the court finds:
(B) the defendant, because of the defendant’s criminal history classification, is subject to presumptive imprisonment pursuant to the sentencing guidelines grid for nondrug crimes and the sentencing range exceeds 300 mondas. In such case, the defendant is required to serve a mandatory minimum term equal to the sentence established pursuant to the sentencing range.”
This distinction seems largely irrelevant. In Woodard, we were less concerned with the mandatory 25-year minimum and more focused on the “off-grid” life sentence. Woodard, 294 Kan. at 724-26 (citing cases upholding “life sentences”). Due to Britt’s criminal history score of B, Britt received a mandatory minimum sentence of 618 months’ imprisonment. If he had been convicted of “on-grid” rape, he would have received a sentence somewhere between 554-618 months and would have been eligible for good time credit.
See K.S.A. 21-4704(a); K.S.A. 21-4722 (good time credit calculation).
Britt does not argue that a grid sentence of 618 months would be cruel or unusual. Cf. State v. Nunn, 247 Kan. 576, Syl. ¶ 4, 802 P.2d 547 (1990) (holding that sentence of a minimum of 80 years to a maximum of life for four counts of criminal indecent liberties with a child and three counts of aggravated criminal sodomy was not an abuse of discretion). Instead, he contends his sentence was higher or identical to the sentence some defendants received for convictions of murder. Specifically, Britt argues that had he been convicted of premeditated murder, he would face only a hard 25 under K.S.A. 22-3717(b).
However, as the State points out, under K.S.A. 21-4635 and 21-4638, Britt could also face an identical sentence—a mandatory minimum sentence of 618 months’ imprisonment. See K.S.A. 21-4638 (a defendant sentenced under the hard 50 scheme receives a mandatory minimum term equal to tire sentence established pursuant to the sentencing range if the grid sentence exceeds 600 months).
In any event, Woodard ultimately rejected this line of reasoning, describing its several flaws:
“This argument suffers from several flaws. In the first place, it assumes that murderers necessarily receive more lenient sentences in Kansas than violators of Jessica’s Law. This is not the case. In fact, the Kansas Criminal Code sets out a list of transgressions that constitute capital murder, which is an off-grid offense. K.S.A. 21-3439. Capital murder is subject to punishment by death. K.S.A. 21-4624. The penalty for homicide in Kansas may thus be much more severe than the penalties under Jessica’s Law. See K.S.A. 21-4638; K.S.A. 21-4643. The fact that die penalty for certain categories of homicide may be less severe than the penalties for other, nonhomicide crimes does not automatically render the penalties for the nonhomicide crimes unconstitutional. There is no strict linear order of criminal activity diat ranks all homicides as the most serious crimes and all nonhomicide crimes as less serious, with the corresponding penalties necessarily ranking in diminishing durations of imprisonment.
“Furthermore, as the State points out, Jessica’s Law is not the only Kansas statute diat provides for more severe penalties for nonhomicide crimes than for certain categories of homicide. Compare, e.g., rape, K.S.A. 21-3502, and aggravated kidnapping, K.S.A. 21-3420, which are severity level 1 offenses, with reckless second-degree murder, K.S.A. 21-3402(b), which is a severity level 2 offense.” Woodard, 294 Kan. at 723-24.
For similar reasons, we conclude that the penalty under K.S.A. 21-4643(a)(2)(B) is not disproportionately harsh when compared with the punishments imposed for other offenses in Kansas.
Finally, for tire same reasons we delineated in Woodard, we find that the penalty imposed under K.S.A. 21-4643(a)(2)(B) is not disproportionate to sentences imposed for similar crimes in other states which have withstood allegations of cruel and unusual punishment. See Woodard, 294 Kan. at 724.
For these reasons, we reject Britt’s claim that his Jessica’s Law sentence violates § 9 of the Kansas Constitution Bill of Rights.
Lifetime Postrelease Supervision
Both parties agree that tire district court erred in imposing lifetime postrelease supervision. See K.S.A. 22-3717(b)(5) and State v. Cash, 293 Kan. 326, 330-31, 263 P.3d 786 (2011) (holding that a defendant sentenced under Jessica’s Law was improperly sentenced to lifetime postrelease supervision).
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The opinion of the court was delivered by
Lockett, J.:
The defendant was found guilty by a jury of three counts of first-degree murder and three counts of aggravated kidnapping. We affirm the convictions.
James and Deborah Vogelsang lived approximately one mile from Arlington, Kansas, with their two daughters and two-year-old twin boys. The boys’ babysitter, Tammey Mooney, lived in a trailer across from the Arlington Grade School. On October 29, 1984, Deborah Vogelsang reported to the Reno County Sheriff s Department that her two-year-old twin sons and their babysitter were missing.
Three days later their bodies were found by an Arlington resident in a thickly wooded and grassy area west of Arlington and north of the Vogelsang residence. All three had been shot with a 12-gauge shotgun. One child had been shot once, the second child had been shot twice, and Tammey Mooney had been shot four times.
On November 4, 1984, the defendant, Arnold L. Ruebke, Jr., was arrested and charged with three counts of first-degree murder and three counts of aggravated kidnapping.
The evidence presented to the jury established the following events. On October 29,1984, Deborah Vogelsang left for work at approximately 5:30 a.m. Just prior to 7:30 a.m., Tammey Mooney arrived at the Vogelsang home to babysit with the twins. James Vogelsang then left for work.
About 9:00 a.m. that morning, Arnold Ruebke requested $1.40 worth of gasoline at a service station. The owner of the service station accidently ran the pump to $1.65. Ruebke had only $1.56 in change to pay for the gasoline. Later that morning, Ruebke told the City Clerk that he would have money to pay his outstanding traffic fines. That afternoon, Ruebke purchased an additional $6.40 worth of gasoline and oil. He cashed in $4.34 in change at an Arlington bank; the change included two nickels, a 1941 Mercury dime, and the balance in pennies. Some of the pennies were wheat pennies and a few were corroded. Shortly before 1:00 p.m., Ruebke paid $5.00 on his traffic fines. Later that afternoon, Ruebke returned a 12-gauge shotgun and some shells he had borrowed previously to a friend in Kingman, Kansas.
At approximately 6:00 p.m., Mr. Vogelsang returned home. The boys and the babysitter were missing. Also missing was a bag that had contained pennies, a few of which were corroded and some of which were wheat pennies; one or two nickels; and a 1941 Mercury dime. Tammey’s trailer was checked. Missing from her trailer was $15.00. Her coat that she had worn to babysit that morning had been returned to her trailer.
On October 30, law enforcement officers interviewed three children who, on the day of the victims’ disappearance, had seen the victims with Arnold Ruebke between 11:30 a.m. and noon. The three children, Kevin Sipe, Kerri Shelite, and Monica Johnson, attended Arlington Grade School. During recess the children had seen the victims in Ruebke’s car near Tammey’s trailer, which could be seen from the school. The children recognized Ruebke’s car because it was unique — a black Mustang automobile with horses portrayed on the rear window. Mooney’s presence in the car was later substantiated by the testimony of Larry Morris, a KBI forensic examiner, who determined that a known head hair sample of Tammey Mooney matched a hair found on the right rear floorboard of the defendant’s vehicle.
On the evening of November 1, the bodies of the victims were found in a thickly wooded and grassy area to the north of the Vogelsang residence. To protect the evidence, the crime scene was not processed until the next morning. Evidence revealed that the bodies had not been moved after they had been shot. Hugh Kizer, a criminalist from the KBI, testified that the shot taken from the bodies of the boys was consistent with No. 6 shot, that the shot taken from Mooney’s body was No. 7 % shot, and that shotgun shell shot caps taken from the scene and the bodies of the victims came from a 12-gauge shotgun. As the investigation progressed, it was learned that on October 29 the defendant returned to its owner a 12-gauge shotgun and Federal No. 6 game load shotgun shells! Later, an analysis of the samples taken from those No. 6 game loads revealed they contained a fiber wadding similar to the fiber wadding found in the bodies of the victims.
On the evening of November 2, 1984, Ruebke told an individual that his father was chief of police of Arlington, Kansas, and that he had helped his father carry the bodies out of the woods. He described the type and the location of the wounds of each victim. Ruebke’s father was not a law enforcement officer. At that time, the details of the type and location of the wounds had not been released to the public.
At trial, the State introduced the testimony of Greg Fountain, the former chief of police of Arlington. Fountain related a conversation he had had with the defendant in May of 1984. Fountain had explained to Ruebke that if one were planning a murder, it was better to use a shotgun because the shot could not be traced through ballistics. They had also discussed using isolated, woody areas for disposing of bodies, and that the bodies should be left on top of the ground to decompose and allow the remains to be scattered by scavengers.
At his trial, Ruebke’s testimony contradicted his earlier statements to the authorities. Ruebke, attempting to establish an alibi for the noon hour of the fateful day, testified that on that day he had attempted to make purchases at a certain business in South Hutchinson during the lunch hour, but it was closed. This testimony was contradicted by the store’s personnel. The jury found'Ruebke guilty on all counts. He appeals.
1. Sufficiency of the Evidence
Ruebke had moved for acquittal at the close of the State’s case, upon final submission of the case, and after the verdict. He contends the State had failed to produce sufficient evidence to establish that he had committed the crimes charged and the trial court erred by not granting his motions for acquittal.
When renewing Ruebke’s motion for acquittal after final submission of the case, the court was free to consider all the evidence. A trial judge, in passing on a motion for judgment of acquittal at the close of the evidence, must determine whether upon the evidence a reasonable mind might fairly conclude guilt beyond a reasonable doubt. State v. Falke, 237 Kan. 668, Syl. ¶ 9, 703 P.2d 1362 (1985).
The State’s evidence in this case was circumstantial. On appeal, when considering the sufficiency of circumstantial evidence to sustain a conviction of a crime, the question is not whether the evidence is incompatible with any reasonable hy pothesis except guilt; that question is for the jury and trial court. The appellate court must be convinced that when the evidence is viewed in the light most favorable to the prosecution, a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Taylor, 234 Kan. 401, 409, 673 P.2d 1140 (1983).
Under that standard of review, there was sufficient evidence to find the defendant guilty beyond a reasonable doubt. The court did not err in denying the motions for acquittal.
2. The Preliminary Hearing Transcript
After tire preliminary examination, the defendant’s attorney requested that the court order a transcript of that proceeding to be given to defendant. The judge denied the request. The defendant contends it was prejudicial error to deny him a transcript.
A defendant has no absolute right to a transcript of a hearing. The State must provide an indigent defendant with a transcript of prior proceedings when the transcript is needed for an effective defense. Two factors are relevant to the determination of need: (1) the necessity of the transcript to the defendant, and (2) the availability of alternative devices that would fulfill the same functions as a transcript. State v. Hornbeak, 221 Kan. 397, 559 P.2d 385 (1977).
The denial of a transcript of a hearing to an indigent defendant must be examined carefully by an appellate court. The appellate court must determine from the facts of each case if there was an actual need for the transcript.
Here, Ruebke had the same counsel at both the preliminary examination and the trial. The court reporter was available and, in fact, did testify during the trial at the request of the defendant. Prior to trial, the State provided investigative reports from law enforcement agencies to the defendant. Further, the court appointed an investigator at the request of the defendant to aid in preparation for trial. Under the circumstances, it was not an abuse of discretion to deny the defendant a transcript of the preliminary examination.
3. Bail
Ruebke claims that the judge’s failure to reduce his bail from $100,000 impaired his defense. The State argues that the bail issue is moot because the defendant did not file a writ of habeas corpus and prior to trial he was released on bail.
K.S.A. 22-2802(4) provides:
“In determining which conditions of release will reasonably assure appearance, the magistrate shall, on the basis of available information, take into account the nature and circumstances of the crime charged, the weight of the evidence against the defendant, the defendant’s family ties, employment, financial resources, character and mental condition, the length of said defendant’s residence in the community, said defendant’s record of convictions, and said defendant’s record of appearance at court proceedings or of flight to avoid prosecution or failure to appear at court proceedings.”
No hard and fast rule can be laid down for fixing the amount of bail on a criminal charge. Each case must be governed by its own facts and circumstances. State v. Foy, 224 Kan. 558, 562, 582 P.2d 281 (1978). Bail is excessive when it is set at an amount higher than necessary to insure appearance of the accused at trial. Meechaicum v. Fountain, 696 F.2d 790 (10th Cir. 1983).
When a defendant alleges on appeal error in the fixing of bail, but fails to file a writ of habeas corpus and does not claim his defense was hampered by his custody status, the matter of pretrial release is moot. State v. Foy, 224 Kan. 558, Syl. ¶ 1.
Ruebke claims that the fact that he could not be released earlier limited his ability to prepare his defense, but he does not explain how. For a defendant to successfully claim that his rights were violated because he was unable to make bail, it is necessary to allege how the confinement deprived him of a right or hampered his defense.
The amount of bond in this case was not excessive. Ruebke was charged with six Class A felonies. He was unemployed and on probation for another felony conviction. There was no abuse of discretion by the trial court in refusing to lower Ruebke’s bail.
4. Change of Venue
Because of the pretrial publicity of the murders, Ruebke contends the trial court erred in failing to grant his motion for change of venue. He argues that news media treatment and coverage of the crime was so extensive that justice required the trial to be moved to a different area in Kansas.
The determination of whether to change venue lies within the sound discretion of the trial court and will not be disturbed on appeal absent a showing of prejudice to the substantial rights of the defendant, with the burden upon the defendant to show prejudice in the community, not as a matter of speculation, but as a demonstrable reality. State v. Haislip, 237 Kan. 461, 701 P.2d 909 (1985). The defendant must show that such prejudice exists in the community that it was reasonably certain he could not have obtained a fair trial. There must be more than speculation that the defendant did not receive a fair trial. The State is not required to produce evidence refuting that of the defendant. State v. Sanders, 223 Kan. 273, 280, 574 P.2d 559 (1977).
At the hearing on the defendant’s original motion for change of venue, he called 24 witnesses who testified that the defendant could not receive a fair trial in Reno County. He also filed 35 similar affidavits from residents stating that they did not believe the defendant could receive a fair and impartial trial. In addition, the defendant offered 12 exhibits consisting of copies and tapes of radio and television broadcasts, and copies of numerous newspaper and wire service accounts of the murder. At the hearing on the defendant’s second motion for change of venue, he introduced the same testimony and a copy of a national magazine, “Startling Detective.” The magazine had been circulated widely in the Reno County area and contained the story, “Killer Who Came Straight From Hell,” which discussed Ruebke and the murders.
Obviously, there was an enormous amount of publicity concerning the murders in the Arlington area. Unfortunately, there was no place in this state that the facts of the murders and the arrest of the defendant were not known. Modern communication and network methods for distribution of news allow the news media to distribute information by newspaper, radio, and television to the public statewide. News of the murders and the investigation was not, nor could be, limited to the Arlington area, because of the tragic murder of the twins and their babysitter, the news of that happening was immediately spread throughout Kansas as each fact surrounding their disappearance and death was uncovered.
Indicative of whether the atmosphere is such that a defendant’s right to a fair and impartial trial would be jeopardized, courts have looked at such factors as the particular degree to which the publicity circulated throughout the community; the degree to which the publicity or that of a like nature circulated in other areas to which venue could be changed; the length of time which elapsed from the dissemination of the publicity to the date of trial; the care exercised and the ease encountered in the selection of the jury; the familiarity with the publicity complained of and its resultant effect, if any, upon the prospective jurors or the trial jurors; the challenges exercised by the defendant in the selection of a jury, both those preemptory and those for cause; the connection of government officials with the release of the publicity; the severity of the offense charged; and the particular size of the area from which the venire is drawn. Annot., 33 A.L.R. 3d 17, § 2(a).
It took two days to select the jury for this case. On the first day, two members of the jury panel were struck because one knew Ruebke’s mother and one had a daughter coming for a visit and could not give her full attention to the trial. On the second day of jury selection, eleven panel members were dismissed because: (1) one was a social friend of the defendant’s attorney; (2) one worked with the sheriff s cousin and had discussed the facts of the case with him; (3) one knew the defendant’s wife and had discussed the case with her; (4) three of the panel members knew witnesses that would testify in the trial and admitted that they would give added weight to that testimony; (5) one’s personal beliefs would not allow her to judge another; (6) one had knowledge that the defendant had stolen $40.00 from one of her friends prior to the trial; and (7) three of the panel admitted they had read about the murders and could not separate that information from the evidence presented during the trial. On the third day the judge selected two alternate jurors. Five members of the jury panel were dismissed from jury duty: two because of newspaper stories and three because of rumors and gossip.
Media publicity alone has never established prejudice per se. The trial court had no difficulty in finding from the jury panel jurors who stated that they could render a fair and impartial verdict. The small number of jurors dismissed by the court for cause and the effort of the judge to press no one into jury service who showed the slightest hint of prejudice established that there was no abuse of discretion in denying a change of venue. Unless we are to assume that (1) the jurors selected to try the defendant violated their oath when they swore that they could give the defendant a fair trial or (2) an individual can commit a crime so heinous that news coverage generated by that act will not allow the perpetrator to be brought to trial, the defendant has not established substantial prejudice. There was no abuse of discretion on the part of the court in denying the defendant’s motion for change of venue.
5. Recusal
Ruebke complains that the court erred in denying his motion to recuse Judge Porter K. Brown. The State contends that, because Judge Brown did not preside at the defendant’s trial, this issue is moot.
K.S.A. 1985 Supp. 20-311d(c)(5) provides for the disqualification of a trial judge when a party has cause to believe that on account of the personal bias, prejudice, or interest of the judge, a party cannot obtain a fair and impartial trial. K.S.A. 1985 Supp. 20-311d does not prescribe a mandatory type of procedure for disqualifying a judge for bias or prejudice, but rather contemplates a hearing as to the legal sufficiency of the affidavit. The affidavit must contain facts and reasons which give fair support for the belief that on account of the bias or prejudice of the judge, the affiant cannot obtain a fair trial. Hulme v. Woleslagel, 208 Kan. 385, 392, 493 P.2d 541 (1972).
In his affidavit to the court, the defendant stated that his right to a fair and impartial trial was being impaired because of the personal bias and prejudice of Judge Brown. Indicative of this bias was Judge Brown’s failure to grant a continuance of the trial scheduled for April 1. A continuance was needed because Ruebke’s attorney was unable to view the physical evidence gathered by the State, to receive and review the reports of laboratory examinations, and to prepare for trial.
Later, Judge Brown did grant the defendant’s motion for a continuance of the trial date. Not only did Judge Brown grant the motion for a continuance, but also, because of illness, he was unable to preside over the actual trial.
In State ex rel. Miller v. Richardson, 229 Kan. 234, 238, 623 P.2d 1317 (1981), the defendant contended that the trial judge should have recused himself. In the affidavit filed against the judge, the only basis alleged for the respondent’s claim of bias and prejudice was a recitation of adverse rulings made during the prior proceedings in the case. This court stated, “Previous rulings of a trial judge, although numerous and erroneous, are not alone sufficient to show the required bias or prejudice to disqualify a judge under K.S.A. 1980 Supp. 20-311d. Such rulings are subject to review and correction on appeal and will not justify disqualification.”
In the present case, the only evidence the defendant offers to support his allegations of bias is the adverse rulings by Judge Brown. Considering that Judge Brown did not preside at trial, there was no error in denying the defendant’s motion for recusal of Judge Brown.
6. Evidence of Former Crimes
The defendant contends that the court erred in allowing evidence of his prior crimes to be presented to the jury. The State contends that such evidence was admissible to establish Ruebke’s identity and his motive for committing the crimes.
K.S.A. 60-455 provides that evidence that a person committed a crime or civil wrong is inadmissible to prove his or her disposition to commit crime, but that such evidence is admissible when relevant to prove some other material fact, including motive.
Prior to this case, Ruebke had pleaded guilty in Reno County District Court to two counts of misdemeanor theft and one count of felony theft. The State wanted to introduce evidence of those crimes and statements made by Judge Brown at Ruebke’s sentencing that if Ruebke violated his probation, he would be sent to prison.
Ruebke claims that, because first-degree murder is not a specific intent crime, proof of motive is not relevant. The State argues that the crime requires specific intent— premeditation— and, therefore, motive is relevant. Motive and intent, however, are not the same thing. Motive is the moving power which impels one to action for a definite result. Intent is the purpose to use a particular means to effect such result. Motive is that which incites or stimulates a person to do an act. People v. Weiss, 252 App. Div. 463, 468, 300 N.Y.S. 249 (1937).
Evidence of prior crimes was admitted under similar circumstances in State v. Myrick & Nelms, 228 Kan. 406, 616 P.2d 1066 (1980). There, the defendants were charged with the premeditated murder of a highway patrol officer. Nelms argued that the court erred in admitting into evidence testimony concerning an outstanding Missouri felony warrant issued against him prior to the murder. Evidence was also admitted showing Myrick was wanted by law enforcement officials in connection with a felony bench warrant and failure to appear on a felony theft charge in Oklahoma. The prosecution argued that the motive for the senseless slaying of the trooper was the defendants’ fear they would be identified and returned to Oklahoma or Missouri. The probative value of that evidence outweighed its prejudice to the accused and was admitted.
Here, the State had only circumstantial evidence to establish its case. The State maintained that the motive for the senseless slayings was Ruebke’s need for money. To fulfill that need, he committed a theft. During the commission of that theft, Ruebke was discovered by Tammey and the twins. In an effort to prevent his being identified and to prevent his probation from being revoked, Ruebke committed the murders.
Considering the needlessness of the murders, motive was relevant to establish why the defendant would have committed the crimes. There was no abuse of discretion in allowing the State to introduce evidence of the prior crimes.
7. Prosecutorial Misconduct
Ruebke contends that a new trial should be granted because of three incidents of prosecutorial misconduct. The first incident was a comment the prosecutor made during his opening statement. The prosecutor stated that he would introduce testimony from Leanne Esser that the defendant had told her that he was very upset with a high school shop teacher. Ruebke had asked her if she would come and see him in jail if he killed someone or did something bad like that. The State argues that the statement made three days before the murders was one of the acts and circumstances which was an incident to the litigated act and, therefore, a part of the res gestae. State v. Peterson, 236 Kan. 821, 696 P.2d 387 (1985).
Ruebke’s attorney did not object to the remarks by the prosecution in its opening statement. Later in the trial, Ruebke’s attorney filed a motion in limine to suppress Esser’s testimony. The trial court did not allow the testimony to be admitted in evidence.
The “contemporaneous objection rule” does not apply to opening statements of counsel because it is impossible to foresee which comments counsel might fail to establish through the evidence at trial. Absent substantial prejudice to the rights of the defendant, there must be a showing of bad faith on the part of the prosecutor before relief may be granted as a result of a prosecutor’s reference in his opening statement to matters not provable or which the prosecutor does not attempt to prove at trial. State v. Pink, 236 Kan. 715, Syl. ¶ 4, 696 P.2d 358 (1985).
Here, the State was ready to provide support for the opening statements. The prosecutor proffered the testimony to show Ruebke’s state of mind. The witness was present and ready to testify at trial. She had been subpoenaed to testify on two prior occasions. The defendant’s attorney had the investigative report concerning her statements. The defense attorney knew that the witness was going to be called at trial, but did not seek to suppress her testimony until after the State’s opening statement. There is no evidence to suggest that the prosecution was acting in bad faith when it made its opening statement.
The second incident of prosecutorial misconduct involved a supplemental report prepared by a Reno County Sheriff s Department officer which the prosecution failed to turn over to the defendant. The prosecution was not aware of the report until the night before the officer testified. The defendant was given a copy of the report for use in his cross-examination of the officer.
The State contends that the defendant was not entitled to the report until after the officer had testified on direct examination. It contends that no prejudice was shown by the defendant, who obtained a recess to study the report after it surfaced.
K.S.A. 22-3213(1) provides:
“In any criminal prosecution brought by the state of Kansas, no statement or report in the possession of the prosecution which was made by a state witness or prospective state witness (other than the defendant) shall be the subject of subpoena, discovery, or inspection until said witness has testified on direct examination at the preliminary hearing or in the trial of the case.”
Even though the prosecutor was under a discovery order, there is no evidence of bad faith on his part. K.S.A. 22-3212(7) provides that when a party fails to comply with such an order, “the court may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems just under the circumstances.”
This court considered a similar situation in State v. Jackson, 226 Kan. 302, 597 P.2d 255 (1979), cert. denied 445 U.S. 952 (1980). There, the existence of the report came as a surprise to all the parties. When the defendant’s counsel complained about the prosecution’s failure to comply with the discovery order, the trial court ordered the prosecution to provide a copy to the defendant. This court said that terminating a trial and declaring a mistrial was largely within the discretion of the trial court, and that there was not a clear showing of abuse of discretion. 226 Kan. at 306.
In the present case, the prosecution was not aware of the report until the day before it was introduced at trial. The defendant’s attorney was provided a copy of the statement at trial and a recess was granted so that he could study the report prior to cross-examining the officer concerning the report. There was neither an abuse of discretion by the trial court in not terminating the trial nor such bad faith on the part of the prosecutor as to require a new trial.
Ruebke claims that the trial court should have granted a new trial because the prosecutor had failed to reveal exculpatory evidence to the defense. On June 5, 1985, defense counsel learned that a man named Lonnie Gaston claimed to know the real murderer and that the prosecution knew about this man in early May, yet failed to report this information to the defense.
Lanelle Hart was working at a Hutchinson radio station on May 2, 1985, when Lonnie Gaston approached her. He made statements that people were trying to kill him, he threatened Lanelle Hart, and he stated that he was going to kill his father. He told her that he and Ruebke had been tied up in the back of a car when the shootings occurred. They had heard the shots and saw the people leaving the scene. Lanelle contacted her attorney, who told her to inform the county attorney about this incident.
At the hearing on the motion for a new trial, the State called James Gilliland, a Hutchinson attorney who had represented Gaston at an involuntary commitment proceeding on May 14, 1985. He testified that Gaston had been involuntarily committed to Larned State Hospital. The State contended that any statements by Gaston were the statements of a mentally imbalanced person and its failure to notify the defendant of Gaston’s statements was not a sufficient basis for granting a new trial.
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 and unquestionably exculpatory and the withholding of the evidence must be clearly prejudicial to the defendant. A new trial should be granted only if the record establishes: “(1) that evidence was withheld or suppressed by the prosecution, (2) that the evidence withheld was clearly exculpatory, and (3) that the exculpatory evidence withheld was so material that the withholding of the same from the jury was clearly prejudicial to the defendant.” State v. Kelly, 216 Kan. 31, 36, 531 P.2d 60 (1975). Evidence is exculpatory if it tends to disprove a fact in issue which is material to guilt or punishment. State v. Kelly, 216 Kan. at 36.
There is no evidence to suggest that there was a bad faith withholding of the information concerning Gaston by the prosecution. Nor was there a deliberate refusal to honor a request for evidence. The statements by Lonnie Gaston were clearly not exculpatory. They were the statements of a man who was later declared an incompetent. Even the defendant’s own testimony concerning his actions during the day of the shooting contradicted the statements of Gaston. There was no withholding of exculpatory evidence on the part of the prosecution requiring the granting of a new trial.
8. Mistrial
The defendant contends that the trial court erred in failing to grant a mistrial on the five occasions he requested a mistrial.
Declaration of a mistrial under the provisions of K.S.A. 22-3423 is a decision largely within the discretion of the trial court and that decision will not be set aside on appeal absent a clear showing of abuse of discretion. State v. Bagby, 231 Kan. 176, 179, 642 P.2d 993 (1982). 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).
Defense counsel first moved for mistrial after learning one afternoon that the defendant had spoken to one of the alternate jurors as she returned for jury duty. Ruebke commented to the juror that her car looked like his and she should be careful since he had been tailed by a number of police officers after he had posted bail. Two days later, the juror notified the judge of the conversation. The juror was called into chambers where the judge and attorneys for both parties questioned her. After deter mining that the conversation had not affected the impartiality of the juror, the judge denied defendant’s motion for mistrial. (The alternate juror did not replace one of the 12 regular jurors.)
The second motion for mistrial was filed after the defendant learned that another of the jurors, who was later elected foreman of the jury, was a member of the board of directors of the Reno County chapter of Crimestoppers. The judge questioned the juror in chambers and determined that the juror had not received any information concerning the Ruebke case through Crime-stoppers. The judge determined that the juror’s relationship to Crimestoppers would not prevent him from acting in an impartial manner.
The third motion for mistrial was filed when the defendant learned that one of the jurors had talked with a Hutchinson police officer, Tom Angelí, who was the brother of one of the State’s witnesses, Ken Angelí, a Reno County Sheriff s sergeant. Roth the juror and the brothers were employed by Dillard’s Department Store as security guards. Tom Angelí did not discuss the trial with the juror. He also told her that she should have no contact with any of the security people during the trial. The juror did not have any contact with Ken Angelí. After questioning the juror in chambers, the judge determined that no prejudice resulted from the juror’s contact with Tom Angelí.
The defendant filed his fourth motion for mistrial following certain publicity in The Hutchinson News. On Saturday, May 25, 1985, the newspaper ran a color, page-wide sketch of the jury on the front page plus a story about trial testimony and a sidebar concerning a confrontation between the defendant and Sheriff James Fountain. The newspaper also ran a front-page story on May 26, 1985, concerning the defendant’s arrest for aggravated battery of a child on Saturday, May 25, 1985. The court stated that it had admonished the jury not to read or listen to media accounts of the trial and believed the jurors had taken the admonishment seriously. It did not grant a mistrial.
In his fifth motion for mistrial, the defendant alleged that one juror had heard some of the media publicity concerning the defendant’s arrest on the aggravated battery charge. The juror had heard a television announcement to the effect that the' defendant had been arrested for assaulting a 12-year-old boy, and at that point the juror had left the room. The court and attorneys for both parties questioned the juror in chambers. The juror indicated that what he had heard would not affect his decision in the present case. The judge found that there was no prejudice to the defendant and denied the motion for mistrial.
Even though media publicity may be inflammatory and prejudicial in character, the burden is upon the defendant to show an abuse of discretion by the trial court in denying his motion for mistrial. To establish an abuse of discretion, the defendant must show prejudice resulting to him from the publication of the information. State v. Malone, 194 Kan. 563, 573, 400 P.2d 712 (1965).
Generally, jury misconduct will not constitute a ground for reversal unless it is shown to have substantially prejudiced the rights of a party. Cleveland v. Wong, 237 Kan. 410, 425, 701 P.2d 1301 (1985). Here, there is no evidence to suggest that the jury was aware of all the trial publicity. To the contrary, the testimony suggested that the jury was doing everything possible to avoid hearing or reading any media reports. The fact that one juror accidentally heard a report about the defendant does not establish that the defendant was prejudiced by the publicity. The trial court did not abuse its discretion in denying any of the five motions for mistrial.
The defendant contends that the trial court erred in failing to grant a new trial after it was learned that one of the jurors was related to the victim, Tammey Mooney.
Under K.S.A. 22-3410(2)(a), a juror may be challenged for cause if he or she is related to the victim by consanguinity within the sixth degree or is the spouse of any person so related.
The juror was unaware at the time of trial of the relationship, if any, she had to the victim. At the hearing on the motion for a new trial, it was established that the juror’s husband’s sister was married to the uncle of Tammey Mooney’s father. There was no blood relationship between the juror and Mooney’s family. Under the statute, the juror could not have been removed for cause since she was not the spouse of anyone related to the victim within the sixth degree of consanguinity.
In State v. Collins, 215 Kan. 789, 528 P.2d 1221 (1974), a juror had denied during voir dire having any relatives in law enforcement, even though her son-in-law was employed by the Sedgwick County Sheriff s office. This court said:
“Under K.S.A. 1973 Supp. 22-3423 the trial court ‘may’ order a mistrial if false statements of a juror on voir dire prevent a fair trial. The determination is left to the discretion of the trial court and failure to grant a mistrial due to misstatements of a juror on voir dire will not constitute reversible error unless an abuse of discretion is shown.” 215 Kan. at 790-91.
The juror testified that until she heard it on tire news after the trial she did not know she was related to Tammey Mooney. She did not know Tammey Mooney and had never met Tammey or anyone in Tammey’s immediate family. Ruebke failed to establish any prejudice resulting from the relationship between the juror and the victim. There was no abuse of discretion on the part of the court in denying a new trial.
9. Evidence of Shotgun Shells
The defendant contends that the court erred in receiving State’s Exhibit No. 49. The exhibit consisted of eight No. 6 load shells which Ruebke had returned with the shotgun to its owner. The K.B.I. expert testified that when he received Exhibit No. 49 at the laboratory, it consisted of a plastic sack with nine No. 6 shotgun shells and one duck and pheasant load shell. At the time of trial, the exhibit contained only eight shotgun shells. He explained that one of the shotgun shells had been cut up for display, but could not explain the disappearance of the duck and pheasant load shell.
Establishing the chain of custody is part of the foundation for the admission of physical evidence. Generally, the admissibility of physical evidence is within the sound discretion of the trial court and is to be determined by the court on the basis of its relevance and connection with the accused and the crime charged. Deficiencies in the chain of custody ordinarily affect the weight of the evidence, notits admissibility. State v. Taylor, 231 Kan. 171, 174, 642 P.2d 989 (1982).
The deficiency in the chain of custody of the shotgun shells does not go the admission of such evidence. It merely goes to the weight of such evidence. The trial court did not err in receiving into evidence the shells and the testimony concerning the shells.
10. Testimony of the Pennels
The defendant contends that the trial court erred in refusing to allow the testimony of Mr. and Mrs. Pennel. Had the Pennels been allowed to testily, they would have said that Bill Lorg, Tammey Mooney’s boyfriend, had described to them in detail on the evening of December 31, 1984, where the twins were found, how they were killed, and where they were shot. The court ruled that this testimony was irrelevant.
Relevant evidence is evidence having any tendency in reason to prove any material fact and the determination of relevancy is a matter of logic and experience. Subject to certain exclusionary rules, the admission of evidence lies within the sound discretion of the trial court. State v. Chatmon, 234 Kan. 197, 203, 671 P.2d 531 (1983).
The statements made by Lorg were made nearly two months after the incidents occurred. All of the information which Lorg discussed had been presented at the preliminary hearing and had been broadcast or printed by the news media. All this evidence tended to prove is that Lorg was discussing certain facts surrounding the crime which were available to the general public. Other than the fact that Lorg knew Tammey Mooney, the Pennels’ testimony does not show that Lorg had any special knowledge or that he was in any way connected with the crime. The evidence was not relevant to the trial of the defendant.
The trial court did not abuse its discretion in refusing to allow the admission of the testimony of the Pennels.
11. Giving a Supplemental Instruction
The defendant contends that the trial court erred in failing to allow the jury to have testimony it requested be read to it and in giving supplemental instruction No. 1 in response to that request.
While deliberating, the jury asked eight questions about testimony given during the trial. Rather than reading back the testimony to the jury, the court replied with supplemental instruction No. 1:
“Ladies and Gentlemen of the Jury:
“The majority of the questions you have asked are general in nature relating to a great deal of information that was elicited in this case. I cannot answer the questions relating to the facts given to you. The jury is to act as a fact finder and the 12 of you need to communicate with each other to resolve the questions you have propounded to the Court.
“If you have a specific question with relation to the testimony of one witness’ testimony we can have that specific portion of testimony re-read to you. If the court were to attempt to re-read the record to attempt to answer the questions you have asked, I fear that we would re-read most of the testimony in this trial.”
The defendant did not object to the giving of the supplemental instruction at the time of trial. No party may assign as error the giving or failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. K.S.A. 22-3414(3).
A trial court is authorized to give supplemental instructions to a jury upon the jury’s request pursuant to K.S.A. 1985 Supp. 60-248(e). It is a matter of discretion with the trial court whether to give additional instructions. State v. Lovely, 237 Kan. 838, 845, 703 P.2d 828 (1985). It is also a matter of discretion whether the trial court will allow the reading of testimony to the jury if it requests such after retiring to deliberate the case. Phillips v. Carlson, 178 Kan. 206, 284 P.2d 604 (1955).
After the jury received supplemental instruction No. 1, it did request more specific testimony. The court then had the testimony the jury requested read back to it.
The trial had lasted for nearly 3 Vz weeks. There was voluminous testimony. The judge did allow the jury’s requests for specific testimony to be read. There was no abuse of discretion on the part of the court by refusing to have large portions of the transcript read back to the jury.
12. Newly Discovered Evidence
The defendant contends that the trial court erred in failing to grant a new trial for newly discovered evidence. Approximately a week after the trial, Becky Oiler informed the defense counsel that Marty Hemphill had told her and Ronald Tarrant that in December of 1984 while in the Hitching Post Tavern in Turón, Kansas, Bill Lorg told Marty Hemphill that he had killed the Vogelsang twins and Tammey Mooney.
A new trial may be granted under K.S.A. 60-259 for newly discovered evidence when it appears the rights of a party are substantially affected. The evidence must be of such materiality that it would be likely to produce a different result upon retrial. The credibility of the evidence offered is for the trial court’s consideration. State v. Shepherd, 232 Kan. 614, Syl. ¶ 10, 657 P.2d 1112 (1983). In order for evidence to be newly discovered evidence, it must be material to the cause of the movant and contain information which the movant with reasonable diligence could not have discovered and produced at trial. State v. Ferguson, Washington & Tucker, 228 Kan. 522, 530, 618 P.2d 1186 (1980).
At the hearing on.the motion for a new trial, Becky Oiler’s testimony was presented in the form of a proffer of testimony. Ronald Tarrant and Marty Hemphill testified that Bill Lorg made no such statements to them and Hemphill denied making the statement to Becky Oiler.
First, there is a question as to whether the defendant could have discovered this information before trial. He was aware of at least one conversation Lorg had with the Fennels the same evening that Lorg allegedly made the statements to Hemphill. With diligent investigation, it may have been possible for the defendant to discover the alleged statements. The evidence was not of such materiality that it would be likely to produce a different result upon retrial. Lorg and Hemphill denied that the statements were ever made. It is only the hearsay testimony of a third party that the statements were made. Under the circumstances, there was no abuse of discretion by the trial court’s denial of the motion for new trial for newly discovered evidence.
13. Questioning of the Tury
The defendant contends that he needed to question the jury panel as to (1) whether the prosecutor’s opening remarks referring to the testimony of Leanne Esser were discussed; (2) whether the incident involving the alternate juror Davidson was discussed; (3) whether the evidence of the defendant’s former convictions was discussed; (4) whether juror Wortman’s membership in Crimestoppers was discussed; (5) whether the jury had heard or read any of the publicity surrounding the trial; and (5) whether certain jurors had discussed the case outside the courtroom while the trial was progressing. The court refused to allow the jurors to be called to testify about the allegations.
K.S.A. 60-441 provides:
“Upon an inquiry as to the validity of a verdict or an indictment no evidence shall be received to show the effect of any statement, conduct, event or condition upon the mind of a juror as influencing him or her to assent to or dissent from the verdict or indictment or concerning the mental processes by which it was determined.”
K.S.A. 60-444(a) provides:
“This article shall not be construed to (a) exempt a juror from testifying as a witness to conditions or occurrences either within or outside of the jury room having a material bearing on the validity of the verdict or the indictment, except as expressly limited by K.S.A. 60-441.”
Supreme Court Rule 181 (235 Kan. cxviii) states:
“POST-TRIAL CALLING OF JURORS. Jurors shall not be called for hearings .on post-trial motions without an order of the court after motion and hearing held to determine whether all or any of the jurors should be called. If jurors are called, informal means other than subpoena should be utilized if possible.”
Jurors may be recalled for post-trial hearings only by order of the court after a hearing on a request to recall the jury. A recall of the jury is not a routine matter. Jury service is a public duty of citizens and recall of jurors after their service has ended to testify as to events occurring in the jury room during deliberations is a serious step. That step is to be undertaken only for just cause. The procedure should never be utilized as a fishing trip upon a losing party’s hope that jury misconduct might surface if the jurors could be questioned under oath. The burden is upon the party seeking an order to recall the jurors to show the necessity for the order. Walters v. Hitchcock, 237 Kan. 31, 36, 697 P.2d 847 (1985).
K.S.A. 60-259(c) requires that a motion for new trial specifically state the alleged errors or grounds relied upon to support a new trial. Mere use of statutory language is insufficient. Evidence must be produced whenever the motion is grounded upon “exclusion of evidence, want of fair opportunity to produce evidence, or newly discovered evidence.” K.S.A. 60-259(g). Where counsel makes no showing to support allegations of juror misconduct, the trial court does not abuse its discretion in refusing to call jurors. Cornejo v. Probst, 6 Kan. App. 2d 529, 537, 630 P.2d 1202, rev. denied 230 Kan. 817 (1981).
The trial court did allow three jurors to be called to testify at Ruebke’s hearing for a new trial. During Ruebke’s trial, the judge had already considered many of the matters defense counsel wished to discuss with the jurors. The judge had questioned (1) juror Wortman concerning his membership on the board of directors of Crimestoppers; (2) juror Davidson concerning the contact she had had with the defendant in the hall; (3) juror Mullins concerning news he had heard of the trial; and (4) juror Penner concerning her contact with one of the witness’ brothers.
The defendant had no valid evidence on which to base his motion for new trial. The judge had conscientiously allowed jurors to be interviewed during and after the trial. He did not allow a mass interview of the jury panel in hopes of turning up some form of juror misconduct. There was no abuse of discretion on the part of the judge by refusing to allow the defendant to interview the whole jury panel.
14. Removal of Hair from the Defendant
The defendant argues that the court erred in allowing the State to remove hair from his head.
When the State sought to obtain hair samples from the defendant, defense counsel refused to allow the State to take the samples. The State then obtained a search warrant to get a sample of head hair. Prior to issuance of the search warrant, the court heard defendant’s request for a protective order to prevent the State from taking the head hair.
Where the State has obtained an order of the court directing that hair samples be cut from defendant’s head, there is no violation of Fourth Amendment rights against unreasonable search and seizure. State v. Weigel, 228 Kan. 194, 198, 612 P.2d 636 (1980).
The defendant argues that the only time hair samples can be taken is when they are taken incidental to a lawful arrest. This, however, has never been the law. The courts have allowed, at various times, physical samples to be taken and used as evidence. The courts have held that the constitutional guarantee against compulsory self-incrimination is not violated by compelling an accused to exhibit his body at trial for purposes of identification. 21A Am. Jur. 2d, Criminal Law § 712. An accused may be required to give an exemplar of his handwriting without violating his privilege against self-incrimination. United States v. Euge, 444 U.S. 707, 63 L. Ed. 2d 141, 100 S. Ct. 874 (1980). The United States Supreme Court has also held that the withdrawal of blood from an accused by a physician despite the accused’s refusal to consent does not violate the privilege against self-incrimination. Schmerber v. California, 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826 (1966).
Ruebke does not attack the validity of the search warrant. He offers no argument as to why the search warrant should not have been issued nor why the hair samples should not have been taken. There was no abuse of discretion in allowing the State to take hair samples from the defendant.
15. Greg Fountain’s Testimony
The defendant argues that the trial court erred in allowing the testimony of Greg Fountain because it was irrelevant and remote.
K.S.A. 60-401(b) states that relevant evidence means evidence having any tendency in reason to prove any material fact. Whether evidence is too remote to be admissible rests within the sound discretion of the trial court. Lapse of time may not be sufficient to deprive evidence of its value, but goes to the weight of the evidence, which is for the jury to determine. State v. Green, 232 Kan. 116, Syl. ¶ 5, 652 P.2d 697 (1982).
Fountain testified to a conversation he had had with the defendant 5 % months prior to the murders. He and Ruebke discussed the use of shotguns to avoid ballistics matching the shot to any particular shotgun. In addition, it was indicated the shotgun shell casings should be picked up and thrown into a river. They discussed that it was common for homicide victims to be left in isolated tree rows, and that if a body was left on top of the ground the remains would be scattered or devoured by scavengers.
In Green, the court held that the fact that a battery conviction occurred a year prior to the murder for which the defendant was charged did not make the conviction so remote as to be improperly admitted. In State v. Fenton, 228 Kan. 658, 620 P.2d 813 (1980), the defendant had threatened to kill his wife ten months prior to her death. The court did not find that ten months made the evidence too remote to be admissible. In State v. Anicker, 217 Kan. 314, 536 P.2d 1355 (1975), testimony that the defendant had assaulted and beaten his deceased wife seven months prior to the homicide was held relevant and admissible on the issues of identity, intent, and motivation.
The State contends that the testimony of Fountain went to establish premeditation. The murderer used a shotgun and disposed of the bodies in much the same way as Fountain and Ruebke had discussed earlier. The trial court did not abuse its discretion in allowing Fountain’s testimony.
16. Admission of the Videotape
Ruebke argues that the trial court erred in allowing the jury to view a gruesome videotape in addition to gruesome photographs showing the bodies of the victims and the location where the bodies were found.
Admission of demonstrative photographs lies within the broad discretion of the trial judge. In determining whether demonstrative photographs should be admitted, a trial judge must determine whether they are relevant and whether a proper foundation has been laid. State v. Kendig, 233 Kan. 890, 892, 666 P.2d 684 (1983).
The defendant contends that the videotape was repetitious and gruesome. The State contends that the videotape of the bodies of victims as they lay in the position in which they were found helped demonstrate and amplify the testimony of the KBI criminalists. Since the defendant argued that the bodies could have been carried into the woods after being shot, in order to prove aggravated kidnapping, the State needed to establish that the victims had been shot in the woods.
Photographs are erroneously admitted where they are unduly repetitious, gruesome, and without probative value. State v. Dargatz, 228 Kan. 322, 614 P.2d 430 (1980). They are not inadmissible as evidence merely because they may be gruesome and shocking, provided they are true reproductions of relevant physical facts and conditions material to matters in issue. State v. McCorgary, 224 Kan. 677, 681, 585 P.2d 1024 (1978).
We have viewed the photographs and the videotape depicting the bodies and the area where they were found. The photographs and the videotape are gruesome. They show the grotesquely mutilated bodies of the three young victims. They depict the crime scene and the nature, extent, and the number of shotgun wounds inflicted on each of the three victims. They show that Ruebke was correct when he told others, prior to the information being released by the authorities, that death had been inflicted by a shotgun and the number of wounds to each victim. They indicate that the victims walked to the place of their execution — an isolated woody area. The bodies lay on top of the ground where death had been inflicted, and were exposed to the elements and animals. The spent shotgun shells had been removed from the death scene.
It is recognized that the admission in evidence of photographs of homicide victims must necessarily rest largely in the discretion of the trial judge. In each case, it is the trial judge who determines whether the photographs serve a proper purpose in the jury’s enlightenment. His action will not be disturbed by an appellate court unless there was an abuse of discretion.
Here, the photographs and the videotape had a reasonable tendency to prove or disprove a material fact in issue, or shed light upon a material fact. Photographs of the homicide victims are admissible in evidence even though they portray a gruesome scene and may tend to arouse the passion and resentment of the jury against the defendant. What Ruebke is claiming is that an individual may commit a murder so gruesome that photographs of victims and the murder scene must be kept from the jury to insure that the defendant receives a fair trial. We do not agree or adopt his reasoning.
17. Testimony of Kevin Sipe
The defendant argues that the trial court erred in allowing the preliminary hearing transcript of Kevin Sipe’s testimony to be read at trial.
K.S.A. 1985 Supp. 60-460(c)(2) provides that if the judge finds that the declarant is unavailable as a witness at a hearing, testimony given as a witness in another action or in a preliminary hearing or former trial in the same action may be used, except such testimony may not be used in criminal actions if it denies to the accused the right to meet the witness face to face. K.S.A. 60-459(g)(3) defines “unavailable as a witness” to include a witness who is unable to be present or to testify at the hearing because of death or then-existing physical or mental illness.
Sipe testified at the preliminary examination that he had observed the defendant with Tammey Mooney and the Vogelsang twins. After he had testified at the preliminary examination, Kevin Sipe was seriously burned in an accident. The court found that Sipe was unavailable to testify and the transcript of his prior testimony should be admitted as evidence in the trial.
In cases of necessity, it is generally held that the right of confrontation under the Sixth Amendment and Section 10 of the Kansas Bill of Rights is satisfied if the accused has been once confronted by the witness against him in any stage of the proceedings on the same accusation and has had an opportunity of cross-examination. State v. Mick, 229 Kan. 157, 161, 621 P.2d 1006 (1981).
In State v. Mick, 229 Kan. 157, the defendant alleged error when the transcript of the preliminary hearing testimony of one witness was used. The court determined the witness was unavailable to testify. This court said:
“The testimony was given at the preliminary hearing and the defendant at that time was represented by an attorney who availed himself of the opportunity to cross-examine the witness. Under these circumstances the provisions of the above statutes were complied with. The right of the accused to be confronted by his accusers was honored. The witness’ prior testimony bore sufficient indicia of reliability and afforded the trier of fact a satisfactory basis for evaluating the truth of the prior statement.” 229 Kan. at 161.
See also State v. Lashley, 233 Kan. 620, 627-28, 664 P.2d 1358 (1983), in which the court held that there was no error in allowing the admission of preliminary examination testimony where a witness was unavailable.
Ruebke contends that the court incorrectly found the witness unavailable. The sufficiency of proof of unavailability is a question for the trial court within its discretion and its ruling will not be disturbed unless an abuse of discretion is shown. State v. Steward, 219 Kan. 256, Syl. ¶ 6, 547 P.2d 773 (1976).
The State provided the court with a letter from the witness’ doctor stating that the victim was suffering from second- and third-degree burns and that it would not be in his best physical and mental well-being to appear in court and testify. The prosecution did not solicit the letter, but the witness’ mother did. She testified at the hearing on the motion for new trial that Sipe was being sedated every day because of the pain and he was not totally alert until late afternoon. Under the circumstances, there was no abuse of discretion on the part of the court in finding this witness unavailable and allowing the transcript of his prior testimony to be read to the jury.
18. Cumulative Error
The defendant argues that his due process rights were violated by the cumulative errors in the course of the trial.
K.S.A. 60-261 provides:
“No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”
Ruebke fails to establish that his substantial rights were vio lated. We have examined each of his claimed errors and balanced them against his rights. There were some errors committed, but the errors did not deprive Ruebke of his due process rights.
19. Habitual Criminal Act
The defendant argues that the trial court abused its discretion in sentencing him under the provisions of the Habitual Criminal Act, K.S.A. 1985 Supp. 21-4504. He argues that the judge was under the impression that once the State offered evidence of a prior felony conviction, it was mandatory for him to enhance sentence. He admits at the rehearing on the matter that the judge corrected the error and refused to change the sentence.
The judge stated at the sentencing hearing:
“I think the attorneys know that once that filing is made by the County Attorney’s Act [sic], the court has no choice but to invoke the act.”
At a second hearing on the sentencing, the judge stated:
“I think we miscommunicated because I think I do have discretion as to whether or not to invoke the Habitual Criminal Act. I don’t think I have any discretion with respect to whether or not I look at it after the appropriate filing has been made by the County Attorney.
“I think the remainder of the sentencing, there is no change in the sentence. I only do this to hopefully clarify what was said at the sentencing that day since this was the first time that I had a chance to, or ever had to look at this type of sentence.”
The judge refused to modify Ruebke’s sentence at the second hearing.
In State v. Robinson, 233 Kan. 384, 662 P.2d 1275 (1983), this court reaffirmed the constitutionality of the Habitual Criminal Act. The court noted that under the Act it was a matter of discretion whether the prosecutor moved the trial court to invoke the provisions of the Act. There are no cases which say that once the prosecutor seeks to have the Act invoked that the court must enhance sentence. This court has treated all such cases questioning enhancement of sentence as being a matter of discretion with the trial court. State v. Cunningham, 236 Kan. 842, 695 P.2d 1280 (1985); State v. Irving, 231 Kan. 258, 644 P.2d 389 (1982).
In the present case, the court stated at the second hearing that it was aware it was a matter of discretion as to whether it decided to invoke the Act. The prosecution had sufficiently established that the defendant had been convicted of a prior felony. It was then a matter of discretion whether the trial court applied the Habitual Criminal Act.
We have examined each of the defendant’s claims that he was denied a fair trial. We find them to be without merit. The judgment is affirmed.
Allegrucci, J., not participating. | [
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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 the provisions of K.S.A. 1986 Supp. 22-3602(b)(3). The question arises from a ruling of the trial court that there was not a sufficient foundation for the admission into evidence of tests made on a substance claimed by the State to be marijuana.
The trial court’s ruling occurred during trial of the defendant, Max W. Miller, on a complaint charging defendant with possession of marijuana (K.S.A. 65-4127b), possession of drug paraphernalia (K.S.A. 65-4152), and other charges not relevant here. Following the ruling of the court excluding the evidence, the two charges were dismissed on motion of the defendant.
The facts in the case are not greatly in dispute and essentially are as follows; On April 9, 1986, Officer Vaughn of the Shawnee County sheriff s department stopped the defendant’s truck after a radar check indicated excessive speed in a 35-mile-per-hour zone on North Topeka Avenue in Shawnee County. The officer placed the defendant. Miller under arrest for driving under the influence of alcohol (K.S.A. 1986 Supp. 8-1567). After the arrest, the officer searched the truck. Inside a closed glove compartment, the officer discovered a 35mm film canister filled with green leafy vegetation. The canister and the substance contained therein were delivered to Officer Warrington, the crime scene technician and evidence officer for the Shawnee County sheriff s department. He conducted tests on the substance and concluded that it was marijuana.
The case was tried before a district judge sitting without a jury. Following the testimony of the arresting officer, Officer Warrington took the stand and identified State’s Exhibit #1 as the package and substance contained therein which he had previously received. The officer testified that he ran chemical tests on it to determine the nature of the substance. He had been trained in a special course offered by the Kansas Bureau of Investigation which covered microscopic examinations and the various tests that are used to determine the existence of marijuana. Warrington had received a certificate from the KB I that he was qualified to perform such tests. He testified that he had performed in excess of400 such tests since he had been certified. He described the tests which he had performed on the substance and was asked by the prosecutor to state his opinion as to the results which the tests disclosed. Counsel for the defendant objected to the admission of his opinion testimony on the basis that there was not a sufficient evidentiary foundation to permit Warrington to testify as to his ultimate conclusions.
The basis of defense counsel’s objection was that before the officer could give his opinion as to the results of the tests, the State was obligated to lay a foundation to show that the tests made were generally accepted as reliable in the scientific community. The trial court sustained the objection, holding that Officer Warrington could not testify as to his conclusions derived from the tests without the testimony of a qualified witness that the methodology used in making the test was generally accepted in the scientific community. The prosecutor then requested a continuance which the court granted. A recess was taken, and the trial was resumed. The State then called to the witness stand Ronald L. Jones, the laboratory administrator for the Kansas Bureau of Investigation (KBI). He had served in that capacity for twelve years. It was Jones’s duty to oversee the various laboratory examinations and testing of physical evidence, including chemical drug analysis. Jones had a bachelor’s degree in chemistry and a master’s degree in science with special training in chemistry. He testified that he was fully familiar with the testing performed to identify marijuana and described the tests in detail. Essentially, there are three tests that are used in identifying marijuana:
(1) The Duquenois-Levine test which is a chemical test involving a color reaction indicating marijuana resins are present;
(2) The microscopic examination of the hairs located on the top and bottom of the leaf; and
(3) A thin layer chromatography test which measures the migration of a known substance through a solvent and compares that against the migration of the unknown substance being identified. If the migrations are identical, the substances are the same.
Jones explained the tests in some detail and further testified that the tests are reliable and are acceptable within the scientific community. Following the testimony of Jones, Officer Warring-ton again took the stand and described how he performed the three tests. Defense counsel again objected to the admission of Warrington’s opinion testimony on the basis that there was no proper foundation for its admission. At that point, the trial court tentatively overruled the objection, and cross-examination by defense counsel followed.
On cross-examination of Warrington, he testified specifically as to the manner in which he had performed the tests. His testimony raised a serious evidentiary question as to whether two of the tests had been properly performed. As to the microscopic test, Warrington testified that he never made the crucial determination as to which was the top or the bottom of the leaf being examined as a basis of comparing the hairs located thereon. He, likewise, testified that he did not measure both the migration of the spotted substance and the migration of the solvent so that they could be compared. Thus, with respect to two of the tests performed by Warrington, the evidence indicated that the methodology used by Warrington differed from the methodology customarily used by Mr. Jones at the KBI laboratory. The trial court sustained the objection of defense counsel and excluded the Warrington testimony as to the results of the tests on the basis that the evidence showed that Warrington did not perform the tests in a manner consistent with the methodology acceptable within the scientific community. The State then rested its case and, on motion of defendant, the trial court dismissed the two counts charging possession of marijuana and possession of drug paraphernalia. The State then took this appeal on a question reserved.
The basic question raised by the State on the appeal is whether the trial court erred in holding that the evidentiary foundation was insufficient to admit into evidence the results of the tests on the substance performed by Officer Warrington. The State argues that the evidentiary rule as to the admission of expert opinion testimony in the area of testing substances for drugs is not well established and that there is involved in this appeal a question of statewide interest vital to the administration of the criminal law. Hence, the State argues that the court should take jurisdiction and determine the appeal.
In his brief, counsel for the defendant challenges the jurisdiction of the Supreme Court to determine the issue on appeal. He first maintains that this court lacks jurisdiction to determine the appeal, because Count 1 of the complaint charging the offense of driving under the influence is still pending in the district court. We find no merit to this contention. The record shows that Count 1 was dismissed for refiling in the traffic division so that the diversion procedure could be utilized.
Defendant also maintains that the question reserved by the State involves only an evidentiary ruling of the trial court and that there is no question of statewide interest present to justify action by the Supreme Court. In this regard, the rule of evidence which governs the admission of expert opinion testimony is now well established in Kansas. In State v. Washington, 229 Kan. 47, 53, 622 P.2d 986 (1981), this court held that before expert scientific opinion may be received in evidence at trial, the basis of that opinion must be shown to be generally accepted as reliable within the expert’s particular scientific field. In Washington, the court stated:
“The general test for determining the admissibility of a new scientific technique was enunciated in Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (1923). Simply stated, Frye requires that, before a scientific opinion may be received as evidence at trial, the basis of that opinion must be shown to be generally accepted as reliable within the expert’s particular scientific field. Thus, according to the Frye standard, if a new scientific technique’s validity has not been generally accepted or is only regarded as an experimental technique, then expert testimony based upon its results should not be admitted into evidence.”
The opinion points out that the Frye test has been accepted as the standard in practically all of the courts of this country which have considered the admissibility of scientific evidence.
In State v. Parson, 226 Kan. 491, 601 P.2d 680 (1979), the question involved was the admission of the results of blood alcohol tests. We held that in order for expert testimony on the blood alcohol test to be admissible there must be an evidentiary foundation to show the acceptance of the testing procedure in the scientific and medical community as to the reliability of the particular testing method. It was held that sufficient foundation had been presented to justify the admission of the test presented in Parson.
The same general evidentiary rule is again recognized in State v. Hodges, 239 Kan. 63, 716 P.2d 563 (1986), where Syllabus ¶ 1 states the rule as follows:
“The basis for the admission of expert testimony is necessity, arising out of the particular circumstances of the case. Where the normal experience and qualifications of lay persons serving as jurors permit them to draw proper conclusions from given facts and circumstances, expert conclusions or opinions are inadmissible. Two requirements must be present before expert testimony is admissible at trial. First, the testimony must be helpful to the jury. Second, before expert scientific opinion may be received into evidence at trial, the basis of that opinion must be shown to be generally acceptable within the expert’s particular scientific field.”
Thus, under the Kansas cases, the evidentiary rule governing the admissibility of expert opinion testimony is well established.
In the present case, the record shows that Mr. Jones, laboratory administrator of the KBI, testified without equivocation that the three tests he described were generally accepted as reliable in the scientific community for the identification of marijuana. This evidence was clearly sufficient to provide the necessary foundation to show the reliability of the tests. The trial court so ruled and properly so. In this case, however, the basis of the trial court’s exclusion of the tests conducted by Officer Warrington was that Warrington did not perform two of the tests in a manner which followed the prescribed procedure. The record shows that there was a reasonable basis for the trial court’s ruling and that the trial court did not abuse its discretion in excluding the testimony. The evidence raised a fact question whether the tests were properly conducted.
The State argues on this appeal, in effect, that the courts of Kansas should take judicial notice of the general reliability of the three-test method used in identifying marijuana. The State points out that judicial notice is now taken of the general reliability of radar mounted in a stationary or moving vehicle to measure the speed of motor vehicles without requiring expert testimony showing the nature and function of or the scientific principles underlying the device. State v. Primm, 4 Kan. App. 2d 314, 606 P.2d 112 (1980). Throughout this country today, the courts generally take judicial notice of the general reliability of radar when used to measure the speed of motor vehicles. See Annot., 47 A.L.R.3d 822 at 831, which cites many cases in various jurisdictions holding that judicial notice should be taken of the general reliability of radar speed devices to measure the speed of motor vehicles.
In the present case, the State did not raise in the trial court the issue whether judicial notice should be taken of the reliability of the three-test method used in identifying marijuana. Nor was there any showing made by the State that the three-test method is so generally acceptable throughout the scientific community in this country that the Kansas courts should take judicial notice of the reliability of the test and thus avoid the necessity of laying a foundation to show the acceptance of the three-test method in the scientific community.
In passing, we note that there was no evidence presented that the KRI has distributed a manual which sets forth with particularity the methods to be followed by local officers in testing for the presence of marijuana. Simply stated, the record does not establish a general acceptance of the three-test method for identifying marijuana in the scientific community so as to justify this court in establishing a rule of evidence which permits judicial notice to be taken of such tests.
On the basis of the evidentiary record before us, we hold that the trial court did not err or abuse its discretion in holding that the evidentiary foundation in this case was insufficient to admit the results of the tests for marijuana made by Officer Warrington.
The appeal of the State is denied. | [
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The opinion of the court was delivered by
Nuss, C.J.:
Gabriel Nambo, Jr., pled guilty to aggravated robbery after he and two other individuals participated in the armed seizure of one vehicle and the attempted armed seizure of another vehicle. He now contends that the district court and Court of Appeals erred in requiring him to register under the Kansas Offender Registration Act (KORA) because the definition of an “offender” under K.S.A. 22-4902(a)(7) does not include unarmed accomplices such as himself.
We disagree and affirm the district court and the Court of Appeals on this issue of first impression.
Facts
The essential facts are straightforward. On August 11, 2007, Nambo, Daniel Nambo, and Jose Vasquez pulled their Ford Explorer in front of Herman Gallegos’ Blazer and jumped out. Vasquez pointed a handgun at Gallegos and ordered him out of the Blazer. After the Blazer passengers complied, Nambo and Vasquez clambered inside of it and sped away. Daniel returned to the Explorer and followed his accomplices.
Off-duty Police Officer Williamson witnessed the incident and followed the two vehicles. When the vehicles stopped, the three men exited and ran toward Williamson. After Williamson identified himself as a police officer and pulled his gun, the three men scattered. Nambo returned to the stolen Blazer, Daniel jumped back into the Explorer, and Vasquez fled on foot.
Nambo drove the stolen Blazer to a nearby park and abandoned it. He later met Vasquez and they attempted to steal a pickup truck owned by Omar Prado-Sanchez. According to Prado-Sanchez, Vasquez pointed a handgun at him and ordered him out of his truck. But Prado-Sanchez refused and started to drive away. Nambo and Vasquez then ran in front of the truck and Vasquez fired his handgun, shattering the windshield. Prado-Sanchez successfully evaded them and drove away.
Officer Williamson later identified Nambo as a participant in the Blazer robbery. Prado-Sanchez and his passengers identified Nambo as one of the two men who attempted to take his pickup.
Nambo pled guilty to one count of aggravated robbery. At sentencing, the State conceded that he never possessed the firearm during the commission of the crimes. But it argued he was still required to register as an offender under K.S.A. 22-4902(a)(7). The district court agreed, and after Nambo appealed, the Court of Appeals affirmed. State v. Nambo, 42 Kan. App. 2d 731, 216 P.3d 186 (2009). We granted his petition for review; our jurisdiction is under K.S.A. 20-3018(b).
Analysis
Issue: An unarmed accomplice is required to register as an offender under KS.A. 22-4902(a)(7).
Standard of Review
Interpretation of a statute 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 sole issue on appeal involves interpretation of K.S.A. 22-4902(a)(7) of the definitions section of the Kansas Offender Registration Act, K.S.A. 22-4901 et seq. The statute includes in its definitions of “offender”
“any person who, on or after July 1, 2006, is convicted of any person felony and the court makes a finding on the record that a deadly weapon was used in the commission of such person felony.” (Emphasis added.)
Nambo contends that this statutory definition does not include unarmed accomplices. So he is not required to register as an offender. In support, he argues the statute is analogous to two others—K.S.A. 21-4618(a) and K.S.A. 21-4704(h). We address both statutes in turn.
The first statute, K.S.A. 21-4618(a), now present at K.S.A. 21-6707(a), applies to sentencing. It states:
“[P]robation, assignment to a community correctional services program or suspension of sentence shall not be granted to any defendant who is convicted of the commission of tire crime of rape, the crime of aggravated sodomy or any crime set out in article 34 of chapter 21 of the Kansas Statutes Annotated in which the defendant used any firearm in the commission thereof and such defendant shall be sentenced to not less than the minimum sentence of imprisonment authorized by law for that crime. This section shall not apply to any crime committed by a person under 18 years of age.” (Emphasis added.)
Nambo correctly points out that more tiran 30 years ago, we determined that a 1976 version of K.S.A. 21-4618(a) containing identical italicized language did not apply to unarmed accomplices. This court held:
“By the terms of the statute, probation, parole or suspension of sentence is denied to any defendant convicted of an article 34 crime in which ‘the defendant used any firearm in the commission thereof and such defendant shall be sentenced . . . .’ The term ‘defendant’ is used in the singular throughout the statute. At no time is the term ‘defendants’ used. By the same token the statute does not refer to mandatory sentencing applying to aiders and abettors, accomplices or co-conspirators. It is well understood that criminal statutes must be strictly construed against the state and in favor of the defendant. We hold that the statute applies only to the defendant personally armed with a firearm at the time the crime is committed.” (Emphasis added.) State v. Stuart and Jones, 223 Kan. 600, 607, 575 P.2d 559 (1978).
See also State v. DeCourcy, 224 Kan. 278, 281, 580 P.2d 86 (1978) (following Stuart and Jones).
Because of insufficient language parallels between these two statutes, Nambo’s argument is unpersuasive. Per its active voice language quoted above, K.S.A. 21-4618(a) applies when “the defendant used any firearm” in the commission of the offense. And as we pointed out in Stuart and Jones, the legislature also specified the singular actor—“the defendant.”
By contrast, K.S.A. 22-4902(a)(7) speaks in passive voice language. The statute requires that a “deadly weapon [be] used” in the commission of the offense. And there is no express requirement that tire weapon be used personally by the defendant. Consequently, we agree with the State’s characterization: K.S.A. 21-4618(a) focuses on the actor (i.e., a defendant must personally use a firearm) while 22-4902(a)(7) focuses on the act itself (the use of a deadly weapon) without considering whether the actor personally used the weapon.
In K.S.A. 21-4618(a) the legislature showed in a statute mandating imprisonment for the use of firearms in the commission of crimes against persons that it knew how to utilize the active voice and to specify the individual actor. So we assume in the statute (K.S.A. 22-4902[a][7]) mandating offender registration for the use of deadly weapons in the commission of person felonies that the legislature’s omission of these two particular features was intentional. See Zimmerman, 289 Kan. at 974 (when legislature has demonstrated through statutoiy 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, “it is clear that it knew how to do so.”).
Moreover, Nambo’s argument can be characterized as an invitation for us to read language into the statute. Per our caselaw, we decline this invitation. See Zimmerman, 289 Kan. 926, Syl. ¶ 3 (An appellate court “cannot read into the statute language not readily found there.”).
The second statute Nambo cites in support is K.S.A. 21-4704(h), now present at K.S.A. 21-6804(h). It also applies to sentencing and reads: “When a firearm is used to commit any person felony, the offender’s sentence shall be presumed imprisonment.”
Nambo again contends parallels exist between this statute and K.S.A. 22-4902(a)(7). Because of these parallels, he argues that we should adopt the rationale of an unpublished Court of Appeals opinion which concluded 22-4902(a)(7)’s similar statute—21-4704(h)—does not apply to unarmed accomplices. State v. Largent, No. 91,435, 2004 WL 2282126 (Kan. App. 2004) (unpublished opinion). Applying Largent’s rationale would allow us to hold that 22-4902(a)(7) does not apply to unarmed accomplices like Nambo so he would not be required to register as an offender.
The Largent panel held that K.S.A. 21-4704(h) was direcdy “analogous” to K.S.A. 21-4618(a), whose language we analyzed above. See Largent, 2004 WL 2282126, **1-2. As mentioned, that statute stated: “Probation . . . shall not be granted to any defendant who is convicted of the commission of . . . any crime set out in article 34 of chapter 21 of the Kansas Statutes Annotated in which the defendant used any firearm in the commission thereof.” (Emphasis added.) Relying primarily on DeCourcy, 224 Kan. at 281 (following Stuart and Jones), the panel then concluded K.S.A. 21-4704(h), like K.S.A. 21-4618(a), does not apply to unarmed accomplices.
We decline Nambo’s invitation to adopt Largent's rationale for several reasons. First, Largent analogized 21-4704(h) to 21-4618(a). And Nambo now asks us to analogize 21-4704(h) to 22-4902(a)(7) so the former can simply be replaced by the latter in the Largent calculus. But there is no need to draw his requested analogy and make the substitution because earlier in this opinion we rejected his argument involving the actual statute. We specifically concluded that 22-4902(a)(7) is not comparable to 21-4618(a).
If we did draw the analogy Nambo requests, it would primarily be based upon a recognition that both 21-4704(h) and 22-4902(a)(7) use similar passive voice language to further penalize any use of a firearm in the commission of an offense without specifying the actor. Compare “When a firearm is used to commit any person felony, the offender’s sentence shall be presumed imprisonment” (K.S.A. 21-4704[h]) with “any person who ... is convicted of any person felony and the court makes a finding on the record that a deadly weapon was used in the commission of such person felony” (K.S.A. 22-4902[a][7]). (Emphasis added.) Any analogy between these two similar statutes on the one hand and 21-4618(a) on the other would obviously fail for the reasons expressed earlier. So Largent is of no comfort to Nambo.
We therefore conclude Nambo must register as an offender because he has met all the necessary elements of K.S.A. 22-4902(a)(7): (1) He was convicted of a person felony (pled to ag gravated robbery); and (2) a deadly weapon was used during the commission of that felony.
Nambo presents one final argument. He aslcs that we find the word “use” in K.S.A. 22-4902(a)(7) to be ambiguous and argues that he did not “use” a firearm in the commission of the offense. According to Nambo, “[i]t would be inconsistent and illogical for this Court to construe use’ of a firearm in K.S.A. 22-4902(a)(7) differently than use5 of a firearm in K.S.A. 21-4704(h) and K.S.A. 21-4618 (a).”
But the inquiry is not whether a firearm was used to commit the offense. One accomplice clearly used a firearm during the seizing of Gallegos’ Blazer and the attempted seizing of Prado-Sanchez’s pickup truck. See State v. George, 20 Kan. App. 2d 648, 654-58, 891 P.2d 1118, rev. denied 257 Kan. 1094 (1995) (collecting cases and concluding that firearm use under K.S.A. 21-4618 includes brandishing, discharging, or using it as a club). Rather, the inquiry is whether Nambo must personally use the firearm. We have ruled “no.” So an unarmed accomplice is required to register as an offender under K.S.A. 22-4902(a)(7).
The decisions of the district court and Court of Appeals are affirmed.
Moritz, J., not participating.
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The opinion of the court was delivered by
Miller, J.:
A jury convicted Deanna D. Hollis of first-degree premeditated murder, in violation of K.S.A. 21-3401, and she was sentenced in Sedgwick County District Court to life imprisonment. She appeals, and raises four issues. She contends that the trial court erred in failing to suppress certain statements which were secured in violation of her Miranda rights, and which were received as rebuttal evidence offered by the State. She claims that the evidence presented at trial was insufficient to sustain the conviction in that the State did not sustain its burden of proving beyond a reasonable doubt that she was sane at the time the offense was committed. She claims the trial court erred in admitting gruesome photographs of the deceased’s remains, and the remains themselves, into evidence. Finally, she contends that the trial court erred in not granting a mistrial (a) when the prejudicial nature of Sabrenne Fullman’s testimony became apparent; (b) following prejudicial news headlines, because the trial court did not fully explore the jury’s exposure to such publicity; and (c) upon the occurrence of prosecutorial misconduct during closing argument.
We turn to the evidence, which we will summarize in the light most favorable to sustain the verdict. State v. Baker, 239 Kan. 403, 720 P.2d 1112 (1986); State v. Pondexter, 234 Kan. 208, 671 P.2d 539 (1983). Deanna Hollis first met the victim, Noel Barber, in late May 1985. Hollis accepted a job as live-in housekeeper and general caretaker for Barber in exchange for room, board, and use of his car. Hollis; her 15-year-old daughter, Angela Grill; her boyfriend, Michael Skipper; and two friends, Jeff and Wanda Davis, lived with Barber during June 1985. Skipper was an over-the-road truck driver, and he stayed at the Barber home when he was in town, receiving room and board in exchange for some work. The Davises and Grill left in late June after an argument between Grill and her mother. On June 25, 1985, Hollis, Skipper, and Barber were together at the residence. Skipper went to bed around 11:00 p.m., leaving Hollis and Barber “scrapping back and forth” in the living room. Skipper described Barber as very drunk, and Hollis “on her way to getting drunk.” The next morning, Skipper arose about 4:45 a.m. to leave on a truck run. He saw Hollis pull a blanket over Barber, who was apparently sleeping on the couch in the living room. He never saw Barber again. Skipper and Hollis went to the Hen House Cafe for coffee and breakfast.
At the Hen House, Hollis told Skipper she had killed Barber but Skipper did not believe her. She later told him she was just kidding. Skipper left on the run and did not return until June 30. When he returned, Barber was gone and Hollis told Skipper that Barber was in a hospital “drying out.” He called two hospitals and could not locate Barber, and when he confronted Hollis with this information, she told him that Barber was in a private sanitarium. Skipper went on other truck runs, and returned to Wichita on July 11, 1985.
On July 12, Skipper and Hollis had dinner witih Angela Grill. Hollis wanted Grill to go on Skipper s next run because Hollis had some business to take care of. When Grill inquired as to Barber’s whereabouts, Hollis repeated her story that he was in a hospital sobering up. Grill left the next day with Skipper. While on this run, Skipper told Grill that her mother said she’d killed Barber because Barber discovered some money was missing and threatened to press charges. Skipper again said that he did not believe the story. Skipper called Hollis from Tennessee to find out if she had taken care of the business she needed to tend to. Hollis told him that she had chopped up Barber’s body and burned it.
Skipper and Grill returned to Wichita on July 18. When Grill arrived at the residence, she noticed two black buckets by the door; they smelled bad. Hollis told her that the buckets contained fertilizer. When Skipper arrived later and inquired about the buckets, Hollis told him the same story.
Grill relayed Skipper’s story and the information about the buckets to her friend Wanda Davis, and they decided to tell the police. They flagged down a patrol car and did so.
Officers went to the Barber residence. Officer Ingram advised Hollis of the purpose of their call, and she granted him permission to enter the residence. He went through it room by room and did not find a body. When Ingram asked Hollis where Barber was, she replied that he was in a V.A. hospital. Later, she said he was at the Topeka V.A. hospital. The officer checked with the Wichita and Topeka V.A. hospitals and found that Barber was not there. He then advised Hollis of her Miranda rights and asked if she understood; she indicated that she did. Sgt. Fleury noticed flies buzzing around two buckets in the living room. He asked Hollis what was in the buckets and she said that it was fertilizer. She granted Ingram permission to look in the buckets. Using surgical gloves, he reached in and pulled out what appeared to be human bones.
Detective Gilmore then read the Miranda rights to Hollis and secured a written waiver. He asked her where Barber was, and she responded that on July 6 or 7, she had hit him on the head with a whiskey bottle during an argument, gone to bed, and hadn’t seen him since. Gilmore then took her to the county courthouse for in-depth questioning. En route, they engaged in general conversation. Hollis blurted out that there was no need to lie anymore and that she had killed Barber because she was upset with her family situation, that Barber had been making unwelcome sexual advances, and she had been wanting to kill someone for a long time.
At the courthouse, Hollis gave a detailed confession, during which Gilmore took notes. This interview was later repeated and recorded on audio tape. In the interview, Hollis stated that she and Barber had been drinking and arguing about her relationship with Skipper. After Skipper went to bed, the argument intensified and she smothered Barber with a pillow. She verified the conversation with Skipper the next morning at the Hen House, and said that she returned home and wrapped the body in a blanket and put it in a bedroom while trying to decide what to do with it. A few hours later she wrapped the body in a pink plastic garment bag, put it in the car, and drove to a stream near Geary County State Lake, where she left it. She returned about a week later because she was concerned that she might get caught because her fingerprints were on the bag. She then tried unsuccessfully to burn the body. When this attempt failed, she put the body back in the car and drove it to a spot near Whitewater, where she hoped it would dry out so she could burn it. About a week later, she again retrieved the body and brought it back to the victim’s house. She left the body in the car overnight and the next morning burned the body on the driveway in front of the car. She used gasoline to get the fire started, adding leaves and twigs and stirring the fire to keep it going. After the debris cooled down, she scooped it up with an ice tray and put it in two buckets which she put in the house. She added some type of chemical to the remains.
On the following day, Det. Gilmore went with Hollis to the various locations she had described, and recovered evidence which verified her story. Pursuant to a search warrant for the victim’s residence, officers found gas cans; six burned areas in the yard, one of which contained small bone fragments; and two metal buckets in the living room containing ash and debris. The ash and debris and bone fragments from the burn area were taken to Wichita State University for examination.
Dr. Schneider, a physical anthropologist, determined that the buckets contained human remains which comprised about 85% to 90% of the skeleton of one human being. A variety of characteristics of the skeleton indicated to her that the victim was a Caucasian male over 50 who was about Barber’s size. In addition, after comparing X-rays of Barber’s skull with X-rays taken of skull and facial bones in the buckets, she was able to conclude that they appeared to be of the same person. A radiology specialist who also compared bone fragments with the X-rays testified that the bones and X-rays matched, and he could say with 99% certainty that the remains were those of Noel Barber. Dr. Schneider also testified that the bones recovered from the buckets exhibited characteristics that suggested some of the body parts were burned while soft tissue was still attached to the bones, and that the bones were moved around in the fire as they burned.
Barber’s bank records reflected several checks written on his account after June 25, 1985, including one payable to the defendant, and a deposit “less cash received,” on July 5, 1985.
The trial transcript comprises some eight volumes and includes well over 1,000 pages. The foregoing is but a brief summary of the testimony. We will supplement this fact statement as necessary in our discussion of the issues raised on appeal.
The appellant states the first issue as follows: The trial court erred in allowing the State to use suppressed statements obtained in violation of Deanna’s Miranda right to rebut the defense of insanity. This issue concerns conversations between defendant Hollis and Det. Gilmore on July 22 and August 2, 1985. After her first appearance in court on July 22, Hollis asked to see Det. Gilmore. When he appeared, she asked him what “premeditated” meant. He responded that it meant pre-planning, or the thinking out of some act. On August 2, Hollis sent a note to Gilmore. She requested cigarettes, and he took some to her at the jail. Gilmore noticed Mr. Greeno, one of Hollis’ attorneys, sitting in the waiting room. It is not clear from the record whether Gilmore knew that Greeno was waiting to see Hollis, or whether he was in fact waiting to see Hollis. Gilmore gave Hollis the cigarettes he’d brought, and asked how she was doing and if she needed anything else. This was followed by general conversation, during which time Hollis volunteered that she was going to plead insanity. Gilmore asked her if she was insane, and she responded, “No, but I have no other option or no other way to go.” At some point during this conversation, Hollis said that her attorney told her not to answer any questions by the police. The officer’s original report of this conversation indicated that the statement regarding her attorney was made before she told Gilmore she was going to plead insanity. Det. Gilmore, during his testimony at the suppression hearing and on trial, recalled that the statement was made after Hollis had told him that she was going to plead insanity.
Hollis appeared for her initial court appearance prior to the July 22 conversation with Gilmore. During that court appearance, the court asked if she wished to have counsel appointed and she responded that she had spoken with an attorney and that she intended to retain counsel. Defense counsel argued, and the trial court ultimately held, that this amounted to an assertion of her right to have counsel present at any further questioning. The court held that the statements were freely and voluntarily made, but that the statements were made in technical violation of the Miranda rule: she had asked for an attorney at the initial hearing, and the court concluded that this amounted to an assertion of her right to have counsel present at any further questioning. The court further ruled, however, that suppression of the statements in the State’s case in chief would not block this evidence from coming in as rebuttal evidence.
Resolution of this issue hinges on whether the statements were obtained in violation of Miranda. The appellant relies upon United States v. Hinckley, 672 F.2d 1115 (D.C. Cir. 1982). The facts, however, are distinguishable. Hinckley attempted to assassinate the President of the United States, and also shot various other persons. He was immediately taken into custody. Later that day, two federal agents, after advising Hinckley of his right to counsel and his right to remain silent, and despite the fact that Hinckley asked to confer with an attorney before answering questions, proceeded to question Hinckley for approximately one-half hour before he had an opportunity to consult with counsel. This interview was not conducted at Hinckley’s request, and it was conducted in obvious violation of the Miranda rule.
In the proceeding now before us, both contacts were made by the officer with Hollis at her request. During the July 22 meeting, the officer asked no questions. Hollis had just been arraigned, and presumably been given a copy of the complaint then filed against her. She asked to see Gilmore, and upon his appearance asked him the meaning of the word premeditated. He responded. This contact was completely and entirely voluntary upon the defendant’s part.
Again, on August 2, Hollis sent a note to Gilmore asking for cigarettes which he brought to her. Obviously, she had already seen counsel, and she advised Gilmore that counsel had told her not to answer any of the officer’s questions. During their general conversation, she volunteered that she was going to plead insanity. The officer’s natural response was his question as to whether or not she was having mental problems, to which she responded she was not, but she had no other way to go.
Miranda requires that prior to custodial interrogation, a person must be informed of the right to remain silent, the right to have counsel present during questioning, and the right to have counsel appointed if the person is indigent. Once the warnings have been given, interrogation must cease immediately if the individual asserts the right to remain silent or requests an attorney. Miranda v. Arizona, 384 U.S. 436, 467-74, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). Hollis was advised of her Miranda rights several times. She indicated that she understood them, and she signed a written waiver of those rights. It has frequently been held that constitutional rights may be knowingly and intelligently waived. In State v. O’Neal, 238 Kan. 183, 185-86, 708 P.2d 206 (1985), we said:
“Where one who is in custody expresses a desire to deal with the police only through counsel or when counsel is present, further interrogation must cease until counsel is present. However, an accused may waive the right to have counsel present and, where the accused voluntarily initiates further communication, the officers are not precluded from responding. . . . The defendant appears to contend that once the police know a person is represented by counsel and has been told not to talk to the police officers, the officers cannot under any circumstances have any further conversation with that person. We rejected that rule in State v. Costa, 228 Kan. 308, Syl. ¶ 3, 613 P.2d 1359 (1980):
“ ‘An accused may effectively waive the right to have counsel present during any police interrogation. The fact that he has previously retained counsel does not necessarily make inadmissible a voluntary statement made by the defendant in his counsel’s absence.’
“Here, defendant first informed the officer that he had counsel and had been advised not to talk in her absence. The officer started to leave. Defendant then asked direct questions of the officer concerning the investigation. Under all of the circumstances disclosed in this record, we conclude that the defendant initiated further conversation with Detective Clark and knowingly and intelligently waived his right to have counsel present while he spoke with that officer.”
Under all of the circumstances in this case, we conclude that there was no Fifth Amendment violation under Miranda. While the appellant does not specifically argue a Sixth Amendment violation, that matter is raised at least tangentially. The Sixth Amendment provides that in all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense. Here, Hollis was advised, prior to her initial hearing, that she was entitled to have counsel, and if she could not afford counsel, one would be appointed for her. She was so advised at the time of her initial appearance, when she chose to attempt to retain counsel. The July 22 conversation, initiated by Hollis, and in which no questions were propounded by the officer, certainly did not interfere with Hollis’ constitutional right to counsel. Similarly, Hollis was well aware of that right when she made the voluntary statement to Gilmore on August 2. Both statements were freely and voluntarily made with full knowledge of all of her constitutional rights. As we said in State v. Taylor, 217 Kan. 706, 711, 538 P.2d 1375 (1975):
“[A]n accused may waive the right to have his counsel present during police interrogation after, as well as before, formal charges are filed against him.”
Under the facts before us, we hold that the defendant, by initiating the conversations, knowingly waived both her Fifth and Sixth Amendment rights to counsel, and that the statements, freely and voluntarily made, were admissible. In view of this holding, we need not consider whether statements, suppressed as to the State’s case in chief, may under certain circumstances later become admissible in rebuttal.
We turn to the defendant’s contention that the evidence presented at trial was insufficient to sustain the conviction for the reason that the State did not sustain its burden of proving the defendant sane beyond a reasonable doubt. Before discussing this issue it will be helpful to review some of the applicable principles. We first quote from Justice Valentine, writing in State v. Crawford, 11 Kan. 32, 44-45 (1873):
“[T]he state is not required in the first instance to introduce evidence to prove sanity, for the law presumes that all persons are sane, and this presumption of sanity takes the place of evidence in the first instance. It answers for evidence of sanity on the part of the state. But if evidence is introduced which tends to shake this presumption, the jury must then consider the same, and its effect upon the main issue of guilty or not guilty, and if upon considering the whole of the evidence introduced on the trial, together with the presumption of sanity, the presumption of innocence, and all other legal presumptions applicable to the case under the evidence, there should be a reasonable doubt as to whether the defendant is sane or insane, he must be acquitted. . . . [The defendant] is required only to raise a reasonable doubt as to his guilt. The burden of proof is always upon the state, and never shifts from the state to the defendant.”
In State v. Boan, 235 Kan. 800, 811-12, 686 P.2d 160 (1984), we quoted at length from the opinion of Justice Owsley in State v. Nemechek, 223 Kan. 766, 576 P.2d 682 (1978). That portion of the Nemechek opinion succinctly states the applicable principles:
“ ‘There is a presumption of sanity in a criminal proceeding that may be relied upon by the prosecution to establish a prima facie case. (State v. Coltharp, 199 Kan. 598, 433 P.2d 418 [1967].) 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. (See, State v. Penry, 189 Kan. 243, 368 P.2d 60 [1962]; Wilson v. United States, 288 F.2d 121 [D.C. Cir. 1960], State v. Clokey, 83 Idaho 322, 364 P.2d 159 [1961]; People v. Smothers, 2 Ill. App. 3d 513, 276 N.E.2d 427 [1971], aff'd 55 Ill.2d 172, 302 N.E.2d 324 [1973].) This evidence may come from either the defendant or the state. (State v. Johnson, 92 Kan. 441, 446, 140 Pac. 839 [1914]; State v. Crawford, 11 Kan. 32, 45 [1873]; Davis v. State, 90 Neb. 361, 133 N.W. 406 [1911]; Lemke v. State, 56 Okla. Crim. 1, 9, 32 P.2d 331 [1934], The term “evidence,” however, does not include the insanity plea or opening statements. Neither rebuts the presumption of sanity. (State v. Coltharp, supra at 602; State v. Mendzlewski, 180 Kan. 11, 13, 299 P.2d 598 [1956]; United States v. Currier, 405 F.2d 1039, 1042 [2d Cir. 1969], cert. denied 395 U.S. 914, 23 L.Ed.2d 228, 89 S.Ct. 1761 [1969], Cf., United States v. Marbley, 410 F.2d 294 [5th Cir. 1969].) . . .
“ ‘The presumption of sanity is rebutted when evidence is introduced which could raise a reasonable doubt concerning a person’s sanity. (State v. Johnson, supra at 447.) 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, supra at 603; State v. Mendzlewski, supra at 14.) 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, supra at 43.) It is 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 v. 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, supra; State v. Coltharp, supra; State v. Mendzlewski, supra.)’ pp. 767-69.”
Our opinion in State v. Boan also quoted and relied upon similar language found in State v. Sanders, 225 Kan. 147, 151, 587 P.2d 893 (1978).
In the early case of State v. Nixon, 32 Kan. 205, Syl. ¶ 1, 4 Pac. 159 (1884), we adopted the M’Naghten rule. Justice Valentine, writing for an unanimous court, said:
“Where a person at the time of the commission of an alleged crime has sufficient mental capacity to understand the nature and quality of the particular act or acts constituting the crime, and the mental capacity to know whether they are right or wrong, he is generally responsible, if he commits such act or acts . . . .”
We have since steadfastly adhered to the M’Naghten test. State v. Wood, 235 Kan. 915, 921, 686 P.2d 128 (1984), and see cases there cited. As to the right and wrong portion of the M’Naghten test, we explained in State v. Boan, 235 Kan. 800, Syl. ¶ 3:
“Under the ‘right and wrong’ test of criminal insanity, it must be proved that at the material time the accused did not know that what he was doing was contrary to law. It is not sufficient to prove that he believed that, while what he was doing was legally wrong, it was morally right.”
Defendant in this case relied upon an insanity defense, and she presented the testimony of Dr. Marvin Ziporyn, a forensic psychiatrist, practicing in Chicago, Illinois. Dr. Ziporyn stated that in his opinion, based upon a reasonable degree of medical certainty, the defendant understood the nature of her act, understood it was prohibited by law, and understood that society would frown upon what she was doing. He found, however, that she was emotionally unstable and was suffering from a mental disorder, an organic brain syndrome. It was his opinion that as a result of her mental disorder, her judgment was impaired. Because of this impaired judgment she thought it was right to kill the deceased, and proceeded to do it.
The trial court recognized that Dr. Ziporyn did not express an opinion that the defendant was insane, according to the M’Naghten test; however, the court allowed the insanity issue to go to the jury “because it also co-mingles with the defendant’s theory of the defense, that I was so drunk at the time that I did not form the requisite intent to kill.”
In rebuttal, the State offered the testimony of Dr. Arnold Mark Barnett, a neurologist. His staff performed two electroencephalograms of the defendant. No brain abnormalities were disclosed. The State also called Dr. John Schlueter, a diagnostic radiologist on the staff of the Wesley Medical Center in Wichita. Dr. Schlueter supervised the taking of the CT scan of the defendant. He discovered no abnormalities, and considered the defendant’s brain scan to be normal. These witnesses, however, testified that it is possible that one could have brain abnormalities which would not show up on either the EEG or the CT scan. One of the bases for Dr. Ziporyn’s conclusions was that Hollis told him that she hallucinated and believed she had telepathic powers. Yet Michael Skipper, with whom Hollis had an intimate relationship, testified that Hollis took care of herself, was able to communicate, and had never reported hallucinations or special powers. The jury also had evidence of Hollis’ extensive actions after the homicide to conceal her crime, and it had the rebuttal testimony of Det. Gilmore as to the July 22 conversation with the defendant regarding premeditation, and the August 2 conversation about her intent to raise the insanity defense, although she did not consider herself insane, but she “had no other way to go.”
The State, upon the presentation of its evidence in chief, had the right to rely upon a presumption of sanity. However, anticipating that the defendant would raise the insanity defense in accordance with her prior notice, the State presented some evidence of defendant’s sanity during its case in chief. Lay testimony, as well as expert testimony, may be considered by the jury in determining the sanity or insanity of the accused. In State v. Sanders, 225 Kan. at 153, we held that even though the expert medical witnesses in a case were unanimous in their diagnosis that the accused was insane, expert medical testimony is not conclusive merely because it is not disputed by other medical testimony. The jury is entitled to consider all of the evidence in the case, both that of the expert witnesses and that of the nonexpert. Under all of the facts of this case, we have no hesitancy in holding that the State made a submissible case that the defendant was sane, and the trial court did not err in submitting the issue to the jury upon disputed evidence. Further, there was substantial competent evidence upon which a rational trier of facts could have found the defendant sane beyond a reasonable doubt.
We turn to the challenged photographic and tangible evidence. The remains of the deceased consisted of small pieces of bone. These had been photographed, some at close range, and others arranged anatomically to show that pieces of bone had been recovered and identified as coming from various parts of the body. The bones, as well as the photographs of them, were received in evidence. Appellant argues that the evidence had little or no probative value because the defendant admitted the crime to the authorities in her confession, and she gave notice of intent to use an insanity defense. Some of the bones themselves and the close-up photographs were used by the State’s expert witness, Dr. Schneider, to illustrate characteristics to which Dr. Schneider testified. She also used several of the bones to explain her testimony. The testimony confirmed that the remains were those of the victim, a fact certainly relevant to the State’s case. While the defendant had confessed, the State still had the burden to prove every essential element of the charge beyond a reasonable doubt.
We have held that a trial court may exclude evidence which is unduly prejudicial and which is offered solely to prejudice the minds of jurors, as well as gruesome photographs which are unduly repetitious and add nothing to the State’s case. See State v. Garcia, 233 Kan. 589, 593, 664 P.2d 1343 (1983), and State v. Boyd, 216 Kan. 373, 377, 532 P.2d 1064 (1975).
Evidence need not be excluded, however, merely because it portrays a gruesome crime. See, e.g., State v. Williams, 235 Kan. 485, 681 P.2d 660 (1984) (tape recording of rape); State v. Crispin, 234 Kan. 104, 671 P.2d 502 (1983) (photographs of victim of shooting and beating); State v. Johnson, 231 Kan. 151, 643 P.2d 146 (1982) (photographs of naked corpse of a person who had been badly beaten and stabbed five times); State v. Henson, 221 Kan. 635, 562 P.2d 51 (1977) (photographs of partially nude body of victim of sexual assault and multiple stab wounds). Photographs are not inadmissible because they are shocking or gruesome if they are relevant to material matters at issue. State v. Green, 232 Kan. 116, 118, 652 P.2d 697 (1982); State v. Words, 226 Kan. 59, 596 P.2d 129 (1979); State v. White & Stewart, 225 Kan. 87, 587 P.2d 1259 (1978); State v. McCor gary, 224 Kan. 677, 681, 585 P.2d 1024 (1978); State v. Martinez, 223 Kan. 536, 537, 575 P.2d 30 (1978).
An argument similar to that advanced here by the appellant was rejected by this court in State v. Soles, 224 Kan. 698, 585 P.2d 1032 (1978), where we said:
“In view of defendant’s insanity defense, it was necessary for the State to prove defendant acted knowingly and with premeditation in order to prove its case in chief. Photographs offered to prove the elements of the crime, the fact and manner of death, the violent nature of the death, and to corroborate the testimony of other witnesses are relevant and admissible.” 224 Kan. at 701.
In Soles, the facts of the crime were actually stipulated in advance of trial; here, there was no such stipulation. The State had the burden to prove its case beyond a reasonable doubt, and the jury was given the option of finding the defendant guilty, not guilty, or not guilty by reason of insanity. The defendant did not stipulate as to the manner of death, or that the bones were those of the victim.
Dr. Schneider’s testimony also corroborated certain details of the defendant’s confession. The remains had characteristics suggesting that the body was partially decomposed at the time it was burned, and that it had been moved around in the fire as it was burned. The jury could see the effects of the fire on the bone as described by the witness.
While the bones and the photographs of them might be said to be gruesome, neither the photographs nor the bones are particularly inflammatory or gory. They were utilized by the expert witnesses, and were an essential part of the State’s case. It was not error to receive this evidence, and to allow the expert to refer to it while testifying about the identification process and the post-mortem treatment of the remains.
Finally, defendant contends that the trial court erred in refusing to grant a mistrial because of prejudicial testimony, a prejudicial news headline, and prosecutorial misconduct during closing arguments.
K.S.A. 22-3423(l)(c) provides that a trial court may terminate the trial and order a mistrial at any time it finds a termination is necessary because of prejudicial conduct, in or outside the courtroom, which makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution. The declaration of a mistrial is a matter which lies within the trial court’s sound discretion. That discretion is abused only where no reasonable person would take the view adopted by the court; if reasonable people could differ as to the propriety of the action taken by the court, then it cannot be said that the trial court abused its discretion. State v. Falke, 237 Kan. 668, 679-80, 703 P.2d 1362 (1985). To warrant the declaration of a mistrial, the rights of the defendant or the State must be substantially prejudiced. Abuse of discretion must be clearly shown before an appellate court will set aside the trial court’s decision. State v. Ferguson, Washington & Tucker, 228 Kan. 522, 527-28, 618 P.2d 1186 (1980).
Defendant first argues that a mistrial should have been declared based upon prejudicial hearsay included within the testimony of Sabrenne Fullman. Defendant filed a motion in limine regarding Fullman’s proposed testimony, and her testimony was first heard outside the hearing of the jury. At that time she testified that Barber called her in mid-June. He sounded afraid, and asked her to take him to a motel because a lady staying with him was going to kill him because he would not give her $1,000. Fullman initially testified that Barber did not say when the threat occurred. The court ruled the testimony was admissible under K.S.A. 1985 Supp. 60-460(d)(3), finding that Barber was describing a recently perceived event because of the frightened tone in his voice. The trial court overruled the motion in limine.
In the presence of the jury, Fullman’s testimony was substantially the same except she added that Barber told her the woman tried to kill him around the first of June. Because this was not recently perceived by the declarant, it was not within the hearsay exception. On motion of the defense, agreed to by the prosecution, the judge struck all of Fullman’s testimony and ordered the jury to disregard it. He denied a defense request for a mistrial. In a later inquiry, outside the hearing of the jury, Fullman testified that Barber told her the threat on his life occurred earlier the same day. The judge then denied a renewed motion for mistrial, stating that he felt Fullman’s testimony was admissible under 60-460(d)(3) but that he struck it because the State so agreed.
We are not called upon to determine whether or not the testimony was admissible, but in ruling upon the motion we assume that the testimony, at least that concerning the attempt on Barber’s life which occurred about June 1, was not admissible. We conclude that the trial court’s admonition to the jury to disregard all of Fullman’s testimony cures the improper admission of evidence under the facts of this case. A declaration of mistrial is not warranted unless the defendant has been substantially prejudiced. Here, Hollis confessed to the crime in considerable detail; many of those details were substantiated by other evidence. The State’s case was not weak, but very strong. We hold that the trial judge did not abuse his discretion in refusing to grant a mistrial on the basis of the Fullman testimony.
Appellant next claims that the trial court should have granted a mistrial because the jurors were not specifically asked if they had seen a headline in a Wichita paper during trial which read “Defense termed ‘marginal’ — judge questions Hollis’ claims.” When the headline was brought to the trial judge’s attention, he asked the jurors if any of them had read anything about this case in that morning’s paper. There was no response. Appellant now argues that the trial court should have gone further and should have asked the jurors if they had seen the headline. There is no showing on the record that any of the jurors saw the headline. We find no error.
Finally, appellant claims the trial court erred in failing to grant a mistrial because of four statements made by the prosecutor during closing argument. Defense counsel objected to each of the statements. The trial court sustained each objection and admonished the jury to disregard statements of counsel that were not supported by the evidence. The trial court overruled the mistrial motion, stating that the admonitions were adequate.
What we said in State v. Parsley, 238 Kan. 253, 265, 710 P.2d 1231 (1985), is equally applicable here:
“The trial court promptly recognized the objectionable aspects of the prosecutor’s statements. This prompt action by the trial court cured any possible prejudice to the defendant. In this connection we stated in State v. Warbritton, 215 Kan. 534, Syl. ¶ 1, 527 P.2d 1050 (1974), and reiterated in State v. Perales, 220 Kan. 777, 780, 556 P.2d 172 (1976), the following:
“ ‘Improper remarks made by the prosecuting attorney in his summation to the jury will not provide a basis for reversal where the jury has been instructed to disregard the same, unless the remarks were so prejudicial as to be incurable.’ “See also State v. Johnson, 229 Kan. 42, 45-46, 621 P.2d 992 (1981); State v. Mick, 229 Kan. 157, Syl. ¶ 3, 621 P.2d 1006 (1981).
“Moreover, due to the overwhelming evidence against the defendant in this case, there is little likelihood the absence of the errors would have changed the outcome of the case, and, as such, the errors were harmless. State v. Folkerts, 229 Kan. 608, 629 P.2d 173, cert. denied 454 U.S. 1125 (1981).”
The remarks of counsel here were not so prejudicial as to be incurable, and in light of the strength of the State’s case these statements were harmless error, promptly and appropriately handled by the trial court. As the Perales court said, “[T]here is little likelihood the absence of the errors would have changed the outcome of the case.” The trial court did not err in refusing to grant a mistrial.
The judgment is affirmed.
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The opinion of the court was delivered by
McFarland, J.:
This is an appeal by defendants/third-party plaintiffs from an order of the district court dismissing their third-party petition against the third-party defendant Federal Intermediate Credit Bank of Wichita (FICB) and assessing FICB’s attorney fees against the third-party plaintiffs.
Plaintiff North Central Production Credit Association (PCA) brought this action against defendants seeking foreclosure of plaintiff s security interests in certain personal property and its second mortgages on, defendants’ real estate. This litigation is still pending, having been delayed by a bankruptcy action involving the defendants. Although defendants/third-party plaintiffs additionally attempt in this appeal to seek review of an order of the district court dismissing their counterclaim, the same is not before us as no final judgment has been entered in the primary litigation.
PROPRIETY OF THE DISMISSAL OF THE THIRD-PARTY PETITION
In its pleading denominated third-party petition, third-party plaintiffs (Hansens) do not attempt to comply with the provisions of K.S.A. 60-214(a), which provides in pertinent part:
“At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff s claim against him.” (Emphasis supplied.)
In Alseike v. Miller, 196 Kan. 547, 412 P.2d 1007 (1966), we stated:
“It may first be noted that this statute [60-214(a)] pertains to procedure only and does not create any substantive rights. The statute relates generally to the subject of reimbursement, indemnity or contribution, but it creates no substantive right to the same. There must be some substantive basis for the third-party claim before one can utilize the procedure of 214(a). Third-party practice is simply a permissive procedural device whereby a party to an action may bring in an additional party and claim against such party, because of a claim that is being asserted against the original party. It has been said that the general purpose of the practice is to avoid circuity of action and to dispose of the entire subject matter arising from one set of facts in one action, thus administering complete and even-handed justice expeditiously and economically [citation omitted].
“In order to come under 214(a) the defendant’s claim against the third-party defendant must be such that the latter ‘is or may be liable to him for all or part of the plaintiff s claim against him.’ The advisory committee for our present code of civil procedure had this to say with respect to the section:
“ ‘Although it is the purpose of the provision to permit the entire controversy in a single proceeding to be determined, it is only the liability of the third-party defendant to the original defendant for the original defendant’s liability to the plaintiff that is to be determined.’ (Gard’s Kansas Code of Civil Procedure, Advisory Committee Notes, p. 74.)
“Thus we see it is not a device for bringing into an action any controversy which may happen to have some relation with it.” 196 Kan. at 549-50.
The defendants did not allege in their third-party complaint that FICB is liable to them for all or any part of PCA’s claim against them. Rather, they seek a judgment against the Bank for actual and punitive damages independent of and not keyed to any liability they may be found to have to the plaintiff. The district court correctly determined the third-party petition was procedurally defective.
The lengthy, rambling, fill-in-the-blanks type of third-party petition filed herein is virtually identical to the pleading designated as a counterclaim herein. Highly summarized, the third-party petition alleges that the Hansens are farmers whose fathers and forefathers were farmers. From there on the pleading is, in essence, a broadside attack on the federal government’s farm credit system and policies. The Hansens contend the purpose of the farm credit system is to make credit available to farmers such as themselves; and that PCA and FICB should have exercised forebearance in regard to the Hansens’ delinquency on their loan, and should now extend more credit to them. The Hansens take great umbrage at what they perceive to be villainy and perfidy in the operation of the federal farm credit system.
At this point, a brief explanation of the relationship between PCA and FICB and the farm credit system, in general, would be appropriate. The Farm Credit Administration, an independent agency in the executive branch of government, consists of the Federal Farm Credit Board (Board), the Governor, and other officers. 12 C.F.R. § 600.1 (1986). The Board establishes general policy for the guidance of the Farm Credit Administration. The Board consists of thirteen members, including one from each of the twelve Farm Credit districts. 12 C.F.R. § 600.2.
The farm credit system is divided into twelve Farm Credit Districts. District No. 9 is named Wichita (Ks.) and serves farm needs in Kansas, Oklahoma, Colorado, and New Mexico. 12 C.F.R. § 600.10(a). Each district contains a federal land bank, a federal intermediate credit bank (FICB), a bank for cooperatives, and varying numbers of local federal land bank associations and production credit associations (PCA). 12 C.F.R. § 600.10(b). In District No. 9, the Federal Intermediate Credit Bank of Wichita serves district needs. The capital stock of the FICB is owned by production credit associations. The FICBs are primarily banks of discount for PCAs and other agricultural and livestock lending institutions. 12 C.F.R. § 600.40. The FICB lends money to the PCA in its district. PCAs, on the other hand, finance on short- and intermediate-term basis farmers, ranchers, and producers or harvesters of aquatic products. 12 C.F.R. § 600.50.
The relationship between the FICBs and PCAs was described in VanLeeuwen v. Farm Credit Admin., 577 F. Supp. 264 (D. Or. 1983), as follows:
“The Farm Credit Administration is an independent executive agency comprised of the Federal Farm Credit Board, the Governor, and other personnel. 12 U.S.C. § 2241. The FCA is mandated to charter, supervise, examine and regulate the banks and associations that comprise the Farm Credit System (‘System’). The System is divided into twelve Farm Credit Districts, each of which contains a federal land bank, a federal intermediate credit bank, a bank for cooperatives, and varying numbers of local federal land bank associations, local banks for cooperatives, and production credit associations (‘PCAs’). The Association is one of thirty PCAs in the Twelfth Farm Credit District. Those PCAs obtain funds from the FICB to finance operating and capital credit needs of eligible borrowers. The System banks and associations are owned by borrower-members and operated on a cooperative basis. Their function is to serve the credit needs of farmers, ranchers, and aquatic producers and harvesters.
“The FICB and Association are both System institutions subject to supervision by the FCA. The FICB has two primary responsibilities. First, it sells notes and bonds in the nation’s money markets, through the System’s fiscal agent, and loans the proceeds to PCAs. The federal government is not liable on and does not guarantee System notes and bonds. Second, the FICB is responsible for the direct supervision of the PCAs. In this capacity, the FICB conducts reviews of PCA operations at least annually to evaluate compliance with applicable statutes, FCA regulations, policies of the district board, and good business practices.” 577 F. Supp. at 265.
By virtue of essentially identical form pleadings being utilized as both the counterclaim and third-party petition, allegations against both PCA and FICB are inextricably intertwined in both pleadings. Appellants’ briefs continue in the same tradition as their pleadings and are an amorphous mass of conclusionary statements relative to PCA and FICB operations. Although an appellate court should not be required to do that which an appellant has not seen fit to do, namely present his or her claims of error in something akin to a comprehensible professional manner, we have endeavored to separate the allegations relative to FICB from the emulsion presented to us.
Theories of liability attempted to be set forth in the third-party petition appear to include negligence, breach of fiduciary duty, fraud, breach of contract, and the tort of bad faith. The disorder presented precludes the use of the usual format for discussion of issues raised on appeal. Therefore, we make these observations and conclusions:
1. There is no contractual relationship between the Hansens and FICB. The pledge of the Hansen note by PCA to FICB (an act required by the operation of the farm credit system) does not create a contractual relationship between the debtors and FICB.
2. The pledge of the note does not make FICB the real party in interest in the foreclosure.
3. There is no fiduciary relationship between FICB and the debtors. As we stated in First Bank of WaKeeney v. Moden, 235 Kan. 260, 681 P.2d 11 (1984):
“Some of the indicia of a fiduciary relationship include the acting of one person for another; the having and exercising of influence over one person by another; the reposing of confidence by one person in another; the dominance of one person by another; the inequality of the parties; and the dependence of one person upon another. In addition, courts have considered weakness of age, mental strength, business intelligence, knowledge of the facts involved or other conditions giving to one an advantage over the other. None of these factors is demonstrated by the evidence here. There was no reposing of confidence in the Bank by the Modens, no dominance, no inequality, no dependence, no acting for another, no exercising of influence. We agree with the trial court:
“ ‘There is no evidence which would suggest anything other than the ordinary debtor/creditor relationship between the plaintiff Bank and these defendants [the Modens].’
Ordinarily, the relationship between a bank and its customer is that of creditor-debtor and not that of a fiduciary. Denison State Bank v. Madeira, 230 Kan. 684, 695, 640 P.2d 1235 (1982); Dugan v. First Nat’l Bank in Wichita, 227 Kan. 201, 207, 606 P.2d 1009 (1980).” 235 Kan. at 262.
Here, the creditor is PCA rather than FICB.
4. The tort of bad faith is not recognized in Kansas. Guarantee Abstract & Title Co. v. Interstate Fire & Cas. Co., 232 Kan. 76, Syl. ¶ 3, 652 P.2d 665 (1982).
5. No cause of action for negligence is stated. As we stated in Durflinger v. Artiles, 234 Kan. 484, 673 P.2d 86 (1983):
“Negligence exists where there is a duty owed by one person to another and a breach of that duty occurs. Further, if recovery is to be had for such negligence, the injured party must show: (1) a causal connection between the duty breached and the injury received; and (2) he or she was damaged by the negligence.” 234 Kan. at 488.
No breach of any legal duty owed to the Hansens by FICB is stated.
6. Fraud must be pled with particularity. Price v. Grimes, 234 Kan. 898, Syl. ¶ 5, 677 P.2d 969 (1984). The conclusionary allegations of fraud contained in the third-party petition relative to FICB are wholly lacking in particularity.
7. Whether forebearance was to be afforded the Hansens on repayment of their indebtedness to PCA was the legal responsibility of PCA rather than FICB. The refusal of PCA to forebear gives rise to no cause of action against FICB for that refusal.
8. As for the numerous allegations relative to the Hansens’ perceived deficiencies in the operation of the farm credit system, we must conclude that the Hansens have no standing to try the merits and operation of the system in this litigation. They allege no particular damage to them unique from other farm credit system borrowers. See Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 100, 60 L. Ed. 2d 66, 99 S. Ct. 1601 (1979).
9. Other claims of error relative to the dismissal of the third-party petition are considered and held to be without merit.
We conclude the district court did not err in dismissing the third-party petition.
AWARD OF ATTORNEY FEES
The district court, upon dismissal of the third-party petition, granted FICB’s motion for attorney fees under K.S.A. 60-2007. The motion was granted in the amount of $5,272.50 and taxed against the Hansens and their attorneys, Richard V. Gose and Doug Thompson, jointly and severally. Attorney fees were also awarded in favor of PCA, but any issue relative to the propriety thereof is not before us. In granting both motions for attorney fees, the district court stated:
“PCA and FICB also seek to recover their attorneys’ fees in their defense of the counterclaim and third-party complaint filed against them. They cite K.S.A. 60-2007 as authority for their demand. This statute provides:
“ ‘(b) At the time of assessment of the costs of any action to which this section applies, if the court finds that a party, in a pleading, motion or response thereto, has asserted a claim or defense, including setoffs and counterclaims, or has denied the truth of a factual statement in a pleading or during discovery, without a reasonable basis in fact and not in good faith, the court shall assess against the party as additional costs of the action, and allow to the other parties, reasonable attorney fees and expenses incurred by the other parties as a result of such claim, defense or denial. An attorney may be held individually or jointly and severally liable with a party for such additional costs where the court finds that the attorney knowingly and not in good faith asserted such a claim, defense or denial or, having gained knowledge of its falsity, failed to inform the court promptly that such claim, defense or denial was without reasonable basis in fact.
“The debtors’ counterclaim and third-party complaint are replete with misrepresentations and misquotations of federal statutes. The two pleadings are basically the same and attempt was made to make them applicable to the party intended by filling in blanks. The counterclaim and third-party complaint set forth no recognizable cause of action and set out no claim for recovery with a reasonable basis in fact upon which to proceed. They cannot be found to have been filed in good faith.
“But even more serious is the manner in which these complaints were presented. The counterclaim and third-party complaint conform to no rules of pleading. In the claims attempted to be made and in the quotations cited from federal statutes and regulations, the Court cannot place the responsibility upon the debtors since the debtors had no means or knowledge to so deftly misquote so much at such length and to give those distortions to the Court as the law of this State. This could only have been done by their attorneys. It must be basic to every member of the Bar that such tactics are unprofessional and can only be found to have been done knowingly and not in good faith. Such an effort must be denominated as frivolous and counsel for the debtors must be held to be jointly and severally liable with the debtors for the payment of the attorneys’ fees to which PCA and FICB are entitled as a result of their having to respond to the counterclaim and third-party complaint.”
The Hansens and their attorneys do not challenge the reasonableness of the size of the award of attorney fees. Rather, they argue that no award should have been made. We have carefully reviewed the record and find no abuse of discretion in the award of attorney fees in favor of FICR.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Herd, J.:
The state appeals pursuant to K.S.A. 22-3602(b)(3) upon a question reserved at the appellee Robert A. Kitzman’s sentencing hearing on February 6,1986. The facts are as follows:
On June 13, 1985, Robert Kitzman pled no contest to the charge of driving under the influence of alcohol or drugs. K.S.A. 1984 Supp. 8-1567. On June 27, 1985, he was sentenced to serve one year in the Shawnee County jail and placed on two years’ probation after his release.
After serving over seven months of his one-year sentence, Kitzman wrote to the district court inquiring as to the length of time remaining upon his sentence and whether or not there would be any additional imposition of fines or costs after he had served his full sentence. The court responded by appointing new counsel for the appellee (his previous counsel had left the community) and by setting a hearing for February 6, 1986.
At the hearing, the court, on its own motion, modified the sentence to eliminate the requirement that Kitzman be placed on probation for two years upon completion of his jail sentence. The court noted that the sentence was illegal since the relevant statute (K.S.A. 1984 Supp. 8-1567[d]) provided for not more than one year’s imprisonment for a second DUI conviction.
At the same hearing, the court also corrected the appellee’s sentence to reflect the imposition of a $500 fine, as required by K.S.A. 1984 Supp. 8-1567(d). However, the court immediately “paroled” the fine, with the following statement:
“I’m going to impose the fíne at this time of $500; but, I also agree, and I don’t know how much we can expect to get out of a person — a year in the county jail is a significant amount of time, and I’m going to parole the $500 fine.”
Neither the State nor the appellee objected to the modifications of the sentence. Instead, the State argued the court had no authority under K.S.A. 1984 Supp. 8-1567 to suspend payment of the fine, and reserved the question pursuant to K.S.A. 22-3602(b)(3). This appeal followed.
The sole issue on appeal is whether K.S.A. 1984 Supp. 8-1567 gives the trial court the discretion to suspend payment of the $500 mandatory fine.
We first note that the trial court acted properly in correcting the appellee’s sentence to reflect the statutory minimum requirements. We have often held that an illegal sentence may be corrected at any time. State v. Kerley, 236 Kan. 863, 865, 696 P.2d 975 (1985). Kitzman’s original sentence was clearly illegal. It required two years’ probation after a one-year jail term in violation of K.S.A. 1984 Supp. 8-1567(d), which provides for a maximum sentence of one year’s imprisonment. The statute also requires imposition of a mandatory minimum fine which the court initially failed to impose. Accordingly, the court did not err in correcting the sentence to reflect the statutory requirements.
At the time of appellee’s conviction, K.S.A. 1984 Supp. 8-1567(d) provided as follows:
“(d) On a second conviction of a violation of this section, a person shall be sentenced to not less than 90 days’ nor more than one year’s imprisonment and fined not less than $500 nor more than $1,000. The person convicted must serve at least five days’ imprisonment before the person is granted probation, suspension or reduction of sentence or parole or is otherwise released. As a condition of any grant of probation, suspension of sentence or parole or of any other release, the person shall be required to enter into and complete a treatment program for alcohol and drug abuse as provided in K.S.A. 8-1008 and amendments thereto. In addition, the court shall suspend the driver’s license of the convicted person for one year or until the person completes the treatment program approved by the court, whichever is directed by the court. No plea bargaining agreement shall be entered into nor shall any judge approve a plea bargaining agreement entered into for the purpose of permitting a person charged with a violation of this section, or any ordinance of a city in this state which prohibits the acts prohibited by this section, to avoid the mandatory penalties established by this subsection or the ordinance.” (Emphasis added.)
The State argues the provisions of this statute are mandatory and thus do not permit a trial court to suspend payment of the required fine. Kitzman contends the statute does not clearly provide that payment of the fine cannot be suspended and, therefore, the trial court’s action was within its sound discretion.
We recently reviewed the rules of statutory construction in State v. Cole, 238 Kan. 370, 371-72, 710 P.2d 25 (1985), where we stated:
“The fundamental rule of statutory construction is that the purpose and intent of the legislature governs when the intent can be ascertained from the statute. In construing statutes, the legislative intention is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible. [Citations omitted],
“Penal statutes must be strictly construed in favor of persons sought to be subjected to their operations. The rule of strict construction simply means that ordinary words are to be given their ordinary meaning. Such a statute should not be read to add that which is not readily found therein or to read out what as a matter of ordinary English language is in it. [Citations omitted.]” (Emphasis added.)
In determining whether K.S.A. 1984 Supp. 8-1567(d) permits a trial judge to suspend payment of a mandatory fine, we should examine one sentence of the statute with particular care. After providing for a mandatory sentence and fine on a second DUI violation, the statute continues as follows:
“The person convicted must serve at least five days’ imprisonment before the person is granted probation, suspension or reduction of sentence or parole or is otherwise released. As a condition of any grant of probation, suspension of sentence or parole or of any other release, the person shall be required to enter into and complete a treatment program for alcohol and drug abuse as provided in K.S.A. 8-1008 and amendments thereto.”
The foregoing statute concerns only reduction of sentence and does not provide for reduction, suspension, or “parole” of the mandatory fine.
The statute indicates that the conditions under which the minimum sentence can be altered apply only to “a release” from imprisonment — including probation, suspension or reduction of sentence, or parole. Thus, the statute, while providing for a reduced sentence under certain conditions, clearly does not give the judge discretion to suspend or waive the statutory minimum fine.
The best indication of the legislative intent is disclosed by examining a previous version of 8-1567. Prior to 1982, the relevant portion of the statute provided:
“On a second or subsequent [DUI] conviction he or she shall be punished by imprisonment for not less than ninety (90) days nor more than one (1) year, and, in the discretion of the court, a fíne of not more than five hundred dollars ($500).” K.S.A. 1981 Supp. 8-1567(c).
When the legislature amended the statute in 1982, it deleted, among other things, the reference to the “discretion of the court.” Thus, it is apparent the legislature, by removing the discretionary language found in earlier statutes, intended the fine to be mandatory with no opportunity for the trial court to grant a waiver or suspension of the fine. This holding is also in line with the stated intention of the legislature to enact stiffer DUI penalties in 1982. These statutory amendments are the legislature’s response to the serious threat of drunken drivers to highway safety and to increased public awareness of that threat. See Note, The New Kansas DUI Law: Constitutional Issues and Practical Problems, 22 Washburn L.J. 340 (1983); Comment, The New Kansas Drunk Driving Law: A Closer Look, 31 Kan. L. Rev. 409 (1983).
We hold in this case, which is controlled by the mandatory sentencing statute, the trial court did not have discretion to waive, remit, suspend, or “parole” the fine.
The judgment of the trial court is reversed. | [
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The opinion of the court was delivered by
Biles, J.:
Amy C. Miller sued her doctor, who mistakenly removed her left ovary during a laparoscopic surgery intended to take the right ovary, and a jury awarded her $759,679.74 in damages. But the district court reduced that amount by $425,000 because of a state law limiting noneconomic damages in personal injury lawsuits and a posttrial ruling finding her evidence of future medical expenses insufficient. Both sides appeal, with each claiming the district court erred at various points in the proceedings.
Our initial focus is the constitutionality of K.S.A. 60-19a02, which operated to cap Miller’s jury award for noneconomic damages. This statute is one of several enacted to “reform” our state’s tort laws, and it has been a subject this court has visited—and revisited—in prior cases with conflicting outcomes. It represents a long-standing and highly polarizing question nationwide. See, e.g., Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, 338, 789 P.2d 541 (1990) (Samsel II) (referring to “the stormy controversy which currently surrounds the liability insurance and tort systems”); see also Kansas Malpractice Victims Coalition v. Bell, 243 Kan. 333, 354-55, 757 P.2d 251 (1988) (McFarland, J., dissenting) (“Many physicians truly believe that the legal profession is out to destroy them for personal gain. Many lawyers believe, with equal sincerity, that the medical profession is attempting, through legislation, to avoid its responsibility for harm done by its members. Companies providing medical malpractice insurance are attacked by both groups.”). The continuation of this controversy no doubt contributed to the larger-than-usual volume of briefs received in this appeal from the parties and their allied interests.
In resolving the four constitutional issues in this case, a majority of the court upholds K.S.A. 60-19a02 as applied to Miller—a medical malpractice victim. A minority would hold the statute unconstitutional.
As to the trial errors alleged, we unanimously reverse the district court’s decision to strike the jury’s award for Miller’s future medical expenses and remand the case with instructions to reinstate that award. As for the doctor’s cross-appeal, it is argued the trial court erred by denying a motion for judgment as a matter of law and motion for new trial. We unanimously deny the doctor’s trial error claims.
Factual and Procedural Background
The essential facts are straightforward. Miller began seeing Dr. Carolyn N. Johnson in 1994 with a history of painful and irregular menstrual periods. In 2002, after continued suffering from severe pain in her right lower quadrant, Miller, who was 28 years old at the time, consented to having her right ovaiy removed. Johnson performed a laparoscopic procedure for that purpose. The surgical report, signed by Johnson, stated that the right ovary had been removed. Miller, however, continued to experience severe pain.
Three months after the surgery, Miller discovered during an examination with another doctor that Johnson had mistakenly re moved her left ovary instead of the right. A different physician attempted to manage Miller s continuing pain with nonsurgical options, but the pain persisted and Miller decided to have another surgeon remove her remaining ovary. She sued Johnson for medical malpractice in 2004, alleging the doctor violated the appropriate standard of medical care. Johnson vigorously contested the lawsuit, claiming Miller s preexisting medical conditions would have required eventual removal of both ovaries and her uterus, even if the left ovary was taken first in error.
The case went to trial and a jury found the doctor completely at fault. It awarded Miller $759,679.74 in total monetary damages, comprised as follows: (1) $84,679.74 for medical expenses to date; (2) $100,000 for future medical expenses; (3) $250,000 for none-conomic loss to date; (4) $150,000 for future noneconomic loss; and (5) $175,000 noneconomic loss for impairment of services as a spouse. But the district court reduced the jury’s award in two postverdict decisions.
In its first ruling, the district court enforced the statutory limitation on noneconomic damages required by K.S.A. 60-19a02. This cut the jury’s total award of $575,000 in noneconomic damages by $325,000 to conform to the $250,000 statutory cap. In so ruling, the district court rejected Miller’s efforts to avoid the statute’s restrictions by challenging its constitutionality. Miller argued the cap violated her right to trial by jury, the right to remedy by due course of law, equal protection, and the doctrine of separation of powers. The primary basis for the district court’s ruling was the 1990 decision in Samsel II, which was this court’s most recent decision on the issue and which the lower court was bound to follow. In addition, the district court denied Miller’s request for an evidentiary hearing to attack the legislature’s basis for enacting the cap. Instead, Miller filed a written motion proffering tire testimony she would have submitted. Highly summarized, Miller’s experts would have testified there was no empirical evidence to support a claimed medical malpractice crisis to justify the legislation, that the none-conomic damages cap has a disparate impact on women and die elderly, and that there is little support for believing that juries award damages for frivolous claims out of sympathy for a plaintiff.
In its second ruling, the district court struck the $100,000 jury award for future medical expenses. The court held that Miller offered insufficient evidence for the jury to make findings about her future medical or counseling needs, how much future care she would require, or what that cost would be over the next several decades until she reached menopause.
Combining the reductions resulting from these two determinations, the district court entered a final monetary judgment against Johnson for $334,679.74.
In rulings made against the doctor that are also the subject of this appeal, the district court denied Johnson’s motion for judgment as a matter of law, which was premised on a defense claim that Miller failed to prove causation due to her preexisting medical conditions. The district court held there was sufficient evidence to support the jury’s finding on causation. It further found there was no medical indication to remove the left ovary at the time Johnson performed the laparoscopic procedure and that the evidence was sufficient to show Miller experienced a variety of problems as a result of her having both ovaries removed. The district court acknowledged that Johnson presented conflicting evidence but held those inconsistencies were best resolved by the jury, which found against the doctor.
Regarding the motion for new trial, the district court rejected the doctor’s argument that it had improperly prevented Miller’s treating physicians from testifying that it would have been necessary to eventually remove both ovaries. Johnson claimed this evidence supported the defense theory and would have been significant to jury deliberations. But the district court disagreed and held the treating physicians’ testimony was properly limited to those matters stated in their medical records, their care and treatment of Miller, and inquiries reasonably related to that treatment.
Both sides appeal the rulings adverse to their respective interests. This court transferred the case from the Court of Appeals. See K.S.A. 20-3018(c) (transfer of cases on court’s motion). Thereafter, we conducted oral arguments on two separate dockets. This unusual occurrence was necessitated by changes to the court’s composition after the original oral arguments. Reargument was held February 18, 2011.
We address first the four constitutional attacks leveled against K.S.A. 60-19a02 by Miller, and then we will discuss the trial error claims. But before doing so, the court acknowledges the contributions to our analysis made by the parties and amici curiae. Their deeply rooted concerns about these important constitutional questions are evident, even though they disagree in the rationale that might drive the outcomes.
The Statute’s Constitutionality
K.S.A. 60-19a02 was enacted in 1988. L. 1988, ch. 216, sec. 3. It limits the total amount recoverable to $250,000 for noneconomic loss in any personal injury action, including medical malpractice claims. “Noneconomic losses include claims for pain and suffering, mental anguish, injury and disfigurement not affecting earning capacity, and losses which cannot be easily expressed in dollars and cents.” Samsel II, 246 Kan. 336, Syl. ¶ 6. The statute provides:
“(a) As used in this section ‘personal injury action’ means any action seeking damages for personal injury or death.
“(b) In any personal injury action, the total amount recoverable by each party from all defendants for all claims for noneconomic loss shall not exceed a sum total of $250,000.
“(c) In every personal injury action, the verdict shall be itemized by the trier of fact to reflect the amount awarded for noneconomic loss.
“(d) If a personal injury action is tried to a jury, the court shall not instruct the jury on the limitations of this section. If the verdict results in an award for no-neconomic loss which exceeds the limit of this section, the court shall enter judgment for $250,000 for all the party’s claims for noneconomic loss. Such entry of judgment by tire court shall occur after consideration of comparative negligence principles in K.S.A. 60-258a and amendments thereto.
“(e) The provisions of this section shall not be construed to repeal or modify the limitation provided by K.S.A. 60-1903 and amendments thereto in wrongful death actions.
“(f) The provisions of this section shall apply only to personal injury actions which are based on causes of action accruing on or after July 1,1988.” (Emphasis added.) K.S.A. 60-19a02.
This was not the first restraint on noneconomic damages imposed by the legislature in common-law tort cases in Kansas. The first was enacted in 1986 and applied exclusively to medical malpractice lawsuits. K.S.A. 1986 Supp. 60-3407. It restricted none-conomic damages to $250,000 but also imposed an overall cap of $1 million for total damages. K.S.A. 1986 Supp. 60-3407(a). It further provided for annual adjustments to the noneconomic damages cap based on the consumer price index. K.S.A. 1986 Supp. 60-3407(d). This 1986 statute was enacted in response to continued efforts from health care professionals and the insurance industry to improve insurance rates for medical malpractice coverage and malee insurance more readily available. K.S.A. 1987 Supp. 60-3405. In 1988, a majority of this court declared the 1986 cap on none-conomic damages unconstitutional. Kansas Malpractice Victims, 243 Kan. at 346, 352 (statute violated both the Section 5 right to jury trial and Section 18 remedy provision of the Kansas Constitution Bill of Rights).
But even before the Kansas Malpractice Victims decision was announced, the 1987 legislature enacted a $250,000 noneconomic damages cap limiting recovery for pain and suffering in all other personal injury actions. L. 1987, ch. 217, sec. 1. That statute did not apply to medical malpractice actions and did not include a cost-of-living adjustment. K.S.A. 1987 Supp. 60-19a01. The following year, the legislature merged these two damages caps into the statute at issue in this case. L. 1988, ch. 216, sec. 3. The cost-of-living adjustment in the earlier medical malpractice cap was removed. Cf. K.S.A. 60-19a02; K.S.A. 1986 Supp. 60-3407(d). K.S.A. 60-19a02 now places a $250,000 limitation on noneconomic damages in all personal injury actions, including medical malpractice claims, accruing on or after July 1, 1988. K.S.A. 60-19a02(f).
In 1990, a majority of this court upheld the 1988 statute’s constitutionality. Samsel II, 246 Kan. at 338. Since then, this court has considered other “tort reform” statutes, as they are commonly characterized, upholding some and declaring others unconstitutional. See Bair v. Peck, 248 Kan. 824, 845, 811 P.2d 1176 (1991) (K.S.A. 40-3403[h] does not violate the right to jury trial, right to remedy, or equal protection by eliminating vicarious liability of health care providers in certain circumstances); Thompson v. KFB Ins. Co., 252 Kan. 1010, 1022-23, 850 P.2d 773 (1993) (K.S.A. 60- 3802 violated equal protection by allowing evidence of collateral source benefits in personal injury cases when plaintiff sought more than $150,000 in damages); Smith v. Printup, 254 Kan. 315, 332-33, 866 P.2d 985 (1993) (K.S.A. 60-3701 et seq., does not violate right to jury trial by requiring courts to decide punitive damages); Aves v. Shah, 258 Kan. 506, 524, 527, 906 P.2d 642 (1995) (K.S.A. 40-3403[e] and K.S.A. 40-3412[c] do not violate Section 18 due process or equal protection by prohibiting bad faith actions against the Health Care Stabilization Fund); Bonin v. Vannaman, 261 Kan. 199,217-19, 929 P.2d 754 (1996) (K.S.A. 60-515[a] does not violate Section 18 right to remedy or equal protection by setting an 8-year statute of repose for minors or persons with legal disability); Lemuz v. Fieser, 261 Kan. 936, 960, 933 P.2d 134 (1997) (K.S.A. 65-442[b] does not violate Section 18 right to remedy by abrogating corporate negligence claims against any medical care facility for allowing a physician, who is not an agent or employee, to work on its staff).
Miller argues the statutory cap violates: (1) the right to jury trial under Section 5 of the Kansas Constitution Bill of Rights; (2) the right to remedy by due course of law under Section 18 of the Kansas Constitution Bill of Rights; (3) the equal protection provision of Section 1 of the Kansas Constitution Bill of Rights; and (4) the doctrine of separation of powers. Miller urges us to revive the reasoning in Kansas Malpractice Victims, which struck down tire 1986 cap and found that statute unconstitutional. Johnson counters that our 1990 Samsel II decision, which more recendy upheld the current statute’s constitutionality, is the binding precedent that should resolve future court rulings on this subject. The amici take various positions in concert with their respective interests, which we address when necessary.
Standard of Review for Challenges to a Statute’s Constitutionality
“Courts are only concerned with the legislative power to enact statutes, not with the wisdom behind those enactments.” Samsel II, 246 Kan. at 348. Our standard of review is well known. When a statute’s constitutionality is attacked, the statute is presumed constitutional and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe that statute as consti- Rationally valid, this court has the authority and duty to do so. Rural Water District No. 2 v. City of Louisburg, 288 Kan. 811, 817, 207 P.3d 1055 (2009) (citing Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 629-30, 176 P.3d 938 [2008]). Appellate courts conduct unlimited review of questions regarding a statute’s constitutionality because they are issues of law. Brennan v. Kansas Insurance Guaranty Assn, 293 Kan. 446, 450, 264 P.3d 102 (2011).
Section 5 Analysis—the Right of Trial by Jury
Section 5 of the Kansas Constitution’s Bill of Rights protects tire right to trial by jury. It states: “The right of trial by jury shall be inviolate.” This right is “a basic and fundamental feature of American jurisprudence.” Gard v. Sherwood Construction Co., 194 Kan. 541, 549, 400 P.2d 995 (1965). “It is a substantial and valuable right and should never be lightly denied. The law favors trial by jury, and the right should be carefully guarded against infringements.” 194 Kan. at 549.
Our court has consistently held that Section 5 preserves the jury trial right as it historically existed at common law when our state’s constitution came into existence. State ex rel v. City of Topeka, 36 Kan. 76, 85-86, 12 P. 310 (1886) (Section 5 means “the right of trial by jury shall be and remain as ample and complete as it was at the time when the constitution was adopted.”); Kimball and Others v. Connor, Starks and Others, 3 Kan. 414, 432 (1866). And the parties correctly do not dispute that common-law tort actions, including medical malpractice claims, were historically triable to a jury. See, e.g., Kansas Malpractice Victims, 243 Kan. at 342-43. There is also correctly no dispute that the amount of damages, including noneconomic damages, was a question of fact determined by the jury in common-law tort actions. See Samsel II, 246 Kan. at 350-52, 358.
Miller argues the cap unconstitutionally supplants the jury’s role in assessing damages according to the evidence adduced at trial with an arbitrary number picked by legislators. Johnson disagrees, claiming the jury’s function is unimpeded by the statute because the jury is not told to award damages up to $250,000. Instead, it is instructed to determine the amount of money that will “fairly and adequately compensate” the plaintiff. See PIK Civ. 4th 171.02. Johnson further contends the statutory cap simply operates to prevent the district court from entering a judgment against a defendant that is more than $250,000 for noneconomic damages. Johnson argues this postverdict exercise does not infringe on the jury’s actual function, so the right to jury trial is not implicated by the statute and there is no constitutional issue presented under Section 5. See also Justice McFarland’s concurrence in Samsel II, 246 Kan. at 363 (right to jury trial does not extend to remedy phase of trial).
But we need not engage these contentions for long because our caselaw already makes clear that Miller’s personal injury claims against her doctor are subject to Section 5 protections. See Samsel II, 246 Kan. at 358 (damages are a jury issue under Section 5); Kansas Malpractice Victims, 243 Kan. at 342-43 (actions for recovery of damages for negligent injury were triable to a jury under tire common law, so Section 5 guarantees the right to a trial by jury in medical malpractice actions); Gard, 194 Kan. at 549 (parties entitled to jury trial as a matter of right in common law action for damages based on negligence claim). And given the jury’s historic role in determining noneconomic damages based on tíre facts of each case, we follow our existing caselaw and hold that K.S.A. 60-19a02 encroaches upon the rights preserved by Section 5. This encroachment, however, does not necessarily render K.S.A. 60-19a02 unconstitutional under Section 5.
Our court has long recognized that the legislature may modify the common law in limited circumstances without violating Section 5. See Samsel II, 246 Kan. at 358; Kansas Malpractice Victims, 243 Kan. at 344; Manzanares v. Bell, 214 Kan. 589, 616, 522 P.2d 1291 (1974); Shade v. Cement Co., 93 Kan. 257, 260, 144 Pac. 249 (1914). And neither party challenges the legislature’s authority to modify the common law without violating Section 5-—an argument that would have been contrary to our prior caselaw. Instead, Miller and Johnson dispute the extent of the limitations that exist on this legislative power.
We begin our analysis by examining how this court has previously addressed the limitations on the legislative power to modify common-law rights under Section 5 by tying that determination to the substitute remedy analysis used in Section 18 right-to-remedy cases—commonly referred to as a “quid pro quo” (this for that). Our caselaw derives from decisions upholding the state’s workers compensation system and no-fault automobile insurance, as well as conflicting decisions dealing with health care provider insurance availability and general tort litigation. We consider this next.
In Shade, the first decision addressing Section 5, this court considered a constitutional challenge to the state’s original workers compensation system, which was enacted early in the 20th century. This statutory scheme represented a significant public policy shift in how injured workers could recover for on-the-job injuries because it abolished a worker’s common-law right to sue an employer or fellow employee and denied the worker tire right to have a jury determine damages. See Injured Workers of Kansas v. Franklin, 262 Kan. 840, 852, 942 P.2d 591 (1997) (“In 1911, the legislature abolished a plaintiff s right to sue an employer for damages caused by tire negligence of the employer. In place of this right, the legislature gave employees the Workers Compensation Act.”). The Shade court expressly held that Section 5 was not an impediment to the legislature’s authority to enact the workers compensation system. Shade, 93 Kan. at 260 (“The objection based upon the supposed deprivation of a right of trial by jury is equally untenable, as determined in many adjudicated cases.”).
But the Shade court’s holding did not articulate the analytical basis for its decision on the Section 5 challenge. This has led some post-Shade decisions and the dissenters in this case to interpret Shade as upholding the legislation solely upon an opt-out provision that permitted employees and employers to elect out of the system prior to a claim occurring. See Kansas Malpractice Victims, 243 Kan. at 344 (commenting that Shade “upheld the validity of worker’s compensation legislation because coverage under the act was elective”). This view, however, can be criticized as an oversimplification of the statute. The opt-out provision in the original workers compensation law was entirely passive in nature, and its effect was not based on a knowing and voluntary waiver or affirmative consent. Instead, tire law upheld in Shade abolished an injured worker’s “inviolate” right to a jury trial as stated in Section 5 even though the worker had done nothing to accept the benefits under the statute or forego his or her constitutional right to a jury trial. The statute simply took away this inviolate right unless the worker performed an intentional act to preserve it by opting out of the statutory provisions. Thus, the Shade decision’s influence on any Section 5 analysis cannot be as easily discarded as the dissent argues.
Regardless, the opt-out provision was removed in 1974, making the system mandatory for both employees and employers. L. 1974, ch. 204, sec. 8 (amending K.S.A. 44-505). And our more recent decisions emphasize that the Workers Compensation Act constitutionally balances the interests of employees and employers—a balance described as an adequate quid pro quo. See, e.g., Injured Workers of Kansas, 262 Kan. at 852 (“In place of [an employee’s right to sue the employer], the legislature gave employees the Workers Compensation Act, which is supposed to provide a quick, set amount Qf money, without proof of employer negligence, for all employees injured on the job.”); Rajala v. Doresky, 233 Kan. 440, 441, 661 P.2d 1251 (1983) (“The Workmen’s Compensation Act removes certain common law remedies for injured employees but provides a statutory substitute therefor. This is basically a matter of public policy . . . .”). Most recently in Scott v. Hughes, 294 Kan. 403, 275 P.3d 890 (2012), this court noted the act’s quid pro quo by explaining:
“The Kansas Workers Compensation Act nullifies employee common-law rights to sue in tort in exchange for guaranteed but limited recovery in an administrative system with judicial review. Covered workers no longer may exercise their common-law rights to sue employers for work-related injuries, but they can count on certain, limited compensation. The Act also makes a trade for covered employers: They need no longer fear unlimited liability on employee claims, but they must purchase insurance or otherwise provide for guaranteed payment of the compensation amounts dictated.” 294 Kan. at 413.
Similar reasoning in Section 5 challenges has been applied to other comprehensive legislation impacting a litigant’s common-law rights. In Manzanares, this court considered the statutory scheme commonly known at the time as the Kansas No-Fault Insurance Act. Among other provisions, the Act denied a Section 5 right-to- jury trial and recovery for pain and suffering resulting from a motor vehicle accident unless the injured party incurred more than $500 in medical services or suffered a statutorily designated injury. In deciding there was no Section 5 violation, the Manzanares court followed Shade by recognizing the legislature’s limited power to modify the common law without infringing on the right to jury trial. 214 Kan. at 599 (“The decisions of this court are replete with instances of common-law rights being modified or abolished.”). As the Manzanares court put it, “We have previously held the Legislature has the power to modify the common law. Section 5 of our Bill of Rights does not bar those changes.” 214 Kan. at 616.
Manzanares also held that modifications of common-law rights were acceptable so long as the due process requirements of Section 18 were satisfied. 214 Kan. at 599; Kansas Malpractice Victims, 243 Kan. at 343-44 (explaining Manzanares). And it is noteworthy that no member of the Manzanares court dissented from its Section 5 holding, even though three justices wrote separately to concur with or dissent from other portions of the decision.
Fourteen years after Manzanares, this court determined that the Section 5 right to jury trial was violated in Kansas Malpractice Victims. In foat decision, the-majority declared unconstitutional K.S.A. 1986 Supp. 60-3407, which limited noneconomic damages in medical malpractice actions to $250,000 and total damages to $1 million and required an annuity for payment of future none-conomic loss. Kansas Malpractice Victims, 243 Kan. 333, Syl. In arriving at this outcome, the analytical model the court used applied the prior quid pro quo caselaw that developed in the areas of workers compensation and no-fault automobile insurance. Relying on Manzanares, the majority acknowledged again that the legislature had the limited power to modify the right to jury trial within the confines of due process, stating:
“[T]he legislature can modify the right to a jury trial through its power to change the common law. [Citation omitted.] This power, however, is not absolute. Under Manzanares, any statutory modification of the common law must meet due process requirements and be ‘reasonably necessary in the public interest to promote the general welfare of the people of the state.’ [Citation omitted.] Due process requires that the legislative means selected have a real and substantial relation to Ae objective sought. [Citation omitted.] One way to meet due process requirements is through substitute remedies. ‘We have never held one to have a vested right in the common-law rules governing negligence actions so as to preclude substituting a viable statutory remedy.’ Manzanares v. Bell, 214 Kan. at 599.” (Emphasis added.) Kansas Malpractice Victims, 243 Kan. at 343-44. ■
The court agreed that due process constraints were satisfied when the legislature provides an adequate substitute remedy, or “quid pro quo,” when modifying common-law rights. And for this holding, the Kansas Malpractice Victims court referred its analysis back to Rajala, noting that although the workers compensation system removed certain common-law remedies for injured workers, it also provided a statutory substitute for those changes. 234 Kan. at 344 (“The Rajala court upheld the [workers compensation] legislation because the legislature provided, as a substitute, a viable statutory remedy.”). The Kansas Malpractice Victims majority stated:
“Just as tlie rights secured by Section 5 are not absolute, neiAer are the rights secured by Section 18 [remedy by due course of law]. Over Ae years, the court has allowed Ae legislature to moAfy reme&es when required by public policy. [Citation omitted.] However, as with Section 5, the court looks to insure that due process requirements are met and, when a common-law remedy is modified or abolished, an adequate substitute remedy must be provided to replace it.” (Emphasis added.) 243 Kan. at 346-47.
In other words, Kansas Malpractice Victims, which was the first case by this court to consider a Section 5 challenge to a statutory cap on juiy-assessed damages, applied a quid pro quo analysis as it found had been done explicitly in Rajala and Manzanares, and implicitly in Shade. But the difference was that the majority in Kansas Malpractice Victims determined that the legislature’s substitution of remedies was inadequate—on balance—after applying the quid pro quo analytical model. This outcome, however, was short-lived.
In Samsel II, this court revisited the adequate substitute remedy issue when addressing the current statutory cap on noneconomic damages, which was applicable to all personal injury plaintiffs, including medical malpractice. The Samsel II court concluded that K.S.A. 1988 Supp. 60-19a01 did not violate a personal injury plain tiff s right to jury trial under Section 5 or the right to remedy under Section 18. The majority followed the process set out in Kansas Malpractice Victims to decide the adequacy of the substituted rights, specifically: (1) the modification must be reasonably necessary in the public welfare, and (2) “the legislature [must] substitute the viable statutory remedy of quid pro quo (this for that) to replace the loss of the right.” Samsel II, 246 Kan. at 358, 361.
The difference in outcomes from Kansas Malpractice Victims is that Samsel II held that tort victims did receive an adequate substitute benefit in exchange for the legislative cap because the statute restricted a trial court’s common-law power of remittitur to reduce a noneconomic damages award in excess of $250,000. Sam-sel II reasoned that Kansas Malpractice Victims had “left unanswered” the question of whether this limitation on the trial court’s power to reduce an award below $250,000 provided a sufficient quid pro quo but concluded the two decisions were consistent in their approaches to the legal question presented. 246 Kan. at 358-59.
Moving now to Miller’s right to jury trial argument, we face two questions in light of our Section 5 caselaw. First, should this court continue to use a quid pro quo analysis to determine whether the legislature properly exercised its power to modify a common-law jury trial right? If the answer to that question is yes, then we consider a second question: Has the legislature provided an adequate substitute for the jury trial right obstructed by the noneconomic damages cap? On the first question, the majority of this court holds the quid pro quo analysis should continue to apply to a Section 5 claim of encroachment on the right to jury trial to remain consistent with our caselaw. We explain that holding next.
The doctrine of stare decisis maintains that once a point of law has been established by a court, it will generally be followed by the same court and all courts of lower rank in subsequent cases when the same legal issue is raised. A court of last resort will follow that rule of law unless clearly convinced it was originally erroneous or is no longer sound because of changing conditions and that more good than harm will come by departing from precedent. Rhoten v. Dickson, 290 Kan. 92, 112, 223 P.3d 786 (2010). Stare decisis “promote[s] system-wide stability and continuity by ensuring the survival of decisions that have been previously approved by a court.” ’ ” Crist v. Hunan Palace, Inc., 277 Kan. 706, 715, 89 P.3d 573 (2004) (quoting Samsel II, 246 Kan. at 356). “Judicial adherence to constitutional precedent ensures that all branches of government, including the judicial branch, are bound by law.” Samsel II, 246 Kan. at 356.
A quid pro quo analysis in Section 5 challenges to the legislature’s limitations on recovery for personal injuries has been employed by this court in varied contexts, including workers compensation (Ra-jóla,I, no-fault automobile insurance coverage (Manzanares), medical malpractice (Kansas Medical Malpractice Victims), and general tort litigation (Samsel II). To retreat from that analysis now, our court would have to overrule those cases and embark on á new analytical model that would collaterally create uncertainty about the constitutionality of the Workers Compensation Act, which has been upheld since our 1914 decision in Shade, and what is now known as tire Kansas Automobile Injury Reparations Act, upheld since our 1974 decision in Manzanares. See Samsel II, 246 Kan. at 361.
In addition, there is a link between Section 5 and Section 18 issues in a damages case such as this, so it seems logical when dealing with statutory caps to have Section 5 and Section 18 encroachments measured against the same standard as has been done in our prior caselaw. As discussed in greater detail below, our case-law dealing with Section 18 right-to-remedy issues is well entrenched using a quid pro quo analysis and it simply makes sense to have the same analytical model for Section 5. After all, none-conomic damages are a subset of compensatory damages; therefore, the statutory cap impacts a plaintiff s compensatory damages, which is a category of remedy at common law protected by Section 18. Smith v. Printup, 254 Kan. 315, 325, 866 P.2d 985 (1993). Moreover, the quid pro quo model readily allows the legislature to understand that it must provide an adequate and viable substitute when modifying a common-law jury trial right under Section 5 or right to remedy under Section 18.
Accordingly, we are not clearly convinced use of the quid pro quo model was originally erroneous or is no longer sound because of changing conditions, or that more good than harm would come by departing from this precedent. See Rhoten, 290 Kan. at 112. And while our court has come to different outcomes after employing the quid pro quo analysis in Section 5 challenges, this does not detract from its viability as an analytical model to determine such challenges. See Bair v. Peck, 248 Kan. 824, 844, 811 P.2d 1176 (1991) (Adequacy of the substitute remedy as it applies to comprehensive remedial legislation must be made on a case-by-case basis.); Lemuz v. Fieser, 261 Kan. 936, Syl. ¶ 6, 933 P.2d 134 (1997) (In considering the adequacy of the quid pro quo of comprehensive legislation that substitutes a statutory remedy for one that formerly existed at common law, “no hard and fast rule can apply to all cases.”).
We hold that a quid pro quo analysis is appropriate for determining Millers Section 5 right-to-juiy trial claims against K.S.A. 60-19a02. We will employ that analysis below after discussing the Section 18 challenge next.
Section 18 Analysis—the Right to Remedy
Section 18 of the Kansas Constitution Bill of Rights guarantees the right to a remedy. It states: “All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay.” This right has been found since our early caselaw to mean “reparation for injury, ordered by a tribunal having jurisdiction, in due course of procedure and after a fair hearing.” Hanson v. Krehbiel, 68 Kan. 670, Syl. ¶ 2, 75 Pac. 1041 (1904).
As with Section 5, there is no dispute that Section 18 guarantees are implicated when the legislature imposes statutory caps on no-neconomic damages for personal injury plaintiffs, such as medical malpractice victims like Miller. Section 18 provides “an injured party ... a constitutional right to be made whole and a right to damages for economic and noneconomic losses suffered.” Samsel II, 246 Kan. at 353. The purpose of economic and noneconomic damages is to make the injured party whole by restoring the person to the position he or she was in prior to the injury. See Samsel II, 246 Kan. at 352-53; Kansas Medical Malpractice Victims, 243 Kan. at 350 (right to a remedy is infringed by statute limiting recovery for noneconomic loss, overall loss, and forcing plaintiffs to accept their award over a number of years through an annuity contract); Neely v. St. Francis Hospital £ School of Nursing, 192 Kan. 716, 720-21, 391 P.2d 155 (1964) (Section 18 applied to recovery for personal injuries suffered from negligent administration of a vaccination).
The issue here is whether the statutoiy cap on noneconomic damages violates Section 18 by denying Miller a remedy by due course of law because she cannot recover more than $250,000 for her noneconomic damages. We have previously employed in Section 18 challenges the same quid pro quo analysis as discussed above regarding Section 5 to determine whether the legislature provided an adequate substitute remedy for the common-law right affected. See, e.g., Manzanares, 214 Kan. at 599. In Manzanares, this court upheld the mandatory no-fault automobile insurance laws against a Section 18 attack, stating:
“While Section 18 of the Bill Rights provides a broad field for the protection of persons, property and reputation, the vested lights contained therein are subject to change by legislative power, where die change is reasonably necessary in the public interest to promote the general welfare of the people of the state. We have never held one to have a vested right in the common-law rules governing negligence actions so as to preclude substituting a viable statutory remedy for common law causes of action." (Emphasis added.) 214 Kan. at 599.
We have repeated this language, or referred back to it, on numerous occasions. See, e.g., Bair, 248 Kan. at 839; State ex rel. Schneider v. Liggett, 223 Kan. 610, 613, 576 P.2d 221 (1978). And in more recent years, the quid pro quo test for a Section 18 analysis has articulated the second part of the test as requiring an “adequate” substitute remedy instead of a “viable” statutory remedy, but there appears to be little substantive difference in the terminology. Cf. Lemuz, 261 Kan. 936, Syl. ¶ 4; Bonin v. Vannaman, 261 Kan. 199, Syl. ¶ 11, 929 P.2d 754 (1996). Accordingly, we apply next the quid pro quo analysis for both Section 5 and Section 18 purposes.
Sections 5 and 18 Quid Pro Quo Analysis
A two-step analysis is required for the quid pro quo test. For step one, we determine whether the modification to the common-law remedy or the right to jury trial is reasonably necessaiy in the public interest to promote foe public welfare. This first step is similar to foe analysis used to decide equal protection questions under foe rational basis standard. Lemuz, 261 Kan. at 948. For step two, we determine whether foe legislature substituted an adequate statutory remedy for the modification to foe individual right at issue. This step is more stringent than foe first because even if a statute is consistent with public policy, there still must be an adequate substitute remedy conferred on those individuals whose rights are adversely impacted. Lemuz, 261 Kan. at 948; Bonin, 261 Kan. at 217-18; Aves v. Shah, 258 Kan. 506, 521-22, 906 P.2d 642 (1995); Samsel II, 246 Kan. at 358, 361; Manzanares, 214 Kan. at 599.
In Samsel II, which was the last time we considered whether foe $250,000 cap on noneconomic damages passed foe quid pro quo test, this court held that it did in a case involving a personal injury plaintiff. And because of that, we must decide first whether we can simply accept foe Samsel II rationale and perform foe quid pro quo analysis to result in Johnson’s favor. We are urged to do that by Johnson and several amici, but there are three principal reasons we will not rely on Samsel II for this case.
First, Samsel II was not a medical malpractice case affected by the Health Care Provider Insurance Availability Act, K.S.A. 40-3401 et seq. That Act requires health care providers to carry a minimum amount of insurance in order to practice in Kansas and also makes available additional excess coverage through the Health Care Stabilization Fund. See K.S.A. 40-3402 (mandatory coverage); K.S.A. 40-3408 (excess coverage). This mandated coverage for her doctor arguably gives Miller an individualized substitute remedy in foe form of a guaranteed source of recovery for some of her damages, and these same source-of-recovery provisions have been found to give other medical malpractice plaintiffs an adequate substitute remedy in other cases. Bair, 248 Kan. at 844; Aves, 258 Kan at 523-24; Lemuz, 261 Kan. at 959. This is something general tort litigants (such as the plaintiff in Samsel II) do not have, and these provisions should be considered as part of the quid pro quo analysis when applied to Miller s constitutional challenge to K.S.A. 60-19a02.
Second, the $250,000 cap on noneconomic damages has not increased since Samsel II. And as Miller points out without any real contradiction, the cap today provides less commensurate remedy than when the legislature set it in 1988. This is due, of course, to the reduction in buying power that accompanies inflation, and our court has made clear that it is possible for a substitute remedy that was adequate when originally enacted to become inadequate over time or because of changed circumstances. As we noted in Bair: “The legislature, once having established a substitute remedy, cannot constitutionally proceed to emasculate the remedy, by amendments, to a point where it is no longer a viable and sufficient substitute remedy.” (Emphasis added.) Bair, 248 Kan. at 844. The same can be said for inflationary effects and legislative inaction over time when dealing with a fixed dollar amount. Samsel II does not address this, and it is a legitimate issue for reflection in this case.
Third, Samsel II premised its inquiry at step two on an interpretation of K.S.A. 60-19a02(d)’s impact on a trial court’s authority to order a new trial that we cannot accept. K.S.A. 60-19a02(d) states in part that “[i]f the verdict results in an award for nonecon-omic loss which exceeds tire limits of this section, the court shall enter judgment for $250,000for all the party’s claims for nonecon-omic loss.” (Emphasis added.) The Samsel II court held the italicized language prohibits trial courts from awarding “less than $250,000 when higher damages are awarded by the jury.” Samsel II, 246 Kan. at 362. And from that construction, tire court reasoned that the cap protected personal injury plaintiffs from “conservative” judges, who might more drastically reduce a verdict below $250,000, and in that manner statutorily substituted an adequate remedy for the rights taken away by the cap. 246 Kan. at 361-62. But we hold that Samsel II erred on this point.
K.S.A. 2011 Supp. 60-259(a)(l)(C) and (D) authorize a trial court to order a new trial when it finds a verdict is the result of passion or prejudice, or is contrary to the evidence. The purpose for this authority is to allow a district court to remedy an improper jury verdict. Samsel II did not address this express statutory authority or consider whether there was any reason to believe K.S.A. 60-19a02 was intended to override K.S.A. 2011 Supp. 60-259(a)(1)(C) and (D).
As noted in the amici brief by Professors Rich and Concannon, the Samsel II analysis went beyond the plain language of K.S.A. 60-19a02(d) to speculate that the legislature intended to substitute those provisions as a remedy for the cap on noneconomic damages. For example, they point out that if a jury awards $400,000 in no-neconomic damages, it is illogical to believe the legislature expected a trial court to simply reduce the award to a flat $250,000— if the trial court believed the evidence supported an award less than $250,000. Otherwise, it would mean the legislature intended for that plaintiff to receive more than the evidence supported, which is highly unlikely. And nothing in the legislative history demonstrates a trial court was not supposed to continue exercising its ordinary powers of remittitur over excessive jury awards unsupported by the evidence. Samsel II read too much into K.S.A. 60-19a02(d) . We reject this portion of Samsel ITs holding.
For these reasons, we determine that Samsel II does not resolve whether an adequate substitute remedy exists for the encroachments on the Section 5 right to jury trial and Section 18 right to remedy caused by the $250,000 noneconomic damages cap set out in K.S.A. 60-19a02. Accordingly, we move next to the first step in the two-step analysis to consider whether the noneconomic damages cap is reasonably necessary in the public interest to promote the public welfare. Lemuz, 261 Kan. at 949. We hold that it is.
As noted in several of our prior cases, the legislature’s expressed goals for the comprehensive legislation comprising the Health Care Insurance Provider Availability Act and the noneconomic damages cap have long been accepted by this court to cany a valid public interest objective. 261 Kan. at 949 (ensuring quality health care availability in the state is a valid legislative objective that promotes the general welfare); Bonin, 261 Kan. at 216 (affordable and available malpractice insurance for doctors and the continued availa bility of health care in Kansas are legitimate state interests); Aves, 258 Kan. at 526 (same); State ex rel. Schneider, 223 Kan. at 620 (same). And in Farley v. Engelken, 241 Kan. 663, 684-85, 740 P.2d 1058 (1987) (Holmes, J., dissenting), the dissent more declaratively stated that it is “clear the court has accepted the legitimacy of the state’s interest in assuring the continued availability of health care to the citizenry and the legislature’s determination that a medical malpractice insurance crisis exists.”
Johnson correctly points out that Miller does not argue the legislature’s goals in making medical malpractice insurance readily available for the state’s health care providers do not fall within the public interest rubric. Instead, Miller contends the cap was—and is—not necessary to achieve those goals. But it is not necessary for a court to make a factual determination whether the cap definitely would lower insurance premiums, or has lowered them. The potential is enough. Lemuz, 261 Kan. at 949 (“Peer review has the potential to lower malpractice incidents, thereby lowering malpractice rates and thereby encouraging doctors to practice in Kansas.”). Given this, our caselaw generally settles the first step in the quid pro quo analysis in favor of the statute’s constitutionality.
Moving to the second step, we must determine whether the legislature substituted an adequate statutory remedy for the modification of the individual rights at issue, which in this case concerns the constitutional protections afforded to Miller by Section 5 and Section 18. Lemuz, 261 Kan. at 948. We hold that it does.
We begin by considering what Miller has lost and try to put that loss in perspective with our prior caselaw and the legislation that impacts her recovery in this litigation. For Miller, the noneconomic damages cap unquestionably functions to deprive her of a portion of her noneconomic damages, which the jury awarded based upon the evidence presented at trial. Miller’s loss must be viewed as being significantly more serious than deprivations found in some of our cases that previously embarked on the quid pro quo analysis. See e.g., Lemuz, 261 Kan. 936 (abrogation of corporate negligence action); Aves, 258 Kan. 506 (prohibiting bad faith actions against the Health Care Stabilization Fund); Bair, 248 Kan. 824 (eliminating vicarious liability of employer health care providers); Man- zanares v. Bell, 214 Kan. 589, 522 P.2d 1291 (1974) (prohibiting suit below a minimum threshold). But she has not been left without any compensation for her loss as other plaintiffs in some of our other cases. See Bonin, 261 Kan. 199 (special statute of repose for minors and persons with legal disability); Rajola v. Doresky, 233 Kan. 440, 440, 661 P.2d 1251 (1983) (fellow employee immunity in workers compensation statutes); Neely, 192 Kan. at 716 (immunity from judgment for nonprofit hospitals).
It is also noteworthy that there is no cap on total damages awarded in the verdict. This is not true in all states, as some jurisdictions limit the total damages receivable. See, e.g., Colo. Rev. Stat. § 13-64-302 (2011) ($300,000 limit on noneconomic damages in medical malpractice actions; $1 million total cap); Ind. Code § 34-18-14-3 (2008) ($1,250,000 total cap); Neb. Rev. Stat. § 44-2825 (2010) ($1.75 million total cap in medical malpractice actions). Therefore, the deprivation caused by K.S.A. 60-19a02, although very real, is limited in its scope. This is a substantial consideration when deciding how adequate the substitute remedy provided by the legislature must be.
In addition, major statutory enactments establishing a broad, comprehensive statutory remedy or scheme of reparations in derogation of a previously existing common-law remedy may be subsequently amended or altered without each such subsequent change being supported by an independent and separate quid pro quo. Lemuz, 261 Kan. at 955 (citing Bair, 248 Kan. at 842). Our caselaw does not require us to look only to a contemporaneous quid pro quo within the same statutory enactment containing the noneconomic damages cap.
As a medical malpractice plaintiff, Miller’s damages cap operates within the context of the comprehensive statutory scheme created in tire Health Care Provider Insurance Availability Act. And as mentioned, the Act mandates that all health care providers—as a condition to providing health care services in Kansas—maintain professional- liability insurance with an approved company of not less than $200,000 per claim, subject to not less than a $600,000 annual aggregate for all claims made during the policy period. K.S.A. 40-3402(a). It also requires that health care providers elect one of three levels of excess coverage from the Health Care Stabilization Fund, ranging from $100,000 to $800,000. K.S.A. 40-3403(1). And i.t requires that every health care insurer participate in an apportionment plan so that health care providers who are entitled to insurance, but unable to acquire it through ordinary methods, may obtain insurance. K.S.A. 40-3413(a). These provisions make the prospects for recovery of at least die statutory mín-imums directly available as a benefit to medical malpractice plaintiffs when there is a finding of liability. This is something many other tort victims do not have.
In both Bair and Lemuz, we found these mandatory insurance and excess coverage provisions gave an adequate substitute remedy for the modification of common-law remedies at issue in those cases. See Bair, 248 Kan. 824 (abrogation of corporate negligence action); Lemuz, 261 Kan. 949 (eliminating vicarious liability of employer health care providers). And in the context of our workers compensation and no-fault automobile insurance caselaw, we have found the requirement of reliable sources of partial recovery for serious injuries to be significant in the quid pro quo analysis in deciding what constituted an adequate substitute remedy. See, e.g., Rajala, 233 Kan. 440.
For Miller, having an available source of recovery of the statutorily mandated mínimums provides her with a significant, individualized substitute remedy. And as pointed out by more than one amici, a judgment that cannot be collected is worthless. So under this statutory scheme, Miller has an obvious direct benefit not available to all others. But this alone does not necessarily settle the question whether the legislatively substituted remedy is adequate. Also important is the amount of tire cap; and as to this, there is a reasonable question as to the continued adequacy of the $250,000 limitation that has admittedly devalued over time due to the legislature’s failure to adjust it. We must consider this question next.
Miller cites the Consumer Price Index Inflation Calculator to argue that in 2007 dollars, the cap was equivalent to $142,223.37, which represents a 57 percent erosion in buying power since 1988. And we note the original 1986 cap on noneconomic damages in medical malpractice actions provided for annual adjustments based on the consumer price index. K.S.A. 1986 Supp. 60-3407(d). But this cost-of-living adjustment is no longer part of the statutory scheme. See K.S.A. 60-19a02.
Johnson urges tire court to reject tire argument that inflation has rendered the quid pro quo to Miller inadequate. Drawing from tire language in Manzanares, 214 Kan. at 611, the doctor argues that, “ ‘[wjhen it is seen that a line or point there must be, and there is no mathematical or logical way of fixing it precisely, the decision of the legislature must be accepted unless we can say that it is very wide of any reasonable mark.’ ” Johnson also points out that other states’ legislative bodies have more recently considered enacting a noneconomic damages cap of $250,000, suggesting that this shows “Miller cannot establish that inflation has rendered $250,000 Very wide of any reasonable mark’ in 2008.” Similarly, some amici briefs point out that our legislature has considered—but rejected—increasing the cap on numerous occasions, which they argue implies a substantive determination by lawmakers that the cap remains adequate.
But Johnson’s rebanee on Manzanares occurs out of context. The passage the doctor recites was considering the $500 threshold the legislature set for denying a plaintiffs ability to file a claim for nonpecuniary damages. It was not considering a legislatively determined amount that would serve as the adequate substitute remedy for the deprivation of rights caused by that threshold. 214 Kan. at 611. Instead, what was decided in Manzanares to be the adequate substitute remedy was the direct benefit to motor vehicle accident victims of ready payment for certain damages that were guaranteed by the statutorily required insurance levels. 214 Kan. at 599 (“T]he Kansas No-Fault Act assures all motor vehicle accident victims of prompt, efficient payment of certain economic losses. To tire extent there is a limitation on a person’s abihty to receive non-pecuniary damages, the rights received in exchange are no less adequate.”). Johnson seriously misreads Manzanares as to this point.
Moreover, the “wide of any reasonable mark” standard from our caselaw referenced by Johnson derives from the rational basis standard applied in equal protection cases. See, e.g., Peden v. Kansas Dept, of Revenue, 261 Kan. 239, 258-59, 930 P.2d 1 (1996) (discussing equal protection); State ex rel. Schneider, 223 Kan. at 619. And while we already give deference to the legislature in step one of the quid pro quo analysis when determining whether a modification to a common-law right is reasonably necessary in the public interest to promote the public welfare, the analysis in step two is a more stringent test. And the issue is whether there is an adequate substitute right in the place of the Section 5 and Section 18 rights diluted by the legislation—not whether tire legislature acted wide of any reasonable mark. To give the same deference to legislative decision-malting at the second step of the quid pro quo test as the first would reduce the analysis to one step. The protections afforded by Section 5 and Section 18 are not simply aspirational statements easily vulnerable to legislative encroachment. Samsel II, 246 Kan. at 348 (“Our constitution does not make this court the critic of the legislature; rather, this court is the guardian of the constitution . . . .”); Tri-State Hotel Co. v. Londerholm, 195 Kan. 748, 760, 408 P.2d 877 (1965) (same).
As to tire fact that there are other states with a $250,000 cap on noneconomic damages and other jurisdictions that recently considered setting a cap at that amount, our review of other states’ legislation shows it is difficult to accurately—and fairly—compare what other states do in this regard. For example, there are wide variations in specific provisions, such as method of computation, statutory exceptions for permanent disfigurement or gross negligence, annual adjustments for inflation, and applicability per occurrence, per claimant, and per defendant. See Hubbard, The Nature and Impact of the “Tort Reform” Movement, 35 Hofstra L. Rev. 437, 497-99 (Winter 2006) (attempting to summarize various state caps provisions and providing examples of the unique variations and ranges involved). We find Johnson’s argument based on other states’ legislation unpersuasive.
This leads us to Miller’s argument that the passage of time has rendered the statutory cap unconstitutional. And admittedly, the legislature’s failure to increase the $250,000 cap on noneconomic damages over the more than 20 years since it first set that amount is troubling to this court. To be sure, the legislature has periodically increased other statutorily mandated limits on liability. For example, the legislature has increased an employer s liability for workers compensation benefits under K.S.A. 44-510f. Cf. L. 1974, ch. 203, sec. 16 ($50,000); L. 1979, ch. 156, sec. 8 (increasing employers liability to either $75,000 or $100,000); L. 1987, ch. 187, sec. 8 (increasing it to $100,000 and $125,000 respectively); L. 2011, ch. 55, sec. 10 (increasing some benefit limits to $130,000 and $155,000). The legislature has also increased the limits on damages recoverable in wrongful death actions under K.S.A. 60-1903. Cf. L. 1984, ch. 214, sec. 1 ($100,000 limitation on nonpecuniaiy loss); L. 1998, ch. 68, sec. 1 (increased to $250,000 limit on nonpecuniary loss). The legislature has also tied a fixed dollar amount to a consumer price index in other circumstances. See, e.g., K.S.A. 20-2609 (adjusting judicial retirement benefits after disability benefits by considering consumer price index for urban consumers); K.S.A. 74-4927 (same for public employees retirement system).
But despite our concern, we cannot say at this time that the legislature’s failure to increase the statutory cap has sufficiently diluted the substitute remedy to render the present cap clearly unconstitutional when viewed in light of the other provisions in the Act that directly and exclusively benefit a medical malpractice plaintiff. As we have noted previously, “[e]ach case must be decided on its own merit, for our law does not require a complete balance and equality between the benefits conferred by statute in the place of the common-law remedy.” KPERS v. Reimer & Roger Assocs., Inc., 261 Kan. 17, 39, 926 P.2d 466 (1996). We hold that the legislature has substituted an adequate statutory remedy for the modification of the individual rights at issue, which in this case concern the constitutional protections afforded to Miller by Section 5 and Section 18.
Equal Protection Analysis
Equal protection rights derive from Section 1 of the Kansas Constitution Bill of Rights, which states: “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.” Section 1 and the Fourteenth Amendment to the United States Constitution provide virtually the same protections. Board of Miami County Comm’rs v. Kanza Rail-Trails Conservancy, Inc., 292 Kan. 285,315,255 P.3d 1186 (2011). An equal protection analysis has three steps.
The first is to determine the nature of the statutoiy classification and whether that classification results in arguably indistinguishable classes of individuals being treated differently. The Section 1 Equal Protection Clause is only implicated if there is differing treatment among similarly situated individuals. Kanza Rail-Trails Conservancy, 292 Kan. at 315. The party challenging the statute’s constitutionality has the burden of demonstrating he or she is similarly situated to others treated differently. State v. Huerta, 291 Kan. 831, 834, 247 P.3d 1043 (2011). The second step examines the rights affected by the classification because the nature of those rights dictates the level of scrutiny applied to justify the classification. There are three levels of scrutiny: (1) the rational basis standard to determine whether a statutory classification bears some rational relationship to a valid legislative purpose; (2) a heightened or intermediate scrutiny to determine whether a statutory classification substantially furthers a legitimate legislative purpose; and (3) the strict scrutiny standard to determine whether a statutoiy classification is necessary to serve some compelling state interest. Kanza Rail-Trails Conservancy, 292 Kan. at 316. The final step requires determining whether the relationship between the classifications and the object desired to be obtained withstands the applicable scrutiny. 292 Kan. at 316-
Miller begins her equal protection attack by arguing that the cap disparately impacts women and the elderly. And in the amici brief submitted by AARP et al., this argument is expanded to allege the cap has a disproportionate impact on children, racial and ethnic minority groups, and low-income persons. But as Johnson correctly points out, a facially neutral statute challenged under equal protection on the basis it has a discriminatory effect requires “not only that there is a disparate impact, but also that the impact can be traced to a discriminatory purpose.” Montoy v. State, 278 Kan. 769, 771, 120 P.3d 306 (2005) (quoting Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 272, 99 S. Ct. 2282, 60 L. Ed. 2d 870 [1979]). If we simply jump to that latter point, Miller offers nothing to show the cap was motivated by an intent to discriminate against women or the elderly, and neither does the AARP et al. Our own review of the legislative history fails to disclose any such discriminatory purpose. We hold the cap “is not unconstitutional based solely on its ‘disparate impact.’ ” Montoy, 278 Kan. at 771.
Next, Miller argues die statutory cap treats personal injury plaintiffs differently based on whether their noneconomic damages are higher or lower than $250,000. This is obviously true. A plaintiff who sustains less serious injuries is entitled to full compensation, while a plaintiff who sustains more than $250,000 in noneconomic damages is not. Therefore, step one is satisfied.
Moving to step two regarding the nature of the right affected and the level of scrutiny required, Miller contends the nonecon-omic damages cap should be evaluated under the strict scrutiny standard because it affects her fundamental rights of trial by jury and remedy by due course of law. But the problem with this strict scrutiny argument is that the jury trial right under Section 5 and the right to remedy under Section 18 have never been held to be fundamental rights for equal protection purposes. And while Miller cites Gard v. Sherwood Construction Co., 194 Kan. 541, 549, 400 P.2d 995 (1965), for the statement that the right to jury trial is “a fundamental feature of American jurisprudence” and Adams v. St. Francis Regional Med. Center, 264 Kan. 144, 173, 955 P.2d 1169 (1998), for a statement that tire right to a remedy is fundamental, these cases do not concern equal protection and neither supports declaring such rights “fundamental” for equal protection purposes. Thus, Miller’s rationale for applying strict scrutiny is not persuasive.
But we also take issue with Johnson’s claim that the rational basis test obviously applies based on our previous caselaw. For this claim, Johnson relies on language in Samsel II in which the court considered whether the cap met the “reasonably necessary” prong of the quid pro quo analysis. But neither Samsel II nor Kansas Malpractice Victims addressed whether the noneconomic damages caps in controversy violated equal protection. See Samsel II, 246 Kan. at 337, 363 (court’s decision addressed only Sections 5 and 18); Kansas Malpractice Victims, 243 Kan. at 352 (“We agree with the trial court that it malees no real sense to apply an equal protection argument analysis . . . when the result in the case is controlled by Sections 5 and 18 of the Kansas Bill of Rights.”). We decline to read such a holding into the Samsel II court’s analysis when addressing constitutional challenges not expressly addressed in that decision. Nevertheless, and for different reasons, we agree the rational basis standard applies to Miller’s equal protection challenge. We apply it because K.S.A. 60-19a02 is economic legislation.
It is well-established that statutes limiting liability and recovery of damages, like the restriction on noneconomic damages in K.S.A. 60-19a02, are considered social and economic legislation that trigger application of the rational basis test. See, e.g., Duke Power Co. v. Carolina Env. Study Group, 438 U.S. 59, 83, 98 S. Ct. 2620, 57 L. Ed. 2d 595 (1978) (statute limiting licensed nuclear power plants is “classic example” of economic regulation because it “accommodate[s] the ‘burdens and benefits of economic life’ ” and the rational basis test applies); KPERS v. Reimer & Roger Assocs., Inc., 261 Kan. 17, 41-43, 927 P.2d 466 (1996) (applying rational basis standard because statutory liability limitations for parties entering KPERS settlement agreement are social and economic legislation); Leiker v. Gafford, 245 Kan. 325, 363, 778 P.2d 823 (1989) (statute capping nonpecuniaiy damages in wrongful death action is economic legislation reviewed under rational basis standard). To satisfy tire rational basis standard under step three of the analysis, the statutory classification must bear some rational relationship to a valid legislative purpose. Kanza Rail-Trails Conservancy, 292 Kan. at 316. The party attacking a statute as facially unconstitutional for failing to satisfy the rational basis standard has the burden to negate every conceivable rational basis that might support the classification challenged. Downtown Bar and Grill v. State, 294 Kan. 188, Syl. ¶ 10, 273 P.3d 709 (2012).
Miller argues K.S.A. 60-19a02 fails to meet the rational basis standard, citing the information she proffered to the district court alleging there was no credible evidence of a medical malpractice insurance crisis or that it was caused by medical malpractice and tort litigation awards. From this, she argues no rational relationship exists between the statutory cap on noneconomic damages and the legislature’s objective of curing the medical malpractice insurance and liability insurance “crises” by lowering malpractice and liability insurance premiums.
But as we stated above in discussing the quid pro quo analysis, the legislative history and evidence offered by the parties and the amici show there was—and still is—conflicting evidence regarding the existence and causes of the medical malpractice insurance and liability insurance “crises” and whether there is any necessity for, or efficacy of, a cap on noneconomic damages. See Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464, 101 S. Ct. 715, 66 L. Ed. 2d 659 (1981) (“Where there was evidence before the legislature reasonably supporting the classification, litigants may not procure invalidation of the legislation merely by tendering evidence in court that the legislature was mistaken.”); United States v. Carolene Products Co., 304 U.S. 144, 154, 58 S. Ct. 778, 82 L. Ed. 1234 (1938) (“[if] it is evident from all the considerations presented to Congress, and Arose of which we may take judicial notice, that tire question is at least debatable!,] . . . that decision was for Congress, [and a] finding of a court arrived at by weighing the evidence . . . canfnot] be substituted for it”). See also Downtown Bar, 294 Kan. at 198 (citing Peden, 261 Kan. at 263) (legislative choice may be based on rational speculation unsupported by evidence or empirical data).
The legislature enacted K.S.A. 60-19a02 in an attempt to reduce and stabilize liability insurance premiums by eliminating both the difficulty with rate setting due to the unpredictability of nonecon-omic damages awards and the possibility of large noneconomic damage awards. See Report of the Citizens Committee on Legal Liability, pp. 5-7, 64 (1986) (insurers were setting premiums based on worst-case scenarios, resulting in high premiums and unavailability because some were reluctant to assume the liability risk); House Judiciary Committee Minutes, March 3, 1987 (testimony concerning the difficulty insurers had setting rates because none-conomic damages are unpredictable and limitless; the possibility of large awards hinders settlements; and reasonable cap would stabilize cost and availability over the long term); House Judiciary Committee minutes, January 21, 1986, January 22, 1986, and Jan- uaiy 23,1986 (testimony concerning effects of the severity of medical malpractice insurance claims on premium increases and unavailability of insurance; problems included the unpredictability of large awards, which hampers insurers’ ability to accurately predict losses and price their product accordingly; a cap on damages was necessary to stabilize premium rates and bring more insurers back into the market); Report on Kansas Legislative Interim Studies to the 1986 Legislature, pp. 846, 847 (Table VIII) (1985) (actuaries presented evidence concerning effect of various caps on Fund surcharges; estimated that a $1 million total cap with a cap of $500,000 on noneconomic damages could reduce Fund surcharge for 1986-87 by 3 percent and by 10 percent for 1987-88).
And although the applicable standard does not require it, there is evidence within the legislative history of K.S.A. 60-19a02 demonstrating a rational basis for limiting noneconomic damages and treating more egregiously injured plaintiffs differently by the setting of a statutoiy cap on such damages. We hold that it is “reasonably conceivable” under the rational basis standard that imposing a limit on noneconomic damages furthers the objective of reducing and stabilizing insurance premiums by providing predictability and eliminating the possibility of large noneconomic damages awards. See Downtown Bar, 294 Kan. at 195-99. We hold the statutoiy cap of K.S.A. 60-19a02 does not violate the equal protection guarantees of Section 1.
Separation of Powers Analysis
“The doctrine of separation of powers is not expressly set forth in either the United States or Kansas Constitutions. However, it has long been recognized that the veiy structure of our three-branch system gives rise to the doctrine.” State v. Beard, 274 Kan. 181, 185, 49 P.3d 492 (2002). “[T]he doctrine of separation of powers is an inherent and integral element of the republican form of government. . . .” Van Sickle v. Shanahan, 212 Kan. 426, 447, 511 P.2d 223 (1973). Miller argues that the noneconomic damages cap enacted by the legislature abolishes the judiciary’s authority to order new trials and robs judges of their judicial discretion by func- firming as a statutory remittitur effectively usurping the court’s power to grant remittiturs. We disagree.
In State ex rel. Stephan v. Kansas House of Representatives, 236 Kan. 45, Syl. ¶ 5, 687 P.2d 622 (1984), this court held that the legislative branch' impermissibly intruded upon the executive branch’s power by enacting a statute giving tire legislature control over administrative rules and regulations. We struck down the offending legislation, stating:
“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. [Citations omitted.] Generally speaking, the legislative power is the power to malee, 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. [Citation omitted.]” State ex rel. Stephan, 236 Kan. at 59.
And while these general descriptions of the power held by a branch of government suggests each occupies a separate sphere, “[i]n reality, there is an overlap and blending of functions, resulting in complementary activity by the different branches that makes absolute separation of powers impossible.” State ex rel. Morrison v. Sebelius, 285 Kan. 875, 883,179 P.3d 366 (2008). Therefore, we have held drat a usurpation of powers exists when one branch of government significantly interferes with the operations of another branch. And to make this determination, a reviewing court considers: (1) the essential nature of the power being exercised; (2) the degree of control by one branch over another; (3) tire objective sought to be attained; and (4) the practical result of blending powers as shown by actual experience over a period of time. State ex rel. Morrison, 285 Kan. at 884.
Article 3, section 1 of tire Kansas Constitution establishes tire source and extent of the judicial power that Miller contends is abrogated by the noneconomic damages cap. It states:
“The judicial power of this state shall be vested exclusively in one court of justice .... The supreme court shall have general administrative authority over all courts in this state.” Kan. Const, art. 3, § 1.
This provision makes clear that judicial power is exclusively vested in the unified court system, but it does not define what constitutes “judicial power.” Our caselaw has traditionally summarized the term as “the power to hear and determine a cause and the rights of the parties to a controversy, and to render a binding judgment or decree based on present or past facts under existing laws.” State v. Mitchell, 234 Kan. 185, 194, 672 P.2d 1 (1983). In addition, the constitution grants this court administrative authority over the Kansas court system, which has been described as the power to “promulgate and enforce reasonable rules regulating judicial administration and court procedure as necessary for the administration of justice.” Mitchell, 234 Kan. at 194.
But before turning to the merits of Miller s separation of powers argument, we address first Johnson’s threshold contention that this court already ruled against Miller on this challenge in Samsel I— the preliminary opinion released to inform the parties of the case’s outcome before the full Samsel II opinion could be prepared and filed. Johnson refers in isolation to the Samsel I answer to the certified question posed by the federal court: “Neither the original nor the amended version of 60-19a01 violates the Constitution of the State of Kansas.” (Emphasis added.) Samsel v. Wheeler Transport Services, Inc., 244 Kan. 726, 727, 771 P.2d 71 (1989). Johnson then stretches this court’s simple advisory to argue that by so broadly stating the statute did not violate the Kansas Constitution, this court “presumably” considered whether the statute violated the separation of powers and determined it did not. Such an argument, however, denies reality and ignores this court’s more complete analysis that followed in Samsel II, which clearly stated the constitutional claims the court reviewed. Samsel II did not address separation of powers. It held only that the statute did not violate Sections 5 (right to jury trial) and 18 (right to remedy by due process of law). Samsel II, 246 Kan. at 363. The doctor’s attempt to seize on the general language in Samsel I to extend its holding to the four comers of the Kansas Constitution is without merit.
Returning now to the arguments Miller advances, she contends K.S.A. 60-19a02 violates separation of powers because it abolishes the judiciary’s authority to order new trials if the juiy’s award is inadequate, and because it is an inflexible cap that robs judges of their judicial discretion by functioning as a statutory remittitur effectively usurping the court’s inherent, exclusive, and constitutionally protected power to grant remittiturs. Miller specifically argues that the cap “completely abolishes judicial discretion to award no-neconomic damages in any amount above or below $250,000.” Johnson counters that the court’s authority to grant remittitur or order a new trial exists only in the absence of a statute to the contrary and that “a general modification of the damages recoverable in personal injury cases is within the legislative power, not the judiciary.” The doctor also notes that a majority of courts considering this issue have held damages caps do not violate separation of powers.
Miller’s claim that K.S.A. 60-19a02 violates separation of powers because it unconstitutionally limits the trial court’s authority to order a new trial unless remittitur is accepted is premised upon this court’s holding in Samsel II that K.S.A. 60-19a02 prohibits a trial court from entering an award for less than $250,000, even if the evidence supports less. We overruled the Samsel II court’s analysis as to this issue in our quid pro quo discussion above, so this claimed violation of separation of powers is without merit. K.S.A. 60-19a02(d) imposes a cap on noneconomic damages that prevents the trial court from awarding more than $250,000, but it does not prevent a trial court from granting a new trial when permitted by K.S.A. 2011 Supp. 60-259 and the evidence.
As to Miller’s second argument that K.S.A. 60-19a02 violates separation of powers because it is an “inflexible cap” that robs judges of their judicial discretion, we hold this argument to be without merit because we disagree with Miller’s characterization of the cap as a statutory remittitur. The power of remittitur is incident to the power to grant a new trial after the verdict is determined to be excessive under K.S.A. 2011 Supp. 60-259 because it is based upon prejudice, passion, or insufficient evidence. When a verdict is excessive for any of these reasons, the trial court as a matter of law refuses to accept it and offers the prevailing party the option of a reduced verdict more in line with the evidence. And if the party refuses, the court orders a new trial. Dixon v. Prothro, 251 Kan. 767, 770, 840 P.2d 491 (1992). The cap is not a “statutory remittitur” because it is not conditioned on an erroneous verdict, nor is it conditioned on the prevailing party’s acceptance. We hold that Miller’s second argument is without merit.
Miller’s third argument is that the cap violates the separation of powers doctrine because it can prevent a trial court from ordering a new trial unless the losing party accepts an increased award through additur when the jury awards less than $250,000 and the evidence supports a greater award. But that assertion is not entirely true. The trial court may still order a new trial so long as the losing party accepts a higher award up to the $250,000 limitation. It would only be when a trial court sought to use additur or remittitur to create an award greater than $250,000 that the statutory cap intercedes to prevent it.
In this respect, K.S.A. 60-19a02 does create some limitation on when it would be sensible for a trial court to exercise its authority to order a new trial under K.S.A. 2011 Supp. 60-259 in lieu of additur or remittitur. If the verdict is greater than $250,000 and the court determines that, as a matter.of law, the verdict would be more in line with the evidence if reduced to another dollar value greater than $250,000, the court will forgo ordering a new trial because the cap would render such effort futile. Similarly, it would be pointless for the trial court to order a new trial unless the losing party consents to a higher verdict through additur of more than $250,000.
It is this de facto restriction on the trial court’s exercise of the power to order a new trial in lieu of additur or remittitur that is at the heart of Miller’s separation of powers claims. But Miller overlooks that this judicial power depends upon the trial court’s determination that the jury verdict is inappropriate on some basis. This means that the question presented is whether it violates the separation of powers doctrine when the legislature enacts statutes that restrict when a trial court may order a new trial in lieu of additur or remittitur.
The powers to grant a new trial or offer additur or remittitur originally stemmed from the common law. See Samsel II, 246 Kan. at 359 (discussing the court’s common-law authority to grant a new trial when the verdict is inadequate). But since the enactment of the Code of Civil Procedure, the statutory basis for granting a new trial is exclusive. Thus, a trial court has no jurisdiction to grant a new trial for a reason not provided in the statute. See, e.g., Mettee v. Urban Renewal Agency, 219 Kan. 165, 167-68, 547 P.2d 356 (1976). And, as this court noted in Samsel II, at one time the new trial statute prohibited granting a new trial because a verdict was inadequate, which as a practical matter prohibited a trial court from ordering a new trial in lieu of additur. Samsel II, 246 Kan. at 359 (citing G.S. 1901, 4755). In Railway Co. v. O’Neill, 68 Kan. 252, 254, 74 P. 1105 (1904), this court recognized the legislature could “regulate the matter of the granting of new trials” in this manner.
The long-standing legislative influence in these matters weighs against finding the separation of powers doctrine, is violated by K.S.A. 60-19a02 when considered in light of the four factors articulated in State ex rel. Morrison v. Sebelius that guide consideration of whether the doctrine was violated. The legislature has exercised some control over the judicial power to grant a new trial if a party does not accept the court’s offer of additur or remittitur over many years. In actual experience, this has not yielded significant adverse results.
Finally, and as we have already noted, the judiciary has “tolerated” the legislature’s regulation of the court’s power to grant new trials since at least 1904, when the court in Railway Co., 68 Kan. at 254, recognized that the legislature could “regulate the matter of the granting of new trials,” including the power to prohibit new trials based on the inadequacy of an award of damages. This court has also recognized that a court’s authority to grant a new trial is limited to the six enumerated grounds provided by the legislature in K.S.A. 60-259(a), which became effective January 1, 1964. Met-tee, 219 Kan. at 168; L. 1963, ch. 303, sec. 60-259. The balance of the applicable factors weighs against finding that the cap’s implicit prohibition on granting a new trial when an award of noneconomic damages is inadequate below the $250,000 cap significantly interferes with judicial power. Accordingly, we hold the cap does not violate the separation of powers doctrine.
Trial Error Claims
We address next the parties’ claims that the district court erred in posttrial rulings. Miller argues the trial court erred by striking the jury’s $100,000 award for future medical expenses by granting Johnson’s motion to alter or amend the judgment. Johnson argues through a cross-appeal that she was entitled to judgment as a matter of law because Miller failed to prove causation of damage for the negligence allegations. Alternatively, Johnson argues she was entitled to a new trial based on three evidentiaiy errors. We begin by deciding Miller’s claim that the jury’s $100,000 award for future medical expenses should be reinstated.
Millers Future Medical Expenses
The district court granted Johnson’s motion to alter or amend the judgment, striking Miller’s $100,000 juiy award for her claimed future medical expenses. The court held that Miller offered insufficient evidence for the jury to make findings about her future medical or counseling needs, how much future care she would require, or what that cost would be over the next several decades until she reached menopause. Miller challenges that ruling, pointing out that the district court denied a similar claim during trial when the doctor raised it in a motion for directed verdict. By granting Johnson’s motion to alter or amend judgment, the district court changed its position more than a year after the evidence had been heard.
Miller argues substantial competent evidence supports the jury’s verdict by citing the trial testimony of Dr. Richard Derman and Dr. John Spiridigliozzi, along with Miller’s medical records and bills. Miller argues the jury could have estimated the reasonable cost of her future medical expenses using the testimony and medical bills admitted into evidence. She also notes the award provides only $2,000 a year for her future health care and is reasonable given Miller’s age and life expectancy. Johnson counters that this evidence is too conjectural or speculative to form a reasonable basis to measure Miller’s future medical needs and the expenses required to meet those needs.
Standard of Review
The decision to grant a motion to alter or amend a judgment pursuant to K.S.A. 2011 Supp. 60-259(f) is within the district court’s sound discretion and will not be disturbed on appeal unless there is an abuse of that discretion. Exploration Place, Inc. v. Midwest Drywall Co., 277 Kan. 898, 900, 89 P.3d 536 (2004); Mitchell v. City of Wichita, 270 Kan. 56, 66-67, 12 P.3d 402 (2000). 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) (quoting State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 [2011]). In this case, we must focus our attention on the third inquiry—whether the trial court’s ruling was based on an error of fact concerning the detail within Miller’s evidence of her future medical expenses.
Sufficiency of the Evidence for Future Medical Expenses
In assessing the doctor’s motion to alter or amend the juiy’s $100,000 award for future medical expenses, the district court was required to stay within certain parameters, which this court articulated in McKissick v. Frye, 255 Kan. 566, 591, 876 P.2d 1371 (1994), as follows:
“In a negligence action, recovery may be had only where there is evidence showing with reasonable certainty the damage was sustained as a result of the negligence. Recovery may not be had where the alleged damages are too conjectural or speculative to form a basis for measurement. To warrant recovery of damages, therefore, there must be some reasonable basis for computation which will enable the trier of fact to arrive at an estimate of the amount of loss.”
Within these constraints, we must examine the medical records and billings submitted to the juiy and consider the trial testimony of Miller’s experts to determine whether there was a reasonable basis for the jury to compute Miller’s future medical expenses.
Miller begins by noting Derman’s testimony on her future medical needs. Derman is an obstetrician gynecologist with a practice “focused on preventive health care.” And his expertise is with women who are becoming menopausal and postmenopausal. Derman testified in part:
“[DERMAN].. . [B]ased upon [Miller’s] history and her symptoms I determined that she would need long term estrogen therapy and because of the need to have estrogen therapy she would be regulated to long term blood thinners or Cou-madin, which means that she would be getting approximately monthly blood draws [and] would be seeing the hematologist for frequent visits. That she would continue to see the gynecologist at least a couple of times a year, in terms of her— both her quality of life issues the tight traction or changing doses and needs of her hormones, the issues associated with sexual dysfunction. I also said that she possibly would require some visits with an endocrinologist to check out thyroid function.... I was concerned about shifting body weight. Difficulty in weight loss being certain that we were to monitor her good and bad cholesterol and triglyceride. ... I was concerned with long term blood thinners, and the fact that she went through surgical menopause, that there might be an increased risk of bone loss and osteoporosis. I talked about the importance of getting what we call a bone test or DXA test, as well as, getting her routine mammography and all of her immunizations up-to-date, as well as her need for psychiatric or psychological consult. I think somewhere ... I pointed out the fact that her internist may want to get an echocardiogram, but people who have tírese types of conditions, these types of genetic effects may have a propensity of showing false blood clots, and in the valves of the heart, develop small clots. So, pretty much that is a summary of what I indicated would be necessary for [Miller].”
Derman explained that Miller would be dealing with being menopausal and postmenopausal, with the associated symptoms of hot flashes, insomnia, mood swings, and vaginal diyness for approximately 20 years longer than an average woman in the United States. He also discussed Miller’s long-term consequences with respect to a unique blood condition, including his estimate that her blood clotting risk was approximately 60 times that of an average woman. Derman also believed Miller would need continued estrogen therapy over the next 20 to 30 years, and as a result of her blood condition would require a blood thinning agent.
Johnson’s defense counsel, on the other hand, had Derman admit during cross-examination that some of Derman’s recommendations applied to all women. That exchange stated:
“[DEFENSE COUNSEL]: And tírese are test[s] that you say that in your opinion [Miller] needs in the future, the evaluation an[d] visits?
“[DERMAN]: Yes.
“[DEFENSE COUNSEL]: Some of those things. Perhaps not as frequently and perhaps not as soon, but some of those tilings you recommend for all women?
“[DERMAN]: That’s correct.
“[DEFENSE COUNSEL]: So, you’re not trying to tell the jury only because of her condition does she need a mammogram?
“[DERMAN]: No.
“[DEFENSE COUNSEL]: Or because only because of her condition she would need a DEXA?
“[DERMAN]: But the DEXA would be done earlier.
“[DEFENSE COUNSEL]: [0]f the test that you mentioned which would you recommend to any wom[an], although maybe not as soon or not as frequendy?
“[DERMAN]: Well . . . certainly a pelvic examination, a gynecological test and mammography. I would recommend to all of my patients a DEXA test at one point.”
Later in the trial, Spiridigliozzi, a psychologist, provided additional testimony about Miller s future medical needs, stating:
“[SPIRIDIGLIOZZI]: Well, I think that [Miller] would benefit from seeing a professional psychologist or someone that is trained; has experience or expertise in dealing with anxiety disorders.... I think that she can probably use a medication evaluation too. So she could see a psychiatrist, I think tiiat could help her reduce her anxietyf.]. . .
“Marital counseling clearly to help her and her husband deal with some of the things that have come up for them. . . . How to deal widi early menopause for a worn [an], . . . And eventually maybe the marital Ürerapy could also incorporate the children, and become family therapy at some stage because she does say that she’s very short with the children. . . . [S]he could [also] benefit from seeing a nutritionist or dietician.
“I think also she could learn more about her condition and maybe see a physical therapist, perhaps, or an occupational therapist.”
With respect to the need for treatment with a psychologist, Spir-idigliozzi estimated such therapy with a licensed doctoral-level psychologist at an approximate cost of $120 per hour. Spiridigliozzi also testified that the intensity and frequency of family therapy and occupation or physical therapy would depend on Miller s progress with her one-on-one counseling. Spiridigliozzi further testified that in his professional judgment, Miller was unlikely to improve with her anxiety disorder without professional assistance.
With this expert testimony as a foundation, the final element in Miller s case for future medical expenses came from her medical records and bills that reflected her course of treatment both before and after her left ovary was mistakenly removed when she was 28 years old. Miller argues these components when viewed together gave the jury a sufficient understanding to use her medical bills and records as indicative of what the reasonable costs of her future medical expenses would be. Miller then notes that $2,000 annual average over the remainder of her life expectancy, without any adjustment for inflation, is neither excessive nor without any basis in the evidence.
In McKissick, this court upheld an award of $30,000 for future medical services based solely on a chiropractor’s testimony that the plaintiff would require weekly treatment at a cost of $34 per visit. Similarly, in Cott v. Peppermint Twist Mgt. Co., 253 Kan. 452, 466, 856 P.2d 906 (1993), this court upheld a jury’s award of damages for future medical expenses even though the experts who testified at trial could not agree on the plaintiff s future medical needs. And because both expert theories were supported by some evidence showing the costs associated with their corresponding medical treatments, this court concluded that each jury had a reasonable basis for computation of the award and was not based on mere speculation. Both of these decisions establish that the jury has a reasonable evidentiary basis to calculate future medical services if there is evidence of costs and testimony about possible future services. Certainty about the exact future services an individual will need is not required.
In Smith v. Massey-Ferguson, Inc., 256 Kan. 90, 116, 883 P.2d 1120 (1994), this court approved a jury award for future medical expenses based largely upon medical expenses incurred to date. The evidence in Smith is comparable to the evidence Miller offered and that the jury accepted as credible. For example, the jury was aware of Miller’s life expectancy and expert opinion regarding both her short-term and long-term future medical needs and had de tailed information about her medical expenses incurred since both of her ovaries were removed—resulting in surgical menopause. The cost information included expenses for office visits and some of her medications. Taken together, the evidence provided a general range of costs similar to what was used in Smith to form an adequate evidentiary basis. See 256 Kan. at 116-17. In addition, the jury was aware of Spiridigliozzi’s specific testimony about Miller’s need for psychological services, the possible duration, and costs ($120 per hour) typically associated with that therapy.
The district court erred by determining there was an insufficient factual basis for the jury’s future medical expenses award. It mis-characterized Derman’s testimony as being only about' possible” future needs, when Derman testified as to Miller’s actual medical and therapeutic needs without equivocation. Similarly, the district court miscast Spiridigliozzi’s testimony as being speculative concerning the benefits Miller would receive from future psychological services, when the doctor actually testified Miller would benefit from such services. In this manner, the testimony offered by Derman and Spiridigliozzi was similar in character to the expert’s testimony in McKissick. See 255 Kan. at 591-92 (chiropractor testified plaintiff “ ‘would have to have treatment about once a week right up until she could either overcome [the injury] or it would gradually get worse, and we may have to slide it up where it would be twice a week treatment program’ ”). Finally, when deciding that Miller had offered no evidence as to costs, the district court did not consider the medical records and billings offered into evidence, which Miller explained was a component of her future medical expense claims.
We hold that the district court based its ruling to alter or amend the judgment on factual mischaracterizations of the evidence and a failure to consider all the evidence Miller presented to support her claim for future medical expenses. The district court premised its decision to strike the juiy’s award on these errors of fact. The district court’s posttrial order constitutes an abuse of discretion under our standard of review. We remand the case to the district court with instructions to reinstate the juiy’s $100,000 award for future medical expenses.
Johnsons Motion for Judgment as a Matter of Law
Johnson filed a motion for judgment as a matter of law under K.S.A. 60-250, arguing that Miller failed to prove causation because Miller’s medical condition often requires the removal of both ovaries. The district court denied the doctor’s motion, holding that there was sufficient evidence to create a jury question. More specifically, the district court found the evidence sufficient that there was no medical indication to remove Miller’s left ovaiy at the time Johnson performed the laparoscopic procedure and that Miller experienced a variety of problems as a result of having both ovaries removed. The district court conceded in its posttrial ruling that the evidence offered by both sides conflicted as to these points but held those inconsistencies were best resolved by the jury, which found against the doctor.
Standard of Review
When ruling on a motion for judgment as a matter of law under K.S.A. 60-250, the district court must resolve facts and inferences reasonably drawn from the evidence in favor of the party the directed verdict is sought against. If reasonable minds could reach different conclusions based on the evidence, the motion must be denied. An appellate court applies a similar analysis when reviewing the denial of a motion for judgment as a matter of law. The motion’s consideration becomes a question of law if no evidence is presented on an issue or if evidence is undisputed and the minds of reasonable persons may not draw differing inferences or arrive at opposing conclusions. Deal v. Bowman, 286 Kan. 853, 858, 188 P.3d 941 (2008).
Analysis of the Motion for Judgment as a Matter of Law
Johnson argued to the district court after the verdict that the evidence at trial proved Miller suffered from chronic pelvic pain, which was a preexisting condition that often required removal of both ovaries and the uterus. Johnson asserted that because Miller suffered from this preexisting condition, it was outside a juror’s common knowledge and experience to determine whether removal of Miller’s right ovary as planned with the first surgery would have resolved Miller s problems without later removal of her left ovary. Johnson concluded that Miller failed to prove causation because no one testified that Miller s “left ovary would not have been removed even if her right ovary had been removed [as originally planned].” In response, Miller argued that Johnson’s logic was flawed because the evidence at trial proved she would be functioning well with one ovary had Johnson removed the right ovary as intended.
The district court denied Johnson’s motion for judgment as a matter of law, concluding:
“Miller presented evidence through Dr. Andrew Brill that it was below the standard of care to remove the left ovary when the indication and planned surgery was for the right ovary. [Brill] testified that there was no indication for removal of the left ovary. . . . Dr. Richard Derman testified that once both ovaries were removed, Miller would experience a variety of problems, all related to the fact she did not have any ovaries. Miller established, through expert testimony, negligence and causation. Dr. Johnson presented alternative expert testimony; however, that testimony was not followed by the jury.”
On appeal, the doctor continues to press the same argument made to the trial court. Johnson claims that because of Miller’s preexisting medical conditions, both of her ovaries and uterus needed to be removed eventually, even if the left ovaiy was mistakenly taken first. The doctor argues Miller had the burden to prove that her left ovary would never have needed to be removed. Miller responds that it is sufficient she proved there was no medical justification to remove her left ovary.
To establish a medical malpractice claim, a plaintiff must show: (1) the health care provider owes the patient a duty of care and was required to meet or exceed a certain standard of care to protect the patient from injury; (2) the health care provider breached this duty or deviated from the applicable standard of care; (3) the patient was injured; and (4) the injury was proximately caused by the health care provider’s breach of the standard of care. Puckett v. Mt. Carmel Regional Med. Center, 290 Kan. 406, 420, 228 P.3d 1048 (2010).
Johnson argues Miller failed to establish the proximate cause of injury element. There are two categories of proximate cause: cau sation in fact and legal causation. To demonstrate causation in fact, a plaintiff must prove a cause-and-effect relationship between the defendant’s conduct and the plaintiff s loss by presenting sufficient evidence from which a jury could conclude that more likely than not, but for the defendant’s conduct, the plaintiff s injuries would not have occurred. Puckett, 290 Kan. at 420. Miller points to the testimony of her expert witness, Dr. Andrew Brill, and to the defendant doctor’s testimony as establishing that there was no medical justification for the removal of her left ovary.
This court’s review of that testimony shows Miller is correct. Brill repeatedly responded to counsel’s questions by testifying there was no medical reason or justification for Johnson to have removed Miller’s left ovary. Likewise, Johnson agreed with Brill’s assessment that there was no medical justification for removal of tire left ovary. And the district court correctly noted that Johnson’s expert witnesses offered a contrary view regarding Miller’s preexisting medical conditions, but this simply led to a juiy question of fact that got resolved against the doctor.
We hold that the district court did not err in denying Johnson’s motion for judgment was a matter of law.
Johnson's Motion for New Trial
The final issue concerns the district court’s rejection of Johnson’s motion for new trial. Johnson argued she was entitled to a new trial because the district court: (1) prevented two of Miller’s treating physicians from testifying that it would have been necessary to eventually remove Miller’s left ovary; (2) prevented cross-examination of a plaintiff s expert regarding professional disciplinary actions; and (3) permitted questioning of Miller about Johnson’s statements in certain pleadings in which Johnson denied liability. We will address each in this order.
Standard of Review
Granting a new trial under K.S.A. 60-259(a) is within the trial court’s discretion, and that ruling will not be disturbed on appeal unless that discretion was abused. City of Mission Hills v. Sexton, 284 Kan. 414, 421, 160 P.3d 812 (2007). As discussed above, judicial discretion is abused if judicial action is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. McCullough, 293 Kan. at 980-81.
Treating Physicians’ Testimony
. Johnson argues the trial court abused its discretion by restricting the testimony of Drs. Daniel Stewart and Christopher Lynch. Both doctors took over Miller s medical care after Miller s left ovary was mistakenly removed in 2002. Johnson argues on appeal that these two treating physicians should have been permitted to testify that Miller would eventually have had both ovaries removed anyway because of her preexisting medical conditions. The point of the testimony apparently was to support Johnson’s argument that Miller was not damaged by Johnson’s surgical error. This was a hotly contested issue before, during, and after trial.
The question first was presented as a pretrial motion in limine in which Miller objected to the proposed testimony after learning about it shortly before trial. Miller claimed Johnson had failed to properly disclose the proposed testimony during discovery, which violated prior court orders. Miller also argued that, as treating physicians, Stewart and Lynch could not offer such testimony without full expert disclosure because those opinions were outside of what was incidental to the doctors explaining their care and treatment of Miller.
The record does not provide us with the district court’s pretrial ruling on the motion in limine, but it does suggest the trial court indicated it would preliminarily limit the doctors to testifying only about tiróse matters stated in their medical records, their care and treatment of Miller, and inquiries reasonably related to that treatment, with an understanding to return to the issue as testimony developed at trial. This handling is consistent with the usual accepted trial court practice for considering motions in limine. See Manhattan Ice and Cold Storage, Inc. v. City of Manhattan, 294 Kan. 60, 69-70, 274 P.3d 609 (2012) (summarizing a district court’s discretion and necessary considerations when ruling on a pretrial motion in limine).
As expected, the issue resurfaced at trial when the first doctor appeared to testify. At that time, the district court had a lengthy colloquy witli counsel outside of die jury’s presence during which the matter was reargued. The district court then held it would not allow either doctor’s testimony that the ovary Johnson removed would have needed to be removed eventually. The district court gave two reasons for its ruling. First, the court found that its pretrial orders had obligated Johnson to disclose the proposed testimony from these two doctors sooner than actually occurred—about 1 month before trial. The court found this violation of its discovery schedule and order had prejudiced Miller’s ability to address the proposed testimony because the disclosure came after much of the expert discovery. Second, the district court held the limitations on these two physicians’ testimony derived from K.S.A. 60-226(b)(6). At the time of Miller’s trial that statute provided:
“(6) Disclosure of expert testimony.
“(A) A party shall disclose to other parties the identity of any person who may be used at trial to present expert testimony.
“(B) Except otherwise stipulated or directed by the court, this disclosure, with respect to a witness (i) whose sole connection with the case is that the witness is retained or specially employed to provide expert testimony in the case or (ii) whose duties as an employee of the party regularly involves giving expert witness testimony, shall state the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.
“(C) These disclosures shall be made at tire times and in the sequence directed by the court. . . .
“(D) Unless otherwise ordered by the court, all disclosures under this subsection shall be made in writing, signed and served. Such disclosures shall be filed with the court in accordance with subsections (d) of K.S.A. 60-205 and amendments thereto.”
After trial, Johnson argued the district court had mistakenly restricted the testimony from Stewart and Lynch, that the limitation was prejudicial to the verdict against Johnson, and that a new trial should be ordered. In denying the motion for new trial, the district court simply referred back to its earlier decisions regarding this testimony and reaffirmed tire rationale explained at that time, stating:
“As treating physicians the Court limited these doctors’ testimony, pursuant to K.S.A. 60-226(b)(6), to matters set forth in their records, their care and treatment of Miller and subjects that were reasonably related to that treatment. After review and consideration of the Court’s previous decision in limine to exclude this testimony as well as consideration of Dr. Johnson’s current motion, Dr. Johnson’s motion for new trial is denied.”
On appeal, Johnson argues she is entitled to a new trial because K.S.A. 60-226(b)(6) applies only to expert witnesses “whose ‘sole connection with the case is that the witness is retained or specially employed to provide expert testimony ....’” And from that perspective, Johnson contends K.S.A. 60-226(b)(6) did not apply to the testimony of Stewart and Lynch because they were Miller’s treating physicians. In tire alternative, Johnson argues her supplementation of expert disclosures was timely filed under K.S.A. 60-226(e)(1), providing Miller with sufficient time to address the new testimony to be offered.
Although both parties invite us to delve more deeply into the statutory disclosure requirements for opinions that may be given by treating physicians, we find that the district court’s order may be upheld on other grounds. The first justification, which is founded upon the trial court’s interpretation of its own pretrial orders concerning the parties’ discovery obligations, is sufficient to affirm the ruling denying the new trial. As the district court noted, it held conferences with the parties shortly before the scheduled trial and Johnson did not indicate that this subject matter would be addressed by these two witnesses. The court further noted that Johnson should have disclosed the proposed testimony even earlier pursuant to its case management order through the required witness factual summaries. The district court also specifically found that Miller was prejudiced by this delay because her expert witnesses’ trial testimony had already been secured and Johnson’s dilatory disclosure resulted in “unfair surprise.”
K.S.A. 60-237(c) provides that aparty’s failure to disclose witness information required by a court’s scheduling order entered pursuant to K.S.A. 60-226(b)(6)(C) precludes that testimony unless the court finds the failure was substantially justified or harmless. In this case, the district court found neither exception supported the delay. An abuse of discretion standard applies to decisions made under K.S.A. 60-237(c). Divine v. Groshong, 235 Kan. 127, 142, 679 P.2d 700 (1984). Additionally, we have always held that a trial court is vested with broad discretion in supervising the course and scope of discovery. In re Care & Treatment of Hay, 263 Kan. 822, 839, 953 P.2d 666 (1998).
In the doctor’s appellate briefs, Johnson does not address how, or even whether, the trial court misinterpreted its own scheduling orders or erred in its determinations that Johnson failed to comply with those orders, had no justification for such failure, and that the failure prejudiced Miller. Our own review of the record shows the district court had entered scheduling orders requiring disclosure regarding the substance of witness testimony. We are convinced the district court acted well within its discretion in limiting the doctors’ testimony because of Johnson’s failure to comply with the previously entered discovery schedule.
Limitation of Expert Cross-examination
Johnson next argues in very general terms that the district court erred by preventing her from cross-examining one of Miller’s expert witnesses regarding that witness’ medical license. Johnson claims this questioning would have been relevant to that witness’ credibility. In denying a new trial on this basis, the district court specifically ruled this did not prejudicially affect Johnson and did not rise to the level of granting a new trial.
The first obvious problem with Johnson’s argument is that it is not adequately briefed or argued. Johnson does not cite to the record on appeal where she entered her trial objection to demonstrate the issue was preserved, and she cites no legal authority supporting her argument. And Johnson does not address in any manner the district court’s holding that no prejudice resulted from this claimed error. We find the two paragraphs of Johnson’s brief inadequate to properly raise this issue on appeal. Claims made in passing without argument or citations to authority are deemed waived and abandoned. Frick Farm Properties v. Kansas Dept. of Agriculture, 289 Kan. 690, 714, 216 P.3d 170 (2009). We hold that Johnson has inadequately presented this issue on appeal for this court’s consideration of it.
Questioning Miller about Johnsons Legal Pleadings
Johnson does only slightly better than the previous issue at briefing her claim that Miller should not have been questioned about the impact on her of Johnson’s general denial in the legal pleadings that medical malpractice had been committed. Johnson contends only generally that the evidence was irrelevant and “highly prejudicial,” but she offers no caselaw support or deeper discussion as to how the admission of this testimony—-in the context of the other evidence—adversely impacted the jury’s outcome or denied Johnson a fair trial.
We note again that the district court specifically found no prejudice from the admission of this testimony, and Johnson’s only contention to this court is the bald counter that the evidence was “highly prejudicial.” Any effort to demonstrate prejudice would necessarily include consideration of the other evidence presented at trial and Johnson has not attempted to make this showing. This is insufficient to argue such an issue to this court. As with the previous claim, we hold Johnson has waived it.
Affirmed in part, reversed in part, and remanded with directions.
Rosen, J., not participating.
Knudson, J., assigned.
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Subsets and Splits